Howard Berman

Mr. BERMAN

Mr. BERMAN. I yield to the gentleman from North Carolina.

Mr. BERMAN. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I rise in support of H.R. 1761, the Copyright Damages Improvement Act of 1999. Consistent with the responsibility conferred on us by article 1, section 8, of the Constitution, we are required from time to time to assess the efficacy of our intellectual property laws in protecting the works of authors and inventors. Toward that end earlier this year the Subcommittee on Courts and Intellectual Property resolved to address several concerns which had been brought to our attention regarding the deterrence of copyright infringement and penalties for such infringement in those instances when it does unfortunately occur. The bill originally reported out by the Committee on the Judiciary was broader in scope than the bill before us today, and I supported that bill in its previous form, but we resolved to bring before this body a bill reflecting a consensus, and that is what we have done. I know of no opposition to the bill under consideration today. The bill has two key features. First the bill provides an inflation adjustment for copyright statutory damages. It has been well over a decade since we last adjusted statutory damages for inflation. Our purpose must be to provide meaningful disincentives for infringement, and to accomplish this the cost of infringement must substantially exceed the cost of compliance so that those who use or distribute intellectual property have an incentive to comply with the law. The inflation adjustments provided in H.R. 1761 accomplish that objective. Secondly, at a hearing held this past May, the Subcommittee on Courts and Intellectual Property heard evidence that the current sentencing guidelines for intellectual property crimes is not sufficiently stringent to deter such crimes. The subcommittee's conclusion ratified by the committee was that the current guideline with its reliance on the value of the infringing item should be replaced with a guideline based on the retail price of the infringed upon item. At the same time, as a result of quite productive discussions with the staff of the sentencing commission, we acknowledged the commission's ability to make reasonable adjustments, aggravating or mitigating, as appropriate. Mr. Speaker, I want to thank the chairman of the subcommittee for bringing this bill to the floor and for his consistent work in bringing bills to strengthen our intellectual property laws to the floor. Mr. Speaker, I yield back the balance of my time.

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, I rise today to pay tribute to my friend, Mike Riley, who is retiring after a 45-year career with the Teamsters Union. In his modest way, Mike has said that working as a union organizer is ``one of the few things I was good at that I liked.'' I don't know about his other pursuits, but I can say without hesitation that Mike is one of the best union representatives that I have ever known. Mike's union career began as an accident. He was working as a truck driver in San Francisco, recently back from a tour of military duty in Korea, when he attended a union meeting. The big issue that day was whether members should support an increase in dues from $3 to $3.50 per month. Mike thought the request was justified, especially since the union had recently negotiated a $2.50 per week increase for Mike and his co-workers. As it turned out, he was in the minority. From that point, Mike started to speak in favor of the union at the monthly meetings. His efforts caught the attention of union organizers, who asked him to join their ranks. He accepted the offer, and has never looked back. Mike has held many prominent positions with the Teamsters, including International Union Representatives, International Vice President, Chairman of the Western Conference of Teamsters and President of Teamsters Joint Council 42, the position he holds today. Mike estimates he has helped negotiate thousands of contracts and settle tens of thousands of grievances through the years. Mike counts among his proudest achievements obtaining early retirement--with full benefits--for eligible union members and helping to establish the Teamsters Miscellaneous Health and Welfare Plan, which provides medical, dental and vision benefits to an additional 25,000 Teamsters and their families. Although he was dedicated to the union, Mike did make room in his schedule to serve as member of the Board of Directors of Big Brothers of Greater Los Angeles. As the father of three sons (and three daughters), Mike knows better than most how important it is for a young man to have an adult male figure in his life. One of his sons is currently serving as a Big Brother. I ask my colleagues to join me in saluting Mike Riley, whose sense of compassion, commitment to economic justice and devotion to his family is an inspiration to us all. I am proud to be his friend.

Mr. BERMAN

Mr. BERMAN. Mr. Chairman, I thank my friend from California for yielding me this time. First, I would like to just say that the chairman and the ranking member and the entire Subcommittee on Foreign Operations, Export Financing and Related Programs have done an incredible job of trying to put together an equitable bill under really outrageous conditions where they have been told that they have a funding limit which constitutes a $2 billion reduction over the administration's request; a $700 million reduction over this year's appropriated level; and many, many billions of dollars in reductions over what funding levels were several years ago. So, I have no argument with the bill that they have presented, given the cards that they were dealt. I am here to urge support for the bill and an aye vote on final passage, but I do have to say that two things could make me change my mind if the bill came back from conference committee: one, with inadequate funding levels, without some relief from the conditions under which the Committee on International Relations were required to put this bill; and, secondly, were the amendment to be offered by the gentleman from New Jersey (Mr. Smith) to be adopted. In either one of those cases, I would think that at conference when the bill comes back from conference we should take a second look at this question, and my hope is that the administration, working with the appropriators, will deal with some of the critical shortfalls that do exist in this bill. And at the same time I have to say the bill fully funds the Camp David countries, Israel and Egypt; it provides a partial funding for Jordan under the Wye request. It is our understanding that the Wye request and the appropriations which I consider critically important will be dealt with at the time of the conference committees, whether they come from the 150 or the 050 account; but somewhere in the context of all of this, before this Congress leaves this year, we think it is very important that that should be funded. The increase in funding for child survival programs even in the context of the severe limitations is badly needed; the same with UNICEF. So I think there is a lot of important provisions in this bill. There are a lot of deficiencies. The gentlewoman from California has touched on a number of them. I would like to see more money in the refugee and migration assistance account, Peace Corps is underfunded, a number of other provisions; but I will not belabor that at this point.

