United states and halper and john g roberts and 1988 and qui tam

A prescient observer might well have divined that when thirty-three year-old John Roberts was "invited" by the US Supreme Court to represent a person (Halper) who had won a victory in the District Court but was in need of Supreme Court counsel, and when Roberts not only won a victory at the Supreme Court for Halper but got the Court to change its rule of law to accommodate Halpe--a rule which, within a decade, was reversed by the Court to the status quo ante--Roberts was destined for great things. This essay describes the Halper case briefly and concludes that the Court probably adopted the rule Roberts proposed because of its seeming reasonability, despite the fact that it went against the weight of previous Supreme Court precedents.

A Qui Tam Action

For this crime he served a time in jail and had to pay a $5,000 Roberts represented a client, Irwin Halper, who was convicted in 1985 of criminal medicaid fraud against the United States because he knowingly entered the incorrect code number on reimbursement sheets, thus enabling him to get a maximum of $12 per claim rather than $3 per claim. fine. After his prison sentence was served, the US brought a civil action, as provided by statute, allowing a recovery of up to $2,000 per violation as well as double damages suffered plus the cost of the civil suit. The statute under which the latter action was brought is known as a "qui tam" statute-- which permits an action to be brought by an informer (in the name of the state), with part of the penalty going to the person who brought the action and the remainder going to the state. The qui tam provision thus has the effect of privatizing government legal remedies by allowing citizens to act as "private attorneys general." Almost no one knows what qui tam stands for, so I will give it to you here. The complete Latin phrase is "qui tam pro domino rege quam pro sic ipso in hoc parte sequitur," which can be rendered, "who as well for the king as for himself sues in this matter." Glad you know this?

At the Supreme Court

Let's begin briefly with the action at the District Court. Since the government alleged 65 fraudulent actions by Halper, where he possibly gained as much as $9 per action, the government sued for $130,000 ($2,000 per claim) as well as double the government's actual damages ($585) and court costs. The District Court awarded summary judgment to the government (based on the previous results in the criminal trial), but decided that imposition of the full amount of the fine would amount to a further punishment of Halper in violation of the double jeopardy provision of the US Constitution. Thus, the lower court assessed a $16,000 fine against Halper, which it thought would cover the government costs of prosecuting the case. The Government sought reconsideration, however, because, as they contended, the $2000 per offense language was not optional, as the court seemed to think, but mandatory. The court agreed with the Government but concluded that an assessment of a $130,000 fine would amount to a double jeopardy violation (because it would be a penalty rather than a remedial fine), and so lowered the "fine" to about $1,200. The appeal to the Court followed.*

[*I am not sure why this case didn't have to go to the Ct of Appeals first. Perhaps the statute allows direct appeal from the District Court decision. Anyone know?]

The Court issued an "invitation" late in 1988 to Roberts to take the case, an invitation which he, a young practitioner with Hogan & Hartson in Washington, D.C. couldn't refuse [It was, after all, in the form of an order]. Roberts was known to the Justices, since he had clerked for then-Justice Rehnquist in the early 1980s and, after that, spent five years working for the Reagan AG or in the White House before going into private practice in 1986.

Roberts framed the issue in the most favorable way to his client. He had several precedents working against him which the Government argued strenuously in its briefs. Those precedents suggested that the point of central importance for a court in determining whether a double jeopardy claim was valid was the form of the statute under which a person was convicted or found liable. If a person was convicted first under a criminal and then under a civil statute, he cannot, by definition, sustain a double jeopardy challenge.

Roberts, in contrast, looked at one of these precedents and decided to examine closely at the language used by Justice Felix Frankfurter in concurrence. Frankfurter suggested that what was at stake in double jeopardy prosecutions was not necessarily the form of the statute but whether the penalty meted out to the defendant bears a reasonable relationship to the extent of the Government's loss. By using this slight opening, Roberts created a sort of intellectual wedge, and argued that this principle, rather than a per se rule, should guide the Court.

Conclusion

The Court unanimously agreed and decided to adopt this new test suggested by Roberts (it really was the basis of the District Court's ruling). If the recovery sought by the Government is out of proportion to the loss it suffered, it would become a penalty and thus would be disallowed if the person had already been tried in a criminal suit on the same matter. However, as indicated above, the Court eventually decided to dispense with this test in 1997 (US v. Hudson), returning to the pre-Halper per se test. One might argue that the admittedly unusual facts of Halper made the Court's decision a reasonable one but it certainly didn't hurt that John Roberts had cleverly quoted Justice Felix Frankfurter for his more relaxed rule.

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