Jesse Polansky v. Executive Health Resources Inc

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________

No. 19-3810
__________

JESSE POLANSKY, M.D., M.P.H.;
THE STATE OF CALIFORNIA, THE STATE OF COLO-
RADO, THE STATE OF CONNECTICUT, THE STATE OF
DELAWARE, THE DISTRICT OF COLUMBIA, THE
STATE OF FLORIDA,THE STATE OF GEORGIA, THE
STATE OF HAWAII, THE STATE OF ILLINOIS, THE
STATE OF INDIANA, THE STATE OF IOWA, THE
STATE OF LOUISIANA,THE STATE OF MARYLAND,
THE COMMONWEALTH OF MASSACHUSETTS, THE
STATE OF MICHIGAN, THE STATE OF MINNESOTA,
THE STATE OF MONTANA, THE STATE OF NE-
VADA,THE STATE OF NEW JERSEY, THE STATE OF
NEW MEXICO, THE STATE OF NEW YORK, THE
STATE OF NORTH CAROLINA, THE STATE OF OKLA-
HOMA, THE STATE OF RHODE ISLAND, THE STATE
OF TENNESSEE,THE STATE OF TEXAS, THE COM-
MONWEALTH OF VIRGINIA, THE STATE OF WASH-
INGTON, and THE STATE OF WISCONSIN

v.

EXECUTIVE HEALTH RESOURCES INC;
UNITEDHEALTH GROUP INC;
UNITED HEALTHCARE SERVICES INC; OPTUM INC;
OPTUMINSIGHT INC;
OPTUMINSIGHT HOLDINGS LLC;
COMMUNITY HOSPITAL OF THE
MONTEREY PENINSULA;
YALE NEW HAVEN HOSPITAL
 UNITED STATES OF AMERICA

Jesse Polansky, M.D., M.P.H.,
Appellant.
__________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-12-cv-04239)
Honorable Michael M. Baylson, U.S. District Judge
__________

Argued November 18, 2020

Before: JORDAN, KRAUSE, and RESTREPO, Circuit
Judges

(Filed: October 28, 2021)

Nicholas C. Carullo
Stephen L. Shackelford, Jr.
Susman Godfrey
1301 Avenue of the Americas – 32nd Fl.
New York, NY 10019

Daniel L. Geyser [ARGUED]
Haynes & Boone
2323 Victory Avenue – Ste. 700
Dallas, TX 75219

William T. Jacks
Fish & Richardson
111 Congress Avenue – Ste. 810
Austin, TX 78701
Counsel for Appellant

Tejinder Singh
Goldstein & Russell
7475 Wisconsin Avenue – Ste. 850

2
Bethesda, MD 20814
Counsel for Amicus Appellant
Taxpayers Against Fraud Education Fund

Ned I. Miltenberg
National Legal Scholars Law Firm
5410 Mohican Road – Ste. 200
Bethesda, MD 20816
Counsel for Amicus Appellants Erwin Chemerinsky,
National Whistleblowers Center, and
Project on Government Oversight

Ethan M. Posner [ARGUED]
Christopher M. Denig
Matthew F. Dunn
Michael M. Maya
Krysten R. Moller
Covington & Burling
850 10th Street, NW
One City Center
Washington, DC 20001

Abigail A. Hazlett
Tracy Rhodes
Robin P. Sumner
Troutman Pepper Hamilton Sanders
3000 Two Logan Square – Ste. 1250
18th and Arch Streets
Philadelphia, PA 19103
Counsel for Appellee Executive Health Resources Inc.

Jeffrey B. Clark [ARGUED]
United States Department of Justice
Environment & Natural Resources Division
950 Pennsylvania Avenue, NW
Washington, DC 20530

Stephanie R. Marcus
United States Department of Justice

3
Civil Division
950 Pennsylvania Avenue, NW – Rm. 7642
Washington, DC 20530

Charles W. Scarborough
United States Department of Justice
Appellate Section
950 Pennsylvania Avenue, NW – Rm. 7244
Washington, DC 20530
Counsel for Appellee United States of America

Jeffrey S. Bucholtz
Jeremy M. Bylund
King & Spalding
1700 Pennsylvania Avenue, NW – Ste. 200
Washington, DC 20006
Counsel for Amicus Appellee
Chamber of Commerce of the United States of America

__________

OPINION OF THE COURT
__________

KRAUSE, Circuit Judge.

The False Claims Act (FCA), 31 U.S.C. § 3729, et seq.,
empowers not just the federal government, but also private in-
dividuals, to bring claims for fraud on the United States and to
do so in the Government’s name in exchange for a share of the
proceeds. These individuals, known as relators, are generally
on the same side as the Government, which has the option early
on to either intervene or allow the relator to move forward with
the action on her own. But what authority does the Govern-
ment have when it declined to intervene at the outset and sub-
sequently opposes the relator’s suit?

To answer, we must resolve two key questions that have
divided our sister circuits: (1) whether the Government in that

4
situation can move for dismissal without first intervening, and
(2) if the Government properly moves for dismissal, what, if
any, standard must it meet for its motion to be granted? For
the reasons that follow, we conclude that the Government is
required to intervene before moving to dismiss and that its mo-
tion must meet the standard of Federal Rule of Civil Procedure
41(a). Because we also conclude that the District Court here
acted within its discretion in granting such a motion by the
Government, we will affirm the Court’s order of dismissal.

I. BACKGROUND

A. Factual Background

The False Claims Act has its roots in the Civil War,
when “a series of sensational congressional investigations” un-
covered widespread fraud by wartime contractors that had
bilked the federal government by charging for “nonexistent or
worthless goods.” United States v. McNinch, 356 U.S. 595,
599 (1958). In response, Congress not only prohibited the
making of false claims to the Government, 31 U.S.C.
§ 3729(a)(1), and empowered the United States to seek civil
remedies, id. § 3730(a); it also legislated a private enforcement
mechanism, not unlike the bounty hunting common in the
rough-and-tumble world of the mid-nineteenth century. That
is, the statute permits private individuals, acting in the name of
the Government, to assert FCA claims “for the person and for
the United States Government.” Id. § 3730(b)(1). These rela-
tor-initiated lawsuits, known as qui tam actions, effectively
deputize citizens to act as private attorneys general, compen-
sated with a share of the money recovered.1 See id. § 3730(d).

1
Qui tam is short for “qui tam pro domino rege quam
pro se imposo sequitur,” which means, roughly, “who brings
the action as well for the king as for himself.” United States
ex rel. Kelly v. Boeing Co., 9 F.3d 743, 746 n.3 (9th Cir. 1993).
A relator, acting in this capacity, can receive up to 30 percent
of the funds recovered. 31 U.S.C. § 3730(d)(1)-(2).

