INSIGHT: DOJ Nominee Barr Walks Back FCA Stand, But Not Entirely

Sidley Austin attorneys say DOJ Attorney General nominee William Barr’s testimony at his confirmation hearing may not have allayed concerns DOJ would more aggressively try to dismiss whistleblower cases. In addition, a new petition to the Supreme Court is again asking the question of whether the qui tam provisions are constitutional.

They point out that Barr testified in response to questions from FCA advocate Senator Chuck Grassley (R-IA) that the FCA is not unconstitutional, but did so based on the fact that the Supreme Court had upheld it, not because he thought it would survive another challenge before the current Court.

Furthermore, Intermountain Healthcare has not filed a certiorari petition with the Supreme Court, citing for support Barr’s earlier memo arguing those provisions’ unconstitutionality.