[Congressional Record Volume 153, Number 135 (Wednesday, September 12, 2007)]
[Senate]
[Pages S11506-S11510]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. GRASSLEY (for himself, Mr. Durbin, Mr. Leahy, Mr. Specter, 
        and Mr. Whitehouse):
  S. 2041. A bill to amend the False Claims Act; to the Committee on 
the Judiciary.
  Mr. GRASSLEY. Mr. President, for 27 years, I have come to the Senate 
floor to discuss legislation that will help the Government run 
efficiently and effectively. I have been an outspoken advocate for 
whistleblowers, which whistleblowers in good faith bring forth 
information about waste, fraud, and abuse of taxpayers' dollars. I have 
championed oversight efforts, and I have spent my time in the Senate 
asking the tough questions of Government bureaucrats in order to expose 
these problems, particularly problems that have been brought to my 
attention by patriotic whistleblowers.
  One thing I learned from oversight is that no matter how engaged 
Congress may be, there are not enough hands to find all the waste, 
fraud, and abuse in Government programs. Instead, we have to rely then, 
as I have indicated, on those courageous and patriotic individuals who 
speak out and blow the whistle, to go to court to collect Government 
money that was lost to unscrupulous contractors who are selling false 
or fraudulent goods, in the case of 100 years ago, to Union troops 
because that is why the False Claims Act came about, and to make sure 
that we protect whistleblowers when a program is not working and 
taxpayers' dollars are being lost.
  These whistleblowers, by sticking their necks out, are individuals 
often at risk. They risk everything to fix problems within our 
Government because they believe in doing their job the way it was 
intended to be done, and they probably do not get the attention of 
higher-ups in the bureaucracy. That is why they become whistleblowers 
and come to Congress to bring these faults out. Somehow they end up 
being as welcome in the bureaucracy as a skunk is at a picnic.
  However, pointing out fraud is one thing; getting results, fixing the 
problem, and recouping taxpayers' money lost to fraud, waste, and abuse 
is quite another thing.
  The key to recouping these lost funds is ensuring that we have 
effective laws on the books. One such law is the Federal False Claims 
Act. I have come to the floor today to remind people about the history 
of the False Claims Act, but also to suggest some improvements in that 
act so it can be an even more useful tool in the fight against waste, 
fraud, abuse, and the protection of whistleblowers.
  I have referred to the False Claims Act. This is known as the Lincoln 
law because it has some history going back to the Civil War. The 
Lincoln law was originally passed by Congress to combat war 
profiteering by Government contractors during the Civil War. The False 
Claims Act allowed individual citizen whistleblowers to go to court to 
collect Government money that was lost to unscrupulous contractors who 
were selling false or fraudulent goods to Union troops.
  This legal mechanism, known as qui tam, a Latin term, is the key 
component to the False Claims Act allowing individual citizens to act 
as private attorneys general to help stop fraud and recover lost money. 
However, following World War II, the False Claims Act was weakened by 
an act of Congress which lowered the penalties limiting the money the 
Government could recover from fraud. This remained the state and the 
language of the False Claims Act until 1986 when I authored amendments 
to the act which restored teeth and breathed new air and new life into 
a law that was designed to protect all American taxpayers.
  I am happy to report that in the 20 years since I introduced and 
Congress passed the 1986 amendment, the Federal Government has used the 
False Claims Act to recover over $20 billion from those who defraud 
Government. That is $20 billion that would otherwise be lost and gone 
forever.
  More importantly, this $20 billion serves as a deterrent reminder to 
those who wish to steal from the Government. We cannot measure the 
deterrent value of this legislation, but I personally feel, and I have 
had students of Government tell me, the deterrent value of the False 
Claims Act is much greater than even the $20 billion that we can 
quantify that has come back to the Federal Treasury.
  Today, the False Claims Act faces a situation where it may not be as 
effective as intended. Recent decisions by Federal courts have limited 
the False Claims Act in a way that was not envisioned when I authored 
the 1986 amendments. These court decisions threaten to undermine both 
the spirit and intent of the 1986 amendments.

