FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Appellant,

v.

UNITED STATES EX REL. GWEN 

THROWER,

Plaintiff-Appellee,

v.

ACADEMY MORTGAGE 

CORPORATION,

Defendant.

No. 18-16408

D.C. No.

3:16-cv-02120-

EMC

OPINION

Appeal from the United States District Court

for the Northern District of California

Edward M. Chen, District Judge, Presiding

Argued and Submitted November 14, 2019

San Francisco, California

Filed August 4, 2020
2 UNITED STATES V. UNITED STATES EX REL. THROWER

Before: Kim McLane Wardlaw, William A. Fletcher,

and Richard Linn,* Circuit Judges.

Opinion by Judge Wardlaw

SUMMARY**

False Claims Act / Collateral Order Doctrine

The panel dismissed for lack of jurisdiction an appeal 

from the district court’s order denying a government motion 

to dismiss a False Claims Act case.

The government declined to intervene in the case and 

then sought dismissal under 31 U.S.C. § 3730(c)(2)(A), 

which allows the United States to move to dismiss an FCA 

action notwithstanding the objections of the relator who 

brought the action. The district court denied the motion to 

dismiss both because the government failed to meet its 

burden of demonstrating a valid governmental purpose 

related to the dismissal and because it failed to fully 

investigate the allegations of the amended complaint.

The panel held that the district court’s order was not an 

immediately appealable collateral order. The panel 

concluded that this jurisdictional question was not decided 

by the Supreme Court in United States ex rel. Eisenstein v. 

* The Honorable Richard Linn, United States Circuit Judge for the 

U.S. Court of Appeals for the Federal Circuit, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. UNITED STATES EX REL. THROWER 3

City of N.Y., 556 U.S. 928 (2009). The panel held that the 

collateral order doctrine did not apply because the district 

court’s order did not resolve important questions separate 

from the merits. The panel concluded that the interests 

implicated by an erroneous denial of a government motion 

to dismiss an FCA case in which it has not intervened were 

insufficiently important to justify an immediate appeal.

COUNSEL

Melissa N. Patterson (argued), Michael S. Raab, and Charles 

W. Scarborough, Appellate Staff; David L. Anderson, 

United States Attorney; Joseph H. Hunt, Assistant Attorney 

General; Civil Division, United States Department of 

Justice, Washington, D.C.; for Plaintiff-Appellant.

J. Nelson Thomas (argued), Thomas & Solomon LLP,

Rochester, New York; Sanford J. Rosen and Van 

Swearingen, Rosen Bien Galvan & Grunfeld LLP, San 

Francisco, California; for Plaintiff-Appellee.

Jeffrey S. Bucholtz, Anne M. Voigts, and Bethany L. Rupert, 

King & Spalding LLP, Washington, D.C.; Steven P. 

Lehotsky and Michael B. Schon, United States Chamber 

Litigation Center, Washington, D.C.; for Amicus Curiae 

Chamber of Commerce of the United States of America.

Claire M. Sylvia, Phillips & Cohen LLP, San Francisco, 

California; Jacklyn N. DeMar, Taxpayers Against Fraud 

Education Fund, Washington, D.C.; Jennifer M. Verkamp, 

Morgan Verkamp LLP, Cincinnati, Ohio; for Amicus Curiae 

Taxpayers Against Fraud Education Fund.
4 UNITED STATES V. UNITED STATES EX REL. THROWER

OPINION

WARDLAW, Circuit Judge:

The False Claims Act (FCA) allows any person with 

knowledge that false or fraudulent claims for payment have 

been submitted to the federal government to bring a qui tam

suit1 on behalf of the United States against the perpetrator. 

If successful, the individual initiating the suit, known as the 

“relator,” keeps a percentage of any recovery, with the 

remainder going to the Government. Each year, suits 

initiated by private relators return billions of dollars to the 

public fisc.2

When a qui tam suit is filed, the Government may choose 

to intervene and prosecute the case itself. 31 U.S.C. 

§ 3730(b)(4)(A). If it declines to intervene, the relator has 

“the right to conduct the action.” Id. § 3730(b)(4)(B). Here, 

the Government notified the district court that it declined to 

intervene in a qui tam suit filed by relator Gwen Thrower. It 

then filed a motion seeking dismissal of the action under 

§ 3730(c)(2)(A) of the FCA. The district court denied the 

motion both because the Government failed to meet its 

burden of demonstrating a valid governmental purpose 

1 “[T]he phrase qui tam means an action under a statute that allows 

a private person to sue for a penalty, part of which the government or 

some specified public institution will receive.” United States ex rel. 

Kelly v. Serco, Inc., 846 F.3d 325, 330 n.4 (9th Cir. 2017) (internal 

alterations and quotation marks omitted).

