                             PUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                            No. 15-2145


UNITED STATES OF AMERICA ex rel. BRIANNA MICHAELS AND AMY
WHITESIDES,

               Plaintiffs – Appellants,

          v.

AGAPE SENIOR COMMUNITY, INC.; AGAPE SENIOR PRIMARY CARE,
INC.; AGAPE SENIOR SERVICES, INC.; AGAPE SENIOR, LLC; AGAPE
MANAGEMENT SERVICE, INC.; AGAPE COMMUNITY HOSPICE, INC.;
AGAPE NURSING AND REHABILITATION CENTER, INC., d/b/a Agape
Rehabilitation of Rock Hill, a/k/a Agape Senior Post Acute
Care Center-Rock Hill, a/k/a Ebenezer Senior Services, LLC;
AGAPE SENIOR FOUNDATION, INC.; AGAPE COMMUNITY HOSPICE OF
ANDERSON, INC.; AGAPE HOSPICE OF THE PIEDMONT, INC.; AGAPE
COMMUNITY HOSPICE OF THE GRAND STRAND, INC.; AGAPE
COMMUNITY HOSPICE OF THE PEE DEE, INC.; AGAPE COMMUNITY
HOSPICE OF THE UPSTATE, INC.; AGAPE HOSPICE HOUSE OF HORRY
COUNTY, INC.; AGAPE HOSPICE HOUSE OF LAURENS, LLC; AGAPE
HOSPICE HOUSE OF THE LOW COUNTRY, INC.; AGAPE HOSPICE HOUSE
OF THE PIEDMONT, INC.; AGAPE REHABILITATION OF CONWAY,
INC.;  AGAPE   SENIOR   SERVICES  FOUNDATION,  INC.;  AGAPE
THERAPY, INC.; AGAPE HOSPICE; HOSPICE PIEDMONT; HOSPICE
ROCK HILL; CAROLINAS COMMUNITY HOSPICE, INC.,

               Defendants – Appellees,

          v.

UNITED STATES OF AMERICA,

               Party-in-Interest – Appellee.

--------------------------------
SAVASENIORCARE   ADMINISTRATIVE   SERVICES,  LLC; AMERICAN
HEALTH CARE ASSOCIATION; AMERICAN HOSPITAL ASSOCIATION;
CATHOLIC HEALTH ASSOCIATION OF THE UNITED STATES,

               Amici Supporting Defendants – Appellees.



                             No. 15-2147


UNITED STATES OF AMERICA ex rel. BRIANNA MICHAELS AND AMY
WHITESIDES,

               Plaintiffs,

          v.

AGAPE SENIOR COMMUNITY, INC.; AGAPE SENIOR PRIMARY CARE,
INC.; AGAPE SENIOR SERVICES, INC.; AGAPE SENIOR, LLC; AGAPE
COMMUNITY HOSPICE, INC.; AGAPE NURSING AND REHABILITATION
CENTER, INC., d/b/a Agape Rehabilitation of Rock Hill,
a/k/a Agape Senior Post Acute Care Center-Rock Hill, a/k/a
Ebenezer Senior Services, LLC; AGAPE MANAGEMENT SERVICE,
INC.; AGAPE COMMUNITY HOSPICE OF ANDERSON, INC.; AGAPE
HOSPICE OF THE PIEDMONT, INC.; AGAPE SENIOR FOUNDATION,
INC.; AGAPE COMMUNITY HOSPICE OF THE PEE DEE, INC.; AGAPE
COMMUNITY HOSPICE OF THE UPSTATE, INC.; AGAPE COMMUNITY
HOSPICE OF THE GRAND STRAND, INC.; AGAPE HOSPICE HOUSE OF
LAURENS, LLC; AGAPE HOSPICE HOUSE OF THE LOW COUNTRY, INC.;
AGAPE   HOSPICE  HOUSE   OF   HORRY   COUNTY,  INC.;  AGAPE
REHABILITATION OF CONWAY, INC.; AGAPE SENIOR SERVICES
FOUNDATION, INC.; AGAPE HOSPICE HOUSE OF THE PIEDMONT,
INC.; AGAPE HOSPICE; HOSPICE PIEDMONT; AGAPE THERAPY, INC.;
CAROLINAS COMMUNITY HOSPICE, INC.; HOSPICE ROCK HILL,

               Defendants – Appellants,

          v.

UNITED STATES OF AMERICA,

               Party-in-Interest – Appellee.

--------------------------------



                                   2
SAVASENIORCARE   ADMINISTRATIVE   SERVICES,  LLC; AMERICAN
HEALTH CARE ASSOCIATION; AMERICAN HOSPITAL ASSOCIATION;
CATHOLIC HEALTH ASSOCIATION OF THE UNITED STATES,

                Amici Supporting Defendants – Appellants.



Appeals from the United States District Court for the District
of South Carolina, at Rock Hill.      Joseph F. Anderson, Jr.,
Senior District Judge. (0:12-cv-03466-JFA)


Argued:   October 26, 2016             Decided:   February 14, 2017


Before KING, KEENAN, and DIAZ, Circuit Judges.


