BETTY LORENZ: Good evening. My name is Betty
Lorenz, and on behalf of the Board of Student Advisers
and Dean Clark's office, I'd like to welcome you all
to the 78th annual final round of the Ames Moot
Court Competition. Tonight's case, United
States of America ex rel. Douglas Dale v. Tech Corp., was
written by Professor Charles Fried and Mr. Brian
Tamanaha, and it concerns the constitutionality
of the qui tam provisions of the False Claims Act. Presiding for tonight's
case as Chief Justice will be the Honorable Anthony
Kennedy of the United States Supreme Court. And as associate justices,
the Honorable John Noonan of the United States
Court of Appeals for the Ninth Circuit, and the
Honorable Constance Baker Motley of the United
States District Court for the Southern
District of New York. Arguing on behalf of the
petitioner, The Carpe Diem Team, will be Kathleen
Mulligan and Anne Berleman. And on behalf of the respondent,
the A. Bartlett Giamatti Team, will be Matthew Kreeger
and Michael Dorf. We ask that those of you who
would like to take photographs do so as soon as the judges
enter and take their places. Once the first
oralist is underway, we hope that you would
refrain from taking pictures, so as not to distract
the oralists. Also, please refrain
from any applause until all four oralists
have been heard and the judges have
retired to their chambers to make their decision. As those of you in the
courtroom may have noticed, C-SPAN is reporting
tonight's events, and the telecast of the argument
is scheduled for Saturday, December 23, at 7:00 PM. Finally, the BSA would like
to invite everyone here to a reception for the judges,
the teams, and their families, to be held immediately
after the argument, in the John Chipman Gray Room on
the second floor of Pound Hall. Thank you. CLERK: Oyez, oyez, oyez! All persons having business
before the honorable, the Supreme Court of
the United States, are admonished to draw near and
give attention, for the court is now sitting. God save the United States
and this honorable court. All rise. ANTHONY KENNEDY: Thank you. Please be seated. We have one case on the
docket to be argued, United States ex rel. Dale versus Tech Corporation. Counsel for the
petitioner, are you ready? And counsel for the
respondent, are you ready? We'll hear arguments,
please, from the counsel for the petitioner. KATHLEEN MULLIGAN: Mr.
Chief Justice, and may it please the court, my
name is Kathleen Mulligan. My co-counsel Ms.
Anne Berleman and I represent petitioner
Douglas Dale. At issue in this case
is the constitutionality of the qui tam provision
of the False Claims Act. I will argue that petitioner
Dale's standing as a qui tam plaintiff is consistent
with Article III. Ms. Berleman will
argue that such qui tam suits do not violate the
separation of powers principle. The facts of this
case are as follows. Douglas Dale is an
investigative reporter for the American Herald. Through his own efforts,
Dale discovered evidence that respondent,
Tech Corporation, systematically and
fraudulently overcharged the United States government on
supply contracts for computers. Based on this evidence,
Dale filed suit under the qui tam provision
of the False Claims Act, which allows a
private individual to sue for himself and
for the government. The government
declined an opportunity to take over this lawsuit. Petitioner Dale's standing
as a qui tam plaintiff is consistent with Article III. Qui tam suits are as
old as this country, and this court has passed upon
such suits dozens of times, without ever questioning
the standing of a qui tam plaintiff. ANTHONY KENNEDY: Is it
important to your argument, as I understand your briefs,
that the qui tam plaintiff has a stake in the outcome? KATHLEEN MULLIGAN:
Yes it is, Your Honor. ANTHONY KENNEDY:
Suppose the statute read that all of the recovery had
to go to the United States so that the qui tam
plaintiff was just pro bono-- say that he got his attorney's
fees but none of the recovery. What result then? KATHLEEN MULLIGAN:
Dale's injury, in that he has seen fraud,
would still be redressed, because the profits-- ANTHONY KENNEDY:
So then it doesn't make any difference that he
has a stake in the outcome? KATHLEEN MULLIGAN:
He has a stake in the outcome in seeing that
the profits from this fraud are disgorged, as well
as a monetary stake in this litigation. ANTHONY KENNEDY: So the fact
that he gets the money is just not relevant to the analysis? KATHLEEN MULLIGAN: The
fact that petitioner Dale gets money is
relevant to the extent that it guarantees that
Dale has an incentive to be an effective
advocate before the court. Again-- ANTHONY KENNEDY: So
it makes it a stronger case, but not necessary
for your case, is that it? KATHLEEN MULLIGAN:
Yes, Your Honor. ANTHONY KENNEDY: All right. JOHN NOONAN: Can I
ask you one question? I noticed that the district
court described Dale as an agent of
the United States. Do you agree with
that description? KATHLEEN MULLIGAN: To a
limited extent, we do. To the extent that Dale
represents the government, and the attorney general has
a large amount of control, maybe that's one way
that you could view this as an agency relationship. JOHN NOONAN: An agency that
the principle can't terminate. KATHLEEN MULLIGAN:
No, Your Honor, we'll believe that the principal
here, the attorney general, has significant authority to
terminate this litigation. JOHN NOONAN: But it's a
unique kind of agency, where the principal cannot
terminate the agent. KATHLEEN MULLIGAN: Well,
it's not a perfect analogy, but there are
certainly many ways-- JOHN NOONAN: So
you would, perhaps, repudiate that language
with the district judge? KATHLEEN MULLIGAN: To a certain
extent, yes, Your Honor. CONSTANCE BAKER MOTLEY: I
thought you were asserting that the plaintiff's injury was the
same as the United States'. That is, he was in
court because the United States had been injured. KATHLEEN MULLIGAN: For purposes
of our first argument, yes, Your Honor. We believe that petitioner
Dale has standing as a representative of
the government's injury, regardless of whether Dale
is injured personally or not. We believe that
Dale's standing may be analogized to the
standing of an organization, for example, that is
uninjured in its own right, but has standing to
represent injured members. Dale's standing may
also be compared with the standing of a trustee
or guardian ad litem, or even the attorney general,
to the extent that these individuals,
uninjured in their own behalf, have standing to
represent injured parties. All these cases of
representative standing, which are like Dale's in
that the party appearing before the court is not injured
but the represented party is injured, are consistent
with the case or controversy requirement of Article III, as
this court found in such cases as Hunt v. Washington State
Apple Advertising Commission. ANTHONY KENNEDY: Well, you
distinguish Valley Forge by saying that the
court was unnecessarily reviewing executive acts. That's what you
say, with reference to the standing argument. KATHLEEN MULLIGAN:
Yes, Your Honor. ANTHONY KENNEDY: But then on
your substantive argument, we're going to hear
from your colleagues that it's necessary to enforce
this law because the Congress-- pardon me-- because the
executive is not doing so. It seems to me that
those arguments are in tension with each
other, if not contradictory. KATHLEEN MULLIGAN: Your Honor,
Dale's case or controversy involves an adjudication
regarding fraud. He is suing respondent
Tech Corporation. This suit does not involve
any judicial overreaching. Petitioner Dale's
case or controversy is not asking you to review
the constitutionality of another branch's acts. If respondent raises an
issue that must necessarily be decided involving
another branch's acts, that doesn't involve
judicial overreaching. Our case is distinguished
from Valley Forge because we're not
appearing before this court without sufficient
reason to ask this court to review the legality
of another branch's acts. ANTHONY KENNEDY: Well, if you
talk about judicial reaching, doesn't the citizen
have an interest in ascertaining that
the balance of powers among the three branches of
the government are maintained? KATHLEEN MULLIGAN:
That's true, Your Honor, but this court has found
that that interest was not sufficient injury for
purposes of Article III. And one of the reasons
that this was so was that this court has
wanted to avoid unnecessarily reviewing the legality of
another branch's actions, to guarantee the proper
role of the court. The case or
controversy requirement also performs other functions. It protects this
court from having to enter advisory
opinions, for example, and makes sure that the disputes
that appear before this court are ones that are heard
in a forum traditionally capable of judicial resolution. What we're adjudicating
here is statutory questions. It's not like
Valley Forge, where this court was asked to
understand the meaning of the Establishment Clause. Certainly not that the
court couldn't do that, but we're presenting
you with an easier case, just involving
statutory questions. JOHN NOONAN: Can I
follow up on standing? I noticed your
opening brief relied on the Scripps-Howard
case, the FCC case. KATHLEEN MULLIGAN:
Yes, Your Honor. JOHN NOONAN: And then your
reply brief didn't mention it, and I wondered whether your
adversaries had convinced you that that was not a very firm
ground on which to stand. KATHLEEN MULLIGAN:
The respondents tried to distinguish those
cases by citing dicta from Sierra Club. We believe that they are
certainly still good law. We are not pressing
them because we do not think they're necessary
for purposes of our argument. JOHN NOONAN: You don't take the
interpretation that the Court put on them in Sierra Club? KATHLEEN MULLIGAN: We could
analogize Dale's standing to that interpretation. The way Sierra Club
interpreted those cases, they said that the plaintiffs
had an economic injury, and then they were
allowed to assert the interests of other parties. To the extent that we believe
Dale has a personal injury, this case is analogous,
because once he is injured, he has standing to assert
the rights of third parties. So you could compare
our case to that. JOHN NOONAN: And his
personal injury is what? KATHLEEN MULLIGAN:
His injury comes from the knowledge of fraud,
from seeing government waste, from seeing government resources
wasted, from losing confidence in the government. ANTHONY KENNEDY: Could a
corporation bring a qui tam suit under this statute? KATHLEEN MULLIGAN: I
believe yes, Your Honor. ANTHONY KENNEDY:
Does a corporation have the same interest
that you described the citizen as having? KATHLEEN MULLIGAN: A corporation
would be similarly injured by knowledge of
fraud, and they would share that interest, the same
interest that a citizen shares here, in eradicating fraud. ANTHONY KENNEDY: Isn't
there a problem though, in that the corporation
would acquire a vested interest, an expertise, a
continued pattern of bringing these kind of suits, which would
give it the kind of expertise and discretion that
we usually require in the executive branch? KATHLEEN MULLIGAN: To the
extent that they would acquire expertise that would
be problematic in terms of bringing too many suits,
or whatever, there are still limits on what a
corporation can do, as there are limits on
what any plaintiff can do. ANTHONY KENNEDY: Well, but
it's important to realize, you hypothesize-- in fact, you
have the case in which you have this outraged individual,
pro-bono type plaintiff-- well, I'm pointing out to you that
the act, and your argument, would give standing
to a corporation that did nothing but qui tam suits. KATHLEEN MULLIGAN:
Well, the same could be said of a
plaintiff who has standing under the Fair Housing Act. For example, under
