SCOTUS to Determine Key Aspects of Government Dismissal Authority in FCA Cases

America Supreme Courtroom not too long ago agreed to hear a case deciphering the False Claims Act (“FCA”) which will have an effect on the federal government’s involvement in pending and future issues. To resolve a circuit break up, the Courtroom will look at whether or not the federal government has the authority to dismiss an FCA go well with after initially declining to intervene in the qui tam motion and, in that case, what normal applies to the dismissal.

The pending Supreme Courtroom case, United States ex rel. Polansky v. Govt Well being Assets, comes at a time when the federal government is exercising its dismissal authority with elevated frequency. In January 2018, Michael Granston, the previous director of the U.S. Division of Justice’s (“DOJ”) Industrial Litigation Department, issued a memo instructing DOJ attorneys to think about extra critically and totally whether or not to search affirmative dismissals of probably meritless FCA instances (the “Granston Memo”). For the reason that issuance of the Granston Memo—which identifies seven non-exhaustive issues that have a tendency to assist dismissal—the DOJ has dismissed at the very least 50 meritless qui tam actions pursuant to 31 U.S.C. § 3730(c)(2)(A). Prior to the memo, DOJ exercised its dismissal authority simply 45 occasions in roughly 30 years.

Within the underlying FCA case earlier than the Supreme Courtroom, the relator alleged {that a} well being care billing certification firm enabled hospitals to overbill federal well being care applications by certifying inpatient look after providers that ought to have been licensed as less-expensive outpatient providers. The relator filed go well with in 2012, and the federal government declined to intervene two years later. However, the federal government didn’t search to dismiss the case till 2019, contending that the FCA vested the federal government with “complete discretion” to dismiss an FCA lawsuit at any level in the litigation beneath 31 U.S.C. § 3730(c)(2). 

The relator disagreed with the district courtroom and Third Circuit’s determination to grant the federal government’s movement to dismiss, arguing the federal government lacked authority to dismiss the case as a result of it didn’t intervene in the case on the outset and shouldn’t have been granted dismissal on the deserves. The Supreme Courtroom will overview the Third Circuit’s determination and choose a uniform normal of overview concerning the federal government’s makes an attempt to dismiss qui tam actions beneath 31 U.S.C. § 3730(c)(2). To take action, the Courtroom should resolve the present circuit break up.

Ninth & Tenth Circuit: Burden Shifting Rationality Normal

The Ninth and Tenth Circuits adopted a two-step burden shifting “rationality normal.”1 First, the federal government should determine a legitimate authorities goal and a rational relation between dismissal and accomplishment of that goal. Second, if the federal government satisfies that displaying, the burden switches to the relator to exhibit that dismissal is fraudulent, arbitrary and capricious, or unlawful. The Ninth Circuit concludes that the federal government’s dismissal authority will not be restricted by whether or not the federal government intervened firstly of the matter. And, the Tenth Circuit has expressly held that the FCA doesn’t require authorities intervention earlier than dismissal.

D.C. Circuit: Unfettered Proper

The D.C. Circuit adopted a opposite second normal that affords the federal government an “unfettered right to dismiss” a qui tam motion.2 The courtroom concluded that the FCA doesn’t require the federal government to intervene to search dismissal.

Seventh & Third Circuit Normal: Government Intervention & Rule 41

The Seventh Circuit rejected these two approaches and created a 3rd normal whereby the federal government should intervene (which requires a displaying of good trigger if the federal government beforehand declined intervention) earlier than searching for to dismiss, and the dismissal needs to be evaluated beneath Federal Rule of Civil Process 41’s requirements for voluntary dismissal.3 The Third Circuit in Polansky agreed with the Seventh Circuit’s approaches.

First Circuit: Causes for In search of Dismissal

The First Circuit not too long ago adopted a fourth normal, concluding that (i) though the federal government doesn’t bear the burden of justifying its movement to the courtroom, the federal government should present its causes for searching for dismissal in order that the relator can “attempt to convince the government to withdraw its motion at the hearing”; and (ii) if the federal government doesn’t agree to withdraw its movement, the district courtroom ought to grant it except the relator can present that, in searching for dismissal, the federal government is “transgressing constitutional limitations or perpetrating a fraud on the court.”4

Key Takeaways for Healthcare Suppliers

  • Whereas america doesn’t voluntarily dismiss a major quantity of FCA instances yearly, the FCA gives an avenue for doing so. In recent times, DOJ has signaled rising give attention to dismissing meritless FCA instances that don’t additional the statute’s purpose of redressing fraud. Whether or not the Supreme Courtroom imposes definitive requirements on the timing or causes for dismissal could have an effect on DOJ’s capacity to dismiss instances in the long run.

  • Monitoring the result of the forthcoming Polansky case in the Supreme Courtroom is vital for any well being care supplier or provider beneath a pending FCA investigation or litigating an FCA case. The Courtroom’s opinion could have an effect on avenues accessible for defendants searching for to dismiss probably meritless FCA instances past initiating resource-intensive litigation.  


1 E.g.United States ex rel. Sequoia Orange Co. v. Baird-Neece Packing Corp.,151 F.3d 1139 (ninth Cir. 1998); United States v. United States ex rel. Thrower,968 F.3d 996,1001 (ninth Cir. 2020) (reaffirming the circuit’s “two-step test”); Ridenour v. Kaiser-Hill Co., 397 F.3d 925 (tenth Cir. 2005).

Swift v. United States, 318 F.3d 250, 252 (D.C. Cir. 2003).

3 United States ex rel. CIMZNHCA, LLC v. UCB, Inc.,970 F.3d 835, 839 (seventh Cir. 2020).

4 United States ex rel Borzilleri v. Bayer Healthcare Pharms., Inc.,No. 20-1066, 2022 WL 190264, at *1 (1st Cir. Jan. 21, 2022).

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