[64] DeMOSS, Circuit Judge, specially concurring:

I concur in parts I, II, III, V, VI and VII of the majority opinion authored by Judge Smith, which hold that qui tam actions brought by uninjured relators violate the Constitution's Take Care Clause and the constitutional doctrine of separation of powers when the government has not intervened in the suit. Accordingly, I concur in the judgment of the Court, which affirms the decision of the district court. [66] I do not agree with and am unable to join in the reasoning and analysis of part IV of the majority opinion, which finds error in the district court's legal determination that Riley lacked Article III standing to bring this suit. In my view, neither precedent nor history, nor any more abstract theory of constitutional or logical analysis requires the conclusion that Riley, who suffered no particularized or personal injury, is blessed with standing to bring this suit on behalf of an otherwise disinterested government. To the contrary, the Supreme Court's recent structuralist approach to jurisdiction heralds a new era in the evolution of the standing doctrine; one in which the rigors of the injury requirement inherent in the case or controversy component of Article III will not be excused on the theory that they constitute mere prudential considerations. See Steel Co. v. Citizens for a Better Env't, 118 S.Ct. 1003, 1016-20 (1998); see also Federal Election Comm'n v. Akins, 118 S.Ct. 1777, 1784-87 (1998). Given the very real possibility of en banc or even Supreme Court review, and with no intent to distract or detract from the wisdom of the majority's view with respect to the remaining issues, I write separately to explain why I believe that the district court's conclusion that Riley lacked standing is correct, and why we should take that rationale into account when judging the propriety of the district court's decision dismissing Riley's claims.

I. BACKGROUND

Plaintiff-appellant Joyce Riley filed this suit pursuant to the qui tam provisions of the False Claims Act, 31 U.S.C. §§ 3729- 3733 (the FCA). Those provisions authorize individual citizens to sue on behalf of the government for fraud committed against the government. The qui tam provisions ultimately permit a successful individual plaintiff — called a "relator" — to collect part of the government's recovery. Riley filed a preliminary statement under seal, which the U.S. Department of Justice reviewed at length. See 31 U.S.C. § 3730(b)(2). Having reviewed Riley's statement, the government declined its right to intervene in the suit, see § 3870(b)(4)(B), and Riley proceeded on her own in the district court.

After Riley filed her original complaint, the various defendants filed motions to dismiss for failure to state a claim. The district court denied each motion, but requested additional briefing to address Riley's standing under Article III of the Constitution. Riley, the University of Texas Health Science Center, and the United States, as intervenor for the limited purpose of defending the FCA's constitutionality, briefed the standing issue. Riley then filed a second amended complaint, which was met with another round of motions to dismiss under Rule 12(b)(6).

The district court dismissed Riley's claims on jurisdictional grounds, concluding that Riley lacked Article III standing because she had not even alleged any personal injury in fact, which is part of the "irreducible constitutional minimum" that must be shown to establish Article III standing. See United States ex rel. Riley v. St. Luke's Episcopal Hosp., 982 F. Supp. 1261, 1268 (S.D. Tex. 1997). The district court further held that there was no constitutionally valid analysis that would permit Riley to pursue her fraud claims for injury to the government. Specifically, the district court held that Congress could not, by way of the FCA's qui tam provisions, legislatively delegate or assign to a private citizen the right to pursue the government's interest with respect to claims that would otherwise be constitutionally vested within the control of the Executive branch. See id. at 1264-69.

Riley appealed, arguing that qui tam relators suing under the FCA have standing to sue on behalf of the United States, even when the United States has declined to prosecute the suit on its own. Riley offers a variety of theories in support of her position. Specifically, Riley argues that the standing of qui tam relators is well-established by binding precedent, that the constitutional validity of qui tam actions is proven by a long and illustrious history of congressional usage, and finally, that Article III standing concerns about qui tam suits are answered by any number of more abstract constitutional theories, including the statutory permission theory, the assignment theory, the retaliation theory, and the bounty theory. I will begin with a brief statement of Article III principles and then consider each of these arguments in turn.

II GENERAL PRINCIPLES

Federal court jurisdiction extends only to "cases" and "controversies." U.S. Const. art. 3, § 2; s ee also Steel Co., 118 S.Ct. at 1016; Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2136 (1992). Standing is an essential and constitutionally mandated part of the case or controversy requirement of Article III, see Lujan, 112 S.Ct. at 2136, which prevents the judicial process from being merely "a vehicle for the vindication of the value interests of concerned bystanders," Valley Forge Christian College v. Americans United for Separation, 102 S.Ct. 752, 758 (1982). Although standing may be informed by some prudential considerations as well, the Supreme Court has unambiguously defined three indispensable elements that comprise the "irreducible constitutional minimum" required to establish Article III standing. See Lujan, 112 S.Ct. at 2136.

