                                         PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 ____________

                      No. 18-2311
                     ____________

        WEIH STEVE CHANG, United States of
        America and State of Delaware, Ex Rel.

                           v.

 CHILDREN’S ADVOCACY CENTER OF DELAWARE

                    Weih Steve Chang,
                               Appellant
                    ____________

     On Appeal from the United States District Court
              for the District of Delaware
              D.C. No. 1-15-cv-00442
         District Judge: Hon. Gregory M. Sleet
                     ____________

                  Argued: July 2, 2019

Before: McKEE, PORTER, and RENDELL, Circuit Judges.

              (Filed: September 12, 2019)
                     ____________



Michael J. Confusione [Argued]
HEGGE & CONFUSIONE, LLC
P.O. Box 366
Mullica Hill, NJ 08062-0366

     Counsel for Plaintiff-Appellant Weih Chang
David C. Weiss
Dylan J. Steinberg [Argued]
Jesse S. Wenger
UNITED STATES DEPARTMENT OF JUSTICE
1313 N. Market Street
P.O. Box 2046
Wilmington, DE 19899-2046

      Counsel for Plaintiff-Appellee
      United States of America

Edward K. Black
DELAWARE DEPARTMENT OF JUSTICE
820 North French Street, 6th Floor
Wilmington, DE 19801

      Counsel for Plaintiff-Appellee
      State of Delaware

Kimberly A. Boyer-Cohen
MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN
2000 Market Street
Philadelphia, PA 19103

      Counsel for Defendant-Appellee Children’s
      Advocacy Center of Delaware

                    _________________

                OPINION OF THE COURT
                   _________________


PORTER, Circuit Judge.

        Weih Chang appeals the District Court’s orders
dismissing his complaint under the False Claims Act (“FCA”)
and its Delaware counterpart. He argues that the District
Court was obliged under those statutes to hold an in-person
hearing before dismissing his claims. We disagree, so we will
affirm.



                             2
                               I

                               A

       The FCA prohibits the submission of false claims for
payment to the United States. See 31 U.S.C. § 3729(a)(1);
United States ex rel. Petratos v. Genentech Inc., 855 F.3d
481, 486 (3d Cir. 2017). To incentivize its own enforcement,
the FCA allows private individuals to sue for alleged
violations—called qui tam suits—and offers them a
percentage of an eventual recovery. See 31 U.S.C. § 3730(d).

        In a typical qui tam action, a private party (called a
“relator”) sues a defendant on behalf of the government for
alleged FCA violations. The United States then has 60 days
(plus any granted extensions) to review the claim and decide
whether it will “elect to intervene and proceed with the
action.” § 3730(b)(2). If the government intervenes, the
relator has the right to continue as a party, but the government
assumes the “primary responsibility for prosecuting the
action.” § 3730(c)(1). If the government chooses not to
intervene, the relator may still “conduct the action.”
§ 3730(c)(3).

       Yet even under the latter scenario, the government
may still “dismiss the action notwithstanding the objections
of the person initiating the action if the person has been
notified by the Government of the filing of the motion and the
court has provided the person with an opportunity for a
hearing on the motion.” § 3730(c)(2)(A).

                               B

      Chang filed a qui tam action against the Children’s
Advocacy Center of Delaware, asserting claims on behalf of
the United States and the State of Delaware under the FCA
and the Delaware False Claims Act (“DFCA”).1 In short,
Chang alleged that the Center had applied for and received


       1
        The FCA and the DFCA are materially identical for
the purposes of this opinion. Compare 31 U.S.C.
§ 3730(c)(2)(A), with Del. Code Ann. tit. 6, § 1204(b).

                               3
funding from the state and federal governments by
misrepresenting certain material information. Both
governments declined to intervene as plaintiffs, so Chang
filed an amended complaint and the Center answered.

        Nearly three years after Chang had filed his original
complaint, the United States and Delaware each moved to
dismiss the case. The governments asserted that they had
investigated Chang’s allegations and discovered them to be
“factually incorrect and legally insufficient.” App. 114.
Chang filed a consolidated opposition to the motions,
contending that the Court should await summary judgment
rather than dismiss the case, but did not request oral argument
or a hearing.

