Retroactivity and the Fraud Enforcement and Recovery Act of 2009

Indiana Law Journal

Volumn 86, Issue 1, 2011, Pages 257-302

  Titolo, Matthew ^a  

^a WEST VIRGINIA UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79951799113     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (566)

1. See MARTHA MINOW, PARTNERS NOT RIVALS: PRIVATIZATION AND THE PUBLIC GOOD 3 (2002) ("Private and market-style mechanisms are increasingly employed to provide what government had taken as duties.... Decision makers in education, health care, social services, and law constantly cross the boundaries between public and private, religious and secular, profit and nonprofit.").
2. See, e.g., PAUL R. VERKUIL, OUTSOURCING SOVEREIGNTY: WHY THE PRIVATIZATION of GOVERNMENT FUNCTIONS THREATENS DEMOCRACY AND WHAT WE CAN DO ABOUT IT 1-6 (2007) (citing ALFRED C. AMAN, JR., THE DEMOCRACY DEFICIT (2004)).
3. See, e.g., Martha Minow, Outsourcing Power: How Privatizing Military Efforts Challenges Accountability, Professionalism, and Democracy, 46 B. C. L. REV. 989, 990-95 (2005) (citing Halliburton's no-bid contracts and overbilling for Iraq reconstruction and abuses by private contractors at Abu Ghraib as examples of accountability problems in outsourcing government functions);
4. see also SENATE COMM. on the Judiciary, War Profiteering Prevention Act of 2007, S. Rep. No. 110-66, at 2 (2007) ("Over the past four years, war profiteering has... plagued this nation during the engagement of U. S. forces in Iraq and Afghanistan. The United States has devoted hundreds of billions of dollars to military, relief, and reconstruction activities in Iraq and Afghanistan, including more than $50 billion to relief and reconstruction activities. Private contractors have been used to a greater extent during these war-time activities than at any time in our history.... Inspectors General overseeing the provision of goods and services in Iraq and Afghanistan have found that billions of dollars spent in Iraq are unaccounted for and may have been lost to fraud or other misconduct.").
5. See, e.g., SENATE COMM. ON THE JUDICIARY, supra note 3, at 2;
6. see also War Profiteering and Other Contractor Crimes Committed Overseas: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 110th Cong. 2 (2007) (statement of the Hon. Robert C. "Bobby" Scott, Chairman, Subcomm. on Crime, Terrorism, and Homeland Security) ("On the fraud side, the Department of Justice has ignored the False Claims Act cases by obtaining court orders sealing the cases. Most of the cases filed regarding the war profiteering in Iraq have remained under seal.").
7. See, e.g., Editorial, Privatized War, and Its Price, N. Y. TIMES, Jan. 11, 2010, at A16 (noting dismissal of charges against Blackwater agents who killed seventeen Iraqis). "There are many reasons to oppose the privatization of war. Reliance on contractors allows the government to work under the radar of public scrutiny."
8. Id.
9. Blackwater Changes Its Name to Xe, N. Y. TIMES, Feb. 14, 2009, at A10.
10. See uit: Prostitute, Strippers Part of Blackwater Fraud, CNN (Feb. 12, 2010), http://www.cnn.com/2010/CRIME/02/12/blackwater.suit/index.html;
11. Mark Mazzetti, Ex-Workers Accuse Blackwater Security Company of Defrauding the U. S. for Years, N. Y. TIMES, Feb. 11, 2010, at A22. An FCA lawsuit was filed alleging that "top Blackwater officials had engaged in a pattern of deception as they carried out government contracts in Iraq and Afghanistan, and in Louisiana in the aftermath of Hurricane Katrina. The lawsuit, filed under the False Claims Act, also asserts that Blackwater officials turned a blind eye to 'excessive and unjustified' force against Iraqi civilians by several Blackwater guards."
12. Id.
13. See S. REP. No. 111-10, at 10 (2009)
14. reprinted in 2009 U. S. C. C. A. N. 430, 437-38 ("In response to the economic crisis, the Federal Government has obligated and expended more than $1 trillion in an effort to stabilize our banking system and rebuild our economy. These funds are often dispensed through contracts with non-governmental entities, going to general contractors and subcontractors working for the Government. Protecting these funds from fraud and abuse must be among our highest priorities as we move forward with these necessary actions.");
15. see also Michael Cooper, Few Cases of Fraud Involving Stimulus Money Have Been Detected, Officials Say, N. Y. TIMES, Sept. 18, 2009, at A13 (reporting on fears among government officials that stimulus money will be targeted for fraud);
16. Grant McCool & Martha Graybrow, FBI Targets Fraud in TARP, Stimulus Fund, REUTERS, June 2, 2009, available at http://www.reuters.com/article/ idUSTRE5515MF20090602 ("The FBI has been bracing for a wave of fraud and corruption cases stemming from the government's multitrillion-dollar effort to stimulate the economy and help ailing banks.").
17. Pub. L. No. 111-21, 123 Stat. 1617 (May 20, 2009).
18. S. REP. NO. 111-10, at 2.
19. See About the Commission, FINANCIAL CRISIS INQUIRY COMMISSION, http://www.fcic.gov/about/(explaining the goals and mandate of the Commission);
20. see also Stephen Labaton, A Panel Is Named to Examine Causes of the Economic Crisis, N. Y. TIMES, July 16, 2009, at B3 (describing creation of the Commission and its appointment of members).
21. S. REP. NO. 111-10, at 3-4.
22. See Part II for a more detailed discussion of FCA.
23. Michael Rich, Prosecutorial Indiscretion: Encouraging the Department of Justice to Rein in Out-Of-Control Qui Tam Litigation Under the Civil False Claims Act, 76 U. CIN. L. REV. 1233, 1235 (2008)
24. (citing S. REP. NO. 99-345, at 3 (1986)
25. reprinted in 1986 U. S. C. C. A. N. 5266, 5268);
26. see also S. REP. NO. 111-10, at 10 ("One of the most successful tools for combating waste and abuse in Government spending has been the False Claims Act (FCA), which is an extraordinary civil enforcement tool used to recover funds lost to fraud and abuse.").
27. 128 S. Ct. 2123 (2008).
28. 380 F.3d 488 (D. C. Cir. 2004).
29. S. REP. NO. 111-10, at 10-12 (explaining that the FERA amendments were intended to overrule Totten and Allison Engine). I discuss Allison Engine and Totten in more detail in Part II.
30. See Kevin M. Comeau, False Certification Claims in Light of Allison Engine and False Claims Act Amendments Introduced in the 111th Congress, 18 FED. CIR. B. J. 491, 492 (2009) ("Allison Engine clarified § 3729 (a) (2) 's requirement that a claim be approved 'by the Government,' and resolved a circuit split about the general scope of FCA liability under this theory of recovery.");
31. see also Robert L. Vogel, Feature Comment: The 2009 Amendments to the FCA, GOV'T CONTRACTOR, Oct. 7, 2009, at ¶ 342 ("Totten and Allison Engine made it much more difficult for the Government to prove liability under the FCA in cases in which Government funds were passed down along a chain-e.g., first, from the Government to an entity that administered a program, or to a prime contractor, and then to a grantee or subcontractor who made claims for payment to the administrator of the program or the prime contractor, respectively.").
32. Vogel, supra note 18, at ¶ 342;
33. see also S. REP. NO. 111-10, at 10-11 ("The Totten decision, like the Allison Engine decision, runs contrary to the clear language and congressional intent of the FCA by exempting subcontractors who knowingly submit false claims to general contractors and are paid with Government funds.").
34. See Gerard E. Wimberly, Daniel T. Plunkett & Heather A. LaSalle, The Presentment Requirement Under the False Claims Act, BRIEFING PAPERS, Nov. 2007, at 1-2 (positing that a decline in FCA recoveries is due to the judicially imposed presentment requirement coupled with "the use of intermediaries in procurement so that perpetrators of fraud are often at the subcontract and consultant levels dealing with prime contractors or in-country entities that are not the U. S. Government").
35. See United States v. Sci. Applications Int'l Corp., 653 F. Supp. 2d 87, 106 (D. D. C. 2009) ("FERA 'legislatively overrules' the holding of Allison Engine by amending the language of § 3729 (a) (2), replacing the words 'to get' with the word 'material.'"
36. (citing S. REP. NO. 111-10)).
37. Fraud Enforcement and Recovery Act of 2009, PUB. L. NO. 111-21, § 4 (f), 123 Stat. 1617, 1625.
38. See Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U. S. 827, 856 (1990) (Scalia, J., concurring) (stating that legislators typically intend statutes to govern only future conduct).
39. See 31 U. S. C. A. § 3729 (a) (1) (A) - (G) (West Supp. 2010) for the FCA liability provisions.
40. See also United States ex rel. Crennen v. dell Mktg. L. P., Civil Action No. 06-10546-PBS, 2010 WL 1713633 (D. Mass. Apr. 27, 2010) ("[T]he term 'claims' in the retroactivity clause is a paragon of ambiguity. Does it mean 'claims' for payment pending on the date of enactment or to 'claims' brought under the False Claims Act in cases pending on that date? Not surprisingly, courts have split on the subject. Some have held that 'claims' means claims for payment as defined by the act. Others have held that 'claims' means the cause of action arising under the FCA." (citations omitted)).
41. See, e.g., United States ex rel. Sanders v. Allison Engine Co., 667 F. Supp. 2d 747, 752 (S. D. Ohio 2009) ("[T]he 'claims' upon which this 'case' is based were paid in the late 1980s and early 1990s and were no longer pending on June 7, 2008.");
42. see also Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939, 945 (1997) (lawsuit first filed in 1989 based on alleged false claims occurring between 1982 and 1984).
43. 31 U. S. C. A. § 3729 (b) (2).
44. I explain in Parts VI. A.2 (a) - (b) that there are three problems with the technical reading. First, it does not make sense to say that a claim (i.e., a request for payment) is made "under the False Claims Act"; therefore the technical reading does not scan on the textual level. Second, even if it did make sense to say this, claims appears throughout FCA in a nontechnical sense and thus provides little basis for reading the technical meaning into section 4 (f) (1) of FERA. Third, there is scant evidence in the legislative history that Congress intended only to capture conduct on or after June 7, 2008.
