Page:U.S. ex rel. Polansky v. Executive Health Resources.pdf/13

Rh by implication. And the implication does not fit. The paragraph’s first two provisions (Subparagraphs (2)(A) and (2)(B)) grant the Government uncommon, even extraordinary, 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 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 relator’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 proceeds with the action”—something that (everyone agrees) cannot happen unless the Government intervenes. See. In that event, the paragraph says, the Government 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 Paragraph 1. It says that when the Paragraph 1 situation obtains, the relator’s continuing role will be limited in the ways set out in Paragraph 2. And once again, the Paragraph 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,