A U.S. Supreme Court ruling in a False Claims Act (FCA) whistleblower case grants the U.S. Department of Justice (DOJ) the authority to dismiss qui tam whistleblower lawsuits in cases in which it chose not to intervene. According to whistleblower advocates, the ruling weakens the efficacy of the FCA while language within Justice Clarence Thomas’s dissent poses even more serious danger to the constitutionality of certain FCA whistleblower cases.
Under the FCA, a whistleblower may file a qui tam lawsuit against a fraudster on behalf of the U.S. government. The DOJ then has the opportunity to intervene in the case and either litigate it itself or dismiss the suit. If the DOJ elects not to intervene, then the whistleblower can proceed with the qui tam suit on their own.
On June 16, the Supreme Court issued an 8-1 ruling in United States, ex rel. Polansky v. Executive Health Resources, Inc. In 2012, Jesse Polansky alleged that Executive Health Resources was falsely certifying inpatient hospital admissions as medically necessary, leading to the overbilling of Medicare. The DOJ chose not intervene in the case and Polansky pursued the qui tam suit without government intervention. In 2019, however, the DOJ moved to dismiss the case. Polanksy appealed this dismissal.
The Supreme Court ruled that the DOJ has the authority to intervene and dismiss a whistleblower’s qui tam suit at any time, even if it chose not to intervene years earlier.
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