February 27, 2019

27 February 2019

District of Minnesota Decision Sides With Swift’s Interpretation of DOJ’s “Unfettered Right” To Dismiss A Declined Qui Tam Action

Since last year’s Granston Memo (discussed recently here and here), DOJ has actively sought dismissal of FCA cases that it believes do not serve the interests of the federal government.  DOJ’s power to do so derives from Section 3730(c)(2)(A) of the FCA, which provides that the Government “may dismiss” a relator’s action if the realtor “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.”  In United States ex rel. Davis v. Hennepin County, the court considered two questions about the scope of that statutory power:  (1) whether the government must first intervene in a case before moving to dismiss the action, and (2) whether the government must show a valid purpose and a rational relationship between dismissal and the accomplishment of its stated purpose.  The district court answered “no” to both questions and dismissed the relator’s suit.  In so doing, the court signaled its view that the Eighth Circuit would side with the D.C. Circuit in the split over the standard that applies when the government seeks dismissal under Section 3730(c)(2)(A) (the circuit split is discussed here and here).