5
 This case involves such a qui tam action. Relator-Ap-
pellant Dr. Jesse Polansky was an official at the Centers for
Medicare and Medicaid Services (CMS) before consulting for
Defendant-Appellee EHR, a “physician advisor” company that
provides review and billing certification services to hospitals
and physicians that bill Medicare.2 While employed as a con-
sultant, Polansky became concerned that EHR was systemati-
cally enabling its client hospitals to over-admit patients by cer-
tifying inpatient services that should have been provided on an
outpatient basis. As alleged in the complaint he eventually
filed in the District Court, EHR was causing hospitals to bill
the Government for inpatient stays that were not “reasonable
and necessary” for diagnosis or treatment—a statutory require-
ment for reimbursement under the Government’s Medicare
program, 42 U.S.C. § 1395y(a)(1)(A), as explicated by CMS
initially in guidance, and as of 2013, in a formal regulation, see
42 C.F.R. § 412.3(d)(1). From at least 2006 until the filing of
his amended complaint in 2019, he alleged, EHR’s certifica-
tions were false and caused the submission of false claims to
the Government.

B. Procedural History

In 2012, on the basis of those allegations, Polansky filed
this FCA action. His complaint remained in camera and under
seal for the next two years while the Government conducted its
own investigation and ultimately determined it would not par-
ticipate in the case. Under the FCA, “[i]f the Government
elects not to proceed with the action, the person who initiated
the action shall have the right to conduct the action.” 31 U.S.C.
§ 3730(c)(3). So at that point, the complaint was unsealed and
Polansky, “for [himself] and for the United States Govern-
ment,” continued as plaintiff. Id. § 3730(b)(1).

2
Healthcare providers retain EHR to perform a second
level of review of a doctor’s initial inpatient/outpatient assess-
ment. Specifically, EHR reviews determinations that patients
do not qualify for inpatient status under the relevant criteria.

6
 Over the next several years, the parties and the District
Court invested considerable time and resources in the case.
Once EHR’s motion to dismiss was denied,3 the District Court
divided the case into two segments for case-management pur-
poses: “Phase I” claims, covering EHR’s certifications from
2009 to October 1, 2013, and “Phase II” claims, covering its
certifications after October 1, 2013, the date that CMS’s formal
regulation went into effect. Because the complaint implicated
hundreds of thousands of allegedly false claims, the District
Court also decided to select a small number for a bellwether
trial where “the jury would answer interrogatories,” and the
Court would then “enter judgment on all other claims encom-
passed by the jury verdict.” Polansky v. Exec. Health Res.,
Inc., 422 F. Supp. 3d 916, 919 (E.D. Pa. 2019). In anticipation
of that trial, the Court designed a procedure for selecting the
bellwether claims and appointed a special master, and the par-
ties commenced discovery, focused on Phase I claims.

In February 2019, however, the case took an unexpected
turn: The Government notified the parties that it intended to
dismiss the entire action pursuant to 31 U.S.C. § 3730(c). Un-
der paragraph (c)(1) of that section, a relator’s ability to con-
tinue a suit he initiated is limited in various ways “[i]f the Gov-
ernment proceeds with the action.” Those limits are spelled in
out in paragraph (c)(2), including that “[t]he Government may
dismiss the action notwithstanding the objections of the [rela-
tor]” so long as the relator receives notice and an opportunity
to be heard on the Government’s motion. 31 U.S.C.
§ 3730(c)(2)(A). Here, although the Government had origi-
nally opted not to proceed with the action and had not formally

3
Polansky originally brought state claims against EHR,
its corporate parents, and certain of its client hospitals under a
number of states’ FCA-equivalents. Eventually, however, he
voluntarily withdrew a number of those claims, and the District
Court dismissed the remainder against all defendants except
EHR. The litigation that ensued therefore focused only on the
FCA claims against EHR.

7
intervened, it pointed to § 3730(c)(2)(A) as the source of its
authority to dismiss the case over Polansky’s objection.

The Court stayed the proceedings while the parties ne-
gotiated with the Government. Initially, the Government ac-
ceded to Polansky’s request not to dismiss his case in exchange
for his filing of an amended complaint that substantially nar-
rowed the scope of his Phase I claims. But the Government
also reserved the right to reconsider, and a few months later, in
August 2019, it invoked that right, and filed a motion to dis-
miss pursuant to § 3730(c)(2)(A). The District Court accepted
that filing and, following briefing and argument, granted the
Government’s motion.4 It recognized the circuit split on the
issue of what standard applies to a § 3730(c)(2)(A) dismissal,
but because it concluded that the Government had made an ad-
equate showing under any of the prevailing standards, it de-
clined to weigh in. That task now falls to us.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction pursuant to 31
U.S.C. § 3732(a) and 28 U.S.C. § 1331, and we have jurisdic-
tion pursuant to 28 U.S.C. § 1291. We exercise plenary review

4
At the conclusion of the hearing on the motion to dis-
miss, the District Court sua sponte raised the question of sum-
mary judgment pursuant to Federal Rule of Civil Procedure
56(f). In granting dismissal, the Court also granted partial
summary judgment “independent of dismissal based on the
Government’s motion” against Polansky on his Phase I claims.
JA 41. Because we will affirm the order of dismissal, we have
no occasion to reach that ruling. And because the District
Court first granted the motion to dismiss, Polansky’s claims
were fully disposed of, and the Court did not need to reach
summary judgment. We will therefore vacate the District
Court’s opinion and order insofar as it addressed summary
judgment.

8
over a district court’s interpretation of a federal statute. See
United States v. Hodge, 948 F.3d 160, 162 (3d Cir. 2020) (ci-
tation omitted).

III. DISCUSSION

Polansky challenges the District Court’s dismissal on
the ground that the Government lacked statutory authority to
move to dismiss in the first place. He also contends that, if the
Government did have that authority, its motion should have
been denied on the merits under the applicable standard.

