I

103D CONGRESS

1ST SESSION H. R. 2915

To amend chapter 37 of title 31, United States Code, relating to false

claims actions, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

AUGUST 6, 1993

Mr. BERMAN (for himself, Mr. FRANK of Massachusetts, and Mr. GLICKMAN)

introduced the following bill; which was referred to the Committee on the

Judiciary

A BILL

To amend chapter 37 of title 31, United States Code,

relating to false claims actions, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘False Claims Amend5 ments Act of 1993’’.

6 SEC. 2. GOVERNMENT RIGHT TO DISMISS CERTAIN AC7 TIONS.

8 Section 3730(b) of title 31, United States Code, is

9 amended by adding at the end thereof the following new

10 paragraph:
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1 ‘‘(6)(A) No later than 60 days after the date of

2 service under paragraph (2), the Government may

3 move to dismiss from the action the person bringing

4 the action if—

5 ‘‘(i) such person first learned all the nec6 essary and specific facts underlying the mate7 rial allegations contained in the action from—

8 ‘‘(I) a fraud investigation that the ex9 ecutive branch of the Government is ac10 tively pursuing, or

11 ‘‘(II) a news media report or a con12 gressional hearing or report, if the execu13 tive branch of the Government, before such

14 person filed the complaint in the action,

15 commenced a fraud investigation of such

16 allegations on the basis of such facts, and

17 if the executive branch is actively pursuing

18 such investigation; or

19 ‘‘(ii) such person learned of the informa20 tion that underlies the alleged violation of sec21 tion 3729 that is the basis of the action in

22 the course of the person’s employment by the

23 United States, and none of the following has oc24 curred:
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1 ‘‘(I) In a case in which the employing

2 agency has an inspector general, such per3 son, before bringing the action—

4 ‘‘(aa) disclosed in writing sub5 stantially all material evidence and in6 formation that relates to the alleged

7 violation that the person possessed to

8 such inspector general; and

9 ‘‘(bb) notified in writing the per10 son’s supervisor and the Attorney

11 General of the disclosure under divi12 sion (aa).

13 ‘‘(II) In a case in which the employing

14 agency does not have an inspector general,

15 such person, before bringing the action—

16 ‘‘(aa) disclosed in writing sub17 stantially all material evidence and in18 formation that relates to the alleged

19 violation that the person possessed, to

20 the Attorney General; and

21 ‘‘(bb) notified in writing the per22 son’s supervisor of the disclosure

23 under division (aa).

24 ‘‘(III) Twelve months (and any period

25 of extension as provided for under sub-
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1 paragraph (B)) have elapsed since the dis2 closure of information and notification

3 under either subclause (I) or (II) were

4 made and the Attorney General has not

5 filed an action based on such information.

6 ‘‘(B) Prior to the expiration of the 12-month

7 period described under subparagraph (A)(ii)(III)

8 and upon notice to the person who has disclosed in9 formation and provided notice under subparagraph

10 (A)(ii) (I) or (II), the Attorney General may file a

11 motion seeking an extension of such 12-month pe12 riod. Such 12-month period may be extended by a

13 court for not more than an additional 12-month pe14 riod upon a showing by the Government that the ad15 ditional period is necessary for the Government to

16 decide whether or not to file such action. Any such

17 motion may be filed in camera and may be sup18 ported by affidavits or other submissions in camera.

19 ‘‘(C) For purposes of subparagraph (A), a per20 son’s supervisor is the officer or employee who—

21 ‘‘(i) is in a position of the next highest

22 classification to the position of such person;

23 ‘‘(ii) has supervisory authority over such

24 person; and
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1 ‘‘(iii) such person believes is not culpable

2 of the violation upon which the action under

3 this subsection is brought by such person.

4 ‘‘(D) A motion to dismiss under this paragraph

5 shall set forth documentation of the allegations, evi6 dence, and information in support of the motion.

7 ‘‘(E) Any person bringing a civil action under

8 paragraph (1) shall be provided an opportunity to

9 contest a motion to dismiss under this paragraph.

10 The court may restrict access to the evidentiary ma11 terials filed in support of the motion to dismiss, as

12 the interests of justice require. A motion to dismiss

13 and papers filed in support or opposition of such

14 motion shall not be—

15 ‘‘(i) made public without the prior written

16 consent of the person bringing the civil action;

17 or

18 ‘‘(ii) subject to discovery by the defendant.

19 ‘‘(F) If the motion to dismiss under this para20 graph is granted, the matter shall remain under

21 seal.

22 ‘‘(G) No later than 6 months after the date of

23 the enactment of this paragraph, and every 6

24 months thereafter, the Department of Justice shall

25 report to the Committee on the Judiciary of the
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1 Senate and the Committee on the Judiciary of the

2 House of Representatives relating to—

3 ‘‘(i) the cases in which the Department of

4 Justice has filed a motion to dismiss under this

5 paragraph;

6 ‘‘(ii) the outcome of such motions; and

7 ‘‘(iii) the status of false claims civil actions

8 in which such motions were filed.’’.

