While we have been 'distracted' by COVID19…..Senator Grassley Pushes Back on Barr’s/DOJ's View of Its Right to Seek to Dismiss WHISTLEBLOWER ACTIONS….ARGUMENTS OVER THE WORD 'HEARING'
As a principal author of the 1986 FCA amendments that substantially expanded the whistleblower provisions, Senator Grassley argued that he could “confidently say” that the text of the FCA plainly states that the court—not DOJ—should decide whether the government’s motion to dismiss a qui tam claim succeeds.
WHAT DOES THE WORD 'HEARING' MEAN?
DOJ reads “hearing” simply to mean an “opportunity to be heard” or to “publicly persuade” DOJ to abandon its motion to dismiss. To Senator Grassley, however, “hearing” means much more—“an adjudicative procedure where the court acts as an arbiter.” The “technical” legal meaning of “hearing,” Senator Grassley argues, entails a judicial session for the purpose of deciding issues of fact or law. Similarly, the ordinary, non-legal meaning of “hearing” entails a court proceeding in a forum wherein a judge has decision-making authority. Thus, applying both the legal and ordinary meanings of “hearing,” the FCA mandates that the court have the final say when DOJ moves to dismiss a qui tam. If Congress had intended “hearing” to mean only an “opportunity to be heard,” Congress would have said so, according to Senator Grassley, as it has in numerous other statutes. And if Congress had intended that DOJ have unfettered discretion to dismiss, Congress would simply have omitted the language on the hearing from the statute.
https://www.grassley.senate.gov/sites/default/files/2020-05-04%20CEG%20to%20DOJ%20%28FCA%20Dismissal%20authority%29.pdf