# Opposition Brief — Boeing Co. v. United States Ex Rel. Kelly

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1140

## Text

C2) F aprons ot, 8] 7
~— FILED
No. 93-817 | JAN 13 1994
ME @ERK
9n the Supreme Court of the Wnited States

OCTOBER TERM, 1993

THE BOEING COMPANY, PETITIONER,

UNITED STATES OF AMERICA, EX REL. KEVIN G. KELLY

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JOINT BRIEF FOR THE RESPONDENT KEVIN G. KELLY AND AMICUS CURIAE
UNITED STATES SENATE IN OPPOSITION TO THE PETITION FOR CERTIORARI

MICHAEL DAVIDSON,
(Counsel of Record)
Senate Legal Counsel,

KEN U. BENJAMIN, JR.,

Deputy Senate Legal Counsel,

MORGAN J. FRANKEL,

Counsel for United States Senate

JANUARY 1994

Law Offices of Phillip E. Benson,
610 Newport Center Dr.,

Suite 1010,

Newport Beach, CA 92660.

(714) 644-4388

Counsel for Kevin G. Kelly

QUESTION PRESENTED

Whether the provisions of the False Claims Act that
authorize a private person to bring a civil action to re-
cover for the United States civil penalties and damages
for false claims against the United States and to receive
a portion of the recovery, subject to the Executive’s pow-
ers under the Act to protect its interests in the action,
comport with the separation of powers, the Appointments
Clause, the standing requirement of Article III, and the
Due Process Clause.

(I)

TABLE OF CONTENTS

SL SLID OTA TTR
i i sence umadibiuaeusas
a

Reasons Why the Writ Should be Denied ................0000000.0..

I. The Court Of Appeals’ Determination That The
False Claims Act Is Constitutional Is Fully Con-
sistent With This Court’s Precedents .............000.......

A. The False Claims Act Comports With the
Separation of Powers. ..............ccccscscccsssssereeeees

1. The Decision of the Court of Appeals

Is Correct Under Morrison v. Olson ...

2. THE CONGRESS’S OBJECTIVE OF
SUPPLEMENTING GOVERNMENT EF-

FORTS TO COMBAT FRAUD WITH PRI-

VATE ENFORCEMENT IS PERMISSIBLE

UNDER THE SEPARATION OF POWERS ..

B. The Qui Tam Provisions Do Not Implicate
the Appointments Clause ...................cccccc00e.

C. False Claims Act Qui Tam Relators Have Ar-
a aslacwsanndeabenns

D. Qui Tam Suits Under the False Claims Act
Do Not Violate the Due Process Clause ........

II. There Is No Conflict Among The Circuits ...................

III. There Are No Other Reasons Justifying This Court’s

Review Of The Decision Below .............0......ccccceeeeeees
sc csactbunseancapunninie

TABLE OF AUTHORITIES

Cases:
Allen v. Wright, 468 U.S. 737 (1984) oo.......eeecceecceceeeees

16

IV

Cases—Continued
American Construction Co. v. Jacksonville, T. & K.W.

Page

Ss ee EE CE gadetnnbdedcccdcvarnasnqitasnionninsotens 23
Buckley v. Valeo, 424 U.S. 1 (1976).............0.....04. 7, 14, 15
Estelle v. Gamble, 429 U.S. 97 (1976) ..........cccceccceeee eee 23
Flast v. Cohen, 392 U.S. 83 (1968) ................cceecceeeeeees 16, 17

Freytag v. Commissioner of Internal Revenue, 111

RE IEE cicccssihalasetsokonsnatntendincsabaccnasiadasiniiansies 15
Juliano v. Federal Asset Disposition Ass’n, 736 F

Supp. 348 (D.D.C. 1990), affd, 959 F.2d 1101 (D.C.

Ss ee OUD sett Gcnatcieicendc, Sraankduchsaiuitaaveniesesesedasindixaoes 25
Lujan v. Defenders of Wildlife, 112 S.Ct. 2130

CRIED puhocnlasicehidchatibusdiocsousincinhidbatiadnakabicinnns 5, 6, 16, 17, 21
Marshall v. Jerrico, Inc., 446 U.S. 238 (1980) ............ 19
Marvin v. Trout, 199 U.S. 212 (1905) «0... ee 8, 18
Mistretta v. United States, 488 U.S. 361 (1989) .......... 9, 12
Morrison v. Olson, 487 U.S. 654 (1988).................. 9,10, 14
Newman v. Piggie Park Enterprises, 390 U.S. 400

BRENIG CP PENS cteR ONT AE LECT TEE 20
Nixon v. Administrator of General Services, 433 U.S.

Se EU crenata Gres bbihcceeda elisa dad hincancencaiacebieeaenaceion 12
Priebe & Sons v. United States, 332 U.S. 407 (1947) . 17
Seattle Master Builders v. Pacific Northwest Electric

Power and Conservation Planning Council, 786

F.2d 1359 (9th Cir. 1986), cert. denied, 479 U.S.

I IE sk sis tireaesitte cas canedineoasigduasiaidasencintadencensbincasd 15
Spann v. Colonial Village, Inc., 899 F.2d 24 (D.C.

Cir.), cert. denied, 498 U.S. 980 (1990)..........000.000.. 20, 26
Tigner v. Texas, 310 U.S. 141 (1940) ....... ee. 26
United States ex rel. Burch v. Piqua Engineering,

Inc., 803 F. Supp. 115 (S.D. Ohio 1992).................. 22, 22
United States ex rel. Givler v. Smith, 775 F. Supp.

Fe Ne a icant taciendb tater Nacreinasasidaanaditacon dines 22, 23
United States ex rel. Kreindler & Kreindler v. United

Technologies Corporation, 985 F.2d 1148 (2d Cir.),

cert. denied, 113 S.Ct. 2962 (1993)..........0000.. 8, 16, 21, 22
United States ex rel. Madden v. General Dynamics

Corporation, 4 F.3d 827 (9th Cir. 1993) ................... 21

United States ex rel. Marcus v. Hess, 317 U.S. 537
IEEE = acaneuiecaeniidicecsucen ince deuce taney noma cena

V

Cases—Continued
United States ex rel. McGough v. Covington Tech- page
nologies, 967 F.2d 1391 (9th Cir. 1992) ...........00000... 25

United States ex rel. Milam v. University of Texas

M.D. Anderson Cancer Center, 961 F.2d 46 (4th

CTP BU sizasiisssoeitiesailescas sd beateeedpetaaeisaimaaban ad Mesias 16, 21
United States ex rel. Newsham v. Lockheed Missiles

and Space Co., 722 F. Supp. 607 (N.D. Cal. 1989) .. 22
United States ex rel. Robinson v. Northrop Corpora-

tion, 824 F. Supp. 830 (N.D. Ill. 1993)....... ee. 22, 23
United States ex rel. Stillwell v. Hughes Helicopters,

714 F. Supp. 1084 (C.D. Cal. 1989) oo. 22
United States ex rel. Taxpayers Against Fraud and

Chester L. Walsh v. General Electric Company, ap-

peals docketed, Nos. 92-4283 & 93-3015 (6th Cir.

Dec. 11, 1992 and Jan. 6, 1993) ...................0...c0c00000. 22
United States ex rel. Truong v. Northrop Corpora-

tion, 728 F. Supp. 615 (C.D. Cal. 1989)... 18, 22
United States ex rel. Weinberger v. Equifax, Inc., 557

F.2d 456 (5th Cir. 1977), cert. denied, 434 U.S.

