by bvernia | November 5th, 2009
SD Ohio District Judge Thomas Rose issued a ruling on October 27 concluding that the Fraud Enforcement and Recovery Act of 2009’s (FERA) amendments do not, and cannot constitutionally apply to the case. Congress passed FERA in part to override the Supreme Court’s decision in the very same case, US ex rel. Sanders v. Allison Engine Co., Inc., 128 S.Ct. 2123 (2008). The Court, following the D.C. District’s decision in US v. Science Applications Int’l Corp., reasoned that when Congress made FERA’s amendments retroactive to “all claims [under the FCA] that are pending on or after [June 7, 2008],” the word “claims” referred to claims under the FCA, i.e., defendants’ requests for payment, and not to “cases” pending then.
Even if Congress wanted to make its FCA amendments retroactive, the Court reasoned in the alternative, it couldn’t do so without violating the Ex Post Facto clause. Focusing on Congressional Record statements of Senators Leahy, Grassley, and Reid, and setting aside Committee statements concerning the remedial nature of the FCA, the Court concluded that Congress intended the Act to be punitive. (And that, even if it hadn’t, it as punitive in purpose or effect.) For these reasons, applying the 2009 changes retroactively would violate the Ex Post Facto clause.
