UNITED STATES ex rel. POLANSKY v. EXECUTIVE HEALTH RESOURCES, INC., et al.
No. 21–1052
SUPREME COURT OF THE UNITED STATES
Argued December 6, 2022—Decided June 16, 2023
599 U.S. 419
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
The False Claims Act (FCA) imposes civil liability on any person who presents false or fraudulent claims for payment to the Federal Government. See
Because a relator is no ordinary plaintiff, he is subject to special restrictions. He must file his complaint under seal and serve a copy and supporting evidence on the Government. See
In this case, the relator—petitioner Jesse Polansky—filed a qui tam action alleging that respondent Executive Health Resources helped hospitals overbill Medicare. The Government declined to intervene during the seal period, and the case spent years in discovery. Eventually, the Government decided that the varied burdens of the suit outweighed its potential value, so it filed a motion under
Held:
1. The Government may move to dismiss an FCA action under
(a) The Government contends that it may move to dismiss under Subparagraph (2)(A) even if it has never intervened. But Paragraph 2 (in which Subparagraph (2)(A) appears) refutes that idea. Unlike other FCA provisions, Paragraph 2 does not say that it applies when the Government is not a party. So the Government can prevail on its argument only by implication. And the implication does not fit. Subparagraphs (2)(A) and (2)(B) grant the Government uncommon power: to dismiss and settle an action over the objection of the person who brought it. That sort of authority would be odd to house in an entity that has continually declined to join a case. And subparagraphs (2)(C) and (2)(D) presuppose that the Government has intervened. Subparagraph (2)(C) enables the court to restrict the relator’s role when needed to prevent interference with the “Government’s prosecution of the case.” And subparagraph (2)(D) allows the court to restrict the relator’s participation if the defendant would otherwise suffer an “undue burden”; here again the premise is that the Government has joined the case, else a court would be limiting the role of the defendant’s sole adversary.
Zoom out to the rest of
(b) A straightforward reading of the FCA refutes Polansky’s position that Paragraph 2 (as linked to Paragraph 1) applies only when the Government’s intervention occurs during the seal period. Recall that the Government can intervene either during the seal period or “at a later date upon a showing of good cause.”
Polansky’s contrary argument mainly relies on Paragraph 3, which provides that a court approving the Government’s post-seal-period intervention motion may not “limit[ ] the status and rights” of the relator. That clause, Polansky argues, prevents the court from giving the Government “primary responsibility” over the suit, including the power to dismiss. But on Polansky’s reading, the Paragraph 3 clause would effectively negate Paragraphs 1 and 2. The Government, even though now “proceed[ing]” with the case, would not acquire the control that Paragraphs 1 and 2 afford in that circumstance. Polansky’s construction would thus put the statute “at war with itself.” United States v. American Tobacco Co., 221 U. S. 106, 180. Instead, the clause is best read to tell the court not to impose additional, extra-statutory limitations on the relator when granting the Government’s motion, ensuring that the parties will occupy the same positions as they would have if the Government had intervened in the seal period. And that view fits
2. In assessing a motion to dismiss an FCA action over a relator’s objection, district courts should apply the rule generally governing voluntary dismissal of suits in ordinary civil litigation—Rule 41(a). The Federal Rules are the default rules in civil litigation, and nothing warrants a departure from them here. To the contrary, the FCA cross-references the Rules, and this Court has made clear that other Rules also apply in the ordinary course of FCA litigation. The application of Rule 41 in the FCA context will differ in two ways from the norm. First, the FCA requires notice and an opportunity for a hearing before a Subparagraph (2)(A) dismissal can take place. Second, in the FCA context, the set of interests the court should consider in ruling on a post-answer motion is more likely to include the relator’s, as the relator may have committed substantial resources to the action. But even so, the Third Circuit was right to note that the Government’s motion to dismiss will satisfy Rule 41 in all but the most exceptional cases. And here, the Government gave good grounds for thinking that this suit would not do what all qui tam actions are supposed to do: vindicate the Government’s interests. Absent some extraordinary circumstance, that sort of showing is all that is needed for the Government to prevail on a motion to dismiss. Pp. 435–438.
