Thursday, December 27, 2012

Student Note on Using the False Claims Act to Enforce Civil Rights Laws

The use of the False Claims Act to enforce civil rights laws is an important and potentially promising trend for civil rights litigators.  Check out this new student note discussing that trend:  Ralph C. Mayrell, Note, Blowing the Whistle on Civil Rights: Analyzing the False Claims Act as an Alternative Enforcement Method for Civil Rights Laws, 91 Tex. L. Rev. 449 (2012).  From the introduction:
The FCA offers significant benefits to civil rights plaintiffs. Plaintiffs’ (called “relators” in the FCA) damages, can be quite large—up to 30% of a maximum of triple the value of the contract or grant—and plaintiffs can also take away per-claim civil penalties as well as ask for attorneys’ fees. These significant damages should incentivize private attorneys to litigate these claims as well as disincentivize government entities from violating antidiscrimination statutes. And because the injured party under the FCA is the United States, institutional-change litigants do not face the standing problems they otherwise have to overcome under laws based on remedying individual injuries.

The FCA provides civil rights litigators with another avenue for enforcing antidiscrimination laws, but it also comes with risks. This Note argues for using the FCA to defend civil rights to the benefit of discrimination victims. It also argues that agencies should use their flexibility in contracting to expand the civil rights requirements of contractors to include requirements of compliance with constitutional norms appropriate for the recipient agency. Despite this Note’s optimistic view of increasing damages against civil rights violators, there are risks to increasing the size of damages. Greater damages hurt local government coffers despite the Court’s and Congress’s professed desire to protect local governments from punitive damages in the civil rights context. Larger damages for relators also could discourage the worthy goal of reconciliation between the injured party and the local government. Furthermore, these penalties could decrease the local government’s willingness to admit wrongdoing in traditional civil rights disputes because they will know that reconciliation and settlement would not bar future FCA claims by third parties based on those admissions. This Note argues that despite these risks, when used judiciously by litigants, the FCA can play a useful role where individual remedies do not suffice or institutional-change litigants lack standing to apply pressure.

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