"First, the plaintiff must have suffered an `injury in fact.'" Lujan, 112 S.Ct. at 2136; see also Steel Co. , 118 S.Ct. at 1016-17; Association of Community Orgs. for Reform Now v. Fowler, 178 F.3d 350, 356 (5th Cir. 1999). The alleged injury must be "actual or imminent," as opposed to "conjectural" or "hypothetical." See Lujan, 112 S.Ct. at 2136. Of equal importance, the alleged injury must be concrete and particularized in the sense that it "affects the plaintiff in a personal and individual way." Id. at 2136 n. 1.

Second, there must be causation. See Steel Co., 118 S.Ct. at 1016-17; Lujan , 112 S.Ct. at 2136. Causation is established when the plaintiff's alleged injury is directly related to the defendant's objectionable conduct, and is "not the result of the independent action of some third party not before the court." Lujan , 112 S.Ct. at 2136. Finally, "there must be redressibility." Steel Co., 118 S.Ct. at 1017. Redressibility is established when there is a likelihood that the requested relief will redress the plaintiff's alleged injury. Steel Co., 118 S.Ct. at 1017; Lujan , 112 S.Ct. at 2136.

No one contends that the Supreme Court has ever explicitly waived or excused failure to comply with these fundamental standing requirements, whether in a qui tam suit or any other type of suit. To the extent there could be any remaining doubt, surely Steel Co. and Lujan foreclose any argument that an uninjured plaintiff, who by definition has not suffered any cognizable personal injury, nonetheless enjoys Article III standing.

No one claims that Riley herself has sustained the type of concrete and personalized injury required to satisfy the rigors of Article III. That fact alone would seem to preclude a finding of standing in this case. But Riley's articulated theories of standing, and the theories relied upon by those of our sister circuits that have permitted uninjured qui tam relators to proceed with suit, are premised upon the proposition that such relators "stand in the shoes" of the government with respect to the injury caused by the fraudulent claims. If Riley is to stand in the government's shoes, then we must come up with some constitutionally competent explanation for explaining how she got there.

III. THE PRECEDENT ARGUMENT

A. Supreme Court Precedent

Riley contends that the Supreme Court either implicitly or explicitly approved of qui tam relator standing under the FCA in four cases. In three of those cases, United States ex rel. Schumer v. Hughes Aircraft Co., 117 S.Ct. 1871 (1997); United States ex rel. Marcus v. Hess, 63 S.Ct. 379 (1943); and Marvin v. Trout, 26 S.Ct. 31 (1905), the Supreme Court decided qui tam cases brought under the FCA ( Hughes and Hess) or some other statute ( Marvin) without questioning its Article III ability to do so. Thus, Riley reads the Supreme Court's failure to address standing sua sponte as an implicit assertion that standing existed in each case. This reasoning is inherently suspect. See Giles v. NYLCare Health Plans, Inc., 172 F.3d 332, 336 n. 2 (5th Cir. 1999) ("Even though subject matter jurisdiction can be raised sua sponte, we take nothing away from our failure to do so in these cases."). But there are even better reasons for rejecting the "implicit" holdings suggested by Riley.

The first case, Marvin v. Trout, 26 S.Ct. 31 (1905), did not present any question related to the qui tam provisions of the False Claims Act, the statute at issue here. To the contrary, Marvin involved only the constitutional validity of an Ohio state statute that was applied in that case to permit a spouse to recover gambling losses from, inter alia, the owner of the gambling establishment where the losses were incurred. The Supreme Court noted that no well-defined constitutional issues had been presented to the lower courts or to the Supreme Court. Id. at 33-34. Indeed, the Supreme Court noted that the federal issues involved were so poorly defined that similar petitions had been held to raise no federal issue at all. Id. at 34-35. Nonetheless, in a subsequent discussion assuming that there was a due process violation at issue, the Supreme Court first raised and then rejected the argument that every action brought by an informer to recover a penalty or forfeiture granted by statute would be per se unconstitutional. Id. Given the limitations on both the issues presented and the holding in Marvin, that case cannot be cited with any credibility as a considered holding on the issue of standing under the FCA.

