In an interesting twist on the ongoing debate about the
respective powers of relators and the government in qui
tam suits, a relator recently took the bold step of seeking to
remove the United States entirely from a False Claims Act (FCA)
case. Not surprisingly, the court in United States ex rel. Day
v. Boeing, 2025 WL 992708 (E.D. Va. Apr. 2, 2025), rejected
this gambit and held that relators cannot prevent the Department of
Justice (DOJ) from intervening in an FCA qui tam action or
remove the United States as a party.
The relator brought this FCA action against Boeing and other
defense contractors, alleging that they engaged in an unlawful
"sole source" distribution scheme for certain proprietary
manufactured parts — a scheme in which the relator alleged
the Department of Defense (DoD) was knowingly complicit. DOJ filed
a c2A motion to dismiss over the relator's objections. Not only
did the relator oppose that motion, but in a first for us at
Qui Notes, the relator actually sought to remove the
United States from the case.
The court balked at the relator's request. The FCA does not
explicitly provide for a qui tam relator to remove the
United States after it intervenes — a statutory omission
that, in the court's view, could have ended the inquiry
standing alone. But other textual and contextual clues, along with
the Supreme Court's recent decision in United States ex
rel. Polansky v. Executive Health Resources, Inc., 599 U.S.
419 (2023), provided additional support for the court's
decision. The United States is the "real party in
interest" under the FCA and accordingly enjoys "uncommon,
even extraordinary, power" vis-à-vis a relator. The
government conducts the litigation upon intervention and may also
dismiss or settle any qui tam suit in which it intervenes.
The court observed that a relator's removal of the United
States would obviously interfere with this authority. Indeed, the
court reasoned that removing the United States and DOJ as its
counsel would likely be unconstitutional, pointing to the Supreme
Court's holding in Morrison v. Olsen, 487 U.S. 64
(1988), that the Executive must exercise sufficient control over
litigation brought in the United States' name.
In the end, the court granted DOJ's motion to dismiss on the
ground that it had proffered a "reasonable argument" for
dismissal. In particular, the court pointed to the relator's
untailored demand for every contract between DoD and the defendants
since 2003 and agreed that it imposed a substantial burden on the
government. While we do not anticipate seeing too many more cases
like this one, it is noteworthy given the hot issue of whether the
qui tam provisions are unconstitutional.
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