SIE IUD sishicesnaittladeustcnseee eee ee ee 21
United States v. Bornstein, 423 U.S. 303 (1976) ......... 12
United States v. Halper, 490 U.S. 435 (1989) ............. 19
Young v. United States ex rel. Vuitton et Fils S.A.,

GAS Wa Pee LIE wnieddincli Saale ee 19

Constitution and Federal Statutes:

U.S. Constitution:
MEE. scisctsbnns cheiapiacltiand eae 5...14, 15
UR TU ditinidlatliiaitstinenitiodnensoiael ne. 5, 15, 16
PS Sitios eee 5, 18
REE. TET ctitiriicie tc See ee 18

Act of March 2, 1863, ch. 67, 12 Stat. 696 ...........0...... 2

Pub. L. No. 100-700, §9, 102 Stat. 4631, 4638

(1988), codified at 31 U.S.C. §3730(d)(3) .o.ccccccccccee. 26
Be USB. BMD cniscndosicnenccastecisccsiaccecsubeetneuesenc 1
BUR RIND waikitvocceveseceoteencantiausctt ees 1
Be ee ID oo scsi iiss scnusnenanceiniasbeacecbeers 9
ae RS ID eacevvactsccsssodsacashcstburiccanechuncmamtasons 11
Se A IID sihiceissncesithccocnnsstansiesecnddnrtccectace 9, 15
ee MIE fienasinssstcnvacsinsansedscndiicnminestilc 9, 11

Oe PAR. Ie CH i hctsnnkico nipnasieistacestuniabcaiaialious 9

VI

Constitution and Federal Statutes—Continued
BB US Bee CD dceniccntibiclsnciarstxtestnneeicanee 2
False Claims Act, 31 U.S.C. §§3729, et seg. (1988

and Supp. IV 1992)

SPT TIIIEIID . usihicciacicshantecndsdedeseiuasesiéaahoasibeeyaneaenacinnelas 2
SATII’ sconcsuscdcnesachensbossanssansceiesiodsnbanaeaaanenian 2, 10
§3730(bX1) ............ salbnentnlylinaidieédiieddiasieacktnd tie maaaaaaanea 2, 10
UII scitisinciinsisdascshonaceuneheminiisthinainalanaaceian: saan 3
IED Stcenistocisecscincsincabeencimaesinaissaianaenanae 3
SAP UITIIEIED ccincciccdecocsenehensetesbenensaieaceneecneeaneaaniaes 3
De PEIIIEIED csiinesssecsnsneconnasedeckessunsesspeansenaasiaaenaan 3
NII TA vac sc:caissckcadeseusscichanknnebinesucsouepiacenmeuiadia 3, 6, 10
DIED iiiiscthacccacsshincdsucancudunnesaesdeceniasastaeanel 4,6, 10
TIED “\csichussadcdesdsconsececantdaeucmiciieiucconaniacaad 4, 10
SRI Dianna sinc scnbestecsansadsnnueudegigubmminmelmmen 3, 10, 11
AP EIIIIITIIED . ar ate

24 See, e.g., United States ex rel. Truong v. Northrop Corporation, 728
F. Supp. 615, 618-19 & n.7 (C.D. Cal. 1989) (stating that Article III j
concerns are met because of the “very clear demonstration of injury to
the government and. . . relator’s personal stake in the litigation”).

25Jd. at 9a—10a. The petitioner’s assertion that upholding standing
would create a “loophole allowing Congress to create standing without
regard to the limitations imposed by Article III,” Pet. Br. at 14, was
answered by the court of appeals, which stated that “pure speculation
about the policy choices Congress might attempt to make does not
weigh into our constitutional analysis. Furthermore, it is unlikely that ‘
in other areas of civil law enforcement a similarly concrete, identifi-
able injury to the U.S. treasury as exists in the [False Claims Act] con-
text would exist as a basis for standing.” Pet. App. at 28a n.19.

aceite

19

stitution which prevents this kind of legislation.” Jd. at
225. Likewise, no provision of the Constitution is violated
by providing a litigant a financial interest in a civil action
to vindicate the public interest in redressing fraud
against the United States.