2 In Fiscal Year 2019, FCA suits initiated by private relators 

recovered more than $2.2 billion, including almost $300 million in cases 

in which the Government declined to intervene. U.S. Dep’t of Justice, 

Fraud Statistics – Overview: October 1, 1986 – September 30, 2019

(2020), https://tinyurl.com/vvbvx5h.
UNITED STATES V. UNITED STATES EX REL. THROWER 5

related to the dismissal and because it failed to fully 

investigate the allegations of the amended complaint.

The Government filed an immediate appeal, asserting 

appellate jurisdiction under the collateral order doctrine. We 

are thus presented with a question of first impression in the 

federal courts: is a district court order denying a 

Government motion to dismiss an FCA case under 

§ 3730(c)(2)(A) an immediately appealable collateral order? 

We conclude that such orders fall outside the collateral order 

doctrine’s narrow scope and dismiss the appeal for lack of 

jurisdiction.

I.

Academy Mortgage Corporation (Academy) is a 

mortgage lender that participates in residential mortgage 

insurance programs run by the Federal Housing 

Administration (FHA). These government programs insure 

lenders against losses incurred on certain qualifying 

mortgages. While the insurance programs are designed to 

encourage the extension of credit to low income borrowers, 

they are also a boon to lenders, who earn income from the 

mortgages without bearing the risk of loss in the event of 

default. Because the Government is financially responsible 

if borrowers default on their loans, both borrowers and loans 

must meet certain eligibility criteria to qualify for FHA 

insurance. Participating lenders must certify that the 

mortgages they originate comply with these requirements.

Gwen Thrower works for Academy as an underwriter. 

She filed this FCA suit, detailing a scheme through which 

Academy certified loans for FHA insurance even though 

they failed to meet the Government’s requirements. Some 

of the insured loans were subsequently defaulted upon, 

resulting in financial losses that the Government was 
6 UNITED STATES V. UNITED STATES EX REL. THROWER

required to cover. Thrower alleged that the Government 

would not have insured the loans had it known about 

Academy’s lending practices, so Academy’s false 

certifications of compliance with government requirements 

amounted to false claims within the meaning of the FCA.

The Government declined to exercise its statutory right 

to intervene and prosecute the case itself and so notified the 

court. Under the FCA, Thrower then had the right to conduct 

the action herself. Id. § 3730(b)(4)(B). But instead of 

permitting her to do so, the Government moved to dismiss 

under 31 U.S.C. § 3730(c)(2)(A), which allows the United 

States to move to dismiss an FCA 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.” The Government 

argued that if the case proceeded, it would be “burdened by 

discovery requests” that would “tax many of the same 

resources being used in other litigation and investigations.” 

It asserted a “right to undertake a cost-benefit analysis and 

to conclude it is not in the public interest to spend further 

time and resources on [Thrower’s] litigation of this matter.”

Whether a motion to dismiss under § 3730(c)(2)(A) 

should be granted is governed by a two-step test. United 

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

Corp., 151 F.3d 1139, 1145 (9th Cir. 1998). The 

Government bears the initial burden of identifying a “valid 

governmental purpose” and showing a “rational relation 

between dismissal and accomplishment of the purpose.” Id. 

If the Government makes this showing, the burden shifts to 

the relator “to demonstrate that dismissal is fraudulent, 

arbitrary and capricious, or illegal.” Id.
UNITED STATES V. UNITED STATES EX REL. THROWER 7

Applying the Sequoia Orange test, the district court 

concluded that the Government’s asserted cost-benefit 

justification fell short at both steps of the analysis. 

Specifically, the court determined that the Government 

could not have meaningfully assessed the potential recovery 

from the suit—i.e., the benefit side of the cost-benefit 

analysis—because it had not sufficiently investigated 

Thrower’s claims, including by failing to investigate the 

detailed allegations of wrongdoing Thrower had added when 

she amended her original complaint. The district court 

therefore denied the Government’s motion to dismiss.

The Government immediately appealed, invoking 

appellate jurisdiction under the collateral order doctrine.3

II.

We have jurisdiction to determine our jurisdiction, 

which includes authority to decide whether the district 

court’s denial of the motion to dismiss under 

§ 3730(c)(2)(A) is immediately appealable under the 

collateral order doctrine. Metabolic Research, Inc. v. 

Ferrell, 693 F.3d 795, 798 (9th Cir. 2012).

III.

A.

