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The Department of Justice at Work

This blog post was written by Washington, D.C. whistleblower lawyer Tony Munter.

The shutdown has in fact slowed down the Department of Justice, but we just learned that some officials of the government are back on the job as a direct result of successful False Claims Act cases.  This is because there is at least one fund the DOJ can access, as a result of money collected under the Act.  So some lawyers who would otherwise have to sit home not doing the nation’s business are back at work. In as much as Congress just voted to grant federal employees back pay, when they do finally figure out how to re-fund the United States government, it hardly saves any money to keep anyone at home.  In the case of attorneys working on False Claims Act cases it is particularly counterproductive.

There are relatively few attorneys who have the responsibility for the complicated task of overseeing the cases that get filed under this law. Keep in mind that there is no such thing as a “simple” False Claims Act case.  Government contracts are complex and people don’t file cases unless they involve a lot of money, so the government needs all hands on deck at all times in order to be successful.  Even if a Department of Justice lawyer needs to simply read the case to get rid of it as a frivolous matter today, that frees up more resources to work on a meritorious case next week. We would argue, however, that there are very few cases filed under this law which are frivolous.  One generally needs a whistleblower lawyer even to file a case under the False Claims Acts, and most such cases are filed on a contingent fee basis. Lawyers are reluctant to file contingent fee cases if they don’t see merit in the case.

The idea of saving money by sending home a Department of Justice lawyer who might have a docket of several billion dollars’ worth of False Claims Act cases to oversee, and thereby slowing investigations these cases, is nuts.  It may be no less nuts than any other aspect of the shutdown, but since it happens in relative obscurity it is worth highlighting here.

At least today we have a little good news that some people may be back at work based on the special accounts the Department can use.  Of course, if Congress does not act and those funds run out, the Department will be back at square one.

It is hard to know what, if anything, makes sense in terms of shutting down the government. Certainly laying off DOJ lawyers with responsibility for False Claims Act cases does not.