the Fair Housing Act, a plaintiff has standing
when he receives misinformation or fraud. That's one basis. There are a variety of others. But it may be true that a
corporation could bring a case. It may be true here that a
corporation could bring a case. But Congress has determined
this is an appropriate way to enforce the act. And one of the reasons, indeed,
that they passed this act, was that the
government was often coming against large
corporations whose resources significantly
outmatched those of the United States. So perhaps it makes sense to
turn the tables here, and allow corporations or
private individuals who want the chance to eradicate
fraud to have that chance. ANTHONY KENNEDY: So we have
permanent institutional qui tam plaintiffs, in your view? KATHLEEN MULLIGAN: Well,
it's a possibility. It's not particularly likely,
though, because these suits are expensive to bring, and
they are specially monitored by the Attorney
General's office. And the suits that the
corporations could bring could only be good suits. If they were frivolous,
these corporations risk the loss of
attorneys' fees. They're just like
any other plaintiff appearing before the Court. There are risks to
bringing litigation. It's not a cost-free
type of analysis. JOHN NOONAN: Ms. Mulligan,
the Chief Justice asked you a question that
went beyond what you've asked for in your brief,
and I'd like to ask you a somewhat hypothetical. KATHLEEN MULLIGAN:
Yes, Your Honor. JOHN NOONAN: You referred us
to Professor Winter's article on standing, where he suggested
standing is a recent invention, mystifying rather than helpful. Do you think we
should just brush through all the rubbish
that's been collected, and then develop-- get away from it? KATHLEEN MULLIGAN: I
agree with Mr. Winter that the standing doctrine
that's been formulated is very confusing. This court itself has
frequently recognized that. We are not asking
for an exception to the personal
injury requirement that this court has developed
since the 1970s, however. We can't think of a
better substitute. What we are arguing
against here, is the use of the qui tam-- excuse me, the use of the
personal injury requirement, which is derived from the
concerns that underlie the case or controversy requirement,
when all of those concerns are satisfied by Dale's suit. Dale is bringing a suit
alleging fraud to this court. It's a suit under a
statute, and it's in a form that this court
can easily manage. It's not challenging
the legality of another branch's actions. These are the concerns that the
case or controversy requirement was designed to serve, about
the proper role and functioning of the court. Now, we're offering
you two ways of saying that Dale's standing
as a qui tam plaintiff may be reconciled with the
personal injury requirement. You can either see him
as a representative of the government,
or see that he is injured in his own behalf. ANTHONY KENNEDY: Well,
Warth versus Seldin was a case in which we imposed
a standing requirement, and that was a suit by
a real estate developer against a state entity. There were no separation
of powers involved there. KATHLEEN MULLIGAN: The con-- ANTHONY KENNEDY:
So it seems to me that your argument
that standing simply relates to the branches
of the national government is misplaced. KATHLEEN MULLIGAN:
Well, Your Honor, the separations of
powers concerns are one, but not the exclusive,
underlying factor in the case or controversy requirement. They've certainly been
highlighted, for example, in Justice O'Connor's
opinion in Allen v. Wright. But there are other
concerns, we agree, and these include the
functioning of the court, making sure that disputes are
capable of being resolved. These are the concerns that
were laid out by this court as early as its decision
in Flast v. Cohen. We believe that we satisfy
all these requirements, and the personal
injury requirement is derived from them. The word injury is
nowhere in Article III, and the modern
doctrine of standing has only been developed
since the 1970s. Now, we're giving you
two ways of reconciling Dale's standing as
a qui tam plaintiff, with these requirements. We are just challenging the
use of the personal injury requirement, where all the
concerns that underlie Article III are satisfied. So our first
argument is that Dale has standing as a representative
of the government. He's just like all the uninjured
organizations, et cetera, that appear before this court. Secondly, Dale is injured
in his own behalf. Dale is injured, as I've noted,
by his knowledge of fraud. I'd like to compare Dale's
injuries with the injuries that a plaintiff who brings
claims under the Fair Housing Act suffers. A plaintiff may bring claims
under the Fair Housing Act when he receives misinformation
about the availability of housing. There's no question about the
Fair Housing Act plaintiff's subjective intent. It's merely a matter of whether
he received misinformation about the availability
of housing. Likewise, Dale is injured
by knowledge of fraud. This much is clear from
the legislative history. And the words of the statute-- ANTHONY KENNEDY:
This injury is he can't go to sleep
at night because he knows there's government fraud? Is that the point? KATHLEEN MULLIGAN: It's hard
for me to describe this. But-- ANTHONY KENNEDY: Well, it's
central for you to describe, because you're
trying to establish that he has cognizable injury. KATHLEEN MULLIGAN: That's
correct, Your Honor. ANTHONY KENNEDY: I
mean, it seems to me that many citizens are very
upset about many of the things that government
does, and that that's the whole point of
standing, that there has to be a sufficient
individual nexus with the plaintiff
that's before the court. KATHLEEN MULLIGAN:
That's true, Your Honor, and any citizen in
the world couldn't appear before the
court and just say, we're upset with the way the
government is being running. But Dale is not
like any citizen. Dale has standing under a
statute which recognizes his injuries, and these injuries
are sufficiently personalized because of the original source
requirement in this act. Not any citizen can sue,
not even any citizen that knows about respondent
Tech Corporation's fraud, but only those
individuals who are original sources of information
about this fraud may sue. I see I'm out of time. I ask you to affirm the
decision of the lower courts. ANTHONY KENNEDY:
Thank you, Counsel. Counsel, I neglected to note,
how much time for rebuttal did you ask? KATHLEEN MULLIGAN: Four
minutes, Your Honor. ANTHONY KENNEDY:
Thank you, Counsel. KATHLEEN MULLIGAN: Thanks. ANTHONY KENNEDY:
Counsel, good evening. ANNE BERLEMAN: Good evening. Mr. Chief Justice, and
may it please the court, my name is Anne
Berleman, and I will be addressing the
separation of powers portion of this argument. Petitioner Dale is
a private individual bringing one civil suit
against a private party, under the qui tam provision
of the False Claims Act. Dale's actions do not offend the
separation of powers principle since, as this Court has
previously determined, the qui tam plaintiff
does not prevent the executive from faithfully
executing the laws. No explicit provision
of the Constitution has been violated here, nor
has Congress aggrandized itself at the expense of
the executive branch. ANTHONY KENNEDY: Well, of
course, it is well understood, is it not, that the
attorney general, one of the highest executive
officers in the government, has discretion. And the reason he
has discretion is to protect against the use of
suits for oppressive purposes. Is that not true? ANNE BERLEMAN: Yes, Your
Honor, that is the case. However, the attorney
general has discretion over the use of
government resources, and government time
oppressing citizens. And that's why the
attorney general is accountable to the people. We have a private
plaintiff here, Your Honor, who is bringing a civil suit,
just as private plaintiffs bring suits under the securities
laws, the antitrust laws, or the Civil Rights Act. ANTHONY KENNEDY: But what are
the safeguards against misuse of this discretion
by a plaintiff who wants to harass the
corporation in public, for instance, the
corporate defendant? ANNE BERLEMAN: But
there are safeguards built into the statute,
Your Honor, which would deter a private plaintiff
from wanting to harass, for instance, a corporation. ANTHONY KENNEDY: What
are those safeguards? ANNE BERLEMAN:
Well, first of all, there's a fee-shifting
provision, where if the court
finds that this is a frivolous or harassing
suit, the fees of the defendant will be assessed to
the qui tam plaintiff. ANTHONY KENNEDY: Yes, what else? ANNE BERLEMAN: The attorney
general, Your Honor, also has the ability to step
in and take over a qui tam plaintiff's suit and limit
the qui tam plaintiff's participation in the suit. ANTHONY KENNEDY: And is
this part of the provision, that the complaint
be kept secret? ANNE BERLEMAN: No,
Your Honor, this is not part of that provision. That provision is (b)(4), which
only restrains the government from intervening during
a sealed period of time, before the complaint is served. The attorney general
then has the ability to intervene later in the
case, under preexisting law. ANTHONY KENNEDY: Is the
sealed complaint provision designed to prevent
harassment of defendants by frivolous suits? ANNE BERLEMAN: Your Honor,
the sealed complaint portion of the statute is there
because the government was concerned that qui tam
plaintiffs would be bringing suits while the government
wanted to bring suits, while the government
was pursuing some type of civil or
criminal investigation. The executive brought
these concerns to Congress while the 1986 act was
being looked at and passed. And so Congress passed
this exact provision for the purposes of
allowing the government to do some type
of investigation, while the qui tam plaintiff-- ANTHONY KENNEDY:
Well, there's nothing really to prevent the
plaintiff from announcing that he's filed this secret
suit against the corporation. And then since the complaint
is supposedly sealed, the corporation's really
helpless even to know what the charges are, isn't it? ANNE BERLEMAN: Your Honor,
because the complaint is sealed, that's correct. The corporation would not know
until the complaint was served what the exact charges were. ANTHONY KENNEDY: So this
qui tam plaintiff, then, has the discretion and
authority and the power that even the attorney
general doesn't have. ANNE BERLEMAN: No, Your Honor,
that's not exactly the case. I mean, the qui tam plaintiff-- ANTHONY KENNEDY:
The attorney general can file a secret complaint? ANNE BERLEMAN: No,
the attorney general cannot file a secret complaint. But the attorney general is
the one, Your Honor, here, who is keeping the
complaint under seal. If the attorney general
decides to act-- ANTHONY KENNEDY: No, as
I understood the statute, the court's required to do so. ANNE BERLEMAN: Yes,
Your Honor, the court is required to keep the
complaint under seal, but it's under seal so
the attorney general can decide whether or not to act. If the attorney-- ANTHONY KENNEDY: Well,
but the attorney general is never going to order that
complaint unsealed if it has, if he has, or she has, a
criminal prosecution pending. ANNE BERLEMAN: That's
correct, Your Honor. The qui tam plaintiff-- CONSTANCE BAKER MOTLEY:
Isn't the most important consideration the fact that the
attorney general cannot prevent this qui tam plaintiff from
proceeding with the action, even-- ANNE BERLEMAN: That is very-- CONSTANCE BAKER
MOTLEY: --when he finds that there's no merit to it? ANNE BERLEMAN: That is-- if
the attorney general feels that there is no merit
to it, what the attorney general can do is keep
this complaint under seal indefinitely. For good cause showing, the
60-day period can be extended, so the complaint
is never served. JOHN NOONAN: Well, Ms.
