Staying True to the False Claims Act: Why the Government is an Unexplored Prime Vehicle to Dismiss Cases

23 Pages Posted: 31 Jan 2018

Date Written: January 23, 2018


To rectify the advent of rampant false claims levied against the government in the wake of the Civil War, Congress borrowed from the English practice of deputizing private attorneys general when it enacted the False Claims Act (“FCA”). Under the FCA, a private individual, known as a relator, assumes the role of prosecuting the presumably under-policed sovereign interest of vindicating fraud on the government. The relator benefits through compensation from meritorious claims, and the government benefits through compensation for latent, undetected sovereign injuries. Everyone wins (except those liable). But what happens when the government, over the opposition of the relator, wishes to discontinue a case? Whose interests matter? And whose interests should control?

Although State Farm Fire & Cas. Co. v. United States ex rel. Rigsby, a case from October Term 2016, circumscribed a defendant’s ability to dismiss an FCA case on the basis of certain statutory violations, the Court has yet to address what level of authority the government has in controlling a lawsuit filed in its stead, and how courts should review governmental motions to dismiss. Amid those unresolved questions, advocates seeking to dismiss FCA lawsuits should review not just their clients’ procedural vehicles, but also the government’s statutory grants of authority. Even if a violation of a statutory requirement does not compel dismissal per se, Rigsby suggests that statutory violations still have valence when persuading the government to move to dismiss cases. Among the grounds that the government could articulate in seeking to dismiss a case, a statutory violation presents a crisp argument in support of dismissal.

This Article proposes that advocates seeking to dismiss FCA lawsuits should explore all options, including persuading the government to exercise its statutory right to dismiss the case. In three parts, the Article introduces the FCA, reviews Rigsby, and explains how statutory violations can assist in convincing the government to dismiss these lawsuits. Although a circuit split has formed on the legal standard for determining when a court can enter a judgment dismissing an FCA case on motion by the government, under all standards, advocates should apprise the government with haste of statutory violations and explain how those violations impinge otherwise countervailing interests in seeking sovereign relief. And in those limited instances when the government moves to dismiss, courts should give special solitude to the government’s determination that its interests are best served by dismissing the case.

Suggested Citation

Snyder, Jesse and Gann, Andrew, Staying True to the False Claims Act: Why the Government is an Unexplored Prime Vehicle to Dismiss Cases (January 23, 2018). University of Memphis Law Review, Vol. 48, No. 257, 2017, Available at SSRN:

Andrew Gann

Independent ( email )

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