The authority relied upon by the petitioner for its due
process claim, which addresses the requirements for
criminal prosecutions and for public officials, neither of
which are at issue here, was appropriately rejected by the
court below as inapposite. Pet. App. at 32a. In Young v.
United States ex rel. Vuitton et Fils S.A., 481 U.S. 787
(1987), which held that a district court, appointing a pri-
vate attorney to represent the United States in a criminal
contempt prosecution, must select an attorney who is dis-
interested in the outcome of the prosecution, this Court
explicitly grounded its holding on its supervisory powers
over inferior courts and not on the Due Process Clause. 26
Moreover, as the court below observed, Pet. App. at 34a,
Young was a criminal case where the concern about disin-
terested prosecutors is justified because the public pros-
ecutor has at his command “a terrible array of coercive
methods to obtain information,” which, when misused,
“would unfairly harass citizens, give unfair advantage to
[the prosecutor’s persomal interests], and impair public
willingness to accept the legitimate use of those pow-
ers.”27 These attributes of public power are unavailable
to litigants who have omly the litigation tools available to
any private litigant in amy civil litigation. 28

26 Young, 481 U.S. at 809 & n.21.

27 Young, 481 U.S. at 811 (quoting C. Wolfram, Modern Legal Ethics
460 (1986)). This Court has recently affirmed that “proceedings and
penalties under the civil Falsie Claims Act are indeed civil in nature”
for the purpose of defining diefendants’ entitlement to general proce-
dural safeguards. United Staites v. Halper, 490 U.S. 435, 442 (1989).

28 Qui tam relators also clearly do not have the responsibilities of a
neutral judge, and thus are not subject to the “rigid require-
ments * * *, designed for officials performing judicial or quasi-judicial
functions, [which] are not appilicable to those acting in a prosecutorial

Continued

20

In Marshall v. Jerrico, Inc., also cited by the petitioner,
this Court found no due process violation caused by a
public official assessing penalties for violations of federal
labor laws where his office received a portion of the pro-
ceeds. See Pet. App. at 32a. With respect to due process,
qui tam relators are in an even stronger position than
such a public official as “[i]t is not at all clear that qui
tam relators are bound to fulfill the same type of public
duty as government prosecutors * * *. [T]he fact that re-
lators sue in the name of the United States does not
mean that they wield governmental powers * * *.” Jd. at
33a. A qui tam relator litigates just like any other private
litigant except that the government receives the bulk of
the recovery and may elect to assume responsibility for
the case.

The law is replete with examples of private civil liti-
gants who have a financial stake in litigation in which
they assert both their private interests and, as private at-
torneys general, the public’s interest in “a policy that
Congress considered of the highest priority.” Newman v.
Piggie Park Enterprises, 390 U.S. 400, 402 (1968) (per cu-
riam); Spann v. Colonial Village, Inc., 899 F.2d 24, 30-
31 (D.C. Cir.) (“Enforcement by private attorneys general
has become a feature of many modern legislative pro-
grams * * * Indeed, such individuals and groups may
assert the public interest even when their own interests
do not precisely coincide.”), cert. denied, 498 U.S. 980
(1990)). Just as in those cases in which litigants may
function as private attorneys general, there is no conflict
here between public and private interests, for “the only
private interest at stake in a qui tam action is the inter-
est which Congress has created in a reward for successful
prosecution; thus the public’s interest in successfully en-
forcing the [False Claims Act] and the relator’s private in-
terest are intertwined rather than conflicting.” Pet. App.
at 33a.

or plaintiff-like capacity.” See Marshall v. Jerrico, Inc., 446 U.S. 238,
248 (1980).

21

IT.

THERE IS NO CONFLICT AMONG THE CIRCUITS

The unanimity of the federal appellate and district
courts in upholding the constitutionality of the qui tam
provisions of the False Claims Act is further reason why
review by this Court is not warranted. The Ninth Circuit
is the second court of appeals expressly to address and re-
ject a constitutional challenge, implicating both separa-
tion of powers and standing, to the qui tam provisions of
the False Claims Act.29 The Second Circuit, in United
States ex rel. Kreindler & Kreindler v. United Tech-
nologies Corporation, 985 F.2d 1148, held that the grant
of standing to qui tam relators comports with Article III.
Id. at 1153-55. The court found that the injury require-
ment is satisfied because the government has suffered an
injury, id., at 1154, and a qui tam relator “stands in the
shoes of the government, which is the real party in inter-
est.”30 Relying in part on this Court’s decision in Lujan
v. Defenders of Wildlife, 112 S.Ct. at 2143, the Second
Circuit concluded that the relator is provided with a con-
crete stake in the controversy by the “cash bounty” of-
fered to the victorious relator. 985 F.2d at 1155.

