Highlights

The U.S. Supreme Court heard arguments on whether the government can dismiss a qui tam action after declining to intervene under the False Claims Act

The Court expressed reluctance to adopt the extreme positions advocated by both Relator and the government, which would result in a finding that the government has either (1) no right or (2) an unfettered right to dismiss post-declination

It appears likely the Court will adopt a rational basis or an arbitrary and capricious standard to evaluate late dismissal motions by the government

On December 6, 2022, the U.S. Supreme Court heard oral arguments in the case of United States ex rel. Polansky v. Executive Health Resources, Inc. The dispute, previously covered here, centers on whether the government retains the right to dismiss a relator’s qui tam action under the False Claims Act (FCA) after initially declining to intervene. The petitioner, a whistleblower (also known as a relator) alleged in the district court that the defendant, Executive Health Resources, submitted billions of dollars in false claims. The government initially declined to intervene in the case, and the Relator spent years and millions of dollars litigating the case.

Shortly before summary judgment, the government successfully moved to dismiss the case over Relator’s objections. Relator, after a subsequent defeat at the Third Circuit Court of Appeals, successfully petitioned the U.S. Supreme Court to hear the case. Relator argues that the...

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