Mr. BERMAN. Reclaiming my time, I appreciate the gentleman's offer. I plan to take him up on it. We can go either way in terms of this conversation.

Mr. BERMAN. I yield to the gentleman from Alabama.

Mr. BERMAN. Reclaiming my time, I say to the gentleman from Alabama I think he is super too, but I have to say if America is going to maintain its leadership in the world, a number of things have to happen. If we are going to continue to try and promote democracy and respect for human rights and development of human potential around the world, we have to put resources into this. I do not believe for a second that funding the foreign assistance at the level the administration has requested will in any way hurt our ability to continue to balance our budget, save Social Security, reform Medicare, and do the other things we need to do. This is small potatoes in the context of the whole budget, and let me just add one thing. The problem is we get ourselves into a cycle. Originally, the Committee on Foreign Operations was given an incredibly low allocation of $10.4 billion. The chairman with his valiant efforts, I assume, all of a sudden that level was $12.6 billion. That is much better, but our colleagues keep lowering, dashing our expectation so much.

Mr. BERMAN. I yield to the gentleman from Alabama.

Mr. BERMAN

Mr. BERMAN. Mr. Chairman, Radio Free Europe/Radio Liberty's remarkable response to the Kosovo crisis demonstrates why we need to continue to support this station at current or even enhanced funding levels. As you know, I have been a longtime supporter of RFE/RL both because of its contribution to the cause of freedom during the cold war and because of its continuing assistance to post-communist countries who are still struggling to complete the transition to democracy and free market economies. But RFE/RL's effort during the Kosovo crisis convinces me that we need RFE/RL now more than ever. As the crisis deepended last year, RFE/RL and in particular its South Slavic Service rapidly expanded their broadcasts to the region. In April, 1999 the Prague-based radios increased surge broadcasting in cooperation with other American and European stations to ensure that the Serbs received the kind of reliable information 24 hours a day that their government sought to prevent them from obtaining. And they set up an Albanian language unit that provided news to Kosovars both in that region and in the refugee camps. Our government and NATO commanders have praised RFE/RL's efforts, noting that just as in Bosnia, such broadcasting has helped to calm the situation, explain NATO's mission, and thus helped the alliance to overcome the resistance of those who had earlier opposed it. And perhaps even more important, those listening to these broadcasts have sent letters and e-mails pointing out that these broadcasts helped them to survive through a most difficult time. But despite these contributions, contributions that cost very little, many question why we should maintain RFE/RL when we also spend money to support the Voice of America. To my mind, there are several good reasons for this, all of which have been highlighted by the Kosovo crisis. First of all, RFE/RL's South Slavic Service is unique in broadcasting to all the peoples of the former Yugoslavia in different languages but with a common perspective on the need for peaceful, democratic development. RFE/RL did not broadcast to Yugoslavia during the Cold War. Had it done so, we might be facing fewer problems today. In addition, RFE/RL continues to be a ``home service'' for people whose governments often deny them the chance to have a free media. The Voice of America proudly presents America's position on the issues; RFE/RL makes sure that its listeners be they in Belgrade or in Kosovo have the information they need about their own country as well. These are complementary missions; we need both. And finally, in Eastern Europe, RFE/RL not only has real brand loyalty but also represents an important symbol of American concern about the region. People there continue to listen to RFE/RL because it provides reliable information that they need, and they see the existence of this station as reflecting America's longstanding commitment to freedom and democracy in their own countries. VOA also plays a role, and it also enjoys this kind of support. But in our time particularly, symbols matter, and RFE/RL's broadcasts remain an extraordinarily important one. Not only is RFE/RL effective in promoting our national interests, but it is remarkably efficient: It now broadcasts more hours each week than it did a decade ago when both its budget and its number of employees were three times larger than they are now. That is a record few other broadcasters or government agencies can match. And it is one that we should reward rather than punish, continue rather than stop. As the tragic events of Kosovo and NATO's recent military conflict with Serbia have demonstrated, the transition to a peaceful and democratic Europe is far from complete. We should support RFE/RL's vital work as we enter the 21st century.

