Stephen_Wood_03032014Stephen A. Wood, Chuhak & Tecson, P.C.

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The False Claims Act confers upon the U.S. Department of Justice the express authority to seek dismissal of cases brought under the qui tam provisions of the Act.  Historically, the Department has exercised its dismissal prerogative exceedingly rarely, usually when the qui tam action disserved the DOJ’s or the affected agency’s interests in a significant way.  In 2018, the DOJ adopted a policy on dismissal of qui tam cases that attempts to standardize the use of this authority across the Department, identifying specific criteria by which to evaluate cases for dismissal.  These criteria by and large involve various circumstances that threaten or at least challenge government interests in some way.

In light of the significant numbers of qui tam cases that fail to make it past summary judgment, however, and the burdens associated with those cases, borne not just by federal agencies, but other involved parties and the courts, the DOJ should do more to seek dismissal of cases that lack merit.  In this sense, the DOJ’s policy on dismissals, although a step in the right direction, falls short of fostering a gatekeeping function that serves interests beyond those of the DOJ and other executive agencies.  A look at a recent example of the DOJ’s failure to pursue dismissal in a case where the evidence reflected lack of merit illustrates the costs of failing to dismiss and should inspire a new, more aggressive approach to the use of this authority.