The government may dismiss a whistleblower action brought under the False Claims Act (FCA), even over the whistleblower’s objection. 31 U.S.C. § 3730(c)(2)(A). Although the FCA gives the government this authority, it offers no guidance on when it should be applied.
The Department of Justice (DOJ) has recognized seven factors for government attorneys to consider when contemplating a dismissal:
- Curbing Meritless Actions: “The Department should consider moving to dismiss where a qui tam is facially lacking in merit—either because relator’s legal theory is inherently defective, or the relator’s factual allegations are frivolous.”
- Preventing Opportunistic Actions: “The Department should consider moving to dismiss a qui tam action that duplicates an existing government investigation and adds no useful information to the investigation.”
- Preventing Interference with Agency Policies and Programs: “Dismissal should be considered where an agency has determined that a qui tam action threatens to interfere with an agency’s policies or the administration of its programs and has recommended dismissal to avoid these effects.”
- Controlling Litigation Brought on Behalf of the United States: “Relatedly, the Department should consider dismissing cases when necessary to protect the Department’s litigation prerogatives.”
- Safeguarding Classified Information and National Security Interests: “In certain cases, particularly those involving intelligence agencies or military procurement contracts, we should seek dismissal to safeguard classified information.”
- Preserving Government Resources: “The Department should also consider dismissal . . . when the government’s expected costs are likely to exceed any expected gain.”
- Addressing Egregious Procedural Errors: “The Department may also seek dismissal of a qui tam action . . . based on problems with the relator’s action that frustrate the government’s efforts to conduct a proper investigation.”
While these factors are not exhaustive, they are important considerations for every potential whistleblower when evaluating their claim. Even though no one can guarantee success, contacting an experienced whistleblower attorney will give you the best chance to avoid a dismissal.