45. See Part VI. A for a full analysis of the text and legislative history of FERA.
46. See Part V. B for a discussion of the reasoning of the "no retroactivity" courts.
47. See, e.g., Allison Engine, 667 F. Supp. 2d at 752 ("Neither the amendments to the FCA set forth in the FERA nor the prior FCA include a definition of 'case.' Thus, a plain reading of the retroactivity language reveals that the relevant change is applicable to 'claims' and not to 'cases.' The new FCA retroactivity clause is not applicable to the Defendants in this case.").
48. See Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 226 (1995) ("When a new law makes clear that it is retroactive, an appellate court must apply that law in reviewing judgments still on appeal that were rendered before the law was enacted, and must alter the outcome accordingly."
49. (citing United States v. Schooner Peggy, 5 U. S. (1 Cranch) 103 (1801);
50. Landgraf v. USI Film Prods., 511 U. S. 244, 273-80 (1994)));
51. see also Rivers v. Roadway Express, Inc., 511 U. S. 298, 305 (1994) ("Congress may also decide to announce a new rule that operates retroactively to govern the rights of parties whose rights would otherwise be subject to the rule announced in the judicial decision. ");
52. William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L. J. 331, 338 (1991) ("Congress frequently overrides or modifies statutory decisions by lower federal courts as well as those by the Supreme Court."). However, Congress cannot command an Article III court to reopen a case that has been brought to final judgment.
53. See Plaut, 514 U. S. at 219;
54. see also Miller v. French, 530 U. S. 327, 344 (2000) ("Congress cannot retroactively command Article III courts to reopen final judgments."). Some have criticized the Plaut line of cases as violating separation-of-powers principles.
55. See, e.g., Ira Bloom, Prisons, Prisoners, and Pine Forests: Congress Breaches the Wall Separating Legislative from Judicial Power, 40 ARIZ. L. REV. 389, 390-91 (1998) (arguing that legislative overruling threatens to undermine separation-of-powers and liberty principles).
56. Landgraf, 511 U. S. at 265 ("Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted.").
57. See generally Debra Lynn Bassett, In the Wake of Schooner Peggy: Deconstructing Legislative Retroactivity, 69 U. CIN. L. REV. 453, 454 (2001) ("A careful analysis of the Court's [retroactivity] decisions reveals a consistent approach to retroactive legislation-an approach ultimately based in fundamental principles of fairness....");
58. Michael J. Graetz, Retroactivity Revisited, 98 HARV. L. REV. 1820, 1822-26 (1985) (criticizing categorical condemnations of retroactivity and arguing that all statutes are retroactive to some extent, and that retroactive laws are not categorically unfair or inefficient);
59. Stephen R. Munzer, A Theory of Retroactive Legislation, 61 TEX. L. REV. 425, 444 (1982) ("[R]etroactive laws affecting property, contracts, and taxation are more often justifiable than might be thought....");
60. Bryant Smith, Retroactive Laws and Vested Rights, 6 TEX. L. REV. 409 (1928) (discussing historical and political factors leading to anti-retroactivity bias);
61. Daniel E. Troy, Toward a Definition and Critique of Retroactivity, 51 ALA. L. REV. 1329 (2000) (arguing that retroactive laws are generally without justification);
62. Ann Woolhandler, Public Rights, Private Rights, and Statutory Retroactivity, 94 GEO. L. J. 1015, 1063 (2006) ("[T]raditional categories of public and private rights might be used to [create a] coherent scheme for deciding when statutory retroactivity is constitutional."). The present Article is of limited scope: because my goal here is to resolve FERA's retroactivity problem under established legal doctrine, I do not enter the broader theoretical debate concerning retroactivity, which I address in a separate work in progress.
63. See Part III for a discussion of Landgraf, 511 U. S. 244.
64. Compare United States v. Aguillon, 628 F. Supp. 2d 542, 550-51 (D. Del. 2009) (holding that FERA's amendment to the FCA did not apply retroactively under the Supreme Court's Landgraf analysis because Congress did not explicitly provide for such retroactive effects)
65. with United States ex rel. Westrick v. Second Chance Body Armor, Inc., 685 F. Supp. 2d 129, 140 (D. D. C. 2010) ("FERA provided for § 3729 (a) (1) (B) 's retroactive application 'to all claims under the False Claims Act... that are pending on or after' June 7, 2008. Because this suit was pending on June 7, 2008, the amended provision applies here." (alteration in original) (citation omitted)).
66. See Part V. A for a discussion of the decisions that have held FERA to be retroactive.
67. See Part V. B for a discussion of the decisions that have found FERA not to be retroactive.
68. See S. REP. NO. 110-507, at 9 (2008). The Senate Report explains that the False Claims Act Corrections Act of 2008, the precursor to section 4 of FERA, was intended to
69. clarify conflicting interpretations of the FCA, to provide an affirmative answer to unresolved questions created over the years by litigation, and to bring the FCA back into line with congressional intent.... These provisions will assist practitioners, judges, and businesses across the country by providing clarity and certainty to the FCA.
70. Id.
71. Congress is, of course, categorically barred from passing ex post facto criminal laws.
72. See infra note 42.
73. See Bassett, supra note 31, at 490 ("Landgraf set out a two-part structure for initial retroactivity analysis.").
74. Landgraf v. USI Film Prods., 511 U. S. 244, 280 (1994) ("When a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach.").
75. See, e.g., E. Enters. v. Apfel, 524 U. S. 498, 534 (1998) (holding that Coal Industry Retiree Health Benefit Act would violate Takings Clause because it would have retroactively imposed "liability on Eastern and the magnitude of that liability raise[s] substantial questions of fairness").
76. See id. at 549 (Kennedy, J., concurring in the judgment and dissenting in part) (disagreeing with the plurality's holding that the Coal Act violated the Takings Clause but that "[t]he case before us represents one of the rare instances where the Legislature has exceeded the limits imposed by due process");
77. see also Usery v. Turner Elkhorn Mining Co., 428 U. S. 1, 18-20 (1976) (applying general due process analysis and finding that the Coal Mine Health and Safety Act's requirement that the company provide benefits for a former miner's death was not arbitrary and irrational).
78. Allison Engine on remand held that applying the FCA would violate the Ex Post Facto Clause because it is essentially punitive in nature. United States ex rel. Sanders v. Allison Engine Co., 667 F. Supp. 2d 747, 758 (S. D. Ohio 2009) ("Retroactive application violates the Ex Post Facto Clause because Congress intended for the FCA to be punitive and because FCA sanctions are punitive in purpose and effect."). I disagree with this holding, but address the question fully in a separate work in progress. In sum, though, the Ex Post Facto
79. Clause applies to criminal/punitive statutes and not civil/remedial ones, such as FERA section 4.
80. See Calder v. Bull, 3 U. S. (3 Dall.) 386, 394 (1798) ("The restraint against making any ex post facto laws was not considered, by the framers of the constitution, as extending to prohibit the depriving a citizen even of a vested right to property; or the provision, 'that private property should not be taken for public use, without just compensation,' was unnecessary." (emphasis in original));
81. see also Oliver P. Field, Ex Post Facto in the Constitution, 20 MICH. L. REV. 315, 315 (1922) ("This doctrine of Calder v. Bull is so well settled as to have become one of the commonplaces of American constitutional law.").
82. Landgraf, 511 U. S. at 266 (noting that the Contracts, Takings, Bill of Attainder, Due Process, and Ex Post Facto Clauses of the United States Constitution prohibit certain types of retroactive legislation). as a general rule, however, the constitutional bars to retroactive civil legislation are now quite mild.
83. See id. at 267 ("The Constitution's restrictions, of course, are of limited scope. Absent a violation of one of those specific provisions, the potential unfairness of retroactive civil legislation is not a sufficient reason for a court to fail to give a statute its intended scope.").
84. Id. at 280.
85. Martin v. Hadix, 527 U. S. 343, 358 (1999)
86. (quoting Landgraf, 511 U. S. at 270);
87. see Bassett, supra note 31, at 497-98.
88. Martin, 527 U. S. at 357-58
89. (quoting Landgraf, 511 U. S. at 270).
90. Republic of Austria v. Altmann, 541 U. S. 677, 693-94 (2004)
91. (quoting Landgraf, 511 U. S. at 280).
92. 521 U. S. 320 (1997).
93. 527 U. S. 343 (1999).
94. 520 U. S. 939 (1997).
95. See Part VI. A for a discussion of the reasons to reject the technical definition as controlling section 4 (f) (1).
96. See 31 U. S. C. A. § 3729 (a) (1) (A) - (G) (West Supp. 2010) for the range of conduct proscribed by FCA;
97. see also CHARLES DOYLE, CONG. RESEARCH SERV., R40785, QUI TAM: THE FALSE CLAIMS ACT AND RELATED FEDERAL STATUTES 5-19 (2009) (providing historical background and summary of modern FCA).
98. Dayna Bowen Matthew, The Moral Hazard Problem with Privatization of Public Enforcement: The Case of Pharmaceutical Fraud, 40 U. MICH. J. L. REFORM 281, 283-84 (2007).
99. "Qui tam" is short for the Latin phrase "qui tam pro domino rege quam pro se ipso in hac parte sequitur" meaning "who as well for the king as for himself sues in this matter." BLACK'S la W DICTIONARY 1368 (9th ed. 2009).
100. Marc S. Raspanti & David M. Laigaie, Current Practice and Procedure Under the Whistleblower Provisions of the Federal False Claims Act, 71 TEMP. L. REV. 23, 23 (1998) ("In passing... [FCA] qui tam provisions, Congress intended to commission 'private attorneys general'...."). (Pubitemid 128641690)
101. 31 U. S. C. A. § 3729 (a) (1) (West Supp. 2010).
102. Id. § 3730 (d) (2).
103. See Press Release, Dep't of Justice, Justice Department Recovers $2.4 Billion in False Claims Cases in Fiscal Year 2009; More Than $24 Billion Since 1986 (Nov. 19, 2009), available at http://www.justice. gov/opa/pr/2009/November/09-civ-1253.html.
104. 31 U. S. C. § 3729 (a) (1) (2006). Section 4 (a) of FERA changed the wording of this provision. See infra text accompanying notes 67-69.
105. 31 U. S. C. § 3729 (a) (2). Section 4 (a) of FERA changed the wording of this provision.
106. See infra text accompanying notes 67-69.
107. * 3 (N. D. Miss. Sept. 29, 2009) (FCA suit alleging that "McKesson and MediNet caused the submission of false claims under Medicare Part B because they knew that CSMS was a 'sham' Part B supplier that failed to meet supplier standards.").
