Borzilleri v. Bayer AG

United States Court of Appeals
For the First Circuit
No. 20-1066

JOHN R. BORZILLERI, M.D., Relator,

Plaintiff, Appellant,

UNITED STATES, ex rel. JOHN R. BORZILLERI, M.D.,

Plaintiff, Appellee,

STATE OF CALIFORNIA, et al.,

Plaintiffs,

v.

BAYER HEALTHCARE PHARMACEUTICALS, INC., et al.,

Defendants, Appellees,

CATAMARAN CORPORATION, et al.,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

Thompson, Lipez, and Kayatta,
Circuit Judges.

Mary Ann H. Smith for appellant.
Amy R. Romero, Assistant United States Attorney, with whom
Aaron L. Weisman, United States Attorney, was on brief, for
appellee United States.
 Jeffrey S. Bucholtz, Jeremy M. Bylund, King & Spalding LLP,
Steven P. Lehotsky, Tara S. Morrissey, and U.S. Chamber Litigation
Center on brief for the Chamber of Commerce of the United States
of America, amicus curiae.

January 21, 2022
 LIPEZ, Circuit Judge. In this case of first impression

for our circuit, we consider the function of the hearing that is

provided by statute when the government moves to dismiss a

relator's qui tam action brought under the False Claims Act ("FCA")

over the relator's objections. See 31 U.S.C. § 3730(c)(2)(A).

The statute is silent as to the nature of that hearing, the

government's burden in seeking dismissal, and the factors the

district court should consider in evaluating the motion to dismiss.

After considering the FCA as a whole and the various approaches

that have been adopted by other circuits, we conclude that (i)

although the government does not bear the burden of justifying its

motion to the court, the government must provide its reasons for

seeking dismissal so that the relator can attempt to convince the

government to withdraw its motion at the hearing; and (ii) if the

government does not agree to withdraw its motion, the district

court should grant it unless the relator can show that, in seeking

dismissal, the government is transgressing constitutional

limitations or perpetrating a fraud on the court.

Applying these conclusions to the facts of this case, we

determine that the district court did not err in dismissing the

action and affirm.

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 I.

A. Legal Background

The FCA imposes civil liability on any person who

"knowingly presents," "causes to be presented," or conspires to

present "a false or fraudulent claim for payment or approval" to

the United States government. 31 U.S.C. § 3729(a)(1)(A), (C).

The Act not only authorizes the government to bring a civil action

against anyone who violates the statute, id. § 3730(a), but also

allows a private party -- a "relator" -- to bring what is known as

a qui tam action "for the person and for the United States

[g]overnment . . . in the name of the [g]overnment," id.

§ 3730(b)(1). See Kellogg Brown & Root Servs., Inc. v. United

States ex rel. Carter, 575 U.S. 650, 653 (2015).

When a relator brings a qui tam action, he must serve

the government with a copy of the complaint and "written disclosure

of substantially all material evidence and information" he

possesses. 31 U.S.C. § 3730(b)(2). The complaint is filed under

seal for at least sixty days (the government may seek extensions

for good cause), and it may not be served on the defendant until

the court so orders. Id. § 3730(b)(2), (3). Before the complaint

is unsealed, the government has two options. It may "intervene

and proceed with the action" itself, in which case it has "the

primary responsibility for prosecuting" it, although the relator

has "the right to continue as a party to the action"; or the

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government may notify the court that it declines to "take over the

action," in which case the relator "shall have the right to conduct

the action." Id. § 3730(b)(2), (b)(4), (c)(1).

Even if the government initially declines to intervene,

the court "may nevertheless permit the [g]overnment to intervene

at a later date upon a showing of good cause." Id. § 3730(c)(3).

If the government conducts the action, the relator may receive up

to twenty-five percent of any proceeds recovered, plus reasonable

expenses, attorneys' fees, and costs. Id. § 3730(d)(1). If the

relator conducts the action, his potential maximum recovery

increases to thirty percent. Id. § 3730(d)(2).1

The qui tam provision is "designed to set up incentives

to supplement government enforcement" of the FCA. United States

ex rel. Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645, 649

(D.C. Cir. 1994). The Supreme Court has explained that the "for

the person and for the United States [g]overnment" language in the

statute "gives the relator himself an interest in the lawsuit, and

not merely the right to retain a fee out of the recovery." Vt.

Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S.

1 The court may reduce a relator's share of the proceeds if
it finds that the relator "planned and initiated the violation" of
the FCA underlying the action. 31 U.S.C. § 3730(d)(3). If the
relator is convicted of criminal conduct stemming from his role in
the violation, he "shall be dismissed" from the action and "shall
not receive any share of the proceeds." Id.

