Arguments were heard in the case of United States ex rel. Polansky v. Executive Health Resources, Inc., No. 21-1052 to determine whether and on what statutory grounds, the government, after initially declining to intervene, may subsequently intervene and dismiss a qui-tam False Claims Act (“FCA”) suit. The Court’s decision will resolve a dispute regarding the balance of power between an individual whistleblower and the Department of Justice (“DOJ”).
Executive Health Resources (“EHR”) and the government argue that 31 U.S.C. § 3730(c)(2)(A) grants the government unfettered discretion to dismiss a qui tam lawsuit at any time as long as the relator receives notice and an opportunity to be heard. On the other hand, Polansky argues that the government relinquishes its right to dismiss once it declines to intervene. If the Court’s line of questioning is any hint to its decision, then it appears that the Court will affirm the government’s authority to dismiss at any time during a qui tam lawsuit due to Article II concerns.[1]
Background
The False Claims Act (the “Act”) permits private individuals, acting in the name of the government, to assert FCA claims “for the person and for the United States Government.” 31 U.S.C. § 3730. These individuals are known as “relators.” United States ex rel. Polansky v. Executive Health, No. 19-3810, *6 (3d Cir. 2021).Relator-initiated lawsuits, known as qui tam actions, “effectively deputize citizens to act as private attorneys general,...
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