US Supreme Court justices during oral arguments Tuesday seemed receptive to supporting the Justice Department’s ability to win dismissal of False Claims Act suits—filed by whistleblowers on the government’s behalf—that DOJ finds meritless or wasteful.
Whistleblower Jesse Polansky says his suit against Executive Health Resources Inc. should be reinstated because the government failed to properly intervene in the case before it moved for dismissal, which a court granted.
Polansky’s counsel, Daniel L. Geyser of Haynes and Boone LLP, asserted that the FCA’s text clearly provides that the government can proceed with the case or decline, but if it declines, the whistleblower has the right to conduct the action.
But some of the justices signaled support for the government’s control over a suit, including a decision to end it.
Justice Ketanji Brown Jackson, for example, said the FCA’s legislative history suggests that Congress has been concerned about the government’s ability intervene in a suit if circumstances changed, and then act to dismiss it.
Justice Amy Coney Barrett also questioned how to differentiate between the interests of the government seeking dismissal, and the whistleblower hoping to proceed with the suit.
“They’re kind of the same claim here,” she said.
The justices also considered the issue of what the government has to demonstrate when it moves for dismissal.
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