                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

ZOLTAN BARATI,                        NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D15-213

STATE OF FLORIDA,
MOTOROLA, INC., and
MORPHOTRAK, INC.,

     Appellees.
________________________/

Opinion filed February 23, 2016.

An appeal from the Circuit Court for Leon County.
Angela C. Dempsey, Judge.

David W. Moyé, Moyé Law Firm, Tallahassee; Gary M. Farmer, Jr. and Gary M.
Farmer, Sr. of Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, PL,
Fort Lauderdale, for Appellant.

Pamela Jo Bondi, Attorney General, Russell S. Kent, Special Counsel, William E.
Foster, Assistant Attorney General, Tallahassee, for Appellee State of Florida.



THOMAS, J.

      In this qui tam proceeding filed under the Florida False Claims Act (FCA),

we are presented with a question of first impression,1 to wit: Does the Attorney


1
  This court previously rejected the Attorney General’s assertion in this case that
the circuit court lacked jurisdiction to consider Appellant’s motion to strike the
State’s Notice of Voluntary Dismissal. Without reaching the issue addressed here,
General possess the requisite legal authority to dismiss a pending qui tam action

notwithstanding her previous decision to decline to intervene in the action? The

Attorney General asserts that a qui tam action is strictly statutory in nature, the

State is the real party in interest, and the State possesses the substantive right to

dismiss this statutory cause of action at any time during the litigation. To hold

otherwise, the State argues, would violate organic law prohibiting either the

legislative or judicial branches from interfering in the exercise of prosecutorial

discretion by the executive branch to decide that dismissing a qui tam claim in

state court is properly within the public interest of the State of Florida.

      Appellant (relator) argues that under the “public policies embedded in the

False Claims Act” and the legislative history of the Act, the relator who litigates a

qui tam action must be provided a court hearing to challenge the Attorney

General’s voluntary dismissal. To allow the Attorney General to dismiss any

qui tam action, regardless of prior participation by the State, and regardless of the

relator’s investment of resources in the litigation, would “severely undermine[]”

we denied the State’s Petition for Writ of Prohibition which sought to prohibit the
trial court from conducting a hearing on Appellant’s motion to strike. State v.
Barati, 150 So. 3d 810 (Fla. 1st DCA 2014) (Thomas, J., dissenting). We again
reject the State’s argument raised here that this court lacks jurisdiction to consider
this appeal as, on remand, the lower court’s order found that the State’s dismissal
divested it of jurisdiction to consider Appellant’s motion to strike. We agree with
Appellant that the lower court’s Order on Remand concluded judicial labor, and
that order is now reviewable here. Bennett’s Leasing, Inc. v. First St. Mortgage
Corp., 870 So. 2d 93, 96 (Fla. 1st DCA 2003) (“The basic rule is that a judgment
or order is final if it brings to a close all judicial labor in the lower tribunal.”).
                                               2
the “False Claims Act’s role in combatting fraud against the government,”

according to the relator.

      We hold that the Attorney General possesses the plenary authority to

unilaterally dismiss a qui tam action, regardless of the State’s decision to decline to

previously intervene in the litigation. We reach this conclusion based on four

reasons: First, based on our analysis of the plain language of the statute, we

conclude that the Legislature intended to confer this substantive authority to the

Attorney General; second, based on our review of the relevant case law

interpreting the very similar Federal False Claims Act, we find ample support for

our reasoning; third, based on Florida’s strict separation of powers mandated in

Florida’s organic law under Article II, section three, we reason that to interpret the

statute to allow a relator to challenge the Attorney General’s decision would place

the relevant statute in constitutional jeopardy; and fourth, and finally, we conclude

that the Attorney General’s constitutional authority under Article IV, section four

of the Florida Constitution, mandates that her office is accorded the unilateral

authority to dismiss a qui tam action, without challenge from a relator, absent any

allegation of fraud not present here. In fine, we hold that the authority of the

Attorney General to voluntarily dismiss the qui tam action is a substantive right

firmly grounded on statutory and state-constitutional principles.




                                          3
                       Factual and Procedural Background

       As described in State v. Barati, 150 So. 3d 810, 811-12 (Fla. 1st DCA 2014),

which did not reach the merits of the question presented here, the following history

is useful:

       In September 2009, Barati filed a qui tam action against Motorola,
       Inc., pursuant to the Florida False Claims Act, section 68.081 et seq.,
       Florida Statutes. . . .

       The Florida False Claims Act authorizes a private person or the State
       to initiate a civil action against a person or company who knowingly
       presents a false claim to the State for payment. The private citizen
       who brings an action, i.e., the “relator,” sues on behalf of himself and
       the State. Such an action is called a qui tam action from the Latin
       phrase: “qui tam pro domino rege quam pro se ipso in hac parte
       sequitur.” Black’s Law Dictionary translates the phrase as: “who as
       well for the king as for himself sues in this matter.” . . .

       After being served a copy of the qui tam complaint and relevant
       materials, the State of Florida conducted an investigation, pursuant to
       section 68.083(3), Florida Statutes. The State declined to join the qui
       tam action, which Barati thereafter prosecuted for approximately three
       and a half years. Without formally intervening in the cause, the
       Attorney General, on behalf of the State, filed a notice of voluntary
       dismissal of the action on July 18, 2013. The State asserted in its
       notice that it had the unilateral right to dismiss the action on authority
       of section 68.084(2) (a), notwithstanding any objections that Barati
       may have.

       Barati thereafter moved to strike the notice of voluntary dismissal
       arguing inter alia that dismissal did not occur automatically, as the
       State was suggesting.

       Following our denial of the Attorney General’s petition for writ of

prohibition, the lower court ruled that the “Attorney General had the authority to

                                           4
file a voluntary dismissal notwithstanding any objections of the Relator pursuant to

Section 68.084(2), Florida Statutes.” By our holding today, we affirm that ruling.

