Protecting The False Claim Act From “Mal-Interpretation”

Earlier this month, Senator Chuck Grassley of Iowa wrote a letter to Attorney General Bill Barr to express how he “vehemently disagree[s]” with the Department of Justice’s (DOJ) recent position that it has “unfettered discretion” to dismiss whistleblower qui tam suits brought under the False Claims Act (FCA).

Senator Grassley is a seven-term senator who currently serves as Chairman of the Senate’s Finance Committee. He has been a great champion of the FCA and was the author of the 1986 amendments that helped modernize this Civil-War era law to become the most powerful weapon in deterring fraud on the government and the theft of tax dollars.

His letter of May 4, 2020, was in response to an internal memorandum that the DOJ issued (the so-called, Granston Memo) and the position that the DOJ recently took in a Supreme Court case regarding that internal guidance. Essentially, the DOJ has taken the position that the FCA grants it “unfettered discretion to dismiss a case” – meaning that the DOJ has complete and unreviewable authority to have a qui tam case dismissed, even if the whistleblower who brought the case, or the judge who is overseeing the case, disagree.

The letter is a dense six pages of legal analysis, supported by 38 detailed footnotes. Not surprisingly, given Senator Grassley’s position and expertise, it is a master-lesson in the history of the FCA, its finer points and overall purpose. The letter is essential-reading for anyone interested in qui tam litigation and protecting a law that has recovered over $60 billion in stolen government funds.

Senator Grassley explains that the FCA’s plain text and purpose does NOT grant the DOJ unfettered authority to dismiss FCA cases it dislikes. According to Senator Grassley: “What makes this law work is, and always has been, the support from whistleblowers who come forward with these claims. Having unfettered dismissal authority will create a chilling effect on future whistleblowers that will ultimately end up costing the taxpayers a lot more.”

As powerful as the letter is, its most interesting part is at the end where Senator Grassley added the following handwritten note:

Bill: I appreciate that you changed your mind on the constitutionality of the False Claims Act between 1992 and your confirmation to your present position.

But, there are other ways to neuter good legislation even if its constitutional.

I don’t know the number of times the courts have ruled, or DOJ did something harmful, to carrying out the spirit of the False Claims [Act]. And, thank God, I, or Senator Leahy, have been successful passing legislation to correct such judicial or administrative mal-interpretation.

DOJ’s action on Granston is just one more example. Don’t do hurtful action to a very successful piece of legislation again. Successful??: It returned $63 B to the treasury. Yes, successful!!

You can view the letter here. And don’t forget to go to the end to see Senator Grassley’s handwritten missive.