Only two of Riley's four Supreme Court cases, Hughes and Hess, involved the qui tam provisions set out in the FCA, the statute at issue in this case. It is abundantly clear from the text of Hughes itself that the Supreme Court did not intend any "implicit" holding on the issue of Article III standing. Indeed, the writ of certiorari in Hughes was expressly limited to "the nonconstitutional questions presented by the petition" for writ of certiorari. Hughes, 117 S.Ct. at 1875 n. 3. The "constitutional challenges to the qui tam provisions" of the FCA, which were presented to and decided by the courts below, and which included the argument that qui tam relators lack standing, see United States ex rel. Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 1520-21 (9th Cir. 1995), vacated, 117 S.Ct. 1871 (1997) , were simply not before the Supreme Court for decision. Hughes, 117 S.Ct. at 1875 n. 3. Instead, the Hughes court decided the case on a merit-based issue of statutory construction. See id. at 1878.

Hess may skate a little closer to some of the constitutional concerns raised by the FCA's qui tam provisions, but the case is likewise silent on the issue of the Article III requirement for an injury in fact, or any of the other fundamental elements of Article III standing. To the contrary, the disposition in Hess, like the disposition in Hughes , is based upon an issue of merit-based statutory construction. See Hess , 63 S.Ct. at 383-84.

The timing and context of Hess, and the plain language used in Hughes, compels the conclusion that the Supreme Court did not intend to reach any issue relating to Article III standing in those cases. See Ara Lovitt, Note, Fight for Your Right to Litigate: Qui Tam, Article II, and the President, 49 Stan. L. Rev. 853, 855 n. 12 (1997) (suggesting, in 1997, that the Supreme Court may be waiting upon a circuit split to directly address the standing of qui tam relators); see also Edward A. Hartnett, The Standing of the United States: How Criminal Prosecutions Show that Standing Doctrine is Looking for Answers in all the Wrong Places, 97 Mich. L. Rev. 2239, 2243-45 (1999) (explaining how courts have avoided reconciling the injury in fact standing requirement with ancient qui tam practice). Significantly, all four of the Supreme Court cases Riley relies upon, including Hughes and Hess , were decided before Steel Co. v. Citizens for a Better Env't, 118 S.Ct. 1003 (1998). Steel Co. considered and rejected the argument that the Court can assume hypothetical jurisdiction to reach the merits in a case without regard to whether the parties have raised a disputed question relating to Article III jurisdiction. See id. at 1012-15 n. 3 (noting the absence of any Supreme Court cases addressing the merits before first answering any "disputed question of Article III jurisdiction"). For these reasons, the Court should reject Riley's invitation to draw any meaningful inference from the Court's silence in Marvin, Hess, and Hughes on the important issue of Article III standing.

The fourth Supreme Court case, which Riley reads more broadly as explicitly holding that a qui tam relator has Article III standing is Lujan v. Defenders of Wildlife, 112 S.Ct. 2130 (1992) — the very case the district court cited for the proposition that qui tam relators who lack a personalized injury also lack Article III standing to sue. Lujan involved a challenge to a rule promulgated by the Secretary of the Interior interpreting certain provisions of the Endangered Species Act. See id. at 2135. The Supreme Court stated that the rule at issue could not vest private citizens with standing to sue on the theory that the statutory provisions involved created "an abstract, self-contained, noninstrumental `right' to have the Executive observe the procedures required by law." Id. at 2143. In reaching that conclusion, the Court distinguished the issue presented from the "unusual case in which Congress has created a concrete private interest in the outcome of a suit against a private party for the government's benefit, by providing a cash bounty for the victorious plaintiff." Id. at 573. To the extent this is relevant at all in this FCA suit, it is plainly dictum used to define the scope of the Lujan decision, rather than any explicit approval of qui tam actions under the FCA or, for that matter, qui tam actions in general. As in Hughes, Hess, and Trout, the standing of qui tam relators under the FCA was simply not before the Lujan Court.

To sum up, Riley has not offered any binding or persuasive authority that the Supreme Court has either implicitly or explicitly closed the door on arguments that qui tam relators under the FCA lack standing.

B. Fifth Circuit Precedent

The majority somewhat reluctantly concludes that Fifth Circuit precedent precludes a holding that Riley lacked Article III standing in this case. The majority opinion's analysis on this important issue in our Circuit is based upon the purported binding effect of a passing footnote reference in United States ex rel. Foulds v. Texas Tech University, 171 F.3d 279, 288 n. 12 (5th Cir. 1999), petition for cert. filed, 68 U.S.L.W. 3138 (Aug. 23, 1999) (No. 99-32).

