Academic journal article Defense Counsel Journal

Age Doesn't Save False Claims Act

Academic journal article Defense Counsel Journal

Age Doesn't Save False Claims Act

Article excerpt

Although enacted in 1863 and having survived some attacks, the False Claims Act in its present form is unconstitutional under the separation of powers doctrine insofar as it attempts to confer standing on qui tam plaintiffs who have suffered no cognizable injury under Article III. "The historical use of qui tam actions is not proof of its constitutionality," the U.S. District Court for the Southern District of Texas observed. "History alone cannot validate a practice that violates constitutional law."

As amended in 1986, the False Claims Act authorizes both the U.S. Attorney General and private persons to bring civil actions to enforce the act's prohibitions of fraud against the federal government. The private party is known as a "qui tam plaintiff' after the Latin phrase qui tam pro domino rege quam pro se imposo sequitur, in English "who brings the action as well for the king as for himself," and shares in the recovery. If the action is brought by a qui tam plaintiff, the government has 60 days to decide to intervene. If it doesn't come in, qui tam plaintiffs proceed on their own.

That's what happened in this case, which was commenced under the act by a nurse who alleged that the hospital at which she worked filed false claims for Medicare and Medicaid reimbursement. She did not claim to have suffered an injury herself. The government declined to intervene. The hospital filed various motions to dismiss the suit. …

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