False Claims Act Injunctions | The University of Chicago Law Review

TABLE OF CONTENTS

Introduction

In a Civil War-era Senate speech, Senator Jacob Howard lamented “the frauds and corruptions practiced in obtaining pay from the Government during the present war.” “[F]urther legislation is pressingly necessary to prevent this great evil,” he said. So was born the False Claims Act.

With severe penalties and a unique enforcement mechanism, the False Claims Act is a powerful device through which the government can combat fraud. Yet this Essay argues that the False Claims Act is even more powerful than currently recognized. Well known is that the False Claims Act authorizes the government to obtain damages to remedy and punish fraud. But the government can also use the False Claims Act to do more: It can obtain injunctive relief. These False Claims Act injunctions can then be used as policy-advancing tools.

I. The False Claims Act

Today, the False Claims Act is the federal government’s primary tool for redressing fraud against the government. The Act’s reach is expansive. Congress used broad language that, among other things, prohibits “knowingly present[ing] . . . a false or fraudulent claim for payment” to the government. This broad language not only penalizes those who submit fraudulent invoices to the government but also extends to what the Supreme Court has called the “implied false certification” theory. This theory applies when someone “makes specific representations about the goods or services provided, but knowingly fails to disclose [his] noncompliance with a statutory, regulatory, or contractual requirement.”

And rather than merely compensate, the Act imposes penalties so significant that, as the Supreme Court has put it, “liability is ‘essentially punitive in nature.’” Those found liable are potentially on the hook for treble damages plus nearly $30,000 per false claim.

To bolster enforcement, the Act also deputizes ordinary citizens. The Act’s qui tam provision enables citizens to file suits “in the name of the Government.” In so doing, the Act effectively expands the government’s litigation team; not only can the government act to stop fraud against the United States, but citizens can too.

Despite the Act’s long reach, severe penalties, and unique enforcement mechanism, its text is not boundless: The False Claims Act does not explicitly allow the government to obtain equitable relief. Other statutes do. For example, the Fair Housing Act authorizes the Attorney General to seek “preventive relief, including a permanent or temporary injunction, restraining order, or other order . . . as is necessary to assure the full enjoyment of the rights granted by [the Fair Housing Act].”

II. Injunctive Relief as a Policy-Advancing Tool

That the Fair Housing Act provides for injunctive relief makes sense because injunctive relief can advance statutory goals. The Fair Housing Act, for example, was designed to affirmatively “provide . . . for fair housing throughout the United States.” Damages might not sufficiently do that. Damages are usually one-off payments to a specific plaintiff. For a large real estate developer, paying a few thousand dollars here and there might just be viewed as the cost of doing business.

Injunctions might better achieve the Fair Housing Act’s goal. “An injunction is a court order that directs a person to do something or to stop doing something.” For example, an injunction in response to a Fair Housing Act violation may prevent a landlord from refusing to lease to certain classes of people.

Redressing fraud—the False Claims Act’s goal—might seem like a clear case for damages. After all, if the goal is to recover the money and deter future noncompliance, damages should do the trick. Yet, for good reasons, the government might want to use the False Claims Act to obtain injunctive relief. For one, money is not the be-all and end-all. Sometimes, no amount of money—not even treble damages—can remedy and deter wrongdoing. Indeed, with the False Claims Act, a rational actor might choose to commit fraud if he estimates that he has a greater than 66% chance of getting away with it. At such odds and when facing treble damages, the efficient choice is committing fraud: If the probability of being caught is less than one-third, the expected penalty (three times the loss, discounted by the likelihood of enforcement) is lower than the expected payoff from cheating. And what if the wrongdoer does not have funds sufficient to cover treble damages? In such cases, the government may prefer injunctive relief to bankrupting the wrongdoer. And finally, the government might wish to use injunctive relief as a policy-advancing tool.

On this last point, consider Kousisis v. United States (U.S. 2025). In that case, “Stamatios Kousisis and the industrial-painting company he helped manage, . . . secured two government contracts for painting projects in Philadelphia. Both contracts required the participation of a disadvantaged business.” Kousisis never made good on that promise, but he lied to the government and certified that he did. I mention Kousisis not for its outcome—which was a criminal fraud prosecution—but for its fact pattern. The government routinely uses contracts to advance policy objectives—in Kousisis, the promotion of disadvantaged businesses. Those who flout those contractual obligations face False Claims Act liability under the implied false certification theory. Had the government been able to obtain injunctive relief under the False Claims Act, then in addition to punishing Kousisis, the government could have better advanced its goals. For instance, an injunction may have ordered Kousisis to use disadvantaged businesses in future construction work it performs for the government.

III. Injunctive Relief and the False Claims Act

That said, no scholar has addressed whether the government may use the False Claims Act to obtain injunctive relief. The most on-point discussion of the question in a law review article was relegated to a two-page subsection. And rather than analyze whether the False Claims Act authorizes injunctive relief, that discussion accepts as true the premise that it does not.

Nor has the government suggested—at least publicly—that it can use the False Claims Act to obtain injunctive relief. No currently available Office of Legal Counsel or Department of Justice memorandum explores the question.

