In a speech on the Senate floor last week, Senator Chuck Grassley (R-IA) announced that he plans to introduce legislation aimed at limiting the scope of the Department of Justice’s False Claims Act dismissal authority. Specifically, Sen. Grassley’s anticipated legislation would require DOJ to state its reasons and provide whistleblowers who bring the cases an opportunity to be heard by the court whenever DOJ moves to dismiss a qui tam False Claims Act case.

Sen. Grassley, the author of the 1986 amendments to the FCA, described DOJ’s practice of dismissing charges in many of the FCA cases brought by whistleblowers as “especially ironic,” given the “massive increase” in government funding related to the COVID-19 response that has “created new opportunities for fraudsters trying to cheat the government.” According to Sen. Grassley, “[if] there are serious allegations of fraud against the government, the Attorney General should have to state the legitimate reasons for deciding not to pursue them in court.” Courts have been split on the justification DOJ must provide in moving to dismiss a case, with some courts ruling that DOJ has “virtually unfettered discretion” to dismiss qui tam suits, while other holding that DOJ must provide a “legitimate reason” for dismissal. Courts falling in the latter camp have set forth varying standards for how thorough DOJ must be in justifying a motion to dismiss a qui tam case. Sen. Grassley indicated that his proposed legislation would clarify these ambiguities and rein in DOJ’s dismissal authority.

Sen. Grassley’s critique of DOJ’s use of its dismissal authority stands in sharp contrast to remarks recently delivered by Principal Deputy Assistant U.S. Attorney General Ethan Davis to the Chamber of Commerce’s Institute for Legal Reform. Davis remarked that the 2018 Granston Memo, which provides guidance to DOJ lawyers in evaluating whether to dismiss qui tam cases, has had a “meaningful effect,” noting that DOJ has moved to dismiss approximately 50 qui tam cases since 2018 compared to DOJ’s 45 motions to dismiss qui tam cases in the 30 years preceding the Granston Memo. Davis characterized DOJ’s use of its dismissal authority as a means to eliminate frivolous or meritless qui tam claims so that the Department can focus its resources on pursuing real fraud and decrease the likelihood of bad case law that makes it “more difficult for both the government and relators to pursue meritorious cases.”

According to Davis, DOJ will continue to “judiciously” exercise its dismissal authority in the COVID-19 and post-COVID-19 world in order to “weed out cases that involve regulatory overreach or are otherwise not in the interests of the United States,” such as cases based on technical mistakes with paperwork or honest misunderstandings of the rules.

Steptoe continues to follow DOJ’s exercise of its dismissal authority and will monitor Sen.