While I agree, and even applaud the majority opinion's reasoning with respect to the remaining constitutional issues, I am not persuaded that Foulds or any other Fifth Circuit case constitutes binding precedent competent to waive the Article III requirement of a particularized and personal injury in qui tam suits. Moreover, and without regard to the binding effect of the brief sub-textual reference to standing in Foulds, it seems very likely that this case will invite en banc scrutiny, and I therefore think it appropriate that a more comprehensive analysis of the Foulds opinion, and the majority's treatment of that opinion, be available to the en banc court.

Foulds includes the following language in footnote 12:

No one has challenged [relator] Fould's standing in this case. We must, however, consider possible objections to standing sua sponte. Lang v. French, 154 F.3d 217, 222 (5th Cir. 1998). Our court has explicitly found that qui tam plaintiffs have standing. United States ex rel. Weinberger v. Equifax, Inc., 557 F.2d 456, 460 (5th Cir. 1977). As noted in a district court opinion concluding that relators lack standing, since our opinion in Equifax, the Supreme Court has refined its standing jurisprudence. United States ex rel. Riley v. St. Luke's Episcopal Hosp., 982 F. Supp. 1261 (S.D. Tex. 1997). Yet, with regard to this issue, we consider persuasive a recent Supreme Court decision dealing with a qui tam issue under the False Claims Act. See Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 117 S.Ct. 1871, 138 L.Ed.2d 135 (1997) (holding that portions of the 1986 amendments to the Act do not apply retroactively). The Hughes Aircraft Court did not raise any standing objections.

Foulds, 171 F.3d 288 n. 12.

I do not believe that this brief footnote reference constitutes a considered and binding holding on the issue of the Article III standing of qui tam relators. First of all, the Foulds panel did not need to reach the issue of the relator's standing in order to resolve the dispositive question in that case, i.e., whether the Eleventh Amendment barred the relator's claims against state entities. As the panel correctly noted, the Eleventh Amendment issue was itself jurisdictional, and sufficient to dispose of the case. See Foulds, 171 F.3d at 285-88.

The majority disagrees. Curiously, the majority first characterizes the purportedly controlling language in Foulds as "no more than a passing reference," but then concludes that that passing reference is nonetheless binding on novel issues that were never briefed or otherwise placed in dispute in Foulds. This remarkable conclusion was drawn from Calderon v. Ashmus, 118 S.Ct. 1694 (1998), which held that the particular action for declaratory judgment and injunctive relief at issue in that case did not present a justiciable controversy within the meaning of Article III. Calderon was not a standing case, and did not set forth any new jurisdictional or jurisprudential rule that standing must in all cases be addressed sua sponte by a federal court prior to consideration of any other jurisdictional limitations. Rather, Calderon merely noted that Eleventh Amendment limitations are not co-extensive with those basic limitations upon the federal judicial power specified in Article III of the Constitution, and then observed that reviewing the case for compliance with Article III's case or controversy requirement prior to addressing the Eleventh Amendment issue was more "in keeping with" the Supreme Court's "precedents." Id. at 1697 n. 2.

The majority reads Calderon's observation that the Eleventh Amendment is not co-extensive with Article III as a holding that Article III is in some undefined way "a more `basic' jurisdictional requirement." The majority reads Calderon's statement that resolving the Article III issue in that case before reaching the Eleventh Amendment issue in that case was more "in keeping with" the Supreme Court's existing precedent as a holding that Article III questions must always in every case be addressed before Eleventh Amendment questions. The majority concludes that the Foulds panel's discussion of standing was therefore, under Calderon, a necessary and essential part of the holding in Foulds.

There are several problems with this analysis. First, I believe that what a particular decision "held" must be judged, not by external authority that could hypothetically have directed the result, but by what the particular panel of the Court wrote down on the pages comprising the decision. Thus, I reject the notion that our judgment about what constitutes the holding in Foulds, and what mere dicta, must necessarily be informed by resort to the external legal authority in Calderon.

Second, the majority's conclusion that Article III limitations are more "basic" than Eleventh Amendment is presumably based upon the fact that Eleventh Amendment objections to the court's jurisdiction can be waived, while Article III requirements go directly to the power of the court and may not. Foulds examined this difference for the purpose of characterizing the Eleventh Amendment issue presented as jurisdictional. The Court stated that the significance of the Eleventh Amendment "lies in its affirmation that the fundamental principle of sovereign immunity limits the grant of judicial authority in Art[icle] III of the Constitution." Foulds, 171 F.3d at 285. Foulds then quoted from the Calderon language relied upon by the majority in this case. Foulds acknowledged Calderon's statement that the Eleventh Amendment and Article III are not co-extensive, but reiterated this Court's view, as established by numerous cases, that the Eleventh Amendment, while "not part and parcel of the Article III restrictions," nonetheless partakes of subject matter jurisdiction. See id. at 285-86 n. 9. Thus, Foulds itself seems to belie the majority's conclusion that Calderon mandates a world in which Article III questions take primary place over Eleventh Amendment questions in all circumstances.

