[co-author: James Hornsby]*
In United States ex rel. Polansky v. Executive Health Resources, Inc., the U.S. Supreme Court recently resolved a circuit split[1] by holding that in a False Claims Act (“FCA”) action (1) the Government may seek dismissal of a qui tam case that the government initially declined to intervene in over the relator’s objection so long as it later intervened in the litigation, and (2) that in considering such a motion, district courts should apply the rule generally governing voluntary dismissal of suits: Federal Rule of Civil Procedure 41(a). Under Rule 41(a), the Court explained that the Government has broad latitude to seek dismissal; although that discretion is not unfettered, such “motions will satisfy Rule 41 in all but the most exceptional cases.” The decision is an important one for the government and FCA defendants. But perhaps as important as the Court’s central holding in the Polansky case (and certainly more surprising), was the view expressed by Justice Thomas in dissent (and echoed by Justice Kavanaugh in a concurring opinion joined by Justice Barrett) that the FCA’s qui tam provision permitting a private citizen to litigate a case on behalf of the United States may be unconstitutional.
The FCA authorizes private parties (known as relators) to file civil actions “in the name of the government.”[2] When a relator files a complaint, they do so under seal and initially serve it only on the Attorney General. DOJ then has 60 days as an...
A slew of NYPD officers recounted on Sunday horror stories from their careers in which they say they were falsely accused of sexual misconduct and, despite being exonerated, had the allegations sh...