The Department of Justice (DOJ) intervened in Allison Engine Co. v. United States ex rel Sanders , a qui tam case pending in the U.S. District Court for the Southern District of Ohio, and which had already made one trip up to the U.S. Supreme Court. .”( In 2008, the Supreme Court agreed that there was no “presentment” requirement in Section 3729(a)(2), but held that a Defendant must be shown to have made a false statement or record for the purpose of getting a false claim paid or approved by the Government. Allison Engine Co. v. United States ex rel Sanders, 128 S.Ct. 2123 (2008).

One of the issues in the case is a key retroactivity provision of the False Claims Act, as amended by the Fraud Enforcement and Recovery Act of 2009 (FERA) (signed into law May 20, 2009). In an opinion issued in October 2009, the District Court essentially held that because FERA’s amendments in Section 3729(a) create liability for conduct that was not previously actionable, they are unconstitutional on grounds they violate the Ex Post Facto clause. The Court also found that the wording of the retroactivity provision was directed to “claims” pending as of the retroactivity date, not “cases,” so that provision did not apply to the claims at issue in Allison, which had been submitted 15 or more years earlier.

This action by DOJ was taken to support Relators’ “Motion To Certify . . . For Interlocutory Appeal” filed on the same date. Both motions argue that the District Court’s Order involves a controlling issue of law, that there are substantial grounds for differences of opinion regarding the Order and that an immediate appeal would materially advance the litigation. If the motions are granted, the Sixth Circuit Court of Appeals will be asked to decide both the constitutionality of the retroactivity provision of FERA and whether that provision applies to “claims” or “cases” that are pending on the retroactivity date, June 7, 2008. The case is important because unless DOJ and the Relator succeed in overturning the District Court, an important False Claims Act (“FCA”) provision as amended by FERA will not apply retroactively and its application will be construed in a manner very limited to plaintiff’s. It is likely that if the Sixth Circuit hears the appeal, that it will at least hold that the retroactivity provision was directed to “cases” not claims.

For more information about qui tam law and health care fraud, contact Nolan and Auerbach, PA.