By Andy Liu and Robert Rhoad

The False Claims Act has no stronger champion in Congress than Senator Chuck Grassley.  The spearhead of the 1986 FCA amendments recently wrote DOJ a letter to inquire about DOJ’s use of motions to dismiss declined qui tam cases.  Although one might characterize this administration’s FCA enforcement policies as less aggressive than its predecessors’, this letter demonstrates that FCA plaintiffs will still have a friend on the Hill so long as Senator Grassley holds office.

It has been unclear whether the Granston Memo would spur DOJ to dismiss more cases.  We recently published an in-depth coverage of a string of cases, which DOJ moved to dismiss, but that was merely a prominent example.  And while FCA practitioners may feel, anecdotally, that DOJ is somewhat more willing to enter the fray and exercise its dismissal authority, we do not yet have empirical evidence of a true change in practices.  Indeed, there are only a few handfuls of cases that DOJ has sought to dismiss, but nearly 700 qui tam cases filed each year.

Nonetheless, Senator Grassley perceives such a change.  One high-profile example, U.S. ex rel. Campie v. Gilead Sciences—which we covered in a Law360 Expert Analysis—seems to have drawn his attention.  In that case, which afforded the Supreme Court to weigh in on critical questions left open after Escobar (see id.), the Solicitor General urged the Supreme Court not to take the case and that, if the case were remanded, the government would move to dismiss it under 31 U.S.C. § 3730(c)(2)(A).  This was based not only on the “merits” of the case, but also the “burdensome discovery and Touhy requests” that might follow if the case were to proceed.  Sure enough, certiorari was denied, and the government made good on its promise.  This caught Senator Grassley’s eye.

Ostensibly, his primary concern was the “preservation of government resources” rationale included in the Granston Memo and cited by DOJ in its motion to dismiss Gilead Sciences.  In the Senator’s view, this is an “attempt[] to dismiss a claim by citing litigation costs.”  We think this ignores the second half of the government’s argument in Gilead Sciences, however: “In this matter, the government has a legitimate purpose for dismissal: to avoid the additional expenditure of government resources on a case that it fully investigated and decided not to pursue.”[1]  It also ignores the full rationale articulated in the Granston Memo itself: “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.”  Justice Manual § 4-4.111 (emphasis added).

This sounds like precisely the cost-benefit analysis that Senator Grassley repeatedly admonishes the government for failing to conduct.  DOJ is not saying simply that litigation is expensive, but that these costs are not justified when compared to the findings of DOJ’s investigation in this case.

Indeed, the intervention decision itself largely serves as the cost/benefit analysis that Senator Grassley finds lacking.  The question for DOJ attorneys at the expiration of the investigatory period is whether the cost of pursuing that case are worth bearing in relation to the merits of the case, including the damages recoverable.  And when it comes to motions to dismiss, we are unaware of any case where DOJ has framed the government’s interest(s) solely in terms of cost (without relation to merit).

Senator Grassley acknowledges that even in Cimznhca—the rare case where DOJ’s motion to dismiss was denied—“DOJ moved to dismiss the claim arguing that the case lacked merit, but also because continued litigation would be costly.”  Notwithstanding a perhaps inarticulate expression at the hearing on that motion, seized upon by the district court in its opinion, DOJ has always maintained that the costs of litigation were assessed in relation to the merits of the case.[2]

Finally, Senator Grassley neglects to mention the courts’ take on DOJ motions to dismiss under 31 U.S.C. § 3730(c)(2)(A).  The predominant, though not universal, view comes from United States ex rel. Sequoia Orange Co. v. Baird-Neece Packing Corp., 151 F.3d 1139 (9th Cir. 1998).  In the Ninth Circuit and jurisdictions that have followed suit, the courts will ask merely whether the government has any rational basis for dismissal.  Conservation of government resources has been accepted as such a basis.  So, while Senator Grassley may not approve of that legal standard, if he can’t convince DOJ to change course through political pressure, it may take legislative amendment to change it.

[1] U.S. ex rel. Campie v. Gilead Sciences, No. 3:11-cv-00941-EMC, ECF No. 183 at 12 (Mar. 28, 2019) (emphasis added).  Recall also that the Solicitor General expressly assailed the “merits” of the case.

[2] See Mot. to Alter or Amend Order, U.S. ex rel. Cimznhca v. UCB, Inc., ECF No. 85 at 4 (S.D. Ill. Apr. 29, 2019) (reiterating the primary basis for dismissal: “the Relator’s unsupported allegations do not justify the further expenditure of government resources”) (emphasis added).