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765, 772 (2000). The statute thus "entitles the relator to a

hearing before the [g]overnment's voluntary dismissal of the suit"

when the relator and the government disagree about whether, or

when, to pursue the FCA action. Id. (citing 31 U.S.C.

§ 3730(c)(2)(A)).

Specifically, the FCA states: "The [g]overnment may

dismiss the action notwithstanding the objections of the person

initiating the action if the person has been notified by the

[g]overnment of the filing of the motion and the court has provided

the person with an opportunity for a hearing on the motion." 31

U.S.C. § 3730(c)(2)(A). The statute is silent, however, as to the

nature of that hearing, the government's burden, and the factors

the district court should consider in evaluating the government's

motion to dismiss.

Courts have attempted to fill this statutory lacuna, with

divergent approaches by the Ninth Circuit and the D.C. Circuit

attracting the most discussion.2 The Ninth Circuit has held that

the district court at a § 3730(c)(2)(A) hearing must undertake a

multi-step analysis to evaluate the government's motion to

dismiss. The government must first identify "a valid government

purpose" for the dismissal and demonstrate "a rational relation

2 We discuss a third approach, taken by the Seventh and Third
Circuits, below. See infra Section II.

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between dismissal and accomplishment of the purpose." United

States ex rel. Sequoia Orange Co. v. Baird-Neece Packing Corp.,

151 F.3d 1139, 1145 (9th Cir. 1998) (internal quotation marks

omitted). If the government can meet its burden, the burden then

shifts to the relator to show that the "dismissal is fraudulent,

arbitrary and capricious, or illegal." Id. (internal quotation

marks omitted); see also Ridenour v. Kaiser-Hill Co., 397 F.3d

925, 936 (10th Cir. 2005) (adopting the Sequoia Orange standard).

By contrast, the D.C. Circuit has held that

§ 3730(c)(2)(A) "give[s] the government an unfettered right to

dismiss an action," and that "the function of a hearing when the

relator requests one is simply to give the relator a formal

opportunity to convince the government not to end the case." Swift

v. United States, 318 F.3d 250, 252-53 (D.C. Cir. 2003). However,

the Swift court left open the possibility that a showing of "fraud

on the court," or some other similar consideration, might be the

basis for denial of the government's motion notwithstanding the

government's "unfettered" discretion. See id. at 253. And other

courts that have generally agreed with Swift that the Sequoia

Orange standard places too much of a burden on the government's

right to dismiss an action have suggested that a district court

could deny the government's motion if dismissal would violate the

Constitution or perpetrate a "fraud on the court." See United

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States ex rel. CIMZNHCA, LLC v. UCB, Inc., 970 F.3d 835, 851-52

(7th Cir. 2020).3

B. Facts & Procedural Background

Relator-appellant John R. Borzilleri, a physician and

professional healthcare investment fund manager, alleges that

several pharmaceutical companies ("Manufacturer Defendants") and

Pharmacy Benefit Managers ("PBM Defendants") colluded to defraud

Medicare Part D, a federal prescription drug program, in violation

of the FCA, the common law, and various state-law analogues to the

FCA.4 In brief, he contends that the Manufacturer Defendants

(which set drug prices) and the PBM Defendants (which administer

access to the drugs for most Americans) colluded to drive up the

At least two courts of appeals have noted the split among
3

the circuits but have avoided weighing in. See United States ex
rel. Borzilleri v. AbbVie, Inc., 837 F. App'x 813, 816 & n.1 (2d
Cir. 2020) (summary order) ("[W]e do not decide which standard
should govern, as the relator fails even the more stringent Sequoia
standard."); United States ex rel. Health Choice All. v. Eli Lilly
& Co., 4 F.4th 255, 267 (5th Cir. 2021) (assuming without deciding
that the Sequoia Orange standard applies and holding that dismissal
was proper even under that "more burdensome test").
The
4 Manufacturer Defendants are: Bayer Healthcare
Pharmaceuticals, Inc.; Biogen, Inc.; EMD Serono, Inc.; Novartis
Pharmaceuticals Corporation; Pfizer, Inc.; Teva Neuroscience,
Inc.; and Teva Pharmaceuticals USA, Inc. The PBM Defendants are:
Aetna, Inc.; Cigna Corporation; CVS Health Corporation; Express
Scripts Holding Company; Humana, Inc.; and UnitedHealth Group,
Inc.

