United States, ex rel. Polansky v. Executive Health Resources, Inc.
Issues
Does the government have the authority to dismiss a qui tam action brought under the False Claims Act after declining to proceed with the action at the outset; and, if so, what showing must it make to have the action dismissed?
This case asks the Supreme Court to decide whether the government may dismiss a qui tam action over the objections of the relator when the government chooses not to proceed with the action at the outset. Jesse Polansky argues that the text, structure, history, and purpose of the False Claims Act indicate that when the government chooses not to pursue an action at the outset of a case, the relator has the exclusive right to decide whether to proceed with an action or request its dismissal. Polansky maintains that the government cannot retain its right to dismiss after it declines to proceed at the outset. Executive Health Resources, Inc. counters that the False Claims Act allows the government to dismiss a qui tam action at any time because the Constitution vests executive power in the President. Executive Health Resources contends that delegating executive power to relators, as Polansky suggests, would be unconstitutional. The case has significant policy implications because litigating qui tam actions is costly for all parties involved, and a ruling for unrestricted governmental dismissal authority could chill relators from bringing future qui tam actions, whereas a ruling for limited government dismissal authority could burden the government with meritless qui tam actions.
Questions as Framed for the Court by the Parties
Whether the government has authority to dismiss a False Claims Act suit after initially declining to proceed with the action, and what standard applies if the government has that authority.
Respondent Executive Health Resources, Inc. (“EHR”) is a “physician advisor” company that certifies health care services as having been properly billed for Medicare reimbursement. Polansky v. Exec. Health Res. at 380–81.
Additional Resources
- Jeetander Dulani, Thomas Hill, Lauren Smith, & Alex Tomaszczuk, U.S. Supreme Court to Resolve a Circuit Split Involving Qui Tam Actions, JD Supra (July 12, 2022).
- Tjasse Fritz, Bridget Mayer Briggs & Jennifer Short, Polansky and the Future of FCA Qui Tam Prosecution, JD Supra (Aug. 31, 2022).
- Brendan Pierson, Supreme Court to Consider Whether U.S. can Drop Whistleblower Cases, Reuters (June 21, 2022).
- Daniel Seiden, U.S. Lacks Power to Kill Fraud Suit, Whistleblower Tells Justices, Bloomberg Law (Aug. 29, 2022).