                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-1369


UNITED STATES ex rel. KURT BUNK; UNITED STATES ex rel. RAY
AMMONS,

                Plaintiffs – Appellants,

          and

UNITED STATES OF AMERICA,

                Intervenor/Plaintiff – Intervenor,

          and

UNITED STATES ex rel. DANIEL HEUSER,

                Plaintiff,

          v.

GOSSELIN WORLD WIDE MOVING, N.V.; GOSSELIN GROUP N.V.; MARC
SMET,

                Defendants – Appellees,

          and

BIRKART GLOBISTICS GMBH & CO. LOGISTIK UND SERVICE KG; THE
PASHA GROUP; ITO MOBEL TRANSPORT GMBH; ANDREAS CHRIST
SPEDITION & MOBELTRANSPORT GMBH; JOHN DOES 1-100; AMERICAN
MOPAC     INTERNATIONAL;      DOE      DEFENDANTS;     GATEWAYS
INTERNATIONAL; ALLIED FREIGHT FORWARDERS; NORTH AMERICAN
VAN LINES, INCORPORATED; GLOBAL WORLDWIDE INCORPORATED; AIR
LAND   FORWARDERS    SUDDATH;     COVAN    INTERNATIONAL;   JET
FORWARDING   INCORPORATED;    ARPIN    INTERNATIONAL;   BIRKART
GLOBISTICS AG; THIEL LOGISTIK AG, a/k/a Logwin AG; VIKTORIA
SCHAFER INTERNATIONALE SPEDITION GMBH; VIKTORIA SCHAFER
INTERNATIONAL SPEDITION GMBH; VIKTORIA-SKS KURT SCHAFER
INTERNATIONALE GMBH & CO., KG; GILLEN & GARCON GMBH & CO.
INTERNATIONALE SPEDITION KG; GILLEN & GARCON GMBH & CO. KG;
M.T.S. HOLDING & VERWALTUNGS GMBH, d/b/a M.T.S. Gruppe;
ANDREAS CHRIST GMBH; MICHAEL VILLINGER; ERWIN WEYAND;
NICODEMUS GOSSELIN; DIETER SCHMEKEL; HORST BAUR; KURT
SCHAFER; MARTINA SCHAFER; JOHN DOE DEFENDANTS; BIRKART
VERMOGENSVERWALTUNG GMBH; LOGWIN AIR + OCEAN DEUTSCHLAND
GMBH; LOGWIN HOLDING DEUTSCHLAND GMBH; JURGEN GRAF; MISSY
DONNELLY; GEORGE PASHA; AMERICAN MOPAC INTERNATIONAL,
INCORPORATED; AMERICAN SHIPPING INCORPORATED; CARTWRIGHT
INTERNATIONAL    VAN    LINES    INCORPORATED;  JIM    HAHN;
INTERNATIONAL SHIPPERS ASSOCIATION INCORPORATED; GOSSELIN
WORLD     WIDE     MOVING     GMBH;VIKTORIA    INTERNATIONAL
SPEDITION;GOVERNMENT LOGISTICS N.V.; GATEWAYS INTERNATIONAL
INCORPORATED,

                Defendants.

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

CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA;
PHARMACEUTICAL RESEARCH AND MANUFACTURERS OF AMERICA,

                Amici Supporting Appellees,

TAXPAYERS AGAINST FRAUD EDUCATION FUND,

                Amicus Supporting Appellants.



                         No. 12-1417


UNITED STATES ex rel. KURT BUNK; UNITED STATES ex rel. RAY
AMMONS,

                Plaintiffs – Appellees,

          and

UNITED STATES OF AMERICA,

                Intervenor/Plaintiff – Appellee,

          and



                                 2
UNITED STATES ex rel. DANIEL HEUSER,

                Plaintiff,

          v.

GOSSELIN WORLD WIDE MOVING, N.V.; GOSSELIN GROUP N.V.; MARC
SMET,

                Defendants – Appellants,

          and

VIKTORIA   INTERNATIONAL   SPEDITION;    GOVERNMENT   LOGISTICS
N.V.; BIRKART GLOBISTICS GMBH & CO. LOGISTIK UND SERVICE
KG; THE PASHA GROUP; ITO MOBEL TRANSPORT GMBH; ANDREAS
CHRIST SPEDITION & MOBELTRANSPORT GMBH; JOHN DOES 1-100;
AMERICAN MOPAC INTERNATIONAL; DOE DEFENDANTS; GATEWAYS
INTERNATIONAL; ALLIED FREIGHT FORWARDERS; NORTH AMERICAN
VAN LINES, INCORPORATED; GLOBAL WORLDWIDE INCORPORATED; AIR
LAND   FORWARDERS    SUDDATH;     COVAN    INTERNATIONAL;   JET
FORWARDING   INCORPORATED;    ARPIN    INTERNATIONAL;   BIRKART
GLOBISTICS AG; THIEL LOGISTIK AG, a/k/a Logwin AG; VIKTORIA
SCHAFER INTERNATIONALE SPEDITION GMBH; VIKTORIA-SKS KURT
SCHAFER INTERNATIONALE GMBH & CO., KG; GILLEN & GARCON GMBH
& CO. INTERNATIONALE SPEDITION KG; M.T.S. HOLDING &
VERWALTUNGS GMBH, d/b/a M.T.S. Gruppe; ANDREAS CHRIST GMBH;
MICHAEL VILLINGER; ERWIN WEYAND; NICODEMUS GOSSELIN; DIETER
SCHMEKEL; JURGEN GRAF; HORST BAUR; KURT SCHAFER; MARTINA
SCHAFER; JOHN DOE DEFENDANTS; BIRKART VERMOGENSVERWALTUNG
GMBH; LOGWIN AIR + OCEAN DEUTSCHLAND GMBH; LOGWIN HOLDING
DEUTSCHLAND GMBH; MISSY DONNELLY; GEORGE PASHA; AMERICAN
MOPAC   INTERNATIONAL,    INCORPORATED;     AMERICAN   SHIPPING
INCORPORATED;     CARTWRIGHT     INTERNATIONAL     VAN    LINES
INCORPORATED; JIM HAHN; INTERNATIONAL SHIPPERS ASSOCIATION
INCORPORATED; GATEWAYS INTERNATIONAL INCORPORATED; GOSSELIN
WORLD WIDE MOVING GMBH,

                Defendants.

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

CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA;
PHARMACEUTICAL RESEARCH AND MANUFACTURERS OF AMERICA,

                Amici Supporting Appellants,


                                 3
TAXPAYERS AGAINST FRAUD EDUCATION FUND,

                Amicus Supporting Appellees.



                              No. 12-1494


UNITED STATES OF AMERICA,

                Intervenor/Plaintiff – Appellant,

          and


UNITED STATES ex rel. DANIEL HEUSER; UNITED STATES ex rel.
KURT BUNK; UNITED STATES ex rel. RAY AMMONS,

                Plaintiffs,

          v.

GOSSELIN WORLD WIDE MOVING, N.V.; GOSSELIN GROUP N.V.; MARC
SMET,

                Defendants – Appellees,

          and

BIRKART GLOBISTICS GMBH & CO. LOGISTIK UND SERVICE KG; THE
PASHA GROUP; ITO MOBEL TRANSPORT GMBH; ANDREAS CHRIST
SPEDITION & MOBELTRANSPORT GMBH; JOHN DOES 1-100; AMERICAN
MOPAC     INTERNATIONAL;      DOE      DEFENDANTS;     GATEWAYS
INTERNATIONAL; ALLIED FREIGHT FORWARDERS; NORTH AMERICAN
VAN LINES, INCORPORATED; GLOBAL WORLDWIDE INCORPORATED; AIR
LAND   FORWARDERS    SUDDATH;     COVAN    INTERNATIONAL;   JET
FORWARDING   INCORPORATED;    ARPIN    INTERNATIONAL;   BIRKART
GLOBISTICS AG; THIEL LOGISTIK AG, a/k/a Logwin AG; VIKTORIA
SCHAFER INTERNATIONALE SPEDITION GMBH; VIKTORIA-SKS KURT
SCHAFER INTERNATIONALE GMBH & CO., KG; GILLEN & GARCON GMBH
& CO. INTERNATIONALE SPEDITION KG; M.T.S. HOLDING &
VERWALTUNGS GMBH, d/b/a M.T.S. Gruppe; ANDREAS CHRIST GMBH;
MICHAEL VILLINGER; ERWIN WEYAND; NICODEMUS GOSSELIN; DIETER
SCHMEKEL; JURGEN GRAF; HORST BAUR; KURT SCHAFER; MARTINA
SCHAFER; JOHN DOE DEFENDANTS; BIRKART VERMOGENSVERWALTUNG
GMBH; LOGWIN AIR + OCEAN DEUTSCHLAND GMBH; LOGWIN HOLDING

                                   4
DEUTSCHLAND GMBH; MISSY DONNELLY; GEORGE PASHA; AMERICAN
MOPAC   INTERNATIONAL,   INCORPORATED;   AMERICAN   SHIPPING
INCORPORATED;    CARTWRIGHT    INTERNATIONAL    VAN    LINES
INCORPORATED; JIM HAHN; INTERNATIONAL SHIPPERS ASSOCIATION
INCORPORATED; GATEWAYS INTERNATIONAL INCORPORATED; GOSSELIN
WORLD WIDE MOVING GMBH; GOVERNMENT LOGISTICS N.V.; VIKTORIA
INTERNATIONAL SPEDITION,

                Defendants.