                                       Analysis

                       1. The Plain Language of the Statute

      Our standard of review here is de novo, as we address a pure question of

law. Myers v. State, 866 So. 2d 103, 104 (Fla. 1st DCA 2004).

      As we are bound to interpret the statute as a whole, we provide the following

relevant text of the 2009 Florida False Claims Act, emphasizing provisions that

describe the State’s overarching legislative policy in authorizing qui tam actions:

      68. 082 False Claims against the state; . . . liability.—
      .....
         (2) Any person who:
         (a) Knowingly presents or causes to be presented . . . a false or
      fraudulent for payment or approval;
      ....
         (g) . . . . is liable to the state for a civil penalty . . . and for treble
      the amount of damages the agency sustains because of the act or
      omission of that person.
         (3) The court may reduce the treble damages . . . in which case
      the court shall award no less than 2 times the amount of damages
      sustained by the agency because of the act of the person. . . .

      68.083 Civil Actions for false claims.—
          (1) The department [of Legal Affairs] may diligently investigate a
      violation under s. 68.082. . . . [T]he department may bring a civil
      action under the Florida False Claims Act against the person [who has
      allegedly violated s. 68.082]. . . .
          (2) A person may bring a civil action for a violation of s. 68.082
      for the person and for the affected agency. Civil actions instituted
      under this act shall be governed by the Florida Rules of Civil
      Procedure and shall be brought in the name of the State of Florida.
                                            5
      Prior to the court unsealing the complaint under subsection (3), the
      action may be voluntarily dismissed by the person bringing the action
      only if the department gives written consent to the dismissal and
      its reasons for such consent.
      ....
          (7) When a person files an action . . . no person other than the
      department on behalf of the state may intervene . . . under this
      act . . . .

      68.084 Rights of the parties in civil actions.—
          (1) If the department, on behalf of the state, proceeds with the
      action, it has the primary responsibility for prosecuting the action, and
      is not bound by any act of the person bringing the action. The person
      bringing the action has the right to continue as a party to the action,
      subject to the limitations specified in subsection (2).
          (2)(a) The department may voluntarily dismiss the action
      notwithstanding the objections of the person initiating the
      action.[2]

2
  Effective June 30, 2013, the Florida FCA was amended. See Ch. 2013-104, Laws
of Fla. The Legislature added language to this subsection, which provides: “The
department may ‘at any point’ voluntarily dismiss the action notwithstanding the
objections of the person initiating the action.” § 68.084(2)(a), Fla. Stat. (2013)
(emphasis added). In addition, in defining the statute of limitations period for
qui tam claims, the Legislature amended the 2009 statute to define the limitations
term solely on the basis of the Attorney General’s knowledge of the facts giving
rise to the claims. § 68.089(1), Fla. Stat. (2013). The statute also only authorizes
the application of estoppel in qui tam suits brought by the Attorney General, not by
private relators. § 68.09(2), Fla. Stat. (2013). Furthermore, the 2013 Legislature
provided more control of qui tam actions to the Attorney General in other
significant provisions. The 2013 amendments require the court to dismiss an
action, “unless opposed by the department,” if the qui tam action is based on
information previously publicly disclosed. § 68.087(3), Fla. Stat. (2013). Thus,
the 2013 Legislature directed that qui tam actions cannot be based on publicly-
disclosed information, but in a significant exception, the statute now allows the
Attorney General to preclude dismissal by the court. No other party is given this
authority where the qui tam action is based on public information. This is further
evidence of the overarching and continuing legislative intent to vest almost
complete authority in the Attorney General to conduct and control qui tam
litigation, and these statutory amendments provide additional support to our
                                           6
          (b) Subject to s. 17.04, nothing in this act shall be construed to
      limit the authority of the department or the qui tam plaintiff to
      compromise a claim brought in a complaint filed under this act if the
      court determines, after a hearing, that the proposed settlement is
      fair, adequate, and reasonable under all the circumstances.
          (c) Upon a showing by the department that unrestricted
      participation during the course of the litigation by the person initiating
      the action would interfere with or unduly delay the department's
      prosecution of the case, or would be repetitious, irrelevant, or for
      purposes of harassment, the court may, in its discretion, impose
      limitations on the person's participation, including, but not limited to:
          1. Limiting the number of witnesses the person may call;
          2. Limiting the length of the testimony of the person's
      witnesses;
          3. Limiting the person's cross-examination of witnesses; or
          4. Otherwise limiting the participation by the person in the
      litigation.
          (d) Upon a showing by the defendant that unrestricted
      participation during the course of the litigation by the person
      initiating the action would be for purposes of harassment or would
      cause the defendant undue burden or unnecessary expense, the court
      may limit the participation by the person in the litigation.
          (3) If the department elects not to proceed with the action, the
      person who initiated the action has the right to conduct the action.
      If the Attorney General, as head of the department . . . so requests, it
      shall be served, at the requesting department’s expense, with copies of
      all pleadings and motions filed in the action and copies of all
      deposition transcripts. When a person proceeds with the action, the
      court, without limiting the rights of the person initiating the action,
      may nevertheless permit the department to intervene and take
      over the action on behalf of the state at a later date upon showing of
      good cause.
          (4) Whether or not the department proceeds with the action,
      upon a showing by the department that certain actions of discovery
      by the person initiating the action would interfere with an
      investigation by the state government or the prosecution of a criminal
      or civil matter arising out of the same facts, the court may stay such

conclusion that the Attorney General possesses the unfettered right of dismissal.
                                        7
discovery for a period of not more than 60 days. Such a showing
shall be conducted in camera. The court may extend the 60-day period
upon a further showing in camera by the department that the criminal
or civil investigation or proceeding has been pursued with reasonable
diligence and any proposed discovery in the civil action will interfere
with an ongoing criminal or civil investigation or proceeding.
    (5) The application of one civil remedy under this act does not
preclude the application of any other remedy, civil or criminal, under
this act or any other provision of law. Civil remedies under this act are
supplemental, not mutually exclusive. Any finding of fact or
conclusion of law made in such other proceeding that has become
final shall be conclusive on all parties to an action under this section.
As used in this subsection, the term “final” means not subject to
judicial review.
    (6) The Department of Financial Services, or the department, may
intervene on its own behalf as a matter of right.

