Agencies as Litigation Gatekeepers: An Empirical Analysis of DOJ Intervention Under the Qui Tam Provisions of the False Claims Act

Abstract

Recent years have seen mounting calls to vest agencies with litigation gatekeeper authority across a range of regulatory areas, including civil rights, antitrust, and financial and securities regulation. Agencies, it is said, can rationalize litigation regimes through the power to oversee, control, and even terminate private enforcement efforts. Yet there exists strikingly little theory or evidence on how such agency gatekeeper authority might work in practice. This paper aims to fill that gap by offering the first large-scale quantitative study of an often-invoked but little-studied example of a private enforcement regime incorporating such authority: the qui tam regime established by the False Claims Act (“FCA”). The FCA’s qui tam provisions empower private persons, dubbed “relators,” to sue private parties alleging fraud against the United States and earn a bounty equal to a portion of any proceeds returned to the federal treasury. The FCA also grants the United States Department of Justice (“DOJ”) substantial oversight authority, including the ability to intervene into qui tam lawsuits, thus taking primary control over the litigation, or dismiss lawsuits out from under private relators entirely. Using an original data set encompassing some 4,000 qui tam lawsuits filed between 1986 and 2008, I ask a deceptively simple question: What drives DOJ intervention decisions? My analysis recovers a number of political and non-political correlates of DOJ intervention decision-making, provides an empirical baseline against which to measure proposed FCA amendments as well as proliferating calls to export its unique public-private enforcement structure to other regulatory areas, and suggests the need to reorient scholarly debate around the possibilities and limits of private enforcement of public law.