United States: DOJ Memorandum Supports Government Dismissal Of Qui Tam False Claims Act Cases

In a recent memorandum, the US Department of Justice provided guidance to its attorneys on when they should seek dismissal of False Claims Act cases filed by relators. This appears to be the first directive advising DOJ attorneys of when they should consider filing motions to have qui tam actions dismissed, and the memo’s contents could be welcome news for defendants currently involved in qui tam litigation.

In a memorandum dated January 10, Michael D. Granston, director of the Commercial Litigation Branch of the Fraud Section in the US Department of Justice’s Civil Division, articulated a policy to attorneys in the branch and all Assistant US Attorneys handling False Claims Act cases that they should seek dismissal of certain qui tam actions instead of merely declining to intervene. The Department memo memorializes statements that Mr. Granston made during the Health Care Compliance Association’s Health Care Enforcement Compliance Institute in Washington, DC in late October.

While the Department has always had the ability to seek dismissal of qui tam cases under Section 3730(c)(2)(A) of the False Claims Act, it has rarely exercised this right in the past, instead choosing only to decline to intervene. The Department’s policy change is an effort to curb the number of nonintervened qui tam cases for which the Department must expend resources and monitor. This has become especially important, considering there has been an uptick in qui tam filings while the rate of government intervention has remained static. It is also important in light of the growing trend of relators litigating nonintervened qui tam cases. 

Section 3730(c)(2)(A) of the False Claims Act

Although rarely used, Section 3730(c)(2)(A) of the False Claims Act permits the attorney general to dismiss a qui tam action over a relator’s objection if “the person has been notified by the Government of the filing of the motion and the court has provided the person with an opportunity for a hearing on the motion.”1 The False Claims Act does not provide a standard for deciding when to dismiss a qui tam action at the Department’s request. Only two circuits have proffered such a standard: The US Court of Appeals for the Ninth Circuit requires the Department to identify a “valid government purpose” that is rationally related to dismissal, while the US Court of Appeals for the DC Circuit has held that the Department has an “unfettered right” to dismiss a qui tam action. Unsurprisingly, the Department memo endorses the “unfettered” discretion standard offered by the DC Circuit, but recommends that attorneys argue that the government’s basis for dismissal satisfies any potential standard for dismissal under Section 3730(c)(2)(A).

The Seven Factors

The Department memo identifies seven nonexhaustive factors that Department attorneys should consider when evaluating whether to seek dismissal of a qui tam action under Section 3730(c)(2)(A). These factors are not mutually exclusive, and the Department advises that relying on more than one factor for dismissal is often appropriate along with other familiar grounds for dismissal in False Claims Act cases (e.g., the first-to-file bar).

The Department advises that seeking dismissal may be appropriate where

  1. the relator’s legal theory is inherently defective or the factual allegations are frivolous, even if the complaint is not facially deficient;
  2. the case provides no new information to a duplicative, preexisting government investigation, and dismissal would prevent an “unwarranted windfall” to the relator, who has added no value to the investigation;
  3. the case may have the effect of obstructing an agency from administering its policies or programs, including if a suit could divert resources of the accused away from their work or cause a valuable supplier to exit a government program;
  4. the case may interfere with the Department’s litigation prerogatives, including the fact that the relator’s action may interfere in the government’s own ongoing litigation or attempts at settlement, or a risk that pursuit of the action may lead to an unfavorable precedent;
  5. the case may implicate classified information or matters of national security, and dismissal is necessary to prevent disclosure of such information;
  6. the Department’s expected costs in participating in the case, even in a limited way, are likely to exceed any expected gain, including the costs that would be associated with discovery needed from the government if the action were allowed to continue and the risk of the government becoming liable for defense costs if the defendant were to prevail; or
  7. the relator has obstructed the government’s ability to adequately investigate the claims, e.g., where the relator has failed to disclose facts to the government.

These factors are accompanied by citations to cases in which the Department has successfully and unsuccessfully sought dismissal pursuant to each factor, and where applicable, under the different standards of review.

Other Considerations

The memo closes with other points that Department attorneys should consider when seeking dismissal under Section 3730(c)(2)(A), like advising the affected agency in advance of seeking dismissal and considering partial dismissal in appropriate cases.

The memorandum appears to encourage government attorneys to seek dismissal earlier in a case, if possible, because courts may disfavor such motions that have not been filed until the end of discovery or shortly before trial. Nonetheless—and of interest to defendants in ongoing qui tam litigation in which the Department’s intervention decision has since passed—the Department advises that dismissal may nevertheless be appropriate at a later stage. In the memo, the Department explains that such a reevaluation may be particularly warranted when there has been a significant intervening change in the law or evidentiary record.


The memo represents a significant shift in the Department’s attitude toward its role as gatekeeper to reduce the number of meritless or otherwise problematic qui tam cases that continue past the Department’s decision not to intervene. On its face, the memo directs Department attorneys to exercise a rarely applied right under the False Claims Act to dismiss qui tam cases instead of merely declining to intervene.

For parties involved in ongoing qui tam litigation and for those who may become involved in a future action, the memo provides a roadmap for discussion with the government attorneys handling those matters and empowers those government attorneys to seek dismissal. For parties involved in qui tam cases where the Department has declined to intervene, this memo provides a rare opening to request that the Department seek dismissal, particularly if there has been a significant change of law after the declination, like the US Supreme Court’s decision in Universal Health Services, Inc. v. US ex rel. Escobar2; if there have been unique developments in the factual record; or if the case implicates other factors outlined in the memo.


1 31 U.S.C. § 3730(c)(2)(A).

2 136 S. Ct. 1989 (2016). 

This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions