The U.S. Senate will soon begin the confirmation hearings for William P. Barr to be the next U.S. Attorney General. While Congress and the media will undoubtedly give considerable attention to the Special Counsel’s investigation, there is also an opportunity to glean insight into Mr. Barr’s views about the many other areas for which the Department of Justice (DOJ) is responsible. One topic that merits consideration is DOJ’s approach to the enforcement of the False Claims Act (FCA).
The FCA is a powerful statute designed to combat fraud by those who do business with the government. Congress designed the FCA to encourage private whistleblowers, known as qui tam relators, to report fraud on the government by allowing them to share in the proceeds of any recovery. In recent years, DOJ has obtained billions of dollars from FCA enforcement actions. In a qui tam action, the relator files a complaint in federal court on behalf of the United States, requiring DOJ to investigate the claims and decide whether to pursue them by intervening in the matter. When the government declines to intervene, it can move to dismiss the case over the whistleblower’s objection or permit the relator to litigate the claims while DOJ sits on the sidelines.
Even though the DOJ has had the authority to dismiss meritless FCA case for more than a century, it has rarely done so. Instead, when DOJ has decided that a whistleblower’s complaint lacked merit, it typically has declined to intervene in the action, while plaintiffs’ lawyers were allowed to pursue the very same claims the DOJ decided not to pursue.
This approach, however, has not necessarily best served the country’s interests. Most notably, leaving a defendant to litigate meritless claims being pursued by plaintiffs’ counsel on behalf of the U.S. undermines the norms of justice being done in the name of the United States. Moreover, by failing to use its lawful authority to seek dismissal of meritless cases, DOJ in many instances has missed opportunities to send accurate signals concerning its views of the law and what facts and circumstances are grounds for the government asserting its rights against the people.
In early 2018, the DOJ’s Civil Fraud Section took steps to change this approach when it issued a memo—known as the Granston Memo after its author—analyzing factors for deciding whether to dismiss an FCA case over the whistleblower’s objection. The shift in policy signaled, for the first time, that DOJ was encouraging appropriate dismissals of action.
Just recently, DOJ moved to dismiss 11 lawsuits that were all tied to a company that was founded solely to file meritless qui tam complaints. The company, the National Health Care Analysis Group, contacted drug company employees under the guise of interviewing them for a research study. But the DOJ found that those employees were not told the interviews would be used in lawsuits and that the employees would be named as witnesses in those lawsuits.
In its motions to dismiss, the DOJ said attorneys wasted 1,500 hours investigating these cases, only to find out they had no merit. Government resources could surely have been used in better ways.
The DOJ was right to move to dismiss these cases and should continue to dismiss cases when meritless cases are filed. Doing so will benefit the country by ensuring government time and money is spent weeding out actual fraud, rather than chasing frivolous FCA lawsuits.
After all, there is equal justice in dismissing a meritless case as there is in pursuing a righteous one.