On June 21, the U.S. Supreme Court granted certiorari in United States, ex rel. Polansky v. Executive Health Resources, Inc. The Court agreed to hear the case which concerns the issue of whether or not the U.S. government can dismiss False Claim Act whistleblowers' qui tam suits after initially declining to intervene in them. The case also concerns what standard applies to such a dismissal if the DOJ does have such authority. There is currently a clear and intractable conflict in the circuits on this important statutory question.
Under the False Claims Act, individual whistleblowers may bring qui tam lawsuits against fraudsters on behalf of the U.S. government. The Department of Justice (DOJ) has the opportunity to intervene in qui tam suits and take over the proceeding. However, when DOJ declines to intervene in and litigate the qui tam case the statute permits the whistleblower to pursue the case in the name of the United States and to litigate the case against the defendant in federal court.
In instances where the DOJ does initially intervene, it has the authority to dismiss the suit by giving the whistleblower notice of a motion to dismiss and the opportunity for a hearing on the motion. The Supreme Court will resolve whether DOJ’s dismissal authority extends to cases in which the DOJ initially declined to intervene but later seeks to intervene to dismiss the whistleblower’s suit.
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