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

CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA;
PHARMACEUTICAL RESEARCH AND MANUFACTURERS OF AMERICA,

                Amici Supporting Appellees,

TAXPAYERS AGAINST FRAUD EDUCATION FUND,

                Amicus Supporting Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.      Anthony J. Trenga,
District Judge. (1:02-cv-01168-AJT-TRJ)


Argued:   May 14, 2013                 Decided:    December 19, 2013


Before KING, SHEDD, and THACKER, Circuit Judges.


No. 12-1417 affirmed; No. 12-1369 affirmed in part, reversed in
part, and remanded with instructions; and No. 12-1494 vacated
and remanded by published opinion.        Judge King wrote the
opinion, in which Judge Thacker joined.      Judge Shedd wrote a
separate opinion concurring in part and dissenting in part.


ARGUED:   Michael T. Anderson, MURPHY ANDERSON PLLC, for United
States ex rel. Kurt Bunk, United States ex rel. Ray Ammons, and
United States ex rel. Daniel Heuser. Kerri L. Ruttenberg, JONES
DAY, Washington, D.C., for Gosselin World Wide Moving, N.V.,
Gosselin Group N.V., and Marc Smet.      Jeffrey Clair, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Intervenor.

                                 5
ON BRIEF:    Richard E. Greenberg, John E. Petite, GREENSFELDER,
HEMKER & GALE, P.C., St. Louis, Missouri; Ann Lugbill, Mark
Hanna, Michael L. Woolley, MURPHY ANDERSON PLLC, Washington,
D.C., for United States ex rel. Kurt Bunk, United States ex rel.
Ray Ammons, and United States ex rel. Daniel Heuser.             Shay
Dvoretzky, JONES DAY, Washington, D.C., for Gosselin World Wide
Moving, N.V., Gosselin Group N.V., and Marc Smet.           James M.
Spears, Melissa B. Kimmel, PHRMA, Washington, D.C.; David W.
Ogden, Jonathan G. Cedarbaum, Nicole Ries Fox, WILMER CUTLER
PICKERING    HALE    AND   DORR    LLP,   Washington,    D.C.,    for
Pharmaceutical Research and Manufacturers of America.       Robin S.
Conrad, Rachel Brand, NATIONAL CHAMBER LITIGATION CENTER, INC.,
Washington, D.C.; M. Miller Baker, McDERMOTT WILL & EMERY LLP,
Washington, D.C.; Joshua Buchman, Peter Schutzel, McDERMOTT WILL
& EMERY LLP, Chicago, Illinois, for Chamber of Commerce of the
United States of America.         Kristin L. Amerling, Cleveland
Lawrence    III,    TAXPAYERS   AGAINST   FRAUD    EDUCATION    FUND,
Washington, D.C.; Colette G. Matzzie, Claire M. Sylvia, PHILLIPS
& COHEN, LLP, Washington, D.C., for Taxpayers Against Fraud
Education Fund.       Neil H. MacBride, United States Attorney,
Alexandria,    Virginia,   Stuart   F.  Delery,   Acting   Assistant
Attorney General, Michael S. Raab, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Intervenor.




                                 6
KING, Circuit Judge:

       These   appeals       and    cross-appeal          are    taken      from      final

judgments,     entered      in   accordance       with    Federal      Rule    of     Civil

Procedure 54(b), in a pair of qui tam actions consolidated for

litigation in the Eastern District of Virginia.                        By its Order of

February 14, 2012, the district court:                        (1) assessed a single

civil   penalty     in   the     sum   of   $5,500       in   favor    of     the    United

States, intervening in substitution of relator Ray Ammons, as to

a single portion of its claim pursuant to the False Claims Act

(the    “FCA”),     which      it   alleged       against       defendants      Gosselin

Worldwide Moving, N.V., Gosselin Group N.V., and the latter’s

CEO, Marc Smet (collectively, “Gosselin” or the “company”); (2)

decreed judgment for Gosselin on the remainder of the FCA claim,

as well as common law claims asserted by the government in the

same action; (3) granted judgment as to liability with respect

to a single FCA claim alleged by relator Kurt Bunk and against

Gosselin in the second action; but (4) denied Bunk recovery of

civil penalties on that claim.

       The primary issue before us is whether the district court

erred in determining that, concerning 9,136 false invoices at

the    heart   of   Bunk’s       claim,     any    award       under    the    FCA     must

necessarily exceed more than $50 million.                       The court ruled that

such an assessment would contravene the Excessive Fines Clause

of the Eighth Amendment, and it thus awarded nothing.                               We must

                                            7
also     decide      whether,     as    to       the       larger     portion        of   the

government’s FCA claim on which Gosselin prevailed, the court

properly declared the company immune under the Shipping Act.

Gosselin,      for    its     part,    urges     on       cross-appeal     that       Bunk’s

election    to    seek   civil    penalties          to    the   exclusion      of    actual

damages deprives him of standing to maintain any recovery — even

one consistent with the Eighth Amendment.

       We conclude that Bunk possessed standing to sue for civil

penalties while bypassing the prospect of a damages award, and

we thus affirm the district court’s judgment in his favor.                                To

the extent, however, that the court denied Bunk recovery of any

penalties,     we    reverse    and    remand        for    entry    of   his   requested

award of $24 million, an amount that we deem to be consistent

with the Constitution.           Finally, we are of the opinion that the

Shipping Act confers no immunity upon Gosselin for any part of

the government’s FCA claim; we therefore vacate the contrary

ruling    in     favor   of     Gosselin       and     remand       the   misadjudicated

portion of the claim for further proceedings.



                                           I.

                                           A.

                                           1.

       An army may march on its stomach, but when a fighting force

is deployed to a foreign front, familiar furnishings also serve

                                             8
to fuel the foray.          The Department of Defense (the “DOD”) seeks

to provide its armed military forces and civilian personnel with

the orderly and efficient transport of their goods and effects

across the Atlantic, point to point within Europe, and back home

again.       The    DOD     thus    instituted    the        International     Through

Government    Bill     of    Lading     program       (the    “ITGBL    program”)   to

govern   transoceanic          moves,     while       relying      on    the    Direct

Procurement        Method    (the     “DPM”)     to     contract       for   transport

strictly on the European continent.                     Both methodologies were

administered by the DOD’s Military Traffic Management Command

(the “MTMC”). 1

     In the ITGBL program, the MTMC solicited domestic vendors —

often referred to as “freight forwarders” —                      to bid on one or

more “through rates,” i.e., unitary prices for moving household

goods along shipping channels established between the several

states and the particular European countries in which American

personnel were encamped.              Channels were further distinguished

based on which of the respective termini was the origin of the

goods.    For example, the Virginia-to-Germany channel was bid

apart from the Germany-to-Virginia channel.




     1
        The MTMC is now called                 the      Surface     Deployment      and
Distribution Command, or the SDDC.



                                          9
       The successful bidders contracted with the MTMC to supply

door-to-door service, typically consisting of discrete segments:

packing the goods at the origin; land carriage to the ocean

port; origin port services; ocean transport; destination port

services; and carriage overland to the destination, where the

goods     were       unpacked.          Subcontractors,             including     Gosselin,

provided services in connection with the European segments, and

the    prices       quoted     by    those     subcontractors          were     taken    into

account       by    the   freight       forwarders.           The    MTMC     dealt     on    an

individual basis with some of these same subcontractors when it

availed       itself      of   the    DPM     to    obtain      packing,      loading,       and

transportation services exclusively within Europe.

       On November 14, 2000, Gosselin met in Sonthofen, Germany,

with a number of its industry peers, some that provided services

in multiple European segments and others that were more locally

focused.       Together, these entities controlled the lion’s share

of    packing       and   transportation           services     within      Germany.         The

meeting participants agreed to charge a non-negotiable minimum

price for these local services, which would also be incorporated

into the fixed “landed rate” quoted to the freight forwarders

for servicing multiple segments.                    Apart from its intended effect

upon    the    ITGBL      program,      the    Sonthofen        meeting     and   resultant

agreement       arguably       served    as     a    catalyst       with    respect     to    an

ongoing       DPM    scheme.         Pursuant       to   that    scheme,      Gosselin       was

                                               10
awarded a contract, effective May 1, 2001, after colluding with

its   fellow     bidders      to    artificially    inflate       the     packing   and

loading component of the submitted bids.                    Thereafter, Gosselin

subcontracted much of the work, in predetermined allocations, to

its supposed competitors.

