William Barr was confirmed as Attorney General by the Senate a few months ago, after testifying before the Senate Judiciary Committee in a hearing on January 15, 2019. Immediately following the hearing, The National Whistleblower Center ("NWC") Whistleblower Protection Blog reported with a sigh of relief that Barr had committed to "diligently enforce" the False Claims Act. This post also included a statement from NWC Executive Director Stephen M. Kohn, calling this a "major victory for all whistleblowers," since Barr was historically opposed to the qui tam provision in the False Claims Act that enables whistleblowers to sue on behalf of the government if they have independent knowledge that fraud is taking place.
Leading up to the hearing, two dozen whistleblower attorneys and legal scholars sent a letter to acting Committee Chairman Senator Chuck Grassley, imploring him to question Barr "rigorously" on his view of the False Claims Act:
"We ask that General Barr be rigorously questioned on this matter; that the decision on his nomination reflects a commitment to all provisions of this important statute, and that he be called upon to commit the resources necessary at both the local and national levels to ensure vigorous and complete enforcement of the False Claims Act should he be confirmed."
This letter also pointed to Senator Grassley's history as a staunch supporter of the False Claims Act, naming the success of the Act as part of his legacy in the Senate. Grassley was one of the key actors in Congress who revived the False Claims Act in the mid-1980s, reinstating reasonable whistleblower reward payments, introducing new legislation to protect whistleblowers from retaliation, and eliminating the "government possession of information" bar against whistleblower suits. In a February 2018 Senate floor statement commenting on the Escobar decision, he called the FCA "the most effective tool the government has" to protect taxpayers from fraud.
During the hearing, Senator Charles Grassley questioned Barr as follows:
Grassley: Is the False Claims Act unconstitutional?
Barr: No, Senator. It’s been upheld by the Supreme Court.
Grassley: Do you consider the False Claims Act to be an abomination?
Barr: No, I don’t.
Grassley: Does the False Claims Act benefit the taxpayer— specifically its provisions to empower and protect whistleblowers?
Barr: Yes, Senator.
Grassley: If confirmed, do you commit to not take any actions to undermine the False Claims Act; further if confirmed, will you continue current justice department staff and funding levels to properly support and prosecute False Claims Act cases?
Barr: Yes, I will diligently enforce the False Claims Act.
Still, others view Barr's confirmation and his statement of support for the FCA more skeptically than the NWC. A Modern Healthcare article noted that industry groups and the defense bar "have fresh hope that [whistleblower] cases will dwindle".
Barr acknowledging the False Claims Act as constitutional and testifying that he will "diligently enforce" the Act does not guarantee that whistleblower cases will receive the same governmental support that has enabled them to bring in over $2 billion a year in settlements and judgments for the past decade in health care alone. A source close to Barr's confirmation process was quoted as saying, "[Barr] believes the Department of Justice’s current approach to the False Claims Act is sufficient to protect federal interests and that a constitutional challenge would not be warranted” (emphasis added). The DOJ recently issued internal guidance that DOJ lawyers should be more aggressive about blocking non-intervened whistleblower cases, and we are beginning to see some effects of this new policy.
Goldberg Kohn's whistleblower attorneys remain committed to helping whistleblowers fight fraud against the government, even if DOJ support cannot be obtained. If you are aware of fraud against the government, whether in healthcare or another sector, you may be eligible to blow the whistle in a False Claims Act lawsuit and may be entitled to a portion of the recovery. To find out more, contact Goldberg Kohn for a confidential consultation.