U.S. ex rel. Polansky v. Executive Health Resources
Case Overview
U.S. ex rel. Polansky v. Executive Health Resources (2023) held 8-1 that the federal government retains authority under the False Claims Act to intervene in a qui tam lawsuit and seek its dismissal even if it initially declined to intervene when the case was first unsealed. The FCA permits the government to exercise its dismissal authority at any stage of the litigation, but it must first formally intervene, giving the relator an opportunity to be heard.
The Facts
Jesse Polansky, a physician working in hospital systems, filed a False Claims Act qui tam suit alleging that Executive Health Resources assisted hospitals in upcoding Medicare claims. The government initially declined to intervene but monitored the case for several years. After extensive discovery and before trial, the government moved to dismiss the case without formally intervening arguing continued litigation was too costly and resource-intensive for marginal projected recovery. The court granted dismissal over Polansky's objection.
The Application
The government's initial declination to intervene did not extinguish its § 3730(c)(2)(A) dismissal authority, but it could not exercise that power without first formally intervening in the action. Although the government had monitored the case for years and sought dismissal only after extensive discovery (a point in the relator's favor regarding timing and fairness), the court held that formal intervention was a procedural prerequisite to the dismissal motion. Once intervened, the government's dismissal authority became absolute over Polansky's objections, notwithstanding his years of pursuing the suit and the discovery he had already conducted. The decision thus permits the government to resurrect control over qui tam litigation at any stage, provided it takes the formal step of intervention first.
The Conclusion
**Significant 2023 ruling clarifying the government's authority to kill qui tam lawsuits.** The government can revive its involvement in FCA litigation at any stage, even after initially passing on the case, it retains a supervisory interest throughout. Relators must be given an opportunity to object but cannot override the government's dismissal motion when the government intervenes. The decision gives the government a powerful tool to terminate inconvenient or expensive FCA litigation.
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