[Congressional Record Volume 167, Number 138 (Tuesday, August 3, 2021)]
[Senate]
[Pages S5776-S5777]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 2435. Mr. GRASSLEY (for himself and Mr. Leahy) submitted an
amendment intended to be proposed to amendment SA 2137 proposed by Mr.
Schumer (for Ms. Sinema (for herself, Mr. Portman, Mr. Manchin, Mr.
Cassidy, Mrs. Shaheen, Ms. Collins, Mr. Tester, Ms. Murkowski, Mr.
Warner, and Mr. Romney)) to the bill H.R. 3684, to authorize funds for
Federal-aid highways, highway safety programs, and transit programs,
and for other purposes; which was ordered to lie on the table; as
follows:
At the end of division G, insert the following:
TITLE XII--ANTI-FRAUD AMENDMENTS ACT
SEC. 71201. SHORT TITLE.
This title may be cited as the ``Anti-Fraud Amendments
Act''.
Subtitle A--False Claims Procedures
SEC. 71201. FALSE CLAIMS PROCEDURE.
(a) Proving Materiality.--Section 3729 of title 31, United
States Code, is amended by adding at the end the following:
``(e) Proving Materiality.--
``(1) In general.--In an action under this section, the
Government or relator may establish materiality by a
preponderance of the evidence.
``(2) Rebuttal.--A defendant may rebut evidence of
materiality under paragraph (1) only by clear and convincing
evidence that the Government regards the matter as
immaterial.''.
(b) Costs.--Section 3731 of title 31, United States Code,
is amended by adding at the end the following:
``(f) If the Government elects not to intervene in an
action brought under section 3730(b), the court shall, upon a
motion by the Government, order the requesting party to pay
the Government's expenses, including costs and attorneys'
fees, for responding to the party's discovery requests,
unless the party can demonstrate that the information sought
is relevant and proportionate to the needs of the case.''.
SEC. 71202. RIGHTS OF THE PARTIES TO QUI TAM ACTIONS.
Section 3730(c)(2)(A) of title 31, United States Code, is
amended by inserting before the period at the end the
following: ``, at which the Government shall have the burden
of demonstrating reasons for dismissal, and the qui tam
plaintiff shall have the opportunity to show that the reasons
are fraudulent, arbitrary and capricious, or contrary to
law''.
SEC. 71203. POST-EMPLOYMENT WHISTLEBLOWER RETALIATION.
Section 3730(h)(1) of title 31, United States Code, is
amended by inserting ``current or former'' after ``Any''.
SEC. 71204. GAO REPORT.
Not later than 18 months after the date of enactment of
this Act, the Comptroller General of the United States shall
submit a report to Congress on the effectiveness of the False
Claims Act (31 U.S.C. 3729 et seq.) during the time period
beginning on the date of enactment of the False Claims
Amendments Act of 1986 (Public Law 99-562; 100 Stat. 3153)
and ending on the date of enactment of this Act, which shall
include--
(1) a description of the benefits and challenges of
enforcement efforts under the False Claims Act (31 U.S.C.
3729 et seq.); and
(2) information on the amounts recovered by the Government
under the False Claims Act since the date of enactment of the
False Claims Amendments Act of 1986 (Public Law 99-562; 100
Stat. 3153).
SEC. 71205. APPLICABILITY.
The amendments made by sections 71201, 71202, and 71203 of
this Act shall apply to any case under the False Claims Act
(31 U.S.C. 3729 et seq.) that is--
(1) filed on or after the date of enactment of this Act; or
(2) pending on the date of enactment of this Act.
Subtitle B--Administrative False Claims
SEC. 71211. ADMINISTRATIVE FALSE CLAIMS.
(a) Change in Short Title.--
(1) In general.--Subtitle B of title VI of the Omnibus
Budget Reconciliation Act of 1986 (Public Law 99-509; 100
Stat. 1934) is amended--
(A) in the subtitle heading, by striking ``Program Fraud
Civil Remedies'' and inserting ``Administrative False
Claims''; and
(B) in section 6101 (31 U.S.C. 3801 note), by striking
``Program Fraud Civil Remedies Act of 1986'' and inserting
``Administrative False Claims Act''.
(2) References.--Any reference to the Program Fraud Civil
Remedies Act of 1986 in any provision of law, regulation,
map, document, record, or other paper of the United States
shall be deemed a reference to the Administrative False
Claims Act.