68.085. Awards to plaintiffs bringing action.—
    (1) If the department proceeds and prevails in an action brought
by a person under this act, except as provided in subsection (2), the
court shall order the distribution to the person of at least 15 percent
but not more than 25 percent of the proceeds recovered under any
judgment obtained by the department in an action under s. 68.082 or
of the proceeds of any settlement of the claim, depending upon the
extent to which the person substantially contributed to the prosecution
of the action.
    (2) If the department proceeds with an action which the court
finds to be based primarily on disclosures of specific information,
other than that provided by the person bringing the action, relating to
allegations or transactions in a criminal, civil, or administrative
hearing; a legislative, administrative, inspector general, or auditor
general report, hearing, audit, or investigation; or from the news
media, the court may award such sums as it considers appropriate, but
in no case more than 10 percent of the proceeds recovered under a
judgment or received in settlement of a claim under this act, taking
into account the significance of the information and the role of the
person bringing the action in advancing the case to litigation.
    (3) If the department does not proceed with an action . . . the
person bringing the action or settling the claim shall receive an
amount which the court decides is reasonable for collecting the civil
                                   8
penalty and damages. The amount shall be not less than 25 percent
and not more than 30 percent of the proceeds recovered under a
judgment rendered in an action under this act or in settlement of a
claim under this act.
....

68.087 Exemptions to Civil Actions.—
 ....
    (3) No court shall have jurisdiction over an action brought under
this act based upon the public disclosure of allegations or transactions
in a criminal, civil, or administrative hearing; in a legislative,
administrative, inspector general, or Auditor General, Chief Financial
Officer, or Department of Financial Services report, hearing, audit, or
investigation; or from the news media, unless the action is brought by
the department, or unless the person bringing the action is an original
source of the information. For purposes of this subsection, the term
“original source” means an individual who has direct and independent
knowledge of the information on which the allegations are based and
has voluntarily provided the information to the department before
filing an action under this act based on the information.
    (4) No court shall have jurisdiction over an action where the
person bringing the action under 68.083(2) is:
    (a) Acting as an attorney for state government; or
    (b) An employee or former employee of state government,
and the action is based, in whole or in part, upon information obtained
in the course or scope of government employment.
....

68.089 Limitation of actions; effect of intervention by
department.— A civil action under this act may not be brought:
   (1) More than 6 years after the date on which the violation . . . is
committed; or
   (2) More than 3 years after the date when facts material to the
right of action are known or reasonably should have been known by
the state official charged with responsibility to act in the
circumstances, but in no event more than 10 years after the date on
which the violation is committed, whichever occurs last.

68.09 Burden of proof.—In any action . . . the State of Florida or
the qui tam plaintiff shall be required to prove all essential elements of
                                    9
      the cause of action, including damages, by a preponderance of the
      evidence.

      68.091 Construction and severability of provisions.—
         (1) This act shall be liberally construed to effectuate its remedial
      and deterrent purposes.

(Emphasis added.)

      From a careful analysis of the plain language of this statute, we can discern

the legislative scheme in toto.     The first overarching statutory interpretation

principle applicable here is that all rights granted under the statute to parties other

than the Attorney General are strictly cabined by the limitations of the statute.

Most importantly for our analysis, there is no common-law right for a relator to file

a qui tam action:

      Qui tam actions appear to have originated around the end of the 13th
      century, when private individuals who had suffered injury began
      bringing actions in the royal courts on both their own and the Crown's
      behalf. See, e.g., Prior of Lewes v. De Holt (1300), reprinted in 48
      Selden Society 198 (1931). Suit in this dual capacity was a device for
      getting their private claims into the respected royal courts, which
      generally entertained only matters involving the Crown's interests. See
      Milsom, Trespass from Henry III to Edward III, Part III: More Special
      Writs and Conclusions, 74 L.Q. Rev. 561, 585 (1958). Starting in the
      14th century, as the royal courts began to extend jurisdiction to suits
      involving wholly private wrongs, the common-law qui tam action
      gradually fell into disuse, although it seems to have remained
      technically available for several centuries. See 2 W. Hawkins, Pleas of
      the Crown 369 (8th ed. 1824).

      At about the same time, however, Parliament began enacting statutes
      that explicitly provided for qui tam suits. These were of two types:
      those that allowed injured parties to sue in vindication of their own
      interests (as well as the Crown's), see, e.g., Statute Providing a
                                          10
Remedy for Him Who Is Wrongfully Pursued in the Court of
Admiralty, 2 Hen. IV, ch. 11 (1400), and—more relevant here—those
that allowed informers to obtain a portion of the penalty as a bounty
for their information, even if they had not suffered an injury
themselves, see, e.g., Statute Prohibiting the Sale of Wares After the
Close of Fair, 5 Edw. III, ch. 5 (1331); see generally Common
Informers Act, 14 & 15 Geo. VI, ch. 39, sched. (1951) (listing
informer statutes). Most, though not all, of the informer statutes
expressly gave the informer a cause of action, typically by bill, plaint,
information, or action of debt. See, e.g., Bill for Leases of Hospitals,
Colleges, and Other Corporations, 33 Hen. VIII, ch. 27 (1541); Act to
Avoid Horse–Stealing, 31 Eliz. I, ch. 12, § 2 (1589); Act to Prevent
the Over–Charge of the People by Stewards of Court–Leets and
Court–Barons, 2 Jac. I, ch. 5 (1604).

