UNITED STATES EX REL. POLANSKY v. EXECUTIVE HEALTH RESOURCES, INC., ET AL.
No. 21-1052
SUPREME COURT OF THE UNITED STATES
June 16, 2023
599 U.S. ___ (2023)
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
UNITED STATES EX REL. POLANSKY v. EXECUTIVE HEALTH RESOURCES, INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 21-1052. Argued December 6, 2022-Decided June 16, 2023
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
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. And the court found that the Government had satisfied that condition here. Second, what standard should a district court use in ruling on a Subparagraph (2)(A) motion? The Court of Appeals held that the proper standard comes from
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 the FCA‘s Government-centered purposes. Congress knew that circumstances could change and new information come to light. So Congress enabled the Government, in the protection of its own interests, to reassess litigation of qui tam actions and join a case without having to take a back seat to its co-party relator. Pp. 10-13.
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
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. THOMAS, J., filed a dissenting opinion.
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
No. 21-1052
UNITED STATES, EX REL. JESSE POLANSKY, M.D., M.P.H., PETITIONER v. EXECUTIVE HEALTH RESOURCES, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[June 16, 2023]
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
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
And the injury they assert is exclusively to the Government. A qui tam suit, this Court has explained, alleges both an “injury to the [Government‘s] sovereignty arising from violation of its laws” and an injury to its “proprietary [interests] resulting from [a] fraud.” Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765, 771 (2000). But in one important sense, a qui tam suit is, as the statute puts it, “for” both the relator and the Government.
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 Government can intervene after the seal period ends, so long as it shows good cause to do so. See
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 objection (after notice and opportunity for a hearing). Subparagraph (2)(B) is similar. It allows the Government to settle an action “notwithstanding [the relator‘s] objections,” so long as the court finds after a hearing that the settlement is fair and reasonable.
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 4. 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.
B
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 granted. See id., at 392-393.2 Second,
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 al-
ways 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.‘”
B
At the same time, a straightforward reading of the FCA refutes Polansky‘s
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 4-5. 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 negate Paragraphs 1 and 2. The Paragraph 3 clause would prevent the Government, even though now “proceed[ing]” with the case, from acquiring 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 (1911). The statute would direct one result (the Government assuming the primary role upon intervening) while telling the court not to allow that state of affairs. The better reading makes the instruction to the court congruent with the background operation of the statute. The clause tells the court not to impose additional, extra-statutory limits on the relator when granting the Government‘s post-seal-period motion to intervene. See United States ex rel. CIMZNHCA, LLC v. UCB, Inc., 970 F. 3d 835, 854 (CA7 2020) (explaining that the Paragraph 3 clause “instructs the district court not to limit the relator‘s ‘status and rights’ as they are defined by” Paragraphs 1 and 2). In that way, Paragraph 3 ensures that the Government will get no special benefit from the court‘s involvement in a later intervention: The parties will occupy the same positions as they would have if the Government had intervened in the seal period.
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 of interests the court should consider in ruling on a post-answer motion. In non-FCA cases, Rule 41(a)(2)‘s “proper terms” analysis focuses on the defendant‘s interests: The court mainly addresses whether that party‘s “commitment of time and money” militates against dismissal. Cooter & Gell v. Hartmarx Corp., 496 U. S. 384, 397 (1990). But in the FCA context, the “proper terms” assessment is more likely to involve the relator. For all relators faced with a (2)(A) motion want their actions to go forward, and many have by then committed substantial resources. Part of the district court‘s task is to consider their interests. Cf. 9 C. Wright & A. Miller, Federal Practice and Procedure §2364, p. 554 (4th ed. 2022) (explaining that a court, in applying Rule 41, “should endeavor to ensure that substantial justice is accorded to all parties“).
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 should think several times over before denying a motion to dismiss. If the Government offers a reasonable argument for why the burdens of continued litigation outweigh its benefits, the court should grant the motion. And that is so even if the relator presents a credible assessment to the contrary.
In light of those principles, this case is not a close call. A district
IV
The Government may move to dismiss an FCA action under Subparagraph (2)(A) whenever it has intervened-
whether during the seal period or later on. The applicable standards for deciding such a motion are those set out in
It is so ordered.
APPENDIX
3730. 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 camera. The defendant shall not be required to respond to any complaint filed under this section until 20 days after the complaint is unsealed and served upon the defendant pursuant to
(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 repetitious, irrelevant, or for purposes of harassment, the court may, in its discretion, impose limitations on the person‘s participation, such as—
(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
(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.
SUPREME COURT OF THE UNITED STATES
No. 21–1052
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[June 16, 2023]
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 7–8 (dissenting opinion). In my view, the Court should consider the competing arguments on the Article II issue in an appropriate case.
SUPREME COURT OF THE UNITED STATES
No. 21–1052
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[June 16, 2023]
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.”
To bring out the statutory structure, it is helpful to take the FCA‘s qui tam provisions from the top. Under
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 10–13. 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 11, 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 relator‘s “status and rights,” it naturally means the status and rights that the relator actually enjoyed under paragraph (c)(3) immediately before the Government sought to intervene. By contrast, to accommodate its misreading of “proceeds with the action,” the majority is compelled to read paragraph (c)(3) to protect only the status and rights that the relator would have enjoyed in an alternative timeline where the Government intervened during the seal period and paragraph (c)(3) never came into play at all. See ante, at 12. That reading is counterintuitive, to say the least.
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 12. 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 to “redress injuries against the Government,” ante, at 12–13, its chosen means is to empower private parties to seek redress of those injuries through litigation that the Government does not necessarily control and might not have brought if left to its own devices. Allowing the relator to maintain the suit after the Government has declined its initial opportunity to take it over (even if only to dismiss it) is fully consistent with the FCA.
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 13: 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
II
However, the text and structure of the FCA are not the end of the story. Defendant-respondent has pointed to serious
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
The potential inconsistency of qui tam suits with
“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
In short, there is good reason to suspect that
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 Necessary and Proper Clause,
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,