We address these arguments in three parts. We con-
sider, first, whether the FCA requires the Government to inter-
vene in order to seek dismissal pursuant to § 3730(c)(2)(A)—
either at the first opportunity, 31 U.S.C. §3730(c)(1), or “at a
later date upon a showing of good cause,” id. § 3730(c)(3). We
next address the standard governing such motions. And fi-
nally, we discuss the consequences of these holdings for the
District Court’s order of dismissal in this case.5

5
Amici Dean Erwin Chemerinsky, the National Whis-
tleblower Center, and the Project on Government Oversight
(Chemerinsky Amici) argue that, even if the Government’s dis-
missal was proper as a statutory matter, it amounted to an un-
compensated taking of Polansky’s property interest in the ac-
tion in violation of the Takings Clause. See U.S. Const.,
amend. V, cl. 5. The thrust of this argument is that relators
create a property interest by investing resources in their qui tam
actions, and that the retroactive application to them of DOJ’s
2018 guidance—reversing the Government’s decades-long
hands-off policy toward relator-prosecuted suits—would ef-
fect an unconstitutional taking. While the idea that a relator
can obtain a property interest in a qui tam action is open to
doubt, we need not address the argument because the Chemer-
insky Amici are the only ones advancing it, and we generally
avoid considering arguments raised solely in amicus briefs
“where[, as here,] the parties are competently represented by
counsel.” New Jersey Retail Merchs. Ass’n v. Sidamon-
9
 A. The Government’s Authority to Seek Dismis-
sal under the FCA

We begin with the first of the questions in this area that
have divided the Courts of Appeals: whether, and in what cir-
cumstances, the Government retains statutory authority to
move to dismiss an FCA action, pursuant to 31 U.S.C.
§ 3730(c)(2)(A), if it opted not to proceed at the outset6 and
allowed the relator to move forward “for the [relator] and for
the United States Government.”7 31 U.S.C. § 3730(b)(1). The

Eristoff, 669 F.3d 374, 382 n.2 (3d Cir. 2012) (quoting Univer-
sal City Studios, Inc. v. Corley, 273 F.3d 429, 445 (2d Cir.
2001)).
6
An FCA action initiated by a relator is initially filed in
camera and under seal and served upon the Government. 31
U.S.C. § 3730(b)(2). The Government then has 60 days, ex-
tendable “for good cause shown,” to investigate the claims for
itself and to decide whether to “intervene and proceed with ac-
tion,” id. § 3730(b)(2), (3). If it declines the case, the relator
has the option of continuing the case alone, and if the relator
does, the complaint is unsealed, is served on the defendant, and
the case proceeds as an otherwise-typical civil action. Id.
§ 3730(b)(4)(B); United States ex rel. Int’l Bhd. of Elec. Work-
ers Local Union No. 98 v. Farfield Co., 5 F.4th 315, 336 (3d
Cir. 2021).
7
As a threshold matter, Appellees object that this argu-
ment was not raised before the District Court, and “arguments
raised for the first time on appeal are not properly preserved
for appellate review.” Simko v. U.S. Steel Corp., 992 F.3d 198,
205 (3d Cir. 2021). But where, as here, the failure to preserve
an argument was in the nature of an “inadvertent failure to raise
an argument,” or forfeiture, “we will reach a pure question of
law even if not raised below where refusal to reach the issue
would result in a miscarriage of justice or where the issue’s
resolution is of public importance.” Barna v. Bd. of Sch. Dirs.
of Panther Valley Sch. Dist., 877 F.3d 136, 147 (3d Cir. 2017)
(internal quotation marks omitted). That is the case here.
10
answer turns on the interrelationship among the subsections of
§ 3730(c). So we begin with the text and structure of the stat-
ute, and then consider the relevant canons of statutory con-
struction.

Section 3730(c) sets forth the rights and relationship of
the Government and relator through the life of an FCA action.
Because our analysis turns on the language and structure of the
statute, we excerpt its relevant provisions below:

(1) If the Government proceeds with the action . . . [the
relator] 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 not-
withstanding the objections of the [relator] if the [rela-
tor] has . . . [notice and] an opportunity for a hearing[.]

(B) The Government may settle the action with the de-
fendant notwithstanding the objections of the [relator] if
the court determines . . . the proposed settlement is fair,
adequate, and reasonable . . . .

(C) Upon a showing by the Government that [the rela-
tor’s] unrestricted participation . . . would interfere with
or unduly delay the Government’s prosecution of the
case . . . the court may, in its discretion, impose limita-
tions on the [relator’s] participation . . . .

Whether the FCA permits the Government to dismiss a rela-
tor’s action that it previously declined is a pure question of stat-
utory interpretation; the district courts would benefit from
guidance on a question that has divided the Courts of Appeals,
see infra n.8; and resolving this question is logically antecedent
to the question before us: the standard that applies when the
Government seeks dismissal. We therefore exercise our dis-
cretion to excuse Polansky’s forfeiture.
11
 (D) Upon a showing by the defendant that [the rela-
tor’s] unrestricted participation . . . would cause the de-
fendant undue burden or unnecessary expense, the court
may limit the [relator’s] participation . . . .

(3) If the Government elects not to proceed with the
action, the [relator] shall have the right to conduct the
action. . . . 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.

(4) Whether or not the Government proceeds with the
action, [it may seek a stay of the relator’s discovery that]
would interfere with [a Government investigation] . . . .

31 U.S.C. § 3730(c).

The scope of the Government’s dismissal authority in
this context has engendered significant debate. The parties’
positions track a split among our sister circuits.8 The

8
Compare United States ex rel. CIMZNHCA, LLC v.
UCB, Inc., 970 F.3d 835, 844 (7th Cir. 2020) (interpreting the
FCA to require intervention upon a showing of good cause be-
fore the Government can move to dismiss a relator’s case under
§ 3730(c)(2)(A)), and United States ex rel. Poteet v. Med-
tronic, Inc., 552 F.3d 503, 519-20 (6th Cir. 2009) (concluding
§ 3730(c)(2)(A) “applies only when the government has de-
cided to ‘proceed[] with the action’” (quoting § 3730(c)(1))),
abrogated on other grounds by United States ex rel. Rahimi v.
Rite Aid Corp., 3 F.4th 813 (6th Cir. 2021), with Ridenour v.
Kaiser-Hill Co., 397 F.3d 925, 934-35 (10th Cir. 2005) (hold-
ing the Government “is not required to intervene . . . before
moving to dismiss the action under § 3730(c)(2)(A)”), Swift v.
United States, 318 F.3d 250, 252 (D.C. Cir. 2003) (reaching
the same conclusion), and United States ex rel. Sequoia Or-
ange Co. v. Baird-Neece Packing Corp., 151 F.3d 1139, 1145
(9th Cir. 1998) (suggesting the same understanding).

12
Government and EHR (collectively, “Appellees”) ask us to fol-
low the D.C., Ninth, and Tenth Circuits in reading this provi-
sion as a standalone grant of dismissal authority that empowers
the Government to move for dismissal of the relator’s action at
any point in the litigation and regardless of whether it has in-
tervened.9 Polansky, on the other hand, presses the view of the
Sixth and Seventh Circuits that Congress authorized the Gov-
ernment to move for dismissal under § 3730(c)(2)(A) only
when it “proceeds with the action.” 31 U.S.C. § 3730(c)(1).
Polansky would also have us go further, to hold that the Gov-
ernment has that authority only if it intervenes at the outset and,
having declined to do so, it is powerless to seek dismissal even
if it subsequently intervenes.