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price of multiple sclerosis therapeutics through "service fee"

contracts.5

Borzilleri filed a qui tam complaint under seal in the

District of Rhode Island in 2014.6 In 2018, the government declined

to intervene (apparently after being granted a number of extensions

to make its decision pursuant to 31 U.S.C. § 3730(b)(3)) and the

complaint was unsealed. Eventually, the Manufacturer Defendants

and the PBM Defendants moved to dismiss the case. Shortly

thereafter, the government moved to dismiss under 31 U.S.C.

§ 3730(c)(2)(A), stating, inter alia, that (1) "the continued

litigation of [Borzilleri's suit] . . . is likely to require

substantial expenditure of government resources . . . both to

monitor the progress of the [suit] and as a third-party participant

in discovery . . . [and] will tax the federal agency component

The precise mechanics of the scheme as alleged by Borzilleri
5

are outlined in his 159-page second amended complaint.
6In 2015, Borzilleri filed a parallel qui tam suit in the
Southern District of New York. The government asserts that from
2014 to 2018, "the U.S. Attorney's Office for the District of Rhode
Island, working along with the U.S. Attorney's Office for the
Southern District of New York, the Fraud Section of the Department
of Justice's Civil Division, and investigators from multiple
federal agencies, undertook a detailed multi-year investigation of
Borzilleri's allegations." The government also declined to
intervene in the Southern District of New York action; that court
granted the government's motion to dismiss, see United States ex
rel. Borzilleri v. AbbVie, Inc., No. 15-CV-7881 (JMF), 2019 WL
3203000, at *3 (S.D.N.Y. July 16, 2019); and the dismissal was
affirmed on appeal, see AbbVie, Inc., 837 F. App'x at 817.

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that oversees the Part D program"; (2) the government "has

carefully investigated Relator's claims . . . and has concluded

that many key aspects of his allegations are not supported"; and

(3) Borzilleri's actions, including "allegations that he has used

the qui tam process to leverage his financial interests through

securities trading," have "convince[d] the [g]overnment that he is

not an appropriate advocate of the United States' interests in

this action."

Borzilleri objected to the dismissal and filed a

declaration asserting, inter alia, that the government had failed

to investigate key aspects of his allegations. The district court

subsequently held a hearing, at which it pressed Borzilleri's

counsel to

come forward with some kind of showing that the
government's decision [to dismiss the suit] is
fraudulent or arbitrary, capricious or illegal
in some fashion. Not just that you disagree with
it and not just that you think that Dr.
Borzilleri's argument had merit that the
government, for whatever reason, failed to see,
but you've got to come up with something pretty
powerful that shows me that the government is
acting in a fraudulent or illegal manner here.

In response, Borzilleri's counsel argued that the government had

not performed an adequate investigation of the alleged fraud and

had determined that the suit did not allege FCA violations only

"because [the government] didn't look in the right place."

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 In a post-hearing minute order, followed by a written

decision, the district court dismissed Borzilleri's FCA claims

with prejudice as to Borzilleri and without prejudice as to the

government.7 The district court recognized that the standard for

considering a motion to dismiss by the government at a

§ 3730(c)(2)(A) hearing is a subject of debate among the circuit

courts and that the First Circuit had not yet addressed the issue.

See United States ex rel. Borzilleri v. Bayer HealthCare Pharms.,

Inc., C.A. No. 14-031 WES, 2019 WL 5310209, at *1 (D.R.I. Oct. 21,

2019). The court concluded, however, that it did not need to

choose from among the different approaches because it determined

that dismissal was appropriate even under the "stricter standard"

adopted by the Ninth Circuit. Id. at *2. The court noted that

7 Neither party on appeal challenges the type of dismissal
ordered by the district court, and Borzilleri does not challenge
the dismissal without prejudice of his state law claims. Nor does
Borzilleri suggest on appeal that the government was required to
move to intervene, and show "good cause" for doing so, before
filing its motion to dismiss. See CIMZNHCA, 970 F.3d at 842-49
(considering this issue at length). We note, however, that we see
logic in the D.C. Circuit's observation that "the question whether
the [FCA] requires the government to intervene before dismissing
an action is largely academic," because "if there were such a
requirement, we could construe the government's motion to dismiss
as including a motion to intervene, a motion the district court
granted by ordering dismissal." Swift, 318 F.3d at 252; see also
CIMZNHCA, 970 F.3d at 849 (determining that the FCA requires the
government to intervene before moving to dismiss but ultimately
"treat[ing] the government's motion to dismiss as a motion both to
intervene and then to dismiss"); Polansky v. Exec. Health Res.
Inc., 17 F.4th 376, 392-93 (3d Cir. 2021) (same).

