Implications Of DOJ’s New Expedited Review Of Benefits Fraud Qui Tam Actions

On May 27, 2026, Assistant Attorney General Brett A. Shumate of the U.S. Department of Justice’s Civil Division issued a memorandum intended to expedite the review and promote the pursuit of False Claims Act (FCA) qui tam claims alleging fraud related to federally funded public benefits programs administered by states (the Memo).

The Memo, which implements a mandate from the White House’s March 16, 2026 Executive Order entitled “Establishing the Task Force to Eliminate Fraud,”¹ outlines what DOJ describes as a streamlined protocol that will “expedite potentially meritorious qui tam cases and supplement the government’s finite resources.”² The new protocol imposes strict deadlines for the review and investigation of qui tam claims and requires high-level DOJ approvals for deadline extensions. The Memo also outlines factors that militate in favor of DOJ deciding that the relator should assume primary responsibility for litigating the matter. Significantly, the Memo notes that the new protocol “will increase the number of benefits fraud matters primarily litigated by relators,” yet also states that DOJ “expects that its attorneys will continue to assume primary responsibility for investigating and pursuing the majority of incoming qui tam matters.”³

When considered alongside other recent DOJ initiatives targeted at increasing cooperation with FCA relators,⁴ the Memo makes clear that relators will continue to be one of DOJ’s key, if not primary, means of pursuing FCA cases and that DOJ will increasingly rely on relators to assume primary responsibility for litigation of FCA cases in order to minimize costs and burdens on DOJ.

Further, the new protocol’s “whole-of-government approach” contemplates referrals of allegations in qui tam claims to criminal and administrative authorities, thereby increasing the risk of exposure to criminal and administrative actions.

The new protocol and its implications for the named defendants in sealed qui tam complaints are discussed below.

Accelerated DOJ review for making initial determinations and subsequent expedited investigation

According to the Memo, DOJ will now strive to review new qui tam claims alleging benefits fraud within the FCA’s mandated 60-day seal period, but no later than 120 days (the Review Period). During this Review Period, DOJ attorneys are required to make one of the following three determinations: (1) permit the relator to proceed with and assume primary responsibility for litigating the claims, (2) conclude that additional investigative steps by DOJ are warranted, or (3) seek dismissal of the relator’s claim due to lack of adequate specificity or a legal deficiency.

The Memo specifies several factors that favor permitting the relator to proceed and assume primary responsibility for litigating the matter, which is the first possible determination as outlined in the new protocol. Those factors include the following: i) the complaint alleges conduct that would constitute a violation of the FCA and is supported by available information, including data analytics, agency information, or the relator’s inside information; ii) the complaint alleges a scheme that is not particularly novel or complex; iii) certain aggravating factors are present; and iv) potential damages are below the settlement authority delegated to the Director of Civil Frauds, which is USD10M.⁵

Where DOJ decides to permit the relator to litigate the matter without the benefit of government intervention, the Memo requires DOJ lawyers to communicate the expectation that the relator and relator’s counsel will shoulder the litigation obligations and minimize “the burdens and costs on the government.”⁶ It also notes that the relator will proceed with the action subject to ongoing oversight by DOJ and ultimate control of the matter consistent with the FCA’s qui tam provisions, which is typical in declined qui tam cases.⁷ While the Memo does not specify the procedural steps DOJ will take once this particular determination is made, it would appear that in order for the complaint to be unsealed and for the relator to assume primary responsibility for litigating the matter, a declination of intervention would have to be filed by DOJ at this point in time.

If DOJ attorneys determine at the conclusion of the Review Period that further investigation is warranted, a decision will be made at that time regarding the assignment and handling of the matter within the Department. Then, the assigned DOJ attorneys are required to develop an investigative plan that can be completed within 120 days (the Investigation Period).⁸ If the assigned DOJ attorneys wish to extend the Investigation Period beyond the 120 days, they must obtain permission from the Deputy Assistant Attorney General of the DOJ’s Commercial Litigation Branch to extend for up to 120 days (that is, 240 days in total).⁹ Any extensions beyond this 240-day Investigation Period must be approved by the Assistant Attorney General of the Civil Division.¹⁰

Regarding the third possible determination at the end of the Review Period—to seek dismissal—the Memo does not purport to change the factors DOJ evaluates when considering whether it should move to dismiss a qui tam complaint.

