The False Claims Act made what some would argue was a not-so-surprising guest appearance Tuesday during the confirmation hearings for Supreme Court nominee Ketanji Brown Jackson, when Senator Grassley (R-IA) used his time questioning the justice to tout the success of the FCA in returning "$70 billion of fraudulently taken money, "advocate for his pending FCA amendments, and decry "courts [that] tend to do damage" to the FCA. Notably, Senator Grassley described the proposed FCA amendments, which were voted favorably out of the Senate Judiciary Committee last fall but have since stalled, as a "very controversial" bill. He closed his soliloquy by telling Judge Jackson that "if you are approved to be on the Supreme Court [and] the issue of False Claims comes up, I hope you think of Chuck Grassley," drawing laughs from the audience as he added "well, and Leahy."
When Senator Grassley finally turned to his questions for the nominee, he focused on arguments raised by a "former attorney general, unnamed" that suggested that the FCA's qui tam provision, which is frequently touted by Grassley, is "unconstitutional" and "dangerous."For those wondering, Senator Grassley was eluding to an infamous 1989 memo drafted by William Barr, who at that time was an attorney in the Office of Legal Counsel (OLC), that described the ability of private relators to bring suits on behalf of the United States as "patently unconstitutional" and a "devastating threat." According to Barr's memo, it was "not even a close question" that the qui tam provision violated the Appointments Clause, Article III standing doctrine, and the separation of powers doctrine. We previously posted about Barr's controversial memo during his confirmation hearings in January 2019.
After very briefly describing Barr's memo, Senator Grassley asked Judge Jackson if she agreed that the FCA's qui tam provision is a violation of the Appointments Clause and if she thought that the president's powers are violated by private citizens litigating qui tam actions. Although Judge Jackson appeared slightly caught off guard by Senator Grassley's line of inquiry, in characteristic fashion she offered a measured and thoughtful response. Judge Jackson noted that she was not familiar with the quotation or opinion that Senator Grassley was referencing, and observed that the Supreme Court has heard "various qui tam actions," and not found them to be unconstitutional, caveating that she was not certain that the question of constitutionality had been squarely presented to the Court. Judge Jackson continued that separation of powers was an "important concern" and that, if presented with these issues, she would have to look carefully, "consistent with [her] methodology," at any arguments raised before developing an opinion.
Senator Grassley quipped that Judge Jackson's initial response was a "fair answer at this point," seeming to signal that he would follow-up with written questions, before abruptly moving onto questions regarding remarks given by Judge Jackson in 2020 about the civil rights movement. Before doing so, however, Senator Grassley didn't miss a chance to make one last plug for the FCA, advising Judge Jackson to "remember" that "most of [the FCA suits] are brought by whistleblowers," who "ought to be given some credit" for wanting government money to be spent responsibly.
We'll be watching the rest of Judge Jackson's hearings and monitoring the written Questions for the Record (QFRs) to see if the False Claims Act makes another appearance. Qui Notes readers should also keep their eyes peeled for a forthcoming post where we take a deep dive into how Judge Jackson has approached FCA cases in her time on the bench.
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