Under 28 U.S.C. § 1291, the courts of appeals have 

jurisdiction over “appeals from all final decisions of the 

district courts.” This statute is most often invoked as the 

basis for appellate jurisdiction over quintessential “final 

3 A motions panel of our court stayed further district court 

proceedings pending the resolution of this appeal.
8 UNITED STATES V. UNITED STATES EX REL. THROWER

decisions,” such as final judgments. But it also encompasses 

“a small set of prejudgment orders that are ‘collateral to’ the 

merits of an action and ‘too important’ to be denied 

immediate review.” Mohawk Indus., Inc. v. Carpenter, 

558 U.S. 100, 103 (2009) (quoting Cohen v. Beneficial 

Indus. Loan Corp., 337 U.S. 541, 546 (1949)). This has 

become known as the “collateral order doctrine.”

To fall within the limited scope of the collateral order 

doctrine, a district court order must satisfy three 

requirements first described by the Supreme Court in Cohen: 

it must (1) be “conclusive” on the issue at hand, (2) “resolve 

important questions separate from the merits,” and (3) be 

“effectively unreviewable” after final judgment. Id. at 106; 

see Cohen, 337 U.S. at 545–46. These conditions are 

“stringent,” Digital Equip. Corp. v. Desktop Direct, Inc., 

511 U.S. 863, 868 (1994), and efforts to expand the scope of 

the collateral order doctrine have been repeatedly rebuffed, 

Will v. Hallock, 546 U.S. 345, 350 (2006).

Stringent application of the final judgment rule avoids 

encroachment on the “special role” that district judges play 

as initial arbiters of “the many questions of law and fact that 

occur in the course of a trial.” Firestone Tire & Rubber Co. 

v. Risjord, 449 U.S. 368, 374 (1981). As the Supreme Court 

has explained, “[i]mplicit in § 1291 is Congress’ judgment 

that the district judge has primary responsibility to police the 

prejudgment tactics of litigants, and that the district judge 

can better exercise that responsibility if the appellate courts 

do not repeatedly intervene to second-guess prejudgment 

rulings.” Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 

436 (1985). The final judgment rule also furthers the strong 

interest in judicial efficiency and the avoidance of piecemeal 

appellate proceedings. Mohawk Indus., 558 U.S. at 106. 

Under a more relaxed standard, “cases could be interrupted 
UNITED STATES V. UNITED STATES EX REL. THROWER 9

and trials postponed indefinitely as enterprising appellants 

bounced matters between the district and appellate courts.” 

SolarCity Corp. v. Salt River Project Agric. Improvement & 

Power Dist., 859 F.3d 720, 723 (9th Cir. 2017) (citing Bank 

of Columbia v. Sweeny, 26 U.S. (1 Pet.) 567, 569 (1828)).

B.

The Government first contends that the Supreme Court 

has already held that the denial of a government motion to 

dismiss a qui tam suit over the relator’s objection is an 

appealable collateral order. See United States ex rel. 

Eisenstein v. City of New York, 556 U.S. 928 (2009). But 

that question was not before the Court in Eisenstein; nor was 

it even addressed. The question in Eisenstein was whether 

the Government is a “party” to a qui tam action under the 

FCA when it has declined to intervene. See id. at 930–31. 

The Supreme Court unanimously answered: “No.”

In Eisenstein, the Government declined to intervene in a 

qui tam action filed by Eisenstein, and the defendants 

successfully moved to dismiss. Id. at 930. Eisenstein filed 

his notice of appeal within the 60-day period of Federal Rule 

of Appellate Procedure 4(a)(1)(B), which is the time limit 

applicable when the United States or its officer or agency is 

a party, rather than within the 30-day period that applies to 

everyone else. Id. The Court stated that the question 

presented was “whether the 30-day time limit to file a notice 

of appeal in Federal Rule of Appellate Procedure 4(a)(1)(A) 

or the 60-day time limit in Rule 4(a)(1)(B) applies when the 

United States declines to formally intervene in a qui tam

action brought under the False Claims Act.” Id. at 929. 

After considering the plain meaning of the word “party” and 

its prior precedent, which instructed that a litigant becomes 

a party only through intervention, the Court held that 

“[a]lthough the United States is aware of and minimally 
10 UNITED STATES V. UNITED STATES EX REL. THROWER

involved in every FCA action . . . it is not a ‘party’ . . . for 

purposes of the appellate filing deadline unless it has 

exercised its right to intervene in the case.” Id. at 932–34.

In Footnote 2 of the Eisenstein opinion, the Court noted 

that its holding “d[id] not mean that the United States must 

intervene before it can appeal any order of the court in an 

FCA action.” Id. at 931 n.2 (emphasis added). And it gave 

some examples of situations in which “the Government is a 

party for purposes of appealing the specific order at issue 

even though it is not a party for purposes of the final 

judgment and Federal Rule of Appellate Procedure 

4(a)(1)(B).” Id.

