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SCOTUS FCA Ruling: Will DOJ More Frequently Exercise its "Substantial Discretion" to Dismiss Whistleblower Cases?

July 14, 2023

Tirzah Lollar, co-chair of the False Claims Act (FCA) practice, was quoted in the recent Bloomberg Law article "DOJ in 'Driver's Seat': Supreme Court's FCA Ruling Explained." The story discussed the Supreme Court's decision regarding the DOJ's authority to end whistleblower suits under the FCA after it initially declined to intervene. The decision upheld the Third Circuit's 2021 standard, granting the DOJ significant leeway to dismiss these cases.

Lollar saw this ruling as endorsing a standard closer to "unfettered discretion" for the DOJ than the much more stringent standard proposed by the relator, indicating that a court should rarely, if ever, disagree with the DOJ's reasoning for dismissal once it had evaluated the case and deemed it suitable for intervention and dismissal. She also noted that the ruling solidified the DOJ's significant discretionary power in such cases.

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