17 F. 4th 376, affirmed.
KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and ALITO, SOTOMAYOR, GORSUCH, KAVANAUGH, BARRETT, and JACKSON, JJ., joined. KAVANAUGH, J., filed a concurring opinion, in which BARRETT, J., joined, post, p. 442. THOMAS, J., filed a dissenting opinion, post, p. 442.
Daniel L. Geyser argued the cause for petitioner. With him on the briefs were Andrew W. Guthrie, Angela M. Oliver, Stephen Shackelford, Jr., Mark Musico, Nicholas C. Carullo, and William T. Jacks.
Frederick C. Liu argued the cause for the United States. With him on the brief were Solicitor General Prelogar, Principal Deputy Assistant Attorney General Boynton, Deputy Solicitor Stewart, Charles W. Scarborough, and Stephanie R. Marcus.
UNITED STATES ex rel. POLANSKY v. EXECUTIVE HEALTH RESOURCES, INC., et al.
No. 21–1052
SUPREME COURT OF THE UNITED STATES
Argued December 6, 2022—Decided June 16, 2023
599 U.S. 419
Justice Kagan
JUSTICE KAGAN delivered the opinion of the Court.
The False Claims Act (FCA),
The questions presented here concern the Government’s ability to dismiss an FCA suit over a relator’s objection. Everyone agrees that if the Government intervenes at the suit’s start, it can later move to dismiss. But the parties dispute whether, or in what circumstances, the same is true if the Government declines its initial chance to intervene. And the parties disagree as well about the standard district
Today, we hold that the Government may seek dismissal of an FCA action over a relator’s objection so long as it intervened sometime in the litigation, whether at the outset or afterward. We also hold that in handling such a motion, district courts should apply the rule generally governing voluntary dismissal of suits:
I
A
The FCA dates to the Civil War, when a Congressional committee uncovered “stupendous abuses” in the sale of provisions and munitions to the War Department. H. R. Rep. No. 2, 37th Cong., 2d Sess., pt. 2, p. II (1861). Testimony before Congress “painted a sordid picture of how the United States had been billed for nonexistent or worthless goods, charged exorbitant prices for goods delivered, and generally robbed in purchasing the necessities of war.” United States v. McNinch, 356 U. S. 595, 599 (1958). To put a stop to the plunder—and more generally, to “protect the funds and property of the Government”—Congress enacted the FCA. Rainwater v. United States, 356 U. S. 590, 592 (1958). The Act, then as now, imposed civil liability for many deceptive practices meant to appropriate government assets.
From the start, the FCA has been enforced through a unique public-private scheme. Federal prosecutors may of course sue an alleged violator, all on their own. See
Because the relator is no ordinary civil plaintiff, he is immediately subject to special restrictions. He must file his complaint under seal, and serve both “[a] copy” and supporting “material evidence” on the Government alone.
And even then, the relator is not home free. The Government, after all, is a “real party in interest” in a qui tam action. United States ex rel. Eisenstein v. City of New York, 556 U. S. 928, 930 (2009). So Congress gave the Government continuing rights in the action—not least the right to the lion’s share of the recovery. Most relevant here, the
The main issue here is whether the Government, if it has declined to intervene during the seal period, retains yet another right: the right to dismiss a qui tam action over the relator’s objection. The FCA gives the Government unilateral authority to dismiss in at least some circumstances.
The competing arguments on that score hinge significantly on surrounding provisions—more precisely, on how Subparagraph (2)(A) fits into the rest of
Paragraph 1 applies, as its first clause states, “[i]f the Government proceeds with the action.”
Paragraph 2 then spells out certain rights of the Government. You have already seen Subparagraph (2)(A), enabling the Government to dismiss an action over the relator’s objec-
Next, Paragraph 3 applies, as its first clause states, “[i]f the Government elects not to proceed with the action.”