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, I rise today to pay tribute to my good friend and colleague, Joanne Baltierrez, who retired earlier this year from a seat on the City Council of the City of San Fernando. Joanne had a distinguished five-year tenure on the council, including a one-year term as Mayor. While in office, she was a courageous, visionary and independent-minded public servant, who worked very hard to represent her constituents well and to make a real difference in the quality of life for the citizens of San Fernando. During her time on the City Council, Joanne compiled an impressive list of accomplishments for her constituents. She is especially and rightfully proud of her successful efforts to keep a Los Angeles county health clinic from moving outside of its San Fernando location. She did this in a particularly creative manner by arranging a land swap with the county that enabled the much-needed facility to remain within her city. Joanne also helped assemble a coalition with San Fernando Valley Neighborhood Legal Services, the San Fernando Police Department and the courts to provide counseling and shelter for victims of domestic violence. Another of Joanne's innovations was a series of town hall meetings to allow members of the Council to better gauge the needs and concerns of their constituents. Joanne has always given unstintingly of her time and talents to public service. Over the past decade, in addition to her work on the City Council, she has served as a recruitment coordinator for Los Angeles Mission College, Director of Community Services for the Volunteer Center of San Fernando Valley, Resource Coordinator for the Latin American Civic Association and Community Liaison for the Los Angeles County Department of Health Services. Now that she has retired from the Counsel, Joanne has entered a new phase of her career in politics, serving as the Executive Director of the League of Women Voters of Los Angeles. Joanne now puts her considerable abilities to work in representing the League throughout the community and promoting the growth of this highly respected organization through public relations and marketing strategies. I ask my colleagues to join me in saluting Joanne Baltierrez, whose commitment to her community and strong sense of justice are an inspiration to us all. I am proud to be her friend.

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, thirteen years ago, Congress passed the 1986 Amendments to the False Claims Act. They have been an enormous success. As the principal sponsors of those amendments, Senator Grassley and I are gratified to see how well they have worked. Recoveries to the United States Treasury pursuant to the False Claim Act have increased a remarkable 40-fold compared to the period before the amendments were adopted. More than $2.5 billion has been recovered to date from qui tam lawsuits, with half of that amount coming in the last few years. Another $3 billion in recoveries is anticipated from the pending cases the government has already joined. This exponential growth in recoveries to the Treasury is expected to continue. The biggest payoff however has been in the deterrence of fraud. An analysis by William L. Stringer, the former Chief Economist for the U.S. Senate Committee on Budget, has estimated the deterrence attributable to the qui tam provisions of the False Claims Act for the first 10 years (through 1996) is $35 billion to $75 billion. He estimates that the next 10 years will produce additional savings of $105 billion to $210 billion. Indeed, many believe that the substantial reduction in Medicare outlays in recent years is due in no small part to the effect these amendments have had in curtailing fraud. It is not an overstatement to suggest that there has been a cultural shift within companies that do business with the government. Because of the vigilance of the citizenry and the use of the qui tam provisions of False Claims Act, companies and entities are changing the way they do business with the government. Instead of developing strategies of ``revenue enhancement'' when dealing with the government, these same entities are developing new compliance programs to ensure that the government is not overcharged. This shift has occurred for one fundamental reason: The risks of getting caught, exposed and subjected to substantial penalties have grown tremendously as a direct result of the reinvigoration of the government's fraud enforcement caused by the 1986 amendments. This cultural change is very much what Senator Grassley and I hoped and expected would develop with the enactment of the 1986 amendments. We wanted to encourage, with appropriate incentives, the citizenry to the take us the fight against fraud perpetrated against our government. We had hoped to forge a public/private partnership to go after those who would deliberately overcharge (or underpay) the government. People who are insiders within companies and witness fraud, businesses that become aware of illegal practices by competitors, individuals who through their own investigative efforts turn up information of government overcharges (or underpayments) and, equally important, the private attorneys and law firms who work with the Justice Department and heavily invest their own time, resources, and expertise over many years these individuals, companies and attorneys have collectively turned the qui tam provisions of the False Claims Act into the single best example of privatization success. In the thirteen years since the 1986 amendments were adopted, more than cases have been filed. As a result, a substantial body of False Claims law has developed. I rise today to express the grave concerns that Senator Grassley and I have about judicial decisions involving one important provisions of the law: the ``public disclosure` bar. We have reviewed with dismay opinions of many courts that have misunderstood and therefore, misinterpreted what Congress intended when in adopted this provision. The courts' interpretations of the ``public disclosure'' bar are often in conflict with each other, resulting in great confusion. Worse, taken together these decisions many discourage many good cases from being filed, threatening to seriously undermine the effectiveness of the Act. Because of our concerns about judicial interpretation of the ``public disclosure'' bar, we wrote to Attorney General Reno to set forth our views in detail about this provisions and the various circuit court interpretations. We ask that the Department of Justice, as the government agency with primary responsibility for enforcing the False Claims Act, be especially vigilant in helping courts correctly implement the Congressional policy that underlies the ``public disclosure'' bar. We also believe that it would be useful for courts to understand what we as the principal authors of the law intended in creating the ``public disclosure` bar. By introducing our letter to Attorney General Reno into the Congressional Record, it is our intention to make it available to federal courts for guidance and perspective.