“[B]ear[ing] in mind the fundamental canon of statutory
construction that the words of a statute must be read in their
context and with a view to their place in the overall statutory
scheme,” Mejia-Castanon v. Att’y Gen., 931 F.3d 224, 233-34

9
To the extent Appellees postulate that we resolved this
question in Chang v. Children’s Advocacy Center of Delaware,
938 F.3d 384 (3d Cir. 2019), they are mistaken. The question
there was whether § 3730(c)(2)(A)’s requirement for “an op-
portunity for a hearing on the motion” meant an in-person hear-
ing in every case, which we held it did not, id. at 388. After
explaining by way of background that the Government could
intervene in a relator’s case at the outset or allow the relator to
proceed alone, id. at 386, we observed that “even under the lat-
ter scenario, the government may still ‘dismiss the action’”
pursuant to § 3730(c)(2)(A). Id. (quoting 31 U.S.C.
§ 3730(c)(2)(A)). But that passing statement cannot bear the
weight Appellees would place on it. We offered no opinion
one way or the other as to whether the Government was re-
quired to intervene before seeking dismissal in that “latter sce-
nario,” nor were we called upon to do so. “Questions which
merely lurk in the record, neither brought to the attention of the
court nor ruled upon, are not to be considered as having been
so decided as to constitute precedents.” Grant v. Shalala, 989
F.2d 1332, 1341 (3d Cir. 1993) (quoting Webster v. Fall, 266
U.S. 507, 511 (1925)).
13
(3d Cir. 2019) (quoting King v. Burwell, 576 U.S. 473, 492
(2015)), we conclude Congress intended the reading adopted
by the Sixth and Seventh Circuits, i.e., under § 3730(c), the
Government must intervene before it can move to dismiss, but
it can seek leave to intervene at any point in the litigation upon
a showing of good cause. Considered in context, § 3730(c)(2)
is not, as Appellees would have it, a standalone provision that
grants the Government unconditional authority to seek dismis-
sal as a non-party. That authority is granted as a “limitation[]”
of the relator’s rights in the first paragraph “if”—and only if—
“the Government proceeds with the action.” 31 U.S.C.
§ 3730(c)(1). “If the Government elects not to proceed with
the action,” on the other hand, then the relator “shall have the
right to conduct the action,” unencumbered by the “limita-
tions” in subparagraph (c)(2)(A) through (c)(2)(D) on that right
that paragraph (c)(2) would otherwise impose. Id.
§ 3730(c)(3).

To this, Appellees object that those limitations are not
nestled under paragraph (c)(1), as one might expect if they
were contingent on “the Government proceed[ing] with the ac-
tion.” Id. § 3730(c)(1). Rather, they are set forth in paragraph
(c)(2), a separately numbered paragraph, on par with and not
structurally subordinate to paragraph (c)(1).10 But Appellees’
argument is belied by the context of the “surrounding words
and provisions” of statutory language. G.L. v. Ligonier Valley
Sch. Dist. Auth., 802 F.3d 601, 617 (3d Cir. 2015) (citation
omitted). Here, the “surrounding . . . provisions” are the other

10
The D.C. Circuit relied on this reasoning to conclude
that the Government can seek dismissal regardless of whether
it proceeds with the action. Swift, 381 F.3d at 251-52 (empha-
sizing that § 3730(c)(2) is neither “a subsection of
§ 3730(c)(1)” nor does it “contain language stating that it is
applicable only in the context of § 3730(c)(1)”). But the ob-
servation that § 3730(c)(2) is not a subsection of § 3730(c)(1),
while “true as a typographic matter,” misses “how the five par-
agraphs of subsection (c) relate to one another in text and
logic.” CIMZNHCA, 970 F.3d at 845.

14
subparagraphs in § 3730(c)(2) that only make sense if the Gov-
ernment is a party in the case. Subparagraph (c)(2)(C), for ex-
ample, enables the Government to limit a relator’s ability to
call and examine witnesses where it “would interfere with or
unduly delay the Government’s prosecution of the case,” 31
U.S.C. § 3730(c)(2)(C), a provision that by its terms identifies
the Government as a party. Subparagraph (D) grants FCA de-
fendants a similar power to limit the relator’s participation in
the litigation “[u]pon a showing . . . that [such] participa-
tion . . . would be for purposes of harassment or would cause
the defendant undue burden or unnecessary expense,” id.
§ 3730(c)(2)(D). But this provision, too, assumes the Govern-
ment is prosecuting the case because “[o]bviously a defendant
cannot ‘restrict the participation’ of its sole adversary in a law-
suit.” United States ex rel. CIMZNHCA, LLC v. UCB, Inc.,
970 F.3d 835, 845 (7th Cir. 2020).

That § 3730(c)(2)(A) is conditioned on the Government
proceeding under paragraph (c)(1) is also apparent from an-
other canon of statutory construction: We must “[a]ssum[e]
that every word in a statute has meaning” and “avoid interpret-
ing part of a statute so as to render another part superfluous.”
Allen ex rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364, 367
(3d Cir. 2011). Yet, if we were we to conclude, as the D.C.,
Ninth, and Tenth Circuits do, that the Government can move
to dismiss a relator’s case whether or not it “proceeds with the
action,” 31 U.S.C § 3730(c)(1), it would render at least two
provisions superfluous: The qualifier in paragraph (c)(1) that a
relator’s rights are “subject to the limitations set forth in para-
graph (2)” when the Government “proceeds with the action,”
id., would be unnecessary because relators would always be
subject to those limitations, regardless of whether the Govern-
ment “proceeds,” id.; and paragraph (c)(4)’s description of ac-
tions the Government may take “[w]hether or not [it] proceeds
with the action” would be surplusage if every provision of par-
agraph (2) applied “whether or not” the Government inter-
vened. Id. § 3730(c)(4).

15
 Though we reject Appellee’s interpretation as failing to
read the paragraphs of § 3730(c) as “a symmetrical and coher-
ent regulatory scheme . . . [and] an harmonious whole,” Si Min
Cen v. Att’y Gen., 825 F.3d 177, 192 (3d Cir. 2016) (quoting
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
133 (2000) (internal quotations omitted)), neither can we ac-
cept Polansky’s reading that the Government may seek dismis-
sal only if it intervened at the first opportunity. Polansky
grounds that reading in the Supreme Court’s description of the
relator’s “right to conduct the action” if “the Government
elects not to proceed with it,” id. § 3730(c)(3), as “exclusive,”
Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529
U.S. 765, 769 (2000)), combined with paragraph (c)(3)’s qual-
ification that, if the Government seeks leave to intervene once
the suit is already underway, it must do so “without limiting
the status and rights of the [relator].” 31 U.S.C. § 3730(c)(3).
Because involuntary dismissal would “limit[]” the relator’s
“exclusive” right to conduct the action, Polansky contends, the
Government intervenes pursuant to § 3730(c)(3) without the
authority it originally had to seek dismissal under
§ 3730(c)(2)(A).