Finally, Paragraph 4 applies, as its first clause states, “[w]hether or not the Government proceeds with the action.”
And so to recap, focusing on the matter we suggested you attend to. See supra, at 426. Paragraph 1 applies “[i]f the Government proceeds with the action.” Paragraph 3 applies “[i]f the Government elects not to proceed with the action.” Paragraph 4 applies “[w]hether or not the Government proceeds with the action.” And Paragraph 2? It is not like the others. Though granting the Government important rights—including the right to dismissal over the relator’s objection—Paragraph 2 does not specify when it applies. And that is the mystery at this case’s heart.
With the game thus afoot, we turn to the facts—though there are only a few you need to know. Petitioner Jesse Polansky is a doctor who worked for respondent Executive Health Resources (EHR), a company that helped hospitals bill the United States for Medicare-covered services. In 2012, Polansky filed (under seal, as required) a qui tam action against EHR. The complaint alleged that EHR was enabling its clients to cheat the Government—essentially, by charging inpatient rates for what should have been outpatient services. After reviewing Polansky’s evidence, the Government declined to intervene during the seal period. The case then spent years in discovery, with EHR demanding both documents and deposition testimony from the Government. As its discovery obligations mounted and weighty privilege issues emerged, the Government assessed and reassessed whether the suit should go forward. By 2019, it had decided that the varied burdens of the suit outweighed its potential value. The Government therefore filed a motion under Subparagraph (2)(A) to dismiss the action over Polansky’s objection. The District Court granted the request, finding that the Government had “thoroughly investigated the costs and benefits of allowing [Polansky’s] case to proceed and ha[d] come to a valid conclusion based on the results of its investigation.” 422 F. Supp. 3d 916, 927 (ED Pa. 2019).
The Court of Appeals for the Third Circuit affirmed after considering two legal questions. First, does the Government have authority to dismiss an action under Subparagraph (2)(A) if it declined to intervene during the seal period? The Court of Appeals held that the Government has that power so long as it intervened sometime later. See 17 F. 4th 376, 383–388 (2021). And here, the Third Circuit found, the Government had satisfied that condition because its motion to dismiss was reasonably construed to include a motion to intervene, which the District Court had implicitly
Because both those questions have occasioned circuit splits, we granted certiorari. 596 U. S. — (2022); see 17 F. 4th, at 384, n. 8, 388 (outlining the splits). We now affirm the Third Circuit across the board.
II
To show why the Third Circuit is right on the first question presented—about when the Government can make what we’ll call a (2)(A) motion—we proceed in two stages, corresponding to two sets of arguments. None of the parties here agrees with the Third Circuit. On the one side, the Government and EHR contend that a (2)(A) motion is always permissible, even if the Government has never intervened. Their argument is mainly one from silence: Because Paragraph 2 does not explicitly say when it applies—e. g., when the Government “proceeds with the action” or when it “elects not to”—the provision must apply all the time.
A
Even taken alone, Paragraph 2 refutes the idea that it applies regardless of intervention. When the Government has chosen not to intervene in a qui tam suit, it is (by definition) not a party. See Eisenstein, 556 U. S., at 933. And non-parties typically cannot do much of anything in a lawsuit. To be sure, a qui tam action is an unusual creature. Even as a non-party, the Government retains an interest in the suit, and possesses specified rights. See, e. g.,
Zoom out to the rest of
And just to pile on a bit, the Government’s alternative construction would create surplusage twice over. Consider first the “[w]hether or not” introductory clause of Paragraph 4, noted just above. On the Government’s view, that clause has no function: A provision lacking it would likewise apply “whether or not” the Government chose to intervene. The Government essentially concedes the point, urging only that Paragraph 4’s preface is “the sort of redundancy that is common in statutory drafting.” Brief for United States 25 (internal quotation marks omitted). Similarly for the “subject to . . . paragraph (2)” proviso in Paragraph 1. On the Government’s view, Congress need not have included that language, because every qui tam action (not just those described in Paragraph 1) is “subject to” Paragraph 2’s limits. Again, the Government’s only response is that “Congress sometimes includes language that could be viewed as ‘redundant.’” Id., at 22. Yes, sometimes. But on top of everything else, the Government’s double violation of the interpretive principle that “every clause and word of a statute” should have meaning, Montclair v. Ramsdell, 107 U. S. 147, 152 (1883), dooms the view that Paragraph 2 applies even when the Government has not intervened. The paragraph does not then apply—which means that the Government cannot then file a (2)(A) motion to dismiss.