The Court explained that the Government may appeal 

“the dismissal of an FCA action over its objection,” citing to 

FCA § 3730(b)(1), which prohibits the dismissal of an FCA 

case without the Attorney General’s written consent. Id. It 

also pointed out that a denial of a Government motion to 

intervene under FCA § 3730(c)(3) would be immediately 

appealable, id., as denials of motions to intervene of right 

generally are, see, e.g., Citizens for Balanced Use v. Mont. 

Wilderness Ass’n, 647 F.3d 893, 896 (9th Cir. 2011). These 

examples of when non-parties may appeal from a specific 

order meet the Cohen requirements for appealability of a 

collateral order, thus giving the appellate court jurisdiction 

to entertain them. See Robert Ito Farm, Inc. v. County of 

Maui, 842 F.3d 681, 687–88 (9th Cir. 2016) (explaining that 

the collateral order doctrine is the source of the right to 

immediately appeal the denial of a motion to intervene).

In no place in Footnote 2 or elsewhere in Eisenstein did 

the Court indicate that the denial of a Government motion to 

dismiss an FCA action that the relator has a statutory right to 

prosecute, where the Government declined to intervene as a 

party, is an appealable order under Cohen. And, unlike in 
UNITED STATES V. UNITED STATES EX REL. THROWER 11

Eisenstein, whether or not the United States is a party is not 

the focus of our analysis here. Rather, the question is 

whether the district court’s order satisfies the collateral order 

doctrine requirements and is thus a “final decision” within 

the meaning of 28 U.S.C. § 1291. We disagree with the 

Government’s assertion that there is “no basis for 

distinguishing the appealability of an order rejecting the 

United States’ objection to dismissal under Section 

3730(b)(1) and an order rejecting the United States’ request 

for such dismissal under Section 3730(c)(2)(A).” The 

former order ends the action and is therefore prototypically 

“final,”4 while the latter order allows the case to continue, 

and the motion can be renewed as circumstances change.5

In sum, Footnote 2 of Eisenstein stands for the narrow 

proposition that even when the Government is not a party to 

an FCA action because it has not intervened, there are some 

orders that determine important rights with sufficient finality 

that the Government may appeal them under the collateral 

order doctrine. It says nothing about whether orders denying 

4 The Government hypothesizes that in cases where FCA claims are 

joined in a single action with other claims, an order dismissing the FCA 

claims over the Government’s objection would not necessarily end the 

case. In those circumstances, it contends, Footnote 2 of Eisenstein

allows the Government to take an immediate appeal even before the 

remaining claims are resolved in a final judgment. But we do not believe 

Footnote 2 was directed toward this unusual scenario. Footnote 2 of 

Eisenstein says that under the collateral order doctrine, “the United 

States may appeal . . . the dismissal of an FCA action over its objection.” 

556 U.S. at 931 n.2 (emphasis added). We assume that by using the word 

“action” instead of “claim,” the Court meant to refer to an order that 

ended the entire case.

5 This is particularly true in this case because the district court 

rejected the Government’s motion to dismiss for lack of a meaningful 

cost-benefit analysis, in which the Government might still engage.
12 UNITED STATES V. UNITED STATES EX REL. THROWER

a Government motion to dismiss under § 3730(c)(2)(A) 

satisfy the collateral order doctrine requirements. We now 

turn to that question.

C.

The small class of district court decisions immediately 

appealable under the collateral order doctrine includes only 

orders that are conclusive, that resolve important questions 

separate from the merits, and that are effectively 

unreviewable after final judgment. Mohawk Indus., 

558 U.S. at 106. Here, whether the order resolved important 

questions separate from the merits is dispositive.

1.

Explicit in the second requirement of the collateral order 

test, the question of importance is also implicated by the 

third Cohen condition—effective unreviewability—because 

whether an order is effectively unreviewable “cannot be 

answered without a judgment about the value of the interests 

that would be lost through rigorous application of a final 

judgment requirement.” Digital Equip., 511 U.S. at 878–79. 

Whether a particular category of district court orders is 

“important” enough to merit immediate appellate 

consideration turns on “whether delaying review . . . ‘would 

imperil a substantial public interest’ or ‘some particular 

value of a high order.’” Mohawk Indus., 558 U.S. at 107 

(quoting Will, 546 U.S. at 352–53). Even orders implicating 

rights that are generally considered “important” in the 

abstract have been found to fall outside the collateral order 

doctrine’s scope. See, e.g., id. at 114 (order finding a waiver 

of attorney-client privilege); Flanagan v. United States, 

465 U.S. 259, 262–63 (1984) (order disqualifying a criminal 

defendant’s chosen counsel); see also Mohawk Indus., 

558 U.S. at 117 (Thomas, J., concurring) (explaining that the 
UNITED STATES V. UNITED STATES EX REL. THROWER 13

Supreme Court has narrowed the scope of the collateral 

order doctrine “principally by raising the bar on what types 

of interests are ‘important enough’ to justify collateral order 

appeals”).

