AN OVERVIEW OF “QUI TAM” 

ACTIONS 

Bryan Lemons 

Senior Legal Instructor 

BACKGROUND

Originally enacted in 1863, the 

False Claims Act1 (FCA) was part of a 

concentrated effort by the Federal 

Government to combat defense contractor 

fraud during the Civil War.2 Although the 

statute has undergone modifications 

throughout the years, its purpose remains 

the same: To prevent fraud against the 

United States. While there is little 

extraordinary about much of the FCA, the 

unusual enforcement mechanisms warrant 

examination. Within the FCA, two means 

of enforcement are outlined. Not 

surprisingly, the first vests primary 

authority for enforcement of the FCA in 

the hands of the Attorney General of the 

United States.3 However, the second mode 

of enforcement is somewhat more 

remarkable. These provisions, referred to 

as “qui tam” provisions, vest additional 

authority for enforcement of the FCA in 

the hands of private citizens, who are 

authorized to bring suit on behalf of the 

United States, with the promise of a share 

of any monies recovered serving as 

incentive.4 These suits, commonly known 

 

1

 31 U.S.C.S. Sec. 3729 et. seq. 

2

 Originally enacted in 1863 as the "Informer’s 

Act." 

3

 31 U.S.C.S. Sec. 3730(a) 

4

 Id. at Sec. 3730(b). The phrase "qui tam" is an 

abbreviation for "qui tam pro domino rege quam 

pro se ipso in hac parte sequitur," which, when 

translated, means "Who brings the action for the 

King as well as for himself." 

While "qui tam" actions originally developed in 

thirteenth-century England, the concept was first 

utilized in the United States by lawmakers of the 

as “qui tam” actions, permit private 

individuals to sue on behalf of the United 

States to recover money that was 

fraudulently obtained by a person or 

corporation. The rationale behind 

sanctioning such suits was perhaps best 

expressed by the Supreme Court in United 

States ex rel. Marcus v. Hess: “... [O]ne of 

the least expensive and most effective 

means of preventing frauds on the 

Treasury is to make the perpetrators of 

them liable to actions by private persons 

acting, if you please, under the strong 

stimulus of personal ill will or the hope of 

gain.”5

INITIATING A “QUI TAM” ACTION

To initiate the process, a private 

citizen, referred to as a “relator,” files the 

complaint in the United States District 

Court. The complaint must be filed in 

camera and remain under seal for at least 

60 days, during which time all information 

contained within the complaint must be 

kept confidential from outside parties, 

including the defendant.6 The relator is 

also required by law to serve a copy of the 

complaint, as well as a written disclosure 

statement detailing all pertinent 

information in the relator’s possession, 

upon the United States Government.7

Once these steps have been taken, the 

United States is granted a mandatory 60-

day period to investigate the relator’s 

allegations and decide whether to 

intervene in the lawsuit and assume 

primary responsibility for the litigation.8

 

First Congress, who included "qui tam" provisions 

in ten of the first fourteen 

American statutes imposing penalties. See Major 

John C. Kunich, USAF, "Qui Tam: White Knight 

or Trojan Horse," 33 A.F.L. Rev. 31 (1990). 

5

 317 U.S. 57, 541 n.5 (1943) 

6

 31 U.S.C.S. Sec. 3730(b)(2) 

7

 Id. 

8

 Id. 
This 60-day period may be extended upon 

a showing of “good cause” and, as a 

practical matter, extensions are often 

liberally granted.9

GOVERNMENT ACTION

A. Government Intervenes 

If the United States elects to 

intervene and assume primary 

responsibility for the litigation of the 

suit,10 the relator remains a party to the 

action. However, the United States may 

restrict the relator’s role upon a showing 

of undue delay, repetition, etc..11 For 

example, a relator may perform certain 

functions during the trial, such as calling 

and cross-examining witnesses, but the 

United States may limit the scope or 

length of that cross-examination to prevent 

undue delay. Further, if the United States 

intervenes, it may dismiss or settle the 

lawsuit over the relator’s objection. 