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the government had provided a rational reason for dismissal --

"the burden this continuing litigation would place on the

[g]overnment's resources" -- and Borzilleri had not shown that

dismissal would be "fraudulent, arbitrary and capricious, or

illegal." Id. at *2-3 (internal quotation marks omitted). The

court also denied his request for discovery and an evidentiary

hearing. Borzilleri timely appealed.

II.

Although Borzilleri contends that the standard

articulated by the Ninth Circuit for a court's review of a

government motion to dismiss a qui tam suit should apply in this

case, he also asserts that the district court's decision fails

under any of the standards that courts have applied. Given the

need to clarify for the district courts their role when an

objecting relator invokes the "opportunity for a hearing" provided

by § 3730(c)(2)(A), we address that issue before addressing

Borzilleri's specific contentions about the dismissal of his suit.

As noted above, although the FCA mandates a hearing at

the behest of an objecting relator before a court may grant a

government motion to dismiss a qui tam suit, the statute does not

specify the nature of the hearing, the government's burden, or the

factors a court should consider in evaluating the motion.

Nevertheless, we agree with Borzilleri's premise that the statute

plainly anticipates the exercise of some form of judicial

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discretion. Obtaining an impartial adjudicator's decision after

parties air their competing views is, after all, the ordinary

purpose of a "hearing." See Hearing, Black's Law Dictionary (11th

ed. 2019) (defining a "hearing" as a "judicial session . . . held

for the purpose of deciding issues of fact or of law"). We are

confident that Congress would not mandate an opportunity for a

hearing so that the court could only "serve . . . donuts and

coffee" while the relator and the government debate the merits of

dismissal. CIMZNHCA, 970 F.3d at 850 (internal quotation marks

omitted).

Further, the statute by its terms indicates that the

hearing requirement is intended, at least in part, to protect the

relator's interests. The provision focuses on the relator,

stating that the government may dismiss the action "if the [qui

tam relator] has been notified by the [g]overnment of the filing

of the motion and the court has provided the person with an

opportunity for a hearing on the motion." 31 U.S.C.

§ 3730(c)(2)(A) (emphasis added). Hence, we conclude that the

statute contemplates a judicial judgment of some kind, providing

a level of protection for the relator's interest in the suit. See

Stevens, 529 U.S. at 772 (stating that the FCA "gives the relator

himself an interest in the lawsuit, and not merely the right to

retain a fee out of the recovery").

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 The nature of that judicial judgment is the more

difficult question. Because § 3730(c)(2)(A) itself does not

provide further guidance, we turn to the surrounding statutory

provisions for interpretive assistance. See City of Providence v.

Barr, 954 F.3d 23, 31 (1st Cir. 2020) ("The context surrounding a

statutory provision and the structure of the statutory scheme as

a whole often provide useful indicators of congressional

intent.").

The FCA provision that immediately follows

§ 3730(c)(2)(A) -- § 3730(c)(2)(B) -- authorizes the government to

settle a qui tam action over the objections of the relator so long

as the court "determines, after a hearing, that the proposed

settlement is fair, adequate, and reasonable under all the

circumstances." The absence of such detailed language in

§ 3730(c)(2)(A) strongly suggests that Congress did not intend to

condition the granting of the government's motion to dismiss on a

judicial determination of fairness or reasonableness. See State

Farm Fire & Cas. Co. v. United States ex rel. Rigsby, 137 S. Ct.

436, 442 (2016) ("This Court adheres to the general principle that

Congress' use of 'explicit language' in one provision 'cautions

against inferring' the same limitation in another provision."

(quoting Marx v. Gen. Revenue Corp., 568 U.S. 371, 384 (2013))).

Indeed, it makes sense that Congress would provide for more

stringent review of a settlement than of a motion to dismiss. A

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dismissal often allows for a new action to be brought later -- if

the dismissal is without prejudice -- while a settlement ordinarily

bars subsequently filed claims. See RFF Fam. P'ship, LP v. Ross,

814 F.3d 520, 532 (1st Cir. 2016). For this reason, then, any

standard pursuant to which the district court performs a searching

inquiry into the fairness or reasonableness of the government's

motion to dismiss is inapt for § 3730(c)(2)(A).

