September 23, 2026|Publications
By Andrew C. Erskine
Companies defending False Claims Act whistleblower suits should consider asking DOJ to seek dismissal after it declines intervention. DOJ’s September 18, 2026, announcement renews emphasis on assessing dismissal when declining intervention and revisiting that assessment as litigation develops.[1] For in-house counsel, the immediate step is to identify declined cases that warrant renewed and focused review.
The New Policy
The FCA imposes civil liability for knowingly submitting false claims for government payment. Its qui tam provisions let private whistleblowers, called relators, sue on the United States’ behalf and share in any recovery. Because the claim belongs to the government, the complaint is filed under seal and served on DOJ, giving it time to investigate and decide whether to intervene—i.e., join the case and assume primary responsibility for prosecuting it. DOJ may decline to intervene because of evidentiary weaknesses or resource considerations, leaving the relator to litigate the government’s claim.
Under the newly revised Justice Manual Section 4-4.111 (“DOJ Dismissal of a Civil Qui Tam Action”), DOJ attorneys must assess whether dismissal serves the government’s interests whenever they recommend declining intervention, and they may revisit that decision as litigation progresses.[2] [3] Possible grounds for dismissal include meritless claims, interference with agency programs, and government costs exceeding likely recovery. Dismissal remains discretionary, and declination does not necessarily establish that a suit lacks merit.
The new policy signals a renewed emphasis on the government actively policing claims brought on its behalf, and could offer defendants an opportunity to try to resolve some or all claims by pitching the government for a dismissal.
An Effective Pitch
Companies choosing to seek a dismissal from the government should think strategically about how best to make an effective pitch. A complaint about the defendant’s legal bills alone is unlikely to persuade. Instead, defendants and counsel should explain concretely—with evidence—why continued litigation would disserve the United States. A persuasive presentation should connect the record to DOJ’s stated considerations: defective claims, interference with agency programs, or government costs exceeding likely recovery. The company and counsel should identify the documents that undermine falsity or knowledge, explain the relevant agency’s position (if possible), and quantify legitimate discovery burdens on government personnel.
Polansky illustrates the point. After years of discovery, DOJ sought dismissal based on substantial continuing discovery burdens, privilege concerns, and its assessment that the case had little chance of success.[4] Defendants seeking similar relief should identify concrete weaknesses in the claims and explain how continued litigation would burden the government. Consider a narrower request directed to particular claims or defendants if dismissing the entire action is unlikely.
Counsel should also examine whether the claim treats nonbinding agency guidance as an independent legal obligation. DOJ’s companion revision to the Justice Manual rejects that approach.[5]
Finally, timing matters. Request consideration when the factual record supports it, and renew the request with new evidence if discovery materially changes the government’s costs or the claim’s strength. Be sure to explain what has changed since any earlier decision not to seek dismissal.
[1] DOJ, DOJ Revises Justice Manual to Strengthen False Claims Act Enforcement (Sept. 18, 2026).
https://www.justice.gov/opa/pr/doj-revises-justice-manual-strengthen-false-claims-act-enforcement
[2] Justice Manual §§ 4-4.111 (updated Sept. 2026)
https://www.justice.gov/jm/jm-4-4000-commercial-litigation#4-4.111
[3] 31 U.S.C. § 3730(c)(2)(A), (c)(3); United States ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (2023). Where DOJ seeks a delayed dismissal, it must intervene to exercise the authority, which requires a showing of good cause.
[4] Polansky, 599 U.S. at 428.
[5] Justice Manual §§ 1-19.210, 1-19.220, 1-19.250.
https://www.justice.gov/jm/1-19000-limitation-issuance-guidance-documents-1
