[21-1052] U.S., ex rel. Polansky v. Executive Health Resources

U.S., ex rel. Polansky v. Executive Health Resources

Justia (with opinion) · Docket · oyez.org

Argued on Dec 6, 2022.
Decided on Jun 16, 2023.

Petitioner: United States, ex rel. Jesse Polansky, M.D., M.P.H..
Respondent: Executive Health Resources, Inc., et al..

Advocates:

• Daniel L. Geyser (for the Petitioner)
• Frederick Liu (for Respondent the United States)
• Mark W. Mosier (for Respondent Executive Health Resources, Inc.)

Facts of the case (from oyez.org)

Dr. Jesse Polansky was an official at the Centers for Medicare and Medicaid Services (CMS) before consulting for Executive Health Resources (EHR). EHR is a company that provides review and billing certification services to hospitals and physicians that bill Medicare.

While employed as a consultant, Polansky became concerned that EHR was systematically enabling its client hospitals to over-admit patients by certifying inpatient services that should have been provided on an outpatient basis. As a result, hospitals were billing the government for care that was not “reasonable and necessary,” in violation of CMS’s guidance and regulations.

Polansky filed a lawsuit under the False Claims Act, and it remained under seal for two years while the government investigated. The government ultimately decided it would not participate in the case, at which point the case was unsealed and Polansky proceeded as plaintiff. Seven years after the initiation of the proceedings, and after considerable time and resources by the court and parties, the government notified the parties that it intended to dismiss the entire action. The district court granted the government’s motion to dismiss, and the U.S. Court of Appeals for the Third Circuit affirmed.

Question

Does the government have the authority to dismiss a False Claims Act lawsuit brought by an individual on behalf of the government if it initially declined to take over the case, and if so, what standard applies?

Conclusion

In a qui tam action filed under the False Claims Act, the United States may move to dismiss under 31 U.S.C. § 3730(c)(2)(A) whenever it has intervened—whether during the seal period or later on; 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—Federal Rule of Civil Procedure 41(a). Justice Elena Kagan authored the 8-1 majority opinion of the Court.

Section 3730(c)(2)(A) provides that “[t]he Government may dismiss the action notwithstanding the objections of the [relator],” so long as the relator received notice and an opportunity for a hearing. Contrary to the government’s contention in this case, this does not mean that the government may dismiss the action without ever intervening in the case. Neither the text or subparagraph (2)(A) nor the broader context supports this understanding.

But Polanksy’s contention—that the government may dismiss only if it intervenes during the seal period—also fails. Under § 3730(c)(3), the government can intervene either during the seal period or “at a later date upon a showing of good cause.” If the government successfully intervenes, then it becomes a party to the litigation with the attendant rights, including the right to dismiss.

The Federal Rules of Civil Procedure are the default rules in civil litigation, and nothing warrants a departure from those rules here. Thus, 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).

Justice Brett Kavanaugh authored a concurring opinion, in which Justice Amy Coney Barrett joined, calling upon the Court to consider, in an appropriate case, whether the qui tam device is inconsistent with Article II of the U.S. Constitution.

Justice Clarence Thomas authored a dissenting opinion, arguing that the FCA does not permit the government to dismiss a qui tam action after it has declined to take over the action from the relator at the outset.