Should the United States move to dismiss 

or settle the action, the relator must be 

notified of the intended action and 

provided an opportunity to be heard on the 

matter.12 If the court determines the 

settlement to be “fair, adequate, and 

reasonable under all the circumstances,” it 

will allow the settlement despite the 

objections of the relator.13 Where the 

United States elects to intervene in the 

action, the relator is nevertheless entitled 

to a share of any monies recovered from 

the defendant. Specifically, when the 

Government intervenes in a “qui tam” 

action, the relator is typically entitled to 

between 15% and 25% of the proceeds 

 

 

9

 Id. at Sec. 3730(b)(3) 

10 Id. at Sec. 3730(b)(4)(A) 

11 Id. at Sec. 3730(c)(2)(C) 

12 Id. at Sec. 3730(c)(2)(A) and (B) 

13 Id. at Sec. 3730(c)(2)(B) 

recovered in the action, as well as 

reasonable expenses and attorney’s fees.14

B. Government Declines to Intervene 

 Following its investigation, the 

United States may decline to intervene in 

place of the relator.15 In such cases, the 

relator has the right to conduct the action 

and has primary responsibility for the 

litigation. Nonetheless, the United States 

maintains a significant amount of leverage 

to influence the lawsuit. For example, 

although not a party to the action, the 

United States may require both parties, 

upon request, to provide copies of all 

pleadings filed in the action, as well as 

copies of all deposition transcripts.16

Additionally, the court may, “without 

limiting the status and rights of the person 

initiating the action,” allow the United 

States to intervene in a “qui tam” action 

after initially declining to do so, upon a 

showing of “good cause.”17 Finally, some 

courts have permitted the United States to 

veto the proposed settlement of a “qui 

tam” action, even though it has previously 

declined to intervene in the case and 

makes no attempt to do so at a later date.18

14 Id. at Sec. 3730(d)(1). Pursuant to Sec. 

3730(d)(3), a relator will not be allowed to recover 

from the 

 proceeds if he or she is convicted of criminal 

conduct arising from his or her role in the violation 

of the FCA. 

 Further, if the relator is in some manner 

responsible for the violation, the court may reduce 

the share of the 

 proceeds that the relator might otherwise 

receive, taking into consideration the role the 

relator played in 

 bringing the case to court. 

15 Id. at Sec. 3730(b)(4)(B) 

16 Id. at Sec. 3730(c)(3) 

17 Id. 

18 See Searcy v. Phillips Electronics North America 

Corp., 117 F.3d 154 (5th Cir. 1997)(holding that 

United 

 States has an absolute right to veto any proposed 
Regardless, in those cases where the 

Government declines to intervene, the 

relator’s recovery amounts increase, as he 

or she bears the burden of financing the 

lawsuit. Specifically, when the relator 

pursues the action without United States 

intervention, the relator is entitled to 

receive an amount between 25% and 30% 

of the proceeds recovered in the action, as 

well as reasonable expenses and attorney’s 

fees.19

PUBLIC DISCLOSURE BAR

 Prior to 1943, relators were 

permitted to initiate suits based upon 

information that was already in the 

possession of the Government. Thus, 

relators who had contributed little or no 

relevant information to the Government in 

their fight against fraud were reaping the 

benefits of the FCA.20 In response to these 

“parasitic” lawsuits, Congress amended 

the FCA in 1943 to prohibit “qui tam” 

actions based upon information in the 

possession of the United States or any of 

its employees. This effectively prohibited 

any employee of the United States from 

initiating a “qui tam” action. The result of 

this broad jurisdictional bar was a drastic 

reduction in the number of “qui tam” 

actions brought during the years 1943 to 

 

 

settlement, even if it previously declined to 

intervene). But 

 see United States ex rel. Killingsworth v. 

Northrop Corp., 25 F.3d 715 (9th Cir. 

1994)(holding that United States 

 may only veto a proposed settlement during the 

initial sixty days of the action, when it may still 

intervene as a 

 matter of right). 

19 31 U.S.C. Sec. 3730(d)(2) 

20 See Hess, supra note 5, where the Supreme Court 

allowed a "qui tam" action in a case where the 

relators 

 copied their complaint from a criminal 

indictment and had no original information of their 

own. 