Nor do we consider the Ninth Circuit's Sequoia Orange

standard to be appropriate. That standard puts the burden on the

government to justify its motion to dismiss. See Sequoia Orange,

151 F.3d at 1145 (requiring that the government identify "a

rational relation between dismissal and accomplishment of [a valid

government] purpose" (internal quotation marks omitted)). But the

FCA does not allocate such a burden to the government. We simply

see no basis in the statutory language for requiring the government

to make a prima facie showing that its motion is rational,

reasonable, or otherwise proper.8

8As the government notes, the Sequoia Orange court, in
adopting a standard originally proposed by the district court,
cited a Senate Report related to the False Claims Amendments Act
of 1986. See Sequoia Orange, 151 F.3d at 1145 (citing S. Rep. No.
99-345, at 26 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5291).
We agree with the D.C. Circuit that this portion of the Senate
report, which "relates to an unenacted Senate version of the 1986
amendment," does not support reading so much into the statutory
text. Swift, 318 F.3d at 253; see also United States ex rel.
Bledsoe v. Cmty. Health Sys., Inc., 342 F.3d 634, 648 (6th Cir.
2003) (explaining that the court was "not persuaded" on the meaning

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 In puzzling out the meaning of the § 3730(c)(2)(A)

hearing requirement, some courts have turned for guidance to

Federal Rule of Civil Procedure 41, which generally governs the

voluntary dismissal of civil suits. See CIMZNHCA, 970 F.3d at

849-50; Polansky v. Exec. Health Res. Inc., 17 F.4th 376, 387-90

(3d Cir. 2021) (adopting the Seventh Circuit's approach).

Rule 41(a)(1)(A) provides that, "[s]ubject to . . . any applicable

federal statute," a plaintiff may dismiss an action without a court

order either where all parties who have appeared have signed a

stipulation of dismissal or where the opposing party has not yet

filed an answer or a motion for summary judgment. Fed. R. Civ.

P. 41(a)(1)(A). Absent a federal law to the contrary, a district

court has "no power to condition" a dismissal of this kind.

Universidad Cent. Del Caribe, Inc. v. Liaison Comm. on Med. Educ.,

760 F.2d 14, 19 (1st Cir. 1985). If there is no stipulation of

of another qui tam provision by the "quoted passage of the Senate
Report . . . [seemingly] refer[ring] to an earlier draft of the
1986 FCA amendments"). We are similarly unpersuaded by
Borzilleri's suggestion in his reply brief and at oral argument
that we should base our decision on one senator's post-enactment
statements regarding congressional intent behind the 1986 FCA
amendments. See Rhode Island v. Narragansett Indian Tribe, 19
F.3d 685, 699 (1st Cir. 1994)("T]he overarching rule is that
'statements by individual legislators should not be given
controlling effect'; rather, such statements are to be respected
only to the extent that they 'are consistent with the statutory
language.'" (quoting Brock v. Pierce Cnty., 476 U.S. 253, 263
(1986))).

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dismissal and the defendant has already filed a responsive

pleading, Rule 41(a)(2) provides that the suit may only be

dismissed "by court order, on terms that the court considers

proper." See Fed. R. Civ. P. 41(a)(2).

In CIMZNHCA, the Seventh Circuit concluded that, in the

qui tam context, Rule 41 indicates that a dismissal sought by the

government before the defendant has responded merely requires that

an opportunity for a hearing be provided to the relator -- even if

no particular judicial determination must necessarily be made at

that hearing. On the other hand, where the defendant has already

responded to the suit, the hearing would be an opportunity for the

court to determine what terms of dismissal are "proper." See

CIMZNHCA, 970 F.3d at 849-51.

We are unpersuaded by this application of Rule 41 to the

unique context of a qui tam action. Section 3730(c)(2)(A) on its

face creates a specific notice and hearing requirement that

operates in addition to the requirements of Rule 41 regardless of

whether the defendant has responded to the qui tam suit. See id.

at 850 (discussing § 3730(c)(2)(A) as an "applicable federal

statute" that adds a hearing requirement to the Rule 41 framework);

see also Fed. R. Civ. P. 41 advisory committee's note to 1937

adoption (noting that Rule 41 preserves the FCA's "[p]rovisions

regarding dismissal"). Further, the Rule 41 "terms that the court

considers proper" standard is inapt in the context of

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§ 3730(c)(2)(A). The overriding concern behind the "proper terms"

standard is the potential prejudice to the defendant from a

voluntary dismissal by the plaintiff. See, e.g., Doe v. Urohealth

Sys., Inc., 216 F.3d 157, 160-61 (1st Cir. 2000). This standard

is inapposite to the qui tam relator's unique situation as, in

effect, an objecting co-plaintiff. See Sequoia Orange, 151 F.3d

at 1145 (concluding that Rule 41 is inapplicable because it

"protects defendants from vexatious plaintiffs" while, in the

context of § 3730(c)(2)(A), "the plaintiffs, or relators, seek

protection from the dismissal decision of the real party in

interest, the government, under a specific statute establishing

unique relationships among the parties"). Rule 41 is therefore

not an appropriate guide for interpreting the distinct

requirements of § 3730(c)(2)(A).

