On December 6, the U.S. Supreme Court heard arguments in a False Claims Act (FCA) whistleblower case. The case, United States, ex rel. Polansky v. Executive Health Resources, Inc., concerns the Department of Justice’s (DOJ) ability to dismiss qui tam whistleblower cases in which it did not initially intervene.

Under the FCA, a whistleblower may file a qui tam lawsuit against a fraudster on behalf of the U.S. government. The DOJ then has the opportunity to intervene in the case and either litigate it itself or dismiss the suit. If the DOJ elects not to intervene, then the whistleblower can proceed with the qui tam suit on their own.

The Polanksy case raises the issue of whether the DOJ can move to dismiss a case after not intervening in it. In 2012, Jesse Polansky alleged that Executive Health Resources was falsely certifying inpatient hospital admissions as medically necessary, leading to the overbilling of Medicare. The DOJ chose not intervene in the case and Polansky pursued the qui tam suit without government intervention. In 2019, however, the DOJ moved to dismiss the case. Polanksy appealed this dismissal.

At the Supreme Court hearing, Polansky’s attorney argued that the DOJ lacks the statutory authority to dismiss a case it did not initially intervene in. Attorneys for the government and Executive Health argued the opposite.

“All of the Justices’ questioning at oral argument appear to be deferential to the government’s position that the DOJ can dismiss a case that...

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