April 19, 2021

Volume XI, Number 109


April 16, 2021

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Senator Grassley Encourages AG Garland to Enforce FCA

In a letter sent to Merrick Garland last month, Senator Chuck Grassley (R-IA) urged the U.S. Attorney General nominee to ensure enforcement of the False Claims Act (“FCA”). In the February 4th letter, the Senator called the FCA “one of the most important pieces of legislation that I have worked on during my time in Congress.” He noted that the FCA has returned “more than $64 billion” to taxpayers since the passage of the 1986 FCA amendments he authored.

The Senator said he is working on bipartisan legislation to strengthen the False Claims Act. He stressed that it is vital to combat the protentional fraud brought on by the massive surge of federal sending due to the COVID-19 crisis. However, he explains recent court actions and policy decisions that have weakened the FCA.

“The Supreme Court and lower courts have read a more stringent materiality standard into the law than Congress wrote or intended,” Sen. Grassley said. He pointed out that In Universal Health Servs. V. United States ex rel. Escobar, the Supreme Court declared that courts may look to the government’s actual conduct as a strong indicator of materiality. He says, “In some cases, and as interpreted by the courts, any knowledge was sufficient to bar the relator from going forward even if it was minor or incomplete, or if it was not the “mirror image” of the information brought by the relator.

Another threat to the FCA has been the Justice Department’s policy to “dismiss multiple cases brought by whistleblowers, claiming they have unfettered and unchecked discretion to seek these dismissals.” Sen. Grassley tells Judge Garland, “It is up to the courts, through a hearing, to determine whether or not a case lacks merit.”

“Congressional action is needed…to clarify Congress’ intent,” Sen. Grassley said. If Judge Garland is confirmed as the next Attorney General, Sen. Grassley hopes they “can work together, along with my Senate colleagues, to further clarify and strengthen the False Claims Act that will better position it to combat fraud of all shapes and sizes in the future.”

The letter ended with a handwritten note: “Please do all you can to not hinder the use of the False Claims Act, whether it’s DOJ/Relator or just the individuals when DOJ doesn’t want to participate.

On Monday, the Senate Judiciary Committee voted Yesterday 15-7 in favor of Judge Garland’s nomination for attorney general. Sen. Grassley voted in favor of his confirmation.

Ben Kostyack also contributed to this article.

Copyright Kohn, Kohn & Colapinto, LLP 2021. All Rights Reserved.National Law Review, Volume XI, Number 67



About this Author

Mary Jane Wilmoth Whistleblower Attorney Kohn Kohn & Colapinto Law Firm
Managing Partner

Mary Jane Wilmoth is the firm’s managing partner. She litigated cases involving whistleblower protection for environmental and nuclear industry whistleblowers, and Qui Tam/False Claims whistleblowers. Ms. Wilmoth joined the firm in 1992 and worked on cases and hearings that involved complex nuclear and environmental regulations. In her efforts to uphold such safeguards in the American workplace, she has helped to strengthen whistleblower rights in licensing and...