Blowing the Whistle: A Civic Duty?

On July 22—one year after President Obama signed the Improper Payments Elimination and Recovery Act[1]—Senators Tom Carper (D-Del.), Joe Lieberman (I-Conn.), Susan Collins (R-Maine), and Scott Brown (R-Mass.) introduced the 2011 Improper Payments Elimination and Recovery Improvement Act (S. 1409)[2].  The purpose of the bill, which includes provisions such as the establishment of a “Do Not Pay List,” is “[t]o intensify efforts to identify, prevent, and recover payment error, waste, fraud and abuse within Federal spending.”[3]  According to a press release on Senator Carper’s website, Senator Lieberman urged: “The nation’s weak economy demands that the federal government find more and better ways to avoid wasting $125 billion a year in taxpayer funds because of improper payments—whether to contractors who have been barred from working with the government or to deceased Social Security recipients.”[4] Senator Collins similarly stated: “Improper payments remain a serious problem across the government and cost taxpayers billions of dollars each year. . . ., not including major programs that aren’t even reporting their payment errors yet, such as the Medicare prescription drug program and about half the Pentagon’s payments.”[5]  

The current and proposed Acts target “improper payments,” which are “payments made in error, such as payments made to the wrong person or in the wrong amount,”[6] as opposed to payments made in response to fraudulent or false claims submitted to the government for payment by individuals or corporations, which are the subject of the False Claims Act.[7] Unlike the increased internal government oversight provided by the proposed legislation, the False Claims Act allows private citizens to file a qui tam (or whistleblower) lawsuit on the government's behalf to aid in the recovery of monies paid when the government has been defrauded through any federally funded contract or program. Although statistics regarding annual recoveries from qui tam lawsuits are available through the Department of Justice, it is difficult (if not impossible) to pinpoint the total amount of false claims for payment submitted to the government each year, especially where such claims go unreported.  Recent discussion on limiting improper payments is, nevertheless, a reminder of the powerful tools already available to help recover monies paid for false claims submitted to the government and to penalize those who made them.     

Of course, the decision to file a qui tam lawsuit is an individual one based on any number of personal and legal considerations; however, in today’s economy—in the wake of protracted debates over debt ceilings and downgraded credit ratings—query whether filing such a suit may be viewed as a civic duty . . . like serving as a juror or potential juror. What do you think?

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[1]See White House Press Release, “President Obama to Sign Improper Payments Elimination and Recovery Act” (July 22, 2010), available at: http://www.whitehouse.gov/the-press-office/%20president-obama-sign-improper-payments-elimination-and-recovery-act (last visited Aug. 8, 2011).

[2] The full text of the proposed bill is available at: http://www.gpo.gov/fdsys/pkg/BILLS-112s1409is/pdf/BILLS-112s1409is.pdf (last visited Aug. 8, 2011).

[3] See id.

[4] See Press Releases - Newswoom – Tom Carper, U.S. Senator for Delaware, available at http://carper.senate.gov/public/index.cfm/pressreleases?ID=457fc5ce-06b7-4d3e-8dfc-4350a5c1d8e4 (last visited Aug. 8. 2011).

[5] See id.

[6] See id.

[7] 31 U.S.C. § 3729, et seq.

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Melanie Garner is an attorney at Waters & Kraus, LLP, in the firm's Baltimore office. She focuses her practice on toxic tort, product liability, and qui tam (whistleblower) cases.