      The District Court granted the governments’ motions
without conducting an in-person hearing or issuing a
supporting opinion. Chang timely appealed.

                              II

        The District Court had jurisdiction under 28 U.S.C.
§§ 1331 and 1367, and 31 U.S.C. § 3732. We have appellate
jurisdiction under 28 U.S.C. § 1291. We review the District
Court’s grant of the governments’ motions to dismiss de
novo. See Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d
Cir. 2005).

                              III

       The issue presented is whether the District Court erred
by granting the governments’ motions to dismiss Chang’s qui
tam action without first conducting an in-person hearing. Put
another way, since Chang never requested a hearing, does the
FCA guarantee an automatic in-person hearing to relators
before their cases may be dismissed? Chang says that it does.
We disagree.

       The parties presented this appeal as an opportunity for
us to take a side in a putative circuit split. On one hand, the
Ninth Circuit says that courts have approval authority over
the government’s decision to dismiss a qui tam suit. See
United States ex rel. Sequoia Orange Co. v. Baird-Neece

                              4
Packing Corp., 151 F.3d 1139, 1145–46 (9th Cir. 1998). This
test requires the government to show (1) “a valid government
purpose” and (2) “a rational relation between dismissal and
accomplishment of the purpose.” Id. at 1145. If the
government meets these prongs, “the burden switches to the
relator to demonstrate that dismissal is fraudulent, arbitrary
and capricious, or illegal.” Id. The Tenth Circuit has also
adopted this standard. See United States ex rel. Ridenour v.
Kaiser-Hill Co., LLC, 397 F.3d 925, 934–35 (10th Cir. 2005).

        The D.C. Circuit, by contrast, has held that the United
States has “an unfettered right” to dismiss a qui tam case. See
Swift v. United States, 318 F.3d 250, 252–53 (D.C. Cir.
2003); Hoyte v. Am. Nat’l Red Cross, 518 F.3d 61, 65 (D.C.
Cir. 2008). The Executive, says that court, has “absolute
discretion” under the Take Care Clause of the Constitution on
“whether to bring an action on behalf of the United States,”
and the FCA nowhere purports to take that discretion away.
Swift, 318 F.3d at 252–53 (citing Heckler v. Chaney, 470 U.S.
821, 830 (1985)).

      We need not take a side in this circuit split because
Chang fails even the more restrictive standard.

       The government has an interest in minimizing
unnecessary or burdensome litigation costs. See Sequoia, 151
F.3d at 1146 (“[T]he government can legitimately consider
the burden imposed on the taxpayers by its litigation[;] …
even if the relators were to litigate the FCA claims, the
government would continue to incur enormous internal staff
costs.”); Swift, 318 F.3d at 254 (“[T]he government’s goal of
minimizing its expenses is … a legitimate objective, and
dismissal of the suit furthered that objective.”). The United
States and Delaware both cited this goal in their motions to
dismiss. And dismissing a case is, of course, the easiest way
to achieve that objective.

       Once the governments moved to dismiss, the burden
then shifted to Chang “to demonstrate that dismissal is
fraudulent, arbitrary and capricious, or illegal.” Sequoia, 151
F.3d at 1145. He failed to do so, but says that this is beside
the point because the FCA guarantees him an automatic in-


                              5
person hearing at which he should have been allowed to
introduce evidence to satisfy his burden.

        The plain language of both the FCA and the DFCA
provides relators an “opportunity for a hearing” when the
government moves to dismiss. 31 U.S.C. § 3730(c)(2)(A);
Del. Code tit. 6, § 1204. Chang would have us hold that the
District Court erred by not sua sponte scheduling and
conducting an in-person hearing, even though Chang never
requested one. An “opportunity for a hearing,” however,
requires that relators avail themselves of the “opportunity.”
Indeed, most courts that have considered this language have
held that an in-person hearing is unnecessary unless the
relator expressly requests a hearing or makes a colorable
threshold showing of arbitrary government action. See, e.g.,
Sequoia Orange, 151 F.3d at 1145 (“A hearing is appropriate
‘if the relator presents a colorable claim that the settlement or
dismissal is unreasonable in light of existing evidence, that
the Government has not fully investigated the allegations, or
that the Government’s decision was based on arbitrary or
improper considerations.’” (quoting S. Judiciary Comm.,
False Claims Amendments Act of 1986, S. Rep. No. 99-345,
at 26 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5291));
cf. Swift, 318 F.3d at 251 (noting that the district court held a
hearing when the relator “opposed dismissal and requested a
hearing”).2 We find these decisions persuasive.3 We thus hold




