(Slip Opinion) OCTOBER TERM, 2022 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
UNITED STATES EX REL. POLANSKY v. EXECUTIVE
HEALTH RESOURCES, INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 21–1052. Argued December 6, 2022—Decided June 16, 2023
The False Claims Act (FCA) imposes civil liability on any person who
presents false or fraudulent claims for payment to the Federal Govern-
ment. See 31 U. S. C. §§3729–3733. The statute is unusual in author-
izing private parties (known as relators) to sue on the Government’s
behalf. Those suits—qui tam actions—are “brought in the name of the
Government.” §3730(b)(1). And the injury they assert is to the Gov-
ernment alone. But in one sense, a qui tam suit is “for” the relator as
well as the Government: If the action leads to a recovery, the relator
may receive up to 30% of the total. §§3730(b)(1), (d)(1)–(2).
Because a relator is no ordinary plaintiff, he is subject to special re-
strictions. He must file his complaint under seal and serve a copy and
supporting evidence on the Government. See §3730(b)(2). The Gov-
ernment then has 60 days (often extended for “good cause”) to decide
whether to “intervene and proceed with the action.” §§3730(b)(2)–(3).
If the Government elects to intervene during that so-called seal period,
the action “shall be conducted by the Government”; otherwise, the re-
lator gets “the right to conduct the action.” §§3730(b)(4)(A)–(B). But
even if the Government passes on intervention, it remains a “real party
in interest,” United States ex rel. Eisenstein v. City of New York, 556
U. S. 928, 930, and it retains continuing rights. Most relevant here,
the Government can intervene after the seal period ends, so long as it
shows good cause to do so. See §3730(c)(3).
In this case, the relator—petitioner Jesse Polansky—filed a qui tam
action alleging that respondent Executive Health Resources helped
hospitals overbill Medicare. The Government declined to intervene
during the seal period, and the case spent years in discovery. Eventu-
2 UNITED STATES EX REL. POLANSKY v. EXECUTIVE
HEALTH RESOURCES, INC.
Syllabus
ally, the Government decided that the varied burdens of the suit out-
weighed its potential value, so it filed a motion under §3730(c)(2)(A)
(Subparagraph (2)(A) for short), which provides that “[t]he Govern-
ment may dismiss the action notwithstanding the objections of the [re-
lator],” so long as the relator received notice and an opportunity for a
hearing. The District Court granted the request, finding that the Gov-
ernment had thoroughly investigated the costs and benefits and come
to a valid conclusion.
The Court of Appeals for the Third Circuit affirmed after considering
two legal questions. First, does the Government have authority to dis-
miss an action under Subparagraph (2)(A) if it declined to intervene
during the seal period? The Court of Appeals held that the Govern-
ment has that power so long as it intervened sometime later. And the
court found that the Government had satisfied that condition here.
Second, what standard should a district court use in ruling on a Sub-
paragraph (2)(A) motion? The Court of Appeals held that the proper
standard comes from Federal Rule of Civil Procedure 41(a)—the rule
governing voluntary dismissals in ordinary civil litigation. And here,
the Third Circuit ruled, the District Court had not abused its discre-
tion in granting the Government’s motion.
Held:
1. The Government may move to dismiss an FCA action under
§3730(c)(2)(A) whenever it has intervened—whether during the seal
period or later on. Pp. 7–13.
(a) The Government contends that it may move to dismiss under
Subparagraph (2)(A) even if it has never intervened. But Paragraph 2
(in which Subparagraph (2)(A) appears) refutes that idea. Unlike
other FCA provisions, Paragraph 2 does not say that it applies when
the Government is not a party. So the Government can prevail on its
argument only by implication. And the implication does not fit. Sub-
paragraphs (2)(A) and (2)(B) grant the Government uncommon power:
to dismiss and settle an action over the objection of the person who
brought it. That sort of authority would be odd to house in an entity
that has continually declined to join a case. And subparagraphs (2)(C)
and (2)(D) presuppose that the Government has intervened. Subpar-
agraph (2)(C) enables the court to restrict the relator’s role when
needed to prevent interference with the “Government’s prosecution of
the case.” And subparagraph (2)(D) allows the court to restrict the
relator’s participation if the defendant would otherwise suffer an “un-
due burden”; here again the premise is that the Government has joined
the case, else a court would be limiting the role of the defendant’s sole
adversary.
Zoom out to the rest of §3730(c), and the Government’s “intervention
is irrelevant” view looks even weaker. Section 3730(c) addresses the
Cite as: 599 U. S. ____ (2023) 3
Syllabus
“Rights of the Parties” and contains four relevant paragraphs. Para-
graph 1 states that it applies only “[i]f the Government proceeds with
the action”—something that the parties agree cannot happen unless
the Government intervenes. And the paragraph concludes by stating
that the relator may continue as a party, “subject to the limitations set
forth in paragraph (2).” It thus states that when the Paragraph 1 sit-
uation obtains, the relator’s role will be limited in the ways set out in
Paragraph 2. And the Paragraph 1 situation obtains only when the
Government has intervened. So that is also when Paragraph 2’s pro-
visions (including the one about dismissal) kick in. In other words, the
express intervention prerequisite of Paragraph 1 carries forward into
Paragraph 2 through the “subject to” clause connecting the two. Only
when Paragraphs 3 and 4 are reached does the necessity of interven-
tion drop away, as those paragraphs (unlike Paragraph 2) specify the
circumstances in which they apply: Paragraph 3 applies when “the
Government elects not to proceed,” and Paragraph 4 applies “[w]hether
or not the Government proceeds.” And just to pile on a bit, the Gov-
ernment’s alternative construction creates surplusage twice over, vio-
lating the interpretive principle that “every clause and word of a stat-
ute” should have meaning. Montclair v. Ramsdell, 107 U. S. 147, 152.
So absent intervention, Paragraph 2 does not apply, and the Govern-
ment cannot file a motion to dismiss. Pp. 8–10.
(b) A straightforward reading of the FCA refutes Polansky’s posi-
tion that Paragraph 2 (as linked to Paragraph 1) applies only when the
Government’s intervention occurs during the seal period. Recall that
the Government can intervene either during the seal period or “at a
later date upon a showing of good cause.” §3730(c)(3). A successful
motion to intervene turns the movant into a party. And once the Gov-
ernment becomes a party, it (alongside the relator) does what parties
do: It “proceeds with the action.” That phrase, again, is the trigger for
Paragraph 1: When the Government “proceeds with the action,” it as-
sumes “primary responsibility” for the case’s “prosecuti[on].” And for
the reasons above, whenever that is true, Paragraph 2 kicks in too. So
the right to dismiss under Subparagraph (2)(A) attends a later inter-
vention, just as it does an earlier one.
Polansky’s contrary argument mainly relies on Paragraph 3, which
provides that a court approving the Government’s post-seal-period in-
tervention motion may not “limit[ ] the status and rights” of the relator.
That clause, Polansky argues, prevents the court from giving the Gov-
ernment “primary responsibility” over the suit, including the power to
dismiss. But on Polansky’s reading, the Paragraph 3 clause would ef-
fectively negate Paragraphs 1 and 2. The Government, even though
now “proceed[ing]” with the case, would not acquire the control that
4 UNITED STATES EX REL. POLANSKY v. EXECUTIVE
HEALTH RESOURCES, INC.
Syllabus
Paragraphs 1 and 2 afford in that circumstance. Polansky’s construc-
tion would thus put the statute “at war with itself.” United States v.
American Tobacco Co., 221 U. S. 106, 180. Instead, the clause is best
read to tell the court not to impose additional, extra-statutory limita-
tions on the relator when granting the Government’s motion, ensuring
that the parties will occupy the same positions as they would have if
the Government had intervened in the seal period. And that view fits
the FCA’s Government-centered purposes. Congress knew that cir-
cumstances could change and new information come to light. So Con-
gress enabled the Government, in the protection of its own interests,
to reassess litigation of qui tam actions and join a case without having
to take a back seat to its co-party relator. Pp. 10–13.
2. In assessing a motion to dismiss an FCA action over a relator’s
objection, district courts should apply the rule generally governing vol-
untary dismissal of suits in ordinary civil litigation—Rule 41(a). The
Federal Rules are the default rules in civil litigation, and nothing war-
rants a departure from them here. To the contrary, the FCA cross-
references the Rules, and this Court has made clear that other Rules
also apply in the ordinary course of FCA litigation. The application of
Rule 41 in the FCA context will differ in two ways from the norm.