B
At the same time, a straightforward reading of the FCA refutes Polansky’s (and the dissent’s) position—that Paragraph 2 (and also Paragraph 1) applies only when the Government’s intervention occurs during the seal period. Recall the way the statute works: The Government can intervene at that early time—but so too it can “intervene at
Polansky’s contrary argument (echoed in the dissent) mainly relies on the clause in Paragraph 3 telling the court that it may not “limit[ ] the status and rights” of the relator when it approves a post-seal-period intervention motion. See Brief for Polansky 23; post, at 445. That clause, he says, prevents the court from giving the Government “primary responsibility” over the suit, including the power to dismiss. But on that reading, the Paragraph 3 clause would effectively
That seal-agnostic view of intervention’s effects also fits the FCA’s Government-centered purposes. In Polansky’s proposed world, the Government has primary control of the action if it intervenes in the seal period, but the relator has primary control if the intervention occurs later on. See Brief for Polansky 17. But in both cases, the Government’s interest in the suit is the same—and is the predominant one. That interest is typically to redress injuries against the Government, through a suit “brought in [the Government’s] name.”
III
We thus arrive at this case’s second question: When the Government, having properly intervened, seeks to dismiss an FCA action over a relator’s objection, what standard should a district court use to assess the motion? The Third Circuit held that the appropriate standard derives from
The reason for alighting on Rule 41 is not complicated: The Federal Rules are the default rules in civil litigation, and nothing warrants a departure from them here. As
The application of Rule 41 in the FCA context will differ in two ways from the norm. The first pertains to procedure. The FCA requires notice and an opportunity for a hearing before a Subparagraph (2)(A) dismissal can take place. So the district court must use that procedural framework to apply Rule 41’s standards.4 The second pertains to the set
The Third Circuit, though, was right to note that (2)(A) motions will satisfy Rule 41 in all but the most exceptional cases. See 17 F. 4th, at 390–391, and n. 18. This Court has never set out a grand theory of what that Rule requires, and we will not do so here. The inquiry is necessarily “contextual.” 9 Wright & Miller § 2364, at 599. And in this context, the Government’s views are entitled to substantial deference. A qui tam suit, as we have explained, is on behalf of and in the name of the Government. The suit alleges injury to the Government alone. And the Government, once it has intervened, assumes primary responsibility for the action. Given all that, a district court
In light of those principles, this case is not a close call. A district court‘s
IV
The Government may move to dismiss an FCA action under
It is so ordered.
APPENDIX
Ҥ3730. Civil actions for false claims
“(a) RESPONSIBILITIES OF THE ATTORNEY GENERAL.—The Attorney General diligently shall investigate a violation under
“(b) ACTIONS BY PRIVATE PERSONS.—(1) A person may bring a civil action for a violation of
“(2) A copy of the complaint and written disclosure of substantially all material evidence and information the person possesses shall be served on the Government pursuant to
“(3) The Government may, for good cause shown, move the court for extensions of the time during which the complaint remains under seal under paragraph (2). Any such motions may be supported by affidavits or other submissions in cam
“(4) Before the expiration of the 60-day period or any extensions obtained under paragraph (3), the Government shall–
“(A) proceed with the action, in which case the action shall be conducted by the Government; or
“(B) notify the court that it declines to take over the action, in which case the person bringing the action shall have the right to conduct the action.
