On December 6, 2022, the Supreme Court heard oral argument in United States ex rel. Polansky v. Executive Health Resources, which presents the question of whether the government has the authority to dismiss a qui tam suit after initially declining to intervene, and if so, what standard of review applies to the government’s motion to dismiss. Overall, the lines of questioning suggest that the Court will conclude that the government may dismiss qui tam suits after initially declining to intervene. However, there was no clear consensus around how to define a judicially enforceable standard for evaluating the government’s dismissal authority.

As discussed here, over the past few years DOJ has more actively exercised its statutory authority under 31 U.S.C. § 3730(c)(2)(A) to dismiss qui tam cases over a relator’s objection, resulting in a building circuit split, as summarized here. Lower courts have adopted varying standards of review when assessing DOJ motions to dismiss, with some courts concluding that DOJ has a broad, “unfettered” right to dismiss FCA cases—stemming from the government’s right to exercise prosecutorial discretion—while other courts have required the government to identify a “valid government purpose” and a “rational relation between dismissal and accomplishment of that purpose,” or to satisfy the standard for voluntary dismissals contained in Federal Rule of Civil Procedure 41(a).

As we reported here, in the underlying qui tam case, the relator alleged that...

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