Supreme Court to hear case involving governmental dismissal of whistleblower suits on December 6

by Ben Vernia | November 13th, 2022

The Supreme Court announced that it will hear oral argument in United States ex rel. Polansky v. Executive Health Resources, Inc., on December 6. According to the “Question Presented” page of the whistleblower’s petition for certiorari:

This case presents a clear, recognized, and intractable
conflict regarding an important statutory question under
the False Claims Act (FCA), 31 U.S.C. 3729-3733.
When a relator files a qui tam action, the FCA puts the
government to an initial choice: it “shall” either “(A) proceed
with the action, in which case the action shall be conducted
by the Government; or (B) notify the court that it
declines to take over the action, in which case the person
bringing the action shall have the right to conduct the action.”
31 U.S.C. 3730(b)(4). The FCA then specifies the
“Rights of the Parties to the Qui Tam Action[]” based on
the government’s initial choice.

This case involves the government’s dismissal authority
under 31 U.S.C. 3730(c)(2)(A). The courts are sharply
divided over whether, and when, the government can invoke
this authority and dismiss a relator’s FCA case after
initially “declin[ing] to take over the action.” The Seventh
Circuit below held that the government could dismiss the
case if it first intervenes and then satisfies Fed. R. Civ. P.
41(a)’s general standard. Other circuits expressly disagree
on every single part of that determination.
The question presented is:

Whether the government has authority to dismiss an
FCA suit after initially declining to proceed with the action,
and what standard applies if the government has that

Comment: This case provides yet more evidence that the Supreme Court’s selection of False Claims Act circuit splits to resolve is ill-informed. The Department of Justice intervenes to dismiss relatively few declined whistleblower cases, and the differences amongst the circuits are largely procedural, rather than substantive. While the Court should resolve all genuine, persisting circuit splits, when it is only hearing 60-70 cases a year, there are more problematic conflicts the Court could resolve in the FCA.

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