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United States, ex rel. Jesse Polansky, M.D., M.P.H. v. Executive Health Resources, Inc., et al.

Paid petition · United States Court of Appeals for the Third Circuit, No. 19-3810 · judgment October 28, 2021

Decided · June 16, 2023
Pre-decision estimate: 69% cert probability (95% interval 56%–80%)

Before the decision, about 16.7× the 4.1% base rate. The model weighted this up for a federal-government petitioner, counsel who has won certiorari before, and a Third Circuit decision below, and down for a business respondent.

Question presented

This case presents a clear, recognized, and intractable conflict regarding an important statutory question under the False Claims Act (FCA), 31 U.S.C. 3729-3733. When a relator files a qui tam action, the FCA puts the government to an initial choice: it "shall" 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 person bringing the action shall have the right to conduct the action." 31 U.S.C. 3730(b)(4). The FCA then specifies the "Rights of the Parties to the Qui Tam Action[]" based on the government's initial choice. This case involves the government's dismissal authority under 31 U.S.C. 3730(c)(2)(A). The courts are sharply divided over whether, and when, the government can invoke this authority and dismiss a relator's FCA case after initially "declin[ing] to take over the action." The Seventh Circuit below held that the government could dismiss the case if it first intervenes and then satisfies Fed. R. Civ. P. 41(a)'s general standard. Other circuits expressly disagree on every single part of that determination. The question presented is: Whether the government has authority to dismiss an FCA suit after initially declining to proceed with the action, and what standard applies if the government has that authority.

Counsel of record

For petitioner
Daniel L. Geyser
Haynes and Boone, LLP

For respondent
Mark W. Mosier
Covington & Burling, LLP

Case

Conference history
Distributed for 3 conferences

Amicus briefs
6 merits
(2 supporting pet./neither, 4 respondent)

Argument & decision

Argued December 6, 2022 — Daniel L. Geyser · Frederick Liu · Mark W. Mosier. Audio and transcript

Decided June 16, 2023. Opinion by Kagan.

Proceedings

  1. Jul 18 2023
    Judgment issued.
    Main Document
  2. Jun 23 2023
    Record returned to the U.S.D.C.-Eastern District of Pennsylvania (thumb drive containing sealed materials).
  3. Jun 16 2023
    Adjudged to be 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.
  4. Jan 05 2023
    Record from the U.S.D.C.-Eastern District of Pennsylvania containing sealed materials received and filed electronically.
  5. Dec 06 2022
    Argued. For petitioner: Daniel L. Geyser, Dallas, Tex. For respondent United States: Frederick Liu, Assistant to the Solicitor General, Department of Justice, Washington, D. C. For respondent Executive Health Resources, Inc.: Mark W. Mosier, Washington, D. C.
  6. Nov 16 2022
    Reply of petitioner United States, ex rel. Jesse Polansky, M.D., M.P.H. filed. (Distributed)
    Main DocumentCertificate of Word CountProof of Service
  7. Nov 08 2022
    The record from the U.S.C.A. 3rd Circuit has been electronically filed.
  8. Nov 07 2022
    Motion for divided argument filed by the Solicitor General GRANTED.
  9. Oct 28 2022
    Record requested from the U.S.C.A. 3rd Circuit.
  10. Oct 25 2022
    CIRCULATED.
  11. Oct 24 2022
    Brief amicus curiae of Advanced Medical Technology Association filed.
    Main DocumentCertificate of Word CountProof of Service
  12. Oct 24 2022
    Brief amicus curiae of Washington Legal Foundation filed.
    Main DocumentCertificate of Word CountProof of Service
  13. Oct 24 2022
    Brief amicus curiae of Pharmaceutical Research and Manufacturers of America filed.
    Main DocumentCertificate of Word CountProof of Service
  14. Oct 24 2022
    Brief amici curiae of Chamber of Commerce of the United States of America, et al. filed.
    Main DocumentCertificate of Word CountProof of Service
  15. Oct 21 2022
    Motion for divided argument filed by the Solicitor General.
    Main DocumentProof of Service
  16. Oct 18 2022
    SET FOR ARGUMENT on Tuesday, December 6, 2022.
  17. Oct 17 2022
    Brief of respondent United States filed.
    Main DocumentProof of Service
  18. Oct 17 2022
    Brief of respondent Executive Health Resources, Inc. filed.
    Main DocumentCertificate of Word CountProof of Service
  19. Sep 02 2022
    Brief amicus curiae of Taxpayers Against Fraud Education Fund filed.
    Main DocumentCertificate of Word CountProof of Service
  20. Sep 02 2022
    Brief amicus curiae of Brutus Trading, LLC filed.
    Main DocumentCertificate of Word CountProof of Service
  21. Aug 26 2022
    Brief of petitioner United States, ex rel. Jesse Polansky, M.D., M.P.H. filed.
    Main DocumentCertificate of Word CountProof of Service
  22. Aug 26 2022
    Joint appendix filed. (Statement of costs filed)
    Main DocumentProof of Service
  23. Aug 03 2022
    Motion to extend the time to file the briefs on the merits granted. The time to file the joint appendix and petitioner's brief on the merits is extended to and including August 26, 2022. The time to file respondents' brief on the merits is extended to and including October 17, 2022.
  24. Jul 28 2022
    Blanket Consent filed by Petitioner, United States, ex rel. Jesse Polansky, M.D., M.P.H.
    Blanket Consent
  25. Jul 28 2022
    Motion for an extension of time to file the briefs on the merits filed.
    Main Document
  26. Jun 21 2022
    Petition GRANTED.
  27. Jun 13 2022
    DISTRIBUTED for Conference of 6/16/2022.
  28. Jun 06 2022
    DISTRIBUTED for Conference of 6/9/2022.
  29. May 18 2022
    Reply of petitioner United States, ex rel. Jesse Polansky, M.D., M.P.H. filed. (Distributed)
    Main DocumentCertificate of Word CountProof of Service
  30. May 17 2022
    DISTRIBUTED for Conference of 6/2/2022.
  31. May 03 2022
    Brief of respondent Executive Health Resources, Inc. in opposition filed.
    Main DocumentProof of ServiceCertificate of Word Count
  32. May 03 2022
    Brief of respondent United States in opposition filed.
    Main DocumentCertificate of Word Count
  33. Mar 24 2022
    The motions to extend the time to file a response are granted and the time is further extended to and including May 3, 2022, for all respondents.
  34. Mar 23 2022
    Motion of the Solicitor General to extend the time to file a response from April 1, 2022 to May 3, 2022, submitted to The Clerk.
    Main Document
  35. Mar 23 2022
    Motion of Executive Health Resources, Inc. to extend the time to file a response from April 1, 2022 to May 3, 2022, submitted to The Clerk.
    Main DocumentProof of Service
  36. Feb 22 2022
    Motion to extend the time to file a response is granted and the time is extended to and including April 1, 2022, for all respondents.
  37. Feb 18 2022
    Motion of respondent Executive Health Resources Inc. to extend the time to file a response from March 2, 2022 to April 1, 2022, submitted to The Clerk.
    Main DocumentProof of Service
  38. Feb 14 2022
    Motion to extend the time to file a response is granted and the time is extended to and including April 1, 2022.
  39. Feb 11 2022
    Motion to extend the time to file a response from March 2, 2022 to April 1, 2022, submitted to The Clerk.
    Main Document
  40. Jan 26 2022
    Petition for a writ of certiorari filed. (Response due March 2, 2022)
    PetitionAppendixCertificate of Word CountProof of Service