9 SEC. 3. PROVISIONS RELATING TO ACTIONS BARRED AND

10 QUI TAM AWARDS.

11 Section 3730 of title 31, United States Code, is

12 amended—

13 (1) in subsection (b)(1) by adding at the end

14 thereof ‘‘A right of action for a violation of section

15 3729 may not be waived or released by any person,

16 except as part of a court approved settlement of a

17 civil action brought under this section.’’;

18 (2) in subsection (d)(1)—

19 (A) in the first sentence—

20 (i) by striking out ‘‘, subject to the

21 second sentence of this paragraph,’’; and

22 (ii) by inserting after ‘‘proceeds of the

23 action or settlement of the claim,’’ the fol24 lowing: ‘‘including all proceeds or settle25 ment amounts attributable to allegations
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1 developed as a result of information pro2 vided to the Government by such person,’’;

3 (B) in the third sentence by striking out

4 ‘‘or the second sentence’’; and

5 (C) by striking out the second sentence;

6 and

7 (3) in subsection (e) by striking out paragraph

8 (4).

9 SEC. 4. WHISTLEBLOWER PROTECTION.

10 Section 3730(h) of title 31, United States Code, is

11 amended—

12 (1) by striking out ‘‘(h)’’ and inserting in lieu

13 thereof ‘‘(h) WHISTLEBLOWER PROTECTION.—(1)’’;

14 and

15 (2) by adding at the end thereof the following

16 new paragraph:

17 ‘‘(2)(A) In any action brought by an employee under

18 paragraph (1), the employee shall be entitled to relief if,

19 based upon a preponderance of the evidence, the employee

20 demonstrates that a lawful act described under paragraph

21 (1) was a contributing factor in the action by the employer

22 against the employee that is alleged in the complaint.

23 ‘‘(B) Notwithstanding subparagraph (A), an em24 ployee who brings an action under paragraph (1) shall not

25 be entitled to relief if the employer demonstrates by clear
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1 and convincing evidence that the employer would have

2 taken the same action against the employee in the absence

3 of the lawful act that was a contributing factor described

4 in subparagraph (A).’’.

5 SEC. 5. DEFINITION OF PERSON.

6 Section 3730 of title 31, United States Code, is fur7 ther amended by inserting at the end thereof the following

8 new subsection:

9 ‘‘(i) DEFINITION.—For purposes of this section, the

10 term ‘person’ means any natural person, partnership, cor11 poration, association, or other legal entity, including any

12 State or political subdivision of a State.’’.

13 SEC. 6. STATUTE OF LIMITATIONS.

14 Section 3731(b) of title 31, United States Code, is

15 amended to read as follows:

16 ‘‘(b)(1) A civil action under section 3730 may not be

17 brought more than 6 years after the date on which the

18 violation of section 3729 is committed.

19 ‘‘(2) For the purpose of computing the period de20 scribed under paragraph (1), there shall be excluded all

21 periods during which facts material to the right of action

22 are not known and reasonably could not be known by the

23 official of the United States with authority to act in the

24 circumstances.’’.
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1 SEC. 7. AUTHORITY TO ISSUE INVESTIGATIVE DEMANDS.

2 Section 3733 of title 31, United States Code, is

3 amended—

4 (1) in subsection (a)(1)—

5 (A) in the matter preceding subparagraph

6 (A) by inserting ‘‘or an Assistant Attorney Gen7 eral’’ after ‘‘Attorney General’’ each place it ap8 pears; and

9 (B) in the matter following subparagraph

10 (D)—

11 (i) in the first sentence by inserting

12 ‘‘or an Assistant Attorney General’’ after

13 ‘‘Attorney General’’; and

14 (ii) in the second sentence by striking

15 out ‘‘, the Deputy Attorney General,’’;

16 (2) in subsection (a)(2)—

17 (A) in subparagraph (F) by striking out

18 ‘‘designated by the Attorney General’’; and

19 (B) in subparagraph (G) by inserting ‘‘or

20 an Assistant Attorney General’’ after ‘‘Attorney

21 General’’ each place it appears;

22 (3) in subsection (h)(6) by striking out ‘‘, the

23 Deputy Attorney General,’’;

24 (4) in subsection (i) by inserting ‘‘or an Assist25 ant Attorney General’’ after ‘‘Attorney General’’

26 each place it appears; and
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1 (5) in subsection (l)(6) by inserting ‘‘or an As2 sistant Attorney General’’ after ‘‘Attorney General’’.

3 SEC. 8. APPLICABILITY AND EFFECTIVE DATE.

4 (a) IN GENERAL.—(1) The amendments made by

5 this Act shall take effect on the date of the enactment

6 of this Act and shall apply to cases filed on or after the

7 date of enactment of this Act.

8 (2) The provisions of section 3730(b)(6)(A)(i) of title

9 31, United States Code (as added by section 2 of this Act),

10 and section 3730 (d) and (e) of such title (as amended

11 by section 3 (2) and (3) of this Act), shall apply to cases

12 pending on the date of the enactment of this Act. In any

13 case that is pending on the date of the enactment of this

14 Act in which the Government has elected to proceed with

15 the action under section 3730(b)(4) of title 31, United

16 States Code, the Government may file a motion to dismiss

17 a qui tam relator under section 3730(b)(6)(A)(i) of such

18 title (as added by section 2 of this Act), no later than

19 120 days after the date of the enactment of this Act.

20 (b) PRIOR LAWS.—(1) The amendments made by the

21 False Claims Amendments Act of 1986 (Public Law 99–

22 562) shall apply to cases filed on or after the date of the

23 enactment of such Act, and to cases pending on such date

24 that are still pending on the date of the enactment of this

25 Act.
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1 (2) The amendments made by section 9 of the Major

2 Fraud Act of 1988 (Public Law 100–700) shall apply to

3 cases filed on or after the date of the enactment of such

4 Act, and to cases pending on such date that are still pend5 ing on the date of enactment of this Act.

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