Qui Tam: An Abbreviated Look at the False
Claims Act and Related Federal Statutes
Charles Doyle
Senior Specialist in American Public Law
August 6, 2009
Congressional Research Service
7-5700
www.crs.gov
R40786
CRS Report for Congress
P
repared for Members and Committees of Congress
Qui Tam: An Abbreviated Look at the False Claims Act and Related Federal Statutes
Summary
Qui tam enlists the public in the recovery of civil penalties and forfeitures. It rewards those who
sue in the government’s name with a portion of the recovered proceeds. A creature of antiquity,
once common, today qui tam lives on in federal law only in the False Claims Act and in two
minor examples found in patent and Indian protection laws.
The False Claims Act, expanded by the Fraud Enforcement and Recovery Act of 2009, P.L. 111-
21 (S. 386), 123 Stat. 1617 (2009), now proscribes: (1) presenting a false claim; (2) making or
using a false record or statement material to a false claim; (3) possessing property or money of
the U.S. and delivering less than all of it; (4) delivering a certified receipt with intent to defraud
the U.S.; (5) buying public property from a federal officer or employee, who may not lawfully
sell it; (6) using a false record or statement material to an obligation to pay or transmit money or
property to the U.S., or concealing or improperly avoiding or decreasing an obligation to pay or
transmit money or property to the U.S.; (7) conspiring to commit any such offense. Additional
liability may also flow from any retaliatory action taken against whistleblowers under the False
Claims Act. Offenders may be sued for triple damages, costs, expenses, and attorneys fees in a
civil action brought either by the United States or by a relator (whistleblower or other private
party) in the name of the United States.
If the government initiates the suit, others may not join. If the government has not brought suit, a
relator may do so, but must give the government notice and afford it 60 days to decide whether to
take over the litigation. If the government declines to intervene, a prevailing relator’s share of any
recovery is capped at 30%; if the government intervenes, the caps are lower and depend upon the
circumstances. Relators in patent and Indian protection qui tam cases are entitled to half of the
recovery.
Federal qui tam statutes have survived two types of constitutional challenges—those based on
defendants’ rights in criminal cases and those based on the doctrine of separation of powers. The
courts have found the rights required in criminal cases inapplicable, because qui tam actions are
civil matters. They have generally rejected standing arguments, because relators stand in the
shoes of the United States in whose name qui tam actions are brought. They have rejected
appointments clause arguments, because relators hold no appointed office. They have rejected
take care clause arguments, because the residue of governmental control over qui tam actions is
considered constitutionally sufficient.
This is an abridged version of CRS Report R40785, Qui Tam: The False Claims Act and Related
Federal Statutes, by Charles Doyle, stripped of the footnotes, quotations, appendix, and most of
the citations found in the longer report.
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Qui Tam: An Abbreviated Look at the False Claims Act and Related Federal Statutes
Contents
Introduction ................................................................................................................................ 1
Contemporary Federal Qui Tam Statutes ..................................................................................... 1
False Claims Act ......................................................................................................................... 1
Persons Who May Be Liable ................................................................................................. 1
Who May Bring an Action .................................................................................................... 2
Basis for Liability ................................................................................................................. 2
Penalties and Awards............................................................................................................. 3
Procedure.............................................................................................................................. 3
Patent Act (35 U.S.C. 292) .......................................................................................................... 4
Indian Protection (25 U.S.C. 201) ............................................................................................... 5
Constitutional Concerns .............................................................................................................. 6
Double Jeopardy ................................................................................................................... 6
Excessive Fines..................................................................................................................... 6
Due Process .......................................................................................................................... 6
Separation of Powers ............................................................................................................ 7
Standing.......................................................................................................................... 7
Appointments clause ....................................................................................................... 8
Take care ........................................................................................................................ 8
Contacts
Author Contact Information ........................................................................................................ 9
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Qui Tam: An Abbreviated Look at the False Claims Act and Related Federal Statutes
Introduction
Qui tam is the process whereby an individual sues or prosecutes in the name of the government
and shares in the proceeds of any successful litigation or settlement. Although frequently
punitive, it is generally a civil procedure. Unlike anti-trust, RICO, and other federal punitive
damage, private attorney general provisions, the individual need not have been a victim of the
misconduct giving rise to the litigation. The name qui tam is the shortened version of an oft
abbreviated Latin phrase which roughly translates to “he who prosecutes for himself as well as
for the King.” Qui tam comes to us from before the dawn of the common law. Reviled at various
times throughout the ages as a breeding ground for viperous vermin and parasites, legislative
bodies have authorized it when they consider the enforcement of some law beyond the unaided
capacity or interest of authorized law enforcement officials. Best known of the contemporary
members of the line is the federal False Claims Act (31 U.S.C. 3729-3733), recently amended in
the Fraud Enforcement and Recovery Act of 2009, P.L. 111-21 (S. 386), 123 Stat. 1617 (2009).
