On January 21, 2022, the First Circuit affirmed the government’s request for dismissal of a whistleblower complaint alleging that several pharmaceutical companies had colluded to defraud Medicare Part D. The government, after declining to intervene, requested dismissal based on its finding that: (1) the suit would require “substantial expenditure of government resources”; (2) “many key aspects of [the relator’s] allegations [we]re not supported”; and (3) “allegations that [the relator] used the qui tam process to leverage his financial interests through securities trading . . . convince[d] the [g]overnment that [the relator was] not an appropriate advocate of the United States’ interests.” What is notable about this case, however, is not the government’s dismissal request, which was a standard, Granston-style request. Rather, it is the fact that, in affirming the government’s dismissal request, the First Circuit deepened the circuit split regarding the government’s authority to dismiss FCA cases, joining the D.C. Circuit in holding that the government has broad FCA dismissal authority.

With the First Circuit’s decision, the circuit split over the government’s FCA dismissal authority stands as follows:

• First and D.C. Circuits: The government has broad, “unfettered” authority to dismiss FCA cases.
• Third and Seventh Circuits: The government must satisfy the standard for voluntary dismissals contained in Federal Rule of Civil Procedure 41(a). We recently covered this...

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