First, the FCA requires notice and an opportunity for a hearing before
a Subparagraph (2)(A) dismissal can take place. Second, in the FCA
context, the set of interests the court should consider in ruling on a
post-answer motion is more likely to include the relator’s, as the rela-
tor may have committed substantial resources to the action. But even
so, the Third Circuit was right to note that the Government’s motion
to dismiss will satisfy Rule 41 in all but the most exceptional cases.
And here, the Government gave good grounds for thinking that this
suit would not do what all qui tam actions are supposed to do: vindi-
cate the Government’s interests. Absent some extraordinary circum-
stance, that sort of showing is all that is needed for the Government to
prevail on a motion to dismiss.
17 F. 4th 376, affirmed.
KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and ALITO, SOTOMAYOR, GORSUCH, KAVANAUGH, BARRETT, and JACKSON,
JJ., joined. KAVANAUGH, J., filed a concurring opinion, in which BARRETT,
J., joined. THOMAS, J., filed a dissenting opinion.
Cite as: 599 U. S. ____ (2023) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
United States Reports. Readers are requested to notify the Reporter of
Decisions, Supreme Court of the United States, Washington, D. C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–1052
_________________
UNITED STATES, EX REL. JESSE POLANSKY, M.D.,
M.P.H., PETITIONER v. EXECUTIVE HEALTH
RESOURCES, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[June 16, 2023]
JUSTICE KAGAN delivered the opinion of the Court.
The False Claims Act (FCA), 31 U. S. C. §§3729–3733,
imposes civil liability on any person who presents false or
fraudulent claims for payment to the Federal Government.
The statute is unusual in authorizing private parties—
known as relators—to sue on the Government’s behalf.
When a relator files a complaint, the Government gets an
initial opportunity to intervene in the case. If the Govern-
ment does so, it takes the lead role. If not, that responsibil-
ity falls to the relator, the only person then pressing the
suit. But even when that is so, the Government retains cer-
tain rights, including the right to intervene later upon a
showing of good cause.
The questions presented here concern the Government’s
ability to dismiss an FCA suit over a relator’s objection.
Everyone agrees that if the Government intervenes at the
suit’s start, it can later move to dismiss. But the parties
dispute whether, or in what circumstances, the same is true
if the Government declines its initial chance to intervene.
And the parties disagree as well about the standard district
2 UNITED STATES EX REL. POLANSKY v. EXECUTIVE
HEALTH RESOURCES, INC.
Opinion of the Court
courts should use in deciding whether to grant a Govern-
ment motion to dismiss.
Today, we hold that the Government may seek dismissal
of an FCA action over a relator’s objection so long as it in-
tervened sometime in the litigation, whether at the outset
or afterward. We also hold that in handling such a motion,
district courts should apply the rule generally governing
voluntary dismissal of suits: Federal Rule of Civil Proce-
dure 41(a).
I
A
The FCA dates to the Civil War, when a Congressional
committee uncovered “stupendous abuses” in the sale of
provisions and munitions to the War Department. H. R.
Rep. No. 2, 37th Cong., 2d Sess., pt. 2, p. II (1861). Testi-
mony before Congress “painted a sordid picture of how the
United States had been billed for nonexistent or worthless
goods, charged exorbitant prices for goods delivered, and
generally robbed in purchasing the necessities of war.”
United States v. McNinch, 356 U. S. 595, 599 (1958). To put
a stop to the plunder—and more generally, to “protect the
funds and property of the Government”—Congress enacted
the FCA. Rainwater v. United States, 356 U. S. 590, 592
(1958). The Act, then as now, imposed civil liability for
many deceptive practices meant to appropriate government
assets.
From the start, the FCA has been enforced through a
unique public-private scheme. Federal prosecutors may of
course sue an alleged violator, all on their own. See 31
U. S. C. §3730(a). But private parties—again, relators—
may also sue, in so-called qui tam actions. Those suits are
“brought in the name of the Government.” §3730(b)(1).1
——————
1 That is why the caption in this and other qui tam suits designates the
plaintiff as “United States ex rel. [the private party’s name].” Ex rel. is
short for the Latin term “ex relatione,” which means “by or on the relation
Cite as: 599 U. S. ____ (2023) 3
Opinion of the Court
And the injury they assert is exclusively to the Government.
A qui tam suit, this Court has explained, alleges both an
“injury to the [Government’s] sovereignty arising from vio-
lation of its laws” and an injury to its “proprietary [inter-
ests] resulting from [a] fraud.” Vermont Agency of Natural
Resources v. United States ex rel. Stevens, 529 U. S. 765, 771
(2000). But in one important sense, a qui tam suit is, as the
statute puts it, “for” both the relator and the Government.
§3730(b)(1) (describing the action as “for the person and for
the United States”). The FCA, we have explained, “effect[s]
a partial assignment of the Government’s” own damages
claim. Id., at 773. If the action leads to a recovery, the re-
lator may receive up to 30% of the total. See §§3730(d)(1)–
(2).
Because the relator is no ordinary civil plaintiff, he is im-
mediately subject to special restrictions. He must file his
complaint under seal, and serve both “[a] copy” and sup-
porting “material evidence” on the Government alone.
§3730(b)(2). The Government then has 60 days (often ex-
tended for “good cause”) to decide whether to “intervene and
proceed with the action.” §§3730(b)(2)–(3). If the Govern-
ment, during that so-called seal period, elects to intervene,
the relator loses control: The action then “shall be con-
ducted by the Government,” though the relator can con-
tinue as a party in a secondary role. §§3730(b)(4)(A), (c)(1).
Only if the Government passes on intervention does the re-
lator “have the right to conduct the action.” §3730(b)(4)(B).
And even then, the relator is not home free. The Govern-
ment, after all, is a “real party in interest” in a qui tam ac-
tion. United States ex rel. Eisenstein v. City of New York,
556 U. S. 928, 930 (2009). So Congress gave the Govern-
ment continuing rights in the action—not least the right to
——————
of.” Black’s Law Dictionary 727 (11th ed. 2019). So here, the caption
refers to the United States, by (or in relation to allegations brought by)
Jesse Polansky, whom you will meet in a little while.
4 UNITED STATES EX REL. POLANSKY v. EXECUTIVE
HEALTH RESOURCES, INC.
Opinion of the Court
the lion’s share of the recovery. Most relevant here, the
Government can intervene after the seal period ends, so
long as it shows good cause to do so. See §3730(c)(3).
The main issue here is whether the Government, if it has
declined to intervene during the seal period, retains yet an-
other right: the right to dismiss a qui tam action over the
relator’s objection. The FCA gives the Government unilat-
eral authority to dismiss in at least some circumstances.
Section 3730(c)(2)(A)—which we’ll call Subparagraph (2)(A)
for short—provides that “[t]he Government may dismiss
the action notwithstanding the objections of the [relator],”
so long as the relator has received notice of the motion and
an opportunity for a hearing. Nothing in the statute, how-
ever, expressly states whether (or when) that authority sur-
vives the Government’s decision to let the seal period lapse
without intervening.
The competing arguments on that score hinge signifi-
cantly on surrounding provisions—more precisely, on how
Subparagraph (2)(A) fits into the rest of §3730(c). That sub-
section addresses the “Rights of the Parties”—the Govern-
ment, the relator, and (more briefly) the defendant. It con-
tains four relevant paragraphs, which we summarize in
order. (Those who believe in verification may refer to this
opinion’s appendix, which lays out all of §3730’s relevant
text.) A helpful hint to start with: You might want to pay
attention to what each paragraph says—or not—about
when it applies.
Paragraph 1 applies, as its first clause states, “[i]f the
Government proceeds with the action.” §3730(c)(1). In that
event, the Government “shall have the primary responsibil-
ity for prosecuting the action, and shall not be bound by an
act of the [relator].” Ibid. The relator still can “continue as
a party”—file motions, conduct discovery, and so forth—but
only “subject to the limitations set forth in paragraph (2).”
Ibid.
