Salcido Articles in Government Contracting Law Report Address Circuit Court Splits in FCA Cases
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Government Contracting Law Report has published the article series “False Claims Act Circuit Splits: FCA Issues That May Soon Reach the Supreme Court or Lead to Congressional Amendment,” which was written by Akin Gump health partner Robert Salcido.
Salcido begins Part I by giving a brief history of the FCA, describing some of the challenges Congress faced when writing the law. One of them, he wrote, “was to provide private plaintiffs with sufficient incentives to file an action and yet not usurp the executive branch’s constitutional power to enforce the law.” Another was to allow “private persons to receive a statutory bounty from the government that is proportionate to the value that the private person contributed in filing the action,” as long as excessive wealth was not redistributed from the government—the actual victim in any FCA action—to private persons and their counsel. Congress, however, used some ambiguous language when the law was created, Salcido noted, which has led to the circuit court splits we now see.
Resolving the splits, Salcido said, is important for several reasons, which he proceeds to outline. He suggests that, in doing so, the courts could “effectuate the FCA’s purpose, which as multiple courts have recognized, is to advance the government’s interest, and not merely to enrich relators or their counsel.” He also writes that the statute should be interpreted so that “that the United States must expressly consent to the termination of any FCA litigation and have the unfettered right to dismiss any qui tam action that is not in the government’s interest and that relators cannot be deemed to be responsible government officials for purposes of tolling the statute of limitations.”
In Part II, Salcido examines circuit splits addressing whether relators should be permitted to advance actions when they fail to report nonpublic information to the government. He writes that courts have also split “regarding the extent to which the relator must have the ability to state a single false claim with specificity before proceeding with an FCA action.”
Salcido outlines the various splits and how they should be resolved. They include:
- the first-to-file bar, which is designed “to avoid needlessly duplicative qui tam actions based upon the same essential facts when the government has already obtained information regarding the alleged fraud based upon a previously filed qui tam action
- the meaning of the word “public” in the FCA’s public-disclosure bar, which Salcido writes was created in 1986 to “to prohibit those actions in which the allegations or transactions underlying the lawsuit have been publicly disclosed … unless the relator contributes material, independent information that advances the government’s knowledge of the case and hence qualifies as an original source.
To read the first part of the article series, please click here. For the second installment, please click here.
