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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
UNITED STATES OF )
AMERICA ex rel. )
CHARLES R. )
SHEPHERD, )
Plaintiff )
v. ) 25-cv-0428
FLUOR CORP., INC., )
Defendant )
Complaint
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4. Plaintiff Charles R. Shepherd is a private individual.
5. Plaintiff brings this action on behalf of the United States, for violation of the False Claims Act (“FCA”), 31 U.S.C. § 3729(a)(1)(A). Plaintiff sues as an eligible qui tam plaintiff under § 3730(d), authorized to pursue a private qui tam civil action under § 3730(b).
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11. Defendant submitted false claims for payment or approval to the federal government.
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Count I: Qui Tam Claim under False Claims Act, 31 U.S.C. § 3729
Substantive Law:
False Claims Act
28 U.S.C. § 3729
(a) Liability for Certain Acts.
(1) In General. Any person who—
(A) knowingly presents or causes to be presented, a false or fraudulent claim for payment or approval
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is liable to the United State Government for a civil penalty of not less than $ 5,000 and not more than $ 10,000, plus 3 times the amount of damages which the Government sustains because of the act of that person.
28 U.S.C. § 3730:
(a) Responsibilities of the Attorney General.—
The Attorney General diligently shall investigate a violation under section 3729. If the Attorney General finds that a person has violated or is violating section 3729, the Attorney General may bring a civil action under this section against the person.
(b) Actions by Private Persons.—
(1) A person may bring a civil action for a violation of section 3729 for the person and for the United States Government. The action shall be brought in the name of the Government.
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(d) Award to Qui Tam Plaintiff.—
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(2) If the Government does not proceed with an action under this section, the person bringing the action or settling the claim shall receive an amount which the court decides is reasonable for collecting the civil penalty and damages. The amount shall be not less than 25 percent and not more than 30 percent of the proceeds of the action or settlement and shall be paid out of such proceeds.
U.S. Const. art. II § 1:
The executive Power shall be vested in a President of the United States of America.
U.S. Const. art. II §:
[The President] shall take Care that laws be faithfully executed.
Seila Law LLC v. Consumer Financial Protection Bureau (2020): Article II vests the executive power—all of it—in a President who must “take Care” that the laws be faithfully executed. This requires the President, or a subordinate government officer from whom he seeks assistance, to make and control all enforcement of federal law. A law limiting the President’s control over a subordinate officer violates separation of powers.
United States ex rel. Polansky v. Exec. Health Res., Inc. (2023) (Thomas, J., dissenting): The False Claims Act provisions allowing private suits on behalf of the United States (“qui tam” suits) have long inhabited something of a constitutional twilight zone.
Chamber of Commerce of United States v. Lierman (2018): The constitutionality of a federal statute presents a purely legal question for judicial resolution. A defendant may raise the Constitution and constitutional defects in a federal law in defending itself against any civil action brought under and seeking to enforce that unconstitutional federal law. The court must analyze and compare relevant portions of the Constitution with the challenged law and decide whether the latter is consistent with the former.
You are counsel for Defendant. You want to challenge the constitutional validity of §§ 3730(b) and (d); your position is that the private suit infringes on the President’s Article II powers, particularly the Take Care Clause, in light of Seila Law and Justice Thomas’ dissent in Polansky. Discuss whether you can raise the issue in this civil action and the procedural mechanisms and strategies through which you can raise and have the district court rule on the issue.