  The first case, U.S. Totten v. Bombardier Corporation, held that 
false claims presented to Government grantees, in this case employees 
at Amtrak, were not actually presented to the Federal Government. As a 
result, the Government was precluded from recovering money lost to 
fraud and abuse perpetuated against Amtrak.
  The second case, Rockwell International Corporation, et al, v. U.S.,

[[Page S11507]]

was decided earlier this year by the U.S. Supreme Court. In this case, 
the Court interpreted an area of the False Claims Act, known as the 
public disclosure bar, which prohibits a false claims case from moving 
forward if the case is based upon publicly disclosed information, such 
as a government report, unless the whistleblower filing the case was 
the ``original source'' of the information.
  Now here, the Supreme Court held that a qui tam whistleblower was 
barred from receiving a share of any money recovered unless that 
whistleblower was the original source of all claims ultimately settled. 
Now, I say to my colleagues that this may not sound like a very 
troublesome decision. However, it is, and the impact is that oftentimes 
a case is brought by a whistleblower on a certain set of facts and then 
expanded by the Department of Justice, which ultimately settles on 
other grounds. As a result, this case creates a disincentive for a 
whistleblower to bring forth information about fraud, as they may not 
get to share in any part of the recovery.
  You see, one of the incentives for the whistleblowers is if they 
bring a case that brings back money into the Federal Treasury, they get 
part of that settlement as an incentive to do this. Quite frankly, a 
whistleblower sticks their neck out. By doing the right thing, they are 
probably ruining themselves professionally. Let us say that they get 
part of the recovery. Well, the Federal Government gets billions of 
dollars that we would not have even gotten if we had not had the 
information from the whistleblower. That is why the whistleblower is 
very important.
  Now, there is another case that gives us problems. This third case 
that challenges the intent of the False Claims Act is United States DRC 
v. Custer Battles, decided a year ago. In that case, a jury found that 
a defense contractor in Iraq had defrauded the Government of $10 
million. However, the judge overturned the jury verdict, finding that 
the money lost was not U.S. taxpayer money but was instead Iraqi money 
under the control of the U.S. Government. As a result of this case, the 
U.S. Government may not recover for any fraud committed against the 
U.S. Government if the funds are not American funds, even if the U.S. 
Government has been entrusted with the management of those funds.
  These decisions, I can tell you as author of this legislation, are 
contrary to the spirit and the intent of the 1986 amendments. Today, I 
am joined by Senator Durbin as the lead cosponsor, along with Senator 
Leahy and Senator Specter--and in those two individuals I will say that 
Senator Leahy is chairman of the Judiciary Committee which has 
jurisdiction, and Senator Specter is the former chairman of the 
committee and now the Ranking Republican--so I feel by having Senator 
Durbin, Senator Leahy, and Senator Specter as cosponsors of this False 
Claims Act Correction Act, as powers within the Senate to bring 
attention to what the courts have done, this injustice to the False 
Claims Act and gutting of the False Claims Act, this act will bring it 
back to its original intent.
  This legislation will correct judicial interpretations damaging the 
False Claims Act. This bill is narrowly tailored to ensure that the 
intent of Congress in the 1986 amendments is upheld and nothing more. 
The False Claims Act Correction Act will correct these three judicial 
interpretations in addition to also making technical and correcting 
amendments.
  First, the bill will address the Totten decision by removing the 
requirement that false claims be directly presented to a government 
official, instead tying the liability directly to Government money and 
property.
  Next, the bill will address the Rockwell decision by requiring the 
Attorney General to file a timely motion to dismiss claims that violate 
the public disclosure bar. By allowing the Attorney General to present 
to the court information about public disclosures upfront in a case, 
the bill would eliminate procedural uncertainties that exist now by 
allowing public disclosures to be addressed at any time in the case.
  The False Claims Act Correction Act also clarifies that nontaxpayer 
funds under the trust and administration of the U.S. Government subject 
to fraud are actionable under the False Claims Act. Thus, money 
directly under the control of the U.S. Government subject to fraud that 
are currently outside the scope of the False Claims Act would now be 
covered. This will correct the problems that have arisen following the 
decision in the Custer Battles case.
  Additionally, the bill clarifies a split between the Federal Circuit 
Courts of Appeal that currently exists regarding whether a government 
employee may file a False Claims Act case. More specifically, the bill 
provides that a government employee would be able to bring a False 
Claims Act case based upon information learned in the course of their 
employment, only when the employee: No. 1, discloses the fraud to their 
supervisors; No. 2, discloses the fraud to the inspector general of 
that agency; and, No. 3, discloses the fraud to the Attorney General 
and then waits 12 months without the Government acting. After these 
conditions are met, then, and only then, may a government employee act 
as a qui tam whistleblower.
  Finally, the bill makes two technical corrections to the False Claims 
Act. The first is a technical-correcting amendment that clarifies the 
statute of limitations. The second is a technical amendment to the 
civil investigative demands that the Department of Justice is already 
authorized to issue. These technical corrections will streamline the 
procedures for filing as well as prosecuting False Claims Act cases by 
both qui tam whistleblowers as well as cases instituted originally by 
the Department of Justice.
  The False Claims Act Correction Act is a narrowly tailored bill that 
seeks to ensure the legislative intent of the 1986 amendments is truly 
understood. This is not a Democratic or Republican issue. It is an 
American taxpayer issue. I am proud to say this bill has strong 
bipartisan support, as I am joined by Senator Durbin as the lead 
Democratic cosponsor, and I wish to emphasize Senator Leahy's and 
Senator Specter's cosponsorship of this legislation.
  I am glad we have a bipartisan coalition ready to work to fix the 
False Claims Act with these narrowly tailored corrections, but I 
encourage my colleagues not to bow to special interest groups who have 
worked to weaken the No. 1 tool for recovering Government dollars lost 
to fraud.
  I will say at this point that yesterday I had a private discussion 
with a Senator who will go unnamed. He said, even as corrective as this 
legislation is, and it is only meant to be correcting, that already we 
have the pharmaceutical companies out working against this legislation. 
So this may not be easy to get through, even though it is sticking with 
the original intent. So I don't want to get into a situation such as I 
did in 1986, when we wrote a bill that was bipartisan, and it took 
about a year to get the various holds off that were put on this. In 
those days, we had secret holds. Under the new rules of the Senate, we 
are not supposed to have any secret holds anymore.
  So if people have complaints about this legislation, I wish to work 
it out, but I don't know how anybody can hold up legislation where the 
underlying legislation has brought $20 billion that would have 
otherwise been lost to fraud back to the Federal Treasury. The American 
taxpayers deserve a law that detects, prevents, and recovers money lost 
to fraud. The False Claims Act works and has recovered this $20 
billion, and that law is 20 years old. But let me say this money didn't 
start rolling in until about 6 or 7 years after that 1986 law was 
passed.
  The False Claims Act Correction Act will provide necessary and 
narrowly tailored corrections to ensure that the False Claims Act works 
to protect the taxpayers into the future, as I visualized it would in 
1986 in spirit as well as in letter. I urge my colleagues to support 
this important legislation.
  I have had the pleasure of having the Presiding Officer ask to be a 
cosponsor of the bill, so I ask unanimous consent that Senator 
Whitehouse be added as a cosponsor at this point.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. President, I ask unaniumous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
placed in the Record, as follows:

[[Page S11508]]

                                S. 2041

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``False Claims Act Correction 
     Act of 2007''.

     SEC. 2. FALSE CLAIMS GENERALLY.

       Section 3729 of title 31, United States Code, is amended--
       (1) by striking subsection (a) and inserting the following:
       ``(a) Liability for Certain Acts.--
       ``(1) In general.--Subject to paragraph (2), any person 
     who--
       ``(A) knowingly presents, or causes to be presented a false 
     or fraudulent claim for Government money or property for 
     payment or approval;
       ``(B) knowingly makes, uses, or causes to be made or used, 
     a false record or statement to get a false or fraudulent 
     claim for Government money or property paid or approved;
       ``(C) conspires to commit any substantive violation set 
     forth in this section or otherwise to defraud the Government 
     by getting a false or fraudulent claim for Government money 
     or property paid or approved;
       ``(D) has possession, custody, or control of Government 
     money or property and, intending to defraud the Government, 
     to retain overpayment, or knowingly to convert the money or 
     property, permanently or temporarily, to an unauthorized use, 
     fails to deliver or return, or fails to cause the return or 
     delivery of the money or property, or delivers, returns, or 
     causes to be delivered, or returned less money or property 
     than the amount due or owed;
       ``(E) 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 to conceal, avoid, or decrease an 
     obligation to pay or transmit money or property to the 
     Government,