Berleman, I know the-- I guess it was the
Court of Appeals-- threw out in the dictum that
they would construe the statute to say that the United States
could not enter, merely for the purpose of dismissing. ANNE BERLEMAN: Your Honor-- JOHN NOONAN: But I take it
we could take the position, and construe the statute, to say
the United States may enter-- ANNE BERLEMAN: Your Honor-- JOHN NOONAN: --to
dismiss the suit. Now, how would you-- it says, in so many
words, in (c)(2)(A), "the government may
dismiss the action, notwithstanding the objections
of the person initiating the action." Now, why can't we focus
on that provision? ANNE BERLEMAN: Your Honor
can focus on that provision. It's definitely
there within the act, which allows the government
to come in and dismiss. But it would frustrate
Congress's purpose here, if you allow the government
to come in immediately under that provision
and just dismiss. And that's what the Court
of Appeals was focusing on. Particularly, the
Court of Appeals was focusing on
the 60-day period, allowing the government to come
in during the 60-day period before the complaint
has been served, and having the
executive, in effect, perform a judicial
function, by saying this suit can't go forward. JOHN NOONAN: Well, how would
it frustrate Congress's intent to let them come in later? ANNE BERLEMAN: It would
frustrate Congress's intent if the government was able to
do that because Congress, here, wanted to encourage
private suits, to eliminate fraud
in the government. And they thought
that there may be, if there's a
conflict of interest between the executive
and the people the executive is
contracting with, the qui tam plaintiff might
be able to bring that conflict to light and bring the suit. The attorney general,
however, Your Honor, could come in under existing
law, which the qui tam provisions do not preempt. And the attorney general can
go through ordinary procedures, like Federal Rule of
Civil Procedure 24, which would allow the
government to intervene and then move to dismiss. The government could also-- JOHN NOONAN: So you
say, at any point, the government has a remedy
for a suit it disapproves of? ANNE BERLEMAN: For, yes,
a suit it disapproves of, when it's brought
before the court and the court
determines the dismissal is warranted, Your Honor. ANTHONY KENNEDY:
And yet necessarily, in a complex fraud
investigation, where a grand jury
investigation sometimes takes more than 12
months, the government would have its hand forced by
this civil suit, would it not? Unless it just got
constant continuances. ANNE BERLEMAN: Well,
yes, Your Honor. I mean, there would be-- the attorney general, though,
could keep this complaint under seal, and can even
stay the qui tam plaintiff's discovery. ANTHONY KENNEDY:
Well, in the meantime, the complaint's under seal while
the plaintiff is announcing to the world that he's
sued this company, and the company doesn't
even have the ability to respond and defend itself. ANNE BERLEMAN: Well,
the defendant company has the same abilities
as the qui tam plaintiff to announce to the world,
through whatever avenue-- ANTHONY KENNEDY:
Announce to the world that it's innocent of
some secret complaint that it's never seen? ANNE BERLEMAN: The secret
complaint provision, Your Honor, was put into
effect because that's what the executive wanted. They wanted to be able to
keep these suits under wraps if the government was
pursuing some type of civil or criminal litigation. And so while there
may be problems, that the qui tam plaintiff can
say that there has been fraud, and that the qui tam
plaintiff may have said that there may be
a suit going on, that isn't official, certainly. And it's just like
all the other media that goes on, swirling
around in this country. CONSTANCE BAKER MOTLEY:
But other than intervening in the case for purposes of
trying to get a dismissal, the attorney general has
no control over that action as it proceeds. Is that right? ANNE BERLEMAN: No, Your
Honor, that isn't correct. The qui tam provision
itself provides for a great deal of attorney
general control over the qui tam plaintiff. The Attorney General can
intervene at any time, under the statute, and
take over the suit, and be able to limit the qui
tam plaintiff's participation, be able to even ensure the
qui tam plaintiff does not participate at all, and
can then settle or dismiss, according to the (c)(2)(A)
or (c)(2)(B) provisions. So the attorney general does
maintain extensive control over the qui tam
plaintiff, and may even initiate a suit on his own,
which would bar qui tam plaintiff from bringing a suit. So the attorney general
has complete discretion, or at least a great
deal of discretion, over the qui tam's suit. JOHN NOONAN: Can I ask
you a question that-- ANNE BERLEMAN: Yes, Your Honor. JOHN NOONAN: --shifts
the focus a bit? It seemed to me that perhaps
the real problem here, was that this person
representing the United States was not disinterested and
acting for the government-- was, in fact, a highly
prejudiced person, by reason of his
financial interest. ANNE BERLEMAN: As my co-counsel
has alluded to, Your Honor, and as you said, the
qui tam plaintiff does have the statutory bounty. But Congress thought the bounty
was necessary as an incentive-- JOHN NOONAN: Well, they
thought it was necessary, but doesn't it
offend due process? ANNE BERLEMAN: It doesn't
offend due process, Your Honor, because this is a
private plaintiff. It's not a plaintiff
exercising public power, such as a federal
prosecutor does, who is able to immunize
people, who can run grand jury proceedings, who can
put someone in jail if it's a criminal suit. JOHN NOONAN: Well, now, how do
you do distinguish Vuittton-- Young against the
United States, ex rel. Vuitton? ANNE BERLEMAN: Well,
that case, Your Honor, was talking about, as you
say, a private person. But they were talking
about a lawyer who was sort of serving two
masters, who had a client right there, who is trying to
enforce an injunction to make sure that plaintiff,
his client, got the money. And he had two
definite clients there. He had the court, who he's
trying to protect this-- JOHN NOONAN: But it
seems to me, Vuitton is one where the
counsel has more independence than this one. Here, the plaintiff has a
direct, immediate, percentage financial stake in the outcome. At least in Vuitton, we could
rely on the professionalism of the attorney. ANNE BERLEMAN:
Your Honor, I would feel that you could rely
on the professionalism of the private
plaintiff in this case, too, because a private plaintiff
has a duty to diligently-- ANTHONY KENNEDY:
We can recognize that plaintiffs have
a professional duty to exercise discretion? I thought they were out
for all they can get. That's the way I understood
plaintiffs' lawsuits went. ANNE BERLEMAN: Well, they do
have some kind of incentive here, to diligently
pursue this suit, because the attorney general-- ANTHONY KENNEDY: Well, that's
the way life works, isn't it? Congress bought standing
by giving this plaintiff a promise of money. ANNE BERLEMAN: Congress did not
buy standing here, Your Honor. Congress felt that it was
necessary to authorize the qui tam plaintiff to bring
these suits on behalf of the government,
where the executive may have a conflict of interest
and not want to bring these suits to light, or not
be able to see that there is a conflict of interest. And so it's not necessarily
buying standing, because as my co-counsel
has alluded to, the petitioner Dale has
an injury on his own. The attorney general
also has control over discretion in
policymaking over government enforcement of this fraud. The Attorney General
has, certainly, the power to determine where
government resources are going to go, where government
power is going to go, and the enforcement of fraud. The Attorney General,
as I said, even has the ability to
stop meritless qui tam suits if warranted,
through the existing rules. To implement Congress's
mandate here, it's important-- ANTHONY KENNEDY: It's
possible, I take it, that a qui tam verdict
against the defendant can give him a double
jeopardy defense against a subsequent
criminal prosecution? Isn't that the holding-- the necessary holding-- in
United States versus Halper? ANNE BERLEMAN: Your Honor,
the necessary holding in United States Halper
dealt with the government, and the court explicitly
reserved the fact whether this would apply
to private plaintiffs in a footnote, saying
that they weren't sure if this was a dispute only
between private persons, the qui tam plaintiff-- ANTHONY KENNEDY: Well,
what your whole point is is that the qui tam plaintiff
is representing the government. ANNE BERLEMAN: Your
Honor, the qui tam plaintiff is representing
the government and receives standing
from the government, but once he goes and
initiates a lawsuit-- ANTHONY KENNEDY: In other
words, once you get-- once you're a
government official, for purposes of standing, you
forget about that, for purposes of this [INAUDIBLE]? ANNE BERLEMAN: The reason
the qui tam plaintiff is not a government official for
purposes other than standing-- and I would not even say
he's a government official for purposes of standing,
other than the fact that he's authorized
to bring this suit-- is because the qui
tam plaintiff does not exercise significant
governmental authority here, Your Honor. He's not using
government resources. He definitely-- ANTHONY KENNEDY: But
I've just pointed out that he can, in effect,
erect a double jeopardy defense that the government
is helpless against. ANNE BERLEMAN: Your Honor,
in United States v. Halper, the court reserved
whether or not that is the case, because
they said that it may just be that this is
private individuals, and a case between two
private individuals, and double jeopardy may not
apply in this case then. So he couldn't-- ANTHONY KENNEDY: A collateral
estoppel would apply, I take it. If the defendant
prevailed, I take it that would be an absolute
defense in a criminal action. ANNE BERLEMAN: It may-- ANTHONY KENNEDY: Or again,
is this a private plaintiff all of a sudden, once he
has government standing? ANNE BERLEMAN: He doesn't have-- he definitely is a private
plaintiff, Your Honor, once he initiates that suit. Once he receives standing
from the government, he does not exercise significant
governmental authority. He is not a government
official in that case. He is a private plaintiff going
against another private party, and bringing the
civil lawsuit, just as I said other
civil plaintiffs do, under the securities laws,
antitrust laws, and the Civil Rights Act. And so he's only wielding
the power that's given to a regular private plaintiff. He's restrained
by all the rules. He doesn't use
government resources. He definitely doesn't
