Blowing the Whistle on Civil Rights: Analyzing the False Claims Act as an Alternative Enforcement Method for Civil Rights Laws*

Article excerpt

Traditional antidiscrimination laws do not effectively deter or remedy civil rights violations by local governments and related entities. The federal government lacks the resources to litigate more than a limited number of large discrimination cases at one time.1 Individually injured civil rights litigants face significant statutory and court-imposed limitations on making discrimination claims against local governments.2 Public interest litigators advocating for institutional change face problems of standing3 and the challenge of pushing for broader social change while remaining loyal to individual clients.4

As a few commentators and litigators have recognized, albeit in limited circumstances,5 the False Claims Act (FCA)6 offers antidiscrimination civil rights litigators a powerful alternative path for litigating against discrimination, and possibly other civil rights violations, by local governments. The FCA provides for a private claim against federal government contractors and grant recipients, including local governments, when those entities violate the terms of their contracts or grants.7 Under the FCA, a private person can bring a claim on behalf of the United States and, in exchange, receive a large fraction of treble contract damages plus civil monetary penalties and attorneys' fees.8 Civil rights litigants can use the FCA because counties, cities, police departments, local hospitals, and public schools receive federal grant money.9 As a condition for receiving and keeping those grants, local governments agree to comply with civil rights laws, including laws against employment discrimination and discrimination in how the entities provide services paid for with federal grant money.10 FCA claims arguably exist against local governments when they fail to comply with antidiscrimination grant terms while either continuing to request disbursements of federal grants or while retaining the federal money they have already received.11

The FCA offers significant benefits to civil rights plaintiffs. Plaintiffs' (called "relators" in the FCA) damages, can be quite large-up to 30% of a maximum of triple the value of the contract or grant-and plaintiffs can also take away per-claim civil penalties as well as ask for attorneys' fees.12 These significant damages should incentivize private attorneys to litigate these claims as well as disincentivize government entities from violating antidiscrimination statutes.13 And because the injured party under the FCA is the United States,14 institutional-change litigants do not face the standing problems they otherwise have to overcome under laws based on remedying individual injuries.15

The FCA provides civil rights litigators with another avenue for enforcing antidiscrimination laws, but it also comes with risks. This Note argues for using the FCA to defend civil rights to the benefit of discrimination victims.16 It also argues that agencies should use their flexibility in contracting to expand the civil rights requirements of contractors to include requirements of compliance with constitutional norms appropriate for the recipient agency.17 Despite this Note's optimistic view of increasing damages against civil rights violators, there are risks to increasing the size of damages. Greater damages hurt local government coffers despite the Court's and Congress's professed desire to protect local governments from punitive damages in the civil rights context.18 Larger damages for relators also could discourage the worthy goal of reconciliation between the injured party and the local government.19 Furthermore, these penalties could decrease the local government's willingness to admit wrongdoing in traditional civil rights disputes because they will know that reconciliation and settlement would not bar future FCA claims by third parties based on those admissions.20 This Note argues that despite these risks, when used judiciously by litigants, the FCA can play a useful role where individual remedies do not suffice or institutional-change litigants lack standing to apply pressure. …