       Despite the efforts of Gosselin and its Sonthofen cohorts,

freight forwarder Covan International, Inc., was able to submit,

at    initial    filing       for   the   ITGBL    International          Summer    2001

(“IS01”) rate cycle, the low bid on fourteen channels between

Germany and the United States (the “Covan Channels”).                        In order

to    increase       the   likelihood     of    obtaining     business      in     those

channels, other freight forwarders such as the Pasha Group, with

which Gosselin had a continuing relationship, would have been

compelled       to    match    Covan’s    prime     through       rate.      Instead,

Gosselin threatened to withdraw financing from Covan for the

latter’s purchase of thousands of lift vans required to fulfill

its contractual obligations with the MTMC.                    Consequently, Covan

cancelled      its    bid,    and    Gosselin     spread    the    word     among   the

freight forwarders that each should, during the second (“me-

too”) phase of the bidding, match only the second-lowest bid on

the Covan Channels.

                                          2.

      The foregoing scenario was virtually duplicated one year

later, during bidding for the IS02 cycle.                      On that occasion,

                                          11
Cartwright International Van Lines, Inc., successfully bypassed

the established landed rates to submit the low bid on twelve

Germany-U.S. channels (the “Cartwright Channels”).              Gosselin and

Pasha, however, convinced Cartwright to withdraw its bid, and,

after ensuring that local agents would refuse services to anyone

who failed to cooperate, they secured agreements from Pasha’s

fellow freight forwarders to echo the second-lowest bid.                  For

their actions in connection with the Cartwright Channels, the

Gosselin and Pasha corporate entities were each convicted of

federal criminal offenses in the Eastern District of Virginia.

See United States v. Gosselin World Wide Moving, N.V., 411 F.3d

502 (4th Cir. 2005).

                                         B.

     The above-described acts gave rise to the underlying civil

actions    premised    on   the   FCA,    31   U.S.C.   §§ 3729-3733,   which,

during the events in question, provided in pertinent part:

          (a) Any person who —

                (1)   knowingly   presents, or  causes   to   be
             presented, to an officer or employee of the United
             States Government . . . a false or fraudulent claim
             for payment or approval;

                (2)   knowingly makes, uses, or causes to be made
             or used, a false record or statement to get a false
             or fraudulent claims paid or approved by the
             Government; [or]

                (3)     conspires to defraud the Government                by
             getting    a false or fraudulent claim allowed                or
             paid[,]

                                         12
      is liable to the United States Government for a civil
      penalty of not less than $5,000 and not more than $10,000,
      plus 3 times the amount of damages which the Government
      sustains because of the act of that person[.]

Id. § 3729(a). 2         The FCA confers on private persons, such as Bunk

and   Ammons,      the    authority    to    “bring   a   civil    action   for   a

violation of section 3729 for the person and for the United

States Government” in the government’s name.               Id. § 3730(b)(1). 3

      Bunk sued in the Eastern District of Virginia on August 2,

2002, asserting claims arising from the DPM scheme.                     Ammons’s

lawsuit, stemming from the machinations relating to the ITGBL

program, was initiated on September 17, 2002, in the Eastern

District of Missouri.          The two actions were commenced under seal

against Gosselin and a long list of other defendants, all but

one   of   which    have     since    been    dismissed   via     settlement   and

otherwise.      Advancement of both lawsuits was deferred pending

the final outcome of the criminal investigation and resultant

      2
       The FCA was revised in 2009 to clarify and flesh out many
of its provisions.      The bases relied on in § 3729(a) to
establish Gosselin’s potential liability, however, remained
substantially the same.
      3
       The heading of § 3730(c) refers to a proceeding initiated
under the FCA as a “qui tam” action, which has been defined as
one “under a statute that allows a private person to sue for a
penalty, part of which the government or some specified public
institution will receive. They are usually reported as being in
the name of the government ex rel. ([i.e.,] on the relation of)
the private citizen.”   Bryan A. Garner, A Dictionary of Modern
Legal Usage 728-29 (2d ed. 1995).



                                         13
proceedings.         See § 3730(b)(2), (3) (prescribing that relator’s

complaint “shall be filed in camera, shall remain under seal for

at least 60 days, and shall not be served on the defendant until

the court so orders”).              On November 9, 2007, the Ammons matter

was transferred to the Eastern District of Virginia, where it

was consolidated with the Bunk proceeding.

       Bunk       accused    Gosselin   of     participating        in    an    unlawful

conspiracy to defraud the MTMC.                  His operative Third Amended

Complaint         (the   “Bunk     Complaint”),       filed   December         8,   2009,

alleged that the conspirators saw their illicit plans bear fruit

when       they   “falsely    represented,       directly     or    indirectly,       in

submitting        claims    for   payments     that   they    had   not    engaged    in

common discussions or agreements regarding prices to be offered

and terms and conditions of service,” such terms and conditions

including “allocation of territories or market share . . . for

work performed under . . . [DPM] Government contracts . . . for

transportation of military personal property.”                       Bunk Complaint

¶ 136. 4

       In a similar fashion, the Complaint filed by Ammons (the

“Ammons       Complaint”)         asserted,     inter     alia,      that       Gosselin

facilitated “a bid rigging scheme,” in furtherance of which it

       4
       The Bunk Complaint is found at J.A. 294-340. (Citations
herein to “J.A. ___” refer to the contents of the Joint Appendix
filed by the parties to this appeal.)



                                          14
and Pasha illegally “control[led] the access to German freight

agents for [ITGBL] origin and destination services[.]”                               Ammons

Complaint ¶¶ 50, 61. 5                This monopoly of access, according to

Ammons,    enabled       the    conspirators            to   “raise    and    control     the

prices    for    a    critical        feature      of    the    services     necessary     to

service    the       traffic    channel       between        Germany   and     the   United

States.”    Id. ¶ 61.

     The Ammons Complaint was superseded on July 18, 2008, by

the United States’ Complaint in Intervention (the “Government

Complaint”).          See 31 U.S.C. § 3730(b)(2) (“The Government may

elect to intervene and proceed with the action.”). 6                          The material

allegations      of     the    Government       Complaint        echoed      those   of   its

Ammons predecessor, in particular the asserted purpose of the

conspiracy,          which     “was     to    obtain         collusive,       artificially

inflated, and noncompetitive prices for transportation services

performed       in    connection       with     [ITGBL]        international     household

goods shipments.”             Government Complaint ¶ 6.                   To advance the

illicit aims of the conspiracy, according to the government,

Gosselin knowingly “submitted or caused to be submitted false

and inflated claims for payment to the United States . . . and




     5
         The Ammons Complaint is found at J.A. 243-58.
     6
         The Government Complaint is found at J.A. 263-93.



                                              15
made,    used    or   caused   to    be   made   or    used   false   records   or

statements to get those claims paid or approved.”                Id. 7

     The   government       thus    maintained    that    Gosselin    was   liable

under    the    FCA   for   treble    damages    and     civil   penalties,     see

Government Complaint ¶¶ 87-93 (First Cause of Action), or, in

the alternative, for common law fraud, for conspiracy to defraud

the United States, and for unjust enrichment, see id. ¶¶ 94-108

(Second through Fourth Causes of Action).                 Bunk, for his part,

pleaded various FCA theories of liability against Gosselin and

others.        See Bunk Complaint ¶¶ 145-59 (Counts I through V).

Suing in his individual capacity, Bunk joined several additional

claims, including a 42 U.S.C. § 1985 claim for conspiracy to


     7
        Though subordinated as a result of the government’s
intervention, Ammons remained in the suit, maintaining his
status as a party-plaintiff. See 31 U.S.C. § 3730(c)(1) (“[T]he
person bringing the action . . . shall have the right to
continue as a party to the action.”).           Bunk’s role was
unchanged, as the government declined to intervene in his
proceeding. See id. § 3730(c)(3) (“If the government elects not
to proceed with the action, the person who initiated the action
shall have the right to conduct the action.”). The government’s
decisions as to intervention bear not only on who conducts the
litigation in the respective matters, but also the eventual
award, if any, to the relator.         Compare id. § 3730(d)(1)
(providing that where “the Government proceeds with an action
brought by a person under subsection (b), such person shall
. . . receive at least 15 percent but not more than 25 percent
of the proceeds of the action or settlement of the claim”), with
id. § 3730(d)(2) (“If the Government does not proceed with an
action under this section, the person bringing the action or
settling the claim shall receive an amount . . . not less than
25 percent and not more than 30 percent of the proceeds.”).