For obvious reasons, the informer statutes were highly subject to
abuse, see M. Davies, The Enforcement of English Apprenticeship
58–61 (1956)—particularly those relating to obsolete offenses, see
generally 3 E. Coke, Institutes of the Laws of England 191 (4th ed.
1797) (informer prosecutions under obsolete statutes had been used to
“vex and entangle the subject”). Thus, many of the old enactments
were repealed, see Act for Continuing and Reviving of Divers Statutes
and Repeal of Divers Others, 21 Jac. I, ch. 28, § 11 (1623), and
statutes were passed deterring and penalizing vexatious informers,
limiting the locations in which informer suits could be brought, and
subjecting such suits to relatively short statutes of limitation, see Act
to Redress Disorders in Common Informers, 18 Eliz. I, ch. 5 (1576);
Act Concerning Informers, 31 Eliz. I, ch. 5 (1589); see generally
Davies, supra, at 63–76. Nevertheless, laws allowing qui tam suits by
informers continued to exist in England until 1951, when all of the
remaining ones were repealed. See Note, The History and
Development of Qui Tam, 1972 Wash. U.L.Q. 81, 88, and n.44 (citing
Common Informers Act, 14 & 15 Geo. VI, ch. 39 (1951)).

Qui tam actions appear to have been as prevalent in America as in
England, at least in the period immediately before and after the
framing of the Constitution. Although there is no evidence that the
Colonies allowed common-law qui tam actions (which, as we have
noted, were dying out in England by that time), they did pass several
informer statutes expressly authorizing qui tam suits. See, e.g., Act for
                                   11
      the Restraining and Punishing of Privateers and Pirates, 1st Assembly,
      4th Sess. (N.Y. 1692), reprinted in 1 Colonial Laws of New York 279,
      281 (1894) (allowing informers to sue for, and receive share of, fine
      imposed upon officers who neglect their duty to pursue privateers and
      pirates). Moreover, immediately after the framing, the First Congress
      enacted a considerable number of informer statutes. Like their English
      counterparts, some of them provided both a bounty and an express
      cause of action; others provided a bounty only.

Vermont Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 774-77 (2000)

(holding that qui tam relator had Article III standing and such actions were “cases

and controversies” based on the “nigh conclusive” history).

      Other courts have also recognized that there “‘is presently no common-law

right to bring a qui tam action, which is strictly a creature of statute.’” Stalley ex

rel. U.S. v. Orlando Reg’l Healthcare System, Inc., 524 F.3d 1229, 1233 (11th Cir.

2008) (quoting Stalley v. Catholic Health Initiatives, 509 F.3d 517, 521 (8th Cir.

2007)).

      We thus interpret the issue presented within this context: The Legislature is

the sole authority of all rights granted private relators to file and litigate qui tam

actions.

      Another overarching principle also must guide our interpretation here,

however: The statute must be “liberally construed to effectuate its remedial and

deterrent purposes.” § 68.091, Fla. Stat. (2009). By this legislative directive, we

must interpret the statute in a manner that implements the plain meaning of the

law, while ensuring that any contextual boundaries honor the Legislature’s intent
                                         12
to assure that false claims are vigorously pursued and that the courts do not unduly

interfere with the State’s statutory prerogatives to obtain restitution for its losses

and to punish those persons and entities which seek to wrongfully defraud the State

through double and triple recoveries.       § 68.082, Fla. Stat. (2009).     But this

statement of legislative intent cannot authorize this court to insert new language

into the statute not authorized by the Legislature. Holly v. Auld, 450 So. 2d 217,

219 (Fla. 1984). To “liberally construe” the plain language of the statute, in other

words, we must ensure that our interpretation does no harm to the overall

legislative scheme, which is to remedy wrongs committed against the State when

false claims are filed, but to do so in recognition of the Attorney General’s

extensive control of qui tam litigation and the courts’ responsibility to review

settlements of such claims, regardless of whether the Attorney General participates

in the action. § 68.084(2)(b), Fla. Stat. (2009). We find no cause to describe the

pertinent statutory language as ambiguous; thus, we cannot interpret the statute to

modify any substantive rights defined by the Legislature. Id.

      The statute limits the relator’s rights, which are subject to the express

authority of the Attorney General to control and direct such litigation. §§ 68.083,

68.084, Fla. Stat. (2009). The Attorney General exercises the initial authority to

decide whether to file the action, either on the Attorney General’s own initiative or

after an investigation of a claim filed by the relator. The Attorney General retains

                                         13
the discretionary authority to allow the relator to file the action, but if such is

allowed, the relator cannot voluntarily dismiss an action without the express

consent of the Attorney General. § 68.083, Fla. Stat. (2009). Thus, the Attorney

General controls the power of the relator to end the litigation.

      Further demonstrating the deference to the Attorney General’s authority to

prosecute qui tam claims, the statute provides that no other party may intervene in

an action filed by a relator, except the Attorney General. § 68.083(7), Fla. Stat.

(2009).

          Finally, the statute authorizes the court to allow the Attorney General to

intervene in a qui tam action after a relator has initiated the litigation, but only

upon a showing of “good cause” by the Attorney General. § 68.084(3), Fla. Stat.

(2009). This limitation to intervene is significant. But no such limitation is

imposed on the Attorney General to dismiss an intervenor’s action. § 68.084(2),

Fla. Stat. (2009). In addition, nowhere in the statute is the court authorized to

evaluate or deny the Attorney General’s decision to terminate qui tam litigation.

Thus, the Legislature has determined that when the Attorney General intervenes in

qui tam litigation, the Attorney General must present good cause to justify the

intervention. But the Attorney General’s decision to terminate the litigation is

unlimited by statute. Id.