108. * 1 (S. D. Cal. Oct. 19, 2009) ("Gale claims that by hiring an unqualified building maintenance and janitorial services company, and then charging the federal government at inflated rates for the services, Defendants are together guilty of misappropriating taxpayer funds and needlessly and recklessly endangering navy personnel.").
109. This is in part because contractors and subcontractors perform so much government work.
110. See, e.g., Lindsey Nelson, Note, Mission Not Accomplished: Missing Billions in Iraq, Enhanced Whistleblower Protections, and a Large Failure in a Small Step, 38 PUB. CONT. L. J. 277, 280 (2008) ("Contractors are now performing an increasing amount of work that, in the past, had been performed by government employees."
111. (citing U. S. GOV'T ACCOUNTABILITY OFFICE, GAO-08-93SP, A CALL FOR STEWARDSHIP: ENHANCING THE FEDERAL GOVERNMENT'S ABILITY TO ADDRESS KEY FISCAL AND OTHER 21ST CENTURY CHALLENGES (2007)));
112. see also supra Part I.
113. 380 F.3d 488, 498 (2004) ("Making false records or statements to get a false claim paid or approved by Amtrak is not making or using 'a false record or statement to get a false or fraudulent claim paid or approved by the Government' [for purposes of § 3729 (a) (2) liability]." (emphasis in original)).
114. 553 U. S. 662, 666 (2008).
115. Id. at 665;
116. Totten, 380 F.3d at 491.
117. S. Rep. No. 111-10, at 10 (2009)
118. reprinted in 2009 U. S. C. C. A. N. 430, 438 ("The effectiveness of the FCA has recently been undermined by court decisions limiting the scope of the law and allowing subcontractors and non-governmental entities to escape responsibility for proven frauds. In order to respond to these decisions, certain provisions of the FCA must be corrected and clarified in order to protect the Federal assistance and relief funds expended in response to our current economic crisis.");
119. see also id. at 10-12
120. (discussing the impact of Allison Engine, Totten, and United States ex rel. DRC, Inc. v. Custer Battles, LLC, 376 F. Supp. 2d 617 (E. D. Va. 2006), on FCA liability for subcontractors and grantees).
121. See United States v. Sci. Applications Int'l Corp., 653 F. Supp. 2d 87, 106 (D. D. C. 2009) ("FERA 'legislatively overrules' the holding of Allison Engine by amending the language of § 3729 (a) (2), replacing the words 'to get' with the word 'material.'");
122. see also Robert T. Rhoad & Matthew T. Fornataro, A Gathering Storm: The New False Claims Act Amendments and Their Impact on Healthcare Fraud Enforcement, HEALTH LAW., Aug. 2009, at 14, 17 ("FERA has legislatively overruled the Supreme Court's Allison Engine decision....");
123. S. REP. No. 111-10, at 12 (new FCA definition of "material" is "consistent with the Supreme Court definition, as well as other courts interpreting the term as applied to the FCA").
124. S. REP. No. 111-10, at 11.
125. Prior to FERA, both the House and Senate had drafted amendments to the False Claims Act.
126. See False Claims Act Correction Act of 2009, H. R. 1788, 111th Cong.;
127. see also H. R. REP. No. 111-97, at 2 (2009) ("This legislation is particularly relevant during this period of increased reliance on private contractors to perform what have traditionally been viewed as governmental functions.");
128. False Claims Act Clarification Act of 2009, S. 458, 111th Cong.;
129. False Claims Act Correction Act of 2008, S. 2041, 110th Cong.;
130. False Claims Act Correction Act of 2007, H. R. 4854, 110th Cong. For a summary of the legislative history of FERA
131. see Comeau, supra note 18, at 508-12. I discuss the earlier drafts of section 4 of FERA in Part VI.
132. See Laura Laemmle-Weidenfeld & Michael J. Schaengold, Feature Comment: The Impact of the Fraud Enforcement and Recovery Act of 2009 on the Civil False Claims Act, GOV'T CONTRACTOR, July 8, 2009, at ¶ 224 ("The current financial crisis and the resulting Government bailout initiatives also provided the momentum necessary for Congress to revise the civil False Claims Act (FCA) through FERA's § 4....").
133. David Cho & Lori Montgomery, New Bailout May Top $1.5 Trillion, WASH. POST, Feb. 10, 2009, at A1.
134. See supra note 8.
135. See, e.g., Gerard E. Wimberly, Daniel T. Plunkett & Laura C. Settlemyer, The Presentment Requirement Under the False Claims Act: The Impact of Allison Engine & the Fraud Enforcement & Recovery Act of 2009, BRIEFING PAPERS, Aug. 2009, at 11 ("The sheer number of potential parties to FCA liability has already increased with the passage of the economic stimulus bills. Now, with the FERA amendments in place that broaden the scope of liability under the FCA, the potential exists for almost any business or company to be liable under the FCA. Combining that possibility with the other FERA amendments that provide for expanded protection available to whistleblowers and qui tam relators, the potential is great for a flood of FCA litigation. ").
136. Fraud Enforcement and Recovery Act of 2009, Pub. L. No. 111-21, § 4 (f), 123 Stat. 1617, 1625 (emphasis added).
137. Note that this provision applies only to the amendments to FCA ("[t]he amendments made by this section").
138. Id. (emphasis added). The statute does not include effective date language for the remainder of FERA.
139. Subsection (f) (2) applies to several procedural and jurisdictional sections of FCA: § 3731 (b) covers government intervention in a privately filed FCA case; § 3733 modifies the procedures for the government to institute FCA actions; and § 3732 modifies the rules for service of the FCA complaint on state and local governments. There have been no challenges to section 4 (f) (2), although I should point out that it is retroactive in the sense that its new procedural rules will govern cases filed prior to May 20, 2009.
140. It is my contention that this reading of section 4 (f) (1) is a natural fit with the text of FCA (which uses claims generically to refer to lawsuits and causes of action) and better comports with the "restorative" purpose of FERA. Several circuit and district courts have adopted this reading of claims, although these rulings lack thorough reasoning. See Part VI for my analysis of why we should read section 4 (f) (1) as referring to cases.
141. See Parts V. A-B for a discussion of the district and circuit courts that have reached this conclusion.
142. See United States ex rel. Sanders v. Allison Engine Co., Inc., 667 F. Supp. 2d 747 (S. D. Ohio 2009);
143. United States v. Sci. Applications Int'l Corp., 653 F. Supp. 2d 87 (D. D. C. 2009);
144. United States v. Aguillon, 628 F. Supp. 2d 542 (D. Del. 2009).
145. See supra Part I.
146. FRAUD STATISTICS, CIVIL DIVISION, U. S. DEP'T of JUSTICE 9, available at http://www.justice.gov/civil/frauds/fcastats.pdf;
147. see also Rich, supra note 14, at 1241-42 (noting that FCA actions must remain under seal for sixty days, although the government can request extensions, which are "routinely granted" and that qui tam actions often remain sealed for up to two years).
148. See Landgraf v. USI Film Prods., 511 U. S. 244, 268 (1993) ("[S]tatutory retroactivity has long been disfavored....").
149. See, e.g., Kashmira Makwana & Peter M. Smith, "To Be or Not To Be (Retroactive)" - That Is the FERA Question, J. HEALTH CARE COMPLIANCE, Jan.-Feb. 2010, at 47 (summarizing FERA retroactivity rulings and evaluating the impact for corporate compliance officers);
150. see also Christopher C. Burris, Michael E. Paulhus & Louisa B. Childs, Converging Events Signal a Changing Landscape in False Claims Act and Whistle-Blower Litigation and Investigations, FED. LAW., Nov.-Dec. 2009, at 59, 61 ("The application of FERA's revisions to the FCA's substantive liability provisions is...complex.... Confusion already has arisen as to how courts should interpret this provision. ").
151. See Vashti D. Van Wyke, Comment, Retroactivity and Immigrant Crimes Since St. Cyr: Emerging Signs of Judicial Restraint, 154 U. PA. L. REV. 741, 756 (2006) ("In Landgraf v. USI Film Products, the Supreme Court provided the modern framework for analysis of retroactivity questions in the civil context.").
152. See id.
153. Landgraf, 511 U. S. at 248.
154. Id. at 249.
155. Id. at 252-54.
156. See id. at 249.
157. See id. at 258-61.
158. Barnhart v. Peabody Coal Co., 537 U. S. 149, 168 (2003) (alteration in original)
159. (quoting Chevron U. S. A. Inc. v. Echazabal, 536 U. S. 73, 81 (2002));
160. see also WILLIAM N. ESKRIDGE, JR., PHILIP P. FRICKEY & ELIZABETH GARRETT, LEGISLATION AND STATUTORY INTERPRETATION 255 (2000) ("[Negative implication] is close cousin to the hoary canon, inclusio [expressio] unius est exclusio alterius... [a] rule of thumb [that] rests on the supposition that directives normally allow what they don't prohibit." (second alteration in original)).
161. Barnhart, 537 U. S. at 168.
162. See Martin v. Hadix, 527 U. S. 343, 356 (1998)
163. (citing Lindh v. Murphy, 521 U. S. 320, 329 (1997)) (observing that the negative implication in Lindh had special force because the relevant provisions of the AEDPA covered the same subject matter);
164. see also Hamdan v. Rumsfeld, 548 U. S. 557, 579 (2006) (noting that where the relevant provisions had been "considered... together at every stage", negative inference was strong);
165. Field v. Mans, 516 U. S. 59, 75 (1995) ("The more apparently deliberate the contrast, the stronger the inference, as applied, for example, to contrasting statutory sections originally enacted simultaneously in relevant respects.").
166. See Hibbs v. Winn, 542 U. S. 88, 101 (2004) ("A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant...."
167. (quoting 2A NORMAN J. SINGER, STATUTES AND STATUTORY CONSTRUCTION § 46.06 (rev. 6th ed. 2000)));
168. Keene Corp. v. United States, 508 U. S. 200, 208 (1993) ("[W]here Congress includes particular language in one section of a statute but omits it in another..., it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion. " (alteration in original)
169. (quoting Russello v. United States, 464 U. S. 16, 23 (1983)));
170. see also ESKRIDGE et AL., supra note 92, at 266 ("[E]very statutory term adds something to a law's regulatory impact."). The negative inference concept is not without its critics.