                                          16
interfere with his civil rights, see id. ¶¶ 160-62 (Count VI),

and state law claims for tortious interference with contractual

relations,       for     antitrust       and     related     violations,    and      for

defamation, see id. ¶¶ 163-75 (Counts VII through IX). 8

                                           C.

     On    the    basis    of     the    prior    criminal    proceedings      against

Gosselin, the district court granted partial summary judgment on

liability    to    the    government       on    its   FCA   claim   insofar    as    it

pertained to the Cartwright Channels.                  The    remaining    issues     in

the consolidated matters were tried in Alexandria before a jury,

beginning on July 18, 2011.                    The government explained in its

opening    statement       that    Gosselin,       pursuant    to    the   conspiracy

engendered by the Sonthofen Agreement, engaged in two general

types of wrongful conduct:                (1) unlawfully colluding with its

industry cohorts to inflate the landed rate component of ITGBL

bids involving all German channels, which caused those bids as a

whole — and the resultant DOD payments — to be higher than they

would     have    been    absent        such    collusion     (the   “price-fixing”

conduct); and (2) in concert with Pasha and others, improperly

     8
       Although the government did not intervene in the Bunk
proceeding, the district court determined that all of Bunk’s
claims had nonetheless been effectively superseded by the
Government Complaint, except for Count II of the Bunk Complaint,
which sought recovery under the FCA for Gosselin’s actions in
connection with the DPM scheme.     The court’s ruling in that
regard has not been appealed.



                                           17
influencing Covan and Cartwright to withdraw their initial low

bids in the IS01 and IS02 cycles, respectively, and dissuading

its competitors from matching the Covan and Cartwright bids in

the   affected     channels      (the     “bid-rigging”         conduct).       See

Transcript    of   Trial,   July    18,      2011,   at   54-58.         For   these

asserted    misdeeds,   the   government        sought    both     categories    of

redress permitted by § 3729(a), that is, a fixed civil penalty

for each false claim, plus three times the amount of actual

damages it had sustained.           Bunk, by contrast, chose to forgo

proof of damages, suing only for civil penalties.

      At the close of the government’s case-in-chief, on July 28,

2011, the district court granted in part Gosselin’s motion for

judgment as a matter of law, concluding that the company was

entitled to immunity under the Shipping Act, and it therefore

could not be held accountable under the FCA for its price-fixing

conduct.     See Fed. R. Civ. P. 50(a).              That conduct, the court

explained, was the only basis for imposing liability on Gosselin

for   the    inflated   landed     rate      affecting    all    ITGBL    channels

starting and ending in Germany, and not merely the Covan and

Cartwright Channels that were the sole bid-rigging targets.                      The

court likewise awarded judgment to Gosselin on the alternative,

common law claims, with the result that the only portion of the

government’s case permitted to proceed was its FCA claim, and



                                        18
that    only           insofar    as       it   related          to     Gosselin’s          bid-rigging

conduct directed at Covan and Cartwright.

       Conversely, the district court denied Gosselin’s motion for

judgment          as    a     matter       of   law    with           respect      to    Bunk’s    claim

premised      on        the    DPM     scheme.             The    court       explained         that    the

conduct      engendering             FCA    liability            as    to     that      claim    was    not

grounded in immunized price-fixing, but instead manifested in

the subsequent              Certificate         of     Independent            Price      Determination

(the    “CIPD”)          filed    by       Gosselin.             The        CIPD   was     designed     to

affirmatively assure the MTMC that the successful DPM contractor

had    not    discussed          pricing        or     soliciting            strategy       with   other

potential suppliers.                   Bunk had adduced evidence at trial, the

court recalled, that Gosselin had met with its competitors “and

agreed on prices that would be charged and who would service

territories             regardless         of    who        was        awarded       the     contract.”

Transcript of Trial, July 28, 2011, at 1059.                                            That evidence

created “a triable issue for the jury” as to whether Gosselin

“acted       in    a     way     inconsistent          with           its    certification,”           and,

assuming that the CIPD was false, “whether it was a material

misstatement and whether [it was made] knowingly.”                                         Id. at 1059-

60.

       Gosselin proceeded with its defense, followed by rebuttal

from Bunk and from the government.                           At the conclusion of all the

evidence, the jury was instructed by the district court, heard

                                                      19
the   parties’       closing      arguments,          and    retired    to    consider         its

verdict.        On      August     4,     2011,       after    about        nine       hours   of

deliberations        over    two     days,      the    jury    returned       a    verdict      in

favor of Gosselin as to that portion of the government’s FCA

claim   stemming        from      the    Covan     Channels.         In      regard      to    the

Cartwright      portion      of    the    FCA    claim,       for    which    the       district

court had previously ruled Gosselin liable as a matter of law,

the jury found that the government had proved 4,351 instances of

false or fraudulent claims.                   Finally, the jury found Gosselin

culpable under the FCA for its role in the DPM scheme, as set

forth in Count II of the Bunk Complaint.

                                              D.

                                              1.

      Through its memorandum opinion of October 19, 2011, the

district court disposed of various post-trial motions filed by

the parties.         First, the court deemed the evidence insufficient

to    support     the       jury’s      finding        of    4,351     false       claims      in

connection       with     the      Cartwright          Channels;       it     thus       granted

Gosselin partial judgment as a matter of law, or, alternatively,

a new trial on the civil penalties remedy pertaining to the

government’s         First     Cause     of   Action.          See     Fed.       R.    Civ.    P.

50(c)(1).       We characterize the judgment as “partial” because the

district court declined to decree that the government recover

nothing.        To    the      contrary,      in      line    with     its    prior       ruling

                                              20
regarding the Cartwright Channels, the court entered judgment

for the United States in the sum of $5,500.                         The amount of the

judgment       reflects     the   court’s         conclusion    that    the    whole     of

Gosselin’s bid-rigging misconduct established nothing more than

a   baseline     false      claim,    for    which    the    government       —    in    the

absence of more sophisticated proof — was entitled to receive

only a single civil penalty. 9

      Moving     on    to    consider       the    damages    remedy,    the      district

court observed that the government had collected approximately

$14 million from settling codefendants.                      That amount was far in

excess    of    the    presumptive      damages,       i.e.,    the     $865,000        that

Gosselin paid as restitution in the criminal proceedings, such

liability      under     the    FCA   being       increased    to    $2,595,000         upon

application of the trebling modifier.                       The court thus decided

that Gosselin was entitled to a full offset, with no damages

remaining payable.             Lastly, the court denied Gosselin’s motion

for judgment as a matter of law with respect to Count II of the

Bunk Complaint and held Gosselin liable for 9,136 false claims,



      9
        See United States ex rel. Harrison v. Westinghouse
Savannah River Co., 352 F.3d 908, 920 (4th Cir. 2003)
(ascertaining defendant liable for twenty-six false claims,
consisting of initial fraudulent certification plus twenty-five
resultant invoices).     The government has not appealed the
district court’s Rule 50(c) determination as to the number of
Cartwright Channel claims.



                                             21
corresponding      to     the   number      of       invoices      stipulated     by    the

parties to have been submitted under the DPM contract.

                                            2.

     It    remained       for   the    district          court      to   calculate      the

appropriate civil penalties for the Bunk false claims.                           Treating

each of the 9,136 claims as a discrete basis for liability under

§ 3729(a), imposition of no more than the statutory minimum of

$5,500    would    have    resulted      in      a     cumulative     penalty    just    in

excess of $50 million ($50,248,000). 10                   Gosselin contended that a

multi-million-dollar award would be grossly out of proportion to

its misconduct, and thus in contravention of the constitutional

proscription against excessive fines.                      See U.S. Const. amend.

XIII (“Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.”).

     The district court agreed, and by memorandum opinion of

February    14,    2012,    expressed         its       view   that      the   relatively

isolated    harm    caused      by    the        DPM     scheme,     under     which    the

government paid a total of approximately $3.3 million for the


     10
        Pursuant to 28 C.F.R. § 85.3(a)(9), persons adjudged
liable under the FCA are, as of September 29, 1999, subject to
increased civil penalties amounting to a minimum of $5,500 and a
maximum of $11,000.     See Federal Civil Penalties Inflation
Adjustment Act of 1990, Pub. L. No. 101-410, § 535, 104 Stat.
890 (1990), as amended by Pub. L. 104-134, 110 Stat. 131 (1996)
(directing that agency heads adjust and publish via regulation
certain civil penalties).



                                            22
packing and loading line item, could not justify a $50 million

penalty.        Concluding that it was unauthorized by the FCA to

award less than the $5,500 minimum per claim, and, further, that

each of the 9,136 claims required an award, the court rejected

Bunk’s proposal, in consultation with the government, to accept

$24 million in settlement of the judgment.                 Indeed, the court

concluded in the alternative that, under the circumstances, any

penalty    in    excess   of   $1.5    million   would    be   constitutionally

excessive, and in the event the statute permitted an assessment

of less than $50,248,000, it would award $500,000.

