On June 16, 2023, the Supreme Court ruled in United States ex rel. Polansky v. Executive
Health Resources, Inc., that (i) under the False Claims Act, the government may move to
dismiss a False Claims Act (“FCA”) action pursuant to 31 U.S.C. § 3730(c)(2)(A) and (ii) in
assessing the government’s motion to dismiss an FCA action over a relator’s objection under
Federal Rule of Civil Procedure 41, the government should be afforded substantial deference.
This decision is a strong endorsement of the government’s right to dismiss cases brought by
relators under the FCA that are frivolous, inconsistent with government policy, or wasteful of
the time of government employees, even when the relator objects. As discussed below,
defendants should leverage Polansky to press the government to seek the dismissal of FCA
cases that fall into these categories.
The Role of the Government In False Claims Act Litigation
Under the False Claims Act, any person who presents false or fraudulent claims for payment
to the federal government is subject to civil liability. See 31 U. S. C. §§3729–3733. The statute
further authorizes private parties, known as relators, to sue on the government’s behalf in qui
tam actions. §3730(b)(1).
Pursuant to this statute, relators must file their complaint under seal and serve a copy and
supporting evidence on the government. See §3730(b)(2). The government then has 60 days
(often extended for “good cause”) to decide whether to “intervene and proceed with the
...
Although on appeal the court distinguished that there was new information in the claim, the court ultimately found the new information was not material, nor was it plead with particularity. The U....