Academic journal article The University of Memphis Law Review

Staying True to the False Claims Act: Why the Government Is an Unexplored Prime Vehicle to Dismiss Cases

Academic journal article The University of Memphis Law Review

Staying True to the False Claims Act: Why the Government Is an Unexplored Prime Vehicle to Dismiss Cases

Article excerpt

I.INTRODUCTION

To rectify the advent of rampant false claims levied against the government in the wake of the Civil War, Congress borrowed from the English practice of deputizing private attorneys general when it enacted the False Claims Act ("FCA").1 Under the FCA, a private individual, known as a relator, assumes the role of prosecuting the presumably under-policed sovereign interest of vindicating fraud on the government.2 The relator benefits through compensation from meritorious claims, and the government benefits through compensation for latent, undetected sovereign injuries.3 Everyone wins (except those liable). But what happens when the government, over the opposition of the relator, wishes to discontinue a case? Whose interests matter? And whose interests should control?

Although State Farm Fire & Cas. Co. v. United States ex rel. Rigsby, a case from October Term 2016, circumscribed a defendant's ability to dismiss an FCA case on the basis of certain statutory violations,4 the Court has yet to address what level of authority the government has in controlling a lawsuit filed in its stead, and how courts should review governmental motions to dismiss. Amid those unresolved questions, advocates seeking to dismiss FCA lawsuits should review not just their clients' procedural vehicles, but also the government's statutory grants of authority. Even if a violation of a statutory requirement does not compel dismissal per se, Rigsby suggests that statutory violations still have valence when persuading the government to move to dismiss cases.5 Among the grounds that the government could articulate in seeking to dismiss a case, a statutory violation presents a crisp argument in support of dismissal.

This Article proposes that advocates seeking to dismiss FCA lawsuits should explore all options, including persuading the government to exercise its statutory right to dismiss the case. In three parts, the Article introduces the FCA, reviews Rigsby, and explains how statutory violations can assist in convincing the government to dismiss these lawsuits. Although a circuit split has formed on the legal standard for determining when a court can enter a judgment dismissing an FCA case on motion by the government, under all standards, advocates should apprise the government with haste of statutory violations and explain how those violations impinge otherwise countervailing interests in seeking sovereign relief.6 And in those limited instances when the government moves to dismiss, courts should give special solitude to the government's determination that its interests are best served by dismissing the case.

II.THE FALSE CLAIMS ACT

The Latin phrase qui tam is short for qui tam pro domino rege quam pro se ipso in hac parte sequitur, meaning a person "who pursues this action on our Lord the King's behalf as well as his own."7 In a qui tam action, a private individual, known as a relator, sues on behalf of the United States as a partial assignee.8 Such lawsuits are creatures of statute, lacking a judicially recognized American common-law origin.9 Courts have observed that qui tam causes of action have been used throughout American and English history for, among other things, discovering and prosecuting fraud against the government.10 And while the United States has referenced the English system to justify the legality of qui tam statutes, as irony would have it, the English system has since abolished all such statutes.11 Qui tam statutes also have a long tradition of withstanding constitutional attacks under a variety of theories.12

The FCA, one of the few remaining qui tam statutes under federal law,13 "imposes significant penalties on those who defraud the Government."14 Enacted in 1863,15 the FCA "was originally aimed principally at stopping the massive frauds perpetrated by large contractors during the Civil War."16 Specifically, "'[a] series of sensational congressional investigations' prompted hearings where witnesses 'painted a sordid picture of how the United States had been billed for nonexistent or worthless goods, charged exorbitant prices for goods delivered, and generally robbed in purchasing the necessities of war. …

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