“(5) When a person brings an action under this subsection, no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.
“(c) RIGHTS OF THE PARTIES TO QUI TAM ACTIONS.—(1) If the Government proceeds with the action, it shall have the primary responsibility for prosecuting the action, and shall not be bound by an act of the person bringing the action. Such person shall have the right to continue as a party to the action, subject to the limitations set forth in paragraph (2).
“(2)(A) The Government may dismiss the action notwithstanding the objections of the person initiating the action if the person has been notified by the Government of the filing of the motion and the court has provided the person with an opportunity for a hearing on the motion.
“(B) The Government may settle the action with the defendant notwithstanding the objections of the person initiating the action if the court determines, after a hearing, that the proposed settlement is fair, adequate, and reasonable under all the circumstances. Upon a showing of good cause, such hearing may be held in camera.
“(C) Upon a showing by the Government that unrestricted participation during the course of the litigation by the person initiating the action would interfere with or unduly delay the Government‘s prosecution of the case, or would be repeti
“(i) limiting the number of witnesses the person may call;
“(ii) limiting the length of the testimony of such witnesses;
“(iii) limiting the person‘s cross-examination of witnesses; or
“(iv) otherwise limiting the participation by the person in the litigation.
“(D) Upon a showing by the defendant that unrestricted participation during the course of the litigation by the person initiating the action would be for purposes of harassment or would cause the defendant undue burden or unnecessary expense, the court may limit the participation by the person in the litigation.
“(3) If the Government elects not to proceed with the action, the person who initiated the action shall have the right to conduct the action. If the Government so requests, it shall be served with copies of all pleadings filed in the action and shall be supplied with copies of all deposition transcripts (at the Government‘s expense). When a person proceeds with the action, the court, without limiting the status and rights of the person initiating the action, may nevertheless permit the Government to intervene at a later date upon a showing of good cause.
“(4) Whether or not the Government proceeds with the action, upon a showing by the Government that certain actions of discovery by the person initiating the action would interfere with the Government‘s investigation or prosecution of a criminal or civil matter arising out of the same facts, the court may stay such discovery for a period of not more than 60 days. Such a showing shall be conducted in camera. The court may extend the 60-day period upon a further showing in camera that the Government has pursued the
“(5) Notwithstanding subsection (b), the Government may elect to pursue its claim through any alternate remedy available to the Government, including any administrative proceeding to determine a civil money penalty. If any such alternate remedy is pursued in another proceeding, the person initiating the action shall have the same rights in such proceeding as such person would have had if the action had continued under this section. Any finding of fact or conclusion of law made in such other proceeding that has become final shall be conclusive on all parties to an action under this section. For purposes of the preceding sentence, a finding or conclusion is final if it has been finally determined on appeal to the appropriate court of the United States, if all time for filing such an appeal with respect to the finding or conclusion has expired, or if the finding or conclusion is not subject to judicial review.”
JUSTICE KAVANAUGH, with whom JUSTICE BARRETT joins, concurring.
I join the Court‘s opinion in full. I add only that I agree with JUSTICE THOMAS that “[t]here are substantial arguments that the qui tam device is inconsistent with Article II and that private relators may not represent the interests of the United States in litigation.” Post, at 449 (dissenting opinion). In my view, the Court should consider the competing arguments on the Article II issue in an appropriate case.
JUSTICE THOMAS, dissenting.
In my view, the text and structure of the False Claims Act (FCA),
I
The FCA provides that private parties known as relators may bring qui tam suits “for [themselves] and for the United States Government.”
This case requires us to decide whether the Government enjoys the same panoply of procedural rights when it takes over an action during the seal period and when (as here) it intervenes in the action “at a later date” after the relator has “proceed[ed] with the action.”
