Acting Associate AG Comments on False Claims Act Enforcement
In remarks given at the American Bar Association’s 12th National Institute on the Civil False Claims Act and Qui Tam Enforcement, Acting Associate Attorney General Jesse Panuccio commented on a wide range of FCA topics, including the DOJ’s general work in Civil Enforcement of the FCA, specific cases the DOJ has worked on recently, and various policy initiatives spearheaded by the Department. Of particular interest were the DOJ’s policy toward qui tam dismissals and “regulation by guidance.”
As mentioned by Mr. Panuccio, the number of qui tam suits has grown since 1986 and now registers at around 600 cases per year filed by relators. While the DOJ elects not to intervene in a number of these cases, it still must use valuable resources to track and monitor these cases, and is occasionally called upon to file various advisory briefs. In an effort to reduce the burden on DOJ resources, the Department has instructed attorneys to consider whether moving for dismissal of a qui tam suit is appropriate simultaneously with the decision whether or not to intervene. Specifically, the DOJ is encouraging attorneys to exercise the Department’s right to seek dismissal in cases which lack merit or are otherwise contrary to the interests of justice by consuming limited resources that could be used to pursue other meritorious cases and priorities.
Mr. Panuccio also commented on what he called the “problem of regulation by guidance.” The DOJ often issues guidance documents regarding various statutes, regulations, or legal developments related to topics under the jurisdiction and supervision of the Department as a way to educate the public and inform businesses about relevant controlling law. What these documents are not intended to do—and what the DOJ is now actively avoiding—is bind those outside the Executive Branch by imposing legal obligations beyond those already espoused in statutes and regulatory provisions. Mr. Panuccio said that “agency Guidance should educate, not regulate.” To that end, documents that expand upon statutory or regulatory requirements should not be used for contending that legal violations have occurred, although the receipt of such guidance documents could be used as probative evidence that a defendant was aware of and understood the law they had allegedly violated.
While Mr. Panuccio’s remarks are not binding on regulated entities, they do provide valuable insight into the Department’s thinking moving forward on FCA qui tam suits.
His remarks are available here.