Since 1986, False Claims Act recoveries have totaled an amount in excess of $20 billion.
This is a brief discussion of the constitutional questions raised by qui tam provisions; of the
history of such provisions; and of the three existing, active federal qui tam statutes—the False
Claims Act, 31 U.S.C. 3729-3733; the false marking patent statute, 35 U.S.C. 292; and the Indian
protection provisions of 25 U.S.C. 201.
Contemporary Federal Qui Tam Statutes
In Stevens, 529 U.S. 765 (2000), the Supreme Court identified four contemporary federal qui tam
statutes: the False Claims Act, the Patent Act, and two Indian protection laws. One of the Indian
protection statutes, 25 U.S.C. 81, has since been amended so that it is no longer authorizes a qui
tam action. Of the others, the False Claims provision is by far the most often invoked.
False Claims Act
Persons Who May Be Liable
The False Claims Act declares that any “person” who violates its prohibitions may incur liability.
Federal law ordinarily understands the term to include corporations, companies, associations,
firms, partnerships, societies, and joint stock companies, as well as individuals. Local
governments are considered persons for purposes of False Claims Act suits brought by private
parties, but States and Indian tribes are not. Finally, the False Claims Act explicitly denies federal
court jurisdiction over certain False Claims Act suits brought by private parties against Members
of Congress, members of the federal judiciary, senior federal officials, or members of the armed
forces.
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Qui Tam: An Abbreviated Look at the False Claims Act and Related Federal Statutes
Who May Bring an Action
The False Claims Act is designed to allow private individuals to sue on behalf of the government,
but any False Claims Act litigation takes place in the shadow of the government’s prerogatives.
The action is brought in the name of the United States. The Attorney General may bring an action
for a violation of section 3729. Although a private party may also bring such an action, the
government may elect to assume primary responsibility for the litigation from the beginning. If it
initially chooses not to do so, the government is nevertheless free to intervene later in the
proceedings upon a showing of cause. The government is likewise free to move to dismiss or
settle the litigation over the objections of the relator, as long as the relator is given an opportunity
to be heard. The government may also petition the court to limit the relator’s participation in the
litigation in the interest of a more effective presentation of the action.
A relator may not bring a False Claims Act action based on public information or information
from official proceedings, unless the relator is the original source of the information. In addition,
the False Claims Act features a first-to-file bar which precludes a second relator from bringing a
later copycat action. The bar extends to any claims that allege the same material or essential
elements of the same underlying fraud. Furthermore, a member of the armed forces may not bring
an action against another member based on the defendant’s service. On the other hand, even
though relators are often referred to as private parties, government employees may bring a False
Claims Act qui tam action as long as one of the statutory bars does not apply.
Basis for Liability
Eight forms of misconduct give rise to civil liability under the False Claims Act. They occur
when anyone:
(A) knowingly presents, or causes to be presented, a false or fraudulent claim for payment or
approval;
(B) knowingly makes, uses, or causes to be made or used, a false record or statement material to a
false or fraudulent claim;
(C) conspires to commit a violation of subparagraph (A), (B), (D), (E), (F), or (G);
(D) has possession, custody, or control of property or money used, or to be used, by the
Government and knowingly delivers, or causes to be delivered, less than all of that money or
property;
(E) is authorized to make or deliver a document certifying receipt of property used, or to be used,
by the Government and, intending to defraud the Government, makes or delivers the receipt
without completely knowing that the information on the receipt is true;
(F) knowingly buys, or receives as a pledge of an obligation or debt, public property from an
officer or employee of the Government, or a member of the Armed Forces, who lawfully may not
sell or pledge property; or
(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
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Qui Tam: An Abbreviated Look at the False Claims Act and Related Federal Statutes
knowingly and improperly avoids or decreases an obligation to pay or transmit money or property
to the Government, 31 U.S.C. 3729.
Moreover, any retaliatory action taken against a whistleblower under the False Claims Act may
result in civil liability, 31 U.S.C. 3730(h).