Section 3730(c) picks up at this critical juncture, defining the respective litigating rights of the Government and the relator based on the Government‘s choice to “proceed with the action” or not. First, paragraph (1) of subsection (c) (or, paragraph (c)(1)) provides: “If the Government proceeds with the action, it shall have the primary responsibility for prosecuting the action,” but the relator “shall have the right to continue as a party to the action, subject to [paragraph (c)(2)‘s] limitations.”1 As used here, the phrase “proceeds with the action” naturally refers to the same seal-period choice for which
By contrast, paragraph (c)(3) provides: “If the Government elects not to proceed with the action, the [relator] shall have the right to conduct the action.” The conditional clause of this sentence is a clear reference to the seal-period “elect[ion]” described in paragraph (b)(2).2 Likewise, the result clause plainly echoes “the right to conduct the action” referred to under subparagraph (b)(4)(B), which the relator acquires when the Government does not “proceed with the action” under subparagraph (b)(4)(A) at the end of the seal period.
In short, the initial clauses of paragraphs (c)(1) and (c)(3) track subparagraphs (b)(4)(A) and (b)(4)(B) and point back to the Government‘s seal-period choice to “proceed with the action” or not. If the Government chooses to proceed with the action under
To be sure, the last sentence of paragraph (c)(3) provides: “When [the relator] proceeds with the action, the court, without limiting the status and rights of the [relator], may nevertheless permit the Government to intervene at a later date upon a showing of good cause.” But this sentence is not, as the majority reads it, a secret pass in paragraph (c)(3) that leads the parties back to their relative rights under paragraphs (c)(1) and (c)(2). See ante, at 432–435. The sentence itself makes that clear by cautioning that the Government‘s later intervention may not “limi[t] the status and rights of the [relator].”
The majority short-circuits this straightforward conclusion by essentially stipulating that the Government “proceeds with the action“—and thus activates paragraphs (c)(1) and (c)(2)—whenever it is a party, regardless of when and how it became a party. See ante, at 433, and n. 3. Nothing in the FCA‘s overall text or structure favors that interpretation. Nor does the text of paragraph (c)(3). When that provision describes the Government “interven[ing]” after the seal period, it does not use the phrase “proceed with the action” (except in reference to the relator). Cf.
The majority‘s interpretation of “proceeds with the action” in turn dictates an unnatural reading of paragraph (c)(3)‘s “without limiting” condition. When the FCA says that the Government‘s belated intervention may not “limi[t]” the rela
Nor is that the end of the problems with the majority‘s “seal-agnostic view.” Ibid. Immediately below subsection (c),
The majority bolsters its tenuous textual and structural case with an appeal to “the FCA‘s Government-centered purposes.” Ante, at 434. But “every statute purposes, not only to achieve certain ends, but also to achieve them by particular means.” Freeman v. Quicken Loans, Inc., 566 U. S. 624, 637 (2012) (alteration and internal quotation marks omitted). And, while it is certainly the FCA‘s ultimate goal
Indeed, the FCA‘s history undermines the majority‘s free-floating account of its “purposes.” As enacted in 1863, the original FCA contained no provision for the Government to intervene in a relator‘s suit at all. See 12 Stat. 698. In 1943, Congress first gave the Government that opportunity by creating the 60-day seal period, which it set up to function as the very “on-off switch” the majority seems to consider implausible, ante, at 435: Either the Government intervened during the seal period and assumed sole control of the action, or it did not intervene and was permanently excluded from the action. See 57 Stat. 608–609. Finally, in 1986, Congress revamped the FCA into its modern form, under which (as never before) the Government and the relator can litigate side by side as co-plaintiffs in the same action. In creating this possibility, Congress tweaked both halves of the previous regime in roughly parallel ways. If the Government intervenes during the seal period, paragraphs (c)(1) and (c)(2) now permit the relator to remain a party and play a role in the litigation—but only a subordinate role. Conversely, if the Government does not intervene and proceed with the action during the seal period, it is not forever barred from taking a litigating role—but, if it intervenes later, it does not downgrade the relator‘s “status and rights” to those of a second-chair litigant.