The Second Circuit’s evaluation of the separation of
powers concerns underlying standing doctrine is also con-

29In the Ninth Circuit, the panel which decided the case that is the
subject of the present petition, relied upon its ruling below to reject
a nearly identical constitutional challenge by another contractor. Unit-
ed States ex rel. Madden v. General Dynamics Corporation, 4 F.3d 827,
830 (9th Cir. 1993) (referring to the decision below for explanation of
its reasons). The petitioner indicated in its brief, Pet. Br. at 3 n.1, that
it understood that a petition for a writ of certiorari would be filed in
that case, which was decided on September 14, 1993, but the time for
filing a petition has run and no petition has been filed.

The Fifth Circuit has also held that a False Claims Act qui tam re-
lator had standing, United States ex rel. Weinberger v. Equifax, Inc.,
557 F.2d 456, 460 (5th Cir. 1977), cert. denied, 434 U.S. 1035 (1978),
but there is some ambiguity whether the court predicated its decision
on statutory or constitutional grounds.

30Id. at 1154; accord United States ex rel. Milam v. University of
Texas M.D. Anderson Cancer Center, 961 F.2d at 49.

22

sistent with the Ninth Circuit’s determination that the
qui tam provisions comport with the separation of pow-
ers. The Second Circuit concluded, as did the court below,
that the “qui tam provisions do not usurp the executive
branch’s litigating function because the statute gives the
executive branch substantial control over the litigation.”
Id.

There is only one other circuit in which a challenge to
the Act’s constitutionality is oven pending, the Sixth Cir-
cuit, in an appeal that has been briefed and is awaiting
argument. 3! There, kowever, the constitutional challenge
is being made by a contractor in an appeal from an award
of attorneys’ fees to a qui tam relator in a case which the
government took over and settled, and, as the petitioner
recognizes, the constitutional issues it raises “are largely
mooted” in such a case. Pet. Br. at 13.

Since the 1986 amendments to the False Claims Act,
constitutional challenges similar to the petitioner’s have
been presented in a number of district courts in addition
to those which resulted in these several appellate cases.
In each case the district court upheld the constitutionality
of the Act. Of the six reported district court decisions, 32
only three are outside of the Ninth Circuit.

The petitioner does not dispute the unanimity of the
lower court precedent, but rather asserts that lower
courts have “disagreed on a number of the specific is-
sues.” Pet. Br. at 5 & n.4. Any variations in the reasoning
of the district court decisions cited by the petitioner do
not warrant review by this Court for several reasons.

31 See United States ex rel. Taxpayers Against Fraud and Chester L.
Walsh v. General Electric Company, appeals docketed, Nos. 92-4283 &
93-3015 (6th Cir. Dec. 11, 1992 and Jan. 6, 1993).

32United States ex rel. Robinson v. Northrop Corporation, 824 F.
Supp. 830 (N.D. Ill. 1993); United States ex rel. Burch v. Piqua Engi-
neering, Inc., 803 F. Supp. 115 (S.D. Ohio 1992); United States ex rel.
Givler v. Smith, 775 F. Supp. 172 (E.D. Pa. 1991); United States ex rel.
Truong v. Northrop Corporation, 728 F. Supp. 615 (C.D. Cal. 1989);
United States ex rel. Newsham v. Lockheed Missiles and Space Co.,
722 F. Supp. 607 (N.D. Cal. 1989); United States ex rel. Stillwell v.
Hughes Helicopters, 714 F. Supp. 1084 (C.D. Cal. 1989).