Penalties and Awards
If a court finds a defendant liable under section 3729, it may award treble damages; a statutory
penalty ranging from $5,000 to $10,000; the government’s litigation costs; and a relator’s
expenses, attorneys’ fees, and costs. The court may reduce its damage award to no less than
double damages, if it finds that a defendant made prompt disclosure and provided full cooperation
before judicial or administrative proceedings began. If a court finds an individual has been the
victim of retaliation in violation of section 3730(h), it may order the defendant to pay the
individual’s attorneys’ fees, litigation costs, and twice the amount of “back pay, interest on back
pay, and compensation for special damages sustained as a consequence” of the retaliation, 31
U.S.C. 3730(h)(2).
If the False Claims Act action succeeds, relators are entitled to a share in the proceeds of up to
30%. If the government has not participated in the litigation, they are entitled to an award of from
25% to 30%. If the government has participated in the litigation, they are entitled to an award of
from 15% to 25%, reduced to no more than 10% when their claim was based primarily on public
information. In any case, they are also entitled to attorneys’ fees, expenses, and costs, but may be
denied any award if they participated in the underlying fraud.
If the defendant prevails in a False Claims Act action in which only a private relator has taken
part, the court may award the defendant attorneys’ fees and expenses should it conclude that the
action was clearly frivolous, vexations, or brought to harass. The test for whether attorneys’ fees
and expenses are appropriate is said to be analogous to that used for prevailing defendants under
42 U.S.C. 1988. Such awards are thought to be appropriate only under “rare and special
circumstances,” when the relator’s action is meritless, groundless, or without foundation; when
allegations are bereft of factual support or when there is no reasonable chance of success; or when
brought or pursued for an improper motive.
Procedure
The False Claims Act states that prosecution of a violation of section 3729 must begin within 6
years, although there is an exception for undiscovered fraud which extends the deadline to 10
years as long as the action is brought within three years of discovery. The courts are divided over
the question of whether this extension is available to private parties or only in cases initiated by
the government. In the case of litigation for retaliatory misconduct under section 3730(h)(rather
than one of section 3729’s proscriptions), parties must look to the most closely analogous statute
of limitations under state law, since the sole explicit False Claims Act provision applies only to
causes of action under section 3729.
Until recently, some courts had held that the statute of limitations in cases where the government
elected to intervene did not relate back to the time of the relator’s original complaint. The 2009
Act added a new subsection to section 3731 to afford the government the advantage of the date of
the relator’s complaint as a cut-off date for statute of limitations purposes. Thus, a complaint,
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which would be time barred as of the date of the government’s intervention, survives, if it would
not be time barred on the date of the relator’s earlier original complaint.
For private litigants, the process begins with a complaint filed under seal with the federal court in
the district in which a violation occurred or in which any of the defendants are found, resides, or
does business, 31 U.S.C. 3730(b)(2), 3732(a). Thereafter, relators must deliver all their material
evidence and information to the government, 31 U.S.C. 3730(b)(2). The government has 60 days,
or until the end of a longer period of any extensions granted by the court for cause, in which to
decide whether intervene, 31 U.S.C. 3730(b)(2), (3), (4). The government has at its disposal civil
investigative demand authority which allows it to compel the production of material and
testimony in its investigations, 31 U.S.C. 3733.
After the government has made its initial determination of whether to intervene, the defendants
are served and have 20 days in which to respond, 31 U.S.C. 3730(b)(3). The government, or in its
absence the relator, must prove damages and all of the elements of the asserted violation by a
preponderance of the evidence. A defendant, however, may not contest the presence of any
elements of any violation which has been established or conceded against him in parallel criminal
proceedings. Although they sue in the name of the United States, relators are bound by the 30-day
deadline for appellate review rather than the 60-day deadline available to the government.
Patent Act (35 U.S.C. 292)
Section 292 is a qui tam statute. The party bringing the action need not be a victim; it may be
prosecuted by anyone who can satisfy constitutional standing requirements. In order to prevail
under the most commonly prosecuted prongs of the statute, the relator must establish by a
preponderance of the evidence that: “(1) an article was falsely marked or advertised with the
word ‘patent’ or any word or number that imports that the article is patented, (2) the article so
marked or advertised was an unpatented article, and (3) the marking or advertisement was made
with the intent to deceive the public.” The first element (falsely marked) may include conditional
statements or marks, e.g., “may be covered by one or more U.S. or foreign pending or issued
patents.” Proof the first and third elements (falsely marked and intent to deceive) are frequently
intertwined. Thus, “the fact of misrepresentation coupled with proof that the party making it had
knowledge of its falsity is enough to warrant drawing the inference that there was a fraudulent
intent.” On the other hand, “an intent to deceive the public will not be inferred if the facts show
no more than that the erroneous patent marking was the result of mistake,” inadvertence, or
innocent oversight. As for the second element, a product is “unpatented” when no patent, foreign
or domestic, is pending or has been issued for it or for a portion of it; or when any of the patents
asserted on its behalf do not in fact cover it; or when any patent which once covered it has
expired.
