The qui tam provisions of the False Claims Act (FCA), 31 U.S.C. § 3729 et seq., are a critical mechanism for private citizens to serve as whistleblowers in cases where fraud is committed against the federal government. A key feature of FCA litigation, the seal provision at 31 U.S.C. § 3730(b)(2), mandates that all qui tam actions be filed under seal and kept confidential while the government investigates the allegations. This period is crucial as it allows the Department of Justice (DOJ) to assess the merits of the case without premature disclosure, which could alert potential defendants.
The decision whether or not to intervene in a qui tam action lies exclusively with the Attorney General and requires a thorough investigation by the DOJ into the allegations. This process is mandated at 31 U.S.C. § 3730(b)(4), which states that the government must investigate before deciding whether to join in the suit. The statute also grants the government broad discretion, as it may intervene even if only part of the claims are viable.
The public disclosure bar is another significant component of FCA litigation. It prohibits qui tam suits based on publicly disclosed information unless the relator (the whistleblower) was an original source of the information or has direct and independent knowledge that is not derived from a public disclosure. This is codified at 31 U.S.C. § 3730(e)(4), which bars actions where the allegations are based on information contained in administrative reports, hearings, audits, investigations, news media, or other sources.
The requirement of being an original source under 31 U.S.C. § 3730(e)(4) is a stringent standard that requires the relator to have direct and independent knowledge of the allegations and must provide material evidence to the government before filing suit. This provision ensures that qui tam actions are not merely opportunistic, but based on credible information.
In summary, the statutory framework of FCA litigation includes intricate provisions designed to balance the interests of whistleblowers with the need for thorough investigation by the government. Attorneys and clients navigating these waters must understand the legal elements required at each stage, from the initial filing under seal through the decision on whether to intervene.