Challenge to False Claims Act Secrecy Provisions, ACLU v. Holder (formerly, ACLU v. Mukasey)
Under the False Claims Act, originally enacted by President Lincoln to combat war profiteering and other ocntractor fraud against the federal government, private citizens are entitled to bring complains of fraud on behalf of the government. A 1986 amendment to the law requires that FCA complaints are automatically filed under seal and whistleblowers who file the complaints are gagged from speaking to anybody about them. The seal and gag are not lifted until the Justice Department decides whether it will pursue a complaint, which can be anywhere from 60 days to several years later. We filed suit on behalf of the ACLU and the watchdog groups the Government Accountability Project and OMB Watch, alleging that the secrecy provisions violate the First Amendment right to access the courts. The government filed a motion to dismiss. On August 21, 2009, the court granted the government's motion to dismiss. We appealed and filed our opening brief on November 9, 2009. Oral argument took place on September 21, 2010. On March 28, 2011, in a 2-1 decision, the Fourth Circuit Court of Appeals rejected arguments by the ACLU that the overreaching secrecy provisions of a federal whistleblower law violate the Constitution’s mandate for a transparent judicial system and free speech. The ACLU filed a petition for rehearing en banc that was denied on July 13, 2011.