Cite as: 599 U. S. ____ (2023) 5
Opinion of the Court
Paragraph 2 then spells out certain rights of the Govern-
ment. You have already seen Subparagraph (2)(A), ena-
bling the Government to dismiss an action over the relator’s
objection (after notice and opportunity for a hearing). Sub-
paragraph (2)(B) is similar. It allows the Government to
settle an action “notwithstanding [the relator’s] objections,”
so long as the court finds after a hearing that the settlement
is fair and reasonable. §3730(c)(2)(B). Finally, subpara-
graphs (2)(C) and (2)(D) allow the court to limit the relator’s
“participation” in the case—because (among other reasons)
it would “interfere with” the “Government’s prosecution of
the case” or “cause the defendant undue burden.”
§§3730(c)(2)(C)–(D).
Next, Paragraph 3 applies, as its first clause states, “[i]f
the Government elects not to proceed with the action.”
§3730(c)(3). In that event, the relator “shall have the right
to conduct the action.” Ibid. But a caveat immediately fol-
lows. The Government, as noted above, may “intervene at
a later date”—i.e., after the seal period—“upon a showing
of good cause.” Ibid.; see supra, at 4. And last, there is a
caveat to that caveat: In granting a later intervention mo-
tion, the “court [may not] limit[ ] the status and rights” of
the relator. §3730(c)(3).
Finally, Paragraph 4 applies, as its first clause states,
“[w]hether or not the Government proceeds with the ac-
tion.” §3730(c)(4). That provision enables the Government
to obtain a stay of the relator’s discovery if it would inter-
fere with the Government’s investigation or prosecution of
a related legal matter.
And so to recap, focusing on the matter we suggested you
attend to. See supra, at 4. Paragraph 1 applies “[i]f the
Government proceeds with the action.” Paragraph 3 ap-
plies “[i]f the Government elects not to proceed with the ac-
tion.” Paragraph 4 applies “[w]hether or not the Govern-
ment proceeds with the action.” And Paragraph 2? It is not
6 UNITED STATES EX REL. POLANSKY v. EXECUTIVE
HEALTH RESOURCES, INC.
Opinion of the Court
like the others. Though granting the Government im-
portant rights—including the right to dismissal over the re-
lator’s objection—Paragraph 2 does not specify when it ap-
plies. And that is the mystery at this case’s heart.
B
With the game thus afoot, we turn to the facts—though
there are only a few you need to know. Petitioner Jesse Po-
lansky is a doctor who worked for respondent Executive
Health Resources (EHR), a company that helped hospitals
bill the United States for Medicare-covered services. In
2012, Polansky filed (under seal, as required) a qui tam ac-
tion against EHR. The complaint alleged that EHR was
enabling its clients to cheat the Government—essentially,
by charging inpatient rates for what should have been out-
patient services. After reviewing Polansky’s evidence, the
Government declined to intervene during the seal period.
The case then spent years in discovery, with EHR demand-
ing both documents and deposition testimony from the Gov-
ernment. As its discovery obligations mounted and weighty
privilege issues emerged, the Government assessed and re-
assessed whether the suit should go forward. By 2019, it
had decided that the varied burdens of the suit outweighed
its potential value. The Government therefore filed a mo-
tion under Subparagraph (2)(A) to dismiss the action over
Polansky’s objection. The District Court granted the re-
quest, finding that the Government had “thoroughly inves-
tigated the costs and benefits of allowing [Polansky’s] case
to proceed and ha[d] come to a valid conclusion based on the
results of its investigation.” 422 F. Supp. 3d 916, 927 (ED
Pa. 2019).
The Court of Appeals for the Third Circuit affirmed after
considering two legal questions. First, does the Govern-
ment have authority to dismiss an action under Subpara-
graph (2)(A) if it declined to intervene during the seal pe-
riod? The Court of Appeals held that the Government has
Cite as: 599 U. S. ____ (2023) 7
Opinion of the Court
that power so long as it intervened sometime later. See 17
F. 4th 376, 383–388 (2021). And here, the Third Circuit
found, the Government had satisfied that condition because
its motion to dismiss was reasonably construed to include a
motion to intervene, which the District Court had implicitly
granted. See id., at 392–393.2 Second, what standard
should a district court use in ruling on a Subparagraph
(2)(A) motion to dismiss? The Court of Appeals held that
the proper standard comes from Federal Rule 41(a)—the
rule governing voluntary dismissals in ordinary civil litiga-
tion. See id., at 389–391. And here, the Third Circuit ruled,
the District Court’s decision, which was based on a “thor-
ough examination” of the interests that Rule 41 makes rel-
evant, was not an abuse of discretion. Id., at 393.
Because both those questions have occasioned circuit
splits, we granted certiorari. 596 U. S. ___ (2022); see 17 F.
4th, at 384, n. 8, 388 (outlining the splits). We now affirm
the Third Circuit across the board.
II
To show why the Third Circuit is right on the first ques-
tion presented—about when the Government can make
what we’ll call a (2)(A) motion—we proceed in two stages,
corresponding to two sets of arguments. None of the parties
here agrees with the Third Circuit. On the one side, the
Government and EHR contend that a (2)(A) motion is al-
——————
2 As noted above, post-seal intervention requires a showing of good
cause. See supra, at 5. Here, the Third Circuit explained that “showing
‘good cause’ is neither a burdensome nor unfamiliar obligation,” but in-
stead “a uniquely flexible and capacious concept, meaning simply a le-
gally sufficient reason.” 17 F. 4th, at 387 (internal quotation marks omit-
ted). And applying that standard, the Third Circuit found that the
Government’s request to dismiss the suit—based on its weighing of dis-
covery burdens against likelihood of success—itself established good
cause to intervene. See id., at 392–393. Polansky does not challenge
that conclusion.
8 UNITED STATES EX REL. POLANSKY v. EXECUTIVE
HEALTH RESOURCES, INC.
Opinion of the Court
ways permissible, even if the Government has never inter-
vened. Their argument is mainly one from silence: Because
Paragraph 2 does not explicitly say when it applies—e.g.,
when the Government “proceeds with the action” or when
it “elects not to”—the provision must apply all the time.
§§3730(c)(1), (3). On the other side, Polansky (joined by the
dissent) contends that the Government can make a (2)(A)
motion only if it has intervened during the seal period. Po-
lansky understands the dismissal power to arise only when
the Government assumes primary responsibility for the ac-
tion. And he does not think that occurs—rather, he thinks
the relator remains in control—if the Government inter-
venes later on. To work our way through this thicket, we
address first the Government’s (and EHR’s) theory, then
Polansky’s (and the dissent’s). We come out the other end
in the same place as the Third Circuit: Paragraph 2 (like
Paragraph 1) applies only if the Government has inter-
vened, but the timing of the intervention makes no differ-
ence. So the Government can file a (2)(A) motion to dismiss
whenever (whether during the seal period or later) it has
intervened.
A
Even taken alone, Paragraph 2 refutes the idea that it
applies regardless of intervention. When the Government
has chosen not to intervene in a qui tam suit, it is (by defi-
nition) not a party. See Eisenstein, 556 U. S., at 933. And
non-parties typically cannot do much of anything in a law-
suit. To be sure, a qui tam action is an unusual creature.
Even as a non-party, the Government retains an interest in
the suit, and possesses specified rights. See, e.g.,
§3730(c)(4) (the right to get a stay of some discovery);
§3730(d)(2) (the right to share in the recovery). But Para-
graph 2, unlike other FCA provisions, does not say that it
applies when the Government is a non-party. See supra, at
4–6. So the Government can prevail on its argument only
Cite as: 599 U. S. ____ (2023) 9
Opinion of the Court
by implication. And the implication does not fit. The para-
graph’s first two provisions (Subparagraphs (2)(A) and
(2)(B)) grant the Government uncommon, even extraordi-
nary, power: to dismiss and settle an action over the objec-
tion of the person who brought it. That sort of authority
would be odd to house in an entity that is taking no part
in—indeed, has continually declined to join—a case. And
still more conclusive, the paragraph’s next two provisions
presuppose that the Government has in fact intervened.
Subparagraph (2)(C) enables the court to restrict the rela-
tor’s role when needed to prevent interference with—wait
for it—the “Government’s prosecution of the case.” And
subparagraph (2)(D) allows the court to restrict the relator’s
participation if the defendant would otherwise suffer an
“undue burden.” The premise is again that the Government
has joined the case—else a court would be limiting the role
of the defendant’s sole adversary.