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, I submit the following for the Record: Hon. Janet Reno, Attorney General of the United States, U.S. Department of Justice, Washington, DC. Dear Madam Attorney General: As you know, we are the principal House and Senate sponsors of the 1986 Amendments to the False Claims Act, 31 U.S.C. Sec. 3729, et seq. (``the Amendments''). We have watched with pride the remarkable success of the amendments in bringing to the attention of the federal government hundreds of cases of fraud. We are particularly pleased with the qui tam provisions of the Amendments, which have resulted in cases that have returned $2.3 billion to the federal Treasury. With dismay, however, we have watched the federal courts interpret several sections of the Amendments in ways that directly contravene Congressional intent, and, of even greater significance, discourage and foreclose potential relators from bringing meritorious cases. In particular, we are extremely concerned with the courts' crabbed interpretations of the public disclosure bar-- Sec. 3730(e)(4)(A) and (B). That provision, which was drafted to deter so-called ``parasitic'' cases, has been converted by several circuit courts into a powerful sword by which defendants are able to defeat worthy relators and their claims. If this trend continues, we fear that the very purpose of the Amendments--``to encourage more private enforcement suits''--ultimately will be undermined. See S. Rep. No. 99-345, at 23-24 (1986). Thus, we believe it is imperative that the Department of Justice (``the Department'') adopt and adhere publicly to an interpretation of the public disclosure bar that comports with the plain meaning of the statute and the Congress' obvious intent. The Department's role in this regard is critical. First, of course, the Department is often involved as a party in cases where the public disclosure bar is raised, and it is entitled and expected to make its views known. Even in cases where the Department determines not to intervene, Congress intended for the Department to be involved in monitoring cases, in part to address questions significant to the ongoing operation of the statute. See e.g. Sec. 3730(c)(3) and (c)(4). Finally, as the agency charged, in effect, with the administration of the False Claims Act, the courts are likely to accord significant deference to the Department's interpretation of the Act, and we believe the Department has an obligation to the Congress and to the courts to articulate those views. With this letter, we intend to provide a detailed explanation of our view of the public disclosure bar, focusing in particular on some of the cases where we believe the courts have misinterpreted the law. In order to place that discussion in context, we want first to explain the origin and significance of the public disclosure bar so that the cases can be viewed in light of Congress' intent. The public disclosure bar is intertwined inextricably with the history of the qui tam provisions of the statute. From its enactment in 1863, the False Claims Act allowed a relator to bring a qui tam action even if the Government already knew of, investigated and even criminally prosecuted the identical fraud. Such parasitic suites, made infamous in the Supreme Court's decision in Marcus v. Hess, 317 U.S. 537 (1943), allowed relators to recover if they ``contributed nothing to the discovery of this crime.'' Id. At 545. To correct that obvious inequity, Congress enacted the government knowledge bar in 1943, which prohibited qui tam suits based on information in the Government's possession. The government knowledge bar, however, was interpreted too broadly by the courts. If information about fraud was in a file somewhere in the vast federal bureaucracy, a qui tam case was barred even if the government was unaware of the information in its files or had done nothing to pursue it. Indeed, one court held that even if it was the relator him or herself who had reported the fraud to the federal government, their case was precluded on the theory that the government had knowledge of the fraud before the relator filed their case. See, e.g. United States ex rel. State of Wisconsin v. Dean, 729 F.2d 1100 (7th Cir. 1984). The 1986 Amendment sought to restore some balance between these two extreme regimes. Unquestionably, Congress wanted to prohibit qui tam cases that merely copies a federal criminal indictment and to allow those in which the relator simply informed the government of their allegations before filing suit. But there is considerable terrain between these two poles, and it is here that the courts seem to get lost. The key to navigating the public disclosure bar successfully is understanding Congress' purpose is enacting the Amendments. Three goals inspired the 1986 Amendments. First and foremost, Congress wanted to encourage those with knowledge of fraud to come forward. Second, we wanted a mechanism to force the government to investigate and act on credible allegations of fraud. Third, we wanted relators and their counsel to contribute additional resources to the government's battle against fraud, both in terms of detecting, investigating and reporting fraud and in terms of helping the government prosecute cases. The reward to the relator is for furthering these goals. In reversing the old government knowledge bar, however, we wanted to continue to preclude qui tam cases that merely repackage allegations the government can be presumed already to know about because they were disclosed publicly either in a federal proceeding or in the news media. The reason is simple: if the relator simply repeats allegations that he or she heard from someone else and about which the government is already aware and taking action, the relator contributes nothing to the government's efforts to combat fraud. Accordingly, in the 1986 Amendments, we provided that a qui tam case is barred if the relator has based his or her filing upon publicly disclosed allegations unless the relator already has provided information concerning the allegations to the government before filing suit. Certain courts have exploded this limited bar in ways that mock the very purpose and intent of the 1986 Amendments. A recent case is illustrative. In United States ex rel. Jones v. Horizon Healthcare Corp., No. 97-1635, the Sixth Circuit Court of Appeals held that Ms. Jones' qui tam action was barred because, before she filed her case, she had filed an application for unemployment insurance with the Michigan Employment Security Commission. Her application stated that she had been fired after reporting to her supervisor at Horizon HealthCare that she believed several claims prepared for submission to Medicare were false. The Court held that Ms. Jones' unemployment application was a public disclosure within the federal government prior to filing her action, her suit was barred. In both its reasoning and its outcome, Jones strays far from the policies that underlie the public disclosure bar. First, as you know, 3730(e)(4)(A) specifically limits a public disclosure to ``allegations or transactions'' disclosed in a ``criminal, civil, or administrative hearing, in a Congressional, administrative, or Government Accounting Office report, hearing, audit or investigation, or from the news media.'' That list is exclusive, as many of the courts to have considered the question agree. See U.S. ex rel. Dunleavy v. County of Delaware, 123 F.3d 734, 744 (3rd. Cir. 1997) (recognizing the ``prevailing view is that this list constitutes an exhaustive rendition of possible sources.'') Only an absurdly broad definition of an ``administrative hearing'' would put an application for unemployment insurance on that list. And Congress did not intend to enact absurdities. We did intend, and any fair reading of the statute will confirm, that the disclosure must be in a federal criminal, civil or administrative hearing. Disclosure in a state proceeding of any kind should not be a bar to a subsequent qui tam suit. The reason is grounded in the history of the FCA and the policies underlying the 1986 Amendments that we just reviewed. One thing is common to the law throughout its history. It was the Federal Government's knowledge of fraud that triggered the government knowledge bar; it was the federal government's indictment in Marcus v. Hess that formed the basis of the parasitic suit. Thus, when it enacted the public disclosure bar in 1986, Congress was concerned about what the federal government knew about fraud, that is, whether the federal government had in its possession sufficient information to investigate and pursue allegations of fraud, and whether that information was sufficiently publicized so that the federal government would be forced to act or explain why it chose not to act. As was noted in the Senate Report on the Amendments: ``Unlike most other types of crimes or abuses, fraud against the Federal Government can be policed by only one body--the Federal Government.'' S. Rep. 99-345 at 7. To suggest that Congress was concerned with disclosure to anyone other than the federal government when it enacted the public disclosure bar is to ignore history. And to suggest, as the Sixth Circuit held in Jones, that disclosure of fraud to a state agency on an application for unemployment is likely to alert the federal government to fraud is to ignore common sense. \1\ --------------------------------------------------------------------------- Footnotes appear at end of letter. --------------------------------------------------------------------------- Unfortunately, Jones is by no means an isolated example. U.S. ex rel. Fine v. Advanced Sciences, Inc., 99 F.3d 1000 (10th Cir. 1996) is an equally egregious example of judicial overreaching. In Advance Sciences, the Tenth Circuit held, first, that the listed sources in Sec. 3730(3)(4)(A) were not the exclusive means of public disclosure--a holding which, as we have noted already, is simply wrong. The Court went on, however, to hold that a public disclosure occurs whenever the allegations or transactions are provided to any member of the public who is a ``stranger to the fraud.'' In Mr. Fine's case, the stranger was a representative of the American Association of Retired Persons counseling Mr. Fine with respect to a potential age discrimination claim. By public disclosure, we meant disclosure to the public at large, not just one member of the public and certainly not to a confidential counselor. U.S. ex rel. John Doe v. John Doe Corp., 960 F.2d 318 (2nd Cir. 1992), reached a similarly untenable result, holding that disclosure of a government investigation of fraud to the employees of the defendant corporation was during their interviews with government investigators a public disclosure within the meaning of the False Claims Act. Finally, in this regard, we want forcefully to disagree with cases holding that qui tam suits are barred if the relator obtains some, or even all, of the information necessary to prove fraud from publicly available documents, such as those obtained through a Freedom of Information Act (FOIA) request. See ex rel. Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 1520 (9th Cir. 1995), (finding that a public disclosure would occur only if the relator makes a FOIA request and receives the information requested). We believe that a realtor who uses their education, training, experience, or talent to uncover a fraudulent scheme from publicly available documents, should be allowed to file a qui tam action. Cases such as U.S. ex rel. Stinson, Lyons, Gerlin & Bustamante, P.A. v. Prudential Ins. Co., 944 F. 2d 1149, 1150 (3rd Cir. 1991), which held that a ``relator must possess substantive information about the particular fraud, rather than merely background information which enables a putative relator to understand the significance of a publicly disclosed transaction or allegation [,]'' undermine Congress' explicit goals. If, absent the relator's ability to understand a fraudulent scheme, the fraud would go undetected, then we should reward relators who with their talent and energy come forward with allegations and file a qui tam suit.\2\ This is especially true where a relator must piece together facts exposing a fraud from separate documents. The consequences of these decisions are alarming. Fraud may well go unpunished and, as a practical matter, undetected. Relators, like Ms. Jones, who are fired from their jobs because they blew the whistle on fraud and then take the not unreasonable step of applying for unemployment insurance will be told by their lawyers that their qui tam case is barred. Congress never intended to force relators to choose between filing a qui tam case and providing for themselves and their families. The Jones case highlights one aspect of the public disclosure bar that has been widely misinterpreted by the courts--the question of what constitutes public disclosure. Unfortunately, other issues involving the public disclosure bar also need to be addressed. A second issue concerns how much information needs to be disclosed in order to constitute a disclosure of ``allegations or transactions.'' On this question, some, but by no means all, of the courts have held appropriately that in order to trigger the bar, the disclosure must include all of the essential elements of the fraud against a specifically identified defendant. As the Eleventh Circuit observed in U.S. ex rel. Cooper v. Blue Cross and Blue Shield, 19 F. 3d 562, 566 (11th Cir. 1994): ``Requiring that allegations specific to a particular defendant be publicly disclosed before finding the action potentially barred encourages private citizen involvement and increases the changes that every instance of specific fraud will be revealed. To hold otherwise would preclude any qui tam suit once widespread--but not universal--fraud in an industry was revealed.'' See also U.S. ex rel. Lidenthan v. General Dynamics Corp., 61 F. 3d 1402 (9th Cir. 1995) cert. denied 517 U.S. 1104 (1996) (disclosures that make no mention of specific defendant insufficient to invoke bar).\4\ Not only must the particular defendant be identified, so too must all of the elements necessary to bring a fraud action. As the D.C. Circuit explained in U.S. ex rel Springfield Terminal Ry Co. V. Quinn, 14F.3d 645 (D.C. Cir. 1994), ``Congress sought to prohibit qui tam actions only when either the allegation of fraud of the critical elements of the fraudulent transaction themselves were in the public domain.'' Bits and pieces of information about a defendant and some of its actions--even when publicly disclosed--rarely add up to an allegation of fraud. There must be ``enough information * * * in the public domain to expose the fraudulent transaction.'' U.S. ex rel. Rabushka v. Crane Co., 40 F.3d 1509, 1513-14 (8th Cir. 1994) quoting Springfield, 14 F.3d at 65. To hold otherwise, as some courts have, would undermine the stated purposes of the False Claims Act. ``Embracing too broad a definition of `transaction' threatens to choke off the efforts of qui tam relators in their capacity as `private attorneys general.' By allowing [qui tam] complaint[s] to proceed beyond the jurisdictional inquiry, we help ensure that private actions designed to protect the public fisc can proceed in the absence of governmental notice or potential fraud. This is not the type of case that Congress sought to bar, precisely because the publicly disclosed transactions involved do not raise such an inference of fraud.''--Id., at 1514. The last issue we want to raise with respect to public disclosure concern the ``original source'' exception to the bar. The public disclosure bar applies ``unless the action is brought by the Attorney General or the person bringing the action is an original source of the information'' 31 U.S.C. Sec. 3730(e)(4)(A). Section 3730(e)(4)(B) defines ``original source'' as a relator with ``direct and independent knowledge of the information on which the allegations are based who has voluntarily provided the information to the Government before filing an action under this section which is based on the information.'' This provision, too, is a source of considerable confusion and controversy in the courts. Again, however, what Congress intended when it drafted the original source exception is easy to discern both from the statute itself and from its legislative history. First, the language of the statute makes plain that by ``original source,'' Congress meant an original source of information provided to the government and did not, as some courts have held, add an additional requirement that the relator also be the original source of the public disclosure that triggers the bar. See, e.g. U.S. ex rel. Dick v. Long Island Lighting Co., 912 F.2d 13 (2d Cir. 1990); U.S. ex rel. Wang v. FMC Corp., 975 F.2d 1412, 1418 (9th Cir. 1992). There is no statutory nor logical linguistic connection between an original source and the public disclosure that triggers the bar. Of course, a relator could be an original source of the information publicly disclosed, if the relator first provided the information to the Government. Nor is there any policy rationale that would justify such an interpretation of the original source provision. When Congress enacted the original source provision, we had in mind a scenario where an individual reports fraud to the government and then there is a subsequent public disclosure of the allegations or transactions before that person has filed a qui tam complaint. The disclosure could be, for example, a criminal indictment brought by the Government as a result of the relator's information. It could also be a press story, based on a leak from a Government investigation or an enterprising reporter's investigative skills. Under these circumstances, the relator would not be barred from bringing a qui tam case. To the contrary, he or she should be rewarded for bringing to the Government information about the fraud. Defendants have also sought the dismissal of relators by urging that ``direct and independent knowledge'' somehow requires the relator to be an eyewitness to the fraudulent conduct as it occurs. To the contrary, as the Eleventh Circuit concluded in Cooper v. Blue Shield of Florida, Inc., 19 F.3d 562 (1994) a relator's knowledge of the fraud is ``direct and independent'' if it results from his or her own efforts. For example, a relator who learns of false claims by gathering and comparing data could have direct and independent knowledge of the fraud, regardless of his or her status as a precipitant witness. In light of these policies, it should not be surprising that we support emphatically the courts that have held that Sec. 3730(e)(4)(B) does not require that the qui tam relator possess direct and independent knowledge of ``all of the vital ingredients to a fraudulent transaction.'' Springfield, 14 F.3d at 656-57. As Representative Berman explained, ``A person is an original source if he had some of the information related to the claim which he made available to the government . . . in advance of the false claims being publicly disclosed.'' 132 Cong. Rec. 29322 (Oct. 7, 1986). In closing, we want to urge you to consider seriously the Department's obligation to shape the courts' interpretation of the False Claims Act. We are frankly troubled by the fact that the majority of cases confronting the public disclosure bar are cases in which the Department has not intervened and in which there is no reference at all to the Department's views. To us, it appears that the courts take the Department's decision not to intervene in a case as a verdict on the merits of the relator's claims and are using the public disclosure bar in order to dismiss the case quickly. Even if some of those cases should be dismissed on the merits, we cannot countenance a tortured interpretation of the public disclosure bar to reach a desired result. Moreover, if the public disclosure provisions continue to be misinterpreted, relators and their counsel will be deterred from filing truly meritorious claims. Further, not all of the cases in which the public disclosure bar is raised are those in which the government has declined to intervene. Defendants make public disclosure motions after the government has joined a case, and they do so for only one reason: to deprive the government of the resources that relators and their counsel bring to the case. Yet in those cases, too, the Department is typically silent, refusing to take a position on the public disclosure issue. That stance, too, may well undermine Congress' expressed intent. One of the principal goals of the 1986 Amendments was to ameliorate the ``lack of resources on the part of Federal enforcement agencies.'' S. Rep. 99-345 at 7. That was one of the reasons we strengthened the qui tam provisions of the law. Thus, we expected some meritorious cases to proceed without the Government's intervention, and we fully expected that the Government and relators would work together in many cases to achieve a just result. By dismissing relators based on spurious interpretations of the public disclosure bar, the courts are depriving the government of these additional resources. And those resources have been considerable. In numerous cases, relators and their counsel have contributed thousands of hours of their time and talent and spend hundreds of thousands of their own dollars investigating and pursuing their allegations. The Department must act to protect those resources, even in cases where it has not intervened. When a question of statutory interpretation arises, particularly with respect to the public disclosure bar, the Department must make its views known to the court. As we stated emphatically at the time the Amendments were adopted, Congress enacted the Amendments based on the belief that ``only a coordinated effort of both the Government and the citizenry will decrease this wave of defrauding public funds.'' We continue to hold that view. Sincerely, Howard L. Berman, Member of Congress. Charles E. Grassley, U.S. Senator.

