On January 7, 2021, President Biden announced that Merrick Garland would be his nominee to serve as Attorney General. As the Senate inches closer to confirmation hearings, many are scrutinizing Garland’s past record as a prosecutor and judge to determine what Garland’s appointment might mean for the future of the Department of Justice. Although Garland’s experience with the False Claims Act (“FCA”) appears to be minimal, his judicial opinions indicate that he views the False Claims Act as a broad and powerful arrow in the government’s quiver.
Biden’s nomination is not the first time that Garland’s views of the FCA have fallen under scrutiny. As part of his nomination to the Supreme Court by President Obama, Garland identified two FCA opinions in his Questionnaire for Judicial Nominees.
In U.S. ex rel. Tesudian v. Howard University (1998), Garland, writing for the majority, addressed the standards for a whistleblower asserting retaliation claims under the FCA. Overruling the district court, the D.C. Circuit held that the FCA does not require a whistleblower to have brought or even threatened an FCA investigation or lawsuit against his employer in order to bring a retaliation claim. Indeed, a whistleblower need not even know that certain conduct would violate the FCA, but merely need only be investigating activity that could reasonably lead to a FCA case in order to engage in protected activity.
Later, in U.S. ex rel. Totten v. Bombadier Corp (2004), the D.C. Circuit held that an invoice submitted to Amtrak for payment was not actionable as a claim presented to the government for purposes of the FCA, unless Amtrak also presented that claim to the government. Garland dissented and wrote, “[a]lthough Amtrak receives billion of dollars in federal funds that it uses to pay contractor invoices, because it does not (and is not required to) re-present those invoices to the federal government, the court’s ruling immunizes those who defraud even that government-funded corporation from False Claims Act liability.” Garland relied heavily on legislative intent, noting that when Congress enacted the FCA it “wrote expansively” and “to reach all types of fraud, without qualification, that might result in financial loss to the Government.”
In both of these opinions, Garland seems to take an expansive view of the FCA. Whether or how those views shape DOJ policy with respect to FCA enforcement actions is unknown, but it is clear that Garland’s views of the FCA are in stark contrast to his predecessor’s. Specifically, Attorney General Barr stated the qui tam provision of the FCA was an “abomination.” He viewed it as merely a bounty hunter statute that violated the appointments clause of the Constitution and as something to attack.
The attorneys at Chilivis Grubman represent clients of all types and sizes in connection with False Claims Act investigations and qui tam litigation. If you need assistance with such a matter, please contact us today.