Zoom out to the rest of §3730(c), and the Government’s
“intervention is irrelevant” view looks even weaker. Above
Paragraph 2 is (you guessed it) Paragraph 1, which begins
and ends in telling ways. Recall that Paragraph 1 starts by
announcing that it applies only “[i]f the Government pro-
ceeds with the action”—something that (everyone agrees)
cannot happen unless the Government intervenes. See su-
pra, at 4. In that event, the paragraph says, the Govern-
ment assumes “primary responsibility” for the suit. But
still, the paragraph concludes, the relator may continue as
a party, “subject to the limitations set forth in paragraph
(2).” That last “subject to” phrase links Paragraph 2 to Par-
agraph 1. It says that when the Paragraph 1 situation ob-
tains, the relator’s continuing role will be limited in the
ways set out in Paragraph 2. And once again, the Para-
graph 1 situation obtains only when the Government has
intervened. So that is also when Paragraph 2’s provisions
(including the one about dismissal) kick in. In other words,
10 UNITED STATES EX REL. POLANSKY v. EXECUTIVE
HEALTH RESOURCES, INC.
Opinion of the Court
the express intervention prerequisite of Paragraph 1 car-
ries forward into Paragraph 2 through the “subject to”
clause connecting the two. Only when Paragraphs 3 and 4
are reached does the necessity of intervention drop away.
Recall that they apply, respectively, when “the Government
elects not to proceed” and “[w]hether or not the Government
proceeds.” See supra, at 5. By contrast, Paragraph 2 is ex-
plicitly hooked to Paragraph 1, which applies only when
“the Government proceeds.”
And just to pile on a bit, the Government’s alternative
construction would create surplusage twice over. Consider
first the “[w]hether or not” introductory clause of Para-
graph 4, noted just above. On the Government’s view, that
clause has no function: A provision lacking it would likewise
apply “whether or not” the Government chose to intervene.
The Government essentially concedes the point, urging only
that Paragraph 4’s preface is “the sort of redundancy that
is common in statutory drafting.” Brief for United States
25 (internal quotation marks omitted). Similarly for the
“subject to . . . paragraph (2)” proviso in Paragraph 1. On
the Government’s view, Congress need not have included
that language, because every qui tam action (not just those
described in Paragraph 1) is “subject to” Paragraph 2’s lim-
its. Again, the Government’s only response is that “Con-
gress sometimes includes language that could be viewed as
‘redundant.’ ” Id., at 22. Yes, sometimes. But on top of eve-
rything else, the Government’s double violation of the inter-
pretive principle that “every clause and word of a statute”
should have meaning, Montclair v. Ramsdell, 107 U. S. 147,
152 (1883), dooms the view that Paragraph 2 applies even
when the Government has not intervened. The paragraph
does not then apply—which means that the Government
cannot then file a (2)(A) motion to dismiss.
B
At the same time, a straightforward reading of the FCA
Cite as: 599 U. S. ____ (2023) 11
Opinion of the Court
refutes Polansky’s (and the dissent’s) position—that Para-
graph 2 (and also Paragraph 1) applies only when the Gov-
ernment’s intervention occurs during the seal period. Re-
call the way the statute works: The Government can
intervene at that early time—but so too it can “intervene at
a later date upon a showing of good cause.” §3730(c)(3); see
supra, at 5. The consequence of a successful motion to in-
tervene, in the FCA context as in any other, is to turn the
movant into a party. See Eisenstein, 556 U. S., at 933–934.
And once the Government becomes a party, it (alongside the
relator) does what parties do: It “proceeds with the action.”
That quoted phrase, you’ll recall, is the trigger for Para-
graph 1: When the Government “proceeds with the action,”
it assumes “primary responsibility” for the case’s “prose-
cuti[on].” And as shown above, whenever that is true, Par-
agraph 2 kicks in too. See supra, at 8–10. So the right to
dismiss under Subparagraph (2)(A) attends a later inter-
vention, just as it does an earlier one. Either way, the Gov-
ernment becomes a party, proceeding with the action; so ei-
ther way, it acquires the right to dismiss.3
Polansky’s contrary argument (echoed in the dissent)
mainly relies on the clause in Paragraph 3 telling the court
that it may not “limit[ ] the status and rights” of the relator
——————
3 Polansky (joined by the dissent) briefly tries to subvert the above
reading at the first step, by arguing that when the Government inter-
venes after the seal period, it somehow does not “proceed with the ac-
tion”—and so neither Paragraph 1 nor Paragraph 2 kicks in. Brief for
Polansky 23 (arguing that Paragraph 3 enables the Government only to
“intervene,” and not also to “proceed with the action”); see post, at 4
(same). But the phrase “proceed with the action” has no special statutory
meaning and is no arcane term of art. It is just the consequence of any-
one—the Government or the relator—becoming a party. See Webster’s
Third New International Dictionary 1807 (1986) (defining “proceed” as
“carry on a legal action”). Regardless whether intervention is pre-seal or
post-seal, the Government at that moment becomes a party; and when
the Government becomes a party, it (necessarily) “proceeds with the ac-
tion.”
12 UNITED STATES EX REL. POLANSKY v. EXECUTIVE
HEALTH RESOURCES, INC.
Opinion of the Court
when it approves a post-seal-period intervention motion.
See Brief for Polansky 23; post, at 4–5. That clause, he says,
prevents the court from giving the Government “primary
responsibility” over the suit, including the power to dismiss.
But on that reading, the Paragraph 3 clause would effec-
tively negate Paragraphs 1 and 2. The Paragraph 3 clause
would prevent the Government, even though now “pro-
ceed[ing]” with the case, from acquiring the control that
Paragraphs 1 and 2 afford in that circumstance. Polansky’s
construction would thus put the statute “at war with itself.”
United States v. American Tobacco Co., 221 U. S. 106, 180
(1911). The statute would direct one result (the Govern-
ment assuming the primary role upon intervening) while
telling the court not to allow that state of affairs. The better
reading makes the instruction to the court congruent with
the background operation of the statute. The clause tells
the court not to impose additional, extra-statutory limits on
the relator when granting the Government’s post-seal-pe-
riod motion to intervene. See United States ex rel.
CIMZNHCA, LLC v. UCB, Inc., 970 F. 3d 835, 854 (CA7
2020) (explaining that the Paragraph 3 clause “instructs
the district court not to limit the relator’s ‘status and rights’
as they are defined by” Paragraphs 1 and 2). In that way,
Paragraph 3 ensures that the Government will get no spe-
cial benefit from the court’s involvement in a later interven-
tion: The parties will occupy the same positions as they
would have if the Government had intervened in the seal
period.
That seal-agnostic view of intervention’s effects also fits
the FCA’s Government-centered purposes. In Polansky’s
proposed world, the Government has primary control of the
action if it intervenes in the seal period, but the relator has
primary control if the intervention occurs later on. See
Brief for Polansky 17. But in both cases, the Government’s
interest in the suit is the same—and is the predominant
one. That interest is typically to redress injuries against
Cite as: 599 U. S. ____ (2023) 13
Opinion of the Court
the Government, through a suit “brought in [the Govern-
ment’s] name.” §3730(b)(1). Or else, as here, that interest
is to obtain dismissal of the suit because it will likely cost
the Government more than it is worth. Either way, that
interest does not diminish in importance because the Gov-
ernment waited to intervene. Congress decided not to make
seal-period intervention an on-off switch. It knew that cir-
cumstances could change and new information come to
light. So Congress enabled the Government, in the protec-
tion of its own interests, to reassess qui tam actions and
change its mind. See S. Rep. No. 99–345, p. 26 (1986) (ex-
plaining that the Government should have a continuing
chance to intervene because “new evidence” might cause it
to “reevaluate its initial assessment”). When it does so,
nothing about the statute’s objectives suggests that the
Government should have to take a back seat to its co-party
relator. The suit remains, as it was in the seal period, one
to vindicate the Government’s interests.
III
We thus arrive at this case’s second question: When the
Government, having properly intervened, seeks to dismiss
an FCA action over a relator’s objection, what standard
should a district court use to assess the motion? The Third
Circuit held that the appropriate standard derives from
Federal Rule 41(a), which governs voluntary dismissals in
ordinary civil litigation. See 17 F. 4th, at 389–391. Under
that Rule, the standard varies with the case’s procedural
posture. If the defendant has not yet served an answer or
summary-judgment motion, the plaintiff need only file a no-
tice of dismissal. But once that threshold has been
crossed—as in this case—dismissal requires a “court order,
on terms that the court considers proper.” Fed. Rule Civ.