In determining whether a district court order is 

immediately appealable, we do not focus on the exigencies 

presented by any individual case. Mohawk Indus., 558 U.S. 

at 107. Instead, “the issue of appealability under § 1291 is 

to be determined for the entire category to which a claim 

belongs, without regard to the chance that the litigation at 

hand might be speeded, or a particular injustice averted by a 

prompt appellate court decision.” Digital Equip., 511 U.S. 

at 868 (internal citation, quotation marks, and alteration 

omitted). The mere fact that a class of orders may never be 

subject to appellate review after final judgment is not, on its 

own, sufficient to justify an immediate appeal. Cf. id. at 878 

(emphasizing that a collateral order appeal is available only 

if the right implicated is important).

2.

The interests implicated by orders denying a 

Government motion to dismiss under § 3730(c)(2)(A) of the 

FCA are not sufficiently important to justify expanding the 

collateral order doctrine’s narrow scope, at least in cases 

where the Government has not exercised its right to 

intervene.

In support of its motion to dismiss, the Government cited 

the likelihood that it would face burdensome discovery 

requests if the litigation proceeded. We have previously 

acknowledged that the Government may legitimately 

consider the avoidance of litigation costs as a basis for 

moving to dismiss an FCA case. Sequoia Orange, 151 F.3d 

at 1146. But the mere fact that an erroneous denial of a 
14 UNITED STATES V. UNITED STATES EX REL. THROWER

§ 3730(c)(2)(A) motion could lead to unnecessary 

government expenditures does not render the denial order 

immediately appealable. The Supreme Court has made clear 

that an interest in “abbreviating litigation troublesome to 

Government employees” is not important enough to justify 

a collateral order appeal. Will, 546 U.S. at 353. Otherwise, 

the valuable interests served by the final judgment rule 

“would fade out whenever the Government or an official lost 

an early round that could have stopped the fight.” Id. at 354.

The Government argues that motions to dismiss under 

§ 3730(c)(2)(A) “further[] interests similar to the doctrine of 

qualified immunity” in that they exist to protect the 

Government from “the burdens associated with the litigation 

itself.” Without an immediate appeal, the Government 

contends, its interest in avoiding litigation burdens would be 

lost forever.

This is not the first time a litigant has sought to analogize 

its interests to those served by the doctrine of qualified 

immunity to support an immediate appeal.6 See Will, 

546 U.S. at 350–51; Digital Equip., 511 U.S. at 871; 

SolarCity, 859 F.3d at 725. But we are mindful of the 

Supreme Court’s instruction that “claims of a ‘right not to be 

tried’” must be viewed “with skepticism, if not a jaundiced 

eye.” Digital Equip., 511 U.S. at 873. After all, with a 

“lawyer’s temptation to generalize,” Will, 546 U.S. at 350, 

almost any right that could be vindicated through a motion 

to dismiss could be characterized as providing immunity 

from further proceedings. Digital Equip., 511 U.S. at 873.

6 Denials of qualified immunity may be immediately appealed under 

the collateral order doctrine to the extent they turn on questions of law.

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
UNITED STATES V. UNITED STATES EX REL. THROWER 15

Even accepting that one purpose of § 3730(c)(2)(A) is to 

provide the Government with a mechanism for dismissing 

financially burdensome cases, that is not enough to treat the 

provision as tantamount to a grant of immunity. The 

Government’s interest in cost avoidance is simply not a 

“value of a high order” on par with those the collateral order 

doctrine has been held to protect. Will, 546 U.S. at 352–54; 

see, e.g., P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, 

Inc., 506 U.S. 139, 146 (1993) (allowing immediate appeal 

of the denial of Eleventh Amendment immunity to protect 

the “dignitary interests” of states); Nixon v. Fitzgerald, 

457 U.S. 731, 743 (1982) (allowing immediate appeal of the 

denial of absolute presidential immunity to protect “essential 

Presidential prerogatives under the separation of powers”); 

Abney v. United States, 431 U.S. 651, 661 (1977) (allowing 

an immediate appeal to protect the Double Jeopardy 

Clause’s guarantee that an individual “will not be forced . . .

to endure the personal strain, public embarrassment, and 

expense of a criminal trial more than once for the same 

offense”).

The Government argues that cases like Will are 

inapposite because they addressed a defendant’s ability to 

appeal the denial of a motion to dismiss, whereas in FCA 

cases, the United States should be viewed as akin to a 

plaintiff seeking to voluntarily dismiss its own case.7 But 

Eisenstein makes clear that the United States is not a party, 

and therefore not a plaintiff, when it has declined to exercise 

its right to intervene. 556 U.S. at 933 (“[I]ntervention is the 

requisite method for a nonparty to become a party to a 

7 Federal Rule of Civil Procedure 41(a)(1)(A)(i) provides that a 

plaintiff may voluntarily dismiss a case without a court order if it files a 

notice of dismissal before the opposing party serves an answer or a 

motion for summary judgment.
16 UNITED STATES V. UNITED STATES EX REL. THROWER

lawsuit.”). Instead, the Government is more akin to a thirdparty assignor, albeit one that retains some statutory rights 

to participate in the proceedings. Vt. Agency of Nat. Res. v. 

