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“The Evolving Debate Over The Government’s Dismissal Authority Under The False Claims Act”

Does the Department of Justice have the authority under the False Claims Act to dismiss qui tam lawsuits without providing justification for doing so? Phillips & Cohen partner Claire Sylvia looks at recent appellate court decisions and provides some answers in an article for The Government Contractor.

This article reviews the background of the issue, recent appellate court attempts to grapple with it, and possible ways forward. While a legislative fix ultimately may be desirable, the statute already provides adequate tools for courts to evaluate dismissal requests based on the individual circumstances of a case. Courts can exercise that review without impermissibly infringing on the executive branch’s prerogatives, while ensuring that use of the dismissal authority does not undermine the FCA’s purpose of encouraging private investment in enforcement of the statute.

Although much of the debate over the dismissal provision is couched in concern for the constitutional prerogatives of the executive branch, the issue has received outsized attention for other reasons. Because the Government’s dismissal of a qui tam action ends the ability of a relator to pursue a case and the potential for dismissal significantly discourages private investment in such cases, it is another tool for [dismissing qui tam lawsuits]. 

Congress could clarify, but the existing statutory framework provides adequate tools — Given the lack of consensus among courts about Congress’s intent in requiring a hearing when the Government moves to dismiss a qui tam action, Congress could address this question … [but] allowing district courts, which are most familiar with the cases before them, to evaluate motions to dismiss—taking into account the unique circumstances of each case — is also likely to result in a sustainable equilibrium that discourages overzealous use of the dismissal authority in ways that undermine the FCA and does not intrude impermissibly on the executive branch’s powers.

Read Claire Sylvia’s entire article, “The Evolving Debate Over The Government’s Dismissal Authority Under The False Claims Act.” (Reprinted with permission.)

 

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