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Inaugural Law Review Cited to the United States Supreme Court

November 30, 2006

An article in the inaugural issue of Liberty University Law Review was cited five times by an amicus brief filed before the United States Supreme Court on November 21, 2006 in support of the respondents in the case Rockwell International Corp. v. United States. Liberty University School of Law Professor Joel D. Hesch wrote the article entitled, Restating the “Original source exception” to the False Claims Act’s “Public Disclosure Bar,” 1 Liberty U. L. Rev (forthcoming December 2006). The scholarly article has also been provided to each of the nine Justices of the Supreme Court and to counsel for all the parties.

Before coming to Liberty, Professor Hesch served over fifteen years as a trial attorney with the Civil Fraud Section of the United States Department of Justice (DOJ) in Washington, D.C. This office has nationwide responsibility for litigating significant fraud and False Claims Act (FCA) cases. The FCA contains unique qui tam provisions that permits a whistleblower (called the “relator”) to file civil lawsuits on behalf of the United States and to share in any recovery.

While at the DOJ, Professor Hesch led numerous fraud investigations affecting more than 20 different federal agencies. The cases he worked on recovered more than $1 billion from companies that cheated under federal contracts and programs. He personally worked on the Rockwell case for 15 years and was one of three DOJ trial attorneys that took the case to trial. After a six-week trial, a jury ruled in favor of the government, finding that Rockwell had submitted false claims for payment while managing the Rocky Flats Nuclear Weapons Plant near Denver, Colorado. The court ordered Rockwell to repay the government $4.1 million.

Rockwell’s appeal to the Supreme Court does not seek to overturn the finding of fraud, but, rather, argues that the whistleblower is not entitled to receive a share of the monetary recovery. The FCA does not generally require a relator to be an “original source” of the information. However, if the information concerning the fraud was publicly disclosed, the whistleblower must meet the FCA’s so-called “original source exception.”

Professor Hesch wrote the law review article restating the original source exception. The article sets forth a uniform standard for courts to follow in all qui tam cases where this rule is applicable. Specifically, his article argues that in circumstances in which the fraudulent activity was publicly disclosed, a whistleblower should still be entitled to a portion of the fraudulent recovery if the whistleblower had direct and independent knowledge of information that supports an essential element of the alleged fraud.

Mathew D. Staver, Dean of Liberty University School of Law, praised Professor Hesch for his insightful and scholarly work. “Professor Joel Hesch has quickly brought recognition to this Liberty University School of Law scholarly publication in our very first edition. His article provides a wealth of information and guidance to the Supreme Court.”

Oral arguments are scheduled for December 5, 2006, in the Rockwell case, and a decision by the Supreme Court is expected to be issued in the spring of 2007.

Click the link to view the advanced copy of the law review article.
A copy of the amicus brief citing the law review article is also available online.

For more information about Liberty University School of Law or about Liberty University Law Review, please write law@liberty.edu or call 434-592-5300.