       2
         See also, e.g., United States ex rel. Mateski v.
Mateski, 634 F. App’x 192, 194 (9th Cir. 2015) (“The district
court did not err in denying Mateski a hearing in this case
because Mateski is only entitled to a hearing if he presents a
colorable claim[.]”); Martin v. United States Dep’t of Agric.,
No. CV 118-009, 2019 WL 166554, at *3 (S.D. Ga. Jan. 10,
2019) (“[T]he Court finds that it is unnecessary to hold a
hearing in this case before granting the Government’s motion
to dismiss.”); United States v. Acad. Mortg. Corp., No. 16-
CV-02120-EMC, 2018 WL 1947760, at *2 (N.D. Cal. Apr.
25, 2018) (“The relator is not entitled to an evidentiary
hearing as a matter of right.”).

                               6
       3
          We note that some courts hold that a “hearing” in this
context includes written submissions. See, e.g., United States
ex rel. Sibley v. Delta Reg’l Med. Ctr., No.
417CV000053GHDRP, 2019 WL 1305069, at *10 (N.D.
Miss. Mar. 21, 2019) (“Sibley also contends that she is
entitled to an evidentiary hearing as a matter of right. Not so.
Again, Sibley cites no statutory basis for that request. As
numerous courts have held, the hearing requirement is
satisfied by allowing the relator an opportunity to submit a
response to the motion.” (internal quotation marks and
citations omitted)); United States ex rel. May v. City of
Dallas, No. 3:13-CV-4194-N-BN, 2014 WL 5454819, at *4
(N.D. Tex. Oct. 27, 2014) (“Under 31 U.S.C. §
3730(c)(2)(A), a relator is entitled to ‘an opportunity for a
hearing on the motion [to dismiss].’ As the undersigned noted
in affording Relator an opportunity to respond to the motion
to dismiss, the hearing requirement is satisfied by allowing
the relator an opportunity to submit a response to the
motion[.]” (citations omitted)). This approach is analogous to
our decision that the phrase “civil, criminal, or administrative
hearing” in a similar FCA provision encompasses any
“allegations and information disclosed in connection with
civil, criminal, or administrative litigation.” United States ex
rel. Stinson, Lyons, Gerlin & Bustamante, P.A. v. Prudential
Ins. Co., 944 F.2d 1149, 1156 (3d Cir. 1991). We take no
position on whether this is the correct interpretation of
“hearing” in this context.

                               7
that the dismissal provisions in the FCA and DFCA do not
guarantee an automatic in-person hearing in every instance.4

       Chang never requested a hearing. Nor did his
opposition demonstrate that the governments’ motions were
arbitrary or capricious. So the District Court did not err in
granting the governments’ motions to dismiss his qui tam
action without holding an in-person hearing. We will affirm
the orders of the District Court.




      4
          The need for a request to trigger a hearing is
supported by the Supreme Court’s interpretation of
“opportunity for a public hearing” in similar administrative
contexts. See, e.g., Costle v. Pac. Legal Found., 445 U.S. 198,
202, 214 (1980) (holding that the EPA reasonably construed
the language “opportunity for a public hearing” as not
requiring a public hearing where none was requested); Nat’l
Indep. Coal Operators’ Ass’n v. Kleppe, 423 U.S. 388, 398
(1976) (“[The statute] provides the mine operators with no
more than ‘an opportunity’ for a hearing. The word
‘opportunity’ would be meaningless if the statute
contemplated formal adjudicated findings whether or not a
requested evidentiary hearing is held. … [T]he language of
the statute … requires the Secretary to make formal findings
of fact … only when the mine operator requests a hearing.
The requirement for a formal hearing … is keyed to a request,
and the requirement for formal findings is keyed to the same
request.”).

                              8
