Your qui tam case was investigated under seal by the Government and they declined to intervene. As a result of the Government's
declination, you are now faced with the decision whether to continue the action on your own or pull the plug. The decision
you face in this situation is common in most qui tam actions filed. Since the 1986 amendments, the Government has declined
to intervene in approximately 70% of the cases filed. Simply because the Government investigation resulted in a declination
does not mean that your case does not have merit. There are cases declined because the Government investigation legitimately
found insufficient evidence for DoJ to intervene. However, there are many that are declined as a result of a poor or incomplete
investigation or, in the case of a criminal investigation, insufficient evidence was obtained to prove criminal intent.
If your case was declined by the Government and you decide to continue the action because you believe there is merit to
the case despite what the Government found, or even if you are in the process of trying to make an informed decision whether
to proceed, it would be advisable to look closely at the Government investigation by obtaining the investigative documents
and talking to the investigators to determine what investigative methods or techniques they used and what problems they encountered.
Also, if you decide to proceed after a declination, the defendant will use the declination in court as proof the case did
not have merit in their attempt to have the case dismissed. The following is a discussion of government jurisdiction, agencies
and investigators to help in evaluating the investigation:
Investigative Jurisdiction: In most cases, when a qui tam action is filed and served on the DoJ, they will forward
copies of the complaint and disclosure statement to the governmental agency that DoJ determines has primary jurisdiction in
the case, i.e. DoD, HHS, DoT, NASA, etc. A determination is then made as to what investigative agency or agencies will conduct
the investigation. It is not unusual for two or more agencies to be involved if it is determined to be multi-jurisdictional
and more resources are needed than one agency alone could provide.
Civil or Criminal: The DoJ will coordinate the case with the Civil Division of the U.S. Attorney's office located
in the federal judicial district where the action was filed. It is now becoming more common that the relator's attorney(s)
will already have talked to the U.S. Attorney's office before or when the case is filed. The Civil Division of the U.S. Attorney's
office will usually coordinate the case with the Criminal Division with a view toward initiating a criminal investigation
of the allegations if warranted. If the decision is made to conduct a criminal investigation, then the civil case will be
set aside and the Government will eventually make its decision to intervene on the basis of how the criminal case turns out.
Even though some qui tam actions are better served by a criminal investigation, not all of them should go that direction.
It can be very difficult to prove a specific intent to defraud beyond a reasonable doubt in very complex and difficult government
procurement cases. A good example are DoD cost mischarging and defective pricing allegations. Also, because of Fifth Amendment
problems that arise in criminal cases, many key defendant personnel are not interviewed or testify in Grand Jury and, thus,
crucial information is not obtained. Unfortunately, most government investigative agencies are geared to criminal investigations,
train their investigators as criminal investigators and measure performance primarily by the number of indictments and convictions
obtained. Federal investigative agencies also are geared to track primarily criminal statistics. The tendency, therefore,
is to conduct a criminal investigation even if a case stands a better chance of success as a civil investigation. Consequently,
many qui tam cases have resulted in a government declination because they could not obtain enough evidence to prove a criminal
violation even though the case may have been successful in proving a civil violation.
Government Investigative Agencies:There are many federal investigative agencies of various types and missions. The
agencies established to investigate procurement and program fraud are the various Inspectors General (IG) organizations. The
IG Act was enacted by Congress in 1978 to establish an independent OIG (Office of the Inspector General) for each governmental
agency to detect, investigate and prevent fraud and abuse within that agency's programs and operations. The IG is appointed
by the President with the advice and consent of the Senate. As an example, the OIG for HHS investigates fraud within that
agency's Medicare, Medicaid and Social Security programs. The OIG for DoD investigates fraud by that agency's contractors
involving major weapon systems. Most qui tam actions are investigated by OIG investigators.
Government Investigators: As previously mentioned, most federal investigators, including OIG investigators, are
trained as criminal investigators and, as a result, conduct mainly criminal investigations. Within the OIGs, most procurement
or program fraud allegations referred to them are investigated as criminal cases. Thus, most federal investigators do not
have experience in investigating civil cases and the type of proof necessary to successfully prosecute such cases. This is
starting to change as more civil attorneys within the U.S. attorney offices become involved in directing qui tam investigations
as civil cases using federal investigator resources that were, in the past, not available to them. The most important factor
in the success of a government procurement and program fraud investigation is experience. These type of investigations are
very difficult to pursue and take considerable patience since most of these cases take years to investigate. It requires a
good understanding of the procurement system and the ability to analyze voluminous documents and ask questions on very complicated
issues. It can take years for a very capable investigator to obtain enough on-the-job experience to be successful in these
type of cases. Unfortunately, the experience level, as well as resources, within most of the federal investigative agencies,
especially within the OIGs, is declining due to major cutbacks. Some OIGs are being forced to cut as much as a third of their
investigators over the next three years that is being done mainly through attrition. This means that many experienced investigators
are retiring and not being replaced. The result will be that the federal investigative agencies that are normally tasked to
investigate qui tam cases will be doing so with fewer and less experienced resources. On top of that, government training
programs used to train inexperienced investigators are, by and large, worthless in providing the necessary skills to properly
investigate procurement and program fraud. Many training sessions teach outmoded, inefficient and irrelevant investigative
methods. Federal investigative agencies also use outmoded and inefficient methods in assigning and supervising caseloads -
assigning caseloads of difficult and complicated cases to each investigator instead of developing investigative teams utilizing
both experienced and inexperience personnel, and do not provide investigators with up to date equipment, support resources
and technology to make difficult and complicated cases more efficient to investigate.
Government Investigation: Even though an investigation can take on many forms, depending on the allegations
and the amount and quality of information provided by the relator, most cases, as a minimum, involve an interview of the relator,
corroborative witnesses and government procurement and program officials, and a review of records in the possession of the
government. In some cases, DoJ attorneys have insisted on controlling what investigative steps would be taken and have conducted
the interviews and reviewed some records on their own with the investigator tagging along only to take notes and write the
investigative report. Unfortunately, this has resulted in poor investigative techniques and the collection of very little
useful information. There are cases where a DoJ attorney has relied on the defendant for information regarding the allegations
that, not surprisingly, resulted in the allegations not being substantiated.
