On June 16, 2023, the U.S. Supreme Court, in United States ex rel. Polansky v. Executive Health Resources Inc., held that the Government may seek dismissal of a False Claims Act (“FCA”) qui tam suit over a relator’s objection so long as it intervenes in the litigation, either during the initial seal period or afterward. The Court also held that, when handling such a motion, district courts should apply Federal Rule of Civil Procedure (“FRCP”) 41(a), the rule generally governing voluntary dismissal of suits. And in a dissent that—in the long run—may end up being more impactful than the Court’s holding, Justice Thomas (joined in a concurring opinion by Justices Kavanaugh and Barrett) questioned the constitutionality of the qui tam provisions themselves.

Background

In 2012, relator Jesse Polansky filed a qui tam action alleging that his employer, Executive Health Resources, enabled its hospital clients to over-admit patients by certifying inpatient services that should have been provided on an outpatient basis and then billed those services to Medicare. The Government declined to intervene during the seal period, but Polansky proceeded with the suit on his own. Then, in 2019, years after its declination and well into discovery, the Government decided that the burdens of the suit outweighed its potential value, so the Government moved to dismiss the action under its dismissal authority pursuant to 31 U.S.C. § 3730(c)(2)(A) (“§ 3730(c)(2)(A)”). The district court granted the...

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