Background
Elizabeth Jacobson filed a whistleblower declaration with the Attorney General under the Financial Institutions Anti-Fraud Enforcement Act of nineteen ninety alleging fraud by Wells Fargo Bank. The Department of Justice determined her declaration was deficient and invalid, citing her participation in the fraud and the public disclosure of the allegations. Jacobson sued in the Court of Federal Claims, arguing the statute was money-mandating and that the non-reviewability provision violated the Due Process Clause. The Court of Federal Claims dismissed the complaint for lack of subject-matter jurisdiction based on the statute’s non-reviewability provision.
The court’s reasoning
The court applied a strong presumption in favor of judicial review but found that Congress provided a clear and convincing indication of intent to bar review in the Financial Institutions Anti-Fraud Enforcement Act of nineteen ninety. The statute states that no court shall have jurisdiction over any claim based on actions taken by the Attorney General under the subchapter, with a single exception for failure to provide notification. The court rejected the argument that the Court of Federal Claims must first determine if the statute is money-mandating under Fisher v. United States, noting that Fisher applies when jurisdiction is not explicitly stripped. Citing Supreme Court precedent, the court held that courts have discretion to choose among threshold grounds for denying a case and need not address money-mandating status when a statute explicitly precludes review. The court also found no Tucker Act jurisdiction for the Due Process challenge because the plaintiff did not plead an illegal exaction.
What it means going forward
The ruling reinforces the finality of the Attorney General’s determinations regarding whistleblower eligibility under the Financial Institutions Anti-Fraud Enforcement Act of nineteen ninety and limits the ability of plaintiffs to bypass non-reviewability provisions by arguing for money-mandating status or Due Process claims in the Court of Federal Claims.