Proc. 41(a)(2). Again, both the Government and Polansky
object from different directions. The Government thinks it
has essentially unfettered discretion to dismiss; Polansky
14 UNITED STATES EX REL. POLANSKY v. EXECUTIVE
HEALTH RESOURCES, INC.
Opinion of the Court
proposes a complicated form of arbitrary-and-capricious re-
view, with a burden-shifting component. But again, the
Third Circuit’s Goldilocks position is the legally right one.
A district court should assess a (2)(A) motion to dismiss us-
ing Rule 41’s standards. And in most FCA cases, as the
Court of Appeals suggested, those standards will be readily
satisfied. See 17 F. 4th, at 390–391, and n. 18.
The reason for alighting on Rule 41 is not complicated:
The Federal Rules are the default rules in civil litigation,
and nothing warrants a departure from them here. As Rule
1 states: “These rules govern the procedure in all civil ac-
tions and proceedings in the United States district courts”
(with specified exceptions not relevant here). Of course,
Congress may override that command when it wishes. But
we do not lightly infer that Congress has done so; and si-
lence on the subject is seldom enough. See Jones v. Bock,
549 U. S. 199, 212 (2007); Marek v. Chesny, 473 U. S. 1, 11–
12 (1985). Here, nothing in the FCA suggests that Congress
meant to except qui tam actions from the usual voluntary
dismissal rule. To the contrary, the FCA’s many cross-
references to the Rules suggest that their application is the
norm. See, e.g., §3732(a) (requiring that a summons in an
FCA action comply with the Rules); §§3730(b)(2)–(3) (re-
quiring service to the Government and defendant “pursu-
ant to Rule 4”). And this Court has made clear that various
Rules not specifically mentioned—in particular, those deal-
ing with discovery—also apply. See Eisenstein, 556 U. S.,
at 933–934. As a practical matter, the Federal Rules apply
in FCA litigation in courts across the country every day.
There is no reason to make an exception for the one about
voluntary dismissals.
The application of Rule 41 in the FCA context will differ
in two ways from the norm. The first pertains to procedure.
The FCA requires notice and an opportunity for a hearing
before a Subparagraph (2)(A) dismissal can take place. So
the district court must use that procedural framework to
Cite as: 599 U. S. ____ (2023) 15
Opinion of the Court
apply Rule 41’s standards.4 The second pertains to the set
of interests the court should consider in ruling on a post-
answer motion. In non-FCA cases, Rule 41(a)(2)’s “proper
terms” analysis focuses on the defendant’s interests: The
court mainly addresses whether that party’s “commitment
of time and money” militates against dismissal. Cooter &
Gell v. Hartmarx Corp., 496 U. S. 384, 397 (1990). But in
the FCA context, the “proper terms” assessment is more
likely to involve the relator. For all relators faced with a
(2)(A) motion want their actions to go forward, and many
have by then committed substantial resources. Part of the
district court’s task is to consider their interests. Cf. 9 C.
Wright & A. Miller, Federal Practice and Procedure §2364,
p. 554 (4th ed. 2022) (explaining that a court, in applying
Rule 41, “should endeavor to ensure that substantial justice
is accorded to all parties”).
The Third Circuit, though, was right to note that (2)(A)
motions will satisfy Rule 41 in all but the most exceptional
cases. See 17 F. 4th, at 390–391, and n. 18. This Court has
never set out a grand theory of what that Rule requires, and
we will not do so here. The inquiry is necessarily “contex-
tual.” 9 Wright & Miller §2364, at 599. And in this context,
the Government’s views are entitled to substantial defer-
ence. A qui tam suit, as we have explained, is on behalf of
——————
4 The Court of Appeals briefly addressed the purpose of a hearing when
dismissal is sought before an answer is filed. See 17 F. 4th 376, 390,
n. 16 (CA3 2021). In that context, Rule 41 entitles the movant to a dis-
missal; the district court has no adjudicatory role. So what is the court
supposed to do at the hearing the FCA requires? The Third Circuit sug-
gested that Rule 41’s standards “rest atop the foundation of bedrock con-
stitutional constraints on Government action.” Id., at 390, n. 16. So a
hearing, whether pre- or post-answer, might inquire into allegations that
a dismissal “violate[s] the relator’s rights to due process or equal protec-
tion.” Ibid. But because Polansky has not raised a claim of that sort, we
do not consider the circumstances in which, or procedures by which, a
court should find the Constitution to prevent the Government from dis-
missing a qui tam action.
16 UNITED STATES EX REL. POLANSKY v. EXECUTIVE
HEALTH RESOURCES, INC.
Opinion of the Court
and in the name of the Government. The suit alleges injury
to the Government alone. And the Government, once it has
intervened, assumes primary responsibility for the action.
Given all that, a district court should think several times
over before denying a motion to dismiss. If the Government
offers a reasonable argument for why the burdens of contin-
ued litigation outweigh its benefits, the court should grant
the motion. And that is so even if the relator presents a
credible assessment to the contrary.
In light of those principles, this case is not a close call. A
district court’s Rule 41 order is generally reviewable under
an abuse-of-discretion standard, and the Third Circuit
properly applied that standard here. But in the interest of
providing guidance, it might be useful for us to put that
standard of review to the side, and simply to say that the
District Court got this one right. The Government, in mov-
ing to dismiss, enumerated the significant costs of future
discovery in the suit, including the possible disclosure of
privileged documents. At the same time, the Government
explained in detail why it had come to believe that the suit
had little chance of success on the merits. Polansky vigor-
ously disputed the latter point, claiming that the Govern-
ment was “leaving billions of dollars of potential recovery
on the table.” 17 F. 4th, at 393 (emphasis deleted). But
that competing assessment, the District Court thought,
could not outweigh the Government’s reasonable view of
the suit’s costs and benefits. We agree. The Government
gave good grounds for thinking that this suit would not do
what all qui tam actions are supposed to do: vindicate the
Government’s interests. Absent some extraordinary cir-
cumstance, that sort of showing is all that is needed for the
Government to prevail on a (2)(A) motion to dismiss.
IV
The Government may move to dismiss an FCA action un-
der Subparagraph (2)(A) whenever it has intervened—
Cite as: 599 U. S. ____ (2023) 17
Opinion of the Court
whether during the seal period or later on. The applicable
standards for deciding such a motion are those set out in
Federal Rule 41. Under that Rule, the Government was en-
titled to dismiss this qui tam action. We therefore affirm in
all respects the judgment below.
It is so ordered.
18 UNITED STATES EX REL. POLANSKY v. EXECUTIVE
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Appendix of the of
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the Court
APPENDIX
3730. Civil actions for false claims
(a) RESPONSIBILITIES OF THE ATTORNEY GENERAL.—The
Attorney General diligently shall investigate a violation un-
der section 3729. If the Attorney General finds that a per-
son has violated or is violating section 3729, the Attorney
General may bring a civil action under this section against
the person.
(b) ACTIONS BY PRIVATE PERSONS.—(1) A person may
bring a civil action for a violation of section 3729 for the
person and for the United States Government. The action
shall be brought in the name of the Government. The action
may be dismissed only if the court and the Attorney General
give written consent to the dismissal and their reasons for
consenting.
(2) A copy of the complaint and written disclosure of sub-
stantially all material evidence and information the person
possesses shall be served on the Government pursuant to
Rule 4(d)(4) of the Federal Rules of Civil Procedure. The
complaint shall be filed in camera, shall remain under seal
for at least 60 days, and shall not be served on the defend-
ant until the court so orders. The Government may elect to
intervene and proceed with the action within 60 days after
it receives both the complaint and the material evidence
and information.
(3) The Government may, for good cause shown, move the
court for extensions of the time during which the complaint
remains under seal under paragraph (2). Any such motions
may be supported by affidavits or other submissions in cam-
era. The defendant shall not be required to respond to any
complaint filed under this section until 20 days after the
complaint is unsealed and served upon the defendant pur-
suant to Rule 4 of the Federal Rules of Civil Procedure.