      The district court directed the entry of final judgment as

to   the claims     set   forth   in    the   operative    complaints   against

Gosselin. 11     Encapsulating the various jury findings and legal

rulings set forth above, the court ordered:

      (1) judgment in favor of the Plaintiff the United
      States of America and against Defendants [Gosselin],

      11
        See Fed. R. Civ. P. 54(b) (instructing that “[w]hen an
action presents more than one claim . . . or when multiple
parties are involved, the court may direct entry of a final
judgment as to one or more, but fewer than all, claims or
parties . . . if the court expressly determines that there is no
just reason for delay”).     The court deferred decision on the
relators’ claims for a percentage of the government’s recovery,
together with their requests for FCA attorney fees from
Gosselin, pending final disposition of this appeal.     Also left
pending is the fate of the lone remaining defendant in the case,
Government Logistics, N.V., which was alleged liable as a
successor to Gosselin.    The court denied the parties’ cross-
motions for summary judgment as to the successor liability
question, holding it over for eventual determination by trial.



                                        23
     jointly and severally, in the amount of Five Thousand,
     Five Hundred Dollars ($5,500), on the First Cause of
     Action in the [Government] Complaint . . . ; (2)
     judgment in favor of Defendants [Gosselin] and against
     the Plaintiff the United States of America on the
     Second, Third, and Fourth Causes of Action in the
     [Government] Complaint . . . ; (3) judgment in favor
     of [Bunk] and against the Defendants [Gosselin] as to
     liability on Count II of the [Bunk] Complaint; and (4)
     judgment in favor of Defendants [Gosselin] and against
     the United States of America and [Bunk] as to civil
     penalties on Count II of the [Bunk] Complaint.

J.A. 1621.

     By notice timely filed on March 13, 2012, Bunk and Ammons

jointly appealed the district court’s Rule 54(b) judgment (No.

12-1369).    Thereafter,   on    March   27,   2012,   Gosselin   cross-

appealed (No. 12-1417).    The government noticed its appeal (No.

12-1494) on April 13, 2012. 12     We possess jurisdiction pursuant

to 28 U.S.C. § 1291.



                                  II.

     Intricate issues of law underlie the judgment below and

permeate these several appeals.        Most of the issues concern the

construction and application of federal statutes in a fashion

     12
       In the typical civil case, a party seeking to appeal must
file notice thereof in the district court “within 30 days after
entry of the judgment or order appealed from.” Fed. R. App. P.
4(a)(1)(A).   If, however, “one of the parties is . . . the
United States,” or an agency or official representative thereof,
“any party” to the litigation may appeal within 60 days
following the entry of the judgment or order at issue.       Id.
4(a)(1)(B).



                                  24
consistent with the Constitution.             These legal issues were, with

certain exceptions identified below, considered and decided in

the first instance by the district court, whose rulings thereon

we review de novo.            See United States v. Under Seal, 709 F.3d

257,     261   (4th    Cir.    2013)   (deeming      questions   of    statutory

interpretation and constitutional challenges subject to de novo

review).



                                       III.

                                        A.

                                        1.

       Gosselin suggests that Bunk lacks standing to sue, thereby

challenging the jurisdiction of the federal courts as to that

portion of the consolidated litigation in which the government

has not intervened.            See U.S. Const. art. III, § 2 (limiting

judicial power of United States solely to adjudication of cases

and controversies).       We thus turn our attention at the outset to

Gosselin’s cross-appeal.           See United States v. Day, 700 F.3d

713, 721 (4th Cir. 2012) (“[C]ourts must resolve jurisdictional

Article III standing issues before proceeding to consider the

merits of a claim.”).          According to Gosselin, Bunk’s decision to

bypass    proof   of   actual     damages     and   instead   seek    only   civil

penalties demonstrates that he suffered no injury in fact caused

by Gosselin, such being an essential component of standing.                    See

                                        25
Lujan   v.   Defenders       of   Wildlife,     504    U.S.    555,    560-61        (1992)

(observing that “irreducible constitutional minimum of standing

contains three elements,” i.e., injury in fact, traceability of

injury to defendant’s conduct, and redressability); accord Vt.

Agency of Natural Res. v. United States ex rel. Stevens, 529

U.S. 765, 771 (2000).

      The    Supreme      Court’s       decision       in     Vermont      Agency        is

dispositive of the question.              Therein, Justice Scalia, writing

for   the    Court,    reiterated       that    “[a]n    interest       unrelated       to

injury in fact is insufficient to give a plaintiff standing.”

529   U.S.    at   772.       The   Court      nevertheless         instructed       “that

adequate basis for the relator’s suit . . . is to be found in

the doctrine that the assignee of a claim has standing to assert

the injury in fact suffered by the assignor.”                       Id. at 773.         The

relator provisions of the FCA suffice in that regard, the Court

reasoned, insofar as they occasion a “partial assignment of the

Government’s       damages    claim.”       Id.       This    assignment        in   part,

especially when viewed in the context of the long tradition of

qui tam actions — originating in England about 500 years before

the   ratification      of    the   Constitution        —     see    id.   at    774-75,




                                          26
“leaves no room for doubt that a qui tam relator under the FCA

has Article III standing.”                  Id. at 778. 13

       Gosselin,           however,         seizes       upon     the       Supreme      Court’s

characterization of an FCA action as alleging both an “injury to

[the    government’s]            sovereignty        arising     from       violation      of   its

laws”       and    a    “proprietary         injury       resulting        from   the    alleged

fraud,”      529       U.S.     at   771,    asserting      that      the    civil      penalties

provision redresses strictly the former, with damages payable

dollar for dollar to remedy the latter.                           Gosselin suggests that

only the proprietary injury is an injury in fact for standing

purposes,         and     it    relies      for    support      on    the     Vermont      Agency

language quoted in the preceding paragraph, pointing out that

Justice      Scalia       spoke      only    of    the    FCA   assigning         the    “damages

claim” on behalf of the government.                          Thus, the argument goes,

Bunk’s election to forgo proof of damages and pursue penalties

solely      for     the     government’s          sovereignty        injury      — purportedly

non-assignable — strips him of standing to maintain suit and

thereby      moots        his    portion     of     the    case.        See      Arizonans     for

Official          English       v.   Arizona,       520    U.S.      43,    68    n.22    (1997)


       13
        The Supreme Court’s invocation of the principle of
assignment to establish relators’ standing under the FCA is
sufficient to distinguish Lujan and analogous authorities relied
on by Gosselin, in which plaintiffs suing to vindicate
exclusively their own rights were required to have themselves
sustained a palpable injury in fact.



                                                  27
(“Mootness has been described as the doctrine of standing set in

a     time    frame:            The     requisite     personal         interest       that     must

commence at the outset of the litigation . . . must continue

throughout          its    existence.”       (citations          and     internal      quotation

marks omitted)).

       We are scarcely convinced that the Supreme Court in Vermont

Agency would          have      embarked     by     mere    implication          on   the      novel

dissection urged by Gosselin, without so much as a nod that it

was     breaking          new     ground.           The     judgment           entered       below,

unchallenged          on     its       merits,      confirms        that       the    government

sustained injury by virtue of Gosselin’s conduct, and it is “the

United States’ injury in fact,” without reference to the source

of that injury, that the Court has said “suffices to confer

standing”       on    FCA       relators     like      Bunk,       who    is    not    otherwise

alleged unqualified.                  See Vermont Agency, 529 U.S. at 774.                     That

Bunk made a tactical decision during the course of litigation to

pursue       only    civil       penalties       altered      in    no     material      way     the

fundamental          legal       relationship         among      him     as     plaintiff        and

assignee,       Gosselin           as     defendant        and     tortfeasor,           and    the

government as victim and assignor.

       Moreover, in documenting the use of qui tam actions over

the centuries to buttress the concept of relator standing, the

Vermont       Agency       Court       discussed      so-called        “informer”        statutes

that had been enacted in England and, later, in the American

                                                 28
colonies.       These statutes, designed to redress a host of wrongs

such    as     piracy,    privateering,              and     horse    thievery,      “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 529 U.S. at 775-77 & nn. 6-7.                             We think it

highly unlikely that the Court would have relied on the informer

statutes to reach the result it did in Vermont Agency had it

intended future relators, such as Bunk, seeking precisely the

same sorts of penalty bounties, to be without standing to sue.

       Successful FCA relators can and do recover both damages and

civil    penalties.             See        31        U.S.C.     § 3729(a)         (specifying

defendant’s liability “for a civil penalty . . . plus 3 times

the amount of damages” sustained by the government (emphasis

added)).       The two remedies were thus designed to be unitary, or

at least complementary.               See United States ex rel. Marcus v.