1986. However, the 1986 amendments to 

the FCA revitalized the “qui tam” 

provisions of the FCA and broadened the 

right to pursue “qui tam” actions as a 

means of combating fraud against the 

United States. These amendments 

eliminated the ban against “qui tam” 

actions based upon information in the 

possession of the United States or its 

employees and, instead, authorized private 

citizens (including employees of the 

United States) to bring “qui tam” actions, 

subject to only four (4) exceptions. One 

notable exception is the “public 

disclosure” bar. The “public disclosure” 

bar forbids a court from hearing a “qui 

tam” action if the litigation is based upon 

previously, publicly disclosed allegations 

or transactions, unless the relator is an 

“original source” of the information.21

Through this exception, “Congress was 

attempting to prevent parasitic lawsuits 

while, at the same time, not barring proper 

‘qui tam’ claims by individuals who 

provided new information to the 

Government.”22

The “public disclosure” of 

information can take place in one of three 

ways: First, during a criminal, civil, or 

administrative hearing; second, in a 

Congressional, Administrative, or General 

Accounting Officer report, hearing, audit, 

or investigation; or, third, in the news 

media.23 If the qui tam” action is not based 

upon publicly disclosed information, the 

public disclosure” bar is inapplicable and 

the action may continue. However, if the 

court determines the qui tam” action is 

21 31 U.S.C.S. Sec. 3730(e)(4) 

22 See Christopher C. Frieden, "Protecting the 

Government’s Interests: Qui Tam Actions Under 

the False Claims 

 Act and the Government’s Right to Veto 

Settlements of Those Actions," 47 Emory L.J. 

1041, 1048 (1998). 

23 31 U.S.C.S. Sec. 3730(e)(4)(A) 
based upon publicly disclosed information, 

the relator must qualify as an “original 

source” of the information to avoid having 

the lawsuit dismissed. To qualify as an 

“original source,” the relator must have 

direct and independent knowledge of the 

allegations of fraud and voluntarily 

provide the information to the United 

States prior to filing a “qui tam” action.24

By definition, a relator will not generally 

qualify as an “original source” if his or her 

information is obtained secondhand (e.g., 

from a friend or spouse).25 Similarly, 

employees of the United States whose jobs 

require the investigation and uncovering of 

fraud (e.g., fraud investigators) will likely 

fail to qualify as an “original source” of 

the information, as they are not 

“voluntarily” providing the information to 

the United States, but are required to do so 

in the course of their duties.26

PROVING A VIOLATION OF THE 

FCA

 The FCA prohibits a variety of 

fraudulent acts.27 However, in most 

 

 

24 Id. at Sec. 3730(e)(4)(B) 

25 See generally United States ex rel. Devlin v. 

California, 84 F.3d 358 (9th Cir.), cert. denied, 519 

U.S. 949, 

 136 L.Ed.2d 252, 117 S. Ct. 361 (1996)("... 

relator had ?direct and independent’ knowledge 

because he had 

 discovered the information ... through his own 

labor"). 

26 See generally United States ex rel. LeBlanc v. 

Raytheon Co., 913 F.2d 17 (1st Cir.), cert. denied, 

499 U.S. 

 921, 113 L.Ed.2d 246, 111 S. Ct. 1312 

(1990)("It was LeBlanc’s responsibility, a 

condition of his employment, to 

 uncover fraud. The fruits of his effort belong to 

his employer ? the government"). 

27 31 U.S.C.S. Sec. 3729(a) imposes liability on 

any person who "(1) knowingly presents, or 

causes to be presented, to an officer of 

employee of the United States Government or a 

member of the Armed Forces of the 

actions brought pursuant to this statute, the 

relator must prove that the defendant 

“knowingly” presented to the United 

States a false or fraudulent “claim” for 

payment. Previous versions of the FCA 

required the relator to prove the defendant 

had “actual” knowledge of the false nature 

of the claim, as well as the specific intent 

to defraud the United States. However, the 

current version defines “knowing” and 

“knowingly” in a much more expansive 

manner and eliminates completely the 

requirement to demonstrate the defendant 

had the specific intent to defraud the 

United States. Now, a relator may succeed 

if it can be shown that the defendant (1) 

had “actual” knowledge of the false nature 

of the claim; (2) acted in “deliberate 

ignorance” of the truth or falsity of the 

United States a false or fraudulent claim for 

payment or approval; (2) knowingly makes, uses, 

or causes to be made or used, a false record or 

statement to get a false or fraudulent claim paid 

or approved by the Government; (3) conspires to 

defraud the Government by getting a false or 

fraudulent claim allowed or paid; (4) has 

possession, custody, or control of property or 

money used, or to be used, by the Government 

and, intending to defraud the Government or 

willfully to conceal the property, delivers, or 

causes to be delivered, less property than the 

amount for which the person receives a 

certificate of receipt; (5) 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; 

