on Jun 16, 2023 at 2:47 pm
The Supreme Court ruled on Friday that the Department of Justice has broad, but not unfettered, authority to dismiss whistleblower lawsuits filed under the False Claims Act’s qui tam provision even when the government initially elected to allow the whistleblower to proceed with the action.
The FCA’s qui tam (an abbreviation for a Latin phrase meaning “who sues on behalf of the King as well as for himself”) provision encourages whistleblowers to file suit on behalf of the government. The law also gives the government the option to decide whether to take control of the case (referred to as “intervening”) or instead allow the whistleblower to proceed. DOJ has used the False Claims Act to recover more than $70 billion since 1986, much of it driven by whistleblower lawsuits and largely focused on health care and defense contracting. As the number of qui tam cases has continued to increase (more than 500 have been filed annually in recent years), and the whistleblower’s bar has been increasingly aggressive about moving forward with cases, DOJ has ramped up the use of its dismissal authority — not only declining to take over the litigation of qui tam cases, but also affirmatively dismissing them to prevent the whistleblower from proceeding.
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