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(4) Before the expiration of the 60-day period or any ex-
tensions obtained under paragraph (3), the Government
shall–
(A) proceed with the action, in which case the action shall
be conducted by the Government; or
(B) notify the court that it declines to take over the action,
in which case the person bringing the action shall have the
right to conduct the action.
(5) When a person brings an action under this subsection,
no person other than the Government may intervene or
bring a related action based on the facts underlying the
pending action.
(c) RIGHTS OF THE PARTIES TO QUI TAM ACTIONS.—(1) If
the Government proceeds with the action, it shall have the
primary responsibility for prosecuting the action, and shall
not be bound by an act of the person bringing the action.
Such person 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 notwith-
standing the objections of the person initiating the action 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.
(B) The Government may settle the action with the de-
fendant notwithstanding the objections of the person initi-
ating the action if the court determines, after a hearing,
that the proposed settlement is fair, adequate, and reason-
able under all the circumstances. Upon a showing of good
cause, such hearing may be held in camera.
(C) Upon a showing by the Government that unrestricted
participation during the course of the litigation by the per-
son initiating the action would interfere with or unduly de-
lay the Government’s prosecution of the case, or would be
20 UNITED STATES EX REL. POLANSKY v. EXECUTIVE
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Opinion
Appendix of the of
to opinion Court
the Court
repetitious, irrelevant, or for purposes of harassment, the
court may, in its discretion, impose limitations on the per-
son’s participation, such as—
(i) limiting the number of witnesses the person may
call;
(ii) limiting the length of the testimony of such wit-
nesses;
(iii) limiting the person’s cross-examination of wit-
nesses; or
(iv) otherwise limiting the participation by the person
in the litigation.
(D) Upon a showing by the defendant that unrestricted
participation during the course of the litigation by the per-
son initiating the action would be for purposes of harass-
ment or would cause the defendant undue burden or unnec-
essary expense, the court may limit the participation by the
person in the litigation.
(3) If the Government elects not to proceed with the ac-
tion, the person who initiated the action shall have the right
to conduct the action. If the Government so requests, it
shall be served with copies of all pleadings filed in the ac-
tion and shall be supplied with copies of all deposition tran-
scripts (at the Government’s expense). When a person pro-
ceeds with the action, the court, without limiting the status
and rights of the person initiating the action, may never-
theless permit the Government to intervene at a later date
upon a showing of good cause.
(4) Whether or not the Government proceeds with the ac-
tion, upon a showing by the Government that certain ac-
tions of discovery by the person initiating the action would
interfere with the Government’s investigation or prosecu-
tion of a criminal or civil matter arising out of the same
facts, the court may stay such discovery for a period of not
more than 60 days. Such a showing shall be conducted in
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Appendix of the of
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the Court
camera. The court may extend the 60-day period upon a
further showing in camera that the Government has pur-
sued the criminal or civil investigation or proceedings with
reasonable diligence and any proposed discovery in the civil
action will interfere with the ongoing criminal or civil in-
vestigation or proceedings.
(5) Notwithstanding subsection (b), the Government may
elect to pursue its claim through any alternate remedy
available to the Government, including any administrative
proceeding to determine a civil money penalty. If any such
alternate remedy is pursued in another proceeding, the per-
son initiating the action shall have the same rights in such
proceeding as such person would have had if the action had
continued under this section. Any finding of fact or conclu-
sion of law made in such other proceeding that has become
final shall be conclusive on all parties to an action under
this section. For purposes of the preceding sentence, a find-
ing or conclusion is final if it has been finally determined
on appeal to the appropriate court of the United States, if
all time for filing such an appeal with respect to the finding
or conclusion has expired, or if the finding or conclusion is
not subject to judicial review.
Cite as: 599 U. S. ____ (2023) 1
KAVANAUGH, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–1052
_________________
UNITED STATES, EX REL. JESSE POLANSKY, M.D.,
M.P.H., PETITIONER v. EXECUTIVE HEALTH
RESOURCES, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[June 16, 2023]
JUSTICE KAVANAUGH, with whom JUSTICE BARRETT
joins, concurring.
I join the Court’s opinion in full. I add only that I agree
with JUSTICE THOMAS that “[t]here are substantial
arguments that the qui tam device is inconsistent with
Article II and that private relators may not represent the
interests of the United States in litigation.” Post, at 7–8
(dissenting opinion). In my view, the Court should consider
the competing arguments on the Article II issue in an
appropriate case.
Cite as: 599 U. S. ____ (2023) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–1052
_________________
UNITED STATES, EX REL. JESSE POLANSKY, M.D.,
M.P.H., PETITIONER v. EXECUTIVE HEALTH
RESOURCES, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[June 16, 2023]
JUSTICE THOMAS, dissenting.
In my view, the text and structure of the False Claims
Act (FCA), 31 U. S. C. §§3729–3733, afford the Government
no power to unilaterally dismiss a pending qui tam action
after it has “decline[d] to take over the action” from the re-
lator at its outset. §3730(b)(4)(B). Thus, I would vacate the
judgment below and remand for the Third Circuit to con-
sider the serious constitutional questions that may affect
the disposition of the Government’s motion to dismiss peti-
tioner’s qui tam suit. Because the Court instead affirms, I
respectfully dissent.
I
The FCA provides that private parties known as relators
may bring qui tam suits “for [themselves] and for the
United States Government.” §3730(b)(1). It then sets out
a reticulated scheme to govern the initiation of a qui tam
suit, see §3730(b); the parties’ procedural rights during the
suit, see §3730(c); and the rights of the parties to any pro-
ceeds at the end of the suit, see §3730(d). See also ante, at
2–6, 18–21. The main structural feature of this scheme is
the so-called seal period: a window of time at the start of
every FCA qui tam action during which the suit is on hold
and the Government must “elect” whether “to intervene and
2 UNITED STATES EX REL. POLANSKY v. EXECUTIVE
HEALTH RESOURCES, INC.
THOMAS, J., dissenting
proceed with the action,” §3730(b)(2), or, alternatively, to
“declin[e] to take over the action” and allow the relator to
proceed, §3730(b)(4)(B).
This case requires us to decide whether the Government
enjoys the same panoply of procedural rights when it takes
over an action during the seal period and when (as here) it
intervenes in the action “at a later date” after the relator
has “proceed[ed] with the action.” §3730(c)(3). Today, the
Court holds that the Government has all of the same proce-
dural rights in both circumstances, including the right to
“dismiss the action notwithstanding the objections of the
[relator].” §3730(c)(2)(A). I would instead hold that the
structure of the FCA’s qui tam provisions and the clear text
of §3730(c)(3) do not permit the Government to seize the
reins from the relator to unilaterally dismiss the suit after
declining to proceed with an action during the seal period.
To bring out the statutory structure, it is helpful to take
the FCA’s qui tam provisions from the top. Under
§3730(b)(2), the first step in a qui tam suit is for the relator
to file the complaint in camera and under seal, serving it on
the Government but not the defendant. That filing starts
the clock on a 60-day window in which “[t]he Government
may elect to intervene and proceed with the action.”
§3730(b)(2). The Government may move to extend this seal
period for cause, see §3730(b)(3), but, ultimately, the Gov-
ernment faces a binary choice. It must either: “(A) proceed
with the action, in which case the action shall be conducted
by the Government; or (B) notify the court that it declines
to take over the action, in which case the [relator] shall have
the right to conduct the action.” §3730(b)(4). Thus, under
§3730(b)(4), the Government’s seal-period choice to “pro-
ceed with the action” or not determines who “shall” “con-
duct” the suit—the Government or the relator.
Section 3730(c) picks up at this critical juncture, defining
the respective litigating rights of the Government and the
relator based on the Government’s choice to “proceed with
Cite as: 599 U. S. ____ (2023) 3
THOMAS, J., dissenting
the action” or not. First, paragraph (1) of subsection (c) (or,
paragraph (c)(1)) provides: “If the Government proceeds
with the action, it shall have the primary responsibility for
prosecuting the action,” but the relator “shall have the right
to continue as a party to the action, subject to [paragraph
(c)(2)’s] limitations.”1 As used here, the phrase “proceeds
with the action” naturally refers to the same seal-period
choice for which §3730 uses the same phrase in paragraph
(b)(2) and subparagraph (b)(4)(A). And the Government
“hav[ing] the primary responsibility for prosecuting the ac-
tion” appears synonymous with the Government “con-
duct[ing]” the action under subparagraph (b)(4)(A). See 3
Oxford English Dictionary 691 (2d ed. 1989) (defining “con-
duct” as “[t]o lead, command, direct, manage”).
