‘Secret Docket’ Lets Feds Hide|Billions in False Claims, ACLU Says

ALEXANDRIA, Va. (CN) - The federal government has been defrauded of billions of dollars in hundreds of cases it has sealed under the False Claims Act, the ACLU claims in Federal Court. "The result of the secrecy provisions is that the federal court system is home to an entire secret docket of cases that is inaccessible to the public and the press," including more than 60 such cases in Iraq, according to the complaint.

The ACLU claims Congress inserted unconstitutional secrecy amendments into the Act in 1986.

Joining the ACLU as plaintiffs are OMB Watch and the Government Accountability Project.

The plaintiffs "challenge the constitutionality of the secrecy provisions in the FCA, specifically §§ 3730(b)(2) and (b)(3) (together, the 'FCA secrecy provisions'). The FCA secrecy provisions are unconstitutional on their face. Plaintiffs seek a declaration that they violate the public's First Amendment rights."

The plaintiffs sued Attorney General Michael Mukasey and Fernando Galindo, "the Clerk of the Court in the United States District Court, Eastern District of Virginia. The Clerk of the Court is the officer of the court that seals the complaints as required by the statute challenged in this case."

According to the complaint, Congress enacted the False Claims Act in 1863 to "combat rampant fraud in Civil War contracts." It was substantially amended only twice. The 1943 amendments were to prohibit "so-called parasitic actions," in which individuals filed qui tam actions "based entirely on public allegations found in criminal indictments against World War II contractors. ... The Act was amended such that jurisdiction over FCA claims was barred if the claims were based on information in the government's possession.

"In 1986, as a result of a decline in FCA suits, Congress amended the FCA to encourage private individuals to bring more FCA suits. The legislation increased incentives, financial and otherwise, for private individuals to bring suits on behalf of the government. Congress also set out to right a number of overly restrictive court interpretations of the FCA that were making it difficult for whistleblowers to succeed in FCA suits. Finally, to encourage more whistleblowers to file FCA suits, Congress enacted an anti-retaliation provision to protect whistleblowers from reprisal for initiating or aiding an FCA disclosure and lawsuit.

"As part of the amendments in 1986, Congress enacted the secrecy provisions at issue. Thus, for the first 123 years of the existence of the FCA, qui tarn complaints were not filed under seal and were accessible to the public. Only in the last 22 years have all FCA qui tarn complaints filed by relators been automatically placed under seal and inaccessible to the public.

"When the secrecy provisions were being debated before the Senate Judiciary Committee, DOJ argued that the secrecy provisions were needed to prevent the potential defendant from being tipped off that there might be a parallel criminal investigation. 1986 U.S.C.C.A.N. at 5288-89. DOJ stated that the FCA civil suit 'might overlap with allegations already under criminal investigation.' Id. at 5289 (emphasis added). Thus, neither DOJ nor any other entity expected that every FCA case would be accompanied by a parallel criminal investigation. Even if an ongoing criminal investigation alone was a sufficient governmental interest, not every case should be subjected to secrecy. ...

"The mandatory secrecy provision requires the Clerk of the Court to seal the complaint upon its filing. Neither the relator nor the government is required to show that there is a compelling need to deny the public access to this information. The mandatory secrecy provision prohibits a court from making an individualized, case-by-case determination as to whether the sealing of the complaint serves a compelling interest and is narrowly tailored.

"During this time, the public has no knowledge that a civil action has been filed in federal court alleging that the U.S. government has been defrauded. Nor does the public have any other means of acquiring this knowledge or accessing information relating to these cases because the relator is gagged from speaking about the case. ...

"The secrecy extension provision does not define "good cause," nor is the term defined elsewhere in the FCA statute. 31 U.S.C. § 373O(b)(3). The secrecy extension provision does not require that the relator or the government demonstrate a compelling need for the action to remain inaccessible to the public, or that keeping the complaint under seal is narrowly tailored to that need. The secrecy extension provision therefore permits the complaint to remain under seal for an indefinite period of time."

As a result, the FCA secrecy provisions hide allegations of fraud from the public, including more than 60 allegations of fraud in the Iraq war, the complaint states. Many of these allegations are against politically connected giants such as Halliburton and Kellogg, Brown & Root.

"According to DOJ, as of July 2007, there were approximately 1,000 qui tarn cases that were under seal pending the government's decision on whether to intervene. The average length of time between when an FCA case is filed and when the government notifies the court of its election to intervene is approximately 13 months. FCA cases, however, are usually sealed for much longer period of time than 13 months. Cases typically remain sealed for 2 to 3 years, and have been sealed for as long as 9 years.

"The FCA secrecy scheme has hidden from public purview allegations of military contractor fraud in the Iraq War. (See, e.g., David Rose, The People vs. the Profiteers, Vanity Fair November 2007, asserting that military contractor fraud is rampant but unknown to the public at large because the allegations remain under seal).

"Although the exact number of Iraq contractor fraud cases under seal remains unknown, there is evidence that more than a handful of these cases exist. Stuart Bowen, the Special Inspector General for Iraqi reconstruction, reports on Iraq reconstruction issues to the Pentagon and State Department. In 2006, Mr. Bowen reported that he knew of 79 sealed FCA Iraq contractor fraud cases, some of which have multiple plaintiffs. Id. As of August 2007, allegedly 66 remained under seal."

The government is using the secrecy provisions to pr

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