171. See, e.g., id. at 255 ("[I]nclusio unius is... an unreliable canon, and the reasons for its unreliability apply to other negative implication canons as well."). It has also been rejected or criticized in specific cases where there are other plausible inferences from those sought by a litigant.
172. See, e.g., Lindh, 521 U. S. at 337-41 (Rehnquist, J., dissenting)
173. see also Hadix, 527 U. S. at 356 (rejecting negative implication where relevant provisions covered different subject matter).
174. Landgraf v. USI Film Prods., 511 U. S. 244, 257 (1993) (emphasis added)
175. (quoting the Civil Rights Act of 1991, Pub. L. No. 102-166, § 402 (a), 105 Stat. 1071, 1099).
176. As clear as this may seem at first blush, I note a potential ambiguity even here. After all, "take effect upon enactment" might very well mean that the statute should be applied to pending cases. This is so because it is not self-evident that "take effect" by definition excludes pending cases. If so, this would simply raise the same Landgraf question under a different guise. FERA gets around this problem by stipulating that "take effect" means "apply to conduct on or after the date of enactment."
177. See Fraud Enforcement and Recovery Act of 2009, Pub. L. No. 111-21, § 4 (f), 123 Stat. 1617, 1625.
178. Landgraf, 511 U. S. at 258 ("[Landgraf] contends that the introductory clause of § 402 (a) would be superfluous unless it refers to §§ 402 (b) and 109 (c), which provide for prospective application in limited contexts.").
179. Id. (quoting the Civil Rights Act of 1991, Pub. L. No. 102-166, §§ 109 (c), 402 (b), 105 Stat. 1071, 1078, 1099).
180. Id.
181. Id. at 255-56 ("[I]t seems likely that one of the compromises that made it possible to enact the 1991 version was an agreement not to include the kind of explicit retroactivity command found in the 1990 bill.").
182. Id. at 261 ("Congressional doubt concerning judicial retroactivity doctrine, coupled with the likelihood that the routine 'take effect upon enactment' language would require courts to fall back upon that doctrine, provide a plausible explanation for both §§ 402 (b) and 109 (c) that makes neither provision redundant.").
183. Id. at 262 ("The 1991 bill as originally introduced in the House contained explicit retroactivity provisions similar to those found in the 1990 bill. However, the Senate substitute that was agreed upon omitted those explicit retroactivity provisions. The legislative history discloses some frankly partisan statements about the meaning of the final effective date language, but those statements cannot plausibly be read as reflecting any general agreement.").
184. Id.
185. Id. at 256.
186. Id. at 264.
187. 393 U. S. 268 (1969).
188. 416 U. S. 696 (1974).
189. Landgraf, 511 U. S. at 264
190. (quoting Bradley, 416 U. S. at 711).
191. 488 U. S. 204 (1988).
192. 494 U. S. 827 (1990).
193. Landgraf, 511 U. S. at 264
194. (quoting Bowen, 488 U. S. at 208) (internal punctuation omitted).
195. See Bowen, 488 U. S. at 208 ("Retroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.");
196. see also Bonjorno, 494 U. S. at 840-58 (Scalia, J., concurring) (providing a history of retroactivity doctrine and concluding that "[t]he presumption of nonretroactivity, in short, gives effect to enduring notions of what is fair, and thus accords with what legislators almost always intend").
197. Landgraf, 511 U. S. at 273.
198. Id. at 273
199. (citing Am. Steel Foundries v. Tri-City Cent. Trades Council, 257 U. S. 184 (1921)).
200. Id. at 274
201. (citing Bruner v. United States, 343 U. S. 112, 116-17 (1952)).
202. Id. at 275
203. (citing Ex parte Collett, 337 U. S. 55, 71 (1949)).
204. Id. at 276-77
205. (quoting White v. N. H. Dep't of Emp't Sec., 455 U. S. 445 (1982)). The attorney's fees exception accounted for Bradley. as for Thorpe, the Court treats it as an exceptional case involving an important constitutional right.
206. Id. at 276. Thorpe seemed to combine aspects of "procedure" and "prospective relief" cases.
207. Id. Thorpe also comports with the principle that the government should extend a grace period.
208. Id. at 276 n. 30.
209. See id. at 280. Courts have added an extra step when interpreting an agency rule.
210. See, e.g., Durable Mfg. Co. v. U. S. Dep't of Labor, 578 F.3d 497, 503 (7th Cir. 2009) ("When... an administrative rule is at issue, the inquiry is two-fold: whether Congress has expressly conferred power on the agency to promulgate rules with retroactive effect and, if so, whether the agency clearly intended for the rule to have retroactive effect."
211. (citing Bowen, 488 U. S. at 208;
212. Clay v. Johnson, 264 F.3d 744, 749 (7th Cir. 2001))).
213. See Landgraf, 511 U. S. at 280 ("When a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach.").
214. See Part VI. A for a discussion of the clear statement standard as applied to FERA's retroactivity provision.
215. See Landgraf, 511 U. S. at 268 ("[A] requirement that Congress first make its intention clear helps ensure that Congress itself has determined that the benefits of retroactivity outweigh the potential for disruption or unfairness.");
216. see also id. at 272-73 ("Requiring clear intent assures that Congress itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits.").
217. See id. at 266 (noting that the Contracts, Takings, Bill of Attainder, Due Process, and Ex Post Facto Clauses of the United States Constitution prohibit certain types of retroactive legislation);
218. see also id. at 267 ("The Constitution's restrictions, of course, are of limited scope. Absent a violation of one of those specific provisions, the potential unfairness of retroactive civil legislation is not a sufficient reason for a court to fail to give a statute its intended scope.").
219. Id. at 280. "[R]etroactive effect" inquiry asks whether the statute "would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result."
220. Id.
221. Martin v. Hadix, 527 U. S. 343, 357-58 (1999)
222. (quoting Landgraf, 511 U. S. at 270);
223. see also Landgraf, 511 U. S. at 265 ("Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted.");
224. Bassett, supra note 31, at 506-07 (stating that retroactive effect analysis applies "principles of fairness encompassing a wide range of considerations, including equity, justice, and reliance").
225. Landgraf, 511 U. S. at 280.
226. Id. at 270;
227. see also INS v. St. Cyr, 533 U. S. 289, 321 (2001) ("[T]he judgment whether a particular statute acts retroactively 'should be informed and guided by familiar considerations of fair notice, reasonable reliance, and settled expectations.'"
228. (quoting Hadix, 527 U. S. at 358) (additional internal quotation marks omitted)).
229. Landgraf, 511 U. S. at 270;
230. see also Princess Cruises v. United States, 397 F.3d 1358, 1364 (Fed. Cir. 2005) (combining Landgraf factors three and four into a three-part retroactivity inquiry).
231. Landgraf, 511 U. S. at 269-70.
232. See id.
233. Id. at 280-82.
234. Id. at 281.
235. Id. at 282-83.
236. Id. at 286. Although agreeing with the result, Justice Scalia criticized the majority for indulging in the "soft science" of legislative history, which risked turning Landgraf's "clear statement" rule into a "discernible legislative intent" rule.
237. Id. at 287 (Scalia, J., concurring).
238. Id.
239. 521 U. S. 320 (1997).
240. Id. at 322-23 ("The issue in this case is whether that new section of the [AEDPA] dealing with petitions for habeas corpus governs applications in noncapital cases that were already pending when the Act was passed. We hold that it does not.").
241. Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 104, 110 Stat. 1214, 1219;
242. see Harris v. Stovall, 212 F.3d 940, 944-45 (6th Cir. 2000) ("[T]he AEDPA expressly limits the source of law to cases decided by the United States Supreme Court.... We have stated that this provision marks a 'significant change' and prevents the district court from looking to lower federal court decisions in determining whether the state court decision is contrary to, or an unreasonable application of, clearly established federal law.").
243. Brief for Petitioner at 10, Lindh v. Murphy, 521 U. S. 320 (1997) (No. 96-6298), 1997 WL 82672.
244. Lindh, 521 U. S. at 324-26.
245. See id. at 325.
246. Id. at 324-26.
247. Id. at 326.
248. Id. at 326-27 ("We read this provision of § 107 (c), expressly applying chapter 154 to all cases pending at enactment, as indicating implicitly that the amendments to chapter 153 were assumed and meant to apply to the general run of habeas cases only when those cases had been filed after the date of the Act."). The dissent quarreled with the majority's negative inference analysis and would have applied AEDPA to pending cases under Landgraf's "procedural cases", "prospective relief", and "jurisdictional statute" exceptions.
249. Id. at 341-43 (Rehnquist, J., dissenting). Justice Rehnquist raises the possibility that any inferences we could draw about what Congress intended by including retroactivity language in Chapter 154 and not Chapter 153 could be countered by equally plausible inferences in the opposite direction.
250. Id. For example, different language in Chapters 153 and 154 might have been the result of tacit Congressional agreement to let the courts decide the question of an effective date.
251. See id.
252. See, e.g., Mathews v. Kidder, Peabody & Co., 161 F.3d 156, 161-62 (3d Cir. 1998);
253. see also Killingsworth v. HSBC Bank Nev., N. A., 507 F.3d 614, 621 (7th Cir. 2007) ("The Third Circuit has characterized Lindh as establishing an intermediate step in the Landgraf framework, requiring courts to examine a statute under normal rules of statutory construction for evidence of congressional intent to apply the statute prospectively only."
254. (citing Mathews, 161 F.3d at 162));
255. Hamdan v. Rumsfeld, 548 U. S. 557, 578 (2006) ("A familiar principle of statutory construction, relevant both in Lindh and here, is that a negative inference may be drawn from the exclusion of language from one statutory provision that is included in other provisions of the same statute.").
256. 520 U. S. 939 (1997).
257. See Part VI for a discussion of the Justice Department's desire to have FERA avoid the costly litigation over the effective date of the 1986 FCA amendments.
258. Id. at 946.
259. Id. at 942-43.
260. Id. at 945 ("The allegedly false claims at issue in this case were submitted by Hughes between 1982 and 1984. At that time, the FCA required a district court to 'dismiss [a qui tam] action... based on evidence or information the Government had when the action was brought.'" (alterations in original)
261. (quoting 31 U. S. C. § 3730 (b) (4) (1982))).
