Dead Men Telling Tales: A Policy- Based Proposal for Survivability of \u3ci\u3eQui Tam\u3c/i\u3e Actions Under the Civil False Claims Act

More than a century after its birth as a fraud-fighting tool during wartime, the Civil False Claims Act continues to pique the imagination and fuel dreams of bounty and glory for both publicly anointed fraud-fighters and private persons who are authorized to sue on behalf of themselves and the Government under the Act’s unique qui tam provisions. Part II of this article discusses the current version of the Act and its evolution from its original 1863 version. Part III discusses the historical common-law test for determining whether an action based on a federal statute survives or abates upon the plaintiff’s death. It then discusses the special problems of applying this test to the Act, caused by the dual remedial and penal nature of the Act, and the complex relationship between the qui tam relator and the Government as plaintiffs in cases brought under the Act. Part IV discusses the unique provisions of the Act that limit the courts’ subject matter jurisdiction in certain cases, and the effect those provisions have on the survivability analysis. Part V proposes adopting a simpler, policy-based test for survivability of a qui tam action under the Act, and explains why, under this test, such cases should survive the death of a relator, except in the rare case where the court cannot establish its subject matter jurisdiction, or the defendant is so severely prejudiced by the absence of the relator that principles of federal civil procedure require that the case be dismissed