United States ex rel. Stevens, 529 U.S. 765, 773 (2000) 

(“The FCA can reasonably be regarded as effecting a partial 

assignment of the Government’s damages claim.”); see also

31 U.S.C. § 3730(c)(3)–(4) (detailing rights retained by the 

Government when it declines to intervene).8

As a third party, the Government and its agencies are 

subject to the same discovery obligations as other nonparties under Federal Rule of Civil Procedure 45, including 

the obligation to respond to subpoenas for documents and 

testimony. Exxon Shipping Co. v. U.S. Dep’t of Interior, 

34 F.3d 774, 779 (9th Cir. 1994); see also Yousuf v. 

Samantar, 451 F.3d 248, 256–57 (D.C. Cir. 2006); John T. 

Boese, Civil False Claims and Qui Tam Actions § 5.07 (4th 

ed. 2011) (explaining the use of Rule 45 subpoenas to obtain

discovery from government agencies in FCA cases). When 

third-party discovery obligations become onerous, Rule 45 

allows the subject of a subpoena to file a motion to quash on 

grounds of undue burden. Fed. R. Civ. P. 45(d)(3)(A)(iv). 

We have previously identified this procedural mechanism as 

a means by which the Government can vindicate its “serious 

and legitimate” interest in ensuring “that its employee 

resources [are] not . . . commandeered into service by private 

litigants to the detriment of the smooth functioning of 

government operations.” Exxon Shipping, 34 F.3d at 779.

8 These include the right to be served with pleadings and receive 

copies of deposition transcripts, the right to seek a stay of discovery if it 

“would interfere with the Government’s investigation or prosecution of 

a criminal or civil matter arising out of the same facts,” and the right to 

intervene at a later date upon a showing of good cause. 31 U.S.C. 

§ 3730(c)(3)–(4).
UNITED STATES V. UNITED STATES EX REL. THROWER 17

Yet notwithstanding the important interest in ensuring 

that non-parties are not subjected to burdensome discovery 

requests, orders denying a motion to quash a Rule 45 

subpoena generally cannot be immediately appealed under 

the collateral order doctrine. Perry v. Schwarzenegger, 

602 F.3d 976, 979 (9th Cir. 2010) (per curiam) (citing In re 

Subpoena Served on Cal. Pub. Utils. Comm’n, 813 F.2d 

1473, 1476 (9th Cir. 1987)). Instead, a non-party can obtain 

appellate review only by ignoring the subpoena, accepting 

the consequences of being held in contempt, and appealing 

the ensuing contempt citation.9 Cal. Pub. Utils. Comm’n, 

813 F.2d at 1476; see also Mohawk Indus., 558 U.S. at 111–

12 (explaining that noncompliance and contempt is a means 

by which an individual subject to a discovery order can 

obtain appellate review). It would be incongruous to hold, 

as we are asked to here, that the Government’s interest in 

dismissing the case to avoid the possibility of future onerous 

discovery requests is important enough to merit an 

immediate appeal, when third parties actually faced with 

burdensome subpoenas have no such right.

Inherent in the final judgment rule is the possibility that 

some cases will proceed further than they should have, 

resulting in increased costs for parties and non-parties alike. 

But a mere interest in avoiding these costs has never been 

enough to justify an immediate appeal, even when they will 

9 We have recognized limited exceptions to this rule “when a 

subpoena is issued by a district court in favor of a nonparty in connection 

with a case pending in a district court of another circuit,” Cal. Pub. Utils.

Comm’n, 813 F.2d at 1476, or when the subject of the subpoena is a 

“disinterested third-party custodian of privileged documents” who 

“would most likely produce the documents rather than submit to a 

contempt citation,” United States v. Krane, 625 F.3d 568, 572 (9th Cir. 

2010) (quoting United States v. Griffin, 440 F.3d 1138, 1143 (9th Cir. 

2006)); see Perlman v. United States, 247 U.S. 7 (1918).
18 UNITED STATES V. UNITED STATES EX REL. THROWER

be borne by the Government, and consequently, the 

taxpayers. Will, 546 U.S. at 353–54. While we have 

recognized that the Government may move to dismiss under 

§ 3730(c)(2)(A) when an FCA case will impose an undue 

burden on the taxpayers or impose “enormous internal staff 

costs,” Sequoia Orange, 151 F.3d at 1146, this interest in 

government efficiency is not a “value of a high order” that 

may be vindicated through collateral order review, Will, 

546 U.S. at 352–53.

3.