262. Id. at 948 (alterations in original)
263. (quoting Brief for Respondent at 15, Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939 (1997) (No. 95-1340), 1997 WL 2550 (internal quotation marks omitted)).
264. Id. at 946-52.
265. Hughes Aircraft, 520 U. S. at 949 ("The extension of an FCA cause of action to private parties in circumstances where the action was previously foreclosed is not insignificant. as a class of plaintiffs, qui tam relators are different in kind than the Government. They are motivated primarily by prospects of monetary reward rather than the public good.").
266. Id. at 948-50.
267. Id. at 950-51.
268. Id. at 951 (emphasis in original)
269. (quoting Landgraf v. USI Film Prods., 511 U. S. 244, 274 (1993)).
270. See Bassett, supra note 31, at 497 ("Taken together, Hughes and Lindh served effectively to eliminate the exceptions for jurisdictional and procedural legislation that had been described in Landgraf. Rather than treating such provisions as exceptions to the presumption against retroactivity, the Court instead evaluated such matters in the same manner as any other legislation. These decisions undercut Landgraf's claim that it provides a purported framework for retroactivity analysis-a point made even more clearly by [Martin v. Hadix].").
271. See, e.g., Martin v. Hadix, 527 U. S. 343 (1998). The Prison Litigation Reform Act (PLRA) lowered the statutory fee award for prisoner civil rights litigation.
272. Id. at 351-52. Hadix acknowledged that applying the new lower rate to past legal work would have retroactive effect, despite the fact that Landgraf had seemed to make an exception for attorney's fees statutes: "When determining whether a new statute operates retroactively, it is not enough to attach a label (e.g., 'procedural,' 'collateral')...."
273. Id. at 359. However, the Court held that applying the new lower award for future legal work was not "retroactive", despite the fact that attorneys had agreed to undertake representation under the higher, pre-PLRA fee schedule.
274. Id. at 360-61. The majority reasoned that attorneys were free to refuse to continue representing clients if they were not happy with the new lower PLRA fee.
275. Id. at 360. Justice Ginsburg reasons convincingly that, to the contrary, altering an attorney's fees statute may in fact be retroactive in the disfavored sense: "attorneys engaged before passage of the PLRA have little leeway to alter their conduct in response to the new legal regime; an attorney who initiated a prisoner's rights suit before April 26, 1996, remains subject to a professional obligation to see the litigation through to final disposition. "
276. Id. at 369 (Ginsburg, J., concurring in part and dissenting in part).
277. See, e.g., Republic of Austria v. Altmann, 541 U. S. 677, 693 (2004) ("[W]e sanctioned the application to all pending and future cases of 'intervening' statutes that merely 'confe[r] or ous[t] jurisdiction. ' Such application, we stated, 'usually takes away no substantive right but simply changes the tribunal that is to hear the case.' Similarly, the 'diminished reliance interests in matters of procedure' permit courts to apply changes in procedural rules 'in suits arising before [the rules'] enactment without raising concerns about retroactivity.'" (alterations in original) (emphasis added) (citations omitted)
278. (quoting Landgraf, 511 U. S. at 274-75));
279. see also Hamdan v. Rumsfeld, 548 U. S. 557, 576-77 (2006) ("We have explained... that... unlike other intervening changes in the law, a jurisdictionconferring or jurisdiction-stripping statute usually 'takes away no substantive right but simply changes the tribunal that is to hear the case.'... That does not mean, however, that all jurisdiction-stripping provisions-or even all such provisions that truly lack retroactive effect-must apply to cases pending at the time of their enactment."
280. (quoting Hallowell v. Commons, 239 U. S. 506 (1915)));
281. id. at 656 (Scalia, J., dissenting) ("An ancient and unbroken line of authority attests that statutes ousting jurisdiction unambiguously apply to cases pending at their effective date.").
282. Landgraf, 511 U. S. at 274 ("We have regularly applied intervening statutes conferring or ousting jurisdiction..." (emphasis added));
283. see also id. ("Application of a new jurisdictional rule usually 'takes away no substantive right but simply changes the tribunal that is to hear the case.'" (emphasis added)
284. (quoting Hallowell, 239 U. S. at 508));
285. id. at 275 ("Because rules of procedure regulate secondary rather than primary conduct, the fact that a new procedural rule was instituted after the conduct giving rise to the suit does not make application of the rule at trial retroactive." (emphasis added));
286. id. ("Changes in procedural rules may often be applied in suits arising before their enactment without raising concerns about retroactivity." (emphasis added)). The Court adds a caveat in a footnote that [o]f course, the mere fact that a new rule is procedural does not mean that it applies to every pending case. A new rule concerning the filing of complaints would not govern an action in which the complaint had already been properly filed under the old regime, and the promulgation of a new rule of evidence would not require an appellate remand for a new trial.
287. Id. at 275 n. 29.
288. 533 U. S. 289 (2000).
289. See id. at 293.
290. See id. at 321-22.
291. See Burris et al., supra note 84, at 61-62 (noting impact of the FERA amendments on FCA litigation).
292. * 3 n. 2 (2d Cir. July 16, 2009) (acknowledging that some of FERA's provisions were retroactive, but holding this did not affect the present case);
293. see also United States ex rel. Kirk v. Schindler Elevator Corp., 601 F.3d 94, 113 (2d Cir. 2010) ("The amendment to § 3729 (a) (2), but not the amendment to § 3729 (a) (1), was made retroactive to June 7, 2008, applicable to 'all claims under the False Claims Act... that [were] pending on or after that date.' Because [relator's] claim was filed in March 2005, and was pending as of June 7, 2008, the potentially applicable provisions in this case are former § 3729 (a) (1)... and current § 3729 (a) (1) (B)...." (citations omitted)).
294. 575 F.3d 458, 468-69 (5th Cir. 2009)
295. (citing United States v. Southland Mgmt. Corp., 288 F.3d 665, 676 (5th Cir. 2002)) (defining "outcome materiality" as requiring that "a falsehood or misrepresentations must affect the government's ultimate decision whether to remit funds to the claimant in order to be 'material'").
296. Id. at 470. Under FERA, "'material' means having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property." If Congress intended materiality to be defined under the more narrow outcome materiality standard, it had ample opportunity to adopt the outcome materiality standard in FERA. Instead, Congress embraced the test as stated by the Supreme Court and several courts of appeals.
297. Id. (quoting § 3729 (b) (4)).
298. Id.
299. Id.
300. (citing NCNB Tex. Nat'l Bank v. Cowden, 895 F.2d 1488, 1500 (5th Cir. 1990) ("[A] legislative body may amend statutory language to make what was intended all along even more unmistakably clear."
301. (quoting United States v. Montgomery Cnty., Md., 761 F.2d 998, 1003 (4th Cir. 1985))). The position of the Fifth Circuit on the retroactivity of FERA is not clear. In a criminal money laundering case
302. United States v. Bueno, 585 F.3d 847 (5th Cir. 2009), Judge DeMoss stated in a special concurrence that FERA "is silent on retroactivity; therefore, it only applies to conduct which occurs post-amendment, "
303. id. at 853 n. 4
304. (citing Landgraf v. USI Film Prods., 511 U. S. 244, 280 (1994)).
305. * (7th Cir. 2009).
306. Id.
307. (citing Landgraf, 511 U. S. 244).
308. 348 F. App'x 421, 424 n. 2 (10th Cir. 2009).
309. * 5 n. 3 (E. D. Va. July 23, 2009) ("Because this case was pending on June 7, 2008, the Court has applied the amendment in § 3729 (a) (1) (B) (2009) to Count 4, a claim originally brought under § 3729 (a) (2) (1994).").
310. United States ex rel. Walner v. NorthShore Univ. Health Sys., 660 F. Supp. 2d 891, 895 n. 3 (N. D. Ill. 2009).
311. United States ex rel. Stephens v. Tissue Sci. Labs., 664 F. Supp. 2d 1310, 1315 n. 2 (N. D. Ga. 2009).
312. * 8 n. 3 (N. D. Tex. Apr. 5, 2010) (applying prior version of FCA except for the amendments to § 3729 (a) (2), which apply retroactively).
313. United States ex rel. Branch Consultants, L. L. C. v. Allstate Ins. Co., 668 F. Supp. 2d 780, 803-4 (E. D. La. 2009) (applying amended FERA language to pending case without noting the retroactivity issue).
314. 660 F. Supp. 2d at 895 n. 3 (citations omitted).
315. 664 F. Supp. 2d at 1315 n. 2 (citations omitted).
316. United States ex rel. Putnam v. E. Idaho Reg'l Med. Ctr., 696 F. Supp. 2d 1190, 1196 (D. Idaho 2010) ("Congress's use of the words 'claims' and 'cases' when amending the FCA and providing for retroactive application of certain subsections therefore illustrates that it intended claims to encompass claims for money or property that are governed by the FCA, not cases brought to enforce it.").
317. United States v. Aguillon, 628 F. Supp. 2d 542 (D. Del. 2009).
318. United States v. Sci. Applications Int'l Corp., 653 F. Supp. 2d 87 (D. D. C. 2009);
319. see also United States ex rel. Bender v. N. Am. Telecomm., Inc., 686 F. Supp. 2d 46, 48 n. 4 (D. D. C. 2010) (granting motion to dismiss because claims means request for payment)
320. (citing Sci. Applications, 686 F. Supp. 2d at 107);
321. Boone v. Mountain Made Found., 684 F. Supp. 2d 1, 78 n. 7 (D. D. C. 2010) ("Because the conduct underlying the plaintiffs' allegations occurred well before the enactment of the FERA, its amendments to § 3729 (a) (1) do not apply here. Moreover, because the purportedly false claims for payment at issue here were made in 2006... and because there is no indication that they were still pending as of the June 7, 2008 cutoff date provided for in the FERA's retroactivity clause, the FERA's amendments to § 3729 (a) (2) likewise do not apply." (citations omitted)).
322. But see United States ex rel. Westrick v. Second Chance Body Armor, Inc., 685 F. Supp. 2d 129, 137 (D. D. C. 2010) ("FERA provided for § 3729 (a) (1) (B) 's retroactive application 'to all claims under the False Claims Act... that are pending on or after' June 7, 2008. Because this suit was pending on June 7, 2008, the amended provision applies here." (citation omitted)).
323. * 4 n. 10 (D. N. J. Mar. 22, 2010) (finding no retroactivity because claims refers to requests for payment).
