Proposed Legislation
Based upon the testimony offered at the recent Congressional hearings a new and streamlined approach has been devised in the form of proposed legislation to obtain the benefits of government employee access under the statute while preventing potential abuses.
Under this approach, a government employee would be required to first disclose to a superior the material evidence relating to the alleged fraud. Furthermore, the employee would be required to notify the appropriate Inspector General or the United States Attorney General of this disclosure. The government would then be afforded a 12-month period to file suit on its own accord to seek, by in camera motion, an extension of up to an additional 12 months to take such action. If, and only if, the government elected not to file such suit within the allotted time period, would the government employee be permitted to file a qui tam lawsuit.5
Even then, further protection would attach given that pursuant to the current statute, a qui tam lawsuit must be filed under seal with the government being afforded a minimum of a 60-day period to react. The purpose of the seal requirement is “to allow the government an adequate opportunity to fully evaluate the private enforcement suit and determine both if that suit involves matters that the government is already investigating and whether it is in the government’s interest to intervene and take over the civil action.”
Additionally, the seal was intended to guard against premature disclosures of sensitive criminal investigations.6 Furthermore, for “good cause shown,” the government may move the court for extensions of time during which the complaint will remain under seal and the government may decide whether to intervene or decline to intervene in the action.7
The existing protection within the current statutory framework coupled with the enhancement provided by the proposed approach outlined above successfully resolves the question of how to retain the benefits of permitting government employees to file under the statute while addressing potential concerns about their appropriate roles and obligations.