have government power. CONSTANCE BAKER MOTLEY: Have
you made some little concession here, that maybe there is an
invasion of the separation of powers, but we ought to
probably just overlook that, because this is-- these qui tam actions are more
or less sui generis in the law, and have roots in our history
from the very beginning, and is an important aspect
of the government's ability to root out fraud? ANNE BERLEMAN: Yes, Your
Honor, that's correct. Even if you were to find that
there was some disruption of the executive branch-- although in United
States ex rel. Marcus v. Hess,
this court did not find that there was an
impermissible intrusion on the executive's
power by qui tam suits-- even if you did find
that that was the case, there is an
overriding need here, to implement Congress's mandate
to encourage these suits, because as I said, the qui tam
plaintiff is able, particularly in cases where there may
be a conflict of interest between the executive
and a contracting party, to make sure this conflict
of interest comes to light and this fraud is prosecuted,
and the contracting party does not keep these gains. And so it would be justified
by an overriding need, and also historical practice, which
has allowed these qui tam provisions to go on since
the beginning of our country. JOHN NOONAN: Well,
you would surely agree there are many
things that went on since the beginning
of our country that became unconstitutional,
in the course of time. ANNE BERLEMAN: Yes, Your Honor. We're not saying that that
renders this completely a moot question, that it
is constitutional or not constitutional. However, history is very
important, especially what was being
thought by the framers when they framed
the Constitution. And it is something that
this court should consider, and it's something that this
court has passed on other times and has not struck down
these qui tam provisions. For these reasons, you should
keep history in consideration, while it may not
render them concretely constitutional or
unconstitutional. Because of the role the qui
tam plaintiff does play here, and bringing any type of
conflict of interest to light, as I said, any disruption
that may exist here would be justified by what role
the qui tam plaintiff serves. Because the qui tam
plaintiff exercises powers that are not significant
governmental authority, and because none of the purposes
of the Separation of Powers Act or principle
are controverted, you should hold this
as constitutional. ANTHONY KENNEDY: Thank
you, Ms. Berleman. ANNE BERLEMAN: Thank you. ANTHONY KENNEDY: Counsel
for the respondent? MATTHEW KREEGER: Mr.
Chief Justice, and may it please the court, my
name is Matthew Kreeger, and along with co-counsel,
I represent the respondent, Tech Corporation. We are here today
to urge this court to affirm the decision
of the Court of Appeals, and we offer you
three reasons for you to affirm that decision. First, I will argue
that petitioner lacks standing under Article
III of the United States Constitution, and therefore
his suit must be dismissed. My co-counsel Michael
Dorf will then argue that allowing
petitioner's suit to continue would violate the principle
of separation of powers, and that it would
violate the Appointments Clause, Article II. If you accept any of
our three arguments, we urge that you
affirm the decision of the Court of Appeals,
dismissing petitioner's case. Turning to the question
of standing, Your Honors, Article III expresses
fundamental limits on the power of the
federal judiciary. Federal courts are
instructed to adjudicate cases and controversies. And that's a limitation not
just on the sorts of issues which a federal
court may hear, it's also a limit on who may
bring suit in federal court. That's the Article
III standing doctrine, and this court has
clearly enunciated that doctrine in many
contexts, whether or not those contexts impinged
upon other branch's power. ANTHONY KENNEDY: Do you
accept the distinction between Article III standing
and prudential standing? MATTHEW KREEGER:
Yes, Your Honor. There is a whole other set
of prudential considerations which might otherwise
bar someone from court, and Congress does have
the power to remove those prudential considerations. But Congress does
not have the power to remove the core requirement
of personal injury, and a distinct and
palpable injury, to every plaintiff who
comes before federal court. ANTHONY KENNEDY: Well,
it's necessary for you to prevail to characterize
the standing issue here as a core Article III standing
requirement, is it not? MATTHEW KREEGER: Yes,
Your Honor, it is. ANTHONY KENNEDY: If we
accept that characterization, what is an example of
a prudential standing rule that remains on the books? MATTHEW KREEGER:
Well, Your Honor, the point is that even when--
the prudential considerations only come into
play after someone has satisfied Article III. And those considerations
normally would-- ANTHONY KENNEDY: I'm
well aware of that, but I want to know
which ones they are. If this is characterized as
core Article III standing, then give me an example
of prudential standing. MATTHEW KREEGER:
Well, for example, someone who's
normally not allowed to assert the rights
of other parties, once they are already
in federal court. And that's something
that Congress can remove, for example, in
the [INAUDIBLE] cases, where once someone
satisfies Article III, they may, therefore, assert
other people's injuries. ANTHONY KENNEDY: Why isn't
that a characterization of this case? MATTHEW KREEGER: Well
it, in fact, that is exactly what petitioner
is trying to do. But the difference is
that although Congress can waive that requirement once
someone satisfies Article III, they may not do so if
the person does not satisfy the core requirements. So I guess I'm agreeing that the
prudential considerations might otherwise keep this
petitioner out of court too, but I also claim that the
Article III considerations keep this petitioner out of court. ANTHONY KENNEDY: No, but
the point of my question is that your expansive
definition of Article III standing, it seems
to me, swallows up all of our prudential
standing jurisprudence. MATTHEW KREEGER: I don't
think so, Your Honor. I mean, for example, if
you look at the case of-- ANTHONY KENNEDY:
Well, I'm gratified to know we have some of our
precedents left, anyway. [LAUGHTER] MATTHEW KREEGER:
You know, if you look at cases like, for
example, Havens Realty Corporation against
Coleman, that was a case-- an Article III case-- but a
case where this court looked at a congressional
enactment that was intending to confer broad
standing, and this court said that even after
Congress [INAUDIBLE] wanted standing to go to the
limits of Article III, still, there were the
plaintiffs who could not satisfy the distinct and
palpable injury requirement and were kept out of court. In fact, the
plaintiffs in that case could very easily have
asserted the same injuries that the petitioner has
asserted before this court. They knew of the racial
steering practices. In fact, the white tester
plaintiffs in that case had actually met
the individuals who had engaged in racial
steering practices, and yet they still
were denied standing, because those racial
steering practices had not injured them in a distinct
and palpable manner. ANTHONY KENNEDY: Under the
Federal Water Pollution Control Act, any citizen has
standing to bring suit against an alleged polluter. Would you say that
that statute is valid? We have not yet
ruled on the point. MATTHEW KREEGER: That's
right, Your Honor. I would say that
what you ought to do when looking at that
statute is to construe that as a congressional
attempt to confer standing to the limits of Article III. Now, that's a const-- the statute would not
be unconstitutional. In fact, our standing
argument does not require that you hold the False
Claims Act unconstitutional. All we are suggesting is
that everyone who sues under the False Claims Act-- and I think anyone who sues
under the Water Pollution Act, as well-- would have to satisfy the
Article III requirements that the defendant injured
them in a distinct and palpable manner. ANTHONY KENNEDY: Well, then, if
a citizen in Massachusetts is outraged by pollution
in the Gulf of Mexico, he cannot bring a suit? MATTHEW KREEGER:
Unless he can establish some injury to him in
particular, no, that's right. He could not bring
suit, Your Honor. ANTHONY KENNEDY: Well
then, it seems to me that you're saying
that the standing provision in that
environmental statute is unconstitutional, in almost
all of its applications? MATTHEW KREEGER: Well,
it is unconstitutional in many of its
applications, Your Honor, but that does not require that
you strike it down entirely. Now I'd like to, if I-- JOHN NOONAN: Could I ask-- ANTHONY KENNEDY: We just
leave it on the books but don't allow any
plaintiffs to bring suit? MATTHEW KREEGER: Only those
who can satisfy the Article III requirement. JOHN NOONAN: I didn't quite
understand your distinction of the parole
commission case, where the prisoner ceased to be
in prison, but was still, apparently, a good plaintiff. How did-- MATTHEW KREEGER: That was the
class action case, Your Honor? JOHN NOONAN: Yes, how could
he still be a good plaintiff? MATTHEW KREEGER:
Well, Your Honor, the class action device requires
that all plaintiffs, when they come into court,
satisfy Article III standing. Now, there is a
mootness problem, which petitioner
has alleged, which I think is really
distinguishable from this. The point is that
once the plaintiff who has established
standing at the beginning, if at a later date his claim
becomes moot, at this point, there's a class action going on,
and the real party in interest is the class as a whole. So to remove that plaintiff and
to stop a lawsuit at that point would prejudice the interests
of the other class action plaintiffs, and that's
what's motivating the mootness doctrine. But in that case,
the named plaintiff, as every other plaintiff must,
had to establish Article III injury. JOHN NOONAN: Now, you're
familiar with Professor Winter's article. Do you agree with him, that
standing, at least as a term, is of relatively recent vintage? MATTHEW KREEGER: The term is
of relatively recent vintage, yes, Your Honor. JOHN NOONAN: And would you agree
further, that it's a metaphor? MATTHEW KREEGER: Well, I don't
know about the metaphor part of his argument, Your Honor. I think the injury requirement
and the standing requirement serves fundamental purposes,
which this court ought not to discard. In fact, as we
mentioned in our brief, it serves several
fundamental purposes. At its most basic, it's an
expression of the limited power of the federal judiciary. Federal judges are