23

First, the majority of decisions the petitioner cites were
rendered by district courts in the Ninth Circuit. The deci-
sion below now governs all proceedings in the Ninth Cir-
cuit involving the issues raised by the petitioner.

Second, with respect to the few district court decisions
rendered by district courts in other circuits,33 any per-
mutations in their analyses may be addressed through
the ordinary process of appellate review. Differences in
the reasoning of district courts, which have without ex-
ception affirmed the constitutionality of the Act, do not
warrant the investment of this Court’s resources. More-
over, these district court decisions preceded the decision
below. The Ninth Circuit has now dealt comprehensively
with these issues, and together with the decision of the
Second Circuit, its decision will now provide additional
guidance for district courts.

III.

THERE ARE NO OTHER REASONS JUSTIFYING
THIS COURT’S REVIEW OF THE DECISION
BELOW

There are no other reasons justifying this Court’s re-
view of the interlocutory decision below, which only clears
the way for further proceedings in the district court. In-
deed, there are affirmative reasons for denying review of
the constitutionality of a statute whose most recent
amendments continue to be the subject of interpretive de-
velopment in the lower courts. Certainly, none of the pol-
icy arguments presented by the petitioner justify review,
and those policy arguments, which are the province of
Congress, continue to be evaluated by that body.

This case presents no special circumstances warranting
departure from this Court’s “normal practice of denying

33 United States ex rel. Robinson v. Northrop Corporation, 824 F.
Supp. 830; United States ex rel. Burch v. Piqua Engineering, Inc., 803
F. Supp. 115; United States ex rel. Givler v. Smith, 775 F. Supp. 172.
A fourth case cited did not involve the False Claims Act. See Pet. Br.
at 5 n.4 (citing United States ex rel. Yellowtail v. Little Horn State
Bank, 828 F. Supp. 780 (D. Mont. 1992)).

24

interlocutory review.”34 The record below reflects little
activity in this case other than the litigation of petition-
er’s constitutional claims, which has halted further pro-
ceedings. The Ninth Circuit has now ruled on the peti-
tioner’s claims in a manner consistent with the decisions
of other courts and there may never be a need for this
Court to rule on these issues in this case because, as the
petitioner observes, “the vast majority of qui tam suits in
which the Government elects not to intervene typically
never get to trial, thus mooting the constitutional issues.”
Pet. Br. at 29. Rather than demonstrating, as petitioner
suggests, that the issues are capable of evading review,
the dismissal of nonmeritorious cases and the settlement
of other cases in favor of the government’s interests is a
product of the ordinary process of litigation. At best, peti-
tioner’s claim is that some litigation under the Act will be
frivolous, but that may be said of any law, and the Act
provides a specific remedy for such cases. 35

Moreover, there is every reason to believe that the con-
trols over qui tam litigation that the Act affords the Exec-
utive Branch, many of which have not yet been put to use
in the lower courts, are fully adequate to address peti-
tioner’s concerns about potential infringement of Execu-
tive prerogatives. The court of appeals emphasized, con-

34 Estelle v. Gamble, 429 U.S. 97, 114 (1976) (Stevens, J., dissenting);
American Construction Co. v. Jacksonville, T. & K.W. Ry., 148 US.
372, 384 (1893) (stating that “this court should not issue a writ of cer-
tiorari to review a decree of the Circuit Court of Appeals on appeal
from an interlocutory order, unless it is necessary to prevent extraor-
dinary inconvenience and embarrassment in the conduct of the
cause”). As Justice Brennan has observed, “granting certiorari at an
interlocutory stage of a case when allowing the case to proceed to its
final disposition below might produce a resu't that makes it unneces-
sary to address an important and difficult constitutional question”
would not be “faithful to the Ashwander principle not to address con-
stitutional issues if there is a way properly to avoid doing so.” William
J. Brennan, Jr., Some Thoughts on the Supreme Court’s Workload, 66
Judicature 230, 231-32 (1983).