Further, to the extent that Calderon could be read to so hold, that premise is completely negated by the Supreme Court's disposition of the appeal from our en banc decision in Marathon Oil Co. v. Ruhrgas, 145 F.3d 211 (5th Cir. 1998) (en banc). See Ruhrgas v. Marathon Oil Co., 119 S.Ct. 1563 (1999). In Marathon Oil, a majority of this en banc court held that in removed cases, the district courts must first decide non-waiveable issues of subject matter jurisdiction before reaching any waiveable issues of personal jurisdiction. See Marathon Oil, 119 S.Ct. at 1569. The Supreme Court reversed, holding that while a determination on the issue of subject matter jurisdiction must necessarily precede any determination on the merits, "the same principle does not dictate a sequencing of jurisdictional issues." Id. at 1570. Rather, the decision to reach subject matter jurisdiction before other jurisdictional issues is one for the Court's discretion. See id. at 1572. The Court recognized that in "most instances" a determination of the Court's subject matter jurisdiction would not involve any arduous inquiry. See id. When, however, a relatively straightforward jurisdictional basis for disposing of the case is available, the Court does not abuse its discretion by seizing upon that course rather than reaching a difficult and novel question that would be required to determine the Court's subject matter jurisdiction. Id.

Stated simply, Marathon abolishes any inference from Calderon, that the Foulds panel must have necessarily decided the Article III issue to reach its determination that the Eleventh Amendment posed jurisdictional barriers. To the contrary, the novelty of the standing issue in light of recent Supreme Court precedent and the difficulty of reaching an informed decision in the absence of any briefing or adversarial argument, explains why the Foulds panel restricted the standing issue to footnote dicta and decided the case instead on the Eleventh Amendment grounds. As further support for this conclusion, I would note that our Court has twice, since the purported "holding" in Foulds, declined to engage the more difficult standing issue, deciding the cases on the basis of more accessible jurisdictional arguments instead. If Foulds were as clear as the majority suggests, there would be no reason to expressly avoid stating that uninjured qui tam relators have standing to sue under the FCA. See United States ex rel. Russell v. Epic Healthcare Management Group, ___ F.3d ___, 1999 WL 824560, at *3 (5th Cir. 1999) (involving qui tam provisions of the FCA, and stating "[w]e need not here join the debate over a relator's standing under Article III"); see also TTEA v. Ysleta Del Sur Pueblo, 181 F.3d 676, 683 n. 1 (1999) (involving qui tam provision relating to the rights of an Indian tribe, and stating that standing was not directly relevant because a holding that the qui tam relator lacked standing would only solidify the Court's conclusion that there was no jurisdiction to grant declaratory relief). For the foregoing reasons, I conclude that an Article III decision was not essential to the Court's Eleventh Amendment disposition in Foulds. The language in footnote 12 of Foulds is therefore simply dicta, which is not binding upon this panel.

In addition to the reasons given above, I note that the purported "holding" in Foulds is not supported by any reasoned analysis of the issue in the text of that opinion. Moreover, and as will shortly be clear, the purported "holding" is not supported by any citations that plainly require the conclusion that uninjured qui tam relators have standing under the FCA even when the government does not choose to intervene.

Foulds cites two primary authorities: this Court's opinion in United States ex rel. Weinberger v. Equifax, 557 F.2d 456, 460 (5th Cir. 1977), and the Supreme Court's opinion in United States ex rel. Schumer v. Hughes Aircraft Co., 117 S.Ct. 1871 (1997). As discussed above, Hughes simply did not decide any constitutional issues at all. To the contrary, the Hughes Court expressly avoided reaching any decision concerning the Article III standing of qui tam relators, notwithstanding the fact that the issue was presented and decided below. See Hughes, 117 S.Ct. at 1875 n. 3. Hughes, therefore, is no authority at all with respect to Article III standing.

