First, the highest court settled a multi-circuit split on whether and when the United States can seek dismissal over the relator’s objection. In United States ex rel. Polansky v. Executive Health Resources, the Court agreed with the Third Circuit that the United States may seek dismissal of an FCA case over the relator’s objection, so long as it has intervened, whether during the seal period or later on, and so long as the motion to dismiss complies with Federal Rule of Civil Procedure 41(a). The relator must also receive notice and opportunity to be heard, although that doesn’t appear to mean much because the Court made it clear the Government’s views in an FCA case are entitled to substantial deference. The Court explained that if the Government offers a reasonable argument for why the burdens of continued litigation outweigh the benefits, the court should grant the motion, even if the relator presents a credible assessment to the contrary. In other words, so long as the Government intervenes, checks the Rule 41(a) boxes, and the relator gets notice and an opportunity to be heard then a tie as the benefits and burdens goes to the Government. Whether and how often the Government will flex this muscle remains to be seen, but Polansky settles the questions on when and how the Government can seek dismissal over the relator’s objection.
Second, as previously described here, in its combined decision in United States ex rel. Schutte v. SuperValu, Inc. and United States et al....
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