By contrast, paragraph (c)(3) provides: “If the Govern-
ment elects not to proceed with the action, the [relator]
shall have the right to conduct the action.” The conditional
clause of this sentence is a clear reference to the seal-period
“elect[ion]” described in paragraph (b)(2).2 Likewise, the re-
sult clause plainly echoes “the right to conduct the action”
referred to under subparagraph (b)(4)(B), which the relator
acquires when the Government does not “proceed with the
action” under subparagraph (b)(4)(A) at the end of the seal
period.
In short, the initial clauses of paragraphs (c)(1) and (c)(3)
track subparagraphs (b)(4)(A) and (b)(4)(B) and point back
to the Government’s seal-period choice to “proceed with the
action” or not. If the Government chooses to proceed with
——————
1 The remainder of paragraphs (c)(1) and (c)(2) largely describe the con-
tours of the Government’s primary responsibility vis-à-vis the relator’s
circumscribed litigation rights. I agree with the Court’s holding that par-
agraph (c)(2) is clearly subordinate to paragraph (c)(1). See ante, at 8–
10.
2 One other provision of the FCA refers to the Government “making an
election under section 3730(b),” which likewise clearly signifies the seal-
period decision. 31 U. S. C. §3733(a)(1).
4 UNITED STATES EX REL. POLANSKY v. EXECUTIVE
HEALTH RESOURCES, INC.
THOMAS, J., dissenting
the action under §3730(b)(4)(A), then paragraph (c)(1) ap-
plies, along with the conditions of paragraph (c)(2). Con-
versely, if the Government elects not to proceed with the
action under §3730(b)(4)(B), then paragraph (c)(3) applies.
To be sure, the last sentence of paragraph (c)(3) provides:
“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.” But this sentence is
not, as the majority reads it, a secret pass in paragraph
(c)(3) that leads the parties back to their relative rights un-
der paragraphs (c)(1) and (c)(2). See ante, at 10–13. The
sentence itself makes that clear by cautioning that the Gov-
ernment’s later intervention may not “limi[t] the status and
rights of the [relator].” §3730(c)(3). Read in the context of
§§3730(b)(4) and (c), this “without limiting” condition
clearly preserves the relator’s status as an autonomous lit-
igant and the “right to conduct the action” that he acquired
when the Government declined to take over the action at its
inception. In other words, the plain import of the condition
is that the relator keeps “the right to conduct the action”
under §§3730(b)(4)(B) and (c)(3), as opposed to being de-
moted to paragraph (c)(1)’s inferior “right to continue as a
party” with the restrictions set out in paragraph (c)(2).
The majority short-circuits this straightforward conclu-
sion by essentially stipulating that the Government “pro-
ceeds with the action”—and thus activates paragraphs
(c)(1) and (c)(2)—whenever it is a party, regardless of when
and how it became a party. See ante, at 11, and n. 3. Noth-
ing in the FCA’s overall text or structure favors that inter-
pretation. Nor does the text of paragraph (c)(3). When that
provision describes the Government “interven[ing]” after
the seal period, it does not use the phrase “proceed with the
action” (except in reference to the relator). Cf. §3730(b)(2)
(“The Government may elect to intervene and proceed with
Cite as: 599 U. S. ____ (2023) 5
THOMAS, J., dissenting
the action” (emphasis added)). Nor is the majority’s under-
standing compelled by the ordinary meaning of the term
“proceed.” To “proceed” means to move forward, generally
with the distinctive connotation of moving forward from a
particular point. See 12 Oxford English Dictionary, at 544
(“[t]o go, move, or travel forward; to make one’s way on-
ward; esp. to move onward after interruption or stoppage,
or after reaching a certain point”). That idea fits the FCA
like a glove. The Government “proceeds with the action”—
as that phrase is used in §§3730(b)(2), (b)(4)(A), (c)(1), and
(c)(3)—if it chooses to move forward with an action from the
seal period, which is specifically set up for the Government
to decide whether to “proceed with the action,” §3730(b)(2).
The majority’s interpretation of “proceeds with the ac-
tion” in turn dictates an unnatural reading of paragraph
(c)(3)’s “without limiting” condition. When the FCA says
that the Government’s belated intervention may not
“limi[t]” the relator’s “status and rights,” it naturally means
the status and rights that the relator actually enjoyed un-
der paragraph (c)(3) immediately before the Government
sought to intervene. By contrast, to accommodate its mis-
reading of “proceeds with the action,” the majority is com-
pelled to read paragraph (c)(3) to protect only the status and
rights that the relator would have enjoyed in an alternative
timeline where the Government intervened during the seal
period and paragraph (c)(3) never came into play at all. See
ante, at 12. That reading is counterintuitive, to say the
least.
Nor is that the end of the problems with the majority’s
“seal-agnostic view.” Ibid. Immediately below subsection
(c), §§3730(d)(1) and (d)(2) establish two alternative ranges
for the relator’s share of any recovery at the end of a qui
tam action. Like the parties’ litigation rights under para-
graphs (c)(1) and (c)(3), those ranges depend on whether the
Government has “proceed[ed] with” the action or not. “If
the Government proceeds with an action brought . . . under
6 UNITED STATES EX REL. POLANSKY v. EXECUTIVE
HEALTH RESOURCES, INC.
THOMAS, J., dissenting
subsection (b),” the relator is usually entitled to between 15
and 25 percent of any recovery. §3730(d)(1). Conversely,
“[i]f the Government does not proceed with [the] action,” the
relator is entitled to 25 to 30 percent. §3730(d)(2). Given
the majority’s view that intervention under paragraph
(c)(3) counts as “proceed[ing] with the action,” it follows that
even an eleventh-hour intervention by the Government
would automatically shunt the relator out of paragraph
(d)(2)’s more generous range and into paragraph (d)(1)’s less
generous one. Surely, that result would qualify as “limiting
the [relator’s] status and rights.” §3730(c)(3).
The majority bolsters its tenuous textual and structural
case with an appeal to “the FCA’s Government-centered
purposes.” Ante, at 12. But “every statute purposes, not
only to achieve certain ends, but also to achieve them by
particular means.” Freeman v. Quicken Loans, Inc., 566
U. S. 624, 637 (2012) (alteration and internal quotation
marks omitted). And, while it is certainly the FCA’s ulti-
mate goal to “redress injuries against the Government,”
ante, at 12–13, its chosen means is to empower private par-
ties to seek redress of those injuries through litigation that
the Government does not necessarily control and might not
have brought if left to its own devices. Allowing the relator
to maintain the suit after the Government has declined its
initial opportunity to take it over (even if only to dismiss it)
is fully consistent with the FCA.
Indeed, the FCA’s history undermines the majority’s free-
floating account of its “purposes.” As enacted in 1863, the
original FCA contained no provision for the Government to
intervene in a relator’s suit at all. See 12 Stat. 698. In
1943, Congress first gave the Government that opportunity
by creating the 60-day seal period, which it set up to func-
tion as the very “on-off switch” the majority seems to con-
sider implausible, ante, at 13: Either the Government inter-
vened during the seal period and assumed sole control of
Cite as: 599 U. S. ____ (2023) 7
THOMAS, J., dissenting
the action, or it did not intervene and was permanently ex-
cluded from the action. See 57 Stat. 608–609. Finally, in
1986, Congress revamped the FCA into its modern form,
under which (as never before) the Government and the re-
lator can litigate side by side as co-plaintiffs in the same
action. In creating this possibility, Congress tweaked both
halves of the previous regime in roughly parallel ways. If
the Government intervenes during the seal period, para-
graphs (c)(1) and (c)(2) now permit the relator to remain a
party and play a role in the litigation—but only a subordi-
nate role. Conversely, if the Government does not intervene
and proceed with the action during the seal period, it is not
forever barred from taking a litigating role—but, if it inter-
venes later, it does not downgrade the relator’s “status and
rights” to those of a second-chair litigant. §3730(c)(3).
In sum, the text, structure, and history of the FCA all
point to the same conclusion. The FCA affords the Govern-
ment no statutory right to unilaterally dismiss a declined
action when it intervenes under §3730(c)(3).