3531 U.S.C. §3730(d\(4) (providing that a court may award a pre-
vailing defendant reasonable fees and expenses if the action was frivo-
lous).

ib ete ttn ede te.»

25

sistent with the admonitions of this Court, that any ambi-
guities in the Att, in regard to the powers of the govern-
ment to protect its interests, should be construed in a
manner that preserves the constitutionality of the stat-
ute. Pet. App. at 18a n.8 (citing Morrison, 487 U.S. at
682; Commodity Futures Trading Comm’n v. Schor, 478
U.S. 833, 841 (1986)). Indeed, courts have construed the
Act to enable the government to protect its interests by
intervening solely in order to dismiss a defendant from a
qui tam action, 36 or solely to appeal the dismissal of a de-
fendant.37 The Department of Justice also has stated that
the courts have applied the statute to accommodate the
Executive’s interests. 38

The petitioner’s several policy arguments also fail to
provide a basis for review. Petitioner argues that review
by this Court is necessary because qui tam actions will be
expanded to redress fraud outside of defense procure-
ment, Pet. Br. at 25-27, and expresses particular concern
that the Act’s qui tam provisions will be used “in combat-
ting health care fraud against the Government.” Id. at 26
(quoting a sense of the Senate provision in an unenacted
bill). Whether the government is being defrauded in the
administration of defense programs or health care pro-
grams makes no difference in terms of the impact on the
United States Treasury and the government’s need for re-
dress. 39

36See Juliano v. Federal Asset Disposition Ass’n, 736 F. Supp. 348
(D.D.C. 1990), affd, 959 F.2d 1101 (D.C. Cir. 1992) (table).

37 United States ex rel. McGough v. Covington Technologies, 967 F.2d
1391 (9th Cir. 1992).

38 See 1990 Hearing, supra n.12, at 13 (testimony of Ass’t Att’y Gen.
Gerson) (“Where we have required judicial interpretations, we seem to
be able to get them.”).

39As the Senate Judiciary Committee stated in reporting the 1986
amendments, “Fraud permeates generally all Government programs
ranging from welfare and food stamps benefits, to multibillion dollar
defense procurements to crop subsidies and disaster relief programs.”
S. Rep. No. 99-345, at 2, 1986 U.S.C.C.A.N. 5267. The qui tam provi-
sions have already been used in nondefense fields such as health care
to recover substantial amounts for the government. See, e.g., Letter of

Continued

26

The petitioner also suggests that review is necessary to
permit Congress to explore alternatives and adopt a
“timely remedy,” such as increasing the number of gov-
ernment attorneys. Pet. Br. at 27. Whether fraud should
be redressed by hiring more government investigators
and attorneys, or by qui tam actions, is a policy judgment
for Congress.4° In any event, petitioner’s dislike of
Congress’s choice is not shared by either of the policy-
making branches of the government, which continue to
evaluate and seek to improve the implementation of the
Act. Since 1986, Congress has monitored the Act’s imple-
mentation,4! and to date the consensus view has been
that the qui tam provisions “have worked resoundingly
well, to the tune of $500 million and counting.”42 When
particular improvements have been warranted, Congress
has amended the Act, for example in 1988 by adding a
provision that would prevent a qui tam relator who per-
petrated a fraud from obtaining any recovery under the

Ass’t Att’y Gen. Frank W. Hunger to Howell Heflin, Chairman of the
Subcomm. on Courts and Administrative Practice of the Senate Comm.
on the Judiciary, reprinted in S. 841, The False Claims Amendments
Act of 1993: Hearing Before the Subcomm. on Courts and Administra-
tive Practice of the Senate Comm. on the Judiciary, 103d Cong., 1st
Sess. 2 (1993) (hereinafter “1993 Hearings”) (citing recovery of $100
million against National Health Laboratories for Medicare, Medicaid
and CHAMPUS fraud).

