Page:U.S. ex rel. Polansky v. Executive Health Resources.pdf/12

8 ways permissible, even if the Government has never intervened. 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. §§§ [sic]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. Polansky understands the dismissal power to arise only when the Government assumes primary responsibility for the action. And he does not think that occurs—rather, he thinks the relator remains in control—if the Government intervenes 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 intervened, but the timing of the intervention makes no difference. So the Government can file a (2)(A) motion to dismiss whenever (whether during the seal period or later) it has intervened.

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 definition) not a party. See Eisenstein, 556 U. S., at 933. And non-parties typically cannot do much of anything in a lawsuit. 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 Paragraph 2, unlike other FCA provisions, does not say that it applies when the Government is a non-party. See. So the Government can prevail on its argument only