Hess, 317 U.S. 537, 551-52 (1943) (ascertaining that dual remedy

provisions facilitate the “chief purpose” of the FCA to ensure

“that    the     government     would           be    made     completely        whole,”   and

acknowledging      the    problem      Congress            confronted       in   “choosing   a

proper       specific    sum    which           would      give      full    restitution”).

Exemplifying       the     intended         synergy,           the     penalty      provision

fulfills a function similar to that of the damages multiplier.

Cf.    United    States    v.     Bornstein,            423     U.S.    303,      315   (1976)

(touting usefulness of multiplier “to compensate the Government

                                                29
completely for the costs, delays, and inconvenience occasioned

by fraudulent claims”).            As the court of appeals emphasized in

United States ex rel. Main v. Oakland City University, 426 F.3d

914, 917 (7th Cir. 2005), the FCA “provides for penalties even

if (indeed, especially if) actual loss is hard to quantify.”

      The   practical     integration        of   the   remedial     provisions

strongly suggests that they should not be evaluated in isolation

for standing purposes.         This seems all the more so when one also

considers the similar integration between FCA relators and the

government; the statute provides that both share in the ultimate

recovery regardless of which directs the litigation.                 To deny a

relator its bounty on the ground that it cannot pursue penalties

alone would be to deny the United States due recompense, or, in

the   alternative,   to    deprive     the   government   of   its   choice   to

forgo   intervention.          We    decline      Gosselin’s   invitation     to

interpret   the   FCA     in   a    manner   that   disrupts   the    statute’s

careful design.      In holding that relators seeking solely civil

penalties enjoy standing to sue, we find ourselves in agreement

with the two other circuits that have decided the issue.                      See

United States ex rel. Stone v. Rockwell Int’l Corp., 282 F.3d

787, 804 (10th Cir. 2002), rev’d on other grounds, 549 U.S. 457,

479 (2007); Riley v. St. Luke’s Episcopal Hosp., 252 F.3d 749,

752 n.3 (5th Cir. 2001) (en banc).



                                        30
                                           2.

    Gosselin       presses    on,    insisting        that     if     Bunk’s      standing

depends on Congress having assigned him the right under the FCA

to seek redress for the government’s sovereign injury, such an

action by the legislative branch contravenes Article II of the

Constitution, specifically the Appointments Clause and the Take

Care Clause.       The former confers on the President the exclusive

authority to appoint all “Officers of the United States,” except

those who require “the Advice and Consent of the Senate” or

whose appointment Congress otherwise vests “in the Courts of

Law, or in the Heads of Departments.”                 U.S. Const. art. II, § 2,

cl. 2.     The latter mandates that the President “take Care that

the Laws be faithfully executed.”                 Id. art. II, § 3.               Gosselin

contends    that     Congress,       through      the        FCA,    has     effectively

appointed Bunk an officer of the United States.                             This alleged

usurpation of the President’s constitutional role, the argument

goes, has further resulted in Bunk impermissibly wielding the

power reserved to the executive to penalize Gosselin’s violation

of federal law.

    Being derivative of the failed threshold assault on relator

standing pursuant to Article III of the Constitution, the more

nuanced    Article    II     attacks      on    the   FCA      were     purposely     and

pointedly    left    unresolved       by    the    Supreme          Court    in   Vermont

Agency.     Justice    Scalia       was    careful      to    note    that     the   Court

                                           31
“express[ed] no view” on the constitutionality of the FCA under

the Appointments and Take Care Clauses, because the statute was

not contested on either of those bases.                            See 529 U.S. at 778

n.8.         Importantly        for     our     purposes,          however,      the     Court

recognized      that    “the        validity    of       qui    tam    suits    under    those

provisions,” in contrast to the standing afforded the relator to

bring suit, was not “a jurisdictional issue” requiring analysis

and decision.         Id.

       The     same     is     true        here.          Gosselin’s         constitutional

challenges      to    the     FCA    are    newly     raised      in   its     cross-appeal,

having       never     been     presented           to    the     district       court     for

consideration in the first instance.                           Although the question of

Bunk’s standing strikes at the heart of federal jurisdiction

limited under Article III to cases and controversies, whether

the FCA contravenes Article II does not.

       As one of our esteemed colleagues has aptly observed, “it

remains the law of this circuit that when a party to a civil

action fails to raise a point at trial, that party waives review

of   the     issue    unless        there    are     exceptional        or     extraordinary

circumstances justifying review.”                    Corti v. Storage Tech. Corp.,

304 F.3d 336, 343 (4th Cir. 2002) (Niemeyer, J., concurring)

(collecting cases).            We discern no compelling reason to depart

from the usual rule in this case.                        See Singleton v. Wulff, 428

U.S. 106, 121 (1976) (“The matter of what questions may be taken

                                               32
up   and   resolved   for   the   first   time   on   appeal   is    one   left

primarily to the discretion of the courts of appeals.”).                    The

Vermont Agency Court exercised its discretion to withhold ruling

on the Article II challenges not properly before it, and, under

similar circumstances, we do the same.

                                     B.

                                     1.

      We move on to address Bunk’s appeal of the district court’s

ruling that it lacked authorization to enter judgment against

Gosselin on the 9,136 false claims for civil penalties amounting

to less than $50 million and change (insofar as $248,000 can be

considered “change”), notwithstanding that Bunk was willing to

accept a remittitur to $24 million.          Bunk suggests that, to the

extent the district court correctly concluded that the Eighth

Amendment is contravened if the full force of the FCA is brought

to bear on Gosselin, the statute can nonetheless be reformed

within constitutional tolerances by imposing a civil penalty on

fewer claims than proved or stipulated; the same result could be

obtained by disregarding the $5,500 floor per claim.                In support

of the reformation approach, Bunk points to Ayotte v. Planned

Parenthood of Northern New England, in which the Supreme Court

explained that “when confronting a flaw in a statute, we try to

limit the solution to the problem.           We prefer, for example, to

enjoin only the unconstitutional applications of a statute while

                                     33
leaving   other      applications         in    force.”      546    U.S.      320,    328-29

(2006).     We are content to leave the FCA as it is, however, by

reaching the same result another way.

     We     begin     with     the    proposition         that   litigation          usually

commences       to   redress    a    perceived       wrong    against      one   or    more

private persons or entities, or the public at large.                                   As a

society, we seek to encourage this structured, civilized form of

dispute    resolution,       so      it   makes     sense    that   parties      availing

themselves of the courts to sue possess considerable latitude —

so far as may be fair to the defendant — over how the suit

progresses and ultimately culminates.                  In the normal course, the

plaintiff       or   prosecutor       determines      the    claims      or   charges     to

bring,    how    much   discovery         or    investigation       is   reasonable       to

undertake, the evidence and testimony introduced to sustain the

burden of proof, and whether to initiate or accept an offer of

compromise.

     The primacy of the complaining party is reflected in the

legal vernacular.         We often speak of the civil plaintiff being

the “master of his complaint.”                  See, e.g., Lincoln Prop. Co. v.

Roche, 546 U.S. 81, 91 (2005) (“In general, the plaintiff is the

master of the complaint and has the option of naming only those

parties the plaintiff chooses to sue.” (citation and internal

quotation marks omitted)); Johnson v. Advance Am., 549 F.3d 932,

937 (4th Cir. 2008) (acknowledging that “plaintiffs, as masters

                                               34
of   their    complaint,      can    choose       to    circumscribe      their     class

definition” to escape federal jurisdiction under Class Action

Fairness Act); Pueschel v. United States, 369 F.3d 345, 356 (4th

Cir. 2004) (explaining that claim raised in prior proceedings

but not adjudicated was subsequently precluded because plaintiff

was responsible “as the master of her complaint, to make sure

that    the   district       court      identified        all     of    her     claims”).

Similarly, in the criminal context, it is taken for granted that

prosecutors     enjoy      substantial       discretion         with    regard    to   the

persons and offenses they elect to charge.                      See Bordenkircher v.

Hayes 434 U.S. 357, 364 (1978) (“In our system, so long as the

prosecutor     has    probable       cause       to    believe    that    the    accused

committed an offense defined by statute, the decision whether or

not to prosecute, and what charge to file or bring before a

grand jury, generally rests entirely in his discretion.”).

       It is hardly surprising, then, that the FCA was crafted in

acknowledgment        of     the    flexibility          typically       afforded      the

government    to     right    a    public    wrong.       At     the    threshold,     the

United States is vested with the discretion to file or forgo

suit.    See 31 U.S.C. § 3730(a) (providing that, after diligent

investigation, “[i]f the Attorney General finds that a person

has violated or is violating section 3729, the Attorney General

may bring a civil action under this section against the person

(emphasis     added)).        If    a   relator        initiates       suit,    then   the

                                            35
government “may elect to intervene and proceed with the action.”