40 Tigner v. Texas, 310 U.S. 141, 148 (1940) (“Whether proscribed
conduct is to be deterred by qui tam action or triple damages or in-
junction, or by criminal prosecution, or merely by defense to actions
in contract, or by some, or all, of these remedies in combination, is a
matter within the legislature’s range of choice.”); see also Spann v. Co-
lonial Village, Inc., 899 F.2d at 30 (noting that Congress has relied on
the aid of private individuals to enforce laws because the resources of
public officials are limited).

+1 See, e.g., 1993 Hearings, supra n.39; False Claims Act Technical
Amendments of 1992: Hearing Before the Subcomm. on Administrative
Law and Governmental Relations of the House Comm. on the Judici-
ary, 102d Cong., 2d Sess. (1992); 1990 Hearings, supra n.12.

421993 Hearings, supra n.39, at 10 (statement of Rep. Howard Ber-
man).

-

27

statute, while guaranteeing the Department of Justice’s
ability to pursue the case. 43

The Department of Justice has likewise expressed to
the Congress its support for the qui tam regime.44 The
Department recently reported to the Congress that “the
False Claims Act has been a success which has substan-
tially benefitted the United States. . . . No one can look
at the ever increasing recoveries in qui tam cases and
come to any other conclusion.” 45 Even assuming the peti-
tioner is correct, that the bulk of rewards from qui tam
cases are from cases the government joins, that is en-
tirely consistent with the Act’s purpose of encouraging in-
dividuals with information to initiate actions, to permit
the government to identify the cases to take over, and to
let private individuals devote their own resources to the
remainder. If the government chooses to join the cases
brought by relators in which the recoveries are likely to

*3 Pub. L. No. 100-700, §9, 102 Stat. 4631, 4638 (1988), codified at
31 U.S.C. §3730(d\(3).

44 Petitioner cites an “opinion” by former Attorney General Barr
while serving as Assistant Attorney General for the Office of Legal
Counsel that the Act is unconstitutional. Pet. Br. at 4. Although the
document was published in a volume of Opinions of the Office of Legal
Counsel, 13 Op. Off. Legal Counsel 249 (1989), it is actually a memo-
randum to then Attorney General Thornburgh about an intramural
dispute between, on the one side, the Civil Division and Office of Legal
Counsel, and on the other side, the Solicitor General’s office, which
supported the facial constitutionality of the Act, which was the only
question decided by the court below. Jd. at 250; see also id. at 284. The
Department of Justice disavowed Mr. Barr’s view in a letter filed with
the court below, stating that it “was never adopted by the Attorney
General, and does not represent the position of the United States.”
Letter of Acting Assistant Attorney General Stuart E. Schiffer to the
Clerk of the United States Court of Appeals for the Ninth Circuit, filed
in United States ex rel. Madden v. General Dynamics Corp., No. 92-
56042 (Mar. 31, 1993).

45 Letter of Ass’t Att’y Gen. Frank W. Hunger to Howell Heflin,
Chairman of the Subcomm. on Courts and Administrative Practice of
the Senate Judiciary Committee, reprinted in 1993 Hearings, supra
n.39, at 1-2 (citing recoveries since 1986 of approximately $400 mil-
lion, or one third of the total recoveries under the Act, from approxi-
mately 80 qui tam lawsuits).

28

be the largest, then the Act is working, precisely as in-
tended, to enlist the aid of private individuals to help the
government “obtain information about fraud that it did
not independently have and recover sums it might not
have otherwise been able to identify.” Id.

CONCLUSION
For the foregoing reasons, the petition for a writ of cer-
tiorari should be denied.
Respectfully submitted,
PHILLIP E. BENSON,
LINDA MACLEAN,
Law Offices of Phillip E. Benson.

Counsel for Kevin G. Kelly.

MICHAEL DAVIDSON,
Senate Legal Counsel.
KEN U. BENJAMIN, Jr.,
Deputy Senate Legal Counsel.
MORGAN J. FRANKEL,
CLAIRE M. SYLVIA,
Assistant Senate Legal Counsel.
Counsel for United States Senate.

JANUARY 1994.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0810%3A3. Public record. Not legal advice.