Foulds also cited this Court's decision in Weinberger. Although Weinberger held, in 1977, that uninjured qui tam relators have standing, even the Foulds panel recognized that the force of that case has been substantially undermined by refinements in the Supreme Court's treatment of Article III standing. See Foulds, 171 F.3d at 288 n. 12. Weinberger was decided long before the Supreme Court clarified the constitutional scope of Article III standing in cases such as Steel Co. and Lujan. Aside from Foulds, the Court has only cited the Weinberger decision one time for the proposition that qui tam relators enjoy Article III standing, see United States ex rel. Weinberger v. State of Florida, 615 F.2d 1370, 1370 (5th Cir. 1980), and even then, the reference was only in passing and was not material to the disposition of the case. So much for the proposition that Weinberger amounts to seminal Fifth Circuit precedent. Moreover, the reasoning supporting the relevant holding in Weinberger is brief, and merely states that Congress granted standing by passing the statute, without examining whether Congress has any authority to do so. Weinberger, 557 F.2d at 460. The statutory permission theory of qui tam relator standing poses significant constitutional questions, some of which are addressed in the majority's analysis and some of which are addressed in the following section.

Having negated the premise that binding precedent places Riley squarely in the shoes of the government, I will now examine whether any of Riley's more abstract constitutional theories are competent to place her there.

IV. RILEY'S ALTERNATIVE THEORIES

A. Statutory Permission Theory

Riley first argues that relators meet standing requirements because Congress has said that they do. In other words, Riley claims that the FCA is a statutory grant of standing to qui tam relators. A few decisions, including this Court's decision in Weinberger, have taken this "statutory permission" approach. See, e.g., United States ex rel. Woodard v. Country View Care Ctr., Inc., 797 F.2d 888, 893 (10th Cir. 1986) ("The statute of course eliminated any standing problem"); Weinberger, 557 F.2d at 460 (reasoning that "the statute clearly accords [the relator] standing to bring the action").

But the statutory permission approach fails because Congress is itself constrained by the Constitution. The Constitution requires a personalized injury, and Congress cannot, by legislation, waive that requirement. See Raines v. Byrd, 117 S.Ct. 2312, 2318 n. 3 (1997) ("It is settled that Congress cannot erase Article III's standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing."). Those courts that have adopted the statutory permission approach likely viewed the injury element as a prudential standing requirement that Congress could waive. Indeed, earlier Supreme Court opinions referred to waiveable prudential standing requirements. See, e.g., Warth v. Seldin, 95 S.Ct. 2197, 2206 n. 12 (1975). But the Court has now stated, without equivocation, that a particularized and personal injury is a constitutional — not a prudential — standing requirement, which cannot be waived by legislation. See Lujan, 112 S.Ct. at 2136. [104] The courts that have adopted the statutory permission approach may also have confused Congress's power to create rights with the power to create standing. Congress can, of course, enact statutes creating new substantive legal rights, the invasion of which can give rise to the kind of particularized injury necessary to create standing. See Linda R.S. v. Richard D., 93 S.Ct. 1146, 1148 n. 3 (1973). In no event, however, "may Congress abrogate the article III minima: A plaintiff must always have suffered `a distinct and palpable injury to himself' . . . that is likely to be redressed if the requested relief is granted." Gladstone, Realtors v. Village of Bellwood, 99 S.Ct. 1601, 1608 (1979). In light of more recent Supreme Court authority, such as Steel Co. and Lujan, those cases relying upon a statutory permission theory and the statutory permission theory itself, must fail.

B. Assignment Theory

Riley contends that she also has standing as an "assignee" of the government's fraud claim. Indeed, some courts have approved of relator standing on the theory that the qui tam relator is an assignee of the government's own fraud action. See, e.g., United States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 748 (9th Cir. 1993) ("the FCA effectively assigns the government's claims to qui tam plaintiffs . . . who then may sue based upon an injury to the federal treasury"). Under the assignment theory, the FCA qui tam provisions operate as an enforceable unilateral contract, the terms of which are accepted by the relator upon the filing of suit. See id. at 748.

There are several difficulties with the assignment theory. First of all, the FCA's language contains no mention of an assignment. Courts may not simply re-write statutes in order to make them constitutional. Moreover, the assignment theory is really just a variation of the statutory permission theory, and the same criticism applies: Congress cannot circumvent the standing requirement by conferring standing, even if it does so using the assignment mechanism.

Riley asserts that it is not important to inquire whether an actual assignment has occurred; the fact that courts permit assignment indicates that a personalized injury is not an absolute pre-requisite to Article III standing. This premise conflicts with express language in Lujan, which states that "the injury must affect the plaintiff in a personal and individual way." Lujan, 112 S.Ct. at 2136 n. 1. Absent a valid assignment, there is absolutely no justification for excusing the requirement that the plaintiff allege a particularized and personal injury.

