In a recent opinion, the U.S. Court of Appeals for the Third Circuit weighed in on what standard to apply in reviewing government motions to dismiss False Claims Act (FCA) actions. As discussed in detail in a July 2021 Law360 article titled “Tide Is Turning Against FCA Case Dismissals,” a three-way circuit split has developed regarding the standard governing a government motion to dismiss a whistleblower’s non-intervened qui tam case, but the varying approaches in the courts may be less important to the viability of government dismissals than the actions of the executive and legislative branches.[1]

These government motions to dismiss are referred to as “(c)(2)(A) motions” in reference to the relevant provision of the FCA that authorizes the government to move to dismiss a qui tam complaint over the relator’s objection. The FCA, however, does not provide a substantive standard for evaluating such motions. Three judicial approaches to considering such dismissals have emerged: (1) the U.S. Court of Appeals for the Ninth Circuit adopted a rational relation test requiring the government to put forward a valid government purpose and demonstrate a connection between that purpose and dismissal;[2] (2) the U.S. Court of Appeals for the D.C. Circuit concluded that the government has “an unfettered right to dismiss an action,” and that its decision to do so is virtually unreviewable;[3] and (3) the U.S. Court of Appeals for the Seventh Circuit held in U.S. ex rel. CIMZNHCA v. UCB,...

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