     is liable to the United States Government for a civil penalty 
     of not less than $5,000 and not more than $10,000 plus 3 
     times the amount of damages which the Government, its 
     grantee, or administrative beneficiary sustains because of 
     the act of that person.
       ``(2) Lesser penalty.--If the court finds that--
       ``(A) the person committing the violation of this 
     subsection furnished officials of the United States 
     responsible for investigating false claims violations with 
     all information known to such person about the violation 
     within 30 days after the date on which the defendant first 
     obtained the information;
       ``(B) such person fully cooperated with any Government 
     investigation of such violation; and
       ``(C) at the time such person furnished the United States 
     with the information about the violation, no criminal 
     prosecution, civil action, or administrative action had 
     commenced under this title with respect to such violation, 
     and the person did not have actual knowledge of the existence 
     of an investigation into such violation,
     the court may assess not less than 2 times the amount of 
     damages which the Government, its grantee or administrative 
     beneficiary sustains because of the act of the person.
       ``(3) Costs of civil actions.--A person violating this 
     subsection shall also be liable to the United States 
     Government for the costs of a civil action brought to recover 
     any such penalty or damages.''.
       (2) by striking subsections (b) and (c) and inserting the 
     following:
       ``(b) Definitions.--For purposes of this section--
       ``(1) the terms `known', `knowing', and `knowingly' mean 
     that a person, with respect to information--
       ``(A) has actual knowledge of the information;
       ``(B) acts in deliberate ignorance of the truth or falsity 
     of the information; or
       ``(C) acts in reckless disregard of the truth or falsity of 
     the information,
     and no proof of specific intent to defraud is required;
       ``(2) the term `Government money or property' means--
       ``(A) money or property belonging to the United States 
     Government;
       ``(B) money or property the United States Government 
     provides, has provided, or will reimburse to a contractor, 
     grantee, agent or other recipient to be spent or used on the 
     Government's behalf or to advance Government programs;
       ``(C) money or property belonging to any administrative 
     beneficiary, as defined herein;
       ``(3) the term `claim' includes any request or demand, 
     whether under a contract or otherwise, for Government money 
     or property; and
       ``(4) the term `administrative beneficiary' means any 
     natural person or entity, including any governmental or 
     quasi-governmental entity, on whose behalf the United States 
     Government, alone or with others, collects, possesses, 
     transmits, administers, manages, or acts as custodian of 
     money or property.'';
       (3) by redesignating subsections (d) and (e) as subsections 
     (c) and (d), respectively; and
       (4) in subsection (c), as redesignated, by striking 
     ``subparagraphs (A) through (C) of subsection (a)'' and 
     inserting ``subsection (a)(2)''.

     SEC. 3. GOVERNMENT RIGHT TO DISMISS CERTAIN ACTIONS.

       Section 3730(b) of title 31, United States Code, is amended 
     by adding at the end thereof the following:
       ``(6)(A) Not later than 60 days after the date of service 
     under paragraph (2), the Government may move to dismiss from 
     the action the qui tam relator that is an employee of the 
     Federal Government if--
       ``(i) all the necessary and specific material allegations 
     contained in such action were derived from an open and active 
     fraud investigation by the Government; or
       ``(ii) the person bringing the action learned of the 
     information that underlies the alleged violation of section 
     3729 that is the basis of the action in the course of the 
     person's employment by the United States, and none of the 
     following has occurred:
       ``(I) In a case in which the employing agency has an 
     inspector general, such person, before bringing the action--

       ``(aa) disclosed in writing substantially all material 
     evidence and information that relates to the alleged 
     violation that the person possessed to such inspector 
     general; and
       ``(bb) notified in writing the person's supervisor and the 
     Attorney General of the disclosure under division (aa).