(b) Reverse False Claims.--Chapter 38 of title 31, United
States Code, is amended--
(1) in section 3801(a)(3), by amending subparagraph (C) to
read as follows:
``(C) made to an authority which has the effect of
concealing or improperly avoiding or decreasing an obligation
to pay or transmit property, services, or money to the
authority.''; and
(2) in section 3802(a)(3)--
(A) by striking ``An assessment'' and inserting ``(A)
Except as provided in subparagraph (B), an assessment''; and
(B) by adding at the end the following:
``(B) In the case of a claim described in section
3801(a)(3)(C), an assessment shall not be made under the
second sentence of paragraph (1) in an amount that is more
than double the value of the property, services, or money
that was wrongfully withheld from the authority.''.
(c) Increasing Dollar Amount of Claims.--Section 3803(c) of
title 31, United States Code, is amended--
(1) in paragraph (1) by striking ``$150,000'' each place
that term appears and inserting ``$1,000,000''; and
(2) by adding at the end the following:
``(3) Adjustment for inflation.--The maximum amount in
paragraph (1) shall be adjusted for inflation in the same
manner and to the same extent as civil monetary penalties
under the Federal Civil Penalties Inflation Adjustment Act
(28 U.S.C. 2461 note).''.
(d) Recovery of Costs.--Section 3806(g)(1) of title 31,
United States Code, is amended to read as follows:
``(1)(A) Except as provided in paragraph (2)--
``(i) any amount collected under this chapter shall be
credited first to reimburse the authority or other Federal
entity that expended costs in support of the investigation or
prosecution of the action, including any court or hearing
costs; and
``(ii) amounts reimbursed under clause (i) shall--
``(I) be deposited in--
``(aa) the appropriations account of the authority or other
Federal entity from which the costs described in subparagraph
(A) were obligated;
``(bb) a similar appropriations account of the authority or
other Federal entity; or
``(cc) if the authority or other Federal entity expended
nonappropriated funds, another appropriate account; and
``(II) remain available until expended.
``(B) Any amount remaining after reimbursements described
in subparagraph (A) shall be deposited as miscellaneous
receipts in the Treasury of the United States.''.
(e) Semiannual Reporting.--Section 5(b) of the Inspector
General Act of 1978 (5 U.S.C. App.) is amended--
(1) in paragraph (4), by striking ``and'' at the end;
(2) by redesignating paragraph (5) as paragraph (6); and
(3) by inserting after paragraph (4) the following:
``(5) information relating to cases under chapter 38 of
title 31, United States, including--
``(A) the number of reports submitted by investigating
officials to reviewing officials under section 3803(a)(1) of
title 31, United States Code;
``(B) actions taken in response to reports described in
subparagraph (A), which shall include statistical tables
showing--
``(i) pending cases;
``(ii) resolved cases;
``(iii) the average length of time to resolve each case;
``(iv) the number of final agency decisions that were
appealed to a district court of the United States or a higher
court; and
``(v) if the total number of cases in a report is greater
than 2--
``(I) the number of cases that were settled; and
``(II) the total penalty or assessment amount recovered in
each case, including through a settlement or compromise; and
``(C) instances in which the reviewing official declined to
proceed on a case reported by an investigating official;
and''.
(f) Increasing Efficiency of DOJ Processing.--Title 31,
United States Code, is amended--
(1) in section 3803(j)--
(A) by inserting ``(1)'' before ``The reviewing''; and
(B) by adding at the end the following:
``(2) A reviewing official shall notify the Attorney
General in writing not later than 30 days before entering
into any agreement to compromise or settle allegations of
liability under section 3802 of this title and before the
date on which the reviewing official is permitted to refer
allegations of liability to a presiding officer under
subsection (b).''; and
(2) in section 3812--
(A) in the section heading, by striking ``Prohibition
against delegation'' and inserting ``Delegation authority'';
and
(B) by striking ``, shall not be delegated to, or carried
out by,'' and inserting ``may be delegated to''.
