THE FRAUD ENFORCEMENT AND RECOVERY ACT OF 2009 AND THE EXPANSION OF LIABILITY UNDER THE FALSE CLAIMS ACT

This Note proceeds in two main parts. Part II of this Note outlines the history of the FCA and the ongoing back-and-forth between the Supreme Court and Congress over the proper scope of liability under the Act before describing the changes made to the FCA’s subcontractor liability with the FERA amendments. Part III argues, first, that courts should interpret FERA’s retroactivity provision narrowly, applying the newly expanded liability only in cases where fraudulent requests for payment were pending on the retroactivity date. Second, Part III argues that retroactive application of the FERA amendments would violate the Ex Post Facto Clause of the United States Constitution because it punishes conduct that was not punishable at the time of its commission.