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1 U.S. Department of Justice Office of Legislative Affairs Office of the Assistant Attorney General Washington, D. C The Honorable Patrick J. Leahy United States Senate Committee on the Judiciary Washington, D.C Dear Mr. Chairman: February 24,2009 This provides the Department's views on Section 4 of S. 386, the Fraud Enforcement and Recovery Act of 2009, which proposes clarifications to the False Claims Act (FCA). As you know, the FCA is one of the primary tools used by the Department to deter and recover from those who seek to defraud the Government. In 1986, Congress amcnded the FCA to strengthen its provisions, and to invigorate the public-private partnership envisioned by the FCA. The 1986 amendments have proven very effective. The Department's recoveries under the FCA, with the assistance of private whistleblowers, have reached record levels. In eight of the last nine years, the Department's recoveries have exceeded $1 billion. Moreover, since 1986, the Department, working with U.S. Attorneys' Offices, Government agencies, and private citizens, has returned more than $21 billion in public monies to the Treasury. While health care fraud is currently the largest source of the Department's recoveries under the FCA, the Department has used the FCA widely to protect a broad range of government programs and contracts. As the Department's experience thus reflects, every government agency and program is susceptible to potential fraud and is in need of the protections afforded by the FCA. For this reason, the Department supports the Committee's efforts to revise and strengthen the substantive liability provisions of the statute. These changes include language to clarify that proof of presentment to a U.S. official and ownership by the federal government of the relevant funds is not required, and to expand the scope of the FCA's reverse false claim provision. The Department agrees that such modifications would be useful, but recommends certain modifications to ensure that they do not invite unintended consequences. The Department also recommends that the Committee consider additional modifications to address the impact of the Supreme Court's recent decision in Allison Engine v. U.S. ex rel. Sanders, 128 S. Ct (2008). In that decision, the Supreme Court read a new intent requirement into the FCA, which could have the effect of eliminating FCA coverage for some government programs and funds. Indeed, in the limited time since Allison Engine was issued, defendants have asserted that the FCA no longer extends to a variety of government programs

2 that have historically received FCA protection, including Medicaid, student loans, and federal highway funds. Moreover, a district court has relied on Allison Engine to dismiss a case brought by the government for fraud on the federal crop insurance program. United States v. Russell T. Hawley, et al., No. C MWB (N.D. Iowa). Although the United States believes that decision is wrong, and has filed an appeal with the 8' Circuit, it highlights the current uncertainty that exists regarding the scope of the FCA following Allison Engine, and the substantial time and resources that the Government will have to expend to litigate Allison Engine's new, and in our view erroneous, intent requirement. The Department's specific recommendations are set forth in the attached appendix. We believe these recommendations will further ensure that the FCA remains a potent weapon against all attempts to defraud the United States and the American taxpayers. Finally, the Department has identified a technical correction that should be made to the proposed definition of "knowing and knowingly." Thank you for the opportunity to comment. The Office of Management and Budget has advised us that from the perspective of the Administration's program, there is no objection to submission of this letter. Sincerely, M. Faith Burton Acting Assistant Attorney General cc: The Honorable Arlen Specter Ranking Minority Member

