The qui tam provisions of the False Claims Act ("FCA" or "the Act") allow private citizens to prosecute fraud on the government's behalf. There are at least three primary justifications for such provisions: (1) the need to provide private incentives to expose fraudulent conduct, (2) the Justice Department's unwillingness to aggressively prosecute fraud, and (3) the limited enforcement resources available to the federal government. The FCA contains a jurisdictional bar that provides that no court shall have jurisdiction over a qui tam FCA action if the information on which the action is based has been publicly disclosed. Ostensibly, this jurisdictional bar is in place to prohibit freeloaders from bringing parasitic actions while contributing nothing to the actual disclosure of fraud. The central problem this Note seeks to address is whether a disclosure pursuant to the Freedom of Information Act constitutes a "public disclosure" within the meaning of the FCA. Hence, this Note asks whether FCA actions based on information in Freedom of Information Act ("FOIA") disclosures will be jurisdictionally barred. The prevailing view is that a disclosure made pursuant to the Freedom of Information Act qualifies as a "public disclosure" within the meaning of the FCA, thus triggering the jurisdictional bar. This Note will demonstrate why the prevailing interpretation is problematic, and why the future of qui tam litigation under the FCA may be in jeopardy. While five courts of appeals have considered this problem, to date no commentator has addressed the issue.
James R. Moncus, III,
The Marriage of the False Claims Act and the Freedom of Information Act: Parasitic Potential or Positive Synergy?,
55 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol55/iss5/5