The court denied defendants' motion to dismiss plaintiff's qui tam false marking action for violating the Appointments Clause and the Take Care Clause of the U.S. Constitution. "[D]efendants have failed to persuade the court that unless a qui tam action provides specific provisions permitting substantial control by the government, the statute is unconstitutional under Article II's 'Take Care' Clause. . . . [W]hile § 292 is nominally a criminal statute, the punishment for violating the statute is merely a civil fine. . . . Accordingly, the court does not agree that the statute can reasonably be characterized as invoking the executive's core function of criminal prosecution." With respect to the Appointments Clause, the court reasoned: "There is simply no evidence that [plaintiff's] -- or any other entity's -- use of § 292(b)'s qui tam provision makes it an 'officer' of the United States government. . . . [P]laintiff is acting as nothing more than the assignee of the government's claim for false patent markings. Defendants have provided nothing to even suggest that plaintiff, as an assignee, is an officer of the United States as the term is used in Article II."
Hy Cite Corporation v. Regal Ware, Inc., et. al., 3-10-cv-00168 (WIWD March 15, 2011, Order) (Conley, J.)