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, I rise to pay tribute to my dear friend, Joe Sandoval, who is leaving the city of San Fernando after 11 years to start a new business venture with his family in New Mexico. While I wish the very best for Joe, his wife, Anni, and their young son, Steven, his departure is a huge loss for the Northeast San Fernando Valley. As President of the San Fernando Chamber of Commerce, a successful businessman and outstanding leader, Joe has left an indelible mark on the community. He will be sorely missed. In 1988, Joe arrived in San Fernando and went to work as Branch Manager for the Hanford Group. Since then, he has held many important positions, including Director of Marketing at Mission Community Hospital in Panorama City, Community Relations Liaison for Medi-Ride, and President and Chief Executive Officer for the San Fernando Chamber of Commerce. In his 15-month tenure as Chamber President, Joe compiled a very impressive list of accomplishments. He has helped make the San Fernando Chamber of Commerce one of the most important business organizations in the Northeast San Fernando Valley. His considerable charm and business acumen enabled Joe to increase the membership of the Chamber and give it a visibility well beyond the city limits. Joe has given unstintingly of his time and resources to the City of San Fernando, not only as Chamber President, but also as Chairperson of the Miss San Fernando Pageant, First Vice President of the Kiwanis Club of San Fernando, Vice President of the Holy Cross Medical Center Century Club and a member of the board of Directors of the San Fernando Police Advisory Council. His distinguished service has been recognized by the presentation of many awards from the City of San Fernando, United Chambers of Commerce and the Sunland-Tujunga Chamber of Commerce. Joe was named the J. Leo Flynn citizen of the Year in San Fernando for 1991, and Business Person of the Year by the San Fernando High School Business Academy. I ask my colleagues to help me bid a very fond farewell to Joe Sandoval, whose personality, intellect and integrity have made him much beloved by his many friends in California. I wish Joe and his family the best in their new home.