Affirmed in part and dismissed in part by published opinion.
Judge King wrote the opinion, in which Judge Keenan and Judge
Diaz joined.


ARGUED: Mario A. Pacella, STROM LAW FIRM, Columbia, South
Carolina, for Appellants. William Walter Wilkins, NEXSEN PRUET,
LLC, Greenville, South Carolina, for Appellees.      Charles W.
Scarborough, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee United States of America.      ON BRIEF: T.
Christopher Tuck, Catherine H. McElveen, Mt. Pleasant, South
Carolina,   Daniel  Haltiwanger,  Terry   E.  Richardson,   Jr.,
RICHARDSON, PATRICK, WESTBROOK & BRICKMAN, LLC, Barnwell, South
Carolina; Christy M. DeLuca, CHRISTY DELUCA, LLC, Mt. Pleasant,
South Carolina; Jessica H. Lerer, STROM LAW FIRM, Columbia,
South Carolina, for Appellants. Deborah B. Barbier, DEBORAH B.
BARBIER ATTORNEY AT LAW, Columbia, South Carolina; Kirsten E.
Small, Mark C. Moore, William C. Lewis, NEXSEN PRUET, LLC,
Greenville,   South  Carolina,   for  Appellees   Agape   Senior
Community, Inc., et al.    Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Michael S. Raab, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; William
N. Nettles, United States Attorney, Elizabeth C. Warren,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee United States
of America.    James F. Segroves, Kelly A. Carroll, David J.
Vernon, HOOPER, LUNDY & BOOKMAN, PC, Washington, D.C., for
Amicus SavaSeniorCare Administrative Services, LLC.      Melinda

                                 3
Reid Hatton, Maureen Mudron, AMERICAN HOSPITAL ASSOCIATION,
Washington, D.C.; Lisa Gilden, THE CATHOLIC HEALTH ASSOCIATION
OF THE UNITED STATES, Washington, D.C.; Jessica L. Ellsworth,
Washington, D.C., Thomas P. Schmidt, HOGAN LOVELLS US LLP, New
York, New York, for Amici American Hospital Association and
Catholic Health Association of the United States.       Colin E.
Wrabley, M. Patrick Yingling, REED SMITH, LLP, Pittsburgh,
Pennsylvania, for Amicus American Health Care Association.




                               4
KING, Circuit Judge:

      In this qui tam action under the False Claims Act (the

“FCA”), defendant Agape Senior Community, Inc., and the twenty-

three other      defendants    (collectively,            “Agape”)    are    affiliated

entities   that    operate    elder     care      facilities       throughout    South

Carolina. 1     The relators, Brianna Michaels and Amy Whitesides,

are former Agape employees who allege that Agape fraudulently

billed    Medicare   and     other    federal       health    care    programs      for

services   to    thousands    of     patients      —     services    that    were   not

actually provided, or that were provided to patients who were

not   eligible    for   them.         The       United    States    Government      was

entitled, but declined, to intervene.

      To establish liability and damages, the relators sought to

rely on statistical sampling.                   The district court determined,

however, that using statistical sampling to prove their case

      1 In addition to Agape Senior Community, Inc., the
defendants are Agape Senior Primary Care, Inc.; Agape Senior
Services, Inc.; Agape Senior, LLC; Agape Management Service,
Inc.;   Agape  Community  Hospice,  Inc.;   Agape  Nursing  and
Rehabilitation Center, Inc.; Agape Senior Foundation, Inc.;
Agape Community Hospice of Anderson, Inc.; Agape Hospice of the
Piedmont, Inc.; Agape Community Hospice of the Grand Strand,
Inc.; Agape Community Hospice of the Pee Dee, Inc.; Agape
Community Hospice of the Upstate, Inc.; Agape Hospice House of
Horry County, Inc.; Agape Hospice House of Laurens, LLC; Agape
Hospice House of the Low Country, Inc.; Agape Hospice House of
the Piedmont, Inc.; Agape Rehabilitation of Conway, Inc.; Agape
Senior Services Foundation, Inc.; Agape Therapy, Inc.; Agape
Hospice; Hospice Piedmont; Hospice Rock Hill; and Carolinas
Community Hospice, Inc.



                                            5
would     be     improper    (the    “statistical        sampling   ruling”).

Additionally, the court rejected a proposed settlement between

the   relators     and   Agape,   because   the   Attorney   General   of   the

United States objected to it.          In so doing, the court concluded

that the Government — despite not having intervened in an FCA

qui tam action — possesses an unreviewable veto authority over

the     action’s    proposed      settlement      (the   “unreviewable      veto

ruling”).

