What Happens Once the Government Finishes Its Investigation?

At the conclusion of the government’s investigation, or sooner if the court orders, the federal False Claims Act specifies that the Department of Justice has three options, namely to: (a) “intervene” in one or more counts of the complaint, and formally become  a party to the case in order to actively participate in prosecuting it; (b) “decline” to intervene, which means the whistleblower and his or her attorney must then choose whether to move forward with prosecuting the case alone; or (c) move to dismiss the whistleblower’s complaint, either because of the government’s belief that there is no case or because the government believes that having the case move forward would conflict with significant interests of the United States. State False Claims Acts usually have similar provisions.

The government takes the first option (intervention) in roughly 20 percent of whistleblower cases. The second option (declination) is by far the most common. The third (the government’s decision to move to dismiss) is relatively rare. In practice, the government also has a fourth option—to try to settle the case before making a decision whether to intervene or decline.