The Department of Justice’s (DOJ) dismissal authority: Supreme Court resolves circuit split in standard, but DOJ seems unlikely to pick more fights with relators.

On June 16, 2023, the Supreme Court issued its second opinion on the False Claims Act (the FCA or the Act) for the 2022 term of the Court. In United States ex rel. Polansky v. Executive Health Resources, Inc., the Supreme Court answered two questions about the government’s power to dismiss a qui tam action under subsection 3730(c)(2)(A) of the Act. First, it held that the government may dismiss after it has intervened in the case – regardless of whether it intervenes during the initial seal period or later upon a showing of good cause after initially declining to take over the action. Second, the Court clarified that, when evaluating a government motion to dismiss, district courts should apply the standards governing voluntary dismissal of suits in ordinary civil litigation – i.e., those set forth in Rule 41(a) of the Federal Rules of Civil Procedure.

In rejecting both parties’ more extreme positions on these issues, the Court affirmed the Third Circuit’s “Goldilocks” approach to the timing and standard of review of government motions to dismiss qui tam claims.

Since the Supreme Court’s ruling has set a clear standard for the showing required to dismiss qui tam claims, the question now is whether the government will avail itself of the opportunity to exercise the power granted under subsection 3730(c)(2)(A) with any greater frequency than it has historically done.


The FCA’s qui tam provisions allow private parties to sue on behalf of the government for the knowing presentation of false claims to the United States. The private party, or “relator,” files the complaint under seal, and the DOJ is served with the complaint and provided an initial 60 day period (routinely extended upon a showing of good cause) during which the complaint remains sealed and the United States may decide whether to intervene and take over principal responsibility for prosecuting the case. If it declines, the relator assumes that responsibility.

The Act incorporates a provision, subsection 3730(c)(2)(A), that allows the government to dismiss the action over the objections of the relator, if the relator has been notified of the filing of the motion, and the court has provided the relator with an opportunity for a hearing. As a practical matter, such motions have been filed relatively sparingly by the government since subsection 3730(c)(2)(A) was adopted in 1986. That notwithstanding, the Courts of Appeals had split on the appropriate standard for deciding such a motion. Some courts had required that the government identify a “valid government purpose” supporting dismissal, and a “rational relation between dismissal and accomplishment of that purpose;” other courts held that the government has “unfettered discretion” to dismiss.[1]

In this case, the relator, Dr. Jesse Polansky, had worked as a doctor for Executive Health Resources (EHR), a company that provided physician advisory and compliance solutions to help payers and providers collaborate. In 2012, Polansky filed a qui tam action alleging that EHR conducted coding reviews that improperly designated patients as inpatient instead of outpatient to “exploit[] the difference in reimbursement rates for inpatient and outpatient services” under the Medicare program.[2]

The government declined to intervene and the case proceeded through several years of motions and discovery. By 2019, the government had reassessed the suit, determining that the burdens and risks associated with the potential disclosure of internal agency deliberations on the applicable Medicare coverage rule outweighed any potential value of the case. The government filed a motion to dismiss under subsection 3730(c)(2)(A). The district court granted dismissal over Polansky’s objection, and the Third Circuit Court of Appeals affirmed.[3]

Timing of the government’s intervention

Justice Kagan, writing for the Court, began by rejecting the relator’s position that the right to exercise the dismissal power granted under subsection 3730(c)(2)(A) extends to the United States only when it intervenes during the initial seal period. Because a qui tam action alleges injury to the government alone, the Court determined that the government has “primary responsibility” over the action regardless of when it becomes a party to the litigation, and that status embraces the ability to dismiss the case over the relator’s objection even after initially declining to intervene.[4]  

When the government intervenes for good cause, the parties “occupy the same positions as they would have if the Government had intervened in the seal period.”[5] That “seal-agnostic” view of the effect and timing of intervention accords with what the Court described as the “FCA’s Government-centered purposes,” and rejects the notion that the government occupies a diminished role in the litigation if it does not intervene during the seal period.[6] In the Court’s view, the government’s interest – to redress injuries against it, or, as here, to obtain dismissal of the suit because “it will likely cost the Government more than it is worth” – is always “predominant.” “Either way, that interest does not diminish in importance because the Government waited to intervene.”[7]