Still, the False Claims Act’s potential as a policy-advancing tool has not gone unnoticed. For example, one scholar has suggested that the False Claims Act should be used to target civil rights violators. The federal government, too, has suggested doing the same: Deputy Attorney General Todd Blanche recently announced the Civil Rights Fraud Initiative, which will “utilize the False Claims Act to investigate and, as appropriate, pursue claims against any recipient of federal funds that knowingly violates federal civil rights law.” But both existing scholarship and the Blanche memorandum focus on obtaining monetary—not injunctive—relief. If scholars and the government are serious about leveraging the False Claims Act to pursue policy objectives, seeking injunctive relief must be on the table.

It makes sense to consider how the government might obtain that relief, and what that relief will look like. Injunctive relief is governed by traditional principles of equity. A plaintiff seeking an injunction must ordinarily show that legal remedies are inadequate, that irreparable harm has occurred, and that the balance of equities and public interest favor an injunction.

Any injunction must also be appropriately tailored. In the False Claims Act context, that limitation means that injunctive relief must be directed toward preventing future statutory violations—such as continued evasion of contracting requirements—rather than imposing punitive or free-floating obligations unrelated to the proven misconduct.

To understand what these False Claims Act injunctions may look like, consider some examples. Though the government has not made doing so a routine practice, on at least a few occasions, the government has sought injunctive relief in False Claims Act cases—both in those that settled and those that did not.

Start with cases that settled. When facing a lawsuit, defendants may “consent to a judgment, rather than have the [court] adjudicate the merits of the plaintiffs’ claims.” Doing so “result[s] [in] a fully enforceable federal judgment that overrides any conflicting state law or state court order.” As the Supreme Court has explained, “it is the agreement of the parties, rather than the force of the law upon which the complaint was originally based, that creates the obligations embodied in a consent decree.” For that reason, consent decrees may “provide[ ] broader relief than the court could have awarded after a trial.” So, as scholars have recognized, “[e]ven if a court cannot impose injunctive relief [under the False Claims Act], the parties are not precluded from entering a settlement that includes equitable components.”

Previous consent decrees prove the point. Consider United States v. GMS Management (E.D. Pa. 1996). In that case, the government alleged “that [the defendants] schemed to bill and collect from the United States of America for services associated with the care rendered to the elderly residents of [the defendants’ nursing home] when, in fact, that care was not adequate.” Ultimately, the parties settled, and the consent decree of course required the defendants to pay damages. But the consent decree also required the defendants to take action: The defendants agreed “to comply with the ‘Quality Assessment and Assurance Program-Nutritional Monitoring Program,’” “to provide wound care . . . treatment in strict accordance with the Agency for Health Care Policy and Research Guidelines,” and “to allow, at [one of the defendant’s] expense, a mutually-agreed upon (by the United States and [the paying defendant]) independent third party to monitor [the nursing home].” It is not hard to imagine a similar consent decree that would require Kousisis’s construction company to promote disadvantaged businesses in its future work for the government.

Of course, not all cases settle. On at least a few occasions, courts have addressed whether injunctive relief is available under the False Claims Act in cases that reach the merits stage. For the most part, courts have been skeptical, suggesting that such relief “may not [ ] be available under the [False Claims Act].” Indeed, I have not come across a case in which the government successfully obtained injunctive relief in a case resolved on the merits under the False Claims Act.

Even so, attempting to do so may not be a worthless endeavor. To begin, the mere threat of injunctive relief may provide more incentive for the defendant to settle, increasing the government’s False Claims Act winning percentage. Beyond that, because the government has rarely used the False Claims Act to seek injunctive relief, courts have not fully grappled with the question. If the government began routinely seeking injunctive relief, courts may begin awarding it.

There is reason to think the government might succeed. One court that declined to grant injunctive relief in False Claims Act cases did so not because the False Claims Act does not authorize it but because it determined that the case did not merit injunctive relief. In so doing, the court did not completely close the door on using the False Claims Act to obtain injunctive relief.

And scholarship suggests that, in the right circumstances, the government should be able to obtain equitable relief when someone violates the False Claims Act. Professors Samuel Bray and Paul Miller have explained that “[e]quity is not a creature of statute” and therefore a plaintiff can obtain equitable relief so long as he has “a good story, a real grievance, and a persuasive account of how [he] want[s] equity to do something . . . that equity does.” So, if the government can show that treble damages would not remedy the False Claims Act violation, it may then be able to obtain injunctive relief. That conclusion follows not despite the False Claims Act’s failure to mention equitable remedies but because of it: “Corrective equity . . . is concerned with remedying inequity in the exercise of legal rights or powers. Equity’s grievances stand apart from the deontic structure of liability at law precisely because they are triggers for modifications or departures from the outcomes otherwise dictated by that structure.”

Conclusion

The False Claims Act is powerful. It enables the government to deter, punish, and remedy fraud. But, to date, the full extent of the False Claims Act’s power has gone underappreciated. It can also be used to obtain equitable relief. And if scholars and government lawyers are serious about promoting civil rights (or other policy objectives), they should use False Claims Act injunctions as policy-advancing tools.

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Aaron S. Jacobowitz is a J.D. Candidate at The University of Chicago Law School, Class of 2027.