In its reply brief, the Government recharacterizes its 

interest as one of protecting “fundamental Executive Branch 

prerogatives”—namely its “wide latitude to determine 

which enforcement actions will proceed in the United States’ 

name to remedy the United States’ injuries.” We do not 

question the validity of this interest, but it is hardly at its apex 

here. Through the qui tam provisions of the FCA, Congress 

has assigned some enforcement responsibility to private 

relators, Stevens, 529 U.S. at 773, and that partial assignment 

has “to some degree diminish[ed] Executive Branch control 

over the initiation and prosecution of [FCA cases],” United 

States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 754–55 (9th 

Cir. 1993).

Our decisions addressing the motion to dismiss 

procedures of § 3730(c)(2)(A) make clear that the 

Government’s interests in this area are qualified. In Kelly, 

we held that the FCA does not offend the principle of 

separation of powers even though it requires the Government 

to obtain judicial approval before dismissing an FCA suit. 

Id. at 754 n.12, 756. We expanded on this holding in 

Sequoia Orange, where we explicitly recognized that 

§ 3730(c)(2)(A) creates a “check,” albeit a limited one, on 

the Government’s prosecutorial discretion. 151 F.3d 
UNITED STATES V. UNITED STATES EX REL. THROWER 19

at 1144–45. By requiring the Government to make an 

adequate showing to justify dismissal, Sequoia Orange

implicitly contemplated that in some circumstances, an FCA 

case may proceed even over the Government’s objection. Id.

at 1145.

Because the FCA’s broad intervention rights are a 

primary means by which the Executive Branch can exercise 

control over a given case, id. at 1144, the Government’s 

interests are particularly attenuated where, as here, it has 

declined to intervene. In FCA cases initiated by a private 

relator, the Government has an unfettered right to intervene 

within 60 days after service of the complaint and all material 

evidence the relator possesses, with extensions of the period 

for intervention available for good cause. 31 U.S.C. 

§ 3730(b)(2)–(3). And, even if the Government initially 

declines to intervene, it may intervene later upon a showing 

of good cause, id. § 3730(c)(3), at which point it enjoys the 

same rights as if it had intervened from the outset, Sequoia 

Orange, 151 F.3d at 1145.

When the Government intervenes, “it shall have the 

primary responsibility for prosecuting the action, and shall 

not be bound by an act of the [relator].” 31 U.S.C. 

§ 3730(c)(1). While the relator may remain a party to the 

case, id., the Government, with the district court’s approval, 

may impose significant limitations on the relator’s 

participation, id. § 3730(c)(2)(C). In short, intervention by 

the Government “reduce[s] substantially the relator’s role.” 

United States v. Northrop Corp., 59 F.3d 953, 964 (9th Cir. 

1995).

By contrast, when the Government declines to intervene, 

the relator “shall have the right to conduct the action.” 

31 U.S.C. § 3730(b)(4)(B); see United States ex rel. 

Killingsworth v. Northrop Corp., 25 F.3d 715, 722 (9th Cir. 
20 UNITED STATES V. UNITED STATES EX REL. THROWER

1994) (noting Congress’ intent “to place full responsibility 

for False Claims Act litigation on private parties, absent 

early intervention by the government or later intervention for 

good cause”); see also H.R. Rep. 99-660, at 22 (1986) 

(reflecting that Congress intended the 1986 amendments to 

the FCA to restore incentives for qui tam suits). As a 

practical matter, the Government need not do anything 

beyond respond to discovery requests like any other third 

party, Fed. R. Civ. P. 45, provide its views if the relator seeks 

to dismiss the case, 31 U.S.C. § 3730(b)(1), and wait to see 

if the suit succeeds, in which case the Government receives 

the bulk of any recovery, id. § 3730(d)(2). Thus, by denying 

the motion to dismiss here, the district court in no way forced 

the Government to actively prosecute an action against its 

will.10

For all the separation-of-powers discussion, we cannot 

escape the conclusion that the Government’s true interest in 

dismissing this case is what it has repeatedly maintained 

throughout this litigation: avoiding burdensome discovery 

expenses in a case the Government does not think will 

ultimately be worth the cost. While this may be a legitimate 

reason for moving to dismiss, Sequoia Orange, 151 F.3d 

at 1146, it is not an interest important enough to merit 

expanding the narrow scope of the collateral order doctrine, 

Will, 546 U.S. at 350.

D.