We thus find limited insight into the role of the court

at the § 3730(c)(2)(A) hearing -- and the related question of the

government's burden -- in either the FCA itself or in the federal

rule governing motions for voluntary dismissal. The few clues we

have found, however, counsel against the wholesale adoption of

the primary approaches used by other courts -- in particular, the

Ninth Circuit's burden allocation approach, see Sequoia Orange,

151 F.3d at 1145; or the Seventh and Third Circuits' Rule-41-based

approach, see CIMZNHCA, 970 F.3d at 849-50; Polansky, 17 F.4th at

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387-90. Instead, we take a different approach consistent with the

statutory language and well-established principles of law.

III.

As we have indicated, we reject placing an initial burden

on the government to justify its motion because the statutory

language does not support the imposition of such a burden. That

said, the government is not obligation-free when it moves to

dismiss a qui tam suit -- it must provide its reasons for its

decision. The need for an explanation is implicit in the statute's

requirement that, before dismissal is granted, the relator be given

an "opportunity" for a hearing on the motion. See 31 U.S.C.

§ 3730(c)(2)(A). We agree with the D.C. Circuit that one purpose

of the hearing is to provide the relator a "formal opportunity to

convince the government not to end the case." Swift, 318 F.3d at

253. That purpose cannot be achieved if the relator is unaware of

the government's reasons for dismissal and, thus, is unable to

challenge them. Therefore, we conclude that the government must

always provide its reasons for seeking dismissal when it so moves.

The question then becomes, what is the role of the court

at a § 3730(c)(2)(A) hearing if the relator fails to convince the

government to withdraw its motion? Congress's silence on this

issue, and the absence of analogous contexts from which to draw

guidance, lead us to conclude that the court's role is to apply

commonly recognized principles for assessing government conduct -

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- the well-established "background constraints on executive

action." CIMZNHCA, 970 F.3d at 851. That is, the district court

at a § 3730(c)(2)(A) hearing should grant the government's motion

to dismiss unless the relator, having failed to persuade the

government to withdraw its motion, can show that the government's

decision to seek dismissal of the qui tam action transgresses

constitutional limitations or that, in moving to dismiss, the

government is perpetrating a fraud on the court.

It is axiomatic that constitutional limitations attend

any exercise of executive authority. See United States v.

Armstrong, 517 U.S. 456, 464 (1996). This is the case even for a

government decision not to institute an enforcement action -- a

decision roughly analogous to the government's decision to dismiss

a qui tam suit -- where the government is entitled to the greatest

discretion. See Heckler v. Chaney, 470 U.S. 821, 838 (1985)

(holding that agency decisions not to institute enforcement

proceedings are unreviewable under the APA but reserving the

question of the reviewability of a claim that an agency decision

not to institute proceedings "violated any constitutional

rights"); see also CIMZNHCA, 970 F.3d at 851 ("[T]here are always

background constraints on executive action, even in the quasi-

prosecutorial context of qui tam actions and the decisions to

dismiss them."). For example, we think it beyond debate that the

government could not dismiss a qui tam action if its decision to

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seek dismissal is "based on 'an unjustifiable standard such as

race, religion, or other arbitrary classification'" in violation

of equal protection principles. Armstrong, 517 U.S. at 464

(quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)).

The limitations on the government's right to dismiss a

qui tam suit also would include instances in which the dismissal

would be "arbitrary in the constitutional sense." Cnty. of

Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (quoting Collins v.

City of Harker Heights, 503 U.S. 115, 129 (1992)). Government

action is "arbitrary in the constitutional sense" when it

"violate[s] a right otherwise protected by the substantive Due

Process Clause" and "shock[s] the conscience," Martínez v. Cui,

608 F.3d 54, 64 (1st Cir. 2010), or when government officials abuse

their power and "employ[] it as an instrument of oppression" to

the extent that it "shocks the conscience," Lewis, 523 U.S. at 846

(quoting Collins, 503 U.S. at 126).

The district court should also deny the government's

motion if the relator can show that, in moving to dismiss the qui

tam action, the government is attempting to perpetrate a fraud on

the court. See CIMZNHCA, 970 F.3d at 852; Swift, 318 F.3d at 253

(entertaining, but not deciding, that possibility). Courts always

"possess[] the inherent power to deny the court's processes to one

who defiles the judicial system by committing a fraud on the

court." Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.