      The district court certified both its statistical sampling

and unreviewable veto rulings for these interlocutory appeals

under 28 U.S.C. § 1292(b).          We thereafter granted the petitions

for permission to appeal submitted to this Court by the relators

(seeking an appeal from both rulings) and by Agape (requesting

an appeal from the unreviewable veto ruling only).              As explained

below, we affirm the unreviewable veto ruling and dismiss as

improvidently granted the relators’ appeal as to the statistical

sampling ruling.



                                      I.

                                      A.

      The FCA, codified at 31 U.S.C. §§ 3729-3733, authorizes a

private individual (i.e., a relator) to initiate and pursue an

action in the name of the United States Government (a qui tam

action) to seek civil remedies for fraud against the Government.

                                       6
See 31 U.S.C. § 3730(b)(1).                     Pursuant to § 3730(b)(1), the qui

tam “action may be dismissed only if the court and the Attorney

General give written consent to the dismissal and their reasons

for consenting.”

       At     the    outset       of    the       qui    tam     action,      the    relator’s

complaint must be served on the Government, filed in camera, and

kept under seal for at least sixty days, with no service of

process on the defendant until the court so orders.                                     See 31

U.S.C.      § 3730(b)(2).              During      the      sixty-day      period    after   it

receives the complaint, the Government may elect to intervene in

the qui tam action.            Id.       Specifically, before the expiration of

the    sixty-day          period       —     or       any      extension      thereof    under

§ 3730(b)(3) — the Government must either (A) “proceed with the

action”     by      assuming      primary         responsibility        for    the    action’s

prosecution, or (B) “notify the court that it declines to take

over the action” from the relator, who will then “have the right

to    conduct       the   action.”           Id.      § 3730(b)(4)(A)-(B).              If   the

Government declines to intervene during the initial sixty-day

(or   extended)       period,      the      court        may    nevertheless        permit   its

intervention “at a later date upon a showing of good cause.”

Id. § 3730(c)(3).

       Once    the    Government           intervenes,         the   relator    retains      the

right to continue as a party to the action, subject to certain

limitations.          See    31    U.S.C.       § 3730(c)(1).           For    example,      the

                                                  7
Government is authorized to settle the action over the relator’s

objection, but only “if the court determines, after a hearing,

that the proposed settlement is fair, adequate, and reasonable

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

      When   the   qui     tam    action    is    successful,      the   relator    is

entitled to share with the Government in the award.                            See 31

U.S.C.   § 3730(d)(1)-(4).           The    amount      of   the   relator’s    share

depends on whether the Government intervened in the action.                         If

the   Government     did    not    intervene,         “the   person   bringing     the

action or settling the claim shall receive an amount which the

court decides is reasonable for collecting the civil penalty and

damages.”    Id. § 3730(d)(2) (specifying that such “amount shall

be not less than 25 percent and not more than 30 percent of the

proceeds of the action or settlement”).

                                           B.

      Here, the relators served their initial Complaint on the

Government and, on December 7, 2012, filed it under seal in the

District of South Carolina.                The district court extended the

Government’s deadline for its intervention decision to March 5,

2013.    By its notice of that date, the Government declined to

intervene    but    called       attention       to   the    consent-for-dismissal

provision    of    § 3730(b)(1),      requesting         that   the   relators     and

Agape    solicit   the     Attorney    General’s        written    consent     before

asking the court to rule on any proposed dismissal.                        Two days

                                           8
later, on March 7, 2013, the court unsealed the Complaint and

directed the relators to serve it on Agape.

       The relators filed their operative Second Amended Complaint

on March 6, 2014, and discovery ensued. 2                     Although the relators

and    Agape     dispute       the     exact   numbers,   they   agree    that   Agape

admitted more than 10,000 patients to its facilities in South

Carolina and submitted more than 50,000 claims to federal health

care programs during the relevant time period.                           The relators

sought to use statistical sampling to prove their case in order

to avoid the cost of reviewing each patient’s chart to identify

which claims were fraudulent — a task that the relators said

would take their experts four to nine hours per patient, at a

rate       of   $400    per    hour,    potentially     totalling   more    than   $36

million.        For its part, Agape opposed the use of any evidentiary

form of statistical sampling.                  Thus, the district court received

briefing and conducted a hearing on the issue.                           By Order of

March 16, 2015, the court made its statistical sampling ruling

“that      based   on    the    facts     of   this   case,   statistical    sampling

would be improper.”             See United States ex rel. Michaels v. Agape




       2
       Like the initial Complaint, the Second Amended Complaint
alleges claims under not only the FCA, but also the Anti-
Kickback Statute, 42 U.S.C. § 1320a-7b, and the Health Care
Fraud Statute, 18 U.S.C. § 1347.



                                               9
Senior Cmty., Inc., No. 0:12-cv-03466, at 2 (D.S.C. Mar. 16,

2015), ECF No. 255 (the “March 2015 Order”).

