Internal DOJ Memo Lists Reasons to Dismiss False Claims Act Cases
The Justice Department recently issued a memo detailing circumstances when its attorneys should seek dismissal of False Claims Act whistleblower lawsuits. In addition to the government’s ability to intervene on the whistleblower’s side in False Claims Act suits, the law also gives it the less commonly used ability to end cases, even without the whistleblower’s consent. According to the memo, dated Jan. 10, government lawyers should ask courts to dismiss False Claims Act suits in which the whistleblower’s claims are meritless or frivolous, or when the lawsuit is “parasitic or opportunistic” in that it duplicates an existing government investigation or the suit interferes with an agency’s policies or programs.
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Dismissal should also be requested if the whistleblower suit interferes with other government lawsuits, or when dismissal would safeguard confidential information and national security interests, preserve government resources or address “egregious” procedural errors, the memo said. The internal memo notes that courts have set differing standards on the government’s ability to dismiss False Claims Act cases, with the 9th and 10th Circuits holding that the government has to provide a valid reason, and the D.C. Circuit ruling that it does not.
The memo is meant to ensure a consistent approach” on when to seek dismissal of False Claims Act cases across the Justice Department, said a DOJ official in an emailed statement. “The memo incorporates factors that DOJ has historically used in seeking … dismissals to preserve the government’s limited resources and to avoid adverse decisions that affect the government’s ability to enforce the FCA,” the official said. “The memo also makes clear that it is important to be judicious in utilizing section 3730(c)(2)(A),” the statute that provides for the dismissal of False Claims Act cases. “The False Claims Act makes clear that relators can proceed with certain qui tam actions following the government’s declination. One purpose of the memo is to ensure that relators are not precluded from pursuing potentially worthwhile matters, and that dismissal should be utilized only where truly warranted.”