324. * 15-17 (D. N. M. Mar. 19, 2010) (adopting the technical definition to reject retroactivity).
325. United States ex rel. Sanders v. Allison Engine Co., Inc., 667 F. Supp. 2d 747 (S. D. Ohio 2009).
326. * 2 (E. D. Ark. Apr. 19, 2010) (applying earlier FCA language because claims means requests for payment and defendant had no outstanding requests as of June 7, 2008).
327. * 4 n. 4 (M. D. Ga. Jan. 11, 2010) ("For purposes of the FCA, a 'claim' is defined as a 'request or demand... for money or property.' The revised version of section (a) (1) (B) does not apply to this case because none of Defendants' claims at issue here (the grant request or Medicare reimbursement claims) were pending on or after June 7, 2008." (alteration in original)
328. (quoting 31 U. S. C. § 3729 (c) (2006)));
329. * 2 n. 5 (M. D. Ga. Mar. 11, 2010) (adopting technical definition of claims and rejecting retroactivity).
330. * 9 (W. D. Tex. Mar. 31, 2010) (applying earlier language on the theory that claims means requests for payment).
331. * 3 (N. D. Ill. Feb. 18, 2010) (holding that FERA did not apply retroactively because claims means request for payment)
332. (citing Hopper v. Solvay Pharms., Inc., 588 F.3d 1318, 1327 n. 3 (11th Cir. 2009);
333. Allison Engine, 667 F. Supp. 2d at 750-51;
334. U. S. v. Sci. Applications Int'l Corp., 653 F. Supp. 2d 87, 106-07 (D. D. C. 2009)).
335. * 2 n. 2 (S. D. Fla. Feb. 17, 2010) (finding amendments not retroactive).
336. Another court has stated without explanation that "since the time of the government's Complaint, the FCA has been amended. In this Opinion, all references to 31 U. S. C. § 3729 refer to the version of the FCA in force at the time of the alleged violations."
337. * 3 n. 1 (E. D. Ky. Sept. 16, 2009) (citations omitted).
338. United States v. Aguillon, 628 F. Supp. 2d 542, 550-51 (D. Del. 2009). The major problem with the Aguillon holding is that does not provide an adequate analysis of the plain language of the statute for congressional intent. Had it done so, it would have found the express retroactivity clause in FERA section 4 (f) (1) that I discuss below. See infra Part VI.
339. See United States v. Sci. Applications Int'l Corp., 653 F. Supp. 2d 87, 106-07 (D. D. C. 2009).
340. See infra Part VI. A.2.
341. See Sci. Applications, 653 F. Supp. 2d at 107.
342. See Part VI. A.6 for a discussion of the problems with analyzing section 4 (f) (1) of FERA under a negative implication rubric.
343. See also Lindh v. Murphy, 521 U. S. 320, 330
344. Field v. Mans, 516 U. S. 59, 75 (1995) ("The more apparently deliberate the contrast, the stronger the inference, as applied, for example, to contrasting statutory sections originally enacted simultaneously in relevant respects...." (emphasis added)).
345. See Hopper v. Solvay Pharms., Inc., 588 F.3d 1318, 1327 n. 3 (11th Cir. 2009) ("While this case was pending on and after June 7, 2008, the relators do not allege that any claims, as defined by § 3729 (b) (2) (A), were pending on or after June 7, 2008. Therefore, we conclude the Fraud Enforcement and Recovery Act does not apply retroactively to this case."
346. (citing Sci. Applications, 653 F. Supp. 2d at 106-07));
347. *2 n. 2 (S. D. Fla. Feb. 17, 2010)
348. (citing to Hopper, 588 F.3d at 1327 n. 3, to conclude that FERA does not apply retroactively);
349. *4 n. 4 (M. D. Ga. Jan. 11, 2010) ("The revised version of section (a) (1) (B) does not apply to this case because none of Defendants' claims at issue here... were pending on or after June 7, 2008."
350. (citing Sci. Applications, 653 F. Supp. 2d at 106-07));
351. United States ex rel. Sanders v. Allison Engine Co., Inc., 667 F. Supp. 2d 747, 750-51 (S. D. Ohio 2009) (holding that claims takes technical meaning supported by negative implication and legislative history)
352. (citing Sci. Applications, 653 F. Supp. 2d at 106-07);
353. *2 (E. D. Ark. Dec. 18, 2009) ("The FCA was recently amended by the Fraud Enforcement and Recovery Act of 2009. Although the sections of the FCA at issue in this case were amended, those amendments did not have retroactive application. Therefore, the FCA is interpreted herein as it existed prior to the 2009 amendments." (citations omitted)).
354. Landgraf v. USI Film Prods., 511 U. S. 244, 280 (1994).
355. INS v. St. Cyr, 533 U. S. 289, 316 (2001)
356. (quoting Bowen v. Georgetown Univ. Hosp., 488 U. S. 204, 272-73 (1988)).
357. Lindh, 521 U. S. at 328 n. 4.
358. See id. at 327.
359. See id. at 330.
360. Deweese v. Nat'l R. R. Passenger Corp., 590 F.3d 239, 251 (3d Cir. 2009) ("In deciding whether a statute has a retroactive effect, a court must determine the 'important event' to which the statute allegedly attaches new legal consequences.").
361. See infra Part VI. A.3.
362. See supra Part V.
363. See supra Part V.
364. See supra Part V.
365. See supra Part V.
366. See supra Part V;
367. see also LINDA D. JELLUM, MASTERING STATUTORY INTERPRETATION 244 (2008) ("The requirement of a clear, or plain, statement is based on the simple assumption that a legislature would not make major changes without being absolutely clear about doing so.");
368. William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593, 597 (1992) (arguing that "super-strong clear statement rules" are a way that courts can force legislators to focus on otherwise underenforced constitutional norms).
369. INS v. St. Cyr, 533 U. S. 289, 317 (2001)
370. (quoting Lindh v. Murphy, 521 U. S. 320, 328 n. 4 (1997)).
371. See John F. Manning, Lessons from a Nondelegation Canon, 83 NOTRE DAME L. REV. 1541, 1557-58 (2008) ("It is true, of course, that judges can disagree about the question whether a statute is clear. But one can at least articulate a plausible standard against which to argue about clarity: if all or almost all of those conversant with applicable social and linguistic conventions would agree upon a statute's meaning, the outcome can be said to be clear in context. In such a case, where almost all interpreters (sharing a common methodology) would agree that the evidence points decisively in one direction, only the most dedicated rule skeptics would hesitate to attribute the resultant interpretation to Congress." (footnotes omitted)).
372. Landgraf v. USI Film Prods., 511 U. S. 244, 255 n. 8 (1994)
373. (quoting S. 2104, 101st Cong. §15 (a) (4) (1990));
374. see also id. at 255 ("[T]he 1990 bill... contained language expressly calling for application of many of its provisions, including the section providing for damages in cases of intentional employment discrimination, to cases arising before its (expected) enactment.").
375. Rivers v. Roadway Express, Inc., 511 U. S. 298, 307-08 (1994).
376. 521 U. S. at 328 n. 4.
377. 282 U. S. 409, 418 (1931). The relevant provision reads: If any internal-revenue tax (or any interest, penalty, additional amount, or addition to such tax) was... assessed prior to June 2, 1924... then the payment of such part (made before or within one year after the enactment of this Act) shall not be considered as an overpayment under the provisions of section 607, relating to payments made after the expiration of the period of limitation on assessment and collection.
378. Id. at 432 n. 1.
379. 353 U. S. 180, 184 (1957)
380. (quoting 26 U. S. C. § 3791 (b) (1939));
381. see also Lindh, 521 U. S. at 328 n. 4
382. (citing Auto. Club of Mich., 353 U. S. at 184).
383. Martin v. Hadix, 527 U. S. 343, 355 (1999) (alteration in original)
384. (quoting 42 U. S. C. § 1997 (e) (d) (3)).
385. 517 U. S. 882, 896 (1996)
386. (quoting the Omnibus Budget Reconciliation Act of 1986, Pub. L. No. 99-272, § 9204 (a) (1));
387. *2 (D. Haw. Feb. 2, 2009) ("[T]he ADA Amendment indicates a preference for prospective application-'This Act and the amendments made by this Act shall become effective on January 1, 2009.'"
388. (quoting ADA Amendments Act of 2008, Pub. L. 110-325, § 8, 122 Stat. 3553, 3559)).
389. INS v. St. Cyr, 533 U. S. 289, 319 (2001)
390. (quoting Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, § 321 (b), 110 Stat. 3009-546, 3009-628).
391. Justice Scalia has indicated that a clear statement does not even require this much: Even in those areas of our jurisprudence where we have adopted a "clear statement" rule (notably, the sovereign immunity cases to which the Court adverts), clear statement has never meant the kind of magic words demanded by the Court today-explicit reference to habeas or to § 2241-rather than reference to "judicial review" in a statute that explicitly calls habeas corpus a form of judicial review. In Gregory v. Ashcroft, we said: "This [the Court's clear-statement requirement] does not mean that the [Age Discrimination in Employment] Act must mention [state] judges explicitly, though it does not. Rather, it must be plain to anyone reading the Act that it covers judges."
392. Id. at 333-34 (Scalia, J., dissenting) (citations omitted)
393. (quoting Gregory v. Ashcroft, 501 U. S. 452, 467 (1991)).
394. 511 U. S. 298, 307 (1994);
395. see also Ileto v. Glock, Inc., 565 F.3d 1126, 1138 (9th Cir. 2009) (holding that the Protection of Lawful Commerce in Arms Act (PLCAA) expressed clear retroactive intent);
396. cf. 15 U. S. C. § 7902 (b) (2006) (PLCAA) ("Dismissal of Pending Actions[:] A qualified civil liability action that is pending on [the date of enactment of this Act], shall be immediately dismissed by the court in which the action was brought or is currently pending.").
397. Graham v. Goodcell, 282 U. S. 409, 418 (1931).
398. 533 U. S. at 319.
399. See, e.g., Martinez v. INS, 523 F.3d 365, 370 (2d Cir. 2008) ("Notwithstanding any other provision of law (including any effective date), the term... applies regardless of whether the conviction was entered before, on, or after [September 30, 1996]."