Both of Polansky’s premises are flawed. First, nothing
in Stevens compels such a reading. The Court used “exclusive”
to mean that only the relator, as opposed to any other private
individual, could proceed with an FCA action after the Gov-
ernment declines it, which the statute explicitly states in an-
other section.11 See 31 U.S.C. § 3730(b)(5); Stevens, 529 U.S.

11
The Stevens Court held, among other things, that qui
tam relators have Article III standing because the FCA partially
assigns the United States’s claims to them. 529 U.S. at 773-
74. The word “exclusive” appears only in the Supreme Court’s
background explanation of the FCA’s framework which, in
context, reads: “[i]f the Government declines to intervene
within the 60–day period, the relator has the exclusive right to
conduct the action, and the Government may subsequently in-
tervene only on a showing of ‘good cause.’” Id. at 769 (em-
phasis added) (citing 31 U.S.C. § 3730(b)(4), (c)(3)).

16
at 769. It nowhere suggests that the relator’s right to control
the action is exclusive vis-a-vis the Government. Second, had
Congress intended so draconian a consequence as to strip the
Government of all ability to terminate a case brought in its
name, it would not have obscured it in a clause preserving the
“status and rights of the [relator].” 31 U.S.C. § 3730(c)(3).
Congress “does not alter the fundamental details of a regula-
tory scheme in vague terms or ancillary provisions—it does
not, one might say, hide elephants in mouseholes.” Whitman
v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001).

Indeed, if anything the language of paragraph (c)(3) cuts
the other way, for the statutory rights that the relator retains
upon the Government’s intervention can be no more or less
than those originally vested by the FCA: “the right to continue
as a party to the action, subject to the limitations set forth in
paragraph (2),” 31 U.S.C. § 3730(c)(1), i.e., subject to the Gov-
ernment’s ability to seek dismissal pursuant to paragraph
(c)(2)(A). In other words, we read § 3730(c) as a whole, as do
the Sixth and Seventh Circuits, to mean that: “[I]f the Govern-
ment elects not to proceed,” the relator conducts the action; the
Government may “intervene at a later date upon a showing of
good cause;” and the relator then retains the same status and
rights as if the Government originally intervened. Id.
§ 3730(c)(3). Those rights include the right to continue as a
party, but “subject to the limitations set forth in paragraph (2).”
Id. § 3730(c)(1). And under paragraph (c)(2) the Government
may seek involuntary dismissal against the relator, but the re-
lator must be provided notice and an opportunity to be heard.
Id. § 3730(c)(2)(A).

In opposition to that reading, Appellees invoke one last
canon of construction: constitutional avoidance. They argue
that interpreting the statute to make intervention a prerequisite
to moving to dismiss would compromise the Government’s
ability to control litigation brought in its name and thereby
“place the FCA on constitutionally unsteady ground.” Ri-
denour v. Kaiser-Hill Co., 397 F.3d 925, 934 (10th Cir. 2005).
Specifically, they contend, it risks violating the separation of

17
powers embodied in the Take Care Clause, which entrusts the
Executive Branch with the duty to “take Care that the Laws be
faithfully executed.” U.S. Const., art. II, § 3; see Seila Law
LLC v. CFPB, 140 S. Ct. 2183, 2205 (2020) (recognizing that,
although there is no “separation of powers clause,” “[this]
foundational doctrine[] [is] instead evident from the Constitu-
tion’s vesting of certain powers in certain bodies,” among them
“Article II’s vesting of the ‘executive Power’ in the Presi-
dent”). As a result, they urge that we eschew any requirement
of intervention to avoid “grave doubts” to the statute’s consti-
tutionality. United States v. Palomar-Santiago, 141 S. Ct.
1615, 1622 (2021).

We recognize that the Tenth Circuit found this argu-
ment persuasive, see Ridenour, 397 F.3d at 934-35, but we do
not see genuine constitutional doubts to avoid. As the Seventh
Circuit also concluded, showing “good cause” is neither a bur-
densome nor unfamiliar obligation. See CIMZNHCA, 970 F.3d
at 848-49. It is a “uniquely flexible and capacious concept,”
meaning simply a “legally sufficient reason,” id. at 846 (quot-
ing Good Cause, s.v. Cause, Black’s Law Dictionary 101 (4th
pocket ed. 2011)), and it is a standard the Government rou-
tinely satisfies to extend its time to investigate the relator’s
case under § 3730(b)(3). See 31 U.S.C. § 3730(b)(3) (allowing
Government to extend the time it has to decide whether to pro-
ceed with the action upon “good cause shown”); see also CIM-
ZNHCA, 970 F.3d at 848 (observing that even in actual crimi-
nal cases, “the government must have ‘leave of court’ to dis-
miss the prosecution” once it is underway). And, of course, as
the Seventh Circuit also noted, “avoiding offense to the sepa-
ration of powers in a case that actually risks it would itself
weigh heavily in any ‘good cause’ determination,” id. at 847,
providing an adequate forum to vindicate the prerogatives of
the Executive Branch.12

12
We also note the long history of qui tam actions in
Anglo-American jurisprudence, which were a common feature
of the legal landscape at the time of the founding. See Stevens,
529 U.S. at 774-77 (recounting the history of qui tam actions
18
 In sum, while we respect the contrary view of some our
sister Circuits, we agree with the Seventh Circuit that the text
and structure of § 3730(c), as well as settled canons of statutory
interpretation, require the Government to intervene pursuant to
paragraph (c)(3), before it can exercise its authority to seek dis-
missal pursuant to paragraph (c)(2)(A). Once it has intervened
as a party, the Government is then “proceed[ing] with the ac-
tion” under paragraph (c)(1); the rights of the relator are
“limit[ed]” accordingly under paragraph (c)(2); and the Gov-
ernment can seek an involuntary dismissal of the relator’s ac-
tion.