Id.     § 3730(b)(2)        (emphasis       added).      Upon    intervention     and

notwithstanding           the   objection    of   the   relator,    the   government

may, after a hearing before the court, dismiss or settle the

suit,    see   id.        § 3730(c)(2)(A)-(B),        prerogatives    that,    absent

intervention, inhere in either the government or a relator suing

as the government’s assignee.

      By requesting the district court to enter judgment for a

reduced amount of $24 million on the claims he brought, Bunk, as

the government’s assignee, was merely exercising his discretion

to attempt to bring the case to a suitable conclusion following

the jury’s verdict in his favor.                  A dispute can be settled, of

course, at any time before litigation has commenced, during its

pendency, or after it has finished.                   And settlements often take

the     form   of     a    consent    judgment.         Bunk’s     proposal,    being

unilateral, was not a settlement.                 It was, however, doubtlessly

intended to make the prospect of settlement more palatable for

Gosselin, or — failing that immediate resolution — to smooth

Bunk’s path before the district court and on appeal against the

looming Eighth Amendment challenge.

      In short, Bunk’s effort at a voluntary remittitur was just

the sort of arrow that a plaintiff is presumed to possess within

his quiver.         It must be the rare case indeed where the plaintiff

prevails before a jury, then, under no overt influence from the

                                             36
court or the defendant, elects to take a lesser judgment before

the ink has dried on the verdict form.                    Nevertheless, we imagine

that the plaintiff’s discretion to willingly do so is virtually

unbounded.         In United States v. Mackby, 339 F.3d 1013 (9th Cir.

2003), the district court entered judgment against the defendant

under the FCA for treble damages in excess of $174,000 stemming

from 1459 false claims.             Although the defendant was also liable

for     civil      penalties      on   each       claim,     the    court,       at    the

government’s request, assessed the $5,000 minimum on only 111 of

the claims to add $555,000 to the judgment.                        Neither the court

nor    the   defendant         questioned   the     government’s        discretion      to

proceed in such a manner.               Accord Peterson v. Weinberger, 508

F.2d 45, 55 (5th Cir. 1975) (approving entry of judgment on

civil    penalties       for    only   50   of    120    false    claims    “where     the

imposition      of    forfeitures      might      prove    excessive       and   out    of

proportion to the damages sustained by the Government”).

       By    our    observations,      we    do    not     mean    to   imply    that    a

district court is at the mercy of either the government or a

relator in an FCA proceeding.               Quite the opposite is true:                the

court remains in firm control of those aspects of the litigation

over    which       it   has     always     had     domain,       including      without

limitation scheduling and discovery, the admission and exclusion

of evidence, and the conduct of trial.                           But the court must

permit the government or its assignee the freedom to navigate

                                            37
its    FCA   claims     through        the    uncertain      waters    of      the   Eighth

Amendment.

       We    reluctantly      acknowledge           that   the     perceived         tension

between the FCA and the Excessive Fines Clause of the Eighth

Amendment, which so understandably concerned the district court,

is a monster of our own creation.                      The FCA as enacted could

arguably      have    been    construed        as    authorizing       a    total     civil

penalty not to exceed $11,000 (in addition to treble damages)

against anyone planning or executing a scheme to defraud the

government.      See 31 U.S.C. § 3729(a) (providing that any person

presenting, facilitating through certain means, or conspiring to

present government with a false or fraudulent claim “is liable

to the United States Government for a civil penalty” now ranging

from $5,500 to $11,000 (emphasis added)).

       We    eschewed      such    a    narrow      interpretation,         however,      in

Harrison v. Westinghouse Savannah River Co., 176 F.3d 776 (4th

Cir. 1999) (“Harrison I”), a relator’s appeal from the district

court’s dismissal order, wherein the defendant was alleged to

have   misrepresented        costs      and    withheld      disclosures        to    obtain

subcontracting approval from the government.                           With respect to

the defendant’s requests for reimbursement of its payments to

the    subcontractor,         we       concluded      that       the     FCA    “attaches

liability, not to the underlying fraudulent activity . . . but

to    the    claim   for     payment.”          Harrison      I,   176     F.3d      at   785

                                              38
(citation    and   internal     quotation      marks      omitted).      Moreover,

“each [invoice] constitutes a claim under the False Claims Act,”

id. at 792, on the ground that these invoiced “claim[s] for

payment . . . [were] . . . submitted under a contract which was

fraudulently approved,” id. at 793-94.                 In so ruling, we took

note    of   substantial      amendments    to      the    FCA   thirteen     years

earlier, reflecting the determination of Congress to “‘enhance

the Government's ability to recover losses sustained as a result

of   fraud.’”      Id.   at   784   (quoting     S.   Rep.   No.    99-345,   at   2

(1986), reprinted in 1986 U.S.C.C.A.N. 5266)).

       That approach proved just the tonic in the Harrison cases,

where, it would turn out, the defendant was penalized nearly

$200,000 for submitting twenty-five false invoices.                     See United

States ex rel. Harrison v. Westinghouse Savannah River Co., 352

F.3d 908, 913, 920 (4th Cir. 2003) (“Harrison II”).                         It was

inevitable, we suppose, in view of the vast number of government

contracts — many of prodigious size and sophistication — that

we would confront FCA actions involving thousands of invoices,

thus   exposing    culpable    defendants      to     millions     of   dollars    of

liability for civil penalties.          We are entirely comfortable with

that proposition.        When an enormous public undertaking spawns a

fraud of comparable breadth, the rule set forth in Harrison I

helps to ensure what we reiterate is the primary purpose of the



                                       39
FCA:     making the government completely whole.                       See Harrison II,

352 F.3d at 923 (citing Hess, 317 U.S at 551-52).

       The district court’s methodology cannot be said to have

furthered that statutory purpose.                         Indeed, an award of nothing

at all because the claims were so voluminous provides a perverse

incentive for dishonest contractors to generate as many false

claims    as   possible,          siphoning      ever       more   resources       from   the

government.         Though we agree that the number of false invoices

presented      is    hardly        a    perfect       indicator       of    the     relative

liability that ought to attach to an FCA defendant, injustice is

avoided in the particular case by the discretion accorded the

government     and    a     relator      to     accept      reduced    penalties      within

constitutional limits, as ultimately adjudged by the courts.

                                               2.

       An important question remains as to whether $24 million is

an     excessive     fine     as       applied       to    Gosselin’s      misconduct     in

connection with the DPM scheme.                     According to the Supreme Court,

“[t]he     touchstone        of    the     constitutional            inquiry      under   the

Excessive Fines Clause is the principle of proportionality:                               The

amount    of   the    forfeiture         must    bear       some   relationship      to   the

gravity of the offense that it is designed to punish.”                                United

States v. Bajakajian, 524 U.S. 321, 334 (1998).                            The test is by

no means onerous.            A cumulative monetary penalty such as that

imposed     under     the     FCA       will     violate       the     Eighth      Amendment

                                               40
proscription against excessive fines in the infrequent instance

that     it    is    “grossly      disproportional            to    the     gravity         of     a

defendant’s offense.”            Id.

       The     defendant    in     Bajakajian,          travelling        with    his    family

from   the      United     States      to    Cyprus,        was    detained       by    customs

officials in Los Angeles upon being discovered with cash in his

possession totalling $357,144.                    The defendant pleaded guilty to

attempting to leave the United States with more than $10,000

without reporting it, see 31 U.S.C. § 5316(a)(1)(A), and the

government sought forfeiture of the entire amount.                               In reviewing

the    judgment       of   the    Ninth      Circuit        that    the    government            was

entitled to only $15,000, the Supreme Court assessed the gravity

of the defendant’s offense by its nature and the harm it caused.

       In that regard, the Court explained that the defendant’s

“crime was solely a reporting offense.                            It was permissible to

transport the currency out of the country so long as he reported

it.”     Bajakajian, 524 U.S. at 337.                   Moreover, the “violation was

unrelated to any other illegal activities.                           The money was the

proceeds of legal activity and was to be used to repay a lawful

debt.”        Id. at 338.        Further, the Court observed, the defendant

did “not fit into the class of persons for whom the statute was

principally         designed:       He      is   not    a   money    launderer,         a    drug

trafficker, or a tax evader.”                     Id.    Conviction of the failure-

to-report offense carried a term of imprisonment of no longer

                                                 41
than six months and a maximum fine of $5,000, “confirm[ing] a

minimal level of culpability.”         See id. at 338-39.     Finally, the

resultant harm from the defendant’s failure to report the cash

he was carrying was described as “minimal,” with “no fraud on

the United States, and . . . no loss to the public fisc.”                 Id.

at 339.     The Court thus affirmed the judgment of the court of

appeals, recognizing that the amount sought was “larger than the

$5,000 fine imposed by the District Court by many orders of

magnitude, and it bears no articulable correlation to any injury

suffered by the Government.”       Id. at 340.