to adjudicate cases, and I think something inherent-- JOHN NOONAN: Well
that's the Constitution. Obviously, where there's
an ongoing dispute, you can say there's a case. So what's the additional
purpose of this metaphor? MATTHEW KREEGER: I think that--
and it's something inherent in an idea of what a case is-- is that there is redress of
an injury of the plaintiff who is brought before the court. And that's sort of what's
essential in adjudication. And I think that's why this
court has considered injury to be so essential to the case
and controversy requirement. And as we point
out in our brief, it serves the
purpose of limiting arbitrary prosecutions. If the power of the
federal judiciary is placed only in the
hands of those who may demonstrate injury,
and not into bystanders who are concerned or
have observed things-- CONSTANCE BAKER MOTLEY: Well,
what do we do with Rule 17(c), I think it is, that permits
the next friend bring a suit under certain
circumstances, or a guardian,
that kind of thing? We've long allowed that? Have we not? MATTHEW KREEGER: Yeah-- CONSTANCE BAKER
MOTLEY: Someone wanted to act as a plaintiff who was
not, himself, directly injured, but was asserting an injury
on behalf of someone else. MATTHEW KREEGER: Well,
I think in those cases, you can view the plaintiffs
suing as representatives as actually injured. And for example, in
the case of a guardian, a guardian is appointed for
an incompetent or a minor, or someone who couldn't
normally assert his own interests in court. And that guardian has
legal responsibilities for that person. CONSTANCE BAKER MOTLEY:
What about a next friend? MATTHEW KREEGER:
Well, the next friend, I'm not aware of the provision
which Your Honor refers to, but I imagine that
that friend would have to establish a really
close tie to the person who had been personally injured,
and could not sue if they just were concerned about it. Similarly, the doctrine
of association standing, which petitioner mentions,
is, in fact, fully consistent with Article III. JOHN NOONAN: Well,
now, if this court were candid about its previous
decisions on standing, wouldn't we have
to admit that it's been a very
inconsistently-applied idea, and the explanation lies with
history, and not much else? MATTHEW KREEGER:
Well, Your Honor, the doctrine is
relatively recent, and I think since
Valley Forge and some of the cases in that area,
it was put into good shape. There were these prudential
Article III considerations floating around, and the court
finally crystallized that, and said there's this core,
constitutional requirement, there are these other
prudential considerations, but that's what standing
is really about. And I think that
doctrine makes sense. Now, I'd like to, if I can-- ANTHONY KENNEDY:
Let me ask you-- one who defrauds the government
is looting the public treasury. Are you saying
that the government owns the Treasury and
the people do not? MATTHEW KREEGER:
Well, Your Honor, I'm saying that when there's
a raid on the Treasury, that does not necessarily injure
every person in the United States in a distinct
and palpable manner. As these court cases
and taxpayer standing make clear, that simply just-- alleging injury to the waste
of the government resources will not satisfy. ANTHONY KENNEDY:
But it seems to me to be, perhaps, a more palpable
injury than in the next friend case that Judge Motley proposed
for your consideration. MATTHEW KREEGER: Well,
Your Honor, obviously you could consider it that way. I would disagree. I would say that someone who
was very closely connected with a person who had suffered
personal injury would have a much greater connection than
someone such as petitioner, who might claim that somehow
his taxes will be increased as a result of the fraud, but
cannot demonstrate that to any degree of certainty. CONSTANCE BAKER MOTLEY:
Why can't personal injury be defined in terms of interest,
such as the plaintiff would have here, in getting a
reward, if he succeeds? MATTHEW KREEGER:
Well, Your Honor, a possible reward is just
the opposite of an injury. It's some sort of bounty
that he might get. And the mere fact that he can be
rewarded for his suit in no way demonstrates an injury to him. CONSTANCE BAKER MOTLEY: But
it gives him an interest in the suit, doesn't it? MATTHEW KREEGER: It
gives him an interest-- CONSTANCE BAKER MOTLEY:
And a reason to pursue it and to see it
through, doesn't it? MATTHEW KREEGER: That's right,
Your Honor, and that might even satisfy some sort of concrete
adverseness concerns, which are, perhaps, part of the
Article III standing doctrine. But as this court
made clear, that's not the only part of the doctrine. JOHN NOONAN: Let me
follow up on Judge Motley. I mean, why do you identify
interest with injury? MATTHEW KREEGER: I don't
quite follow, Your Honor. What interest-- JOHN NOONAN: Well, she's
pointing out there's an interest here, but you
say it has to be an injury. Why do you say it has to be
an injury, rather than simply an interest? MATTHEW KREEGER:
Well, Your Honor, if that were the case,
if an interest in some-- CONSTANCE BAKER MOTLEY:
In a very concrete, palpable sum of money. It's not a vague
interest at all. It's a very-- MATTHEW KREEGER: Well,
first answer, Your Honor, is that that's not the doctrine
this court has established. Now, you might want to-- JOHN NOONAN: Have we
ever addressed that? MATTHEW KREEGER:
Yes, this court-- JOHN NOONAN: I mean, looking
at a concrete, monetary sum, and saying that that is not
the kind of interest that can set up standing? MATTHEW KREEGER:
Well, for example-- JOHN NOONAN: Is there
any case on that? MATTHEW KREEGER: For
example, the Havens case, some of the white tester
plaintiffs sued for damages, and yet that was not considered
a concrete enough interest in order to satisfy Article III. JOHN NOONAN: But that one
they weren't assured of it. Here, the statute
assures of a percentage. MATTHEW KREEGER: I believe that
the white tester plaintiffs could have recovered. They would have
recovered damages. I mean, that's what the
Fair Housing Act calls for. So that was another damage. But perhaps more fundamentally,
if Congress had the power to simply, by
rewarding plaintiffs, confer Article III
standing on them, then what would really be left
of the Article III doctrine? Congress could freely evade
it any time they wish, and there would be no
irreducible minimum to this requirement. I'd like to-- JOHN NOONAN: That's
another case. MATTHEW KREEGER: I'm sorry? JOHN NOONAN: That's
another case. MATTHEW KREEGER: Fair enough. I'd like to, if I can, turn
to the other injury which petitioner asserts. Petitioner claims that his
confidence has been eroded, and his confidence in the
government has eroded. And he also claimed
before this court that his knowledge of the
fraud somehow constitutes an Article III injury. But that simply is not the case. Erosion of his confidence,
whether it is, in fact, true, cannot constitute injury,
because many people are concerned about things. And in the Valley
Forge case itself, presumably the plaintiff's
confidence in the government was eroded by the connection
with the church in that case. And in the Fair
Housing Act cases, you have plaintiffs who were
suing who were concerned, and where their confidence
had been eroded. ANTHONY KENNEDY: But
of course, don't we have a special concern
here, but we're dealing, ex hypothesis, with
the fraud, and a fraud is something that a local
government official is just not going to tell the
higher-ups about, and so Congress has
said that we need a very special remedy for this, and it
has recognized that this injury will otherwise go unremedied? MATTHEW KREEGER: Well, there
could have been other situ-- there could have been
other remedies set up by Congress to deal with the
concern you're addressing, Your Honor. For example, they could
reward whistleblowers who come and tell the
government about it directly, without necessarily
allowing these people to sue, despite the fact that
they hadn't suffered injuries. If they wanted to encourage
tattling, in other words, there would be other ways
it did that that wouldn't run afoul of Article III. ANTHONY KENNEDY: Do you know
the fate of whistleblowers in the government, generally? MATTHEW KREEGER:
Well, these would be-- ANTHONY KENNEDY: Do they
have lifetime tenure? MATTHEW KREEGER: No, Your Honor. But these, of course,
would be whistleblowers working for a private
company, admittedly one contracting
with the government, but a private company. And if rewarded
enough, I believe that whistleblowers would have
the incentive to come forward. CONSTANCE BAKER MOTLEY:
Why isn't it enough for the plaintiff to show that
the government was injured? Isn't that necessary
for a qui tam action, to show that the government
was injured, at the very least, in addition, perhaps,
to the plaintiff? MATTHEW KREEGER:
Yes, Your Honor. We will concede that
petitioner's allegations satisfy a requirement, that he's
shown that the government has been injured. But I think what's
important here, and what's wrong with
petitioner's argument about his
representative standing, is that Article III, the
standing requirement, focuses on the party
seeking to have his case before federal
court, not on the issues he wants that court
to adjudicate. So the mere fact that he
has established a case in controversy between
someone, some two persons, does not give him
standing to assert that case or controversy. Standing, after all, focuses
on the particular plaintiff, not on the issues he wants
to have a court adjudicate. So the mere fact that there's
an injury to some plaintiff out there cannot
satisfy Article III. And if petitioner were
correct about that-- if injury to someone, not
necessarily the plaintiff, could satisfy Article III-- then what would be left
of the standing doctrine? Congress could freely
designate everybody to sue as representatives
of everyone else, and there would be no one
who would be prevented from suing in federal
court, whether or not they have been personally injured. And that's not the
doctrine, and in fact, that would remove the irreducible
minimum which this court found so essential in Valley Forge. ANTHONY KENNEDY:
Of course, there is an anomaly in our standing
doctrine, is there not, in that, for centuries,
we've permitted plaintiffs with only a minor
injury to, in effect, represent all the citizens? Gibbons versus Ogden had
an injury with a steamboat, but he set the parameters
of the Commerce Clause. Isn't that's what's
happening here? MATTHEW KREEGER: Well,
Your Honor, my time is up. Would you like me to address-- ANTHONY KENNEDY: Certainly. MATTHEW KREEGER: OK. The difference is, those
plaintiffs were not really tested under