      Meanwhile,      the    relators,        Agape,     and    the    Government      had

mediated unsuccessfully in November 2014, and the relators and

Agape had mediated again — without the Government’s knowledge —

in January 2015.          The proposed settlement between the relators

and   Agape     emerged      from   the      second      mediation.          Relying    on

§ 3730(b)(1),       the   Attorney      General       objected        to   the   proposed

settlement.        The Government has not, however, sought permission

pursuant   to      § 3730(c)(3)        to   intervene      in    this      action,   thus

standing      by   its    initial      decision     under       § 3730(b)(2)-(4)        to

decline intervention.

      In   objecting        to   the    proposed       settlement,         the   Attorney

General    protested        in   part       that   the    settlement        amount     was

appreciably less than $25 million, the Government’s estimate of

total damages based on its own use of statistical sampling.                            The

various bases for the Attorney General’s objection were stated

and discussed during a series of status conferences conducted by

the district court in an effort to determine if this action

could be settled. 3



      3 To protect the confidentiality of the settlement
negotiations, the district court sealed transcripts and other
documents in which details of the proposed settlement were
revealed.   We thus do not specify herein the amount of the
(Continued)
                                             10
      Agape eventually filed a motion to enforce the proposed

settlement    over    the   Attorney        General’s     objection,    and    the

Government filed a response opposing that motion.                    By Order of

June 25, 2015, the district court rendered its unreviewable veto

ruling and thereby sustained the Attorney General’s objection to

the proposed settlement.         See United States ex rel. Michaels v.

Agape Senior Cmty., Inc., No. 0:12-cv-03466 (D.S.C. June 25,

2015), ECF No. 296 (the “June 2015 Order”).                   The June 2015 Order

also expounded on the statistical sampling ruling that had been

made in the March 2015 Order.          Additionally, the June 2015 Order

certified sua sponte both the unreviewable veto and statistical

sampling rulings for these interlocutory appeals under 28 U.S.C.

§ 1292(b).

      The district court prefaced its analysis in the June 2015

Order with a description of the “unique dilemma” that it faced:

      The Government, claiming an unreviewable veto right
      over the tentative settlement in this case, objects to
      a settlement in a case to which it is not a party,
      using as a basis of its objection some form of
      statistical sampling that this Court has rejected for
      use at the trial of the case.

See   June   2015   Order   6.    In   rendering        its    unreviewable   veto

ruling, the district court rejected the argument supporting the




proposed settlement or the Attorney General’s other grounds for
objection.



                                       11
proposed settlement that the relators and Agape jointly advanced

in reliance on the Ninth Circuit’s decision in United States ex

rel.   Killingsworth       v.      Northrop      Corp.,     25   F.3d       715    (9th     Cir.

1994).       Their    argument      was   that,       because     the       Government       had

declined to intervene herein, the Attorney General’s objection

to the proposed settlement was subject to the district court’s

reasonableness review.              The district court instead agreed with

the Government — as well as the Fifth Circuit in Searcy v.

Philips Electronics North America Corp., 117 F.3d 154 (5th Cir.

1997),     and     the   Sixth      Circuit      in     United        States      v.     Health

Possibilities, P.S.C., 207 F.3d 335 (6th Cir. 2000) — that the

Attorney General possesses an absolute veto power over voluntary

settlements in FCA qui tam actions.                    In so ruling, the district

court explained that it was adhering to the plain language of 31

U.S.C.     § 3730(b)(1),         which    “provides         no    limitation           on    the

Attorney     General’s     authority,         and     no    right      of    [a    court]     to

review    the      Attorney     General’s       objection        for    reasonableness.”

See June 2015 Order 6-7.

       Nevertheless, the district court noted that, if it “did

have   the    authority       to    review      an    objection        by    the       Attorney

General      for     reasonableness        in     a    case      of    this       nature,     a

compelling       case    could      be    made       here   that       the     Government’s

position is not, in fact, reasonable.”                      See June 2015 Order 10.

Such a compelling case would include that the relators “could be

                                            12
looking at an expenditure of between $16.2 million and $36.5

million    in    pretrial       preparation       alone     for    a    case     that    the

Government values at $25 million.”                 Id. at 11.          Moreover, as the

court    observed,      although        “the     Government       has       admitted    that

statistical sampling of the entire universe of claims played a

major part in its calculation of the value of this case,” it

resisted     (with       the     court’s       reluctant      approval)         discovery

requests seeking specific details about its calculation.                             Id. at

12.

      Turning     to    its     earlier    statistical       sampling         ruling,     the

district court spelled out its rationale for concluding that it

would be improper to use statistical sampling evidence to prove

the     relators’      case.          In   sum,     the     court       explained       that

statistical sampling can be appropriate “where the evidence has

dissipated, thus rendering direct proof of damages impossible.”

See June 2015 Order 13-14 (citing example of FCA qui tam action

where     defendant         allegedly      defrauded        Government         in      moving

household       belongings       of    military        personnel       by     artificially

bumping    weight      of    shipments     that    had     since    been       completed).

Here, however, “nothing has been destroyed or dissipated . . . .

The patients’ medical charts are all intact and available for

review by either party.”              Id. at 14.