Unlike qui tam actions under the False Claims Act, actions to enforce section 292 are subject to
the general five-year statute of limitations found in 28 U.S.C. 2462. Section 292 qui tam actions
differ from those brought under the False Claims Act with respect to the recovery of attorneys’
fees as well. Section 292 makes no mention of attorneys’ fees, although they may be available to
either party in exceptional cases under the general remedies provisions of 35 U.S.C. 285.
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Indian Protection (25 U.S.C. 201)
Section 201 dates from 1834 and authorizes qui tam actions for violations of five separate
statutes: (1) unlawful purchase of land from an Indian nation or tribe, 25 U.S.C. 177 (Rev. Stat.
§2116); (2) driving livestock to feed on Indian land, 25 U.S.C. 179 (Rev. Stat. §2117); (3) settling
on or surveying Indian land, 25 U.S.C. 180 (Rev. Stat. §2118); (4) setting up a distillery in Indian
country, 25 U.S.C. 251 (Rev. Stat. §2141); and (5) trading in Indian country without a license, 25
U.S.C. 264 (Rev. Stat. §2133).
Qui tam actions under section 201 are relatively rare and appear to have arisen most often under
sections 264 (unlicensed trading) and 179 (grazing). In Hall, the section 264 relators’ action
survived a standing challenge, but was dismissed for failure to join an indispensible party—the
tribe which had contracted for gambling equipment and services from an unlicensed supplier. In
Keith, the relator’s action was dismissed after the court concluded that “bureaucratic
nonfeasance” made it impossible to obtain the required trader’s license. Relators were somewhat
more successful in Hornell, where the court upheld recovery of the monetary penalty, although it
declined to affirm confiscation of the station wagon that was the object of the unlicensed sale.
Section 179 prohibits grazing horses, mules, or cattle on Indian land without permission and sets
the penalty at $1 per head. The circuits are divided over the question of whether the Secretary of
the Interior may by regulation set the penalty at $1 per head for each day of violation. Federal
district courts have jurisdiction exclusive of the states for enforcement of the penalties under
section 179, but they may abstain from exercising jurisdiction in favor of enforcement in a tribal
court of jurisdiction.
There may be some question whether the monetary penalty established in section 177 (tribal real
estate contracts) may be enforced by a qui tam action under section 201. Section 201 applies to
“penalties which shall accrue under Title 28 of the Revised Statutes,”(i.e., Rev. Stat. §§2039-
2157). Section 177 appears in Title 28 of the Revised Statutes as section 2116. Thus, on its face,
section 201 permits a qui tam action to recover the penalties accruing under section 177.
In Harlan, however, the Eighth Circuit stated in dicta that “25 U.S.C. §177 appears to deal
directly with cases where, as here, a person attempts to lease tribal lands without express approval
of the federal government.... The statute makes violators subject to a fine of $1,000, but has no
provision entitling relators to bring actions under it. See James v. Watt, 716 F.2d 71 (1st Cir.
1983).” The issue in Harlan was whether the qui tam provisions then found in 25 U.S.C. 81,
relating to contracts for services which required government approval, extended to sharecrop
agreements. The court referred to section 177 “simply ... to demonstrate that a broad and general
policy to oversee all contracts by Indians need not be accomplished though 25 U.S.C. §81 alone.”
The James case, which the court cites, held that an individual tribal member, suing as a victim of
a violation of 177, may only do so as a representative of his tribe and not on his own behalf. It
says nothing of whether he may do so on behalf of the United States qui tam.
The application of section 201 to the penalties under section 177 seems clear on its face, but the
contrary statement in Harlan seems equally clear.
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Constitutional Concerns
Qui tam evokes constitutional issues of two classes. First, to what extent may qui tam defendants
claim the constitutional protections available to defendants in criminal cases? Second, is qui tam
compatible with the Constitution’s allocation of powers among the three branches of government?