the standing doctrine. I mean, certainly, there is
a long history of qui tam actions, and these
plaintiffs normally weren't required to satisfy the
requirements of Article III. But this doctrine is a
relatively recent one, and now is the first
chance for this court to address the convergence
of the Article III standing doctrine and qui tam. And we ask that you
affirm the decision of the Court of Appeals,
dismissing Petitioner's case. ANTHONY KENNEDY: Thank
you, Mr. Kreeger. MICHAEL DORF: Mr. Chief Justice,
and may it please the court, my name is Michael Dorf, and I
also represent the respondent, Tech Corporation. ANTHONY KENNEDY: Good
evening, Mr. Dorf. MICHAEL DORF: Good evening. I shall argue that the qui tam
provisions of the False Claims Act, as they apply to
this particular case, are unconstitutional
in two ways. First, they violate the
constitutional principle of separation of
powers, and second, that they violate
the Appointments Clause of Article II. JOHN NOONAN: Now, before you get
into that, I want to ask you-- [LAUGHTER] --why we should be hearing that? It seems to me, if
there is a problem here, we should be hearing from
the executive branch. MICHAEL DORF: Well, Your
Honor, there is sort of a catch-22 at stake here. The False Claims Act
prevented the executive branch from entering into this case. The executive branch,
through its designated assistant attorney
general, has stated that this is a case it does
not want to be in court. But the False Claims Act doesn't
allow the executive branch to be in to court, and
so the very problem that we're addressing is the
fact that the executive branch can't be here. JOHN NOONAN: Well,
why couldn't we just put off submission
of this case, and ask the United States
for the amicus brief that would express the sense of
the executive on this issue that you raised? MICHAEL DORF: Well, I
presume that the executive would have-- would take a view. I don't know exactly
what they would say. JOHN NOONAN: Well, we don't
either, but that's exactly it. Why shouldn't we hear
from them, before we let a private party tell
us what has happened to the two branches that you put
into conflict with each other? MICHAEL DORF: There are two
related reasons, Your Honor. The first is that to
put off adjudication would prejudice the
interests of my client. Respondent, Tech
Corporation, is being asked to defend against a
suit that the executive branch believes is meritless. And that relates to
the second reason. The second point is
that the principle of separation of powers
does not exist just to benefit the government. Ultimately, it's
an idea that exists for the benefit of the people. Power is divided-- ANTHONY KENNEDY: Do you have any
authority for that proposition in the case law? MICHAEL DORF: Well, I think
James Madison put it-- made that point in
the Federalist Papers, and Alexander Hamilton as well. The whole idea-- ANTHONY KENNEDY: How
about in the case law? MICHAEL DORF: Well-- [LAUGHTER] MICHAEL DORF: The Mistretta
case cites Madison's point, that the reason that power is
divided is to secure liberty. Indeed, in this court's cases,
the court has recognized that one of the reasons that the
president is charged with a duty to take care that the
laws are faithfully executed is to ensure that arbitrary
prosecution-- that, after all, is the essence of
executing the laws-- that arbitrary prosecution
does not take place. ANTHONY KENNEDY: Does
INS versus Chadha help you, in which we had
a foreign national bring a suit which established a very
basic principle of separation of powers? Is that a helpful case for you? MICHAEL DORF:
Absolutely, Your Honor. And indeed, as we
pointed out in our brief, there was an argument made in
the Chadha case very similar to Petitioner's argument,
that somehow the alien wasn't an appropriate party to bring
forth the separation of powers principle. But the point here is
that, first of all, that principle is a structural
provision of the United States Constitution, which binds
the entire government for the benefit of the people. Moreover, even if the executive
branch of the government, at this moment, were to take
issue with our position, they can't waive the rights
of future executives. The mere fact, for
example, that the president signed this bill
in the first place does not change the structural
nature of the inquiry here. JOHN NOONAN: Well, even
if we didn't wait-- you don't want us to wait-- but why should we rush into
a constitutional impasse if we can construe
the statute to permit the United States to enter
and dismiss at any time? Then most of your
objections evaporate. MICHAEL DORF: Well,
Your Honor, that is, sort of, our
second-best solution, because it's clear that
if the United States government had the
power to intervene, this case would go away. And so in that case,
perhaps, it would be-- JOHN NOONAN: You'd be quite
happy with that result? MICHAEL DORF: As our
second-best option. But our first-best option,
Your Honor, is even better, and that's the
point that those-- [LAUGHTER] --that to read the statute
in that way would be to, basically, mangle it. And I'd like to take issue
here with petitioner's reading of the statute. The point is that
the False Claims Act, as was construed
by the court below and as its plain
language indicates, isn't just an additional
avenue for the government to have some ways of taking
over cases and so forth. What the False
Claims Act does is it sets up exclusive
options for the government. It establishes, first of
all, in the first instance, that the executive branch,
the attorney general, may take over a case, if
he wants to prosecute. And in that case, the
statute explicitly, in part (c)(2)(A) gives the
attorney general the power to dismiss, and
some other powers. But if he doesn't
take over the case, he doesn't have those powers. And Petitioner's argument,
that he can then later intervene and dismiss the
action or take over it, is simply incompatible with
the text of the statute. If I may direct-- ANTHONY KENNEDY: Well,
and as a matter of fact, if that happened, you'd
be entitled to dismissal with prejudice, I take
it, which would certainly benefit your client, would
might even save your client from a criminal action? MICHAEL DORF: That's
correct, Your Honor. If this court were to opt
for our second-best option and to construe the
statute somehow-- although in my view, contrary
to its plain meaning-- but to construe the
statute to allow for a discretionary
dismissal by the executive, then this case would go away. However, there is a
problem with doing that, and that is that it's not
clear what the dismissal mechanism would be, because-- ANTHONY KENNEDY:
Well, does there have to be dismissal for good cause? MICHAEL DORF: Well, that's
what I wonder, Your Honor. In other words, the statute says
that if the attorney general takes over the case when
he wants to prosecute it, then he can only dismiss for
good cause, subject to this-- it's not clear. They don't-- ANTHONY KENNEDY:
Subject to a hearing. MICHAEL DORF: Subject
to a hearing, right. And I presume that the
court would actually require some substantive
showing at that hearing. It's not exactly clear
what it would be. ANTHONY KENNEDY: Well then
it's for good causes, isn't it? MICHAEL DORF: I would
assume in that circumstance, it is good cause. The point is, however, if
this court were to sort of add on an additional provision,
whereby the attorney general could dismiss a
case without taking it over in the first place, even though
he believes it's meritless, it's not clear
whether that dismissal will be subject to
judicial review or not. And so we would be left with a
difficult problem that always exists whenever the court
strikes down what Congress has done, which is how to interpret
Congress's subsidiary intent, so to speak. My point here is that-- ANTHONY KENNEDY:
It's a little odd that you're arguing
against the option for a dismissal of the
suit against your client. MICHAEL DORF: Well, I'm not
arguing against it, Your Honor. As I said, it's our
second-best option. But our first-best
option is just that this court should affirm
the judgment of the court below. And the reason is
that this statute, by eliminating the power
of the attorney general to make a meritless
suit go away, has gone beyond what has
been allowed in prior cases. It's gone-- it's fundamentally
disrupted the executive's role. But if this court is inclined
to somehow read in a dismissal power, I would argue, first
of all, that that dismissal power should be absolute. And that's because
there would still be a disruption of
the executive's role, and that disruption
has not been justified by any overriding need. ANTHONY KENNEDY: Well, why is
it that the executive branch has some sort of a monopoly
on how the law is going to evolve in the United States? Doesn't the Congress have
some say in this matter? In fact, isn't Congress
the preeminent policymaker? MICHAEL DORF:
Absolutely, Your Honor. Each branch has a role to play. But the framers of
our Constitution sought to ensure that each
branch plays its proper role. Congress defines
what the law is. Having done that, it's
not up to Congress to then say how the law shall be
executed, except in so far as, for example, it provides
funds to the attorney general. ANTHONY KENNEDY: Well,
it's not just a matter of executing the law. It's a matter of developing a
substantive body of the law. And you say that
the attorney general has a complete veto power. MICHAEL DORF: Well, it's-- that, in fact, is what
the attorney general has in the vast majority of
statutes of the United States. And it's not-- it
shouldn't be viewed as something that's arbitrary. The point is that the attorney
general, the executive branch, needs that power, in order
to ensure faithful execution of the laws, not-- ANTHONY KENNEDY:
Well, but the Congress has said that the
citizens generally should have some
role in deciding how the law should evolve. MICHAEL DORF: Well, Your Honor-- ANTHONY KENNEDY:
Isn't that a really an important principle of
the constitutional system? MICHAEL DORF: Even
if you were to hold that this case
should be dismissed, citizens would
still play a role. We're not objecting to qui tam
suits in those circumstances where the attorney general
doesn't object to prosecution, but merely lacks the appropriate
resources, for example. We're only objecting to-- ANTHONY KENNEDY: You mean we
have a constitutional doctrine of separation of
powers, determined on an ad hoc, case-by-case
assessment of resources? MICHAEL DORF: No,
Your Honor, it's not-- the constitutional doctrine does
not turn upon the ad hoc case. Rather, the point is whether the
power is given to the attorney general in the first place. If the attorney
