Highlights
U.S. Supreme Court set to decide the standard dictating the government’s ability to dismiss qui tam actions it previously declined to pursue
Decision contemplates a four-way Circuit split articulating varying standards for government dismissal
The outcome of the Polansky case will undoubtedly affect government interventions and government-initiated motions to dismiss moving forward
Last week, the U.S. Supreme Court granted a whistleblower’s (otherwise known as a relator) request for review in U.S. ex rel. Polansky v. Executive Health Resources, Inc. – asking the Court to weigh in on an ongoing Circuit split regarding the government’s authority to dismiss False Claims Act litigation after initially declining to intervene.
The petition in Polansky presents two questions for review: Preliminarily, does the government retain the authority to dismiss a previously declined False Claims Act suit? Second, if the Court determines the government retains such authority, what standard dictates when the government may dismiss a non-intervened lawsuit?
Importantly, the first question is not the issue presented by the current Circuit split. Instead, the current split concerns the second question relating to what standard applies when the government seeks to dismiss a qui tam suit. At this time, there are four approaches to this standard:
The Ninth and Tenth Circuits apply a two-step burden-shifting analysis, also referred to as the “rational relation” approach. Under this...
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