on April 19, 2018
Appeal from the United States District Court for the District
of New Jersey (D.C. Crim. Action No. 3-16-cr-00273-001)
District Judge: Honorable Anne E. Thompson
Appeal from the United States District Court for the District
of New Jersey (D.C. Civ. Action No. 3-10-cv-03318) District
Judge: Mary L. Cooper
Petition to File an Appeal pursuant to 31 U.S.C. §
3739(b)(2) from the United States District Court for the
District of New Jersey (D.C. Crim. Action No.
3-16-cr-00273-001) District Judge: Honorable Anne E. Thompson
F. Byrnes [Argued] Byrnes O'Hern & Heugle Counsel for
E. Coyne Anthony J. LaBruna, Jr. John F. Romano Office of
United States Attorney Charles W. Scarborough William E.
Havemann [Argued] [*] United States Department of Justice
Counsel for Appellee/Respondent
Before: GREENAWAY, JR., RENDELL and FUENTES, Circuit Judges.
GREENAWAY, JR., Circuit Judge.
criminal justice apparatus is not the Eye of Providence.
Though ever vigilant, it cannot see all, and it is mightily
aware of that. So it relies on the eyes and ears of private
citizens from many walks of life. These citizens are rewarded
for their heroics at times, but their rewards rarely, if
ever, amount to an expectation, let alone an interest, that
they can pursue in the criminal case of another. This is
because, as the Supreme Court has observed, "in American
jurisprudence at least, a private citizen lacks a judicially
cognizable interest in the prosecution or non[-]prosecution
of another." Linda R.S.
("Linda") v. Richard D., 410 U.S.
614, 619 (1973).
Charte insists that she is the anomaly. Her case rests on the
False Claims Act ("FCA"), 31 U.S.C. §§
3729-3733 (2012), which is a statute that Congress enacted
during the Civil War to stem fraud against the federal
government. United States v. Bornstein, 423 U.S.
303, 309 (1976). The FCA includes a qui
tam provision to encourage actions by private
individuals-called relators-who are entitled to a portion of
the amount recovered, subject to certain limitations.
See § 3730(b), (d). In turn, a relator is
required to provide the government with the information she
intends to rely on so that the government can make an
informed decision as to whether it should intervene. §
3730(b)(2). In the event that the government elects to pursue
what is ultimately its claim through an
"alternate remedy," the statute provides that the
relator retains the same rights she would have had in the FCA
action. § 3730(c)(5).
instituted an FCA action alleging that the defendants,
including James Wegeler, Sr., submitted false reimbursement
claims to the United States Department of Education. She
provided the requisite information to the government and
cooperated with the government while it determined whether it
would intervene. During this period, the information she
provided led directly to an investigation that resulted in
the criminal prosecution of Wegeler, Sr., for tax fraud and
tax evasion. Wegeler, Sr. ultimately entered into a plea
agreement that required him to pay $1.5 million in
restitution. He paid the restitution by the time he was
sentenced. Subsequently, the government declined to intervene
in the FCA action.
learned of the plea agreement and tried to intervene in the
criminal proceeding to secure her alleged interest in a share
of the restitution. Her motion to do so was denied, however.
Her appeal to us thus presents a question of first impression
for our Court: whether a criminal proceeding constitutes an
"alternate remedy" to a civil qui tam
action under the FCA, entitling a relator to intervene in the
criminal action and recover a share of the proceeds pursuant
to § 3730(c)(5).
determine that the rights to participate in a proceeding that
the alternate-remedy provision provides a relator does not
extend to a criminal proceeding. Such a holding would be
tantamount to an interest in participating as a co-prosecutor
in the criminal case of another. Charte's important aid
to the government notwithstanding, she lacks standing to
assert such an interest under "the long line of
precedent holding that a [private individual] lacks a
judicially cognizable interest in [another]'s
prosecution" and likewise, "in [another's]
sentence." United States v. Stoerr, 695 F.3d
271, 277-78 (3d Cir. 2012). Even if we focused on only her
alleged interest in a share of the restitution, nothing in
the FCA suggests that a relator has a right to intervene in
the government's alternative-remedy provision proceeding
for the purpose of asserting this interest. The text and
sparse legislative history regarding the alternate-remedy
provision counsel otherwise, as they together make clear that
the court overseeing the FCA suit determines whether and to
what extent a relator is entitled to an award. Our holding is
straightforward-a qui tam relator lacks standing to
intervene as to her rights to prosecute a case alongside the
government, and lacks a basis to do so as to her right to an
award. We will therefore affirm the District Court. As was
evident before this action, Charte may pursue her right to an
award by conducting the FCA action.
action under the FCA can be brought either by the government
or a private person "in the name of the
Government." 31 U.S.C. § 3730(a), (b). If such a
person- known as a relator-files the action, the complaint is
filed in camera, sealed for at least sixty days, and served
on the government but not the defendant until so ordered by
the court. § 3730(b)(2). The government can move for
"extensions of the time during which the complaint
remains under seal" for good cause. § 3730(b)(3).
Before the end of the expiration of time, the government must
either "proceed with the action, in which case the
action shall be conducted by the Government," or
"notify the court that it declines to take over the
action, in which case the person bringing the action shall
have the right to conduct the action." §
government intervenes and proceeds with the FCA action,
"it shall have the primary responsibility for
prosecuting the action, and shall not be bound by an act of
the person bringing the action . . . ." §
3730(c)(1). However, the relator retains "the right to
continue as a party to the action," subject to certain
limitations. Id. In addition, the relator
"receive[s] at least 15 percent but not more than 25
percent of the proceeds of the action or settlement of the
claim, depending upon the extent to which the person
substantially contributed to the prosecution of the
action." § 3730(d)(1). That amount is reduced to
"no more than 10 percent" if
the action is one which the court finds to be based primarily
on disclosures of specific information (other than
information provided by the person bringing the action)
relating to allegations or transactions in a criminal, civil,
or administrative hearing, in a congressional,
administrative, or Government Accounting Office report,
hearing, audit, or investigation, or from the news media . .
the Government declines to intervene, "the person who
initiated the action shall have the right to conduct the
action," although "the court, without limiting the
status and rights of the person initiating the action, may
nevertheless permit the government to intervene at a later
date upon a showing of good cause." § 3730(c)(3).
When the relator conducts the action, she shall receive an
amount "not less than 25 percent and not more than 30
percent of the proceeds of the action or settlement."
assortment of rights is rounded out by the FCA's
alternate-remedy provision, under which the government may
"elect to pursue its claim through any alternate
remedy available to the Government, including any
administrative proceeding to determine a civil money
penalty." § 3730(c)(5) (emphasis added). And
"[i]f any such alternate remedy is pursued in another
proceeding, the person initiating the action shall have
the same rights in such proceeding as such person would
have had if the action had continued under" the FCA.
Id. (emphasis added). Moreover, "[a]ny finding