(6) 

 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 the 

property; or (7) 

 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." 
claim; or (3) acted in “reckless disregard” 

of the truth or falsity of the claim.28 Thus, 

a relator may ultimately succeed without 

ever having to prove the defendant had 

knowledge of the claim’s falsity. For 

example, a doctor who delegated billing 

authority to his wife and failed to review 

the claims for accuracy, was found guilty 

of a violation of the FCA based upon his 

“reckless disregard” for the truth or falsity 

of the billing records.29

 A “claim” under the FCA is 

defined as: 

 “any request or demand, 

whether under a contract or 

otherwise, for money or 

property which is made to a 

contractor, grantee, or other 

recipient if the United 

States Government 

provides any portion of the 

money or property which is 

requested or demanded, or 

if the Government will 

reimburse such contractor, 

grantee, or other recipient 

for any portion of the 

money or property which is 

requested or demanded.”30

The recognition of what constitutes 

a claim is critical for two reasons. First, 

the number of fraudulent claims presented 

by a defendant will determine the penalties 

that may be adjudged. Typically, a 

defendant is “liable to the United States 

Government for a civil penalty of not less 

than $5,000 and not more than $10,000, 

 

28 Id. at Sec. 3729(b) 

29 See United States v. Krizek, 111 F.3d 934 (D.C. 

Cir. 1997). 

30 31 U.S.C.S. Sec. 3729(c). Of note, pursuant to 

§3729(e), the FCA does not apply to claims, 

records, or statements made under the Internal 

Revenue Code of 1986. 

plus three times the amount of damages 

which the Government sustained because 

of the act of that person,” per claim.31

Second, and on a more practical level, 

increased penalties will result in an 

increased recovery for the relator, whose 

recovery is based upon the total proceeds 

recovered in the action. 

PROTECTION AGAINST 

RETALIATION

While virtually anyone can be a 

relator, the majority of those who bring 

“qui tam” actions are current or former 

employees, who have an insider’s 

perspective on the wrongdoing. In order to 

protect vulnerable relators or employees, 

the FCA specifically forbids retaliation 

against those who initiate or assist in 

furthering a “qui tam” action.32 To aid in 

enforcing this prohibition, the statute 

confers a cause of action on the relator or 

employee in United States District Court.33

In order to recover under the retaliatory 

provisions of the FCA, a relator or 

 

31 Id. at Sec. 3729(a) 

32 Sec. 3730(h) provides that "any employee who is 

discharged, demoted, suspended, threatened, 

harassed, or in any other manner discriminated 

against in the terms and conditions of employment 

by his or her employer because of lawful acts done 

by the employee on behalf of the employee or 

others in furtherance of an action under this 

section, including investigation for, initiation of, 

testimony for, or assistance in an action filed or to 

be filed under this section, shall be entitled to all 

relief necessary to make the employee whole. Such 

relief shall include reinstatement with the same 

seniority status such employee 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 employee may bring 

an action in the appropriate district court of the 

United States for the relief provided in the 

subsection." 

33 Id. 
employee must prove that (1) his or her 

actions were taken in furtherance of the 

“qui tam” action; (2) the employer knew 

of the actions of the relator or employee; 

and (3) the relator or employee was 

retaliated against because of his or her 

actions in furtherance of the “qui tam” 

action.34 If the relator or employee is 

successful, extensive relief may be 

granted, to include reinstatement with the 

same seniority status, two times the 

amount of back pay, interest on the back 

pay, etc..35

CONCLUSION

In this article, a general overview 

of selected issues has been provided to 

assist Federal law enforcement officers in 

gaining a basic understanding of “qui tam” 

actions. These actions provide the United 

States with a valuable tool in the fight 

against fraud. Further, through an 

understanding of these provisions, Federal 

law enforcement officers investigating 

fraud against the United States may 

likewise find the “qui tam” provisions to 

be a useful addition to their arsenal of 

weapons. 

 

34 See Frieden, supra note 22, at 1056. 

35 31 U.S.C.S. Sec. 3730(h)