                                          14
            2. Case Law Interpreting the Federal False Claims Act

      Federal case law interpreting the Federal FCA is persuasive here, as the

Florida Legislature patterned the State’s qui tam statute after the federal law, with

some notable and significant differences discussed below.            See House of

Representatives Committee on Judiciary, “Bill Analysis and Economic Impact

Statement,” Feb. 22, 1994 (“HB 1184 creates Florida’s False Claims Act. The Act

is patterned after the Federal False Claims Act and authorizes the Attorney

General, the Comptroller or private individuals to bring actions on behalf of the

state or its agencies against individuals who have made false claims against the

state.”; “Effect of Proposed Changes: HB 1185 creates Florida’s False Claims Act.

The act is crafted after the Federal False Claims Act . . . .”). However, there are

substantive policy differences embodied in the federal and state laws, most

importantly, that under federal law, the relator is entitled to a hearing before the

government may dismiss an action in which it has declined to intervene. But the

Florida Legislature declined to provide such a procedure to the State qui tam

relator. Cf., § 68.084(2)(a) with 31 U.S.C. § 3730(c)(2)(a). Yet even under the

Federal FCA, which grants relators the right to a hearing, federal courts have

accorded broad authority to the United States to dismiss a federal qui tam action.

      In Kellogg Brown & Root Services v. United States ex rel. Carter, 135 S. Ct.

1970 (2015), Justice Alito, writing for a unanimous United States Supreme Court,

                                         15
described the statutory structure of the Federal False Claims Act as follows:

      In a qui tam suit under the FCA, the relator files a complaint under
      seal and serves the United States with a copy of the complaint and a
      disclosure of all material evidence. § 3730(b)(2). After reviewing
      these materials, the United States may “proceed with the action, in
      which case the action shall be conducted by the Government,” or it
      may “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.” § 3730(b)(4). Regardless of the option that the United
      States selects, it retains the right at any time to dismiss the action
      entirely, § 3730(c)(2)(A), or to settle the case, § 3730(c)(2)(B).

135 S. Ct. at 1973-74 (emphasis added).

      In Ridenour v. Kaiser-Hill Company, LLC., 397 F.3d 925, 932 (10th Cir.

2005), the majority “decline[d] to construe the FCA as requiring intervention for

cause before dismissal because a plain reading of the statute would not require it,

canons of statutory construction do not support such a result, and in our view, such

a reading would render the FCA constitutionally infirm.”         Applying statutory

construction principles, the court found that nothing in the language of the Federal

FCA suggests that the authority of the government to dismiss a qui tam action is

dependent upon prior intervention. Further, the Ridenour court noted that in Swift

v. United States, 318 F.3d 250, 251 (D.C. Cir. 2003), cert. denied, 539 U.S. 944

(2003), the D.C. Circuit also held that the government need not first intervene in a

qui tam action before moving to dismiss and found that intervention was only

necessary if the government wished to “proceed with the action.” The court in

Ridenour found that its holding comported with constitutional concerns, noting the
                                          16
FCA had been challenged several times on the basis that it violated the separation

of powers doctrine. 397 F.3d at 934. The court concluded that “to condition the

Government's right to move to dismiss an action in which it did not initially

intervene upon a requirement of late intervention tied to a showing of good cause

would place the FCA on constitutionally unsteady ground.” Id.

      The Fifth Circuit has also interpreted the Federal FCA in a manner that

would accord great deference to the United States to dismiss a qui tam action,

regardless of whether the government had intervened.             Riley v. St. Luke’s

Episcopal Hosp., 252 F.3d 749 (5th Cir. 2001) (en banc). In Riley, the en banc

court reversed a panel decision which had held that the FCA violated the

separation of powers under the Take Care and Appointments Clauses of Article II

of the United States Constitution by entrusting to a private relator executive

powers belonging solely to the President. In reversing the panel’s decision, the

en banc majority opinion grounded its reasoning on the control the United States

retained over a relator’s litigation, including the power to dismiss the litigation:

      In Searcy v. Phillips Electronics N. Am. Corp., et. al., 117 F. 3d 154
      (5th Cir. 1997), we held that the (federal False Claims Act) clearly
      permits the government to veto settlements by a qui tam plaintiff even
      when it remains passive in the litigation. We cited several ways in
      which the government may assume control over qui tam litigation in
      which it does not intervene under the FCA. . . . This Court also stated
      that the government retains the unilateral power to dismiss an action
      “notwithstanding the objections of the person.”



                                          17
Id. at 753. It is significant that in its en banc decision, the Fifth Circuit addressed

the government’s power to dismiss the relator’s litigation, regardless of whether

the government had intervened, to uphold the FCA’s constitutionality against a

separation of powers challenge. As discussed below, Florida’s explicit and strict

separation of powers requires a similar analysis.

      The Ninth Circuit Court of Appeals reached a similar conclusion in United

States ex rel. Kelly v. The Boeing Company, 9 F.3d 743 (9th Cir. 1993). In

rejecting an argument that the Federal FCA violated the separation of powers

doctrine embedded in the United States Constitution, which as noted below is not

as strict as the provision in the Florida Constitution, the Ninth Circuit stated that it

agreed with the holding in Juliano v. Federal Asset Disposition Association, 736

F. Supp. 348 (D.DC. 1990), aff’d, 959 F.2d 1101 (D.C. Cir. 1992), wherein the

district court “stated that in order to avoid serious constitutional questions . . . it

would interpret the Act’s provision that the ‘Government may dismiss the action

notwithstanding the objections’ of the relator to apply to actions in which the

government had not already intervened.” Kelly, 9 F.3d at 753 n.10 (quoting

Juliano, 736 F. Supp. at 351; emphasis added). The Ninth Circuit commended the

district court’s interpretation and noted that “we believe that the court’s

interpretation . . . is entirely appropriate and provides an illustration of the

meaningful control which the Executive Branch can exercise over qui tam

                                          18
actions.” Id. These decisions provide further support for our holding that the

Attorney General may dismiss a qui tam action, regardless of whether she

intervenes before dismissing the action.

