False Alarm? Early Tremors of January FCA Penalty Adjustments Followed by Silence from DOJ in Run Up to Change of Administration
UPDATE: DOJ released its annual penalty adjustment on February 2, two days after we put up this post. Click here to see our post about DOJ’s increased FCA penalties and their retroactive reach.
ORIGINAL POST: Earlier this month, we reported on the Department of Commerce’s inflation adjustments to the FCA’s penalties from between $10,781 and $21,563 per false claim to between $10,957 and $21,916. At the time, we expected that DOJ and the Railroad Retirement Board (“RRB”) would follow suit by January 15, the adjustment deadline in the statute. 28 U.S.C. 2461 note. While the Federal Register overflowed with penalty adjustments from other agencies for other penalties leading up to and shortly after January 15, to date DOJ and RRB have remained conspicuously silent about adjustments to FCA penalties.
Although we have nothing but the chirping of crickets to go on, our best guess for what has happened is that DOJ was overwhelmed with other regulatory obligations in the last days of the Obama Administration and simply ran out of time to issue regulations to adjust FCA penalties before the Trump Administration’s freeze on new regulations. That said, we expect that once the freeze is lifted, DOJ will issue its adjustments, given Jeff Sessions’ positive views on the FCA, provided that he is confirmed as our new Attorney General.