Two days ago we wrote about the Memorandum of Understanding between HUD and the Department of Justice. Although facially the MOU passes the straight face test, anyone with knowledge of the public statements by HUD Secretary Carson and the recent spate of dismissals sought by the Justice Department in False Claims Act cases knows there is real trouble in the air.
Do we think the present administration will unwind the False Claims Act? No (although sadly it is dead for all practical purposes in HUD mortgage fraud cases). The MOU represents the first step in a very slippery slope. A step in which whistleblowers, taxpayers and the public are the real losers. The only winners are greedy corporations.
We are not opposed to capitalism or the business community. Honest businesses love the False Claims Act [FCA] because it levels the playing field. Businesses the follow the rules can’t fully compete with those that cut corners.
In this post today, we reprint what someone else wrote this morning about the MOU and the assault on whistleblowers. We are glad that we aren’t alone!
“The ‘arrangement’ [MOU] is definitely a restriction on the operation of the FCA statute and the execution of other laws.Perhaps, we ought to give even more attention to the asserted right of the DOJ to move to dismiss cases ‘just because.’ That is the greatest threat facing the enforcement of the FCA across the nation.Politics are conducted in the dark, hidden from our side of the curtain. When FCA Relators and lawyers are on the receiving end of disrespectful comments, obvious disregard of supporting precedent, evasive justifications for defendants’ violations and declinations without conducting bona fide investigations—we get the message. Thank goodness, there are many good AUSAs and DOJ attorneys involved in the process…but if your case is assigned the “wrong kind” of government attorney, your clients have NO meaningful recourse. Neither do the Congress or the taxpayers. Isn’t that wrong?How do Congress and the taxpayers have any upside hope of using the rule of law to address real contracting fraud with, at times, political or other unholy influences sitting on the process?Congress needs to limit arbitrary dismissals by requiring that the government prove by a preponderance of the evidence that its justification is bona fide, not arbitrary, that it has investigated the claims and that dismissal is not otherwise detrimental to the policies underlying the FCA. Yes, that requires effort, but the FCA justifies holding the government accountable for arbitrary motions to dismiss bona fide claims being prosecuted by Relators under the statute.Regards, and Senator Grassley may not fully appreciate the “wolf at the door.”