Provisions for the Handling of Qui Tam Suits Filed
the False Claims Act
In 1986, Congress amended the False Claims Act, 31 U.S.C. §
et seq. See generally False Claims Act Amendments of 1986,
99-562, 100 Stat. 3153 (October 27, 1986), reprinted in, 10A USCCAN
(December 1986). One of Congress's objectives in modifying the Act was to
encourage the use of qui tam actions in which citizens are authorized to
as "private Attorneys General," lawsuits on behalf of the United States
frauds upon the government. The private citizen plaintiff in such a lawsuit
often referred to as the "relator." To this end, Congress increased the
by which a relator would share in any money recovered, liberalized the
circumstances under which a private citizen could bring a qui tam action,
increased the relator's role in such litigation.|
The relator must do the following to initiate a qui tam suit:
- file the civil complaint under seal with the court (the
defendant is not served at this time); and
- serve a copy of the complaint and a "written disclosure of
all material evidence and information" possessed by the relator on both the
Attorney General and the United States Attorney (USA) pursuant to Fed. R.
P. 4. or Rule 4 of the Federal Rules of Civil Procedure.
The government must then decide whether to take over the case as its own.
does not notify the court that it is taking over the case, it becomes the
relator's to litigate.
The government has 60 days from the date service is completed and
statement of material evidence is submitted, whichever is late, to notify
court of its decision. Usually, the complaint and statement of evidence are
served simultaneously on the USA, with service on the Attorney General
later. When confusion exists as to the tolling of the 60-day period, it is
advisable to file a status report with the court (copy to the relator)
it when the government's deadline expires and the complaint may be unsealed
served upon the defendant.
Sometimes 60 days is simply insufficient. The government, "for
cause shown," may ask for additional time. The Congress indicated that such
extensions should not be granted automatically and that it expected the
to require proof of a serious inquiry and a legitimate need for more time
granting extensions of time.
Given this brief period, it is necessary to gather as much
as quickly as possible. To this end, it is important that United States
Attorneys promptly forward a copy of a qui tam complaint and statement of
evidence to the Commercial Litigation Branch of the Civil Division, because
relators frequently fail to serve the Attorney General or delay in doing so.
Commercial Litigation Branch will contact the agency involved, the Criminal
Division, and, frequently, the Inspector General of the agency, to determine
the allegations are known to them and to obtain an assessment of the
evidence furnished by the relator. The Criminal Division will, in turn,
with appropriate United States Attorneys' offices USAOs and investigative
agencies to determine if the allegations relate to a pending criminal
investigation. Because of the 60-day deadline, it must be emphasized that
prompt response is required to these inquiries.
Based on the information and recommendations provided by the
agency and the USAO and Department of Justice staff review, a decision
to enter the case and take it over or to decline to do so will be made.
that decision is made, the Commercial Litigation Branch will coordinate as
necessary with the USAO to ensure proper handling of the qui tam litigation
to ensure that it does not interfere with ongoing criminal investigations or
PRACTICE TIP: Prosecutors and agents dealing with qui tam relators
their counsel should be very careful to follow Rule 6(e), Federal Rules
Procedure, and its general prohibition against disclosing matters occurring
before the grand jury. Prosecutors and agents should also be careful about
sharing information with attorneys and agents or employees working on the
aspects of criminal cases.
[cited in USAM 9-42.001; USAM 9-42.440]