The "assignment" in the FCA does not comport with basic principles of contract law and thus cannot be a valid assignment. First of all, an assignor must give up his interest in that which has been assigned. See Restatement (Second) of Contracts § 317(1) (1980). But the FCA provisions permit the government to retain, not only an interest in the lawsuit, but control over certain aspects of the lawsuit. For example, the government can settle the case over the relator's objections. See 31 U.S.C. § 3730(c)(2)(B). The government can dismiss the case over the relator's objections. Id. at § 3730(c)(2)(A).

The "assignment" purportedly made in the FCA must also fail because Article II § 3 vests the right to prosecute with the Executive branch, while the assignment of that right to a private citizen is being made in the FCA by the Legislative branch. Congress cannot assign something it does not "own." Finally, no legal right to prosecute a fraud claim existed at the time the supposed "offer" of assignment is claimed to have been made ( i.e., at the enactment of the FCA). Thus, the FCA qui tam provisions should be viewed, at the most, as a promise to make an assignment in the future, rather than an actual assignment.

The assignment exception to the personalized injury requirement should be narrowly confined to those cases in which the assignee really "steps into the shoes" of the assignor. There are simply too many differences between a valid assignment and the FCA's qui tam provisions to conclude that the FCA's qui tam provisions set out a valid Congressional assignment of the Executive right to prosecute a case for injury to the government. Hence, the assignment theory must also fail in this case.

C. Retaliation Theory

Riley argues that she was injured, and thus has standing, because her employer retaliated against her for filing her qui tam action. Her reasoning echoes that of a few courts that have found that qui tam relators meet the injury requirement because they are likely to face retaliation for initiating a qui tam suit. See, e.g., United States ex rel. Dunleavy v. County of Delaware, 123 F.3d 734, 739 (3d Cir. 1997); United States ex rel. Neher v. NEC Corp., 11 F.3d 136, 138 (11th Cir. 1994). Those courts assert that the possibility of the extreme emotional strain resulting from exposure to the fraudulent scheme, or the time and expense required to bring suit, or the possibility of retaliation for filing the suit, may serve as the injury in fact that confers standing.

The defendants correctly note that this argument proves too much. If the emotional, financial, or retaliatory costs of filing a lawsuit constitute an injury upon which standing may rest, then every plaintiff will be blessed with standing. The defendant, after all, could always retaliate. The Supreme Court recently eliminated any doubt as to the validity of the retaliation theory, stating:

Obviously, . . . a plaintiff cannot achieve standing to litigate a substantive issue by bringing suit for the cost of bringing suit. The litigation must give the plaintiff some other benefit besides reimbursement of costs that are a byproduct of the litigation itself.

Steel Co., 118 S.Ct. at 1019. The possibility of retaliation — like emotional and litigation-based transaction costs — are "by product[s] of the litigation itself" and thus cannot be grounds for standing to litigate.

Furthermore, the "retaliation" claim is expressly dealt with in subsection (h) of § 3730. That subsection gives an "employee" who is "discriminated against in the terms and conditions of employment by his or her employer" an entitlement to "all relief necessary to make the employee whole." 31 U.S.C. § 3730(h). This subsection further gives the employee the right to "reinstatement," two times back pay, interest on back pay, and compensation for any special damages sustained as a result of the discrimination, all of which are relief applicable only against the employer. Id. Finally, this sub-section gives federal district courts jurisdiction to provide this relief. Id. In the present case, subsection (h) may give Riley her own claim (as distinct from the government's claim) against her employer, St. Luke's Hospital, but it could not possibly give Riley any claim against the other defendants named herein. For all of these reasons, Riley's retaliation claim does not support any judgment finding that she has standing to prosecute claims for injury to the government under the FCA's qui tam provisions. The retaliation theory must fail.

D. Bounty Theory

Riley also argues that she has standing to pursue her FCA action because she has a concrete interest in the outcome of her lawsuit. She argues that the FCA provides a bounty for successful relators, see 31 U.S.C. § 3730(d), and relators thus have a concrete interest in succeeding in their fraud actions. Several courts have found standing on the basis of the relator having an interest in the outcome of the litigation. See, e.g., United States ex rel. Kreindler Kreindler v. United Technologies Corp., 985 F.2d 1148, 1154 (2d Cir. 1993).