       The circumstances of this appeal could not be more readily

distinguishable from those evaluated by the Supreme Court in

Bajakajian.     Signed into law by President Lincoln in the midst

of the Civil War, the FCA was enacted specifically “in response

to     overcharges   and   other   abuses    by    defense   contractors.”

Harrison I, 176 F.3d at 784.          As a defense contractor, Gosselin

is precisely within the class of wrongdoers contemplated by the

FCA.     Gosselin did not commit some sort of technical offense;

its misdeeds were of substance.             For analogous misconduct in

connection    with   the   ITGBL   program    as   it   pertained   to    the

Cartwright    Channels,    Gosselin   was   convicted   of   conspiring    to

defraud the United States, as proscribed by 18 U.S.C. § 371, and

of conspiring to restrain trade, in contravention of 15 U.S.C.



                                      42
§ 1.     Those     offenses     carry     maximum      prison   terms    under      the

pertinent statutes of, respectively, five and ten years.

       Though Bunk sought no damages, the question of economic

harm to the government arising from the DPM false statements was

fiercely     contested    before        the    district    court.        The    court

ultimately concluded that there was insufficient evidence of any

harm, a notion seemingly inconsistent with Gosselin’s apparent

profit motive in making the statements at issue.                    The undisputed

evidence revealed a substantial short-term price increase under

the    DPM   contract    for    similar        services    previously     provided,

perhaps in excess of $2 million, and there is no doubt that the

government has suffered significant opportunity costs from being

deprived of the use of those funds for more than a decade.

       For purposes of our Eighth Amendment analysis, however, the

concept of harm need not be confined strictly to the economic

realm.       The prevalence of defense contractor scams, as often

portrayed     in   the   media,    shakes        the    public’s    faith      in   the

government’s       competence     and     may    encourage      others      similarly

situated to act in a like fashion.                     We made the proper point

more than fifty years ago in Toepleman v. United States:

       [N]o proof is required to convince one that to the
       Government a false claim, successful or not, is always
       costly.    Just as surely, against this loss the
       Government may protect itself, though the damage be
       not explicitly or nicely ascertainable.      The [FCA]
       seeks to reimburse the Government for just such
       losses. For a single false claim[, the civil penalty]

                                          43
      would not seem exorbitant.   Furthermore, even when
      multiplied by a plurality of impostures, it still
      would not appear unreasonable when balanced against
      the expense of the constant Treasury vigil they
      necessitate.

263 F.2d 697, 699 (4th Cir. 1959).            Thus, to analyze whether a

particular award of civil penalties under the FCA is “grossly”

disproportionate such as to offend the Excessive Fines Clause,

we must consider the award’s deterrent effect on the defendant

and   on   others     perhaps   contemplating     a   related    course   of

fraudulent conduct.

      Under the circumstances before us, we are satisfied that

the entry of judgment on behalf of Bunk for $24 million on the

DPM   claim   would   not   constitute   an   excessive   fine   under    the

Eighth Amendment.      That amount, we think, appropriately reflects

the gravity of Gosselin’s offenses and provides the necessary

and appropriate deterrent effect going forward.            To the extent

that the district court was of the view that the constitutional

threshold could not exceed $1.5 million, we have reviewed its

decision de novo, see Bajakajian, 524 U.S. at 336 & n.10, and

have come to the different conclusion set forth above. 14


      14
        Gosselin interposes a number of arguments to the effect
that, for myriad reasons, Bunk and the government are estopped
from advocating for a substantial penalty.         See Br. for
Defendants-Appellees/Cross Appellants at 36-39, 59-65.  We have
carefully considered each of these arguments, and we reject
them.



                                    44
                                         C.

      The   government       appeals    the   district    court’s        Rule   50(a)

determination as to the larger portion of its FCA claim, that

is, those aspects of the claim seeking to hold Gosselin liable

for   its   price-fixing       conduct   affecting      all     channels    with   a

German terminus.         For purposes of this discussion, we exclude

the smaller portion of the FCA claim relating to the Cartwright

Channels, for which the government has received judgment and has

not appealed.         See supra note 9.        The linchpin of the court’s

decision was a provision of the Shipping Act of 1984, 46 U.S.C.

App. §§ 1701-1719, barring application of the antitrust laws to

“any agreement or activity concerning the foreign inland segment

of    through     transportation       that   is   part       of    transportation

provided    in    a   United   States    import    or    export     trade.”      Id.

§ 1706(a)(4). 15         The    court    concluded       that      the    provision

accurately       described     Gosselin’s     agreements      and    activity      to

inflate the landed rate, reasoning further “that a false claim

under the FCA cannot be predicated on price fixing conduct that




      15
       The Shipping Act was amended and recodified in 2006, with
the result that substantially the same provision now appears at
46 U.S.C. § 40307(a)(5).    The referenced exemption applies by
its literal terms merely to liability under the antitrust laws,
but, strictly for purposes of this decision, we assume that it
may also apply to exempt persons from FCA liability.



                                         45
enjoys     a   statutory     immunity       from   the   antitrust     laws.”      J.A.

1137. 16

      In the criminal proceedings pertaining to the Cartwright

Channels,        during    which     Gosselin      admitted    to    similar     price

fixing,     we    rejected   the     same    immunity      argument.     See    United

States v. Gosselin World Wide Moving, N.V., 411 F.3d 502, 509-11

(4th Cir. 2005).             Mindful of the canon that exemptions from

antitrust liability are to be narrowly construed, our friend

Judge      Wilkinson      reasoned    that       because    Gosselin’s    “collusive

effort was aimed at the entire through transportation market,

rather than just the foreign inland segment, we do not think

that they can claim exemption.”               Id. at 510.

      Put      another    way,   Gosselin’s        price-fixing     scheme   did    not

inflate in isolation merely the landed rate quoted the freight

forwarders; it inflated the all-inclusive through rates that the

freight forwarders were induced to bid (and MTMC was compelled

to pay) on each of the channels between the United States and

Germany.       The scheme thus concerned more than just the foreign


      16
       In deciding the immunity issue, the district court relied
in part on the Ninth Circuit’s opinion in United States v. Tucor
International, Inc., 189 F.3d 834, 836-38 (9th Cir. 1999),
wherein the court of appeals declared the defendants immune from
antitrust liability pursuant to § 1706(a)(4).     The facts and
circumstances surrounding Gosselin’s case are dissimilar to
those in Tucor, which, in any event, is not the law of this
Circuit.



                                            46
inland segments from which the landed rate was derived.                              That

the   effect     may    have    been     more    drastic     in      the     Covan     and

Cartwright Channels — burdened with the additional encumbrance

of Gosselin’s bid-rigging efforts — is insufficient reason to

segregate    the      other    channels    for    purposes        of    the    immunity

analysis.

      Adhering to our decision in the criminal proceedings, the

district    court      correctly       granted     summary       judgment          against

Gosselin    as   to    liability    on    that    portion       of     the    FCA    claim

regarding      the     Cartwright      Channels.         The      court,       however,

incorrectly ruled as a matter of law in Gosselin’s favor on the

company’s    price-fixing       conduct    affecting       the    remaining         German

channels, including the Covan Channels.               Gosselin could not have

successfully asserted Shipping Act immunity anew to defeat the

preclusive effect of our prior judgment, and it should not have

been suffered to prevail on the same argument with respect to

the   nearly     identical      circumstances       presented          by    the     Covan

Channels, or to the materially similar circumstances common to

all the German channels.            The jury should have been allowed to

consider the government’s entire case, but, inasmuch as it was

not   so   permitted,     the   verdict     in   favor     of    Gosselin       must    be

vacated as infirm.        On remand, the district court shall conduct

further proceedings, not inconsistent with this opinion, as to

the remainder of the government’s FCA claim.

                                          47
                               IV.

     Pursuant to the foregoing, the judgment of the district

court is affirmed as to Gosselin’s cross appeal.   We also affirm

the entry of judgment in favor of Bunk, but we reverse and

remand the court’s entry of no monetary award, instructing it to

amend the judgment to award $24 million.   Lastly, we vacate the

court’s judgment in favor of the United States so that it may

conduct further proceedings on what remains of the government’s

FCA claim and reenter judgment as appropriate.

                                             No. 12-1417 AFFIRMED

                  No. 12-1369 AFFIRMED IN PART, REVERSED IN PART,
                                   AND REMANDED WITH INSTRUCTIONS

                                 No. 12-1494 VACATED AND REMANDED




                               48
SHEDD, Circuit Judge, concurring in part and dissenting in part:

     I concur in all but Part III-C of the majority opinion.                    In

my view, the district court correctly determined that Gosselin’s

activity     was   immunized   by   the      Shipping   Act,   46    U.S.C.   App.

§ 1706(a)(4), and I would affirm substantially for the reasons

given   by   the   district    court.        See   United   States    v.   Birkart

Globistics GMBH & Co., No. 1:02cv1168 (E.D. Va. Aug. 26, 2011).




                                        49