      In our view, the overarching principle at issue in these cases and in the

instant case flows from one fundamental fact: The relator is only the assignee of

the government under both statutes, despite the federal law’s broader language

allowing the relator to demand a hearing where the government seeks to dismiss.

      We find that the decision in United States ex rel. Eisenstein v. City of New

York, 556 U.S. 928, 932-33 (2009), does not compel a different result. In

Eisenstein, the Court was presented with the question of whether the United States

was a party to a qui tam action, when the government had declined to intervene;

the relator filed the notice of appeal 54 days after its claim was dismissed by the

district court, seeking to vicariously utilize the government’s statutory authority to

file a notice of appeal within 60 days. The relator asserted the government was a

“party” as defined by the applicable federal rules, notwithstanding the United

States’ decision declining to intervene. The United States Supreme Court rejected

the relator’s argument. Id. at 932-33.

      We do not think Eisenstein compels a contrary holding in this case for two

reasons.   First, that decision did not specifically address the question here:

Whether the United States, under the FCA, could indeed dismiss a relator’s qui tam

                                           19
suit, notwithstanding the relator’s objections. Second, the relevant language in

Eisenstein that would support Appellant’s position here cannot be logically

reconciled with the Supreme Court’s later language in Kellogg Brown that

“regardless of the option” the United States pursues regarding intervention, “it

retains the right at any time to dismiss the action entirely.” Kellogg Brown, 135

S. Ct. at 1973-74.

      Our view regarding the United States Supreme Court’s statements on the

government’s dismissal authority in qui tam litigation is consistent with other

federal courts interpreting Eisenstein. In United States ex rel. Schweizer v. Océ

N.V,, 677 F.3d 1228, 1233 (D.C. Cir. 2012), for example, an employee sued her

former employer under the FCA and retaliation provisions, but the government

moved to dismiss the qui tam claims after reaching a settlement agreement with the

employer. Id. at 1229. The district court granted the motion, over Schweizer’s

objection. Id. The opinion notes that the government declined to intervene in the

qui tam action, but “remained an active participant in settlement discussions.” Id.

at 1231. The employer and the government reached an agreement to dispose of the

qui tam counts without Schweizer’s further involvement. Id. at 1231-32. The

government filed its notice of intervention and corresponding motion to dismiss.

Id. Schweizer opposed the settlement and motion to dismiss, asserting that the

settlement understated the employer’s actions and could not satisfy the criteria

                                        20
under section 3730(c)(2)(B) that allowed the government to “settle [a qui tam]

action . . . notwithstanding the objections of the person initiating the action if the

court determines, after a hearing, that the proposed settlement is fair, adequate, and

reasonable under all the circumstances.” § 3730(c)(2)(B).

      The government had two responses, asserting first that the district court

could dismiss the two counts, over Schweizer’s objection, pursuant to section

3730(c)(2)(A) without reviewing the settlement, as it allowed the government to

dismiss over the objections of the relator if the relator has been notified and given

an opportunity for a hearing on the motion to dismiss. Id. at 1232.

      In its analysis, the Court of Appeals stated in Schweizer:

      As a preliminary matter, Schweizer claims the government may not
      invoke § 3730(c)(2)(A) because it never properly intervened in the
      case. She points out that the Act prescribes only two ways for the
      government to intervene: during an initial sixty-day window (subject
      to extension by the district court), § 3730(b)(4); or ‘at a later date
      upon a showing of good cause,’ § 3730(c)(3). Because the
      government declined to intervene during the initial sixty-day period,
      and did not invoke subsection (c)(3) or show good cause in its later
      filing, it never became a party to the suit. Thus, Schweizer concludes,
      the government could not properly move for dismissal.

      Schweizer's view of the Act's intervention provisions is not accurate.
      Intervention is necessary “only if the government wishes to ‘proceed
      with the action.’” Swift [v. United States, 318 F.3d 250, 251 (D.C. Cir.
      2003)] (quoting 31 U.S.C. § 3730(b)(2) & (b)(4)(A)). Here, the
      government did not seek to proceed with the qui tam portion of the
      case; it sought to end it. It follows that the government did not have to
      intervene before filing its motion. Swift, 318 F.3d at 251–52. Nothing
      in United States ex rel. Eisenstein v. City of New York, 556 U.S. 928,
      129 S.Ct. 2230, 173 L.Ed.2d 1255 (2009), which addressed the
                                         21
      government's party status for purposes of the Federal Rules of
      Appellate Procedure, is to the contrary. Nor does it matter that the
      government moved to dismiss outside the initial sixty-day intervention
      period. See [United States ex rel. Hoyte v. Am. Nat'l Red Cross, 518
      F.3d 61, 63-65 (D.C.Cir.2008)].

Id. at 1233.

           3. The Status of the Attorney General in Qui Tam Actions

      Under the Florida FCA, the Attorney General is the real party in interest

with the substantive authority to dismiss the action regardless of her prior

intervention the suit. This conclusion is based on the statutory provisions discussed

above. As the real party in interest, the Attorney General possesses the sole

substantive power of dismissal; the relator is and always remains an assignee of the

State’s substantive right to prosecute a qui tam action, albeit an assignee with some

procedural prerogatives strictly defined by positive law and in no manner arising

out of a common law or constitutional substantive ground.

      The Attorney General’s authority to dismiss a relator’s suit under section

68.084(2)(a), Florida Statutes, is substantive:

             Substantive law has been defined as that part of the law which
      creates, defines and regulates rights, or that part of the law which
      courts are to administer. It includes those rules and principles which
      fix and declare the primary rights of individuals with respect towards
      their persons and property. On the other hand, practice and procedure
      “encompasses the course, form, manner, means, method, mode, order,
      process or steps by which a party enforces substantive rights or
      obtains redress for their invasion. ‘Practice and procedure’ may be
      described as the machinery of the judicial process as opposed to the

                                          22
      product thereof.” It is the method of conducting litigation involving
      rights and corresponding defenses.