At first glance, the first question seems the least troubling. The rights available in criminal
proceedings exist precisely because the proceedings are criminal. The Sixth Amendment rights—
the right to counsel; to call and confront witnesses; to be informed of the nature of the charges
against him; to trial in the place where the offense occurred; and to a speedy and public trial
before an impartial jury—apply only to “the accused” in criminal proceedings. Thus, they are
inapplicable to federal qui tam proceedings which are civil in nature. Rights found elsewhere in
the Constitution, however, often turn upon whether the government’s action may be or must be
considered punitive. Here the answers are bit less clear.
Double Jeopardy
For double jeopardy purposes, the Supreme Court in Hudson said the question is: “Whether
Congress, in establishing the penalizing mechanism, indicate[] either expressly or impliedly a
preference for one label or the other. Second, where Congress has indicated an intention to
establish a civil penalty, [was] the statutory scheme ... so punitive either in purpose or effect as to
negate that intention. In regard to this latter inquiry, we have noted that only the clearest proof
could suffice to establish the unconstitutionality of a statute on such a ground.” The Court has
looked to the due process standards listed in Kennedy v. Mendoza-Martinez when defendants seek
to satisfy the daunting “clearest proof” test. Although Hudson was not a qui tam case, later lower
federal court qui tam cases consider it dispositive.
Excessive Fines
The Eighth Amendment states that “[e]xcessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted,” U.S. Const. Amend. VIII. In other
contexts, the Supreme Court has determined that the excessive fines clause “does not constrain an
award of money damages in a civil suit when the government neither has prosecuted the action
nor has any right to receive a share of the damages awarded.” The clause does apply to “the
government’s power to extract payments ... as punishment for some offense.” The critical
question is not whether the procedure for extracting the payment is classified as civil or criminal
or whether it serves some additional remedial purposes; if the payment constitutes punishment, it
is a “fine” and as a general matter may not be excessive. A fine is excessive, in the eyes of the
Court, if it is grossly disproportionate to the gravity of the defendant’s offense. In the qui tam
context, lower court cases ordinarily treat False Claims Act qui tam penalties as punishment and
consequently subject to excessive fines clause analysis. They have generally concluded, however,
that the fines imposed in the cases before them were not excessive for Eighth Amendment
purposes.
Due Process
In Young v. United States ex rel. Vuitton et Fils S.A., Young and Vuitton were engaged in
trademark litigation which had resulted in the issuance of an order enjoining Young from
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manufacturing or distributing counterfeit versions of Vuitton’s product line. Upon a showing of
probable cause to believe that Young had violated the injunction, the court appointed Vuitton’s
lawyers to prosecute the criminal contempt. Five members of the Supreme Court agreed that
Young’s subsequent conviction should be overturned because, “counsel for a party that is the
beneficiary of a court order may not be appointed as prosecutor in a contempt action alleging a
violation of that order.” Four members of the Court felt this was so because the appointment of an
interested prosecutor constituted error which undermined confidence in the integrity of the
criminal proceeding. One of the four went so far as to assert that the failure to appoint a
disinterested prosecutor constituted a due process violation. A fifth Justice merely concurred in
the result, because he felt that the lower court’s appointment of a prosecutor—disinterested or
not—was invalid on separation of powers grounds. Lower federal courts thereafter confronted
with due process challenges to qui tam have rejected them based on the fact that relators press
their claims as private civil litigants and thus do not exercise government power subject to due
process clause restrictions on criminal prosecutions.
Separation of Powers
Is qui tam legislation compatible with the Constitution’s allocation of powers among the three
branches? The Constitution allocates federal governmental authority among three coordinated
branches. It vests all legislative powers in Congress, executive power in the President, and the
judicial power of the United States in the federal courts. The Supreme Court has said that this
“system of separation of powers and checks and balances ... was regarded by the Framers as a
self-executing safeguard against the encroachment or aggrandizement of one branch at the
expense of the other[s].” Yet, in this interwoven fabric of governmental authority, the Framers
realized that “[w]hile the Constitution diffuses power the better to secure liberty, it also
contemplates that practice will integrate the dispersed powers into a workable government. It
enjoins upon its branches separateness but interdependence, autonomy but reciprocity.”