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1989). Generally, "fraud on the court" describes a party's

"unconscionable scheme calculated to interfere with the judicial

system's ability impartially to adjudicate a matter by improperly

influencing the trier or unfairly hampering the presentation of

the opposing party's claim or defense." Id. (finding "fraud on

the court" where a party knowingly submitted a fabricated document

with its pleadings). Simply put, "fraud on the court" is egregious

conduct that is more serious than the mere making of "[i]naccurate

assertions in lawsuits." Torres v. Bella Vista Hosp., Inc., 914

F.3d 15, 19 (1st Cir. 2019).

Borzilleri points to the FCA provision stating that

"[t]he Attorney General diligently shall investigate a violation"

of the FCA, 31 U.S.C. § 3730(a), to argue that the district court

should assess the government's "diligence" before dismissing a qui

tam suit. However, using § 3730(a)'s general statutory directive

to the government to create a "diligence" standard in

§ 3730(c)(2)(A) is problematic for several reasons.

First, and most importantly, a "diligence" inquiry is

not even hinted at in the text of § 3730(c)(2)(A). Second, a

searching "diligence" inquiry would necessarily require the court

to review investigatory decisions over which the government

ordinarily retains wide discretion. See Chaney, 470 U.S. at 831-

32. It would be odd to have courts micromanage government

investigations when the statute also provides that the government

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ultimately has discretion whether to pursue any false claims that

it identifies through those investigations. See 31 U.S.C.

§ 3730(a) ("If the Attorney General finds that a person has

violated or is violating [the FCA], the Attorney General may bring

a civil action under this section against the person." (emphasis

added)). Indeed, we cannot identify any reported cases -- and

Borzilleri has not pointed to any -- in which the "diligent

investigation" language has been used as a substantive standard

constraining government action. Third, assessing the government's

diligence concerning a complex FCA suit like Borzilleri's could

result in a time-consuming mini-trial -- a process that would be

especially inappropriate where, as here, the government is

claiming that the relator's suit will be a drain on government

resources and is unlikely to result in recovery. Fourth, the FCA

does not necessarily prevent the government from later filing suit

to pursue the substance of the claims in a dismissed qui tam action

if the government later determines that such a suit is appropriate.

See, e.g., United States v. L-3 Commc'ns EOTech, Inc., 921 F.3d

11, 14-16 (2d Cir. 2019) (describing a dispute over recovery that

arose when the government filed and settled an FCA suit after the

dismissal of a qui tam action based on the same allegations). A

deep dive into the government's investigatory strategy at a

§ 3730(c)(2)(A) hearing -- including the question of why the

government believes the pending qui tam suit is not the best

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vehicle for addressing potential FCA violations -- could

prematurely reveal sensitive details of the government's

investigation to the defendants, thus ultimately hampering FCA

enforcement. We see no reason to adopt an extra-textual standard

that would not necessarily advance, and may hinder, the purposes

of the FCA.9

We emphasize again that the burden is always on the

relator to demonstrate that the government is transgressing

constitutional limits or perpetrating a fraud on the court.

Moreover, if the relator seeks discovery to establish such

improprieties, the court may grant that request only if the relator

makes a substantial threshold showing to support his claims. See

Swift, 318 F.3d at 254 (describing the standard for demonstrating

"entitle[ment] to discovery of information relating to

9 Borzilleri also points to another of the FCA's provisions,
§ 3730(b)(1), which authorizes relators to bring suit under the
FCA in the government's name and provides, "The action may be
dismissed only if the court and the Attorney General give written
consent to the dismissal and their reasons for consenting." To
the extent Borzilleri seeks to derive some sort of substantive
constraint on the government from this provision, his argument is
unavailing. Given the existence of § 3730(c)(2)(A) in the
statutory scheme, it is clear that (b)(1) only applies where the
relator moves to dismiss a suit he has brought in the government's
name. See Minotti v. Lensink, 895 F.2d 100, 104 (2d Cir. 1990)
(per curiam) ("[T]he consent provision ensures that legitimate
claims against an alleged wrongdoer are not dismissed before the
United States has been notified of the claims or has had an
opportunity to proceed with the action."). If (b)(1) is at all
relevant to our analysis, it only serves to highlight the lack of
stringent requirements for dismissal in § 3730(c)(2)(A).

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prosecutorial decisions"); see also United States v. Everglades

Coll., Inc., 855 F.3d 1279, 1290 (11th Cir. 2017) (discussing

discovery in the context of 31 U.S.C. § 3730(c)(2)(B)). Where the

relator cannot make that showing -- and cannot otherwise support

his claim of impropriety by the government -- the district court

should grant the government's motion to dismiss.