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, my colleague, Mr. Frank of Massachusetts, and I are pleased today to pay tribute to Lieutenant Colonel Gary Anthony Correia, a man whose life exemplifies the meaning and spirit of leadership. Gary is being honored for 20 years of distinguished service in the United States Marine Corps. Gary has set an outstanding example for his colleagues in the Corps, where he has served with intelligence, skill and dedication. He is highly regarded by his peers as an involved, devoted and effective Marine. Gary is a man of action and accomplishment. A native of New Bedford, Massachusetts, he graduated from Boston College in 1979 at the top of his class and soon after began his military career. He was commissioned a 2nd Lieutenant through the Platoon Leaders Class program and following basic school, was designated a Naval Aviator. His hard work and tenacity paid off with his rapid advancement through the ranks. Gary's notable missions include the ``Flying Tigers'' of VT-26, ``Crusaders'' of VMFA-122, ``Aggressors'' of H& MS-31 and the ``Black Knights'' of VMFA-314. While assigned to the VMFA-314, he was deployed to Turkey for Display Determination and SWA for Operations Desert Shield/Storm from August 1990 to March 1991. Promoted to Major in July of 1991, Gary joined the 7th Marines. In December of 1992, he deployed as part of the Ground Combat Element to Mogadishu, Somalia for Operation Restore Hope where he was the Officer- in-Charge of a joint/combined multi-national security force and ten Non-Governmental Organization (NGO) that provided humanitarian relief to Mogadishu. His dedication to duty, his integrity and sense of fair play were demonstrated in his role as Executive Officer for a 48 aircraft F/A-18 Hornet Fleet Readiness Squadron, the largest in the Marine Corps/Navy inventory. Gary was instrumental in the squadron achieving over 140,000 hours of mishap free flight time, a first in the F/A-18 Hornet history. Lieutenant Colonel Correia has accumulated more than 3,600 mishap free flight hours. His personal decorations include Meritorious Service Medal and Gold Star, Air Medal w/combat ``V,'', Strike Flight 1, Navy Commendation Medal W/Combat ``V'' and the Navy Achievement. He is the 1st Cape Verdean Naval Aviator and Marine Aviator and the first Black American promoted to rank of Lieutenant Colonel that is an F/A-18 Hornet Pilot. He is married to Tracey, father to Chloe and Chase and the proud son of the late Joseph and Eva Correia. It is our distinct honor to ask our colleagues to join us in saluting Lieutenant Colonel Gary Anthony Correia, a man whose dedication and achievements are a credit to our country.

