(December 8, 2022) - The U.S. Supreme Court heard oral arguments Dec. 6 in a case disputing whether the federal government has the authority to unilaterally dismiss False Claims Act lawsuits filed by whistleblowers.

United States ex rel. Polansky v. Executive Health Resources Inc. et al., No. 21-1052, oral argument held (U.S. Dec. 6, 2022).

During the nearly 90-minute session, the high court examined the government's dismissal authority under the False Claims Act, 31 U.S.C.A. § 3730, versus the rights a whistleblower may retain if the government chooses not to intervene.

Whistleblower Dr. Jesse Polansky petitioned the Supreme Court to reverse a 3rd U.S. Circuit Court of Appeals decision affirming the government's ability to dismiss an FCA case in which it had chosen not to intervene.

During oral argument, Daniel L. Geyser of Haynes & Boone LLP argued for the petitioner that the government does not have statutory authority under the FCA to dismiss a suit after declining to proceed.

Some of the Supreme Court justices, however, did not seem inclined to limit the government's dismissal authority.

"Things can change," Associate Justice Brett M. Kavanaugh said. "The discovery could reveal new facts. There could be a new administration that comes in. There could be burdens on the agency that were not apparent at the outset."

Chief Justice John G. Roberts Jr. agreed, saying, "The government makes a strong argument that the facts did change and changed dramatically. The United States jumped in when … the extent of the burden in terms of the documents they would have to review became clear."

"It's the government's action," Associate Justice Elena Kagan said. "Why shouldn't the government have the ability to say things have changed?"

Arguing for the government, Assistant to the Solicitor General Frederick Liu said that as part of its dismissal authority, the U.S. Department of Justice does not need to intervene in a case before dismissing it.

Associate Justice Clarence Thomas questioned Liu about Polansky's stake in the case.

"The petitioner argues that they have a property interest in this suit," Justice Thomas said. "If you can unilaterally dismiss, how can you square that with the assignment that they have?"

Associate Justice Ketanji Brown Jackson said the FCA suggested that if the government declines to intervene, it must show good cause to return to the suit.

"It would seem to me that good cause does the work of ensuring that the property interest that has been created is … taken into account and understood and the government can't just come back in willy-nilly," she said.