       ``(II) In a case in which the employing agency does not 
     have an inspector general, such person, before bringing the 
     action--

       ``(aa) disclosed in writing substantially all material 
     evidence and information that relates to the alleged 
     violation that the person possessed, to the Attorney General; 
     and
       ``(bb) notified in writing the person's supervisor of the 
     disclosure under division (aa).

       ``(III) Not less than 12 months (and any period of 
     extension as provided for under subparagraph (B)) have 
     elapsed since the disclosure of information and notification 
     under either subclause (I) or (II) were made and the Attorney 
     General has not filed an action based on such information.
       ``(B) Prior to the expiration of the 12-month period 
     described under subparagraph (A)(ii)(III) and upon notice to 
     the person who has disclosed information and provided notice 
     under subparagraph (A)(ii) (I) or (II), the Attorney General 
     may file a motion seeking an extension of such 12-month 
     period. Such 12-month period may be extended by a court for 
     not more than an additional 12-month period upon a showing by 
     the Government that the additional period is necessary for 
     the Government to decide whether or not to file such action. 
     Any such motion may be filed in camera and may be supported 
     by affidavits or other submissions in camera.
       ``(C) For purposes of subparagraph (A), a person's 
     supervisor is the officer or employee who--
       ``(i) is in a position of the next highest classification 
     to the position of such person;
       ``(ii) has supervisory authority over such person; and
       ``(iii) such person believes is not culpable of the 
     violation upon which the action under this subsection is 
     brought by such person.
       ``(D) A motion to dismiss under this paragraph shall set 
     forth documentation of the allegations, evidence, and 
     information in support of the motion.
       ``(E) Any person bringing a civil action under paragraph 
     (1) shall be provided an opportunity to contest a motion to 
     dismiss under this paragraph. The court may restrict access 
     to the evidentiary materials filed in support of the motion 
     to dismiss, as the interests of justice require. A motion to 
     dismiss and papers filed in support or opposition of such 
     motion shall not be--
       ``(i) made public without the prior written consent of the 
     person bringing the civil action; and
       ``(ii) subject to discovery by the defendant.
       ``(F) If the motion to dismiss under this paragraph is 
     granted, the matter shall remain under seal.
       ``(G) No later than 6 months after the date of the 
     enactment of this paragraph, and every 6 months thereafter, 
     the Department of Justice shall report to the Committee on 
     the Judiciary of the Senate and the Committee on the 
     Judiciary of the House of Representatives relating to--
       ``(i) the cases in which the Department of Justice has 
     filed a motion to dismiss under this paragraph;
       ``(ii) the outcome of such motions; and
       ``(iii) the status of false claims civil actions in which 
     such motions were filed.''.

     SEC. 4. BARRED ACTIONS.

       (a) Provisions Relating to Actions Barred.--Section 
     3730(b)(1) of title 31, United States Code, is amended by 
     adding at the end the following: ``No claim for a violation 
     of section 3729 may be waived or released by any action of 
     any person, except insofar as such action is part of a court 
     approved settlement of a false claim civil action brought 
     under this section. Nothing in this section shall be 
     construed to limit the ability of the United States to 
     decline to pursue any claim brought under this subchapter.''.
       (b) Dismissal.--Section 3730(e)(4) of title 31, United 
     States Code, is amended to read as follows:
       ``(4)(A) Upon timely motion of the Attorney General, a 
     court shall dismiss an action or claim brought under section 
     3730(b) if the