We are not swayed by the Government’s argument that 

refusing to allow an immediate appeal will render orders 

10 We do not decide whether the Government may immediately 

appeal the denial of a motion to dismiss in a case in which it has

intervened.
UNITED STATES V. UNITED STATES EX REL. THROWER 21

denying a motion to dismiss under § 3730(c)(2)(A) 

effectively unreviewable.

First, any concerns in this area are substantially 

diminished by the extraordinarily low likelihood of an 

erroneous denial of a motion to dismiss under 

§ 3730(c)(2)(A). Cf. Mohawk Indus., 558 U.S. at 110 n.2. 

The test set out in Sequoia Orange is not especially 

demanding, as evidenced by the fact that this is the first time 

a district court in our circuit has ever found the 

Government’s argument for dismissal lacking.11 There is 

therefore no reason to think that a new exception to the final 

judgment rule is necessary to accommodate this rare 

situation.

Moreover, in many cases, there will be other 

mechanisms available to mitigate any harms that could flow 

from the erroneous denial of a motion to dismiss. For 

example, in moving to dismiss here, the Government 

claimed that it would be subjected to burdensome discovery 

requests if the litigation proceeded. But to the extent these 

requests materialize, the Government can seek to quash or 

modify them, including on grounds of undue burden. See 

Fed. R. Civ. P. 45(d); Exxon Shipping, 34 F.3d at 779. The 

Government also argues that it has an interest in dismissing 

cases to prevent the creation of unfavorable precedent. But 

if the Government is concerned about the direction in which 

a case is moving, it can move to intervene upon a showing 

11 We are aware of only one other instance of a district court denying 

a Government motion to dismiss under § 3730(c)(2)(A). See United 

States ex rel. CIMZNHCA, LLC v. UCB, Inc., No. 17-CV-765-SMYMAB, 2019 WL 1598109, at *2–4 (S.D. Ill. Apr. 15, 2019), appeal 

docketed No. 19-2273 (7th Cir. July 8, 2019). An appeal of that decision 

is currently pending before the Seventh Circuit.
22 UNITED STATES V. UNITED STATES EX REL. THROWER

of good cause and take over the prosecution itself. 31 U.S.C. 

§ 3730(c)(3).

We recognize that in some cases, the Government may 

seek dismissal to protect more unique interests. For 

example, in Sequoia Orange, we affirmed the district court’s 

decision to dismiss a case at the Government’s behest in 

order “to end the divisiveness in the citrus industry caused 

by over ten years of litigation.” 151 F.3d at 1142, 1146. The 

Government has also sought dismissal when it contended 

that continued prosecution of a qui tam action would risk the 

disclosure of classified information. See, e.g., United States 

ex rel. Mateski v. Mateski, 634 F. App’x 192, 193–94 (9th 

Cir. 2015). But it would not be appropriate for us to expand 

the collateral order doctrine to accommodate these atypical 

cases. The issue of appealability must be determined “for 

the entire category to which a claim belongs,” Digital 

Equip., 511 U.S. at 868, and we cannot allow immediate 

appeal of all orders denying § 3730(c)(2)(A) motions simply 

because a subset of them may implicate interests more 

important than simple cost avoidance, Mohawk Indus., 

558 U.S. at 112. We also see no need to do so because, at 

least to this point, district courts have invariably granted 

motions to dismiss when concerns of a higher order have 

been raised. Cf. id. at 110 n.2.

We emphasize that our decision does not leave the 

Government without options for seeking appellate review. 

See id. at 110–11. Most obviously, the Government could 

ask the district court to certify, and our court to accept, an 

interlocutory appeal under 28 U.S.C. § 1292(b), which 

allows for appeal of orders that “involve[] a controlling 

question of law as to which there is substantial ground for 

difference of opinion,” when an immediate appeal “may 

materially advance the ultimate termination of the 
UNITED STATES V. UNITED STATES EX REL. THROWER 23

litigation.” And, in extraordinary circumstances, such as 

where the unjustified disclosure of classified information is 

at risk, see Mateski, 634 F. App’x at 193–94, the 

Government may seek a writ of mandamus. Mohawk Indus., 

558 U.S. at 111. These “safety valves” are more than 

adequate to address denials of motions to dismiss that 

implicate interests more important than run-of-the-mill 

litigation burdens. Id. (alterations omitted).

IV.

As the Supreme Court has emphasized time and 

again, the “small class” of immediately appealable collateral 

orders must remain “narrow and selective in its 

membership.” Will, 546 U.S. at 350. Because the interests 

implicated by an erroneous denial of a Government motion 

to dismiss a False Claims Act case in which it has not 

intervened are insufficiently important to justify an 

immediate appeal, we conclude that they fall outside of the 

collateral order doctrine’s scope. We therefore dismiss this 

appeal for lack of jurisdiction.12

DISMISSED.

12 Thrower’s motion to strike documents from the Government’s 

Excerpts of Record is DENIED as moot.