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U.S. Supreme Court Clarifies DOJ’s Authority to Dismiss Whistleblowers’ False Claims Act Suits, Questions Constitutionality of Qui Tam Provisions

By Edwin O. Childs, Michael J. Podberesky, Jonathan Ellis, Gretchen Heinze Townshend, Todd R. Steggerda, Charles Wm. McIntyre & Jason M. Vespoli on July 24, 2023
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The U.S. Supreme Court recently resolved a circuit split by holding that, in a False Claims Act action, (1) the government may seek dismissal of a qui tam case in which the government initially declined to intervene over the relator’s objection so long as it later intervened in the litigation, and (2) district courts should apply Federal Rule of Civil Procedure 41(a), which says the government has broad latitude to seek dismissal.

Read on for details about this decision, which questions the constitutionality of the FCA’s qui tam provision permitting a private citizen to litigate a case on behalf of the United States.

Photo of Edwin O. Childs Edwin O. Childs

As a leader of the firm’s Defense, National Security and Government Contracting industry team, Ned Childs is a government contract and investigations and enforcement attorney who represents companies across a wide range of sectors, including the defense, services, technology, and aerospace industries. His…

As a leader of the firm’s Defense, National Security and Government Contracting industry team, Ned Childs is a government contract and investigations and enforcement attorney who represents companies across a wide range of sectors, including the defense, services, technology, and aerospace industries. His practice, spanning more than a decade in Washington, encompasses a broad array of legal services, including government contract investigations, disclosures, and regulatory enforcement actions; bid protests and government contract disputes; government contract counseling; export licensing and enforcement; prime contractor-subcontractor disputes; corporate ownership and acquisition issues; and election law investigations and enforcement matters.

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Photo of Michael J. Podberesky Michael J. Podberesky

Michael Podberesky, a former federal prosecutor in the U.S. Department of Justice’s Civil Fraud Section, is a partner in the firm’s nationally recognized Government Investigations and White Collar Litigation Department and co-leader of the firm’s Healthcare Litigation and Enforcement Practice Group. Employing his…

Michael Podberesky, a former federal prosecutor in the U.S. Department of Justice’s Civil Fraud Section, is a partner in the firm’s nationally recognized Government Investigations and White Collar Litigation Department and co-leader of the firm’s Healthcare Litigation and Enforcement Practice Group. Employing his extensive experience with False Claims Act cases in the healthcare and defense sectors, Michael represents clients confronting high-stakes government investigations and litigation arising from allegations of healthcare and procurement fraud and also counsels clients regarding compliance issues.

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Photo of Jonathan Ellis Jonathan Ellis

Jonathan is a Chambers USA-ranked national appellate lawyer and co-leader of the firm’s Appeals and Issues Practice Group. He helps clients design winning legal strategies in appeals and high-stakes litigation. Jonathan has argued nine cases before the U.S. Supreme Court and filed…

Jonathan is a Chambers USA-ranked national appellate lawyer and co-leader of the firm’s Appeals and Issues Practice Group. He helps clients design winning legal strategies in appeals and high-stakes litigation. Jonathan has argued nine cases before the U.S. Supreme Court and filed hundreds of briefs at the merits and certiorari stages before the Court. He has handled appeals and dispositive motions in other federal courts and state courts across the country. He has significant experience nationally in assisting clients in formulating appellate strategy, both in pending appeals and at the trial court level before judgment. And he has challenged and defended federal agency actions at every level of the federal judiciary.

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Photo of Gretchen Heinze Townshend Gretchen Heinze Townshend

Gretchen’s practice focuses on corporate healthcare transactional work and regulatory matters. Her experience includes representation of various types of healthcare providers including hospitals, health systems, dialysis facilities, multi and single specialty medical practices, specialty hospitals, ambulatory surgery centers, and a variety of healthcare…

Gretchen’s practice focuses on corporate healthcare transactional work and regulatory matters. Her experience includes representation of various types of healthcare providers including hospitals, health systems, dialysis facilities, multi and single specialty medical practices, specialty hospitals, ambulatory surgery centers, and a variety of healthcare industry entrepreneurs, in sales and acquisitions, joint ventures, general corporate matters, contracting, securities, and regulatory matters.

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Photo of Todd R. Steggerda Todd R. Steggerda

Todd Steggerda serves as McGuireWoods’ Deputy Managing Partner for Strategic Development, following service as the deputy managing partner for litigation where he oversaw and managed the firm’s litigation departments and roughly 500 litigators in the U.S. and the UK. He is the former…

Todd Steggerda serves as McGuireWoods’ Deputy Managing Partner for Strategic Development, following service as the deputy managing partner for litigation where he oversaw and managed the firm’s litigation departments and roughly 500 litigators in the U.S. and the UK. He is the former chair of the firm’s Government Investigations and White Collar Litigation Department, which Law360 recently selected for its prestigious “Practice Group of the Year” award. In a dynamic practice spanning nearly 25 years in Washington, Todd has resolved a diverse range of high-stakes government investigations, regulatory enforcement, and litigation matters, including dozens of matters investigated by the civil and criminal divisions of the Department of Justice, the Department of Defense, and numerous other federal and state agencies and investigative bodies.

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Photo of Charles Wm. McIntyre Charles Wm. McIntyre

Chuck is chair of the firm’s government, regulatory and criminal investigations department. He counsels clients in the areas of federal and state securities laws, accountants’ liability, class actions against publicly held corporations, False Claim Act (FCA), qui tam litigation, and investigations by various…

Chuck is chair of the firm’s government, regulatory and criminal investigations department. He counsels clients in the areas of federal and state securities laws, accountants’ liability, class actions against publicly held corporations, False Claim Act (FCA), qui tam litigation, and investigations by various federal and state government entities and Congress involving civil and criminal matters. He has appeared in federal and state courts, before the American Arbitration Association, and has represented individuals and companies before the SEC, the Inspector General, the DOJ and Congress.

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Photo of Jason M. Vespoli Jason M. Vespoli

Jason focuses his practice on federal and state procurement, government technology, bid protests and government contract disputes, and regulatory compliance. He utilizes experience in state government, government technology, and complex procurement to solve problems in innovative and efficient ways.

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