Objectives and “whole-of-government approach”

The Memo provides that the streamlined protocol will not only expedite potentially meritorious qui tam claims and supplement the government’s finite resources, it will also allow the government to focus its efforts on “the largest, most complex, and harmful fraud schemes.” Similarly, in its press release announcing the new protocol, DOJ notes that by speeding up its review of benefits fraud qui tam claims, the Department will “more rapidly identify and disrupt emerging schemes, strategically deploy enforcement resources to recover taxpayer money, and strengthen the government’s broader fight against fraud.”

To that end, DOJ will also employ a “whole-of-government approach” to benefits fraud claims “to ensure . . . accelerated review and evaluation of all enforcement options.” Under this approach, DOJ will share reviewed qui tam claims with the DOJ Criminal Division and/or the new National Fraud Task Force to evaluate potential criminal violations, and with any affected agency to evaluate potential administrative actions.

Key takeaways

The newly announced protocol, if successfully implemented, is likely to have several profound impacts in both the short and medium term:

• Quicker declination and dismissal motion decisions and a flood of newly unsealed qui tam complaints: The new protocol outlines specific factors that weigh in favor of DOJ permitting relators to assume primary responsibility for litigating the claims, which is essentially a decision to decline intervention and unseal the complaint. Further, the protocol requires that decisions to permit the relator to assume primary responsibility for litigating the case, as well as decisions to move to dismiss the case, be made within 60 days and no more than 120 days. Accordingly, we should expect to see a spike in qui tam complaints being declined and unsealed or being subject to dismissal motions later this year. We will also begin to see the time between the sealed complaint being filed and the government making its intervention decision shrinking.

• Tighter and more rigid deadlines for responding to Civil Investigative Demands (CIDs) issued in connection with new qui tam complaints: Given the newly mandated 120-day deadline for completing an FCA investigation, and the requirement of high-level DOJ approvals for an extension of that deadline, CID recipients and their counsel can no longer assume that reasonable requests for extensions of time to comply with a CID will be granted by the assigned DOJ attorneys. Now, DOJ attorneys’ discretion to extend the time within which a CID recipient can respond to a CID is greatly limited due to the accelerated deadlines for completion of the Investigation Period and the high-level approvals required to extend those deadlines. Indeed, if a CID recipient wanted more than eight months to complete their response—a timeframe that was previously somewhat common with complex CIDs—the recipient would need a DOJ attorney willing to go to the head of the Civil Division to seek approval—a request that no DOJ attorney would take lightly and one that would be made only if the DOJ attorney could articulate why this particular CID is exceptional.

• An increase in relators filing sealed qui tam complaints: The announcement that there will be an expedited review of new qui tam claims will further incentivize relators to step forward and file sealed qui tam complaints due to the prospect that the time between filing and a potential recovery will be greatly decreased.

• Simultaneous scrutiny by multiple government authorities: The “whole-of-government approach” in the new protocols involving referrals to criminal and administrative authorities means potential exposure to criminal and administrative actions. It also increases the likelihood that other government authorities will commence their own independent investigations, requiring companies to defend against parallel investigations of related allegations.

• Expected challenges that DOJ will face in implementing the new protocol: The Memo is an ambitious attempt to expedite DOJ’s review and investigation of qui tam complaints. With the DOJ’s historically low staffing levels, there will be challenges with meeting this compressed timeframe. The initial review during the Review Period has been streamlined in such a way that a relatively small number of DOJ attorneys who have substantial experience with these kinds of cases could quickly determine how the government should proceed. Completing the investigation in cases where further investigation is warranted in 120 or even 240 days will be a challenge, as the resources associated with investigating a large, allegedly fraudulent claim scheme are massive, and much of the investigation window will be consumed by the CID recipient finding and producing responsive material.

Footnotes

1 See Exec. Order No. 14395, 91 Fed. Reg. 13485 § 6 (Mar. 19, 2026), https://www.federalregister.gov/d/2026-05497.

2 Shumate Memo, supra note 1.

3 Id.

4 See Suzanne Jaffe Bloom, Amandeep S. Sidhu, Annette Mackinnon, & Lydia Wuorinen, DOJ Launches FOCUS Initiative, Signaling Increasingly Data-Driven Era of FCA Enforcement, Winston Taylor FCA Playbook Blog (May 14, 2026), https://www.winstontaylor.com/insights/doj-launches-focus-initiative-signaling-increasingly-data-driven-era-of-fca-enforcement.

5 Id.

6 Id.

7 Id.

8 Id.

9 Id.

10 Id.

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