general has the power to only allow those qui
tam suits that he believes have some merit, then
the attorney general is faithfully
executing the laws. The point here is that
faithful execution of the laws requires more than mere
mechanical application of statutory text to a
given factual scenario. What it requires is that
the executive branch exercise its judgment. It has to look out into
the universe of actors who have contracts with the
government, for example, and say, is this
the kind of action that Congress, in writing this
particular statutory text, wanted to punish? And if it finds
that it isn't, then faithful execution of
the laws, the executive's fundamental duty-- ANTHONY KENNEDY: So you're
defending the argument that we strike down a
statute in order to preserve congressional intent? MICHAEL DORF: Well, it's
a question of which-- ANTHONY KENNEDY: I have to
absorb that for a moment. [LAUGHTER] MICHAEL DORF: Your
Honor, Congress had several levels of intent. We do not disagree with
the broad characterization that Congress intended to wipe
out fraud on the government. And that is a valid
characterization of what the statute, in its
broad stroke, seeks to do. However, as applied to
this particular case, that goal of wiping out fraud
on the government cannot justify taking away the power
from the executive to do what is its fundamental role. And that is-- CONSTANCE BAKER MOTLEY:
Well, hasn't the Congress provided for the executive
to move in at any time and take over this case? Isn't that the important
consideration here, that the executive
maintains power over a case? It can go in and take it over
and do whatever it wants, and the plaintiff
has to step aside. Isn't that right? MICHAEL DORF: Would that
it were so, Your Honor. In fact, the statute
does not do that. What the statute provides
is that the government can take over the action,
only if, at the very beginning of the case, the attorney
general determines that prosecution is warranted. The statute says, the
attorney general-- CONSTANCE BAKER MOTLEY: Well,
I thought the attorney general could intervene
here at any time, as the plaintiff said,
and also can intervene to bring about a dismissal. You disagree with that? MICHAEL DORF: I do. That is what the plaintiff
says, but that is not what the statute says, Your Honor. If Your Honor will address her
attention, with the court's indulgence, to part
(c) of the statute, it provides, first of all-- ANTHONY KENNEDY: Are you
reading from the appendix? MICHAEL DORF: Yes,
I am, Your Honor. This is-- ANTHONY KENNEDY: Which page? MICHAEL DORF: --appendix
A, page 3 and then page 4. On page 3, the statute
provides that the government may dismiss the action
notwithstanding objections of the person initiating the
action, et cetera, et cetera. Now, that language only
applies in the circumstance where the government
has first decided to take over the action. That's the clear import of the
heading of (c)(1), which says, if the government
proceeds with the action, it shall have the
primary responsibility-- CONSTANCE BAKER MOTLEY:
You mean initially, not at some later time? MICHAEL DORF: That's correct. That's the only
time the government can proceed with the action. Indeed, so pointing to that, if
they proceed with the action, then the qui tam plaintiff
has certain rights limited by these later provisions. Now, these later provisions,
(c)(2)(A) and (B) only apply where the government first
takes over the action. They don't apply if, as
is pointed out in (c)(3), if the government elects not
to proceed with the action, and that's on the next page. If the government elects not
to proceed with the action, all the government may do
is later, yes, intervene, but they can't take
over the action, and they can't
dismiss the action. So petitioner's
reading of the statute is simply incompatible
with its text. JOHN NOONAN: But doesn't
the attorney general have more control,
when we add it all up, than the
attorney general has over the special prosecutor
who is appointed? MICHAEL DORF: No, no,
he doesn't, Your Honor, not in a case such as this one. Morrison against Olson, as-- in Morrison against
Olson, this court said that the correct
inquiry is to look to the statute as a whole. But that doesn't mean that you
ignore the particular facts of the case. So the point is that the fact
that the attorney general might have adequate powers
to supervise or control a different qui tam
plaintiff can't possibly mean that he has adequate-- that it's OK if he doesn't
have enough powers to supervise this qui tam plaintiff. So that's an
important distinction. And in the special
prosecutor context-- JOHN NOONAN: So you
think the statute might be unconstitutional as
applied in this case, and-- MICHAEL DORF: That is-- JOHN NOONAN: --not
in some other cases? MICHAEL DORF: That is
precisely correct, Your Honor. If, for example, this were a
case in which the government had said, we decline to
take over the action, but we have no objection
to the case going forward, that would present a much
different case from this one. This is a limited challenge,
specific to the facts of this particular case. If I may, I would
now like to turn to the so-called overriding
need portion of the separation of powers inquiry. Now, counsel for petitioner
justifies this statute as saying it serves
the overriding need of combating fraud. But as I mentioned earlier,
that overriding need is not specific
to the elimination of the crucial power that
this court has always required the executive to have-- the power to prevent
the unwarranted exercise of executive authority. Indeed, as is clear from this
court's prior precedents, an overriding need is
one which is so important that it may be characterized
as inherent to the provision at stake. ANTHONY KENNEDY: Was
there an overriding need in Vuitton versus Young? MICHAEL DORF: In
Vuitton against Young, this court found that
the particular exercise of authority by the person
suing to enforce the contempt was problematic. There was a difference though-- ANTHONY KENNEDY: Well, I
thought that we expressly acknowledged that
the appointment of a private prosecutor was
appropriate in that case. MICHAEL DORF: That's-- ANTHONY KENNEDY:
Not that prosecutor, because he had a
financial interest. MICHAEL DORF: That's
correct, Your Honor. That, of course, is an
important distinction between that case and this
case, and that distinction-- ANTHONY KENNEDY: I
understand that distinction, but the principle is, and we
established it in Vuitton, that the court could
appoint a private prosecutor without asking the
Justice Department, without an assessment of
resources, without any showing that the Justice Department was
even unwilling to prosecute. MICHAEL DORF: That's
correct, and that's because Vuitton dealt
with the very essentially judicial function of contempt. This court carefully
distinguished the power to prosecute contempt,
traditional-- ANTHONY KENNEDY: You mean
the judiciary can make up rules on its own and the
Congress of the United States can't provide the
same thing by statute? MICHAEL DORF: No, Your Honor,
that's not what I mean. What I mean is
that historically, it's been understood that--
and in fact, it's true today, as well as at any point-- that in order for a court's
judgment to be enforceable, the court must have
some inherent power to enforce it that doesn't
rely on the executive branch. In a sense, it's serving a
separation of powers principle. ANTHONY KENNEDY: Congress could
not abolish criminal contempt, if they chose? MICHAEL DORF: I
think that that would present a difficult problem. Perhaps-- ANTHONY KENNEDY:
Well, you're saying there's some inherent power to
punish for criminal contempt? MICHAEL DORF: Well,
perhaps criminal contempt if they allowed civil
contempt to remain. The point there, Your Honor,
is that the Vuitton case was limited to punishing contempt. It did not establish a broad
principle that any time a judge wants to appoint a
private prosecutor, that private prosecutor
doesn't in any way implicate the government. There's another other
important distinction between Vuitton and this case. In Vuitton, the
private prosecutor appointed to enforce
the contempt prosecution is acting, really, as
an arm of the judiciary. Here, the qui tam
plaintiff is acting on behalf of the United
States government, bringing the action in the
name of the United States government. And in my last few moments,
I'd like, if I may, to turn to the third,
independent part of our argument. And that is that this exercise
of governmental authority, by the qui tam
plaintiff, violates the explicit provision of the
United States Constitution-- the Appointments Clause. The Appointments
Clause of Article II, Section 2 of the United
States Constitution, as this court stated in Buckley,
has substantive content. Any individual-- ANTHONY KENNEDY:
Well, but counsel, Buckley involved an agency
with an ongoing life, with acquired expertise,
with acquired discretion. Here we have a
one-time plaintiff. MICHAEL DORF: Well, Your
Honor, first of all, I do not contend that
Buckley controls this case. What I contend is that
the principle of Buckley applies to this case. And I think I can demonstrate
that by comparison with the Morrison case. In Morrison, this court noted
that the independent counsel was an inferior officer of
the United States government. Now, that wasn't a problem,
because the court held that the independent
counsel had been appointed in conformity with Article II. However, an independent counsel
might bring just one case, for example. So the fact that the
person exercising governmental authority
does so for a short time doesn't make that exercise
of governmental authority immune from the
Appointments Clause. For example, if a statute
were to designate someone as attorney general for
a day, that person-- without going through the
appointments process-- that would be a violation
of the Appointments Clause, even though the person
exercised governmental authority for only one day. At its core, the
Appointments Clause establishes a principle of
governmental regularity. That's what this
court must have meant in Buckley, when it said
that the term "officer" has substantive meaning. It's not really a formal
provision about protocol, if you will. What it states is that
when someone exercises governmental authority,
bringing a lawsuit on behalf of the United States government,
that person must, in some way, be accountable through
the government. Because the qui tam
plaintiff is not accountable, at all-- the qui tam
plaintiff, indeed, has an incentive structure
that, as we have pointed out, is antithetical to the
responsible exercise of prosecutorial authority--
the qui tam plaintiff violates the Appointments Clause, and
