The deadline for three organizations to file a petition for review with the U.S. Supreme Court has now passed. The Fourth Circuit's March 28, 2011, decision is now the final word in ACLU v. Holder. Today, the ACLU's chief counsel, Christopher Hansen, confirmed to me that they decided against appealing to the Supreme Court.
In ACLU v. Holder, three organizations asked a federal court to declare that the "seal" provision of the False Claims Act (FCA) was unconstitutional. These organizations were the American Civil Liberties Union (ACLU, and its Virginia affiliate), OMB Watch and the Government Accountability Project (GAP). The FCA's seal allows whistleblowers to file a lawsuit that will not be open for public inspection for an initial period of sixty (60) days. The seal allows the federal government to investigate the allegations to determine if it will intervene in the case to assert the government's right to remedy the alleged frauds. The government can ask the court to extend the seal, and the court must consider whether the government's request is in the public interest. If the seal were invalidated, then the perpetrators of the fraud could receive notice of the allegations, and they could take action to conceal or fabricate evidence before government investigators arrived.
After the Fourth Circuit issued its decision, the National Whistleblowers Center (NWC) issued an open letter to the three groups urging them not to pursue their claim. NWC's letter explained how the seal is an essential element of the FCA's strategy for redressing frauds against the public fisc. We urged the groups not to appeal because the FCA is the most effective whistleblower law in history and has recovered billions of taxpayer dollars. Other prior blog posts about this case are available here, here and here.
Mr. Hansen would not discuss the reasons for not pursuing an appeal to the Supreme Court, except to say that the decision was not made by the ACLU's board, but was made based on "the best interests of the client." Frankly, I am not so concerned now about the reasons for this last decision against a petition to the Supreme Court. I am thankful that this ill-advised endeavor has come to an end with the FCA's seal intact.