This section contains the nature of the case and procedural background.

P, a former nurse at D, sued eight defendants under the qui tam provisions of the FCA, claiming that they defrauded and conspired to defraud the United States Treasury in violation of the statute. The government exercised its right not to intervene under 31 U.S.C. § 3730(b)(4)(B) (2000). The district court dismissed the suit for standing. On appeal, the court held that P had standing to sue under Article III, but qui tam actions pursued under the FCA in which the government does not intervene violate the doctrine of separation of powers and the Take Care Clause. The government intervened and the en banc court heard the case.

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