400. (quoting Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, § 321 (b), 110 Stat. 3009-546, 3009-628) (alternations in original));
401. Sadhvani v. Chertoff, 460 F. Supp. 2d 114, 121 (D. D. C. 2006) (finding that the phrase "effective immediately and applicable 'to cases in which the final administrative order of removal... was issued before, on, or after'" indicated retroactive intent).
402. 511 U. S. 298 (1994).
403. Id. at 307-08.
404. Id. at 307.
405. Id. (citations omitted) (emphasis in original).
406. Id. (emphasis in original).
407. Id. at 308;
408. see also id. at 307 n. 7 (stating that the "restorative purpose" standing alone was not dispositive, but when combined with the other language in the 1990 version pointed to retroactive intent).
409. Fraud Enforcement and Recovery Act of 2009, Pub. L. No. 111-21, § 4, 123 Stat. 1617, 1621-25.
410. See supra Part I.
411. See supra Part I.
412. Schneider v. Chertoff, 450 F.3d 944, 953 (9th Cir. 2006) ("[U]nless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning."
413. (quoting United States v. Smith, 155 F.3d 1051, 1057 (9th Cir. 1998))).
414. Gen. Dynamics Land Sys., Inc. v. Cline, 540 U. S. 581, 594-95 (2004).
415. Id.
416. Id. at 595
417. (quoting Atl. Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 433 (1932)). The Court went on to say, "[T]he presumption is not rigid and readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent."
418. Id.
419. (quoting Atl. Cleaners, 286 U. S. at 433).
420. The Court cited United States v. Cleveland Indians Baseball Co., 532 U. S. 200, 213 (2001)
421. for the proposition that "'wages paid' has different meanings in different parts of Title 26 U. S. C., "
422. and Robinson v. Shell Oil Co., 519 U. S. 337, 343-44 (1997), for the proposition that the "term 'employee' has different meanings in different parts of Title VII." Id.
423. Id.
424. Id. at 595-96 (footnote omitted).
425. See, e.g., United States v. Sci. Applications Int'l Corp., 653 F. Supp. 2d 87, 106-07 (D. D. C. 2009).
426. Gen. Dynamics Land Sys., Inc. v. Cline, 540 U. S. 581, 595 (2004).
427. See Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U. S. 409, 415 (2005).
428. Fraud Enforcement and Recovery Act of 2009, Pub. L. No. 111-21, § 4 (f), 123 Stat. 1617, 1625.
429. 31 U. S. C. A. § 3729 (b) (2) (A) (West Supp. 2010);
430. see also United States ex rel. Hendow v. Univ. of Phoenix, 461 F.3d 1166, 1170-71 (9th Cir. 2006)
431. ("[E]ach and every claim submitted under a contract, loan guarantee, or other agreement which was originally obtained by means of false statements or other corrupt or fraudulent conduct, or in violation of any statute or applicable regulation, constitutes a false claim." (emphasis added)
432. (quoting S. REP. No. 99-345, at 9 (1986))).
433. See, e.g., S. 2041, 110th Cong. § 9 (b) (2007) ("The amendments made by section 2 shall take effect on the date of enactment of this Act and shall apply to conduct occurring after the date of enactment.").
434. See, e.g., United States ex rel. Pogue v. American Healthcorp., Inc., 914 F. Supp. 1507, 1512 (M. D. Tenn. 1996) ("[T]he court dismissed the plaintiff's claim under the False Claims Act." (emphasis added)
435. (discussing United States ex rel. Weinberger v. Equifax, 557 F.2d 456 (5th Cir. 1977)));
436. see also United States ex rel. Stephens v. Tissue Sci. Lab., 664 F. Supp. 2d 1310, 1316 (N. D. Ga. 2009) ("Claims brought pursuant to the FCA must also meet the particularity requirement." (emphasis added));
437. *2 (N. D. Tex. Sept. 3, 2003) ("Even if Relators had alleged sufficient facts, they would have still failed to state a cognizable claim under the False Claims Act." (emphasis added));
438. United States ex rel. Hendow v. Univ. of Phoenix, 461 F.3d 1166, 1169 (9th Cir. 2006) ("This case involves allegations under the False Claims Act...." (emphasis added)).
439. See, e.g., 31 U. S. C. § 3730 (a) (2006) ("[T]he Attorney General may bring a civil action under this section...." (emphasis added));
440. see also id. § 3730 (b) (3) ("The defendant shall not be required to respond to any complaint filed under this section...." (emphasis added)).
441. See infra Part VI. A.2.b.
442. See BLACK'S LAW DICTIONARY 281-82 (9th ed. 2009) ("claim, n. 1. The aggregate of operative facts giving rise to a right enforceable by a court.... 2. The assertion of an existing right; any right to payment or to an equitable remedy, even if contingent or provisional.... 3. A demand for money, property, or a legal remedy to which one asserts a right; esp., the part of a complaint in a civil action specifying what relief the plaintiff asks for.");
443. see also Republic of Austria v. Altmann, 541 U. S. 677, 698 n. 18 ("The office of the word 'henceforth' [in the statute at issue] is to make the statute effective with respect to claims to immunity thereafter asserted. Notably, any such claim asserted immediately after the statute became effective would necessarily have related to conduct that took place at an earlier date." (emphasis added)).
444. 31 U. S. C. A. § 3729 (a) (1) (A) - (B) (West Supp. 2010).
445. Id. § 3729 (a) (2) (A).
446. See, e.g., 31 U. S. C. § 3733 (a) (1) (2006) ("a false claims law investigation");
447. see also id. § 3733 (a) (2) (A) ("alleged violation of a false claims law").
448. 31 U. S. C. A. § 3729 (b) (West Supp. 2010).
449. 31 U. S. C. § 3730 (c) (5), (d) (1), (d) (2), (d) (4) (2006) (emphasis added).
450. 31 U. S. C. A. § 3731 (c) (West Supp. 2010).
451. 31 U. S. C. § 3732 (b) (2006).
452. Id.
453. see also 31 U. S. C. A. § 3729 (d) (West Supp. 2010) ("This section does not apply to claims, records, or statements made under the Internal Revenue Code of 1986.").
454. See supra note 251.
455. See Gen. Dynamics Land Sys., Inc. v. Cline, 540 U. S. 581, 594-95 (2004).
456. See United States v. Gonzales, 520 U. S. 1, 6 (1997) ("[G]iven the straightforward statutory command, there is no reason to resort to legislative history."
457. (citing Conn. Nat'l Bank v. Germain, 503 U. S. 249, 254 (1992))).
458. See, e.g., Landgraf v. USI Film Prods., 511 U. S. 244, 262-63 (1994);
459. see also Hamdan v. Rumsfeld, 548 U. S. 557, 579-80 (2006).
460. See FRANK B. CROSS, THE THEORY AND PRACTICE of STATUTORY INTERPRETATION 64 (2009) ("Given the presence of contradictory materials in [legislative history] courts have developed guidance to determine the most reliable sources of intent.").
461. ESKRIDGE et AL., supra note 92, at 302-08.
462. Id. at 302 (explaining that committee reports are a useful source to glean general and specific intent);
463. see also Garcia v. United States, 469 U. S. 70, 76 (1984) ("In surveying legislative history we have repeatedly stated that the authoritative source for finding the Legislature's intent lies in the Committee Reports on the bill....");
464. A NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 48A:11, at 676 (6th ed. 2000) ("'A committee report represents the considered and collective understanding of those Congressmen involved in drafting and studying proposed legislation. '... Committee reports are often the best evidence of bicameral agreement, either because the House and Senate reports are identical, or because a conference report explicates the chambers' resolution of differences."
465. (quoting Zuber v. Allen, 396 U. S. 168, 186 (1969))).
466. ESKRIDGE et AL., supra note 92, at 303-04
467. (citing N. Haven Bd. of Educ. v. Bell, 456 U. S. 512 (1982)).
468. Id. at 305.
469. S. REP. No. 111-10, at 10 n. 2 (2009)
470. reprinted in 2009 U. S. C. C. A. N. 430, 438 ("The provisions in Section 4 were drawn, in significant part, from the Committee's previous work on S. 2041, the False Claims Act Corrections Act of 2008, in the 110th Congress.... The Committee feels that the report to S. 2041, S. Rpt. 110-507, should be read as a complement to this report due to a number of similar changes contained in S. 386." (emphasis added)).
471. S. REP. No. 110-507, at 9 (2008). Senator Grassley was a key player in the genesis of FERA's amendments to FCA. This is unsurprising, as he was also the sponsor of the major 1986 amendments to FCA.
472. Id.
473. Id.
474. Id. at 1-5.
475. Id. at 6.
476. Id.
477. Id.
478. Id. at 8-9.
479. Id. at 9.
480. Id.
481. Id. at 12.
482. Id. at 30.
483. Id.
484. S. 2041, 110th Cong. § 9 (a) - (c) (2007) (emphasis added).
485. Id.
486. S. REP. No. 111-10, at 1-2 (2009)
487. as reprinted in 2009 U. S. C. C. A. N. 430, 430. The following senators joined later as co-sponsors: Klobuchar (D-Minn.), Schumer (D-N. Y.), Murray (D-Wash.), Bayh (D-Ind.), Specter (D-Pa.), Snowe (R-Me.), Harkin (D-Iowa), Levin (D-Mich.), Dorgan (D-N. D.), Whitehouse (D-R. I.), Rockefeller (D-W. V.), Shaheen (D-N. H.), Stabenow (D-Mich.), Sanders (I-Vt.), Bennet (D-Colo.), Durbin (D-Ill.), Mikulski (D-Md.), Gillibrand (D-N. Y.), Begich (D-Alaska), Burris (D-Ill.), Dodd (D-Conn.), Menendez (D-N. J.), Cardin (D-Md.), Reid (D-Nev.), and Pryor (D-Ark.).
488. See S. 155 CONG. REC. S4735-36 (daily ed. Apr. 27, 2009).
489. S. REP. No. 111-10, at 5.
490. Id. at 4-5.
491. Id. at 5.
492. Id. at 3 ("This bipartisan legislation will reinvigorate our Nation's capacity to investigate and prosecute the kinds of financial frauds that have so severely undermined our financial markets and hurt so many hard working people in these difficult economic times. This legislation provides the resources and new tools needed for law enforcement to uncover and prosecute these frauds and to aggressively work to detect and prevent fraud related to the Government's ongoing efforts to bail out banks and stimulate the economy.").
