By becoming just the second president to win non-consecutive terms, President-Elect Trump offers something that few newly elected presidents provide: insight into the next administration based on information from his previous administration. This article will focus on what we can expect from the Trump 47 Department of Justice (DOJ) in terms of False Claims Act (FCA) enforcement based on the Trump 45 Department of Justice.
What We Know
So what do we know about FCA enforcement under the previous Trump administration? Let’s start with the numbers. In the years leading up to the previous Trump administration (2012 to 2016), an average of 694 FCA cases were filed each year.[1] That number decreased during the years of the previous Trump administration (2017 to 2020), with an average of 659 FCA cases filed each year.[2] Then, in the years following the first Trump administration (2021 to 2023), the number of filed qui tam actions increased each year: 598 in 2021,[3] 652 in 2022,[4] and 712 in 2023.[5] At the same time, the amount recovered in cases in which the DOJ intervened was higher in the years before and after the first Trump administration: $15.2 billion from 2012 to 2016; $8 billion from 2017 to 2020; and $10.1 billion from 2021 to 2023. These numbers suggest that FCA filings and recoveries might decrease in the years of the second Trump administration as the new DOJ will likely focus on drug, violent, and immigration crimes.[6]
The other key piece of information to keep in mind is the “Granston Memo.”[7] In 2018 (during the first Trump administration), Michael Granston, Director of the DOJ’s Commercial Litigation Branch Fraud Section, authored a memorandum entitled “Factors for Evaluation Dismissal Pursuant to 31 U.S.C. 3730(c)(2)(A)” (colloquially referred to as the Granston Memo). In that memorandum, Director Granston outlined the factors the DOJ considers when deciding to move to dismiss a qui tam action under Section 3730(c)(2)(A), which allows the government to dismiss an action over the relator’s objection. Those factors include (1) the need to curb meritless qui tam actions; (2) preventing parasitic or opportunistic qui tam actions; (3) preventing interference with agency policies and programs; (4) controlling litigation brought on behalf of the United States; (5) safeguarding classified information and national security interests; (6) preserving government resources; and (7) addressing egregious procedural errors. Director Granston reiterated that the DOJ’s position is that the government has “unfettered” discretion to move to dismiss qui tam actions. The effect of the Granston Memo has been for the federal government to be more judicious with its resources and resulted in numerous motions to dismiss by the government in qui tam actions.[8] So the Granston Memo, authored during the first Trump administration, also suggests a drop-off in FCA actions under the second Trump administration.
Finally, recent caselaw might provide insight into how the Trump 47 DOJ will deal with qui tam actions. In United States ex rel. Zafirov v. Florida Medical Associates LLC, U.S. District Judge Kathryn Kimball Mizelle ruled that a relator’s self-appointment to pursue a FCA action on behalf of the United States violated the Constitution’s Appointments Clause.[9] Although the government and relator have appealed Judge Mizelle’s decision to the Eleventh Circuit, whether the new DOJ will maintain its current position that a self-appointed relator does not violate the Appointments Clause remains to be seen.[10] Either way, Judge Mizelle’s decision, which is based on the power relators have to litigate on behalf of the United States, echoes one of the factors—namely, controlling litigation on behalf of the United States—the Granston memo states counsels in favor of the government dismissing a qui tam action over the relator’s objection. What’s more, in her decision, Judge Mizelle cited a 1989 memorandum authored by then-Assistant Attorney General William Barr, who later served as Attorney General during the first Trump administration. These developments suggest that FCA actions going forward might be limited to those in which the government files, intervenes, and litigates, which could, in turn, decrease the number of FCA actions pursued as the government takes an even more meticulous approach to qui tam action (currently, the United States intervenes in only 20% of filed actions).[11]
What to Expect
The decrease in qui tam actions and recoveries in the previous Trump administration, when combined with the meticulous standard for dismissing cases in the Granston Memo and recent caselaw questioning the relator’s ability to pursue qui tam actions without the government, suggests that FCA enforcement in the new Trump administration will be even more exacting and meticulous. Non-intervened qui tam actions might even become a rarity in the new Trump administration. As a result, parties involved in an FCA investigation or case in the new Trump administration should expect the government to exercise its full attention and authority.
The Suarez Law Firm has successfully represented clients in intervened and declined FCA investigations and actions. If you have been served with a Civil Investigative Demand (CID) from the Department of Justice issued under the False Claims Act, or if you are a whistleblower with knowledge of violations under the False Claims Act, contact our office today to schedule your consultation.
[1] https://www.bafirm.com/practice-areas/qui-tam-litigation/statistics/
[2] Id.
[3] https://www.whistleblowerfirm.com/healthcare-fraud/false-claims-act/#:~:text=Whistleblower%20Actions%20Recover%20Billions%20Annually,lion’s%20share%20of%20the%20recoveries.
[4] https://www.jccstice.gov/opa/pr/false-claims-act-settlements-and-judgments-exceed-2-billion-fiscal-year-2022
[5] https://www.justice.gov/opa/pr/false-claims-act-settlements-and-judgments-exceed-268-billion-fiscal-year-2023#:~:text=Whistleblowers%20filed%20712%20qui%20tam,and%20whistleblowers%20are%20discussed%20below.
[6] https://www.donaldjtrump.com/agenda47/agenda47-president-trump-announces-plan-to-end-crime-and-restore-law-and-order
[7] https://www.insidethefalseclaimsact.com/wp-content/uploads/sites/860/2018/12/Granston-Memo.pdfcc
[8] https://www.bakerdonelson.com/the-aftermath-of-the-doj-granston-memo
[9] United States ex rel. Zafirov v. Fla. Med. Assocs. LLC, ___ F. Supp. 3d ___, 2024 WL 4349242 (M.D. Fla. Sept. 30, 2024).
[10] https://rollcall.com/2024/11/06/trump-win-could-prompt-us-government-switch-in-legal-fights/
