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13 J.L. Econ. & Pol'y 113 (2017)
Redefining Lincoln's Law: How to Shape the Theory of Implied Certifications Post-Escobar

handle is hein.journals/jecoplcy13 and id is 117 raw text is: 


20171


  REDEFINING LINCOLN'S LAW: HOW TO SHAPE THE
THEORY OF IMPLIED CERTIFICATIONS POST-ESCOBAR


                                 Doan Phan*



INTRODUCTION

     The False Claims Act (FCA) creates a civil cause of action for the
Attorney General or a qui tam' relator against people who commit certain
fraudulent acts against the U.S. Federal Government.2 In recent years, the
FCA has been used to deter and punish government-contracting fraud
across a number of industries, including defense, health care, for-profit
higher education, and mortgage lending and financial services.3         What
contributed to the popular use of the FCA is its imposition of civil liability
on a person who knowingly submits a false or fraudulent claim for pay-
ment or approval to the government.4 Initially, the courts applied this pro-
vision of the Act to claims that contain an express false certification of
compliance.' However, in 1994, the U.S. Court of Federal Claims became
the first court to recognize the theory of implied false certification.6 The
theory of implied false certification is similar to the theory of express false
certification, except that a defendant has not signed an express certification
of compliance with a statute, regulation, or contract clause.7 Rather, the
theory of implied certification provides that, by submitting a claim, the con-
tractor implicitly certifies that he has complied with all applicable statutes,
regulations, and contract clauses.8 Thus, according to the implied certifica-

       J.D. Candidate 2017, George Mason University School of Law.
     Qui Tam under the False Claims Act allows a private individual to bring a suit on the govern-
ment's behalf. The private plaintiff in the case is referred to as a relator. 31 U.S.C. §§ 3730(b)(1),
(c)(3), (d) (2010). See also United States ex reL Batty v. Amerigroup Ill., Inc., 528 F. Supp. 2d 861, 871
(N.D. Ill. 2007).
    2 See 31 U.S.C. §§ 3729-3733 (2009).
    3 Christopher L. Martin, Jr., Reining in Lincoln's Law: A Call to Limit the Implied Certification
Theory of Liability Under the False Claims Act, 101 CAL. L. REV. 227, 229 (2013).
    4 Id. at 230.
    5 United States ex rel. Wilkins v. United Health Grp, Inc., 659 F.3d 295, 305 (3d Cir. 2011)
(explaining that the express false certification theory of liability applies when an entity is liable under
the Act for falsely certifying that it is in compliance with regulations which are prerequisites to Gov-
ernment payment concerning payment of federal funds).
    6 See Ab-Tech Constr., Inc. v. United States, 31 Fed. Cl. 429, 434 (1994) (The payment vouch-
ers represented an implied certification by Ab-Tech of its continuing adherence to the requirements for
participation in the 8(a) program.).
    7 United States ex. rel. Mikes v. Straus, 274 F.3d 687, 699 (2d Cir. 2001).
    8 Id.

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