On June 16, 2023, the Supreme Court (the “Court”) in United States ex rel. Polansky v. Executive Health Resources affirmed the federal government’s power to dismiss a False Claims Act (“FCA”) action brought under the qui tam provisions whenever it chooses to intervene. Polansky is the second FCA case this summer in which the Court has ruled in favor of the federal government—i.e., the Department of Justice, acting through the Attorney General (“DOJ”). Writing for an 8-1 majority, Justice Kagan explained that DOJ receives considerable deference, even over the objection of the individual who raised the action (i.e., the relator or whistleblower), to dismiss cases that are inconsistent with DOJ’s interests.

By way of background, in an FCA suit filed by a relator, DOJ has the right to intervene in the case, usually while the case remains under seal. If it intervenes, DOJ becomes the primary mover and, thus, may later move to dismiss the case. However, if DOJ declines to intervene, the relator may continue the case, but DOJ remains a party in interest. In Polansky, the relator (Dr. Jesse Polansky) filed a qui tam action against Executive Health Resources for allegedly submitting fraudulent claims to the Medicare program. While DOJ declined to intervene during the seal period, Dr. Polansky continued the case, which underwent years of discovery, requiring substantial amounts of documents and testimony from the federal government. By 2019, however, DOJ determined that the case’s burdens outweighed its potential value and, thus, moved to dismiss the case under 31 U.S.C. § 3730(c)(2)(A) (“Subparagraph (2)(A)”). DOJ’s motion was filed over Dr. Polansky’s objection that DOJ lacked dismissal authority.

The District Court granted the motion, determining that DOJ had reached a “valid conclusion based on the results of its investigation” to dismiss the case. The Third Circuit Court of Appeals affirmed the granting of the motion, holding that (1) a motion to dismiss implicitly is a motion to intervene, and (2) the standard to rule on a Subparagraph (2)(A) motion to dismiss comes from Federal Rule of Civil Procedure (“FRCP”) 41. After the Court granted review, DOJ argued that it possessed “essentially unfettered discretion to dismiss.” By contrast, Dr. Polansky advocated for an “arbitrary and capricious” standard of review.

The Court adopted neither parties’ standard, but rather affirmed the Third Circuit’s “Goldilocks position.” Justice Kagan explained that no departure from the FRCP was warranted—the standards outlined in FRCP 41 governed a request to dismiss under Subparagraph (2)(A). Justice Kagan further explained that applications of FRCP 41 in the FCA context differ in two respects from non-FCA cases. First, a dismissal under Subparagraph (2)(A) requires advance notice and an opportunity for hearing. District courts are therefore required to use this framework to apply FRCP 41. Furthermore, district courts must consider the interests of both the federal government and the relator as part of its analysis to determine whether a dismissal occurs on “proper terms.”

The Court’s decision may modestly reduce the number of qui tam actions in the future, although it is not expected to stem the growing wave that has emerged over the past decade. Despite such notable volume increase, the rate of intervention by DOJ has only negligibly changed. Recognizing DOJ’s right to intervene beyond the initial seal period, potential relators may be less likely to bring forth complaints, knowing that their efforts may result in a dismissal years after the complaint is initiated and after years of discovery and unrecoverable costs to both relators and their counsel.

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Special thanks to summer associate Brandon McCoy for his contribution to this post.

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Photo of Matthew J. Westbrook Matthew J. Westbrook

Matt is an associate in the Corporate Department and a member of the Health Care Group.  His practice focuses on providing regulatory compliance advice for the Firm’s health care clients, including service providers, health plans, operators, investors, and lenders, among others.  Matt specifically…

Matt is an associate in the Corporate Department and a member of the Health Care Group.  His practice focuses on providing regulatory compliance advice for the Firm’s health care clients, including service providers, health plans, operators, investors, and lenders, among others.  Matt specifically provides advice on fraud and abuse matters arising under the Federal False Claims Act (FCA), Civil Monetary Penalties Law (CMPL), Federal Anti-Kickback Statute (AKS), and Physician Self-Referral Law (Stark Law), as well as on the regulations promulgated by the Drug Enforcement Administration (DEA) and the Department of Health and Human Services, including the Office of Inspector General (OIG), Centers for Medicare & Medicaid Services (CMS), and Food and Drug Administration (FDA).

Photo of Ryan P. Blaney Ryan P. Blaney

Ryan Blaney represents health care, life science, and technology clients in a range of regulatory, enforcement, internal investigative and transactional matters, with particular expertise in privacy law, life sciences and digital health. He also has expertise in regulatory compliance, counseling clients on a…

Ryan Blaney represents health care, life science, and technology clients in a range of regulatory, enforcement, internal investigative and transactional matters, with particular expertise in privacy law, life sciences and digital health. He also has expertise in regulatory compliance, counseling clients on a range of matters, including health care fraud and abuse, third party reimbursement, data breach issues, data privacy and security, and FDA regulatory matters. He has substantial experience in pharmaceutical lifecycle management and competition issues, including the Hatch- Waxman Act and Biosimilars Price Competition and Innovations Act.

Ryan serves information technology companies, public and private health care companies, hospitals and physician organizations, manufacturers, medical device companies, and health plans. He guides venture capital groups, private equity funds, investment banks, and other investors on health care regulatory issues in connection with financing, mergers and acquisitions, and restructuring.

Ryan’s work is greatly informed by his experience as a teacher. Prior to attending law school, Ryan earned a master’s degree in education and taught at an under-resourced Catholic middle school. He is known for his ability to communicate clearly and to coordinate large teams working on complex matters. Outside of his health law practice, Ryan has been repeatedly recognized for his public service and pro bono work. He has successfully handled numerous education-related cases, helped establish three nonprofit organizations and defended qualified recipients of disability benefits.