[[Page S11509]]

     allegations relating to all essential elements of liability 
     of the action or claim are based exclusively on the public 
     disclosure of allegations or transactions in a Federal 
     criminal, civil, or administrative hearing, in a 
     congressional, Federal administrative, or Government 
     Accountability Office report, hearing, audit or 
     investigation, or from the news media.
       ``(B) In this paragraph:
       ``(i) The term `public disclosure' includes only 
     disclosures made on the public record or that have otherwise 
     been disseminated broadly to the general public.
       ``(ii) The person bringing the action does not create a 
     public disclosure by obtaining information from a Freedom of 
     Information Act request or from information exchanges with 
     law enforcement and other Government employees if such 
     information does not otherwise qualify as publicly disclosed.
       ``(iii) An action or claim is based on a public disclosure 
     only if the person bringing the action derived his knowledge 
     of all essential elements of liability of the action or claim 
     alleged in his complaint from the public disclosure.''.
       (c) Qui Tam Awards.--Section 3730(d)(3) of title 31, United 
     States Code, is amended to read as follows:
       ``(3)(A) Whether or not the Government proceeds with the 
     action, the court may, to the extent the court considers 
     appropriate, reduce the share of the proceeds of the action 
     which a person would otherwise receive under paragraph (1) or 
     (2) of this subsection (taking into account the role of that 
     person in advancing the case to litigation and any relevant 
     circumstances pertaining to the violation), if the court 
     finds that person--
       ``(i) planned and initiated the violation of section 3729 
     upon which the action was brought; or
       ``(ii) derived the knowledge of the claims in the action 
     primarily from specific information relating to allegations 
     or transactions (other than information provided by the 
     person bringing the action) that the Government publicly 
     disclosed, as that term is defined in subsection (e)(4)(A), 
     or that the Government disclosed privately to the person 
     bringing the action in the course of its investigation into 
     potential violations of this subchapter.
       ``(B) If the person bringing the action is convicted of 
     criminal conduct arising from the role of that person in the 
     violation of section 3729, that person shall be dismissed 
     from the civil action and shall not receive any share of the 
     proceeds of the action. Such dismissal shall not prejudice 
     the right of the United States to continue the action, 
     represented by the Department of Justice.''.

     SEC. 5. RELIEF FROM RETALIATORY ACTIONS.

       Section 3730(h) of title 31, United States Code, is amended 
     to read as follows:
       ``(h) Relief From Retaliatory Actions.--
       ``(1) In general.--Any employee, government contractor, or 
     agent shall be entitled to all relief necessary to make that 
     employee, government contractor whole, if that employee, 
     government contractor or Agent is discharged, demoted, 
     suspended, threatened, harassed, or in any other manner 
     discriminated against in the terms and conditions of 
     employment because of lawful acts done by the employee, 
     government contractor, or agent on behalf of the employee, 
     government contractor, or agent or associated others in 
     furtherance of other efforts to stop 1 or more violations of 
     this subchapter.
       ``(2) Relief.--Relief under paragraph (1) shall include 
     reinstatement with the same seniority status that employee, 
     government contractor, or agent would have had but for the 
     discrimination, 2 times the amount of back pay, interest on 
     the back pay, and compensation for any special damages 
     sustained as a result of the discrimination, including 
     litigation costs and reasonable attorneys' fees. An action 
     under this subsection may be brought in the appropriate 
     district court of the United States for the relief provided 
     in this subsection.''.

     SEC. 6. STATUTE OF LIMITATIONS.

       Section 3731(b) of title 31, United States Code, is amended 
     to read as follows:
       ``(b)(1) A civil action under section 3730 may not be 
     brought more than 10 years after the date on which the 
     violation of section 3729 or 3730 is committed.
       ``(2) Upon intervention, the Government may file its own 
     complaint in intervention or amend the complaint of a person 
     who has brought an action under section 3730(b) to clarify or 
     add detail to the claims in which the Government is 
     intervening and to add any additional claims with respect to 
     which the Government contends it is entitled to relief. For 
     statute of limitations purposes, any such Government pleading 
     shall relate back to the filing date of the complaint of the 
     person who originally brought the action, to the extent that 
     the claim of the Government arises out of the conduct, 
     transactions, or occurrences set forth, or attempted to be 
     set forth, in the prior complaint of that person.''.

     SEC. 7. CIVIL INVESTIGATIVE DEMANDS.

