False Claims-Qui Tam News

The Supreme Court is scheduled to hear arguments on Tuesday in Cochise Consultancy, Inc. v. United States, a case that will determine the statute of limitations window for False Claims Act (FCA) cases when the government declines to intervene.

At issue:  How should the statute of limitations apply in a qui tam suit in which the United States declines to intervene?  Does the three-year limitations period begin to run from the date of the whistleblower’s knowledge of the alleged false claim. Or does it begin on the date of the government official’s knowledge of the alleged false claim?

The case revolves around whistleblower Billy Joe Hunt. In 2013, he filed a qui tam case alleging fraud by his former employer, a war contractor performing munitions clean-up work in Iraq in 2006. The government declined to intervene in Hunt’s case and it was dismissed by a district court.  The Eleventh Circuit then allowed the case to go forward ruling that the FCA’s three-year limitations period was triggered by the government’s knowledge of the alleged fraud—not the whistleblower’s knowledge.

Those arguing in support of the Eleventh Circuit ruling include the federal government and a 20-state coalition. An amicus brief filed on the coalition’s behalf by the Indiana attorney general argues that the states have a “strong fiscal interest in ensuring the False Claims Act (FCA) provides adequate time to investigate, prepare, and file FCA claims.”


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The Department of Defense Inspector General (DOD IG) should coordinate with the military services to do a better job of protecting whistleblower confidentiality and addressing delays in handling cases, according to a new report.

The Government Accountability Office report found the IG offices have made progress since past reviews, but needs to do more to protect confidentiality. The review found that employees without “the need to know” have had access to sensitive whistleblower information.

While the timeliness of handling cases has improved in some areas, delays persist in others, according to the report.  For example, the average number of days to complete military and contractor reprisal investigations increased between 2017 and 2018 from 394 days to 541 days.

The DOD IG completed closed 73 investigations in 2018, including 13 senior official misconduct cases and 60 military, contractor, and civilian reprisal cases. However, about 85 percent of all investigations “did not meet the timeliness goals.”


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The False Claims Act (FCA) has long served as a powerful weapon against fraud and waste in government programs, from rancid Civil War rations to Medicare scams. The Department of Justice (DOJ) recovered $2.88 billion under the law last year, with whistleblowers involved in the majority of cases.

March 2 marks the  anniversary of the law, which was signed in 1863 by President Abraham Lincoln. After the Civil War, the FCA continued to identify military contractors guilty of mismanagement and fraud. With rising health costs, much of it covered by Medicare, most cases now involve medical providers and suppliers. The DOJ’s December report noted that $2.5 of the $2.8 billion in recovery involved the health care industry.The first line of a story in the trade publication Modern Healthcare reports “Healthcare industry groups have always hated False Claims Act whistleblower lawsuits.”


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When does the statute of limitations clock start running in a False Claims Act (FCA) case when the government declines to intervene in a whistleblower case?  That is the question the Supreme Court will consider when it takes up Cochise Consultancy, Inc. v. United States.

The National Whistleblower Center filed an amicus curiae brief in the case this week.

At issue: Must an FCA plaintiff rely on the statute of limitations in a suit in which the United States declines to intervene?  If so, does the three-year limitations period begins to run from the date of the whistleblower’s knowledge of the alleged false claim, or from the date of the government official’s knowledge of the alleged false claim?

The brief, written by NWC executive director Stephen M. Kohn, notes that his organization takes the position that the “merits of a claim often bear no relation to the duration of a case.”
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Some might see whistleblowers as lucky lottery winners when their multimillion-dollar rewards come through. But, the title of the piece in the February 4 issue of The New Yorker reflects the other side of the story: “The Personal Toll of Whistleblowing”

“Whistleblowers are usually, but not always, employees or members of the group on which they’re blowing the whistle; after they do so, their lives are never the same,” writes Sheelah Kolhatkar. She joined The New Yorker in 2016 after a writing about Wall Street and financial crime for Bloomberg Businessweek.

“Institutional denial, obfuscation, and retaliation are hallmarks of many whistle-blowing cases,” she writes.

new york whistleblower artKolhatkar runs through a list of notable whistleblowers, including  New York City police officer Frank Serpico,  tobacco company whistleblower Jeffrey Wigand; Sherron Watkins of Enron; and National Security Agency contractor Edward Snowden.  That they were all portrayed in Hollywood films is no surprise. Whistleblower tales are often David versus Goliath dramas.


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William Barr Attorney General nominee William Barr this morning committed to “diligently uphold” the False Claims Act during a Senate Judiciary Committee hearing on his nomination.

Under questioning from Sen. Chuck Grassley, Barr said the constitutionality of the law has been upheld by the Supreme Court.

Grassley asked: “If confirmed do you commit to not take action to undermine the False Claims Act? Further if confirmed will you continue Justice department staff and funding levels to to properly pursue and and prosecute cases under the FCA?”

Barr: “Yes, I will diligently enforce the False Claims Act.”


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While serving as Assistant Attorney General under the first President Bush, William Barr took aim at the whistleblower provisions of the False Claims Act.

Whistleblower Lawyer Stephen M. Kohn
      Stephen Kohn

Now President Donald Trump’s Attorney General nominee, Barr stood alone among top Justice Department officials in vehemently opposing” the provisions,  Stephen M. Kohn, a partner in the firm Kohn, Kohn and Colapinto writes in the January 13 issue of The Hill.

“Although his arguments against the False Claims Act have long been discredited, his underlying reasoning reveal a deep-seated animus against whistleblowers,” Kohn writes.

The National Whistleblower Center has issued an “Action Alert,” calling on supporters to contact members of the Senate and urge them to Question Barr on his prior anti-whistleblower positions :


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Is the False Claims Act an “abomination”? Are whistleblowers “bounty hunters”? That’s what Attorney General nominee William Barr said during in a 2001 interview conducted at the University of Virginia’s Miller Center. Now, a group of advocates, academics and attorneys has asked U.S. Senate Judiciary Committee Chairman Chuck Grassley to find out if Barr still feels that way after 18 years.

Committee hearings on Barr’s nomination begin on January 15.
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Despite Slowdown in Prosecution, Whistleblowers Continue to Play the Critical Role in Detecting Fraud. In statistics published this week by the U.S. Department of Justice, the U.S. government’s recoveries under the False Claims Act (“FCA”) hit their lowest mark since 2008, the last year of President Bush’s administration.  
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Frederic-Whistehurst-FBI-whistleblowerIn a new Trailblazers podcast episode titled Forensics: Who’s on the case, Walter Isaacson delves deep into the history of forensic fraud cases. The show details three stories of victims wrongly accused by criminal investigators and faulty forensic practices. What does history teach us about the validity of forensic technology?

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