Is Senator Grassley Trying to "Barr" Government Qui Tam Dismissals?

In a September 4, 2019 letter to Attorney General William Barr, Senator Chuck Grassley raised concerns relating to DOJ's implementation of the January 2018 Granston Memorandum. As our readers undoubtedly know, that Memorandum (now enshrined as formal DOJ policy) outlines the circumstances under which DOJ will consider moving to dismiss qui tam cases in which it has declined to intervene. Only one of the non-exhaustive list of factors DOJ attorneys are encouraged to consider is "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." It is this that apparently has drawn Senator Grassley's ire, leading him to question whether dismissals premised on wasting government resources "could undermine the purpose of the False Claims Act."

Senator Grassley asks whether in a handful of particular cases government motions to dismiss were inappropriately predicated on waste of government resources. Among them is Campie, which itself is noteworthy, as this is the lead case that the Supreme Court considered taking to potentially revisit Escobar last Term and in so doing called for the views of the Solicitor General. As we have previously reported, in an apparent bid to avoid a cert. grant, the Solicitor General assured the Court that, once the case was returned to district court, it would move to dismiss it under the very same DOJ policy. The intended effect was achieved and cert. was denied. Curiously, Senator Grassley now takes DOJ to task for following through on its representations to the Supreme Court of the United States.

Senator Grassley is no FCA dilettante. As his letter notes, he was one of the prime movers for reinvigorating FCA enforcement through the watershed 1986 amendments. Since that time, he has remained interested in the statute, having questioned several Attorney General nominees (including both Attorney General Barr and his predecessor Jeff Sessions) about their dedication to FCA enforcement. But we at Qui Notes question whether the Senator's concerns are misplaced. It is entirely true that meritless qui tam cases for which the government declines intervention can still cause the taxpayers to pay millions of dollars while relators tilt at windmills. As the Solicitor General pointed out in its brief in Campie, even in non-intervened cases, the government may pay a heavy discovery bill, responding to burdensome document requests and making legions of agency employees available for depositions. And, in the government contracting context in particular, a company that has successfully fought off a meritless case may seek 80 percent of litigation costs back from the government depending on the type of contract.

What Senator Grassley and others should be asking is not merely the cost-benefit analysis of dismissing particular cases but what are the real costs to the government of allowing weak cases to proceed. Whether asked by Senator Grassley or not, we hope that DOJ will take this opportunity to defend its policy and highlight these important considerations.

© Arnold & Porter Kaye Scholer LLP 2019 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.