Under the False Claims Act, private whistleblowers may initiate civil actions and collect a portion of any judgment. The Justice Department retains the right to intervene and proceed in such cases, or to dismiss them.
This latter right was the subject of the recent “Granston memo,” which lays out seven factors federal attorneys should consider as grounds for moving to dismiss qui tam actions, and encourages them to do so in certain cases.
These issues have constitutional implications. In Vermont Agency of Natural Resources v. Stevens, the Supreme Court expressly reserved the question of whether the FCA’s qui tam provisions violate the Take Care Clause. Recent litigation has revisited the otherwise dormant question, with the Granston memo providing important insights into how the current state of qui tam bears on the constitutionality issue.