B. The Applicable Standard

We next consider the standard applicable to the Govern-
ment’s motion. Is the Government automatically entitled to
dismissal, or does that decision lie in the District Court’s dis-
cretion? Or in practical terms, is the “opportunity for a hearing
on the motion” in § 3730(c)(2)(A) merely a forum for the rela-
tor to attempt to “convince the [G]overnment not to end the

in both England and at the time of the founding); Marvin v.
Trout, 199 U.S. 212, 225 (1905) (noting that qui tam statutes
were “in existence for hundreds of years in England, and in this
country ever since the foundation of our government”); Adams
v. Woods, 6 U.S. (2 Cranch) 336, 341 (1805) (Marshall, C.J.)
(“Almost every fine or forfeiture under a penal statute, may be
recovered by an action of debt [qui tam].”); 3 William Black-
stone, Commentaries *160 (relating that forfeitures created by
penal statutes “more usually . . . are given at large, to any com-
mon informer; or . . . to the people in general . . . . [I]f any one
hath begun a qui tam, or popular, action, no other person can
pursue it; and the verdict passed upon the defendant . . . is . . .
conclusive even to the king himself.”). These deep historical
roots suggest that, even if the “good cause” standard reduces
the Government’s degree of control over a relator’s suit, such
a lack of direct control was not considered an unconstitutional
flaw at the founding.

19
case,” as the Government argues, Gov’t Br. 28, or is it an ad-
versarial hearing to inform the District Court’s ruling on the
Government’s motion?

This issue, too, has divided the Courts of Appeals, see
Chang v. Children’s Advocacy Center of Delaware, 938 F.3d
384, 387 (3d Cir. 2019), which have taken three paths.13 While
the D.C. Circuit agrees with the Government that it has an “un-
fettered right” to dismiss, see Swift v. United States, 318 F.3d
250, 252 (D.C. Cir. 2003), and the Ninth and Tenth Circuits
hold it to a “rational relation” standard drawn from substantive
due process jurisprudence, see United States ex rel. Sequoia
Orange Co. v. Baird-Neece Packing Corp., 151 F.3d 1139,
1145-46 (9th Cir. 1998); Ridenour, 397 F.3d at 936, the Sev-
enth Circuit simply applies the Federal Rules of Civil Proce-
dure as it would to any party, see CIMZNHCA, 970 F.3d at 849-
50. Today we wade into the fray, again siding with the Seventh
Circuit.

Below, we discuss the standard we adopt, and then ex-
plain why we decline to follow the competing views offered by
our sister Circuits.

13
Amicus Taxpayers Against Fraud Education Fund
(TAFEF) suggests a fourth answer—in its view, the Govern-
ment “must show that dismissal is reasonable in light of all of
the circumstances.” TAFEF Br. 16. It argues that the legisla-
tive history behind Congress’s 1986 amendments strengthen-
ing the qui tam provisions demonstrates that Congress intended
courts to scrutinize Government motions for reasonableness.
In particular, it points to a draft provision that allowed the re-
lator to object to dismissal by the Government and to request a
hearing on a number of grounds, among them that “the settle-
ment or dismissal is unreasonable in light of existing evi-
dence.” Id. at 5 (quoting S. Rep. No. 99-345, at 26 (1986)).
But this version of the statute was not the one ultimately en-
acted, and we are bound to interpret the language that Congress
actually used.

20
 1. The Standard We Adopt

The standard applicable to the Government’s motion to
dismiss follows logically from the FCA’s request that the Gov-
ernment intervene before seeking dismissal. Having inter-
vened, the Government becomes a party, and like any party, it
is subject to the Federal Rules of Civil Procedure, including the
rule governing Voluntary Dismissal.

That is Rule 41(a), which establishes different standards
for a motion to dismiss depending on the procedural posture of
the case. If the motion is filed before the defendant files an
answer or summary judgment motion, “the plaintiff may dis-
miss an action without a court order” simply by filling a “notice
of dismissal.” Fed. R. Civ. P. 41(a)(1)(A). The effect of that
notice is “automatic and immediate,” such that “no order of the
district court is needed to end the action,” In re Bath & Kitchen
Fixtures Antitrust Litig., 535 F.3d 161, 165 (3d Cir. 2008). But
once the action has passed the “point of no return,” id. (quoting
Manze v. State Farm Ins. Co., 817 F.2d 1062, 1065 (3d Cir.
1987)), with the filing of the defendant’s responsive pleading,
then “an action may be dismissed at the plaintiff’s request only
by court order, on terms that the court considers proper.”14
Fed. R. Civ. P. 41(a)(2). We see no reason for these standards
to apply with less force in a qui tam action than they do in any
other civil action. As this Court has recently noted, “[i]t could
hardly be clearer” that Congress intended the False Claims Act
to establish “civil” proceedings, i.e., “lawsuits brought in ac-
cordance with the Federal Rules of Civil Procedure,” United

14
We note that, as a practical matter, the considerations
that inform the Government’s showing of “good cause” to in-
tervene pursuant to § 3730(c)(3) and those that convince the
District Court that dismissal is “proper” under Rule 41(a) may
well converge. But, as a legal matter, these are distinct inquir-
ies, so, while the Government may move to intervene and dis-
miss simultaneously, these motions must be resolved by the
District Court independently and in sequence.

21
States ex rel. Int’l Bhd. of Elec. Workers Local Union No. 98
v. Farfield Co., 5 F.4th 315, 336 (3d Cir. 2021).15

Of course, the FCA does add certain wrinkles. For ex-
ample, while Rule 41(a) “obviously does not authorize an in-
tervenor-plaintiff to effect involuntary dismissal of the original
plaintiff’s claims,” CIMZNHCA, 970 F.3d at 850, the FCA per-
mits the Government-as-intervenor to “dismiss the action not-
withstanding the objections of the person initiating the action,”
31 U.S.C. § 3730(c)(2)(A). And while a pre-answer notice of
dismissal under Rule 41(a)(1)(A) is self-effectuating,
“invit[ing] no response from the district court and permit[ting]
no interference by it,” Bath & Kitchen, 535 F.3d at 165, the
FCA statute, even at that stage, requires the relator be given
notice and an opportunity for a hearing before the case is dis-
missed, 31 U.S.C. § 3730(c)(2)(A). But these small modifica-
tions do not render Rule 41(a) inapplicable. To the contrary,
such modifications are expressly contemplated by the Rule it-
self, which functions “[s]ubject to . . . any applicable federal
statute.” Fed. R. Civ. P. 41(a)(1)(A).

In practice, then, when the Government moves to dis-
miss a relator’s case pursuant to § 3730(c)(2)(A), it must do so
within the framework of Rule 41(a). The relator must receive
notice and an opportunity for a hearing, 31 U.S.C.
§ 3730(c)(2)(A), and the Government must meet whatever
threshold the relevant prong of Rule 41(a) requires. If the de-
fendant has yet to answer or move for summary judgment, the
Government is entitled to dismissal, Fed. R. Civ.

15
That Congress intended the FCA to function hand in
glove with the Federal Rules of Civil Procedure is apparent in
the numerous cross-references to the Rules in the text of the
statute. See, e.g., 31 U.S.C. § 3730(b)(2) (requiring relator to
serve materials on the Government “pursuant to Rule
4(d)(4)”); id. § 3730(b)(3) (directing service upon the defend-
ant “pursuant to Rule 4”); id. § 3732(a) (instructing a summons
in actions brought under section 3730 to be issued and served
“as required by the Federal Rules of Civil Procedure”).

