A whistleblower’s False Claims Act suit alleging that Executive Health Resources Inc. defrauded Medicare should be revived because the government failed to properly intervene in the case before it moved for dismissal, according to a brief filed with the US Supreme Court.
The FCA says the Justice Department may move to end a whistleblower’s action that it doesn’t support, over the whistleblower’s objection, by giving notice of a motion to dismiss and an opportunity for a hearing on the motion.
The US Court of Appeals for the Third Circuit erred by concluding that the government could intervene and file a motion to dismiss after initially declining to join his case, whistleblower Jesse Polansky said in his opening brief filed Aug. 26. The Supreme Court granted Polansky’s petition to hear the case June 21.
The government may control an FCA action at its outset, but it has no right to displace a whistleblower’s exclusive control after “taking a pass,” Polansky said.
Once the government passes, the whistleblower has a “unitary right” to conduct the action that can’t be limited by the government, he said.
“The Third Circuit’s error permitted the government’s belated dismissal to wipe out a $20 million investment of time and resources in an action with billion-dollar stakes,” the brief said.
Polansky also said that when the government uses its FCA power to seek dismissal, the...
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