3 APPENDIX TO LETTER DATED FEBRUARY 23,2009 Section 4 of S. 386 seeks to amend section 3729 of the False Claims Act (FCA), which sets forth the FCA's substantive liability provisions. Although the Department is generally supportive of these changes, it recommends that Section 4 be refined in several respects, as set forth below. 1. Section 4(a)(l) of the bill proposes changes designed to address the primary holdings inu.s. ex rel. DRC v. Custer Battles, 376 F.Supp.2d 617 (E.D. Va. 2005), appeal filed, No (4th Cir.), and U.S. ex rel. Totten v. Bombardier Corp., 380 F.3d 488 (D.C. Cir. 2004). In Custer Battles, the United States District Court for the Eastern District of Virginia held that the FCA encompasses only claims for federal funds, and that false claims paid from the Development Fund for Iraq (DFI funds) did not give rise to FCA liability because DFI funds were not federal funds. In Totten, the United States Court of Appeals for the District of Columbia Circuit held that paragraphs 3729(a)(1) and (a)(2) of the FCA require that a false claim be presented to an official of the United States, and not just a recipient of federal funds. The Supreme Court's decision in Allison Engine Co. v. United States ex rel. Sanders, 128 S. Ct (2008), subsequently suggested that presentment to a U.S. official is not required under paragraphs 3729(a)(2) and (a)(3) but is required under paragraph 3729(a)(l). The Department has argued in numerous cases against the interpretation of the FCA adopted by the D.C. Circuit in Totten. Similarly, the Department argued against the district court's ruling in Custer Battles, and filed an amicus brief in the Fourth Circuit urging it to reverse that ruling. The Department therefore supports the Committee's efforts to clarify that the FCA does not require presentment of a claim to a U.S. official or ownership by the federal government of the relevant funds. However, the Department recommends adding language to ensure that the elimination of any such requirements does not cause the FCA to encompass all acts of fraud directed at an entity that receives money from the United States. We recognize that the Committee proposes to add a new subparagraph 3729(b)(2)(B) stating that the term "claim... does not include requests or demands for money or property that the Government has paid to an individual as compensation for Federal employment or as an income subsidy with no restrictions on that individual's use of the money or property." Yet, [he payment of federal salaries and income subsidies are only a few of the situations where federal money is provided to individuals or entities that may be victims of fraud. The Department does not advocate application of the FCA to acts of fraud that do not affect any Government interest simply because the victim of the fraud received money from the United States. The Department therefore proposes refining the definition of the term "claim" to ensure that the FCA does not encompass fraud having no nexus to the Government. Specifically, the Department recommends eliminating proposed subparagraph 3729(b)(2)(B), and inserting the italicized language below in proposed clause 3729(b)(2)(A)(ii):

4 (2) the term 'claim'- (A) means any request or demand, whether under a contract or otherwise, for money or property and whether or not the United States has title to the money or property, that- (i) (ii) is presented to an officer, employee, or agent of the United States; or is made to a contractor, grantee, or other recipient, ifthe money or property is to be spent or used on the Government's behalf or to advance a Government program or interest, and if the United States Government- (I) provides or has provided any portion of the money or property requested or demanded; or (11) will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded; and 2. Section 4(a)(l) amends the FCA's reverse false claim provision to make the knowing concealment or avoidance of an obligation to pay a violation, and adds a definition of the term "obligation." The Department supports these changes (with the refinements recommended below). While the affirmative FCA provisions currently impose liability even in the absence of any false statement or record, there is no analogue in the reverse false claim context. Additionally, the new definition of obligation would address those cases that unduly narrowed the reverse false claim provision by holding or suggesting that the term obligation encompasses only a duty to pay that is fixed in all particulars, including the specific amount owed. See, e.g., American Textile Mfrs. Inst. v. The Limited, Inc., 190 F.3d 729 (6th Cir. 1999); United States v. Q International Courier, Inc., 131 F.3d 770 (8th Cir. 1997). Although the Department supports the Committee's efforts to revise and clarify the scope of the reverse false claim provision, the Department recommends two refinements to ensure that the provision reaches only a party's wrongful attempts to minimize the party's obligations to the Government. First, the Department recommends inserting the words "or improperly" before the term "avoids" in the last clause of proposed subparagraph 3729(a)(l)(G), as follows: "... or knowingly conceals, or improperly avoids or decreases, an obligation to pay...." We are also reviewing the definition of "obligation", which needs to be refined in a way that better characterizes the obligation(s) in question, and we would like to discuss, an approach for addressing this issue at a later date. 3. We recommend that Section 4(a)(l) of the bill address the intent requirement read into the FCA by the Supreme Court in Allison Engine, 128 S. Ct (2008). In that