Abdool v. Bondi, 141 So. 3d 529, 538-40 (Fla. 2014) (emphasis in original)

(quoting Massey v. David, 979 So. 2d 931, 936-37 (Fla. 2008)).

      Here, the dismissal provision is a substantive law, because it defines and

creates the property right to maintain a qui tam action. See Adhin v. First Horizon

Home Loans, 44 So. 3d 1245 (Fla. 5th DCA 2010). In Adhin, the Fifth District

held that a statute requiring holders of unrecorded property interests to intervene

within 20 days after the recording of a lis pendens was constitutional, because the

statute primarily affected substantive property rights, not procedural rights,

essentially creating a “nonclaim” statute and a statute of repose; thus, the statute

directly created or eliminated property rights. Here, the qui tam statute clearly

creates, defines and limits substantive rights possessed by the State to maintain a

qui tam suit in which damages may be obtained. Thus, the State’s authority to

terminate the action is substantive.

      To the extent the Florida Rules of Civil Procedure might conflict with

section 68.084(2)(a) regarding the party status of the Attorney General, the Rules

of Civil Procedure must yield, as only the Florida Legislature can define

substantive law under Florida’s strict separation of powers requirement. Art. II,

§ 3, Fla. Const.; Abdool, 141 So. 3d at 538.


                                        23
      Before addressing the other constitutional principles relevant here, we note

that federal courts have also acknowledged that to interpret the Federal FCA in a

manner to impede the Executive Branch’s control over the litigation would place

that statute on unsteady constitutional terra firma. In Ridenour, the court noted

that, in United States ex rel. Stone v. Rockwell International Corp., 282 F.3d 787

(10th Cir. 2002), it had previously reserved the question of whether the qui tam

provision would pass constitutional muster if the government was denied

intervention for cause, as the government in Stone had successfully intervened,

showing good cause. Ridenour, 397 F.3d at 934. The Ridenour court, analyzing

its prior opinion in Stone, noted that Stone cited favorably to decisions from other

circuits that had found the Federal FCA as “constitutionally sound as long as it is

interpreted as vesting in the Executive Branch sufficient control over qui tam

actions so there is no violation of its duty to enforce the laws of the land.” Id.

      The Ridenour majority, however, did not rule on the constitutionality of the

issue by construing the statute in such a way that the constitutionality question

could be avoided, and noted that if the government’s right to dismiss when it

intervened at a later date was tied to a showing of good cause, such an

interpretation would place the FCA on “constitutionally unsteady ground.” Id.

Significantly, the majority opinion in Ridenour rejected the dissenting opinion’s




                                          24
view that the government would be required to intervene on a showing of “good

cause,” before it could be allowed to dismiss the action.

                 4. Interpreting the Florida False Claims Act
                 Consistent With Article II, Section Three and
              Article IV, Section Four of the Florida Constitution

      The Florida Constitution imposes a strict, explicit and textual separation of

powers requirement on all three branches of state government:

      Branches of government.—The powers of the state government
      shall be divided into legislative, executive and judicial branches. No
      person belonging to one branch shall exercise any powers
      appertaining to either of the other branches unless expressly provided
      herein.

Art. II, § 3, Fla. Const. (emphasis added). It would be hard to compose a more

demanding requirement in organic law than this, which not only requires an

explicit separation of the legislative, judicial and executive powers, but specifies

that no one governmental official is to exercise “any” power “appertaining to either

of the other branches.” By comparison, the United States Supreme Court has

described the separation of powers federal constitutional doctrine in less

comprehensive terms, stating that “the Constitution by no means contemplates total

separation” of the three branches of government. Buckley v. Valeo, 424 U.S. 1

(1976).

      In contrast, the Florida Supreme Court has recognized and held that

Florida’s superior organic law imposes a more vigorous separation of powers

                                         25
constitutional requirement than does the federal constitution. B.H. v. State, 645

So. 2d 987 (Fla. 1994).      This principle becomes even more significant in

considering that federal courts have recognized that even under the United States

Constitution, there exist separation-of-power concerns where a qui tam plaintiff’s

assertions may jeopardize the government’s exercise of its executive powers.

      In B.H., the Florida Supreme Court addressed a statute that purported to

authorize an administrative agency to define the elements of the crime of escape

committed by a juvenile offender. The Court stated the following regarding the

State’s more stringent separation of powers requirement:

      We now turn to Florida law on the same question [of the
      nondelegation doctrine]. Any discussion must begin by noting several
      special features of the state Constitution, which we are required to
      honor under the doctrine of primacy notwithstanding less stringent
      federal law. Traylor v. State, 596 So. 2d 957 (Fla. 1992). . . .

      The prohibition contained in the second sentence of Article II, section
      3 of the Florida Constitution could not be plainer, as our cases clearly
      have held. This Court has stated repeatedly and without exception
      that Florida’s Constitution absolutely requires a ‘strict’
      separation of powers. Cases on this point are numerous . . . .

      ...

      Moreover, unlike the apparent federal approach, Florida has not relied
      on implied powers, arguments of experience or necessity, or any
      penumbral theory in gauging the contours of the separation of powers
      . . . given to different branches of government. What the
      Constitution’s plain language says on this subject is what the courts
      of Florida enforce. If a statute purports to give one branch powers
      textually assigned to another by the Constitution, then that statute is
      unconstitutional.
                                        26
645 So. 2d at 991-92 (emphasis added). It is in this context that we must resolve

the issue sub judice.

       To answer the question of how the statute comports with the separation of

powers, we must turn to the powers at issue. Florida’s organic law entrusts in the

article defining the “Executive,” the designation of the Attorney General as the

state’s “chief legal officer.” Art. IV, § 4(b), Fla. Const. In addition, the Attorney

General serves as one of three members of the Cabinet. Art. IV, § 4(a), Fla. Const.