Commentators and litigants have questioned whether the qui tam is at odds with these basic
constitutional principles. More specifically, they question whether qui tam invokes the judicial
power of the court in the absence of a case or controversy and whether it impermissibly intrudes
upon the President’s constitutional prerogatives under the appointments clause and under the take
care clause. Their concerns are three. First, the Constitution grants the federal courts the judicial
power over “cases and controversies.” This is thought to require at least two parties with
conflicting interests, presented in a context suitable for judicial resolution, i.e., standing in a case
or controversy. Yet, relators come to court with no interest of their own, only a contingent
personal interest. Second, the Constitution instructs the President to see that the laws are
faithfully executed. Yet, without his approval or unrestricted control, relators may initiate and
prosecute litigation. Third, the President is vested with the authority to appoint officers of the
United States and, with the courts and heads of departments, to appoint inferior officers. Yet,
relators, who engage in activities otherwise reserved to officers and inferior officers of the United
States, are appointed neither by the President, the courts, nor by the head of any department.
Standing
Standing requires (1) a concrete injury to the plaintiff’s interest, (2) attributable to the defendant,
(3) and amenable to judicial relief. When it put standing challenges to rest in Vermont Agency of
Natural Resources v. United States ex rel. Stevens, the Supreme Court observed, “[T]he long
tradition of qui tam actions in England and the American colonies ... is particularly relevant to the
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constitutional standing inquiry since ... Article III’s restriction of the judicial power to ‘Cases’ and
‘Controversies’ is properly understood to mean ‘cases and controversies of the sort traditionally
amenable to, and resolved by, the judicial process.’”
On the more perplexing matter of the relator’s injury, the Stevens Court found the injury to the
United States sufficient to establish False Claims Act relator standing. With respect to the
government’s share of the fruits of successful litigation, the Court found standing in the relator as
an agent of the defrauded United States. With respect to the relator’s share, it considered him the
assignee of that portion of the interest of the United States.
Relator standing is in greater doubt in cases where tangible injury to the United States is less
obvious. In the case of the false marking section of the Patent Act, at least one court has held that
the relator must show either an injury to himself or an injury to the United States for which he
might be the agent/assignee, i.e., “an actual or imminent injury in fact to competition, to the
United States economy, or [to] the public that could be assigned to him as a qui tam plaintiff or be
vindicated through this litigation.”
The Stevens Court resolved the issue of qui tam relator standing, but it “express[ed] no view on
the question of whether qui tam suits violate Article II, in particular the Appointments Clause of
§2 and the ‘take Care’ Clause of §3,” Id. at 778 n.8.
Appointments clause
The appointments clause issue in qui tam cases flows from apparently contradictory language in
two Supreme Court cases. In the more recent, Buckley v. Valeo, the Court seemed to conclude that
only officers appointed under Article II could be vested with conducting civil litigation on behalf
of the United States: “We hold that these provisions of the act, vesting in the Commission primary
responsibility for conducting civil litigation in the courts of the United States for vindicating
public rights, violate Art. II, §2, cl. 2, of the Constitution. Such functions may be discharged only
by persons who are ‘Officers of the United States’ within the language of that section.”
Yet, earlier Court decisions suggested that the appointments clause applied only to those
purported to hold an “office of the United States,” and that Congress might authorize the
performance of services in the name of the United States by those who did so without the
attributes of office, selected other than under Article II. The Court later affirmed the Buckley
assertion that only officers appointed in conformity with Article II could “exercis[e] significant
authority pursuant to the laws of the United States.” In Freytag, however, it acknowledged the
existence of various classes empowered other than by Article II appointment who performed
services in the name of the United States. Although the Court has thus far “express[ed] no view
on the question of whether qui tam suits violate Article II, in particular the Appointments Clause
of §2,” the lower federal courts generally see no appointments clause impediments because they
do not consider qui tam relators officers of the United States.
Take care
Unlike the appointments clause, the take care clause does not vest authority in the President.
Instead, it imposes a responsibility upon him. The Framers, however, allocated powers among the
branches so as to prevent Congress or the courts from undermining or unduly interfering with the
President’s ability to perform his constitutional duties, including the duty to take care to see that
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the laws are faithfully executed. Morrison v. Olson presents a question perhaps most closely
analogous to the one of whether qui tam statutes undermine or unduly interfere with the
President’s ability to fulfill his responsibilities under the take care clause. It was suggested there
that the independent prosecutor statute impermissibly “reduc[ed] the President’s ability to control
the prosecutorial powers wielded by the independent counsel.” The Court disagreed. Lower court
False Claims Act qui tam cases decided in Morrison’s shadow generally reached the same
conclusion—the False Claims Act affords the Executive Branch sufficient control to turn aside a
take care clause challenge—although they often concede that the control factors of the two were
not the same.
Author Contact Information
Charles Doyle
Senior Specialist in American Public Law
cdoyle@crs.loc.gov, 7-6968
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