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FCA Qui Notes
January 18, 2019

AG Nominee William Barr Confirms He Will "Diligently Enforce" the FCA—Relators Bar Breathes a Collective Sigh of Relief

Qui Notes: Unlocking the False Claims Act

At his confirmation hearing on January 15, 2019, President Donald Trump's nominee for Attorney General, William Barr, faced prolonged questioning from members of the Senate Judiciary Committee about a recent memo he authored concerning the Mueller investigation. While the subject of another memo Barr authored during a prior stint in the Department of Justice on the False Claims Act's qui tam provisions received comparatively little attention during the hearing, that memo had been cause for significant consternation among at least the relators bar and apparently Republican Senator Chuck Grassley prior to the hearing.

As Assistant Attorney General for the Office of Legal Counsel in the George H. W. Bush Administration, Barr in 1989 wrote an internal memo in which he addressed the "Constitutionality of the Qui Tam Provisions of the False Claims Act." Barr wrote that the question of whether the qui tam provisions were constitutional "may well be the most important separation of powers question [Richard Thornhill would] have to address as Attorney General." Barr concluded that the provisions were "patently unconstitutional" and that "this [was] not even a close question." The memo also referred to the FCA's qui tam provisions as "dangerous," arguing they violated the Appointments Clause, the Article III standing doctrine, and the doctrine of separation of powers. The memo bleakly proclaimed that "there is simply no way to cage this [qui tam] beast."

Barr also delivered more recent statements about the FCA that were no less condemning of the statute's qui tam provisions. In a 2001 interview with the University of Virginia's George H. W. Bush Oral History Project, Barr admitted that while at the Justice Department, he "wanted to attack the qui tam statute," believing that "the qui tam statute . . . is basically a bounty hunter statute that lets private citizens sue in the name of the United States and get a bounty." Barr remarked, "I felt then, and feel now, that [it] is an abomination and a violation of the appointments clause under the due powers of the President as well as the standing issue of the Supreme Court."

But Barr put those concerns to rest during his confirmation hearing on Tuesday. When asked by Senator Grassley if he still believes that the FCA is unconstitutional and that the qui tam provisions are an abomination, Barr said unequivocally that he does not. When asked if he would commit to not take any action to undermine the FCA and continue current Justice Department staffing and funding levels to properly support and prosecute FCA cases, Barr said: "yes, I will diligently enforce the False Claims Act." But these responses were not sufficient for Senator Grassley. The senator went on to ask Barr about last year's Granston memo, making clear that the senator has concerns that the memo may result in DOJ dismissing meritorious cases. Barr was unfamiliar with the memo, but said that if confirmed, he would review it and work with Senator Grassley on areas that the Senator is concerned about. Finally, when asked if he would "commit to ensuring the Department does not unnecessarily dismiss False Claims Act cases," Barr said yes, and that would enforce the FCA in good faith.

While at least one set of FCA defendants cited Barr's prior statements in arguing that the qui tam provisions are unconstitutional (in a cert petition filed the day before his testimony), we at Qui Notes expect that Barr's clear distancing from those prior conclusions and promise to "diligently enforce" the FCA likely foreclosed any ability to use his prior statements to argue that the qui tam provisions as a whole are unconstitutional. On the other hand, if confirmed, only time will tell whether a DOJ led by Barr will apply heightened scrutiny to qui tam cases brought by relators, notwithstanding his admittedly uninformed responses to Senator Grassley's questions about the Granston Memo.

© Arnold & Porter Kaye Scholer LLP 2019. All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.