The Attorney General is one of three officers of the Executive who serves, with the

Governor as chair, on the State Board of Administration. Art. IV, § 4(d), Fla.

Const. Thus, in the plain, textual organic law, the Attorney General possesses the

State’s executive authority to serve as the State’s chief legal officer.

       In addition, under general law, the Attorney General “[s]hall appear in and

attend to, in behalf of the state, all suits or prosecutions, civil or criminal or in

equity, in which the state may be a party, or in anywise interested, in the Supreme

Court and district courts of appeal of this state [and shall] appear and attend to such

suits or prosecutions in any other of the courts of this state . . . .” § 16.01(4) & (5),

Fla. Stat.

       The organic and statutory law are not the only sources of authority of the

Attorney General; the common law provides the Attorney General the authority to

intervene in matters of “compelling public interest,” as recognized by the Florida
                                           27
Supreme Court in State ex rel. Shevin v. Yarborough, 257 So. 2d 891, 893-94 (Fla.

1972), when it noted that “[t]he Attorney General inherited many powers and

duties from the King’s Counsellor at Common Law,” while acknowledging that

this common-law authority is subject to legislative definitions of the “outer

perimeter” of the Attorney General’s authority.          Here, the Legislature has

specifically authorized the Attorney General to control the contours of qui tam

litigation, subject to the authority of the judicial branch to approve settlements, but

not to disapprove the Attorney General’s decision to dismiss such suits.

        In Bondi v. Tucker, 93 So. 3d 1106 (Fla. 1st DCA 2012), a case not

involving the qui tam statute, this court held that unless the Attorney General

intervened in a civil action below, she could not appeal that final decision. But

those are not the facts here. Here, the Attorney General exercised her authority

under the plain language of the qui tam statute to terminate qui tam litigation in the

circuit court. Litigation of a qui tam suit is, by its very definition under Florida

law, an action “brought in the name of the state.” In Bondi, this court recognized

the Attorney General’s broad authority to act on matters involving the State’s legal

interests: “We recognize that the ‘office of the Attorney-General is a public trust

. . . [and that s]he has been endowed with a large discretion . . . in . . . matters of

public concern,’ State v. Gleason, 12 Fla. 190 (Fla. 1868), and acknowledge and

affirm the Attorney General’s ‘discretion to litigate, or intervene in, legal matters

                                          28
deemed by him [or her] to involve the public interest . . . and [that] his [or her]

standing . . . can not be challenged or adjudicated.’” Id. at 1109 (quoting Shevin,

257 So. 2d at 895).

       Conducting and terminating legal actions brought in the name of and for the

benefit of the State is the sine qua non of the State’s chief legal officer.

§ 68.083(2), Fla. Stat. (2009) (“Civil actions instituted under this act shall be

governed by the Florida Rules of Civil Procedure and shall be brought in the

name of the State of Florida.” (emphasis added)). A State’s chief legal officer

without the authority to conduct the State’s litigation would be no legal officer at

all.

       In addition to this logical fact, the Attorney General of Florida is invested

with several powers of the Executive Branch; thus, she is far more than only the

State’s chief legal officer. See Thompson v. Wainwright, 714 F.2d 1495, 1500-

1501 (11th Cir. 1983):

              By Florida judicial decisions, the grant of specific state powers
       to the attorney general does not deprive [her] of the powers belonging
       to [her] under the common law, which include prosecuting ‘all actions
       necessary for the protection and defense of the property and revenue
       of the state. . .’ State ex rel. Landis v. S.H. Kress & Co., 115 Fla. 189,
       155 So. 823, 827 (1934). Also, “it is [her] duty, in the absence of
       express legislative restrictions to the contrary, to exercise all such
       power and authority as public interests may require from time to
       time.” Id. Moreover, in Florida the office of attorney general is in
       many respects judicial in character, and [she] is clothed with
       considerable discretion. Id. 155 So. at 828.

                                          29
             The attorney general’s authority runs beyond responsibility to
      the government qua government. [She] is responsible to the
      people. . . . “The Attorney General is the principal law officer of the
      state.” Id. 126 So. at 377.

             We conclude that under these powers granted by the Florida
      common law, statutes and case law, the state’s attorney general had
      the authority to expressly waive exhaustion of state remedies so that
      all claims could be presented and decided in one federal proceeding.
      Florida law gives the attorney general authority to waive exhaustion
      whether exhaustion, as we hold, promotes the interests of the state as
      sovereign or, as some other courts have held, promotes only the
      interests of state courts. . . . We hold that, as far as state law is
      concerned, the attorney general had authority to speak for the interests
      of state courts and judges as well as the other instrumentalities of
      Florida state sovereignty. We believe that if the Florida courts were
      presented with these same questions they would reach the same
      conclusions.

(Emphasis added.)

      Thus, we hold that under the relevant and plain language of the Florida FCA,

the constitutional authority of the executive branch vested in the Attorney General

of the State of Florida to act as the State’s chief legal officer, and the very nature of

a qui tam suit, the statute is correctly interpreted to authorize the Attorney General

to dismiss a relator’s qui tam action, regardless of whether the Attorney General

has previously intervened in the action.

                                      Conclusion

      The voluntary dismissal by the Attorney General in this case was not subject

to challenge by Appellant. Thus, the trial court’s decision terminating proceedings

in this matter was correct; the court properly ruled that it was divested of
                                           30
jurisdiction when the Attorney General dismissed the action, properly recognizing

that the Attorney General “had the authority to file a voluntary dismissal

notwithstanding any objections of the Relator pursuant to Section 68.084(2),

Florida Statutes.”

      AFFIRMED.

ROBERTS, C.J., and RAY, J., CONCUR.




                                       31
