The Department of Justice (DOJ) dismissal authority: Supreme Court will resolve Circuit split in standard, but DOJ seems unlikely to pick more fights with relators.
For nearly two decades, when DOJ invoked its authority under 31 U.S.C. § 3730(c)(2)(A) to move for dismissal qui tams over the objections of the relator who filed it, the Department’s briefs included argument under at least two different standards of review, thanks to an unresolved circuit split. A case argued to the Supreme Court this term could bring clarity. In June 2022, the Supreme Court granted writ of certiorari; and in December, oral arguments were heard in Polansky v. Executive Health Resources to resolve the three-way circuit split.1 The question at issue is whether the government must intervene in a case in order to seek dismissal and what standard governs the government’s dismissal authority.2 But since most False Claims Act (FCA) cases that reach the Supreme Court end up answering, or giving rise to, more questions than they answer, practitioners across the country are looking forward to learning how the Court analyzes this relatively parochial dispute.
Three-way circuit split
As noted in our 2022 FCA Guide, until 2021, circuit courts of appeal split into two camps over the governing standard applicable to DOJ motions to dismiss qui tam suits. On the one hand, in its opinion in Swift v. United States, the D.C. Circuit gave “the government an unfettered right to dismiss an action.”3 The Eighth Circuit followed a similar standard, noting that a government’s power to dismiss over a relator’s objection is “subject only to notice and a hearing for the qui tam relator.”4 On the other, courts in the Ninth and Tenth Circuits applied the standard first articulated by the Ninth Circuit in United States ex rel. Sequoia Orange Co. v. Baird-Neece Packing Corp., and required the government to demonstrate a valid purpose for dismissal and a “rational relation” between dismissal and accomplishment of that purpose.5
In 2021 a third standard entered the mix.6 In United States ex rel. CIMZNHCA, LLC v. UCB, Inc. (CIMZNHCA), the Seventh Circuit used language found in Rule 41(a) of the Federal Rules of Civil Procedure as the basis for determining the government’s dismissal authority.7 The CIMZNHCA decision affords the government a largely unfettered right to intervene and dismiss over the relator’s objection during the early stages of litigation, but once the defendant files a responsive pleading, then “an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper.”8 This decision created further division among the circuits with respect to what constitutes an appropriate standard governing DOJ motions to dismiss qui tam suits.9
Third Circuit Polansky decision
The Third Circuit’s decision in the Polansky case – a now pending review before the Supreme Court – deepened the three-way circuit split, making the issue even more ripe for review by the high court.10 The relator, Polansky, filed suit against Executive Health Resources, Inc. alleging violations of the FCA arising from an alleged practice of admitting patients for inpatient services that should have been provided on an outpatient basis.11 Several years after the suit was filed, DOJ, after initially declining to intervene, moved to dismiss the entire action under 31 U.S.C. § 3730(c).12 The district court granted the motion and concluded that the government made an adequate showing under any of the prevailing standards.13 On appeal, the Third Circuit held that the government (1) must intervene before it can move to dismiss,14 and (2) can seek leave to intervene at any point in the litigation upon a showing of good cause. The Third Circuit also held that (3) F.R.C.P. 41(a) sets forth the standard the government must meet for a dismissal, a standard first set by the Seventh Circuit in CIMZNHCA.
Supreme Court review
The Supreme Court will address two questions in its review of the lower court decisions in Polansky : (1) whether the government must intervene in order to move to dismiss, and (2) what should be the standard governing dismissal authority? The petitioner, Polansky, argues that “the government lacks any FCA dismissal authority after initially declining to intervene …because the government has every opportunity to “proceed” at the outset and control an action, but (consistent with centuries of practice) it has no right to displace the relator’s “exclusive” control after taking a pass in the first instance.”15 In response, the qui tam defendants argue that “the Government retains the authority to dismiss a case, even if it initially declined to intervene” and that “the FCA imposes no limitations on when the government may exercise its dismissal authority.”16 The government takes a similar position, arguing that the FCA does not require the government to intervene before dismissing an action and that the government’s decision to dismiss a qui tam action is subject to constitutional, but not statutory, constraints.17
During oral arguments in December 2022, justices questioned the Petitioner and Government regarding textual analysis of the language of the FCA.18 Several justices expressed concerns about Article II separation of powers issues that could arise from the standard proffered by the Petitioner, which would require second-guessing discretionary DOJ decision-making. Justices further probed both parties about what would qualify as an acceptable basis for dismissal and whether the trial court should be permitted to delve into the legitimacy of the government’s proffered explanation for dismissal.19 The Court’s decision is expected by June 2023.
