Since the beginning of the Trump Administration, and particularly in the last six months, the Justice Department has been exercising its authority to dismiss qui tam False Claims Act (FCA) cases with increasing frequency. As relators have challenged the government’s efforts, disputes over the scope of the government’s dismissal authority have arisen in at least a dozen cases in seven districts around the country, and one of the disputes has already reached the Ninth Circuit. These fights not only reflect the key considerations driving government dismissal motions, but also raise fundamental legal issues about control over qui tam litigation—issues that are now likely to be decided by many courts of appeals and, perhaps as early as next year, by the Supreme Court.

Those issues include:

  1. How deferential should courts be in acting on government motions to dismiss?
  2. What kind of evidentiary showing, if any, must the government make to establish that dismissal would advance a legitimate governmental purpose?
  3. If the government moves to dismiss after the court has denied the defendant’s motion to dismiss for failure to state claim, how should that affect the court’s resolution of the government’s motion, particularly if it rests in part on the government’s determination that the claims are meritless?
  4. What must a relator establish to show that the government’s dismissal effort is “fraudulent, arbitrary and capricious, or illegal”?