      Finally,         in      certifying        its      unreviewable          veto     and

statistical      sampling       rulings    for    these     interlocutory           appeals,
                                            13
the district court observed that the relators and Agape “face a

trial of monumental proportions, involving a staggering outlay

of expenses by the [relators] and a significant drain of [court]

resources.”        See June 2015 Order 18.           The court deemed it to “be

much more judicially efficient to have a ruling on both of the

questions before, rather than after, such a monumental trial.”

Id.   Echoing the requirements of 28 U.S.C. § 1292(b), the court

also stated that each ruling involves “a controlling question of

law as to which there is substantial ground for difference of

opinion,     and    that   an   immediate        appeal    . . .   may   materially

advance the ultimate termination of this litigation.”                       Id. at

19.       Because we granted the relators’ and Agape’s subsequent

petitions     for    permission       to   appeal,    we   possess   jurisdiction

pursuant to § 1292(b). 4



                                           II.

                                           A.

      We    first    assess     the   district     court’s    unreviewable    veto

ruling.     Because the interpretation of 31 U.S.C. § 3730 presents

      4Briefs were separately filed in these appeals by the
relators (challenging both the unreviewable veto and statistical
sampling rulings), Agape (challenging the unreviewable veto
ruling and defending the statistical sampling ruling), and the
government (defending the unreviewable veto ruling without
addressing the statistical sampling ruling).   Each participated
in oral argument of these appeals.



                                           14
a pure question of law, our review is de novo.                             See United

States ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 804

F.3d 646, 654 (4th Cir. 2015).               Our focus, of course, is on

§ 3730(b)(1), which provides in full:

      A person may bring a civil action for a violation of
      [the FCA] for the person and for the United States
      Government.  The action shall be brought in the name
      of the Government.  The action may be dismissed only
      if the court and the Attorney General give written
      consent to the dismissal and their reasons for
      consenting.

31 U.S.C. § 3730(b)(1) (emphasis added).

                                        1.

      The   question    presented       —    the   extent       of    the    Attorney

General’s    power     under     § 3730(b)(1)       to    veto       the    voluntary

settlement of an FCA qui tam action in which the Government

declined to intervene — is not one that we have heretofore

squarely    confronted. 5       Thus,   it   is    helpful      to   begin    with    a

discussion of the three courts of appeals decisions debated in

the   district   court:        United   States     ex    rel.   Killingsworth        v.

      5We observed in a 1992 decision that, “[e]ven where the
government allows the qui tam relator to pursue the action, the
case may not be settled or voluntarily dismissed without the
government’s consent.” See United States ex rel. Milam v. Univ.
of Tex. M.D. Anderson Cancer Ctr., 961 F.2d 46, 49 (4th Cir.
1992).   There, however, we were not called on to decide the
extent of the Attorney General’s veto power. Rather, the issue
before us was “whether the inapplicability of the Eleventh
Amendment to suits brought by the United States extends to
actions brought on the United States’ behalf by qui tam
relators.” Id. at 47 (ruling “that it does”).



                                        15
Northrop Corp., 25 F.3d 715 (9th Cir. 1994); Searcy v. Philips

Electronics North America Corp., 117 F.3d 154 (5th Cir. 1997);

and United States v. Health Possibilities, P.S.C., 207 F.3d 335

(6th Cir. 2000).

     In the Killingsworth decision, the Ninth Circuit determined

that § 3730(b)(1)’s consent-for-dismissal provision is limited

by § 3730(b)(2)-(4), which delineates the initial sixty-day (or

extended)    period        during          which       the    Government    may       elect    to

intervene,    as     well       as    by    § 3730(c)(3),         which    authorizes         the

court to permit later intervention upon a showing of good cause.

See 25 F.3d at 722.                  The Killingsworth court ruled that “the

consent provision contained in § 3730(b)(1) applies only during

the initial sixty-day (or extended) period.”                           Id.        Thereafter,

the Government’s settlement-related authority depends on whether

it has intervened, i.e., whether the Government or the relator

is   empowered       to     control         the    litigation.            Id.         When    the

Government has not intervened, Killingsworth merely permits the

Attorney    General        to    object       with      “good    cause”    to     a    proposed

settlement and obtain a hearing on whether the settlement is

“fair and reasonable.”                Id. at 723-25 (cobbling standard from

§ 3730(c)(2)(B), § 3730(c)(3), and other aspects of § 3730).

     The     Ninth        Circuit      resolved          in    Killingsworth          that    the

Government’s position — “that without intervention [the Attorney

General]     possesses          an    absolute         right    to   reject     a      proposed

                                                  16
settlement at any time and for any reason” — cannot comport with

the plain language of § 3730(b)(4)(B), which affords the relator

“the    right      to   conduct        the    action”       once    the      Government      has

declined to intervene.                 See 25 F.3d at 722.                According to the

court, that is because “[t]he right to conduct a qui tam action

obviously includes the right to negotiate a settlement in that

action.”        Id.        For    that       proposition,      the       court    relied      on

§ 3730(d)(2),        which    provides         that    if    the     Government        has   not

intervened,        “the    person       bringing      the    action       or    settling     the

claim    shall      receive       an    amount      which     the       court    decides     is

reasonable for collecting the civil penalty and damages.”                                    The

Killingsworth decision emphasized the “or settling the claim”

language      of   § 3730(d)(2),             propounding      that      it     “confirms     the

relator’s right to settle the action if the government declines

to intervene.”          See 25 F.3d at 722-23.

       The    Ninth       Circuit’s      interpretation            in    Killingsworth        of

§ 3730 was subsequently rejected by the Fifth Circuit in its

Searcy       decision       and        the     Sixth    Circuit           in     its    Health

Possibilities decision.                Unlike the Ninth Circuit, those latter

two courts recognized “an absolute veto power over voluntary

settlements in qui tam [FCA] suits,” see Searcy, 117 F.3d at

158, under which a relator “may not seek a voluntary dismissal

of any action . . . without the Attorney General’s consent,” see

Health Possibilities, 207 F.3d at 336.

                                               17
       As the Fifth Circuit explained in Searcy, the language of

§ 3730(b)(1)’s          consent-for-dismissal                    provision          “is       as

unambiguous as one can expect,” and there is “nothing in § 3730

to negate [that language’s] plain import.”                           See 117 F.3d at 159.

In    particular,      the    Searcy    court       confronted         those       aspects    of

§ 3730 utilized        in     Killingsworth:          § 3730(b)(4)(B)              (according

the    relator      “the     right     to     conduct          the     action”      when     the

Government declines to intervene), and § 3730(d)(2) (providing a

reasonable amount to “the person bringing the action or settling

the claim”).         More specifically, Searcy refuted Killingsworth’s

pronouncements that the § 3730(b)(4)(B) “right to conduct a qui

tam    action       obviously     includes          the        right    to     negotiate      a

settlement in that action,” and that § 3730(d)(2) “confirms the

relator’s right to settle the action if the government declines

to    intervene.”       See     Killingsworth,            25    F.3d    at    722-23.        The

Searcy    court     expounded     that       “[a]    relator         has     ‘conducted’      an

action if he devises strategy, executes discovery, and argues

the    case    in    court,     even    if    the     government             frustrates      his

settlement efforts.”            See Searcy, 117 F.3d at 160.                        Moreover,

the    court     observed      that    “the       government’s             power    to     block

settlements does not mean that the relator will never be the

person settling the claim.”             Id.

       The    Searcy    court    further       recognized            “that     relators      can

manipulate settlements in ways that unfairly enrich them and

                                             18
reduce    benefits       to    the    government,”         including      “by    bargaining

away claims on behalf of the United States.”                            See 117 F.3d at

160.       Section       3730(b)(1)’s          consent-for-dismissal             provision,

however, “allows the government to resist [such] tactics and

protect its ability to prosecute matters in the future.”                                     Id.

Along those same lines, the Sixth Circuit observed in Health

Possibilities that “the power to veto a privately negotiated

settlement    of     public          claims    is     a     critical    aspect      of        the

government’s ability to protect the public interest in qui tam

litigation.        The FCA is not designed to serve the parochial

interests    of    relators,          but     to    vindicate     civic      interests        in

avoiding fraud against public monies.”                          See 207 F.3d at 340.

The Health Possibilities court underscored that “[t]he location

of the consent provision [in § 3730(b)(1)] immediately after the

command    that    the    action       be   brought        in   the   government’s           name

suggests that it is an important component of the government’s

ability to regulate qui tam actions.”                      Id. at 342.

       Notably, the Fifth, Sixth, and Ninth Circuits considered

the legislative history of the FCA.                       On the one hand, the Ninth

Circuit     discerned          a     congressional          “intent     to      place        full

responsibility for [FCA] litigation on private parties, absent

early intervention by the government or later intervention for

good     cause”    —      an       intent     that        the   court     deemed        to     be

“fundamentally inconsistent with the asserted ‘absolute’ right

                                               19
of the government to block a settlement and force a private

party to continue litigation.”               See Killingsworth, 25 F.3d at

722.

       On the other hand, the Fifth and Sixth Circuits perceived

Congress’s    intent    to    grant    the    Attorney   General   full   veto

authority that has existed since the original FCA statute was

enacted in 1863 during the Civil War.             See Health Possibilities,

207 F.3d at 342-43; Searcy, 117 F.3d at 159.                As those courts

saw    it,   that    intent    has    endured    even    through   subsequent

amendments to the FCA providing more incentives to relators and

creating and expanding the Government’s power to intervene.                Id.

Those courts thus concluded:

       For more than 130 years, Congress has instructed
       courts to let the government stand on the sidelines
       and veto a voluntary settlement.     It would take a
       serious conflict within the structure of the [FCA] or
       a profound gap in the reasonableness of the [consent-
       for-dismissal] provision for us to be able to justify
       ignoring this language. We can find neither.

