You Didn’t Ask – 3rd Cir. Affirms DOJ Dismissal of Whistleblower Case Without a Hearing

By: Pamela Coyle Brecht

The Third Circuit ruled on September 12, 2019 that a relator is not automatically guaranteed a hearing when the government moves to dismiss a whistleblower action – they need to ask for one. In United States ex rel., Chang v. Children’s  Advocacy Center of Delaware, No. 18-2311, at 3 (3rd Cir. Sept. 12, 2019), the Court affirmed the District of Delaware’s dismissal of a whistleblower lawsuit  pursuant to 31 U.S.C. § 3730(c)(2)(A), which allows the government to “dismiss the action notwithstanding the objections of the person initiating the action if the person has been notified by the Government of the filing of the motion and the court has provided the person with an opportunity for a hearing on the motion.”

The whistleblower had alleged that a child advocacy organization had applied for and received funds from the United States and the state of Delaware by misrepresenting certain material information. After the federal and state plaintiffs declined to intervene, the whistleblower amended his complaint and the defendant answered. Thereafter, the United States and Delaware each moved to dismiss the case, asserting that the investigation had found the allegations to be “factually incorrect and legally insufficient.” Chang at 4. The whistleblower opposed the government’s request for dismissal, arguing that the case should proceed to summary judgment. Critically, according to the Third Circuit, the whistleblower did not request oral argument or a hearing. After the district court granted the government’s request for dismissal without conducting an in-person hearing or issuing a supporting opinion, the whistleblower appealed.

The Third Circuit noted that Chang provided “an opportunity for us to take a side in a putative circuit split” on the issue. The Court acknowledged that both the Ninth and Tenth Circuits had adopted a standard requiring that the government to first show “a valid government purpose” in dismissal and a rational relationship between the requested dismissal and that purpose, and if met, the burden shifts to the whistleblower to show that “dismissal is fraudulent, arbitrary and capricious, or illegal.” Id. at 4-5 (citing United States ex rel. Sequoia Orange Co. v. Baird-Neece Packing Corp., 151 F.3d 1139, 1145–46 (9th Cir. 1998)); see also United States ex rel. Ridenour v. Kaiser-Hill Co., LLC, 397 F.3d 925, 934–35 (10th Cir. 2005). The Court then noted countervailing D.C. Circuit cases holding that the government has “unfettered discretion to dismiss.” Chang at 5 (citing Swift v. United States, 318 F.3d 250, 252–53 (D.C. Cir. 2003)); see also Hoyte v. Am. Nat’l Red Cross, 518 F.3d 61, 65 (D.C. Cir. 2008).

The Chang Court concluded the whistleblower failed to meet either test. The Court noted the federal and state government’s goal in dismissing the whistleblower’s case was: “minimizing unnecessary or burdensome litigation costs,” to the taxpayer for the “enormous internal staff costs” of litigating the non-intervened FCA claims. Chang at 5.

The Court then held that the district court had not erred in failing to schedule a hearing on its own initiative, citing 31 U.S.C. § 3730(c)(2)(A) and Delaware Code Title 6, § 1204. The Court reasoned that the term “opportunity for a hearing” required that the relators seek the “opportunity,” and that the whistleblower failed to even ask. Chang at 6-8.

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