The Supreme Court, however, has required an injury — not merely an incentive or interest. Defendants contend that an incentive or interest is not an injury and will not satisfy Article III's injury requirement. See Sierra Club v. Morton, 92 S.Ct. 1361, 1368 (1972) (existence of ideological interest to litigate vigorously is not sufficient basis for finding injury in fact); Valley Forge, 102 S.Ct. at 766 ("[s]tanding is not measured by the intensity of the litigant's interest or the fervor of his advocacy.").

The presence of a statutory bounty for successful qui tam plaintiffs does not satisfy the injury requirement because the injury requirement does more than merely ensure that parties have an incentive to prosecute a claim vigorously. The requirement of a particularized and personal injury also ensures that the judiciary stays in its assigned role as arbiter of disputes and does not wander into the arena of policy making (the Legislature's role) or ensuring the execution of laws (the Executive's role). As the Lujan Court explained:

If the concrete injury requirement has the separation-of-powers significance we have always said, the answer must be obvious: To permit Congress to convert the undifferentiated public interest in executive officers' compliance with the law into an "individual right" vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty, to "take Care that the Laws be faithfully executed." It would enable the courts, with the permission of Congress, "to assume a position of authority over the governmental acts of another and co-equal department," and to become "`virtually continuing monitors of the wisdom and soundness of Executive action.'" We have always rejected that vision of our role.

112 S.Ct. at 2145 (citations omitted); see also Antonin Scalia, The Doctrine of Standing As An Essential Element Of The Separation Of Powers, 17 Suffolk U.L. Rev. 881 (1983). Requiring merely an incentive, rather than an injury personal to the party in interest, would not adequately circumscribe the judiciary. Permitting a statutory bounty, standing alone, to vest a plaintiff with sufficient interest to bring suit inherently involves an impermissible encroachment upon the separation-of-powers principles that lie at the heart of the Constitution. I therefore conclude that the bounty theory must likewise fail.

V. THE HISTORICAL ARGUMENT

I cannot close without commenting briefly upon Riley's final argument, which is that the historical pedigree of qui tam suits compels us to conclude that qui tam relators have standing. I recognize that "[s]tanding to sue is part of the common understanding of what it takes to make a justiciable case." Steel Co., 118 S.Ct. at 1016. For that reason, and as noted in the majority opinion, the Supreme Court has on occasion permitted history to play a supporting role in its constitutional analysis. But even the dissent must concede that history alone cannot validate an unconstitutional practice. See Marsh v. Chambers, 103 S.Ct. 3330, 3335 (1983); see also Walz v. Tax Comm'r, 90 S.Ct. 1409, 1416 (1970). Indeed, in those circumstances in which the Supreme Court has deferred in any significant measure to historical usage, the constitutional implications of the challenged practice were debated by the adopting Congress. The practice was then employed in a manner so consistent and so free of ambiguity that the practice can fairly be said to constitute "part of the fabric of our society." See Marsh, 103 S.Ct. 3334-36 n. 12.

Qui tam provisions simply do not meet this threshold. As the majority points out, many of the early qui tam provisions differed substantially from the FCA provisions at issue here by merely granting an informing citizen a reward, rather than permitting those citizens to sue on behalf of an otherwise disinterested government. Moreover, and as described in the dissenting opinion, the use of the qui tam provisions has been sporadic at best.

Judge Stewart's dissent attempts to explain the distinctions drawn by the majority between the qui tam provisions at issue in this suit and their historical antecedents. His dissent also attempts to explain historical gaps in which qui tam suits were not employed. Indeed, I am impressed by the breadth of the dissenting analysis. But ultimately history, while important, is neither sacrosanct nor supreme — particularly where, as here, there is no indication that the adopting legislatures debated the constitutional questions, and the historical practice at issue has been only sporadically or incompletely employed. In the final analysis, I am persuaded that the historical credentials offered by Riley and appearing in the dissenting opinion do not justify the radical departure from fundamental and well-settled Article III jurisprudence that would be required to permit a qui tam plaintiff to sue in the absence of a particularized injury personal to the plaintiff.

CONCLUSION The district court correctly recognized that relator standing is inconsistent with contemporary standing doctrine, that the precedent to the contrary is unpersuasive because it relies on outdated or fallacious legal reasoning, and that the historical credentials of qui tam actions are not enough to rescue the practice.

For the forgoing reasons, I would affirm the district court's holding that Riley lacked the particularized and personal injury required to establish Article III standing in this case in which the Attorney General declined to intervene and take over prosecution of the government's fraud claims.