Last month, the Supreme Court granted certiorari in United States ex rel. Polansky v. Executive Health Resources, Inc., a case presenting the question whether the federal government forfeits the authority to dismiss False Claims Act (FCA) suits brought in its name if it first declines to intervene in them.

The FCA allows relators to file civil actions “in the name of the government,”[1] but cautions that “[t]he Government may dismiss the action notwithstanding the objections of the [relator]” if the relator first receives notice and the opportunity for a hearing.[2]  Though the statute is broadly worded, it offers scant guidance to courts evaluating such motions, leaving the scope of the government’s prerogative open for interpretation.

In Polansky, the DOJ completed its investigation and declined to intervene in the relator’s suit.  Yet five years later, with the case still pending, the DOJ surfaced again, moving to dismiss the suit over the relator’s objection under the relevant provision, § 3730(c)(2)(A).  After briefing and a hearing, the district court granted the motion.  The Third Circuit affirmed.

The Supreme Court granted review—over the government’s objection—to decide (1) whether the government forfeited its right to move for dismissal by declining to intervene at the outset, and (2) if not, what standard to apply when considering such a motion.  With respect to the latter question, the Court stands poised to resolve “a deeply entrenched circuit split” regarding how such motions should be judged.[3]  At one end of the spectrum, the D.C. Circuit has held that the government has “an unfettered right to dismiss an action” and so has declined to scrutinize DOJ motions to dismiss,[4] while—at the other end of the spectrum—the Ninth and Tenth Circuit have required that the government’s motion to dismiss have “a rational relation to a valid governmental purpose.”[5]  Other courts fall in between these two poles.  The First Circuit recently held that “the government must provide its reasons for seeking dismissal,” but that the district court should allow dismissal unless “the government is transgressing constitutional limitations or perpetrating a fraud on the court.”[6]  And the Third Circuit (in the case on appeal to the Court) and the Seventh Circuit have applied Federal Rule of Civil Procedure 41, holding that the DOJ has significant latitude to seek dismissal before the defendant responds to the complaint, but once the defendant responds, the court may inquire into whether the “the terms of dismissal are ‘proper’” under Rule 41(a).[7]

The High Court’s resolution of these widely disputed issues is likely to have practical effects for relators and defendants facing FCA suits.  In 2019, an internal DOJ Memo (dubbed “the Granston Memo” after its author, then-Deputy AAG Michael Granston) set forth a series of non-exhaustive factors government lawyers should consider when deciding whether to seek dismissal of a qui tam suit.[8] These factors—curbing meritless and opportunistic relator actions, preventing interference in government policies, preserving government resources, and others—have since been incorporated into the Justice Manual.[9]

Since the release of the Granston Memo, “the DOJ has moved to dismiss many more cases than it had ever done previously.”[10]   And though the pace of § 3730(c)(2)(A) dismissals has slowed during the Biden administration, they remain a powerful tool for the government to control litigation brought in its name and FCA defendants routinely urge the government to put that tool to use.

Polansky has the potential to reshape this landscape.  A ruling that the DOJ cannot move to dismiss unless it first intervenes in the action would certainly slow the pace of § 3730(c)(2)(A) dismissals, as would a ruling that directs courts to closely scrutinize DOJ’s motions before granting them.  However, were the Court to embrace the position—as has the D.C. Circuit—that DOJ enjoys virtually “unfettered” discretion to dismiss a qui tam claim,[11] the government could prove more open to considering this option nationwide.

We will continue to monitor and provide updates regarding this case.

[1] 31 U.S.C. 3730(b)(1).

[2] 31 U.S.C. 3730(c)(2)(A).

[3] Health Choice Alliance, LLC v. Eli Lilly & Co., Inc., 4 F.4th 255, 263 (5th Cir. 2021).

[4] Swift v. United States, 318 F.3d 250, 252 (D.C. Cir. 2003); Hoyte v. Am. Nat’l Red Cross, 518 F.3d 61, 65 (D.C. Cir. 2008).

[5] U.S. ex rel. Ridenour v. Kaiser-Hill Co., 397 F.3d 925, 937 (10th Cir. 2005); U.S. ex rel. Sequoia Orange Co. v. Baird-Neece Packing Corp., 151 F.3d 1139, 1145 (9th Cir. 1998).

[6] Borzilleri v. Bayer Healthcare Pharms., Inc., 24 F.4th 32, 35 (1st Cir. 2022).

[7] U.S. ex rel. CIMZNHCA, LLC v. UCB, Inc., 970 F.3d 835, 849–53 (7th Cir. 2020); U.S. ex rel. Polansky v. Exec. Health Res. Inc., 17 F.4th 376, 388–91 (3d Cir. 2021).

[8] DOJ, Factors for Evaluating Dismissal Pursuant to 31 U.S.C. 3730(c)(2)(A) (Jan. 10, 2018) (“Granston Memo”).

[9] DOJ, Justice Manual, § 4-4.111.

[10] Eric Christofferson, et al., Consequences of DOJ’s Granston Memo—Dismissals Are Up, Circuits Split, Bloomberg Law (Nov. 25, 2019, 4:01 AM ET).

[11] Swift, 318 F.3d at 252.