22
P. 41(a)(1)(A), albeit with an opportunity for the relator to be
heard,16 31 U.S.C. § 3730(c)(2)(A), subject only to the bedrock
constitutional bar on arbitrary Government action.17 See CIM-
ZNHCA, 970 F.3d at 850-52. And if the litigation is already
past that “point of no return,” Bath & Kitchen, 535 F.3d at 165,
then dismissal must be “only by court order, on terms the court
considers proper.” Fed. R. Civ. P. 41(a)(2).

16
The interplay of Rule 41(a)(1)(A) and
§ 3730(c)(2)(A) leads to the “seem[ingly] counterintuitive”
conclusion that a district court may hold a hearing on a pre-
answer Government motion to dismiss at which it has no sub-
stantive role. CIMZNHCA, 970 F.3d at 850. But as the Sev-
enth Circuit observed, Rule 41(a)’s procedures rest atop the
foundation of bedrock constitutional constraints on Govern-
ment action, such that even a pre-answer dismissal could not
violate the relator’s rights to due process or equal protection.
Id. at 851-52 (citing Sequoia, 151 F.3d at 1145; Oyler v. Boles,
368 U.S. 448, 456 (1962)). So in “exceptional cases [these
constitutional limits] could supply the grist for the hearing un-
der § 3730(c)(2)(A).” Id. at 852.

17
Polansky argues that the Government’s dismissal was
arbitrary and irrational because it did not “assess[] the potential
benefits” of proceeding with the case, namely, the “potential
billion-dollar recovery” it would receive if Polansky prevailed.
Polansky Br. 36 (emphasis in original). But, even assuming a
relator has a property interest in a qui tam action, see supra n.5,
this argument misunderstands the showing of arbitrariness that
due process requires. “[O]nly the most egregious official con-
duct can be said to be arbitrary in the constitutional sense.”
Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (inter-
nal quotation omitted). Thus, the constitutional question
would not be whether the Government adequately weighed the
costs and benefits of its actions, but whether there was “exec-
utive abuse of power” that “shocks the conscience.” Id. In any
event, Polanksy has not come close to meeting that exceed-
ingly high standard.

23
 As an important caveat, we note that, even in a typical
case between private parties, dismissal at this later stage
“should be allowed unless defendant will suffer some prejudice
other than the mere prospect of a second lawsuit,” Estate of
Ware v. Hosp. of the Univ. of Pa., 871 F.3d 273, 285 (3d Cir.
2017) (quoting In re Paoli R.R. Yard PCB Litig., 916 F.2d 829,
863 (3d Cir. 1990)), and that rule carries particular force, with
constitutional implications in an FCA case, where it is the Gov-
ernment seeking to dismiss a matter brought in its name.18 See
31 U.S.C. § 3730(c)(1) (requiring that, once the Government
has intervened in an FCA action, “it shall have the primary re-
sponsibility for prosecuting the action”); id. § 3730(c)(2)(A)
(allowing the Government to dismiss “notwithstanding the ob-
jections of the [relator]”); CIMZNHCA, 970 F.3d at 850

18
While the FCA authorizes the Government, once hav-
ing intervened, to dismiss the action, Rule 41(a)(2) vests a
“broad grant of discretion” in district courts to dismiss “‘on
terms that the court considers proper,’” Carroll v. E One Inc.,
893 F.3d 139, 146 (3d Cir. 2018) (quoting Fed. R. Civ.
P. 41(a)(2)), and we do not foreclose the court’s ability to ex-
ercise that discretion to mitigate against extraordinary preju-
dice in an exceptional case. Cf. Frank v. Crawley Petroleum
Corp., 992 F.3d 987, 998 (10th Cir. 2021) (observing, in a typ-
ical case, that a district court addressing a Rule 41(a)(2) dis-
missal must “consider the equities not only facing the defend-
ant, but also those facing the plaintiff” (internal quotation omit-
ted)); Estate of Ware v. Hosp. of the Univ. of Pa., 871 F.3d 273,
285 (3d Cir. 2017) (same). While the FCA imposes significant
restrictions on such terms, e.g., 31 U.S.C. § 3730(f) (disallow-
ing the recovery of fees and costs against the Government); cf.
Int’l Bhd. of Elec. Workers Local Union No. 98, 5 F.4th at 337
(noting that “the FCA does not authorize the award of pre-
judgment interest or consequential damages, which typically
accompany recovery for fraud” (citing Cook Cnty., Ill. v. U.S.
ex rel. Chandler, 538 U.S. 119, 131 (2003))), we do not rule
out the possibility that others remain available, e.g., Raab v.
City of Ocean City, N.J., 833 F.3d 286, 296 (3d Cir. 2016) (im-
posing court’s “retention of jurisdiction” over an agreement
between the parties).

24
(explaining that the standards set out in Rule 41(a) are limited
by “any applicable background constraints on executive con-
duct in general”); see also Seila Law, 140 S. Ct. at 2205 (noting
that “separation of powers” is a “foundational doctrine”).

2. The Alternative Approaches Among the
Courts of Appeals

While we respect and have carefully weighed the con-
sidered views of other courts, we are satisfied that we have
chosen the best path forward.

The D.C. Circuit has interpreted § 3730(c)(2)(A) to
“give the government an unfettered right to dismiss an action.”
Swift, 318 F.3d at 252. It reached that conclusion by analogiz-
ing the Government’s motion to the exercise of prosecutorial
discretion, id., which is reserved to the executive, and reason-
ing that “[n]othing in § 3730(c)(2)(A) purports to deprive the
Executive Branch of its historical prerogative to decide which
cases should go forward in the name of the United States.” Id.
at 253. While the Court acknowledged that § 3730(c)(2)(A)’s
hearing requirement “points to a role for the courts in deciding
whether the case must go forward despite the government’s de-
cision to end it,” it concluded that the “function of a hearing”
is “simply to give the relator a formal opportunity to convince
the government not to end the case.” Id.

Appellees (alongside amicus United States Chamber of
Commerce, Commerce Br. 9-10) have pressed these points
with us as well, but we are unconvinced. For one, the analogy
to prosecutorial discretion is too loose a fit because qui tam
actions involve not just the Government but also the relator in
the role of “prosecutors,” each with its own interest in the ac-
tion. And as Congress recognized in assuring the relator a
hearing on the Government’s motion, those interests can be
different.