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, I was unable to cast a vote on final passage of H.R. 1658, the Civil Asset Forfeiture Reform Act. Had I been present, I would have voted ``aye.''

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, I was unable to cast a vote on final passage of H.R. 2122 because I had to catch the last available plane to Los Angeles to attend my daughter's graduation ceremony at 6:00 p.m. Pacific time. However, had I been present I would have voted ``no.''

Mr. BERMAN

Mr. BERMAN. Mr. Chairman, reserving the right to object, how much time does each side have remaining?

Mr. BERMAN. Mr. Chairman, if I might inquire of the gentlewoman, the unanimous consent request would allow how much more time?

Mr. BERMAN. Mr. Chairman, the Constitution, as far as I know, does not say, Congress shall pass no law abridging the manufacture, the marketing, the distribution or the sale of potato chips or cigarettes.

Mr. BERMAN. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, I ask the gentleman from Colorado (Mr. McInnis) if he would remain at the lectern and answer questions on my time. Does the gentleman know the name of the manufacturer of that video game?

Mr. BERMAN. Mr. Chairman, I object.

Mr. BERMAN. Mr. Chairman, I yield 2 minutes and 15 seconds to the gentleman from Michigan (Mr. Conyers), our ranking member.

Mr. BERMAN. Mr. Chairman, I yield 3\1/2\ minutes to the gentlewoman from California (Ms. Pelosi).

Mr. BERMAN. Mr. Chairman, could I inquire as to the remaining time on both sides?

Mr. BERMAN. Mr. Chairman, will the gentleman yield?