On September 18, the Justice Department announced that its attorneys should evaluate dismissal when declining to take over a False Claims Act whistleblower case. If they leave the case running, they can revisit that assessment as litigation proceeds.
A decision to stay out of a lawsuit can sound like the end of the government’s involvement. It is not. DOJ can later join the case to ask the court to terminate it, even over the whistleblower’s objection.
The announced policy revision brings a second question into the declination decision: should the government leave this case for the whistleblower to pursue, or should it seek to stop it?
Those are different judgments. A case that DOJ chooses not to prosecute is not necessarily a case it believes should end.
Declining Leaves the Whistleblower a Role
The False Claims Act permits a private person, known as a relator, to sue on the United States’ behalf. The government investigates and decides whether to intervene. If it declines, the relator generally can continue the action.
That structure allows a whistleblower to pursue government claims without DOJ assuming responsibility for the litigation. But the suit still concerns the government’s alleged injury and is brought in its name.
Continued litigation can therefore affect the United States even when its lawyers are not prosecuting the case. The government can face discovery demands, costs, and consequences for the administration of its programs.
DOJ Already Had Authority to Seek Dismissal
In United States ex rel. Polansky v. Executive Health Resources, the government initially declined a suit alleging Medicare overbilling. Years of discovery followed. DOJ then concluded that the burdens outweighed the potential value and sought dismissal.
The Supreme Court’s 2023 decision confirmed that DOJ can exercise this authority after intervening, either initially or later. Later intervention requires good cause. The relator receives notice and an opportunity for a hearing. Courts apply Federal Rule of Civil Procedure 41(a), which governs voluntary dismissal, with substantial deference to the government’s assessment.
This is not a power to close a case by administrative announcement. DOJ must follow the applicable process, and the court determines whether dismissal is appropriate. That determination is highly deferential in practice. The Court said a district court should think several times over before denying such a motion, and that the government should prevail absent some extraordinary circumstance.
The September development did not create that authority. It directed a more systematic assessment of when to use it.
Attorneys Must Assess a Separate Decision
The revised Justice Manual section 4-4.111, DOJ Dismissal of a Civil Qui Tam Action, directs attorneys to assess dismissal in every case when evaluating declination. It expressly cautions that declination does not necessarily mean the case is meritless.
Its nonexclusive considerations include lack of merit; duplication of an existing investigation without useful information; interference with agency programs; protection of DOJ’s litigation interests; national security; government costs exceeding expected gains; and serious procedural errors obstructing investigation. These considerations are not new. They date to a 2018 internal Department memorandum.
DOJ should consult the affected agency and obtain its recommendation before filing, and should explain its reasons in a dismissal motion. Partial dismissal is possible. Attorneys should also consider explaining perceived deficiencies to the relator before filing, allowing the relator to consider voluntary dismissal.
The list matters because it extends beyond whether fraud can be proved. Continuing a suit might conflict with program administration or consume resources disproportionate to its expected benefit.
A hypothetical case could impose extensive demands for government records while offering little prospect of recovery. That concern differs from concluding that every allegation is false. It asks whether continuing the litigation serves the government’s interests.
