When evaluating a recommendation to decline intervention in a qui tam action, attorneys should also consider whether the government’s interests are served, in addition, by seeking dismissal pursuant to 31 U.S.C. § 3730(c)(2)(A). While it is important to be judicious in utilizing § 3730(c)(2)(A), such dismissals also provide an important tool to advance the government’s interests, preserve limited resources, and avoid adverse precedent.

When determining whether to seek dismissal, the Department should evaluate the following non-exhaustive list of factors that can serve as a basis for dismissal:

1. 1. Curbing meritless qui tams that facially lack merit (either because the relator’s legal theory is inherently defective, or the relator’s factual allegations are frivolous)
2. 2. Preventing parasitic or opportunistic qui tam actions that duplicate a pre-existing government investigation and add no useful information to the investigation
3. 3. Preventing interference with an agency’s policies or the administration of its programs
4. 4. Controlling litigation brought on behalf of the United States, in order to protect the Department’s litigation prerogatives
5. 5. Safeguarding classified information and national security interests
6. 6. Preserving government resources, particularly where the government’s costs (including the opportunity costs of expending resources on other matters) are likely to exceed any expected gain
7. 7. Addressing egregious procedural errors that could frustrate the government’s efforts to conduct a proper investigation

If the Department finds one or more of these factors present, a motion to dismiss the action pursuant to § 3730(c)(2)(A) may be warranted. Regardless of the standard of review that applies in each case, attorneys should identify in any motion that is filed reasons supporting dismissal of the action. Sometimes, it may be appropriate to seek only partial dismissal of some defendants or claims under § 3730(c)(2)(A). Attorneys may also cite alternative grounds for seeking dismissal other than § 3730(c)(2)(A), such as the first to file bar, the public disclosure bar, the tax bar, or Federal Rule of Civil Procedure 9(b).

In jointly handled and monitored cases, the prior approval of the Assistant Attorney General is required for a motion to dismiss a qui tam action, including under section 3730(c)(2)(A). In delegated cases, the authority for dismissing a qui tam complaint will generally be vested in the U.S. Attorney unless dismissal would present a novel issue of law or policy, or for any other reason raises issues that should receive the personal attention of the Assistant Attorney General. See Civil Division Directive 1-15, Subpart 1(e).

If Department attorneys believe that dismissal may be warranted, they should consult closely with the affected agency. The agency’s recommendation should be obtained in advance of the filing of any request to dismiss. Prior to seeking dismissal, Department attorneys should consider advising relators of perceived deficiencies in their case so that relators may consider dismissing the action, thus alleviating the need for a Department filing. If the Department has an ongoing criminal investigation or prosecution relating to the underlying conduct, before filing a motion to dismiss a qui tam action, Department attorneys should consult with the lead attorney for that investigation or prosecution.

[updated October 2021]