Topic: Civil False Claims Act and the Double Jeopardy Clause
Senator: Grassley
Date: SEPTEMBER 14, 2005
Contents
GRASSLEY: Judge Roberts, you filed an amicus brief in the case of United States v. Halper, a case which raised the question of whether a civil False Claims Act case could implicate double jeopardy clause.
The Supreme Court agreed with your arguments and held that double jeopardy job protects a convicted criminal defendant from a second punishment in the form of a civil sanction that, quote, "may not fairly be characterized as remedial," end of quote, because it is, quote, "overwhelmingly disproportionate the damage the defendant has caused," end of quote.
As you know, the Halper decision was later overturned by Hudson. Judge Roberts, do you consider the False Claims Act treble damages provisions to be excessive, in the words of the court, "overwhelmingly disproportionate," and also in the words of the court, "not fairly characterized as remedial"?
ROBERTS: Well, you've touched on a case that is very close to my heart, Senator. It was the first case I argued before the Supreme Court. I was appointed by the court to argue it on behalf of Mr. Halper.
It was an unusual case. It arose -- the conspiracy at issue was a slight inflation of I believe it was Medicare or Medicaid claims that this individual was submitting. I think he added $1 or $2 to every claim.
ROBERTS: And yet under the law at that time, there was a minimum penalty for each false claim.
These numbers won't be right, but he had something like 300 false claims for a grand total of maybe $700. But under the statute, he was assessed a civil penalty of several million dollars, because each of the false claims was a separate penalty.
And the issue was, after having been sentenced criminally, would a civil penalty of several -- and again, I'm not sure of the numbers -- but several million dollars for $700 or so of fraud, was that remedial and civil or was it punishment?
And the court agreed with my submission at the time that that was punishment. It led to some difficulty, I think, in administering civil and criminal laws down the line.
And as you said, eight years later, they reversed course and overruled the Halper precedent.
But the provision that you specifically mentioned, treble damages, that's a little different. There, it's a much closer connection. Obviously, just three times whatever the damages are.
In the Halper case, it was a much more disproportionate impact. And that's what led the court, I think, to conclude that, that looks like punishment.
Treble damages is something that's familiar in the law in a number of areas and is not regarded as impermissible punishment in this context.
GRASSLEY: Are you familiar with the legal arguments that some opponents of the False Claims Act have made to the effect that its Qui Tam provisions are unconstitutional under Articles 2 and 3, and if so, do you have an opinion on these arguments?
And before you answer, I'd like to remind you that at least since the 1st Congress was involved in this, I'd like to assume that the framers of the Constitution, because the first Congress enacted several Qui Tam statutes that if that be any deference to you in giving -- whether this factor would make any difference to you when assessing the constitutionality of Qui Tam statutes today.
ROBERTS: I think, if my memory serves, that the Article 3 objections -- and just so we're on the same page, the Qui Tam statutes, of course, are when a private individual brings suit on behalf of the government for fraud on the government and, in return, gets a percentage of the recovery.
And, as you've noted, it's been, under the False Claims Act, very successful in securing recovery of funds on behalf of the government.
The Vermont case -- and I'm not remembering it anymore than that; it was a case from Vermont -- I think addressed most of the Article 3 issues. The objection was: That individual has no standing, I think, because he doesn't necessarily have an interest.
And what the court said was that the individual has standing as a result of the bounty, if you will, the percentage he gets. That satisfies the standing requirement. So those objections are out of the way.
I do know that some have raised additional objections under Article 2, which go to the fact that this might interfere with the executive's authority to execute the law; in other words, you have private individuals bringing suit.
I'm not sure that those issues have been finally resolved.
And obviously, if those cases do come up, I'll want to keep an open mind.
The factor you mentioned, obviously, about historic practice, that is something that the court does look to in assessing constitutionality. If it's something that the founders were familiar with or a practice that they engaged in and showed no disagreement with, while not determinative, that is a factor that the court would look at.
I don't know if any of those cases are going to come before the court. But if they do, that's one of the considerations that will have to be taken into account.
GRASSLEY: Other than the Totten case and the Halper case, have you ever written or spoken publicly about the issue of the constitutionality of Qui Tam or any other provisions of the False Claims Act?
To your memory?
ROBERTS: I don't remember any, no, Senator.
GRASSLEY: OK.
Judge Roberts, in 1986, while serving as an associate White House counsel, you approved Reagan administration testimony regarding Whistleblower Protection Act of '86.
GRASSLEY: You probably recall that the Reagan administration opposed that legislation, which is now law. Could you explain what role, if any, you had in formulating the administration's position on the Whistleblower Protection Act?
ROBERTS: I don't recall any role, Senator. Our office, the counsel's office, would routinely review testimony that was about to be given. We were just looking out for particular constitutional concerns or issues. We generally did not get into the substance. The substance of that would have been shaped over in the Justice Department, and we would have been really looking out for anything that we thought infringed on the constitutional authorities of the president or presented other consistency issues, but the substance of the testimony is not something that I was involved in.
GRASSLEY: Do you feel that you have any bias against the False Claims Act or the Whistleblower Protection Act that would impact on your ability to fairly decide cases on those statutes?
ROBERTS: No, Senator. I have had some whistleblower cases and different aspects I do recall coming up in the court of appeals. And I think in some cases we ruled in favor and in some cases we ruled against, so I have seen those cases and have had no difficulty fairly and objectively deciding them.
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