493. Id. at 10 ("[Section 4] amends the FCA to clarify and correct erroneous interpretations of the law that were decided in [Allison Engine and Totten].").
494. See supra Part VI. A.
495. See 155 CONG. REC. S4408-10 (daily ed. Apr. 20, 2009) (statement of Sen. Leahy) (emphasizing law enforcement response to the fraud causing massive financial loss);
496. see also id. at S4414-15 (statement of Sen. Klobuchar) (emphasizing need for law enforcement response to financial fraud);
497. id. at S4420 (statement of Sen. Dorgan) ("There is a lot of work to do in investigating and cracking down on financial fraud, including mortgage fraud. The bill we are considering this week is going to go a long way toward that effort.").
498. 155 CONG. REC. S3120 (daily ed. Mar. 16, 2009) (statement of Sen. Kaufman) ("Foremost, we must rescue, reform, and recapitalize our banking system.... [The co-sponsors] and I pressed this legislation forward because we needed to ensure that the Justice Department, the FBI, and other law enforcement agencies have the resources they need to find, prosecute, and jail those who have committed financial fraud.").
499. 155 CONG. REC. S4410 (daily ed. Apr. 20, 2009).
500. See, e.g., 155 CONG. REC. S1682 (daily ed. Feb. 5, 2009) (statement of Sen. Leahy) ("The effectiveness of the False Claims Act has recently been undermined by court decisions which limit the scope of the law and allow sub-contractors paid with government money to escape responsibility for proven frauds. The False Claims Act must quickly be corrected and clarified in order to protect from fraud the Federal assistance and relief funds expended in response to our current economic crisis.").
501. See id. at S1681-82 (statement of Sen. Leahy).
502. 155 CONG. REC. S4410 (daily ed. Apr. 20, 2009) (statement of Sen. Leahy) ("The bill creates no new statutes and no new sentences. Instead, it focuses on modernizing existing statutes to reach unregulated conduct and on addressing flawed court decisions interpreting those laws.");
503. see also id. at S4413 (statement of Sen. Kaufman) (stating that the changes to FCA did not create "new paths to recover[] ill-gotten gains", but instead were "carefully considered" and "precisely targeted" to correct "ill-considered" court decisions).
504. 155 CONG. REC. E1300 (daily ed. June 3, 2009) (statement of Rep. Berman).
505. Id.
506. Id.
507. Id. (emphasis added).
508. See 31 U. S. C. A. § 3729 (b) (2) (West. Supp. 2010).
509. Totten v. Bombardier Corp., 380 F.3d 488, 498-99 (2004) ("[T]he dissent points to Section 3729 (c), which, as we have seen, provides that the term 'claim' includes requests made to grantees and other recipients 'if the United States Government provides any portion of the money or property which is requested or demanded, or if the Government will reimburse [the recipient] for any portion of the money or property.'... This reading has a fatal flaw: it yields exactly the same meaning that would result if Section 3729 (a) (2) did not contain the words 'by the Government' at all."
510. (quoting 31 U. S. C. § 3729 (c)) (citations omitted)).
511. See supra Part I V.
512. S. REP. No. 111-10, at 2 (2009)
513. as reprinted in 2009 U. S. C. C. A. N. 430, 430.
514. Id. at 6, as reprinted in 2009 U. S. C. C. A. N. 430, 434;
515. see also S. 386, 111th Cong. § 4 (b) (reported in Senate Mar. 5, 2009).
516. The earliest House version of the FCA Corrections Act was introduced by Representative Berman (joined by Representative James Sensenbrenner) to the House on December 19, 2007. H. R. 4854, 110th Cong. (2007). The original bill includes an express retroactivity provision that reads "[t]he amendments made by this Act shall take effect on the date of the enactment of this Act and shall apply to any case pending on, or filed on or after, that date."
517. Id. at § 8. Representative Berman explained that the law's intent was to correct judicial rulings where "courts have thrown out cases in which the Government has administered Government programs, and expended its funds through contractors and other agents, as opposed to direct expenditure."
518. CONG. REC. E2658 (daily ed. Dec. 19, 2007) (statement of Rep. Berman). To further that end, "[w]e intend for these amendments to apply to all future cases as well as all cases that are pending in the courts on the date the amendments become law."
519. Id. The 2009 version of the House Corrections Act is far more detailed and has a multi-tiered effective date provision with default retroactivity ("shall apply to any case pending on, or filed on or after, that date"), but now also has exceptions for several procedural provisions that would operate prospectively.
520. See H. R. 1788, 111th Cong. § 7 (2009).
521. S. 386, 111th Cong. § 4 (f) (2) (engrossed House amendment, May 6, 2009).
522. See, e.g., S. REP. No. 111-10, at 11 (2009)
523. as reprinted in 2009 U. S. C. C. A. N. 430, 438 ("The Totten decision, like the Allison Engine decision, runs contrary to the clear language and congressional intent of the FCA by exempting subcontractors who knowingly submit false claims to general contractors and are paid with Government funds.");
524. see also id. ("Following the decision in Totten a number of courts have held that the FCA does not reach false claims that are (1) presented to Government grantees and contractors, and (2) paid with Government grant or contract funds. These cases are representative of the types of frauds the FCA was intended to reach when it was amended in 1986." (footnote omitted)).
525. Id. at 13 ("[T]his bill includes a clarification to the definition of the term 'claim' in new Section 3729 (b) (2) (A) and attaches FCA liability to knowingly false requests or demands for money and property from the U. S. Government, without regard to whether the United States holds title to the funds under its administration. ").
526. 155 CONG. REC. S4412 (daily ed. Apr. 20, 2009) (statement of Sen. Grassley) ("I think I have some expertise in that area, being the author of this legislation and finding the Supreme Court's ruling contrary to congressional intent, albeit their motivation may be to interpret the law and that is the way they interpret it, but it does not keep us from going back to what we think is the original intent and saying to the courts: You got it wrong.").
527. 514 U. S. 211, 226 (1995);
528. see also Landgraf v. USI Film Prods., 511 U. S. 244, 273-80 (1994);
529. Lundeen v. Canadian Pac. Ry. Co., 532 F.3d 682, 689 (8th Cir. 2008) (applying new corrective amendment to conduct preceding enactment where the statute applies "to all pending State law causes of action arising from events or activities occurring on or after January 18, 2002");
530. supra note 26.
531. Plaut, 514 U. S. at 227
532. (quoting United States v. Schooner Peggy, 5 U. S. (1 Cranch) 103, 109 (1801));
533. see also Lundeen, 532 F.3d at 689 ("[T]he Supreme Court reiterated Congress possesses the power to amend existing law even if the amendment affects the outcome of pending cases."
534. (citing Plaut, 514 U. S. at 218)).
535. Plaut, 514 U. S. at 227 ("Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the courts said it was." (emphasis in original));
536. see also Ileto v. Glock, Inc., 565 F.3d 1126, 1139 (finding that there is no separation of power challenge to an amendment to applicable law, which applies in pending and future cases).
537. Plaut, 514 U. S. at 227 ("Within that hierarchy, the decision of an inferior court is not (unless the time for appeal has expired) the final word of the department as a whole.").
538. See supra note 278-80 and accompanying text.
539. See supra Part VI. A.3.b.
540. See supra Part VI. A.4.
541. See, e.g., Sci. Applications Int'l Corp., 653 F. Supp. 2d 87, 107 (D. D. C. 2009);
542. see also supra Part VI. A.5.
543. Lindh v. Murphy, 521 U. S. 320, 330 (1997) ("[N]egative implications raised by disparate provisions are strongest when the portions of a statute treated differently had already been joined together and were being considered simultaneously when the language raising the implication was inserted."
544. (citing Field v. Mans, 516 U. S. 59, 75 (1995)));
545. see also Field, 516 U. S. at 75 ("The more apparently deliberate the contrast, the stronger the inference, as applied, for example, to contrasting statutory sections originally enacted simultaneously in relevant respects....").
546. See supra Part VI. A.5.
547. Id.
548. Id.
549. Landgraf v. USI Film Prods., 511 U. S. 244, 282 (1994) ("Compensatory damages may be intended less to sanction wrongdoers than to make victims whole, but they do so by a mechanism that affects the liabilities of defendants." (emphasis in original)).
550. Id. at 283-84.
551. See supra Part I.
552. United States v. Aguillon, 628 F. Supp. 2d 542, 550 (D. Del. 2009).
553. Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939, 950 (2009).
554. See id.; see also Landgraf, 511 U. S. at 265;
555. Basset, supra note 31, at 530 ("[T]he Supreme Court's decisions have... traditionally considered notions of fairness in reviewing legislative retroactivity. These notions of fairness have included equity, justice, and reliance.").
556. This point was suggested to me by Professor Michael Rich. See E-mail from Professor Michael Rich, Assistant Professor of Law, Capital University, to Matthew Titolo, Visiting Assistant Professor of Law, West Virginia University School of Law (Feb. 17, 2010, 16:21 EST) (on file with author).
557. See supra Part VI. A.3.a.
558. See, e.g., supra notes 2-3;
559. see also Victoria Nourse & Gregory Shaffer, Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory?, 95 CORNELL L. REV. 61, 63 (2009) ("In the past year, the world has shown us the folly of some of legal scholarship's most powerful intellectual assumptions. The sudden collapse of our world economy has led to economists' open confessions that markets are not self-regulating and that they can be skewed by systematic irrational behavior, [undermining] frequent assumptions of neoclassical law and economics.").
560. See, e.g., RICHARD A. POSNER, A FAILURE of CAPITALISM: THE CRISIS of '08 AND THE DESCENT INTO DEPRESSION 235 (2009) ("As far as one can judge on the basis of what is known today... the depression is the result of normal business activity in a laissez-faire economic regime-more precisely, it is an event consistent with the normal operation of economic markets.").
561. This debate is well underway. See, e.g., GOVERNMENT BY CONTRACT: OUTSOURCING AND AMERICAN DEMOCRACY (Jody Freeman & Martha Minnow eds., 2009);
562. see also VERKUIL, supra note 2;
563. Jody Freeman, Extending Public Law Norms Through Privatization, 116 HARV. L. REV. 1285 (2003);
564. Jody Freeman, The Private Role in Public Governance, 75 N. Y. U. L. REV. 543 (2000);
565. Gillian E. Metzger, Privatization as Delegation, 103 COLUM. L. REV. 1367 (2003);
566. Minow, supra note 3.