Health Possibilities, 207 F.3d at 344 (quoting Searcy, 117 F.3d

at 160).     Here, in rendering its unreviewable veto ruling, the

district     court   similarly       interpreted    § 3730(b)(1)    and    its

consent-for-dismissal provision.

                                       2.

       We agree with the district court, and with the Fifth and

Sixth Circuits, that the Attorney General possesses an absolute

veto power over voluntary settlements in FCA qui tam actions.

                                       20
In reaching that conclusion, we rely on the plain language of 31

U.S.C. § 3730(b)(1), “read[ing] the words in their context and

with a view to their place in the overall statutory scheme.”

See King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (internal

quotation marks omitted).               Simply put, nothing else in § 3730

leads us to doubt that Congress meant exactly what it said in

§ 3730(b)(1) — that a qui tam action “may be dismissed only if

the court and the Attorney General give written consent to the

dismissal and their reasons for consenting.”

       On   appeal,     neither       the   relators     nor   Agape      advocate      the

Ninth Circuit’s theory that the consent-for-dismissal provision

“applies only during the initial sixty-day (or extended) period”

in which the Government must decide whether to intervene in a

qui tam action.             See Killingsworth, 25 F.3d at 722.                Somewhat

like    the     Ninth       Circuit,    however,     Agape     contends      that       the

Government         cannot     unreasonably       withhold      its    consent      to    a

settlement.         According to Agape, the reasonableness requirement

flows   from       § 3730(b)(1)       itself.      See   Br.   of    Agape    20    (“[A]

correct reading of § 3730(b)(1) recognizes that the Government’s

consent       to    a   qui     tam    settlement        cannot      be   unreasonably

withheld.”).        For its part, the Ninth Circuit cobbled a standard

from    other      aspects     of   § 3730,      including     § 3730(c)(2)(B)          and

§ 3730(c)(3), limiting the Attorney General to an objection for

“good cause” and a hearing on whether the proposed settlement is

                                            21
“fair and reasonable.”               See Killingsworth, 25 F.3d at 723-25.

Both Agape and the Ninth Circuit have reasoned that an unlimited

veto power cannot coexist with § 3730(b)(4)(B) insofar as it

confers on the relator “the right to conduct the action” when

the   Government       declines       to    intervene,      or    with   § 3730(d)(2)

insofar as it provides for a share of the award to “the person

bringing the action or settling the claim.”

      Of course, as the Fifth Circuit deftly explained, the right

to conduct the action does not necessarily include the right to

settle   the      claim,      although,      absent    the       Attorney     General’s

objection, the relator may yet settle the claim.                         See Searcy,

117   F.3d   at     160.      That    is,   § 3730(b)(4)(B)        and   § 3730(d)(2)

cannot reasonably be understood to create an unfettered right to

settle on the part of the relator.

      Furthermore,          § 3730(b)(1)      and     its    consent-for-dismissal

provision is not temporally qualified or explicitly limited in

any   other       manner.         Unlike      other      provisions      of     § 3730,

§ 3730(b)(1) does not overtly require the Government to satisfy

any standard or make any showing reviewable by the court.                              A

prime example is § 3730(c)(2)(B), under which the Government may

settle a qui tam action over the relator’s objection, but only

“if the court determines, after a hearing, that the proposed

settlement     is    fair,     adequate,      and   reasonable       under     all   the

circumstances.”            Congress could have readily included similar

                                            22
language in § 3730(b)(1); that it decided against doing so is

enlightening.      See Barnhart v. Sigmon Coal Co., 534 U.S. 438,

452 (2002) (“[W]hen Congress includes particular language in one

section of a statute but omits it in another section of the same

Act, it is generally presumed that Congress acts intentionally

and   purposely        in    the     disparate      inclusion       or    exclusion.”

(internal quotation marks omitted)).

      Finally,    we     would     be    remiss   not    to   recognize        that    the

Attorney   General’s             absolute    veto       authority        is     entirely

consistent with the statutory scheme of the FCA.                     Even where the

Government declines to intervene, “the United States is the real

party in interest in any [FCA] suit.”                See United States ex rel.

Milam v. Univ. of Tex. M.D. Anderson Cancer Ctr., 961 F.2d 46,

50 (4th Cir. 1992).          Meanwhile, “[a]s a class of plaintiffs, qui

tam relators are different in kind than the Government.                               They

are motivated primarily by prospects of monetary reward rather

than the public good.”             See Hughes Aircraft Co. v. United States

ex rel. Schumer, 520 U.S. 939, 949 (1997).                    Instead of freeing

relators to maximize their own rewards at the public’s expense,

Congress   has     granted         the   Attorney       General     the       broad    and

unqualified      right      to    veto   proposed       settlements       of    qui    tam

actions.