5 decision, the Supreme Court held that subsection 3729(a)(2) requires proof that the defendant "intended that the false record or statement be material" to the Government's payment decision. Id. at The Supreme Court read a similar intent requirement into subsection 3729(a)(3). Id. at In our view, the intent requirement imposed by Allison Engine unduly narrowed the scope of paragraphs 3729(a)(2) and (a)(3). In the limited time since this decision was issued, defendants have invoked it as a defense to allegations of fraud in a wide array of Government programs that have historically received FCA protection, including Medicaid, student loans, and federal highway funds. Moreover, defendants have attempted to extend the rationale of Allison Engine to other provisions of the FCA, including paragraphs 3729(a)(l) and (a)(7). At a minimum, Allison Engine will require the Government to expend substantial time and resources proving an intent requirement that, in our view, Congress never intended. Indeed, the fact that the Supreme Court imposed such a requirement in a classic case of fraud on the Treasury - a subcontractor alleged to have supplied defective parts for use in naval vessels - demonstrates the problems with this decision, and the appropriateness of a legislative response. We therefore recommend the following changes to section 4(a)(l) of the bill to respond to problems created by the Supreme Court's holding in Allison Engine. First, we propose that the bill remove the specific language from the various liability provisions used by Allison Engine, or defendants relying on that decision, to find an intent requirement in those provisions. Specifically, proposed subparagraphs 3729(a)(l)(B), (a)(l)(c), and (a)(l)(g) should be revised to read as follows (the text of subparagraph 3729(a)(l)(G) reflects the additional refinements discussed above): (a) Liability for Certain Acts -- (1) In General. -- Subject to paragraph (2), any person who -- (B) (C) knowingly makes, uses or causes to be made or used, a false record or statement material to a false or fraudulent claim; conspires to commit a violation of subparagraph (A), (B), (D), (E), (F), or (G) or otherwise in connection with the payment or approval of a false or fraudulent claim; (G) knowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the Government, or knowingly conceals, or improperly avoids or decreases, an

6 obligation to pay or transmit money or property to the Government, Second, we recommend that the following language be added at the end of proposed subsection 3729(a) to clarify that none of the FCA's liability provisions require proof that the defendant acted with the specific intent or purpose of affecting the government's payment or collection of funds: (4) PROOF OF INTENT OR PURPOSE NOT REQUIRED. - NO proof shall be required that a defendant had (i) the intent or purpose of getting a false or fraudulent claim paid or approved by the Government, or the intent or purpose that a false record or statement be material to the Government's decision to pay or approve a claim, or (ii) the intent or purpose to conceal, or improperly avoid or decrease, an obligation to pay or transmit money or property to the Government, or the intent or purpose that a false statement or record conceal, avoid or decrease an obligation to pay or transmit money or property to the Government. Third, if proposed subparagraphs 3729(a)(l)(B) and (a)(l)(g) are modified as suggested, we recommend that a definition of the term "material" be added to proposed subsection 3729(b) as follows: (4) the term "material" means having a natural tendency to influence, or being capable of influencing, the payment or receipt of money or property. The definition we propose is consistent with the Supreme Court's interpretation of this term in Neder v. United States, 527 U.S. 1, 16 (1999), as well as the majority of courts to interpret it in the FCA context, see United States v. Bourseau, 531 F.3d 1159, 1171 (9th Cir. 2008); United States v. Rogan, 517 F.3d 449,452 (7th Cir. 2008); United States ex rel. Bahrani v. Conagra, Inc., 465 F.3d 1189, 1204 (10th Cir. 2006); United States ex rel. A+ Homecare, Inc. v. Medshares Mgmt. Group, Inc., 400 F.3d 428,446 (6th Cir. 2005); United States ex rel. Harrison v. Westinghouse Savannah River Co., 352 F.3d 908,913, (4th Cir. 2003); United States ex rel. Cantekin v. University of Pittsburgh, 192 F.3d 402, (3d Cir. 1999). 4. Section 4(b)(l) of the bill appears to contain a typographical error in its definition of the terms "knowing" and "knowingly." These terms are defined as follows: (1) the terms 'knowing' and 'knowingly' mean that a person, with respect to information- (A) has actual knowledge of the information;

7 (B) (C) acts in deliberate ignorance of the truth or falsity of the information: or acts in reckless disregard of the truth or falsity of the information, and no proof of specific intent to defraud is required; This definition is identical to that contained in the current version of the FCA, except that in the bill the final phrase "and no proof of specific intent to defraud is required" is formatted so that it appears to modify only subparagraph (C). By contrast, in the FCA as currently written, this phrase is formatted to make clear that it applies to the entire definition. We presume that this change in formatting was unintentional, and recommend that it be corrected, to ensure that proof of a specific intent to defraud is not required under any prong of the definition.

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