In addition, reading § 3730(c)(2)(A) to give the Govern-
ment “unfettered” discretion to dismiss would make it

25
incongruous with other provisions of the FCA. For example,
§ 3730(b)(1) requires “the court and the Attorney General [to]
give written consent” for the relator to voluntarily dismiss an
action. Appellees’ reading thus would mean that the court had
more of an oversight role when the Government and relator
agreed to dismiss than it would when the Government wanted
to force a dismissal against the relator’s will. Likewise, be-
cause § 3730(c)(2)(B) requires a court to find a proposed set-
tlement, to which a relator objects, to be “fair, adequate, and
reasonable,” Appellees’ reading would require more judicial
oversight of an opposed settlement than of a dismissal—de-
spite the far more severe consequences for the relator.19 Fi-
nally, an unfettered discretion standard creates tension with
§ 3730(c)(2)(A)’s provision for a hearing, which implies some
role for the Article III judge; in contrast, that standard would
limit the court’s role to “serv[ing] . . . some donuts and coffee
. . . while the parties carry on an essentially private conversa-
tion in its presence.” CIMZNHCA, 970 F.3d at 850 (internal
quotation omitted).

Polansky asks us to go the other way and adopt the ra-
tional relation test promulgated by the Ninth Circuit and fol-
lowed by the Tenth, which is drawn from the former’s substan-
tive due process jurisprudence. See Sequoia, 151 F.3d at 1145;
Ridenour, 397 F.3d at 936. Under this test, the court requires
“(1) identification of a valid government purpose; and (2) a ra-
tional relation between dismissal and accomplishment of the

19
The share of the proceeds that a relator receives, ei-
ther by settlement or judgment award, is a function of the Gov-
ernment’s role in the action. If the Government “proceeds with
[the] action,” the relator is entitled to between 15 and 25 per-
cent of the recovery. 31 U.S.C. § 3730(d)(1). If the Govern-
ment does not proceed, the relator receives between 25 and 30
percent of the recovery, plus attorneys’ fees and costs. Id.
§ 3730(d)(2). But if the Government merely dismisses, the re-
lator gets nothing, as there is no possibility for recovery. As
one amicus puts it, “a dismissal is effectively a settlement for
zero dollars.” TAFEF Br. 14.

26
purpose.” Sequoia, 151 F.3d at 1145. If the Government sat-
isfies that two-prong test, “the burden switches to the relator to
demonstrate that dismissal is fraudulent, arbitrary and capri-
cious, or illegal.” Id. (internal quotation marks omitted).

But neither does that slipper fit. The right against arbi-
trary government action may provide a constitutional floor, but
the Federal Rules of Civil Procedure are built above it, and the
Ninth Circuit’s approach omits that structure entirely. And
Rule 41(a) duly provides standards for voluntary dismissal,
promulgated by the Supreme Court and with Congressional
oversight.

In sum, our review of the alternate approaches confirms
the one on which we have settled: When the Government de-
clines to adopt a relator’s FCA action, and the relator elects to
proceed on his or her own, the Government must intervene pur-
suant to § 3730(c)(3) before it can seek to dismiss under
§ 3730(c)(2)(A). And when it does so, its motion to dismiss is
governed by the provisions of Rule 41(a).

C. Whether the District Court’s Grant of Dis-
missal was a Reasonable Exercise of Discretion

Having clarified the operation of § 3730(c)(2)(A), we
now consider the propriety of the District Court’s order in this
case granting the Government’s motion to dismiss. While we
ordinarily review a district court’s grant of a motion to dismiss
de novo, see Chang, 938 F.3d at 386-87 (citing Fowler v.
UPMC Shadyside, 578 F.3d 203, 206 (3d Cir. 2009)), we re-
view a district court’s order under Rule 41(a)(2) for an abuse
of discretion. Carroll v. E One Inc., 893 F.3d 139, 145 (3d Cir.
2018).

We start with the requirement that the Government in-
tervene under § 3730(c)(3) before seeking to dismiss the rela-
tor’s case. Although the Government did not formally file such
a motion before the District Court, that is no cause for remand
on this record. Instead, we construe the Government’s motion

27
to dismiss as including a motion to intervene because “inter-
vention was in substance what the government sought and in
form what the False Claims Act requires.” CIMZNHCA, 970
F.3d at 849 (treating a government motion to dismiss as a mo-
tion to intervene as well); see also Swift, 318 F.3d at 252 (as-
suming that, if intervention “were . . . a requirement, we could
construe the government’s motion to dismiss as including a
motion to intervene”). And, by thoroughly examining the Gov-
ernment’s stated reasons for moving to dismiss and granting
the motion, the District Court necessarily found the Govern-
ment had shown the “legally sufficient reason” for intervening
that good cause requires. CIMZNHCA, 970 F.3d at 846.

Moving on to the District Court’s grant of dismissal, we
perceive no abuse of discretion. The Court exhaustively exam-
ined the interests of the parties, their conduct over the course
of the litigation, and the Government’s reasons for terminating
the action. It discussed, for instance, the litigation costs that
Polansky’s suit imposed on the Government, including “inter-
nal staff obligations,” “anticipated . . . document production,”
and the need to expend attorney time preparing and defending
depositions of CMS personnel. Polansky, 422 F. Supp. 3d at
928. It also noted three events that took place in the run-up to
the Government’s motion that justified its interest in discontin-
uing the action: (1) the Government and Polansky apparently
disagreed on the extent to which Polansky had actually nar-
rowed his case pursuant to their agreement; (2) EHR deposed
Polansky; and (3) a mere five days before the Government
sought to dismiss the case, the District Court overruled the
Government’s objections to the Special Master’s rejection of
its deliberative process privilege and ordered it to begin pro-
ducing documents.

The District Court also adequately considered the prej-
udice to the non-governmental parties, concluding that, even
though the litigation was at an advanced stage and significant
resources had been expended on it by both the parties and the
Court, there was little risk of prejudice to EHR because it sup-
ported the Government’s motion. As for Polansky, the District

28
Court considered his argument that, by dismissing the case, the
Government was “leaving billions of dollars of potential recov-
ery on the table,” but concluded that there were “genuine con-
cerns” that “the potential benefits he highlights will be real-
ized,” both because Polansky maintained he had significantly
narrowed his claims and because the prospect of success was
doubtful. Id. at 927. The Court also noted that Polansky had
engaged in potentially sanctionable conduct during the course
of discovery, and that this “behavior was material and plays a
role in the final disposition of this case.” Id. at 920.

In light of this thorough examination and weighing of
the interests of all the parties, and Rule 41(a)(2)’s “broad grant
of discretion” to shape the “proper” terms of dismissal, we con-
clude that District Court did not abuse its discretion in granting
the Government’s motion to dismiss on the terms that it did.
Carroll, 839 F.3d at 146. We will, therefore, affirm the dis-
missal of Polansky’s action.

29