      Accordingly, we reject Agape’s interpretation of § 3730 and

conclude today that, under the plain language of § 3730(b)(1),

                                            23
the   Attorney    General     possesses        an    absolute    veto    power    over

voluntary   settlements       in   FCA    qui    tam    actions.        The   district

court having concluded the same, we affirm its unreviewable veto

ruling. 6

                                          B.

      Turning     to   the    district         court’s       statistical      sampling

ruling, we find it prudent to re-examine whether that aspect of

the   relator’s    appeal     is   appropriate         for   interlocutory      review

under 28 U.S.C. § 1292(b).               Pursuant thereto, the order being

reviewed must involve “a controlling question of law as to which

there is substantial ground for difference of opinion,” and an

immediate appeal from that order must promise to “materially

advance the ultimate termination of the litigation.”                           We have

cautioned “that § 1292(b) should be used sparingly and thus that

its   requirements     must   be   strictly         construed.”      See      Myles   v.

Laffitte, 881 F.2d 125, 127 (4th Cir. 1989).




      6Notably, the relators have taken a different tack from
Agape on appeal, conceding that “[i]t may be the case that the
Government has the authority under [§ 3730(b)(1)] to reject a
relator and defendant’s settlement in a typical [FCA] matter in
which the Government has declined to intervene.”      See Br. of
Relators 18-19.   The relators argue instead that, because the
Government engaged in a so-called “de facto intervention” in
this action, the Attorney General’s objection to the proposed
settlement   must  be   reviewed   by  the   district  court for
reasonableness.   Id. at 19.     Unfortunately for the relators,
their novel theory finds no support in the FCA.



                                          24
      Strictly construing § 1292(b), we recognize that it may be

proper to conduct an interlocutory review of an order presenting

“a pure question of law,” i.e., “an abstract legal issue that

the   court     of    appeals    can    decide       quickly         and    cleanly.”     See

Mamani    v.    Berzain,        825    F.3d        1304,      1312    (11th     Cir.    2016)

(internal quotation marks omitted).                        In other words, § 1292(b)

review may be appropriate where “the court of appeals can rule

on a pure, controlling question of law without having to delve

beyond    the   surface     of    the    record          in   order    to    determine    the

facts.”       See McFarlin v. Conseco Servs., LLC, 381 F.3d 1251,

1259 (11th Cir. 2004).            Such a pure question of law includes the

issue    raised      in   the    relators’         and     Agape’s     appeals     from   the

district court’s unreviewable veto ruling.

      By contrast, § 1292(b) review is not appropriate where, for

example, the question presented “turns on whether there is a

genuine issue of fact or whether the district court properly

applied settled law to the facts or evidence of a particular

case.”     See       McFarlin,    381    F.3d       at     1259;     see    also   Harriscom

Svenska AB v. Harris Corp., 947 F.2d 627, 631 (2d Cir. 1991)

(“Where, as here, the controlling issues are questions of fact,

or, more precisely, questions as to whether genuine issues of

material fact remain to be tried, the federal scheme does not

provide for an immediate appeal . . . .”).                           Significantly, there

is “a distinction between a question of law, which will satisfy

                                              25
§ 1292(b), and a question of fact or matter for the discretion

of the trial court.”        See McFarlin, 381 F.3d at 1258 (internal

quotation marks omitted).

     In   its   statistical    sampling     ruling,    the     district    court

determined that the use of statistical sampling evidence can

sometimes be permissible, but is not appropriate here based on

the particular facts and evidence in this case.                  Moreover, in

their opening appellate brief, the relators clarify that “[t]he

true question for the District Court is not whether statistical

sampling and extrapolation, in and of itself, is appropriate.”

See Br. of Relators 11 (emphasis added).               Rather, the relators

insist that the issue is whether their proposed “statistical

sampling is conducted in a scientifically proven and accepted

manner pursuant to the Supreme Court’s ruling in [Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)].”                    Id.

Thus, the relators’ appeal raises the question of whether the

district court may, in its discretion, allow the relators to use

statistical sampling to prove their case.                See Bryte v. Am.

Household,   Inc.,   429    F.3d   469,   475   (4th    Cir.    2005)   (“[T]he

district court has broad latitude in ruling on the admissibility

of evidence, including expert opinion, and we will not overturn

Daubert   evidentiary      rulings   with    respect     to    relevance     and

reliability absent an abuse of discretion.”).



                                     26
      In these circumstances, we are satisfied that, as to the

statistical   sampling     ruling,    the    relators’     appeal    does   not

present   a   pure   question    of    law    that    is   subject    to    our

interlocutory review under § 1292(b).           Accordingly, although we

understand and appreciate the district court’s desire to obtain

review of its statistical sampling ruling prior to undertaking

complex trial proceedings, we are constrained to dismiss that

aspect of the relators’ appeal as improvidently granted.



                                     III.

      Pursuant to the foregoing, we affirm the district court’s

unreviewable veto ruling and dismiss as improvidently granted

the   relators’   appeal   as   to   the    court’s   statistical     sampling

ruling.

                                                           AFFIRMED IN PART
                                                      AND DISMISSED IN PART




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