Better Late Than Never: DOJ Finally Responds to Senator Grassley, Seeking to Provide Reassurance About Its Use of (c)(2)(A) (Granston) Dismissals*
In late December, DOJ responded to Senator Chuck Grassley's letter to Attorney General William Barr seeking information about the Department's implementation of the January 2018 "Granston Memorandum." As we blogged about previously, Senator Chuck Grassley's September 2019 letter outlines his concerns with DOJ's implementation of the memo, primary of which is the notion that DOJ may be inappropriately seeking to dismiss qui tam cases based on poorly-reasoned or pretextual reliance on the preservation of government resources. Included in Senator Grassley's letter was a series of questions and a two-week deadline for reply, intended to "better understand DOJ's plans with respect to future qui tam cases." While DOJ's response arrived a few months late and ignored most of the Senator's queries, it does provide the most comprehensive summary available regarding DOJ's recent use of its power to move to dismiss qui tams pursuant to 31 U.S.C. §3730(c)(2)(A).
DOJ reports that from January 1, 2018 to December 19, 2019 (the date of the letter), DOJ has filed (c)(2)(A) motions to dismiss in 45 qui tam cases out of more than 1,170 qui tam actions filed. According to DOJ, that it only sought dismissal of fewer than four percent of qui tams "reflects [DOJ's] serious commitment to allow appropriate qui tam matters to proceed." The 45 cases involved a mix of federal agencies, and in the 26 motions decided by courts, all but one were granted.1 DOJ went on to provide some context for its decisions to move to dismiss. Ten of the cases were filed by the same for-profit private investment group and lacked merit as we reported here. Twelve were filed by pro se relators who cannot bring qui tam actions once the United States has declined to intervene. In "several" cases, the DOJ explained, the relators filed claims "not legally cognizable under the False Claims Act," and in ten cases, DOJ sought dismissal in part because an "affected agency expressed valid concern" over interfering with patient care.
For the most part, DOJ's reply manages to evade several of Senator Grassley's specific questions, including those related to the mechanics of how DOJ determines which qui tam cases warrant dismissal based on costs to the government and how much deference DOJ gives to regulatory agencies in deciding whether to dismiss a qui tam claim. Notably, none of DOJ's explanations included the "cost-benefit" analyses that Senator Grassley requested and our readers may want. Notwithstanding the unanswered questions, we at Qui Notes suspect that DOJ's response may have assuaged Senator Grassley's concerns and ended the exchange, but we will be on the lookout for any follow-on questions from the Senator and of course will continue to report on DOJ's use (or lack of use) of its dismissal power.
* Since nearly two years have passed since the Granston Memo was issued and it has now been enshrined in formal DOJ policy, moving forward, we will be referring to DOJ motions to dismiss over relators' objections according to the statutory source of DOJ's dismissal authority (31 U.S.C. § 3730(c)(2)(A)), rather than as "Granston motions."
*Daisy Joo contributed to this Blog Post. Ms. Joo is a graduate of Harvard Law School and is employed at Arnold & Porter's Washington, DC office. She is not admitted to the practice of law in Washington, DC.
© Arnold & Porter Kaye Scholer LLP 2020 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.