Page:U.S. ex rel. Polansky v. Executive Health Resources.pdf/14

10 the express intervention prerequisite of Paragraph 1 carries forward into Paragraph 2 through the “subject to” clause connecting the two. Only when Paragraphs 3 and 4 are reached does the necessity of intervention drop away. Recall that they apply, respectively, when “the Government elects not to proceed” and “[w]hether or not the Government proceeds.” See. By contrast, Paragraph 2 is explicitly hooked to Paragraph 1, which applies only when “the Government proceeds.”

And just to pile on a bit, the Government’s alternative construction would create surplusage twice over. Consider first the “[w]hether or not” introductory clause of Paragraph 4, noted just above. On the Government’s view, that clause has no function: A provision lacking it would likewise apply “whether or not” the Government chose to intervene. The Government essentially concedes the point, urging only that Paragraph 4’s preface is “the sort of redundancy that is common in statutory drafting.” Brief for United States 25 (internal quotation marks omitted). Similarly for the “subject to … paragraph (2)” proviso in Paragraph 1. On the Government’s view, Congress need not have included that language, because every qui tam action (not just those described in Paragraph 1) is “subject to” Paragraph 2’s limits. Again, the Government’s only response is that “Congress sometimes includes language that could be viewed as ‘redundant.’ ” Id., at 22. Yes, sometimes. But on top of everything else, the Government’s double violation of the interpretive principle that “every clause and word of a statute” should have meaning, Montclair v. Ramsdell, 107 U. S. 147, 152 (1883), dooms the view that Paragraph 2 applies even when the Government has not intervened. The paragraph does not then apply—which means that the Government cannot then file a (2)(A) motion to dismiss.

At the same time, a straightforward reading of the FCA