In sum, the text, structure, and history of the FCA all point to the same conclusion. The FCA affords the Government no statutory right to unilaterally dismiss a declined action when it intervenes under
However, the text and structure of the FCA are not the end of the story. Defendant-respondent has pointed to serious constitutional questions that might affect the disposition of the Government‘s motion here. At the same time, it is not clear that the parties have examined these questions in their full complexity, and the Third Circuit‘s reading of
The FCA‘s qui tam provisions have long inhabited something of a constitutional twilight zone. There are substantial arguments that the qui tam device is inconsistent with Article II and that private relators may not represent the interests of the United States in litigation. Because “[t]he entire ‘executive Power’ belongs to the President alone,” Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S. –––, ––– (2020), it can only be exercised by the President and those acting under him, see id., at ––– (THOMAS, J., concurring in part and dissenting in part). And, as “[a] lawsuit is the ultimate remedy for a breach of the law,” the Court has held that “conducting civil litigation . . . for vindicating public rights” of the United States is an “executive functio[n]” that “may be discharged only by persons who are ‘Officers of the United States’ ” under the
The potential inconsistency of qui tam suits with Article II has been noticed for decades. See, e. g., Riley v. St. Luke‘s Episcopal Hospital, 252 F. 3d 749, 758–775 (CA5 2001) (en banc) (Smith, J., dissenting); J. Blanch, Note, The Constitutionality of the False Claims Act‘s Qui Tam Provision, 16 Harv. J. L. & Pub. Pol‘y 701, 736–767 (1993); Constitutionality of the Qui Tam Provisions of the False Claims Act, 13 Op. OLC 207, 221–224, 228–232 (1989). The primary counterargument has emphasized the long historical pedigree of qui tam suits, including the fact that the First Congress passed a handful of qui tam statutes. See, e. g., Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765, 801 (2000) (Stevens, J., dissenting); Riley, 252 F. 3d, at 752–753 (“[H]istory alone resolves . . . whether the qui tam provisions in the FCA violate Article II“). “Standing alone,” however, “historical patterns cannot justify contemporary violations of constitutional guarantees,” Marsh v. Chambers, 463 U. S. 783, 790 (1983), even when the practice in question “covers our entire national existence and indeed predates it,” Walz v. Tax Comm‘n of City of New York, 397 U. S. 664, 678 (1970). Nor is enactment by the First Congress a guarantee of a statute‘s constitutionality. See Marbury v. Madison, 1 Cranch 137 (1803). Finally, we should be especially careful not to overread the early history of federal qui tam statutes given that the Constitution‘s creation of a separate Executive Branch coequal to the Legislature was a structural departure from the English system of parliamentary supremacy, from which many legal practices like qui tam were inherited. See S. Prakash, The Chief Prosecutor, 73 Geo. Wash. L. Rev. 521, 589 (2005) (noting that, for this reason, “we ought to be cautious about importing English constraints or exceptions to the executive power, when those limitations might be based on the principle of parliamentary supremacy“).
Under Stevens’ partial-assignment theory, it is not immediately clear that the Government may dismiss the relator‘s interest in a qui tam suit, even assuming that the relator‘s representation of the United States’ interest is unconstitutional. Whether the Government may do so may depend on the implicit conditions of the assignment; conceivably, it may also depend on whether the assignment is severable from the FCA‘s attempt to vest the authority to represent the United States in litigation in a party outside the Executive Branch.
In examining these issues, moreover, it may be necessary to consider a question that Stevens left unaddressed: What is the source of Congress’ power to effect partial assignments of the United States’ damages claims? One candidate might be the
In any event, these are complex questions, which I would leave for the parties and the court below to consider after resolving the statutory issues that have been the focus of this case up to now.3 Therefore, I would vacate the judgment below granting the Government‘s motion to dismiss and remand for the Third Circuit to consider the correct disposition of that motion in light of any applicable constitutional requirements.
The attached opinion has been revised to reflect the usual publication and citation style of the United States Reports. The revised pagination makes available the official United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or filed briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made:
None