The US Court of Appeals for the First Circuit has added its voice to the split among circuit courts regarding the appropriate standard for deciding government motions to dismiss qui tam False Claims Act (FCA) actions after it has declined to intervene. In affirming the district court’s grant of the government’s motion to dismiss in United States ex rel. Borzilleri v. Bayer HealthCare Pharms., Inc., No. CV 14-031 WES, 2019 WL 5310209 (D.R.I. Oct. 21, 2019), the unanimous three-judge panel, in a precedential decision, held that, district courts must grant government motions to dismiss qui tam FCA complaints, unless the relator “can show that the government’s decision to seek dismissal of the qui tam action transgresses constitutional limitations or that, in moving to dismiss, the government is perpetrating a fraud on the court.”1

In so holding, the First Circuit has set forth a slightly different legal standard for assessing government motions to dismiss qui tam actions, but affirms the generally accepted principle that the government has broad – though not completely unfettered – authority to end qui tam FCA actions.

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