       Section 3733(a)(1) of title 31, United States Code, is 
     amended--
       (1) in the matter preceding subparagraph (A), by inserting 
     ``, or a designee (for purposes of this section),'' after 
     ``Whenever the Attorney General''; and
       (2) in the matter following subparagraph (D), by--
       (A) striking ``may not delegate'' and inserting ``may 
     delegate''; and
       (B) adding at the end the following: ``Any information 
     obtained by the Attorney General or a designee of the 
     Attorney General under this section may be shared with any 
     qui tam relator if the Attorney General or designee determine 
     it is necessary as part of any false claims act 
     investigation.''.

  Mr. DURBIN. Mr. President, I am pleased to join my colleague Senator 
Grassley in introducing the False Claims Act Correction Act of 2007. 
This bipartisan legislation takes important steps to modernize and 
strengthen the Federal False Claims Act and will help protect the 
Government and taxpayers from waste, fraud, and abuse of Government 
funds.
  During the Civil War, President Abraham Lincoln saw the need for a 
law that would prevent war profiteers and other unscrupulous Government 
contractors from defrauding the Government and the Nation's taxpayers. 
Lincoln urged the passage of legislation that would allow the 
Government to seek damages and penalties against perpetrators of fraud, 
and that would permit whistleblowers with information about false or 
fraudulent claims to file qui tam lawsuits on the Government's behalf 
in exchange for a share of the recovered funds. In 1863, Congress 
heeded Lincoln's call and enacted the Federal False Claims Act, FCA, 
which became known as ``Lincoln's Law.''
  Lincoln's Law is still in effect today and it is still much-needed. 
In recent years, there have been alarming reports of waste, fraud, and 
abuse of Government funds in the Iraq war and reconstruction effort, in 
the recovery from Hurricane Katrina and other disasters, in military 
and homeland security procurement contracts, and in Federal healthcare 
programs. We need strong laws that can expose and root out such 
fraudulent practices.
  The last major update of the FCA took place in 1986, when Senator 
Grassley and Congressman Berman sponsored amendments that revitalized 
the FCA and its qui tam provisions in response to widespread reports of 
defense contractor fraud. Since 1986, the Federal Government and qui 
tam relators have worked together to recover over $20 billion in moneys 
that would otherwise have been lost to fraud, waste or abuse in 
Government programs. The recovery of this enormous sum is a victory for 
taxpayers, and a demonstration of the success of the FCA and its qui 
tam model.
  It has now been 21 years since the enactment of the 1986 FCA 
amendments, and during that time changes in the interpretation of the 
act and in the nature of Government contracting have threatened to 
limit the FCA's effectiveness. In particular, several recent court 
decisions have weakened the intent and application of Senator 
Grassley's 1986 amendments to the FCA and have limited the FCA's 
ability to reach certain types of fraud and abuse involving Government 
programs.
  The False Claims Act Correction Act seeks to correct these court 
decisions and to ensure the FCA's utility as an effective tool against 
fraud. It does so in several ways.
  First, the False Claims Act Correction Act clarifies the 
``presentment requirement'' in the FCA. In 2004, the DC Circuit Court 
of Appeals held that liability under the FCA can only be found if the 
allegedly fraudulent claim is ``presented to an officer or employee of 
the United States Government.'' This interpretation has been used by 
courts to dismiss a number of FCA cases where abuses of Federal 
Government funds were clearly evident but where the false claims were 
submitted to grantees or agents of the Federal Government--such as the 
Iraq Coalition Provisional Authority--and not directly to Government 
employees. Our legislation would make clear that FCA imposes liability 
if a person presents a false or fraudulent claim for Federal Government 
money or property, and that the claim need not be directly presented to 
a Government employee.
  Our legislation also clarifies the applicability of the FCA's 
``public disclosure bar.'' The FCA currently allows a relator's FCA 
case to be dismissed if the case is based on information that was 
publicly available at the time of the filing, unless the relator was 
the ``original source'' of the public information. In its 2007 decision 
in Rockwell Int'l Corp. et al. v. United States, the Supreme Court held 
that the public disclosure bar prevents a relator from recovering money 
unless the relator was an original source for all the

