A Framework for Assessing Whether Civil Penalties Under the False Claims Act Violate the Excessive Fines Clause of the Eighth Amendment

Fraud is crippling government programs, such as Medicare and the military. The government’s primary enforcement tool is the False Claims Act (“FCA”), which not only requires that the defendant pay three times the amount of damages, but also mandates a civil penalty of not less than $5,000 and not more than $10,000 (with adjustments for inflation) per violation. Because civil penalties apply to each false claim, complex fraud schemes may result in a defendant being liable for hundreds or even thousands of civil penalties. This article analyzes when civil penalties (or a portion of treble damages) under the FCA violate the Excessive Fines Clause of the Eighth Amendment.

This article also gathers and discusses relevant case law and proposes a framework for assisting the government in requesting, and the courts in assessing, FCA recoveries, including civil penalties, that do not run afoul of the Excessive Fines Clause.