in this particular case, also the separation of
powers principle. I urge this court to affirm
the ruling of the court below. ANTHONY KENNEDY:
Thank you, counsel. Petitioner's rebuttal. Ms. Mulligan. KATHLEEN MULLIGAN:
Mr. Chief Justice, and may it please the court. In my brief four
minutes, I'd like to go over a number of ideas
as quickly as possible, starting with the separation
of powers argument. Now, the respondents
have come up to you and said that they
would be satisfied, that their second-best
option would be that the government
can intervene and move to dismiss this lawsuit. We agree that the
government has this power. Now, the respondents
cited for you two provisions that were
at issue in this case-- the (b)(4) provision
which applies to the government's intervening
and taking control during the 60-day period that occurs
before a defendant answers a complaint, and the (c)(3)
provision which applies at any time during the act, when the
government, for good cause, has reason to wish
to intervene and take control of this litigation. We both agree that both
of those provisions allow the government to
intervene and take control of the plaintiff's suit. That's an
extraordinary authority that the government doesn't have
in other types of litigation brought in the public interest. But these two provisions do
not preclude the government from intervening in ways
that it has normally been capable of in all other
types of public interest litigation. The government can intervene and
move to dismiss under Rule 24 here. The government can appear
as an amicus curiae. The government, the executive,
even has a presidential pardon power, so that when a suit
is particularly egregious, the government can
pardon that offense. None of these provisions
were preempted by this act. And certainly, the
courts have not interpreted this
act as preempting those types of provisions. In Marcus, before the 43
amendments were passed, the government appeared
as amicus curiae. Before the 86
amendments were passed, in Thompson versus
Hayes, the court allowed the government to
appear as an interested party. And just this summer, after
the 86 amendments were passed, the government was
allowed to appear as amicus curiae in
the [? Newsham ?] versus [? Lackey ?] case. No judge that has
interpreted this act has bought that type of
argument the respondent is trying to convince you
of, that this act precludes all other types of
intervention by the executive. The only thing that the
executive cannot do under this act is dismiss a suit
that is meritorious. And there's no reason
that the executive should have that power. The executive is not using
their resources here. It is a suit in the
public interest. ANTHONY KENNEDY:
Suppose it's concerned about protecting the integrity
of a pending criminal action. KATHLEEN MULLIGAN: First
of all, the act allowed-- the act gives the
executive a number of ways to control the suit. For example, it
can stay discovery if other litigation is pending. Also, the initial provision,
before the defendant answers the complaint,
allows the government to keep this complaint under
seal while other efforts are going on. And on top of that,
under Rule 24, the government could appear
and move for a dismissal. The government could
also argue as amicus. There are all these powers
that the government has. They were certainly sufficient
in other citizen suits to protect the
executive's interests. They're sufficient here. So we believe that there
are no separation of powers concerns raised by this act. Turning back to the
standing argument, respondent would have you
believe that, for some reason, petitioner does not have
standing under the act. They talk about cases,
about citizen suits, where this court has not
struck down a citizen standing provision, but has denied
standing to a plaintiff that doesn't have injury. But they aren't challenging
our standing under the act. Petitioner claims that he is an
original source of information, that that sufficiently
particularizes his claims and satisfies the case or
controversy requirement. They don't challenge that. They don't challenge that
we're the original source of information. But even if you disagree with
us, that the injury is not sufficiently personalized
here, we still may assert the injury
of the government. And this court held
in Hunt that asserting the injury of a
represented party satisfies the case or
controversy requirement. We believe that the
suit is consistent with both the Article III
requirements and the separation of powers doctrine. We ask you to affirm the--
or reinstate the decision of the district court. Thank you, Your Honor. ANTHONY KENNEDY: Thank
you very much, counsel. The case will be submitted. We will now take a recess for
approximately five minutes, and then we will return. Thank you. [APPLAUSE] BETTY LORENZ: If everyone
could please take their seats. The judges will be
returning shortly to render their decision
as to best brief, best oralist, and best overall team. The BSA would like
to congratulate the participants
on their efforts throughout the Ames Competition. Once again, we'd like
to invite everyone to the reception in the
John Chipman Gray Room at the conclusion
of the argument. Thank you. CLERK: All rise. ANTHONY KENNEDY:
Thank you very much. It is a great pleasure,
not only to be here at the Ames Competition
and at Harvard, and at, really, one of
the great moot court competitions in the history
of American legal education, but to be with my
two colleagues. Judge Motley, you and I
have been on the UCLA moot court and the Yale
moot court, and we've finally made the big time. [APPLAUSE AND LAUGHTER] And it's my pleasure
to introduce to you Judge Constance Baker Motley
of the United States District Court for the Southern
District of New York. Judge? CONSTANCE BAKER
MOTLEY: Thank you. [APPLAUSE] I think I have to agree
with Mr. Justice Kennedy that Harvard is where it's
at, as they say in the street. We have been in other
parts of the country, and we've seen others perform. And I must say, I am always
impressed when I do come here to Harvard, that you have some
of the greatest future members of the bar right here. We always say, when we meet
after such an argument, if only we had lawyers
in court like this. It is a rare day, indeed, that
we see an argument such as we have seen tonight. And this kind of experience, I
think, is what keeps us going. That is, we come here and
we see the future bar, and we realize that the legal
profession in this country is a profession which continues
to attract the ablest people in the country. So I want to thank
you for renewing my-- what shall I say, faith-- in the future of the
legal profession. And congratulations to all
of you who participated. ANTHONY KENNEDY:
Thank you, Judge. It's an honor to be with you. It was very gracious of the
members of the Board of Student Advisers to ask to serve
on the panel tonight my former colleague, a
remarkable teacher and just a very, very fine judge
on the great United States Court of Appeals for
the Ninth Judicial Circuit, Judge John Noonan. Judge? JOHN NOONAN: I must say,
it does seem like a return to old times, because as I
began my traditional career with Justice Kennedy
presiding, and that was a very happy introduction. I want to say this has been
about as close a competition as I've participated in, both
at the level of the briefs and the level of
the oral argument. Judges are paid to be
decisive, so the fact that we decided
quickly is simply because we are decisive
judges, not because it wasn't a very close contest. And I'm delighted to be here,
and I think Justice Kennedy should announce the decision. ANTHONY KENNEDY: The
problem that you argued is a very real problem, and
I congratulate the authors for presenting this to you
as your moot court case. It's no paradox,
it's no strange event that one of the most
ancient actions in the law should present a modern
constitutional dilemma, because what we're
dealing here with are some very basic human
weaknesses and vices-- fraud and corruption--
that have been with us since the beginning of
civilization, plus the outraged demand of a decent citizen
to do something about it. And when you have
these strong feelings in congressional
action, you then run into the
additional problem of whether or not the
Congress has respected the separation of powers. You can see from the problem
that it may well depend-- it's an interesting problem in
the limits of judicial notice. Do we take this plaintiff
as this outraged citizen, this voice crying
in the wilderness, or is what is in the
judicial mindset, the idea of a permanent
corporation, a foundation that would do nothing
but these quit tam suits? There are also problems
with the First Amendment and with free speech,
with reference to sealing the documents, many
things that are ancillary. So it was a very, very
good moot court problem. It's almost ritualistic
for moot court visitors to tell the students
how well they did. In this case, it is
very true, the arguments here were simply superb. This profession of ours
distinguishes itself by its ability to advocate,
and to argue, and to persuade, and you saw that art here
being practiced in its highest form, fully consistent with the
traditions of our profession and of this great school. I was going to do a moot
court some years ago, and my 16-year-old daughter,
who by reason of her age is omniscient,
said, oh, well, it must be enjoyable for
you to go to something that's not the real thing. Well, she's wrong. This is the real thing. The law evolves in many
ways from many sources, and you heard the law
discussed here tonight in a way that all of
the judges, and I'm sure all of the audience,
found the most instructive and most insightful. So I wish to
congratulate each of you who participated in this
long and this wonderful Ames Competition. I spent quite a bit of
time with the briefs and talked to Judge Noonan
this morning about them. And then we talked
to Judge Motley earlier, so we had in mind what
we thought was the best brief. And we've given--
although it was very, very close and we
debated about it to some length this morning-- we gave the award
for the best brief to the respondent, the A.
Bartlett Giamatti team. Congratulations. [APPLAUSE] The best oralist, again very,
very difficult, and we have-- despite what I thought was
a very brilliant rebuttal by Ms. Mulligan-- selected as the best
oralist, Mr. Dorf. Would you please
stand, Mr. Dorf? [APPLAUSE] And it naturally follows that
you squeak away with the best team award, as well. [APPLAUSE] We're anxious to meet you and
to congratulate each of you. Thank you very much for
your kind attendance. [APPLAUSE]