[[Page S11510]]

claims that are settled or upon which a verdict is rendered. The 
Rockwell holding is troubling because relators often file actions based 
on facts which prove to be the tip of the iceberg, and upon further 
investigation DOJ discovers more fraud and ends up settling or winning 
the case on the grounds of the latter fraud.
  The Rockwell court's interpretation of the public disclosure bar 
might discourage whistleblowers from filing legitimate FCA cases and 
alerting DOJ to fraud. Our legislation would preclude a relator from 
recovery under the public disclosure bar only where the relator derived 
knowledge of all essential elements of the claim from public 
disclosure. Thus, only relators who truly contributed no new 
information to the case would be barred.
  Among its other provisions, the False Claims Act Correction Act 
resolves a split among the Federal circuit courts by allowing a 
Government employee to act as a qui tam relator when the employee 
learns of fraudulent conduct on the job, provided that the employee has 
first taken steps to report the fraud internally. Our legislation also 
strengthens the protections in the FCA for whistleblowers, so that 
whistleblowers who are Government contractors and agents can receive 
the same antiretaliation protection as employees of the company 
perpetrating the alleged fraud. Our bill further simplifies the FCA 
statute of limitations with a clear 10-year standard for all cases, and 
also makes technical changes to enhance DOJ's usage of the civil 
investigative demand process in DOJ investigations of potential FCA 
violations.
  The changes that our legislation would make to the FCA are narrowly 
tailored, and are designed to clarify the FCA's scope in keeping with 
the intent of the authors of the 1986 FCA amendments. I commend Senator 
Grassley, the Senate architect of the 1986 FCA amendments, for his 
devotion to ensuring the effective functioning of the FCA, and I am 
proud to join him in introducing this legislation to better combat 
waste, fraud, and abuse of Government programs.
  In sum, the False Claims Act Correction Act will enhance 
whistleblowers' ability to shine a light on fraudulent conduct 
involving Government funds, and to hold the perpetrators accountable 
through legitimate qui tam claims. The bill's reforms will ensure that 
the FCA can continue to serve as a viable tool for recovering taxpayer 
funds lost to fraud, waste or abuse. The legislation we are introducing 
today will strengthen the legacy of Lincoln's Law, and I am pleased to 
serve as its lead cosponsor. I urge my colleagues to support its 
passage.
  Mr. SPECTER. Mr. President, I seek recognition to discuss the False 
Claims Act Correction Act of 2007. The False Claims Act was passed by 
Congress in 1863 in order to combat war profiteering during the Civil 
War. The goal of the law was to encourage individuals to alert the 
Government when fraud against the Government was occurring. The statute 
does this by providing a portion of the Government's recovery to the 
whistleblower. This law is as important today, as it was in 1863, 
because we still must combat fraud and abuse of Government programs. 
These amendments ensure that the False Claims Act has not been eroded 
in scope or application.
  I am cosponsoring the bill offered by the distinguished Senator from 
Iowa because Congress needs to clarify its intent that there is 
liability under the False Claims Act for submitting false claims for 
Government funds and property--regardless of whether they are submitted 
directly to Government agents or are submitted to others who disburse 
Government money or property.
  A defendant may not make a preemptive disclosure that operates to bar 
the whistleblower or relator from recovering--the only claims that 
should be barred are those that are true piggyback claims, where the 
relator was not the original source of the information, and the 
whistleblower's actions were not the impetus for the recovery.
  Government employees may be qui tam relators--whistleblowers--and may 
be awarded a portion of the Government's recovery based on false claims 
if, when the Government employee has learned of fraudulent conduct on 
the job and has reported it up the chain of command, and then reported 
it to the Office of Inspector General, still no action has been taken 
within 12 months.
  Retaliatory action based on protected activity by whistleblowers is 
prohibited.
  Federal prosecutors who are investigating False Claim Act complaints 
filed under seal may share information obtained by Civil Investigative 
Demands, CIDs, with relators.
  For purposes of the running of the statute of limitations, if the 
Government intervenes in a False Claims Act case, the intervention 
relates back to the date the whistleblower filed suit.
  Taxpayer dollars must not be wasted or fraudulently paid to 
unscrupulous contractors.
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