February 5, 2018

Justice Department Defends Whistleblower Law’s Constitutionality

By the C|C Whistleblower Lawyer Team

Reuters reports on a case currently pending in the 10th Circuit Court of Appeals challenging the constitutionality of the qui tam provisions of the False Claims Act. The appeal was brought by Utah-based healthcare system Intermountain Healthcare, Inc. Intermountain is arguing that the qui tam provisions of the False Claims Act strip the President of the power to remove a relator when the government declines to participate in a case. As written the False Claims Act allows qui tam relators to pursue cases on the behalf of the government on their own even when the government declines to intervene.

The root of the appeal lies in a qui tam case filed by Gerald Polukoff in 2016 alleging that Utah doctor Sherman Sorenson was fraudulently billing for unnecessary medical procedures. The lawsuit named Intermountain Healthcare and St. Mark’s Hospital as defendants. The Justice Department chose not to intervene in the case leaving the relator to pursue the case on his own. A U.S. district court judge dismissed the case in January 2017.

In its appeal, Intermountain argues that by allowing relators to continue a case on their own, the False Claims Act violates the principle of separation of powers in the Constitution. In its brief to the Court of Appeals, Intermountain’s attorneys wrote that as the law currently stands “[t]he buck stops with the relator or the judiciary – not the executive.” Intermountain cites a 2010 Supreme Court case holding that the Public Company Accounting Oversight Board violated the Constitution because the law creating it did not give the President enough power to remove board members.

The Justice Department responded by noting that it has the ability to intervene, displace a whistleblower’s authority to litigate, or dismiss a lawsuit even over the objections of relators. The Justice Department went on to say “The Constitution does not require that the Executive Branch have any additional power to preclude a private litigant whose suit would vindicate public rights from prosecuting a case.”

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