D. Alternative/simultaneous Remedies

• Library: South Carolina Damages (SCBar) (2009 Ed.)

D. Alternative/Simultaneous Remedies

1. Administrative Actions

Notwithstanding a private party's right to bring a qui tam action:

"[T]he Government may elect to pursue its claims through any alternate remedy available to the Government, including any administrative proceeding to determine a civil money penalty. If any such alternate remedy is pursued in another proceeding, the person initiating the action shall have the same rights in such proceeding as such person would have had if the action had continued under [the qui tam section] ...."¹¹⁰

a. Administrative Penalties

Many federal agencies have the authority to impose civil monetary penalties in addition to or instead of pursuing civil or criminal prosecution. The Fourth Circuit has repeatedly held that administrative sanctions and civil penalties did not constitute criminal penalties.¹¹¹

b. Suspension/Debarment

Generally, a federal agency has the option of conducting administrative proceedings to impose suspension and/or debarment of a government contractor prohibiting them from future participation in transactions with the federal government. The agency's action is governed by the Administrative Procedures Act,¹¹² and is brought in federal court. The agency's grounds for suspension and/or debarment are generally found within its own regulations.

c. Corporate Integrity Agreements

As part of settlement agreements under the False Claims Act, the government, in many instances, requires a corporate defendant to enter into a Corporate Integrity Agreement ("CIA") or sometimes called a compliance plan, to ensure that the submission of false claims does not continue. Typically a CIA requires a corporate defendant to engage in periodic audits of its operations.

It has been argued that the enforcement of the CIA is a contractual agreement thereby leaving only the government with a contractual remedy when it is breached. At least one district court has rejected this argument.¹¹³

In the Fourth Circuit, disclosures made pursuant to a CIA after a qui tam settlement agreement has been reached confers on relators no entitlement to additional proceeds resulting from the later findings.¹¹⁴

2. Other Civil Statutes

There are numerous other civil statutes that the government can proceed under in cases where false claims have been made, such as:

• Fraud Injunction Statute: The Fraud Injunction Statute, title 18, section 1345 of the United States Code, allows the government to obtain an injunction against on-going mail frauds, wire frauds and bank frauds. More significantly, the government may also seize assets, or request appointment of a receiver, a turnover of marketing lists, creation of a victim reimbursement pool, or any other relief...