On May 27, 2026, the Department of Justice (DOJ) issued a memorandum announcing significant changes intended to accelerate False Claims Act (FCA) investigations of alleged public benefits fraud.  According to the memorandum, DOJ must now complete its pre-intervention review of public benefits suits—often a years-long process—in a matter of months.  In the memorandum, DOJ also makes clear that DOJ expects relators to play an increasing role in FCA enforcement in the years ahead.  The memorandum follows a March 16 Presidential Executive Order (EO) that addresses alleged fraud in state-administered, federally funded benefits programs.

The DOJ memorandum effectuates three significant changes to the agency’s protocol for investigating public benefits fraud.  It (1) dramatically reduces the timeframe for DOJ to investigate relator suits and make intervention decisions; (2) prioritizes relator management of FCA suits; and (3) instructs DOJ attorneys to consider using more aggressive investigative tools and modify case strategy in order to expedite their pre-intervention investigations.

Reduced Timeframe for DOJ to Review Relator Suits.  Despite the 60-day period provided by statute, DOJ often takes years to investigate allegations in a qui tam complaint and to make an intervention decision.  According to the DOJ memorandum, DOJ will now “prioritize, to the maximum extent practicable,” completing its initial review of public benefits qui tam suits within 60 days of their filing and “no later than 120 days” after filing.  At the conclusion of this review, DOJ must decide to (1) decline intervention, allowing the relator to proceed with the suit; (2) conclude that further DOJ investigation is required; or (3) move to dismiss the suit under DOJ’s dismissal authority in 31 U.S.C. § 3730(c)(2)(A).  If DOJ determines that further investigation is warranted, the ensuing investigation must also proceed on an expedited basis and be completed in 120 days.  Any additional extensions require approval from DOJ leadership, including potentially from the most senior political appointee in the Civil Division.  The upshot is that public benefits fraud investigations—and DOJ’s election decisions relating to those investigations—must be completed far more quickly than under DOJ’s current review process.

Increased Role for Relators.  To accelerate enforcement activity of alleged public benefits fraud, the DOJ memorandum contemplates an “increase[d] … number of benefits fraud matters primarily litigated by relators.”  In particular, the revised protocol anticipates that DOJ will decide not to intervene, and relators will “shoulder the obligations of the litigation,” in most public benefits fraud suits.  DOJ will instead “concentrate its efforts on dismantling and holding accountable sophisticated actors that are responsible for the largest, most complex, and harmful fraud schemes.”  The memorandum sets forth a non-exhaustive list of relevant criteria for identifying suits that DOJ expects relators to litigate:

• The complaint facially alleges a violation of the FCA and satisfies applicable pleading requirements;
• The complaint’s allegations are supported or corroborated by available information, including data analytics, agency information, or the relator’s inside information;
• The case does not involve a novel or complex scheme;
• The amount of potential damages at issue is less than $10 million; and
• The case involves “[a]ggravating factors,” including “beneficiary harm, ongoing misuse of federal funds, or concealment or deceit by the defendant.”

Revised Strategy Intended to Expedite Investigations.  For matters that DOJ concludes require additional investigation after the initial review, the memorandum instructs DOJ attorneys to take steps to expedite the investigation, including by using more aggressive investigative tactics and changing matter strategy.  In particular, the memorandum instructs DOJ attorneys to:

• Consider early witness interviews and oral examinations, which generally do not occur until later in investigations;
• File actions to enforce subpoenas and civil investigative demands, where a defendant has not timely responded to requests;
• Leverage relator’s counsel to help with the investigation; and
• Consider deferring detailed damages assessments until after an intervention decision is made, where the prospect of a pre-intervention settlement is not likely and there is evidence to support both liability and damages.

Taken together, the changes effectuated by the memorandum make clear that DOJ intends to focus—and move quickly—on alleged public benefits fraud, that the under-seal period for these cases will be dramatically reduced, and that DOJ hopes relators will be incentivized to litigate more of these cases.  WilmerHale represents corporate, institutional, governmental, and individual clients in a range of FCA matters, both in pre-suit investigations and in state and federal courts, and we stand ready to help any clients who may be facing allegations of public benefits fraud.