II
However, the text and structure of the FCA are not the
end of the story. Defendant-respondent has pointed to se-
rious constitutional questions that might affect the disposi-
tion of the Government’s motion here. At the same time, it
is not clear that the parties have examined these questions
in their full complexity, and the Third Circuit’s reading of
§3730(c) gave it no reason to do so. Therefore, after holding
that the Government could not invoke the dismissal author-
ity of §3730(c)(2)(A) as a statutory matter, I would remand
this case for the Third Circuit to consider whether the Con-
stitution nonetheless requires the dismissal of petitioner’s
suit.
The FCA’s qui tam provisions have long inhabited some-
thing of a constitutional twilight zone. There are substan-
tial arguments that the qui tam device is inconsistent with
8 UNITED STATES EX REL. POLANSKY v. EXECUTIVE
HEALTH RESOURCES, INC.
THOMAS, J., dissenting
Article II and that private relators may not represent the
interests of the United States in litigation. Because “[t]he
entire ‘executive Power’ belongs to the President alone,”
Seila Law LLC v. Consumer Financial Protection Bureau,
591 U. S. ___, ___ (2020) (slip op., at 11), it can only be ex-
ercised by the President and those acting under him, see
id., at ___ (slip op., at 2) (THOMAS, J., concurring in part and
dissenting in part). And, as “[a] lawsuit is the ultimate rem-
edy for a breach of the law,” the Court has held that “con-
ducting civil litigation . . . for vindicating public rights” of
the United States is an “executive functio[n]” that “may be
discharged only by persons who are ‘Officers of the United
States’ ” under the Appointments Clause, Art. II, §2, cl. 2.
Buckley v. Valeo, 424 U. S. 1, 138–140 (1976) (per curiam)
(some internal quotation marks omitted). A private relator
under the FCA, however, is not “appointed as an officer of
the United States” under Article II. Cochise Consultancy,
Inc. v. United States ex rel. Hunt, 587 U. S. ___, ___ (2019)
(slip op., at 8). It thus appears to follow that Congress can-
not authorize a private relator to wield executive authority
to represent the United States’ interests in civil litigation.
The potential inconsistency of qui tam suits with Article
II has been noticed for decades. See, e.g., Riley v. St. Luke’s
Episcopal Hospital, 252 F. 3d 749, 758–775 (CA5 2001) (en
banc) (Smith, J., dissenting); J. Blanch, Note, The Consti-
tutionality of the False Claims Act’s Qui Tam Provision, 16
Harv. J. L. & Pub. Pol’y 701, 736–767 (1993); Constitution-
ality of the Qui Tam Provisions of the False Claims Act, 13
Op. OLC 207, 221–224, 228–232 (1989). The primary coun-
terargument has emphasized the long historical pedigree of
qui tam suits, including the fact that the First Congress
passed a handful of qui tam statutes. See, e.g., Vermont
Agency of Natural Resources v. United States ex rel. Stevens,
529 U. S. 765, 801 (2000) (Stevens, J., dissenting); Riley,
252 F. 3d, at 752–753 (“[H]istory alone resolves . . . whether
the qui tam provisions in the FCA violate Article II”).
Cite as: 599 U. S. ____ (2023) 9
THOMAS, J., dissenting
“Standing alone,” however, “historical patterns cannot jus-
tify contemporary violations of constitutional guarantees,”
Marsh v. Chambers, 463 U. S. 783, 790 (1983), even when
the practice in question “covers our entire national exist-
ence and indeed predates it,” Walz v. Tax Comm’n of City of
New York, 397 U. S. 664, 678 (1970). Nor is enactment by
the First Congress a guarantee of a statute’s constitution-
ality. See Marbury v. Madison, 1 Cranch 137 (1803). Fi-
nally, we should be especially careful not to overread the
early history of federal qui tam statutes given that the Con-
stitution’s creation of a separate Executive Branch coequal
to the Legislature was a structural departure from the Eng-
lish system of parliamentary supremacy, from which many
legal practices like qui tam were inherited. See S. Prakash,
The Chief Prosecutor, 73 Geo. Wash. L. Rev. 521, 589 (2005)
(noting that, for this reason, “we ought to be cautious about
importing English constraints or exceptions to the execu-
tive power, when those limitations might be based on the
principle of parliamentary supremacy”).
In short, there is good reason to suspect that Article II
does not permit private relators to represent the United
States’ interests in FCA suits. However, even if that is true,
the follow-on implications may not be as straightforward as
they appear at first glance. Under the FCA, the relator
brings suit “for [himself]” as well as “for the United States
Government.” §3730(b)(1) (emphasis added). In Stevens,
we read this language “as effecting a partial assignment of
the Government’s damages claim,” which provided “the the-
oretical justification” for our holding “that a qui tam relator
under the FCA has Article III standing.” 529 U. S., at 773,
778. For that holding to make sense, it appears that this
assignment must be effective no later than the point in time
at which the Government declines to intervene in the seal
period and the relator may proceed with the action as the
only plaintiff in court.
10 UNITED STATES EX REL. POLANSKY v. EXECUTIVE
HEALTH RESOURCES, INC.
THOMAS, J., dissenting
Under Stevens’ partial-assignment theory, it is not imme-
diately clear that the Government may dismiss the relator’s
interest in a qui tam suit, even assuming that the relator’s
representation of the United States’ interest is unconstitu-
tional. Whether the Government may do so may depend on
the implicit conditions of the assignment; conceivably, it
may also depend on whether the assignment is severable
from the FCA’s attempt to vest the authority to represent
the United States in litigation in a party outside the Exec-
utive Branch.
In examining these issues, moreover, it may be necessary
to consider a question that Stevens left unaddressed: What
is the source of Congress’ power to effect partial assign-
ments of the United States’ damages claims? One candi-
date might be the Necessary and Proper Clause, Art. I, §8,
cl. 18; but, if qui tam suits violate Article II, then it appears
unlikely that any assignment effectuated by the FCA’s
qui tam provisions could be considered “necessary and
proper for carrying into Execution” any constitutional
power. See Gonzales v. Raich, 545 U. S. 1, 60 (2005)
(THOMAS, J., dissenting) (“To act under the Necessary and
Proper Clause,” “Congress must select a means” not “ ‘pro-
hibited’ by the Constitution” or “inconsistent with ‘the letter
and spirit of the Constitution’ ” (quoting McCulloch v. Mar-
yland, 4 Wheat. 316, 421 (1819); alteration omitted)). Al-
ternatively, such assignments might rely at least partly on
the Property Clause, which empowers Congress “to dispose
of and make all needful Rules and Regulations respecting
the Territory or other Property belonging to the United
States,” and which may include the power to assign claims
for damages as “other Property.” Art. IV, §3, cl. 2; see also
D. Engdahl, The Basis of the Spending Power, 18 Seattle U.
L. Rev. 215, 256–257 (1995) (“The Article IV Property
Clause is most familiar, of course, in its application to
landed property, . . . but it has been recognized as applying
to personal property as well”).
Cite as: 599 U. S. ____ (2023) 11
THOMAS, J., dissenting
In any event, these are complex questions, which I would
leave for the parties and the court below to consider after
resolving the statutory issues that have been the focus of
this case up to now.3 Therefore, I would vacate the judg-
ment below granting the Government’s motion to dismiss
and remand for the Third Circuit to consider the correct dis-
position of that motion in light of any applicable constitu-
tional requirements.
——————
3 For two reasons, the fact that my reading of §3730 would require con-
fronting these constitutional questions in this case does not counsel in
favor of a different interpretation. First, principles of constitutional
avoidance can operate only “in the choice of fair alternatives,” not when
the text and structure of a statute point to a clear answer. United States
v. Rumely, 345 U. S. 41, 45 (1953); see also Skilling v. United States, 561
U. S. 358, 423 (2010) (Scalia, J., concurring in part and concurring in
judgment). Second, the force of constitutional-avoidance principles is in-
herently limited where, as here, the choice of interpretations is tangen-
tial to the constitutional questions at stake. On any interpretation, the
FCA purports to authorize private parties to represent the United States
in litigation. That basic feature of the qui tam device must be the core of
any Article II objection to the FCA. If it is constitutionally problematic,
then the majority’s interpretation of the FCA does not cure the problem;
on the other hand, if qui tam is constitutional, then there is no constitu-
tional problem to avoid.