A provider named in a qui tam False Claims Act suit that the government has declined to take over is not necessarily stuck litigating a relator's case indefinitely. Under 31 U.S.C. § 3730(c)(2)(A), the government retains authority to move to dismiss a relator's qui tam action even over the relator's objection, years after declining to intervene at the outset. The Supreme Court confirmed the scope of that authority in 2023, under a standard that favors the government. For a defendant provider carrying the cost and exposure of a relator-driven case the government never wanted, asking the Department of Justice to invoke Section 3730(c)(2)(A) is one of the few levers that can end the case outright, and building that request correctly is what determines whether DOJ will use it.
What Section 3730(c)(2)(A) Actually Does
The False Claims Act lets a private relator sue on the government's behalf when the government declines to intervene in a qui tam case. Section 3730(c)(2)(A) preserves the government's authority to end that case regardless: it may "dismiss the action notwithstanding the objections of the person initiating the action", provided the relator has been notified of the dismissal motion and the court has given the relator an opportunity for a hearing on it. The government need not intervene at filing to use this power. In United States ex rel. Polansky v. Executive Health Resources, the government declined at filing, let the relator litigate alone for years, then intervened to move for dismissal once discovery showed the case was burdensome and unlikely to succeed.
The Standard Courts Apply After Polansky
The Supreme Court decided Polansky in June 2023 and held that once the government intervenes, whether at filing or later, a district court evaluates its dismissal motion under something close to the Federal Rule of Civil Procedure 41(a) standard that governs voluntary dismissals in ordinary civil litigation. The Court described that standard as a light one for the government to meet: absent an unusual showing that dismissal would not serve the government's interests, the motion should be granted. The statute does not spell out the government's burden or the factors a court must weigh, and the circuit courts, already split on that question before Polansky, continue to apply the framework somewhat differently. A provider should confirm the applicable circuit's specific approach with counsel rather than assume a uniform national rule.
Making the Case to DOJ
The request goes to DOJ, not the court. A Section 3730(c)(2)(A) submission works when it gives the government a reason grounded in its own interests, not the defendant's. The strongest arguments fall into three categories: the relator's theory is legally or factually weak and unlikely to survive summary judgment; the discovery burden on the government, which must produce witnesses and documents regardless of intervention status, outweighs any realistic recovery; and the case runs against current program policy, for example by second-guessing a coverage judgment CMS has already made. A submission tied to the specific record, not a general argument for the defendant's innocence, is what moves DOJ to act.
The Relator's Right to Be Heard, and the Risk of Asking
Section 3730(c)(2)(A) requires notice to the relator and a court hearing before dismissal, giving the relator a real chance to argue DOJ out of its decision. A defendant approaching DOJ should also weigh the downside: a dismissal request puts the allegations back in front of the agency and can draw renewed attention to conduct the government had otherwise left alone. The request is an invitation for DOJ to take a fresh, close look before deciding whether the relator's theory is worth ending.
The government's dismissal power under Section 3730(c)(2)(A) is real and, under Polansky, a light lift for DOJ to invoke, but it is DOJ's decision to make, and a provider's best chance of securing it is a submission that speaks to the government's own litigation burden and program interests, not the defendant's case for innocence.
Why Early Legal Counsel Is Critical
It is critical that providers promptly retain experienced healthcare defense counsel upon being named in a qui tam action or served with an unsealed complaint. Early legal intervention lets counsel engage DOJ directly on a dismissal request while the government's litigation and resource calculus is still forming, avoids inadvertent admissions in early filings, preserves defenses that a delayed response can forfeit, and allows counsel to communicate with the government on the provider's behalf.
How Health Law Alliance Can Help
Health Law Alliance has handled 5,000+ matters over 25+ years of healthcare fraud defense, including qui tam actions where the government's own interest in ending a weak or burdensome case is the strongest available defense. If your organization has been named as a defendant in a relator's False Claims Act suit, contact Health Law Alliance's False Claims Act defense attorneys for a free, confidential consultation.