Looking ahead
Historically, DOJ rarely sought dismissal of qui tam actions. That changed in January 2018 with the issuance of the DOJ memorandum, commonly known as the Granston Memo, which was later incorporated into DOJ’s handbook, the Justice Manual.20 The Memo sets forth factors DOJ attorneys should consider in determining whether to seek dismissal of qui tam actions and states that the dismissal of qui tams is “an important tool to advance the Government’s interests, preserve limited resources, and avoid adverse precedent.” 21 In the wake of the Granston Memo, DOJ appeared to dismiss qui tam actions somewhat more frequently, but given the increasing number of filings each year, that increase may, or may not, be attributable to a more formalized process for deliberation under the Memo. Only time will tell if the Supreme Court’s decision in Polansky later this year or legislation shifts that trend one way or the other.
References
1 Transcript of Oral Argument, US ex rel Polansky vs. Executive Health Resources (21-1052). Oyez. Retrieved at https://www.oyez.org/cases/2022/21-1052.
2SCOTUSblog, “Justices probe government’s authority to dismiss False Claims Act lawsuits,” (6 December 2022) available here.
3 318 F.3d 250, 252-53 (D.C. Cir. 2003).
4 See United States ex rel. Rodgers v. Ark., 154 F.3d 865, 868 (8th Cir. 1998).
5 151 F.3d 1139, 1145 (9th Cir. 1998). See also Ridenour v. Kaiser–Hill Co., L.L.C., 397 F.3d 925, 940 (10th Cir. 2005).
6 United States ex rel. CIMZNHCA, LLC, v. UCB, Inc., 970 F.3d 835 (7th Cir. 2020).
7 Id. at 849-50 (noting that dismissals under Rule 41(a) are “subject to . . . any applicable federal statute” which imports the limitations articulated in § 3730(c)(2)(A), and concluding that the government may dismiss the action without the relator's consent if the relator receives notice and opportunity to be heard as required by § 3730(c)(2)(A)).; see also Fed. R. Civ. P. 41(a)(2).
8 Id. at 849-50.
9 In addition to the circuit split, Senator Charles Grassley introduced a bill (S 2428 – False Claims Amendments Act of 2021) that addresses the standard for DOJ’s dismissal authority. The bill proposes to amend § 3730(c)(2)(A) to read as follows: “The Government may dismiss the action notwithstanding the objections of the person initiating the action the Relator 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, at which the Government shall identify a valid government purpose and a rational relation between dismissal and accomplishment of the purpose, and the person initiating the actions shall have the burden of demonstrating that the dismissal is fraudulent, arbitrary and capricious, or illegal.” Presently, the bill remains on the Senate Legislative Calendar. 31 U.S.C. § 3730(c)(2)(A); False Claims Amendments Act of 2021, S.2428, 117th Cong. (2021) https://www.congress.gov/bill/117th-congress/senate-bill/2428/text.
10 Polansky v. Executive Health Resources, 17 F.4th 376 (3d Cir. 2021)
11 Id.
12 Id.
13 Polansky v. Exec. Health Res., Inc., 422 F. Supp. 3d 916, 923-930 (E.D. Pa. 2019)
14 The government did not formally intervene as a party. However, the court decided that there was no cause for remand on the basis of the record. The court reasoned, “we construe the Government’s motion to dismiss as including a motion to intervene because intervention was in substance what the government sought and in form what the False Claims Act requires.” Polansky v. Executive Health Resources, 17 F.4th 376 (3d Cir. 2021) (internal citations omitted).
15 Brief of Petitioner at 4, Polansky v. Executive Health Res., Inc. (Aug. 26, 2022) (No. 21-1052) (internal citations omitted).
16 Brief of Respondent Executive Health Resources, Inc. at 16, Polansky v. Executive Health Res., Inc. (Oct. 17, 2022) (No. 21-1052).
17 Brief of Respondent United States, Polansky v. Executive Health Res., Inc. (Oct. 17, 2022) (No. 21-1052).
18 Transcript of Oral Argument, US ex rel Polansky vs. Executive Health Resources (21-1052).
19 Id.
20 Department of Justice, Factors for Evaluating Dismissal Pursuant to 31 U.S.C. 3730(c)(2)(A) (10 January 2018)
21 Id. at 2.
