SCOTUS discusses statute-of-limitations question in False Claims Act cases

The Supreme Court engaged in oral argument this week over an issue of the False Claims Act: how two separate statute-of-limitations provisions apply to False Claims Act actions when the federal government has not intervened in the relator’s qui tam suit.

Cochise Consultancy Inc. v. United States, ex rel. Hunt stems from a more recent period of U.S. military history — the deployment of U.S. forces in Afghanistan and Iraq. Whistleblower Billy Joe Hunt alleges that Cochise Consultancy and another defense contractor defrauded the federal government in a contract to clean up munitions left behind by Iraqi forces.

The law’s original statute of limitations requires lawsuits to be filed within six years of the alleged fraud. In 1986, Congress added a second statute of limitations, Section 3731(b)(2), which permits suits up to three years after “the official of the United States charged with responsibility to act in the circumstances” learns the “facts material to the right of action,” but not more than 10 years after the alleged fraud. Both statutes of limitations apply to a “civil action under section 3730,” and “whichever occurs last” controls the case.

Hunt’s FCA suit was filed in 2013, more than six years after the alleged fraud, which occurred in 2006 and 2007. Hunt argues that his case qualifies for Section 3731(b)(2)’s alternative statute of limitations because he filed suit less than three years after the relevant “official of the United States” learned of the alleged fraud in 2010. The defendants argue that a relator only receives the benefit of the “three year” rule if the Government intervenes.

If the federal government had intervened in Hunt’s suit, the alternative statute of limitations plainly would have applied. But the government did not intervene. The district court dismissed the suit as untimely, but the U.S. Court of Appeals for the 11th Circuit reversed, taking a position different from conflicting views in several other circuits. The 11th Circuit held that relators can invoke Section 3731(b)(2) in suits in which the United States is not a party and that Section 3731(b)(2)’s three-year limitations period does not begin until the government learns of the alleged fraud, regardless of when the relator discovers it.

The Supreme Court will now deliberate and issue a written opinion (hopefully) settling this question once and for all.

False Claims Act Year in Review: 2018

The Department of Justice has recently announced its year end statistics for False Claims Act cases and the results are exciting!

Highlights include:

-Nearly three billion dollars recovered (more than $2.8 billion) in settlements and judgments. And this does not consider additional money returned to state Medicaid programs. Of the $2.8 billion, $2.1 billion was attributable to qui tam cases. (The Government can bring a False Claims Act case without having a relator.)

-About $2.5 billion of that money – about 53% – came from healthcare-related matters, i.e., fraud on the Medicare, Medicaid, Tricare, and other government-funded healthcare programs. This includes the $84.5 million settlement that our firm had with a Detroit-based hospital. Pretty exciting to think that one of our cases was responsible for about 4% of all qui tam recoveries!

-Whistleblowers filed 645 qui tam suits in fiscal year 2018.

-Relators’ shares awarded during the fiscal year totaled $301.7 million, with $32.6 million in shares paid in declined cases.

-The number of lawsuits filed under the qui tam provisions of the Act has grown significantly since 1986, with 645 qui tam suits filed this past year – an average of more than 12 new cases every week.

“Whistleblowers have played a vital role in unmasking fraudulent schemes that might otherwise evade detection,” said Assistant Attorney General Jody Hunt.  “The taxpayers owe a debt of gratitude to those who often put much on the line to expose such schemes.”

You can find the full statistics here.

Julie Bracker & Jason Marcus Honored by Super Lawyers Magazine Again!

Bracker & Marcus LLC is proud to announce that partner Julie Bracker has been selected as a Super Lawyer for the third year in a row, and partner Jason Marcus has been selected as a Rising Star for the fourth year in a row, by Super Lawyers Magazine for the state of Georgia. We are humbled and thankful to our peers for this recognition.

Each year, no more than 5 percent of the lawyers in the state are selected by the publication's research team to receive the honor of being named a Super Lawyer. No more than 2.5 percent of the lawyers in the state are named to its list of Rising Stars.

At Bracker & Marcus LLC, we represent whistleblowers in False Claims Act (or qui tam) lawsuits. The FCA is a complex statute - not one that can easily be picked up just from a casual review of the statute itself. Don't fall into the trap of launching your case without a super lawyer on your side. Julie and Jason are ready to assist you, starting with evaluating whether your situation needs to be brought to the attention of the Government, and if so, how. If you are aware of any fraud, waste, or abuse of government money, contact us.

Walking in a Winter Whistleblower Wonderland

While I certainly did not intend to turn this False Claims Act law blog into a travel blog, here we go again!

After a 35-day shutdown, the Government was finally back open for business on Monday. The early bird gets the worm, so I hopped on a flight to beautiful and frigid Grand Rapids, Michigan on Sunday night for a meeting at the office of the U.S. Attorney for the Western District of Michigan on Monday morning. And when I woke up that day, I saw more snow than I’ve ever seen in my life!

Michigan

Although the entire state took a snow day (and when Michigan closes for snow, you know it’s serious), the wonderful people at the U.S. Attorney’s Office came in just to meet with my whistleblower client and me, so that I could get out of town before things got really bad.

When we say we are a national False Claims Act firm, we mean it. We represent whistleblowers in qui tam cases all across the country (Although we are still waiting for that Hawaii case! Come on, Hawaiian whistleblowers!), and sometimes that can mean flying to western Michigan in the face of a January winter storm. We love our work and we love our clients, and we will do whatever we can to get your case filed and investigated as smoothly and quickly as possible.

Next stop: Washington, D.C.

Whistleblowers are Vital to National Security, Now More than Ever.

Note: This was scheduled to post on Wednesday, it didn’t due to technical difficulties, and now the shutdown is over! But with yet another potential shutdown on the horizon, I’m posting this anyway. Enjoy!

“One overriding fact is clear when you listen to FBI Agents: Financial security is national security.”

Earlier this month, the FBI Agents Association released a presentation called Voices From the Field: FBI Agent Accounts of the Real Consequences of the Government Shutdown, giving firsthand accounts of the affects the shutdown is having not only on the individual agents, but also on ongoing federal investigations.

“The shutdown has eliminated any ability to operate.… It’s bad enough to work without pay, but we can only conduct administrative functions while doing it. The fear is our enemies know they can run freely.”

Over the last two years, media reports about the FBI have been so targeted towards their investigations into political activities, it is easy to forget that this is just small part of what the FBI addresses. Regardless of your political views, the FBI performs essential roles that we can all agree are necessary to maintain a safe and secure country, including:

  • Crimes Against Children and Sex Trafficking

  • Drug and Gang Crime

  • Counter-Terrorism

  • Cybersecurity

  • Healthcare and Securities Fraud

“Operationally, I requested a subpoena from the U.S. Attorney's Office yesterday and was told it may take a while because their legal assistants are furloughed. Depending on how long the shutdown lasts, it could be several weeks before my subpoena is issued.”

As long as the partial shutdown is ongoing, the FBI (like the U.S. Attorneys and Department of Justice) are limited in their ability to investigate both the criminal and civil frauds being perpetrated throughout the country. Bad guys are running rampant, knowing that they aren’t being watched as closely. The Government lacks the resources to monitor fraudulent activity, and so during this time, more than ever, private citizens, aka whistleblowers, are vital to maintaining national security. It is up to you, and to us as your qui tam counsel, to keep an eye on the bad guys and to bring False Claims Act cases to put a stop to fraud.