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Rh the action, or it did not intervene and was permanently excluded from the action. See 57 Stat. 608–609. Finally, in 1986, Congress revamped the FCA into its modern form, under which (as never before) the Government and the relator can litigate side by side as co-plaintiffs in the same action. In creating this possibility, Congress tweaked both halves of the previous regime in roughly parallel ways. If the Government intervenes during the seal period, paragraphs (c)(1) and (c)(2) now permit the relator to remain a party and play a role in the litigation—but only a subordinate role. Conversely, if the Government does not intervene and proceed with the action during the seal period, it is not forever barred from taking a litigating role—but, if it intervenes later, it does not downgrade the relator’s “status and rights” to those of a second-chair litigant. §3730(c)(3).

In sum, the text, structure, and history of the FCA all point to the same conclusion. The FCA affords the Government no statutory right to unilaterally dismiss a declined action when it intervenes under §3730(c)(3).

However, the text and structure of the FCA are not the end of the story. Defendant-respondent has pointed to serious constitutional questions that might affect the disposition of the Government’s motion here. At the same time, it is not clear that the parties have examined these questions in their full complexity, and the Third Circuit’s reading of §3730(c) gave it no reason to do so. Therefore, after holding that the Government could not invoke the dismissal authority of §3730(c)(2)(A) as a statutory matter, I would remand this case for the Third Circuit to consider whether the Constitution nonetheless requires the dismissal of petitioner’s suit.

The FCA’s qui tam provisions have long inhabited something of a constitutional twilight zone. There are substantial arguments that the qui tam device is inconsistent with