Standard of dismissal

The Court then clarified the standard district courts should apply in deciding such motions, resolving the tension among the circuits’ varying approaches, and rejecting the government’s argument for “unfettered discretion” to dismiss. In adopting the Third Circuit’s middle path, the Court held that after the government has intervened, it may unilaterally dismiss the qui tam lawsuit as long as it meets the relatively modest requirements of Rule 41(a) of the Federal Rules of Civil Procedure. As Justice Kagan explained, “the Third Circuit’s Goldilocks position is the legally right one. A district court should assess a (2)(A) motion to dismiss using Rule 41’s standards. And in most FCA cases, as the Court of Appeals suggested, those standards will be readily satisfied.”[8] “If the Government offers a reasonable argument for why the burdens of continued litigation outweigh its benefits,” the Court instructed, a district court “should grant the motion . . . even if the relator presents a credible assessment to the contrary.”[9]

The dissent

In the concurring and dissenting opinions, the Justices appeared to tempt defendants in declined qui tam suits to assert that the Constitution bars private plaintiffs from proceeding with such claims. Although this ruling does not address the merits of any such constitutional challenges, the invitation to challenge the constitutionality of the qui tam provisions of the Act seems particularly pointed.

In his dissent, Justice Clarence Thomas opined that the FCA does not provide the government with the right to unilaterally dismiss a qui tam action after initially declining to intervene. Instead, he would have remanded the case to the Third Circuit to consider whether the Constitution allows relators to represent the United States’ interests in FCA suits in the first place. In Justice Thomas’ view (also echoed in a brief concurrence authored by Justices Kavanaugh and Barrett), there are “substantial arguments that the qui tam device is inconsistent with Article II” of the Constitution because the executive power belongs to the President alone. 

The suggestion by three Justices that the FCA’s qui tam provisions cannot be squared with the Constitution could encourage parties to attempt to raise such challenges in future cases. A ruling that the qui tam provisions are unconstitutional, however, would represent a significant departure from the Court’s past jurisprudence.

Looking ahead

For the government, the effect of the Court’s ruling clarifies its broad latitude to intervene and dismiss qui tam actions throughout the duration of a case. This is consistent with the view that under the Constitution, the Executive Branch should retain control over litigation on behalf of the United States and maintain a robust ability to exercise the DOJ’s prosecutorial discretion.

In practice, this decision could empower the DOJ to weed out some of the more obviously meritless qui tam suits. However, there is no strong evidence to suggest that the Department will exercise its dismissal power with any greater frequency. At the very least, cementing the government’s ability to change its position on dismissal as a case proceeds could reduce the pressure on the government to make a decision about dismissal under subsection (c)(2)(A) at the outset of the case, since there is no reason not to wait and see how the case progresses.

For defendants in declined qui tam cases, the Court’s opinion represents a favorable outcome. Knowing that the courts will require only a minimal showing by the government to overcome relators’ objections, defendants can continue to press the government to dismiss meritless suits, even at later stages of litigation. In cases where the government initially declines to intervene, defendants may use evidence adduced during discovery to demonstrate that dismissal is warranted. Although dismissals under subsection (c)(2)(A) of the Act remain rare, the Court’s decision provides a clear path for government-initiated dismissal in the later stages of qui tam litigation.


[1] Compare e.g., Sequoia Orange Co. v Baird-Neece Packing Corp., 151 F.3d 1139, 1145 (9th Cir. 1998), with Swift v. United States, 318 F.3d 250, 252 (D.C. Cir. 2003).

[2] Polansky v. Exec. Health Res., Inc., 422 F.Supp.3d 916, 919 (E.D. Pa. 2019).

[3] Id. at 930, aff’d, 17 F.4th 376 (3d Cir. 2021).

[4] United States, ex rel. Polansky v. Exec. Health Res., Inc., 599 U.S. 419, 433, (2023).

[5] Id. at 434.

[6] Id. at 434.

[7] Id. at 434-35.

[8] Id. at 435-36.

[9] Id. at 438.