(g) Revision of Definition of Hearing Officials.--
[[Page S5777]]
(1) In general.--Chapter 38 of title 31, United States
Code, is amended--
(A) in section 3801(a)(7)--
(i) in subparagraph (A), by striking ``or'' at the end;
(ii) in subparagraph (B)(vii), by adding ``or'' at the end;
and
(iii) by adding at the end the following:
``(C) a member of the board of contract appeals pursuant to
section 7105 of title 41, if the authority does not employ an
available presiding officer under subparagraph (A);''; and
(B) in section 3803(d)(2)--
(i) in subparagraph (A), by striking ``and'' at the end;
(ii) in subparagraph (B)--
(I) by striking ``the presiding'' and inserting ``(i) in
the case of a referral to a presiding officer described in
subparagraph (A) or (B) of section 3801(a)(7), the
presiding'';
(II) in clause (i), as so designated, by adding ``or'' at
the end; and
(III) by adding at the end the following:
``(ii) in the case of a referral to a presiding officer
described in subparagraph (C) of section 3801(a)(7)--
``(I) the reviewing official shall submit a copy of the
notice required by under paragraph (1) and of the response of
the person receiving such notice requesting a hearing--
``(aa) to the board of contract appeals that has
jurisdiction over matters arising from the agency of the
reviewing official pursuant to section 7105(e)(1) of title
41; or
``(bb) if the Chair of the board of contract appeals
declines to accept the referral, to any other board of
contract appeals; and
``(II) the reviewing official shall simultaneously mail, by
registered or certified mail, or shall deliver, notice to the
person alleged to be liable under section 3802 that the
referral has been made to an agency board of contract appeals
with an explanation as to where the person may obtain the
relevant rules of procedure promulgated by the board.''; and
(iii) by adding at the end the following:
``(C) in the case of a hearing conducted by a presiding
officer described in subparagraph (C) of section 3801(a)(7)--
``(i) the presiding officer shall conduct the hearing
according to the rules and procedures promulgated by the
board of contract appeals; and
``(ii) the hearing shall not be subject to the provisions
in subsection (g)(2), (h), or (i).''.
(2) Agency boards.--Section 7105(e) of title 41, United
States Code, is amended--
(A) in paragraph (1), by adding at the end the following:
``(E) Administrative false claims act.--
``(i) In general.--The boards described in subparagraphs
(B), (C), and (D) shall have jurisdiction to hear any case
referred to a board of contract appeals under section 3803(d)
of title 31.
``(ii) Declining referral.--If the Chair of a board
described in subparagraph (B), (C), or (D) determines that
accepting a case under clause (i) would prevent adequate
consideration of other cases being handled by the board, the
Chair may decline to accept the referral.''; and
(B) in paragraph (2), by inserting ``or, in the event that
a case is filed under chapter 38 of title 31, any relief that
would be available to a litigant under that chapter'' before
the period at the end.
(3) Regulations.--Not later than 180 days after the date of
enactment of this Act, each authority head, as defined in
section 3801 of title 31, United States Code, and each board
of contract appeals of a board described in subparagraphs
(B), (C), and (D) of section 7105(e) of title 41, United
States Code, shall amend procedures regarding proceedings as
necessary to implement the amendments made by this
subsection.
(h) Revision of Limitations.--Section 3808 of title 31,
United States Code, is amended by striking subsection (a) and
inserting the following:
``(a) A notice to the person alleged to be liable with
respect to a claim or statement shall be mailed or delivered
in accordance with section 3803(d)(1) of this title not later
than the later of--
``(1) 6 years after the date on which the violation of
section 3802 of this title is committed; or
``(2) 3 years after the date on which facts material to the
action are known or reasonably should have been known by the
authority head, but in no event more than 10 years after the
date on which the violation is committed.''.
(i) Definitions.--Section 3801 of title 31, United States
Code, is amended--
(1) in subsection (a)--
(A) in paragraph (8), by striking ``and'' at the end;
(B) in paragraph (9), by striking the period at the end and
inserting a semicolon; and
(C) by adding at the end the following:
``(10) `material' has the meaning given the term in section
3729(b) of this title; and
``(11) `obligation' has the meaning given the term in
section 3729(b) of this title.''; and
(2) by adding at the end the following:
``(d) For purposes of subsection (a)(10), materiality shall
be determined in the same manner as under section 3729 of
this title.''.
(j) Promulgation of Regulations.--Not later than 180 days
after the date of enactment of this Act, each authority head,
as defined in section 3801 of title 31, United States Code,
shall--
(1) promulgate regulations and procedures to carry out this
subtitle and the amendments made by this subtitle; and
(2) review and update existing regulations and procedures
of the authority to ensure compliance with this subtitle and
the amendments made by this subtitle.
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