In summary, the § 3730(c)(2)(A) hearing has two

purposes: (1) providing an opportunity for the relator to attempt

to convince the government to withdraw its motion to dismiss; (2)

allowing the court to assess any claim by the relator that, in

seeking dismissal, the government is transgressing constitutional

limitations or perpetrating a fraud on the court. If the relator

seeks discovery to support his claim of impropriety by the

government, the court may grant the request only if the relator

makes the substantial threshold showing noted above. Because the

circumstances leading to a finding that the government is

transgressing constitutional limits or committing a fraud on the

court are necessarily case-specific, we leave further elaboration

of these concepts to future cases. Such circumstances may only

rarely be presented when the government moves to dismiss a qui tam

suit. Nonetheless, the § 3730(c)(2)(A) hearing is a meaningful

opportunity for the relator to challenge the government's motion

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on the grounds we have identified.10 See CIMZNHCA, 970 F.3d at 853

("Whenever a party has the right to invoke the court's aid, it has

the obligation to do so with at least a non-frivolous expectation

of relief under the governing substantive law. That is not always

possible, but that does not make the right meaningless." (citation

omitted)).

IV.

Turning at last to the merits of the appeal, we review

de novo Borzilleri's contention that the district court erred in

dismissing his suit because he raised deficiencies in the

government's investigation,11 cognizant that we may affirm on any

basis apparent in the record. Chiang v. Verizon New Eng., Inc.,

595 F.3d 26, 34 (1st Cir. 2010).

10 Although we have identified two specific grounds that may
provide a basis for denying the government's motion to dismiss, we
do not foreclose the possibility that there are other grounds that
might be cognizable by a court in future cases. However, we
emphasize that any such grounds would have to involve government
wrongdoing comparable in severity to the wrongdoing required to
establish a constitutional transgression by the government or
fraud on the court.
11Both parties appear to assume we will apply de novo review
to the district court's decision on the government's motion to
dismiss. Without the benefit of briefing on this subject, and in
the absence of a developed consensus on this issue in our sister
circuits, we make no judgment on the appropriateness of that
assumption. Instead, we assume, without deciding, that the
applicable standard of review is de novo and engage in that plenary
review, to Borzilleri's benefit.

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 Borzilleri details several interactions he had with

government officials that he claims reveal a failure by the

government to thoroughly investigate his allegations. He further

argues that these interactions show "a high likelihood of

investigative fraud" by the government, although he offers no

details about that potential fraud. Hence, we understand his fraud

argument to be a reiteration of his claim of investigative

inadequacy and a reflection of his belief that the government

should have further pursued, rather than dismissed, what he saw as

a promising qui tam action potentially worth billions of dollars.

Finally, Borzilleri maintains that the alleged investigative

deficiencies reflect arbitrariness in the government's decision to

dismiss the action. Taken together, these arguments echo

Borzilleri's overarching theme that the government failed to

pursue his FCA claims to the extent or in the manner he would have

liked.

The government represented that it conducted a multi-

year investigation of Borzilleri's allegations, including a review

of tens of thousands of documents, interviews with more than thirty

witnesses, consultations with regulatory experts within the U.S.

Department of Health and Human Services, and the retention of

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expert consultants.12 In this light, we agree with the district

court that Borzilleri's arguments ultimately constitute no more

than disagreements with the government's judgment about the

contours of the investigation and its potential for success. See

Borzilleri, 2019 WL 5310209, at *2-3. Borzilleri therefore failed

to demonstrate the transgression of constitutional limits or fraud

on the court, and the district court properly granted the

government's motion to dismiss.13

Affirmed.

In its briefing to the district court, the government
12

offered to formally "attest to these facts regarding its
investigative efforts in a declaration," but the district court
apparently never took the government up on its offer. This is
unsurprising. The government's representations that it undertook
its own substantial investigatory efforts are not really in
dispute. Although Borzilleri quarrels with the government's
tactics (for example, before the district court, he lamented that
the government only formally deposed one defendant witness), his
own declaration to the district court documents the government's
extensive investigatory efforts, however misdirected Borzilleri
believes they may have been. In any event, as we have explained,
the government was not obligated to establish that it had expended
a certain amount of investigatory effort before moving to dismiss
the qui tam suit.
Borzilleri argues in the alternative that his claims about the
13

inadequacy of the government investigation were sufficiently plausible
to warrant discovery from the government and an evidentiary hearing.
We review a trial court's refusal to grant discovery for abuse of
discretion, see Markham Concepts, Inc. v. Hasbro, Inc., 1 F.4th 74, 86
(1st Cir. 2021), and we find none. As explained above, a relator
seeking discovery from the government regarding its reasons for
dismissing a qui tam action must make a substantial threshold showing
of impropriety of the sort we have discussed. See supra Section III.
Here, Borzilleri failed to do so.

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