Page:U.S. ex rel. Polansky v. Executive Health Resources.pdf/28

2 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 procedural 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 Government 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 “proceed with the action” or not determines who “shall” “conduct” 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