Page:U.S. ex rel. Polansky v. Executive Health Resources.pdf/30

4 the action under §3730(b)(4)(A), then paragraph (c)(1) applies, along with the conditions of paragraph (c)(2). Conversely, if the Government elects not to proceed with the action under §3730(b)(4)(B), then paragraph (c)(3) applies.

To be sure, the last sentence of paragraph (c)(3) provides: “When [the relator] proceeds with the action, the court, without limiting the status and rights of the [relator], may nevertheless permit the Government to intervene at a later date upon a showing of good cause.” But this sentence is not, as the majority reads it, a secret pass in paragraph (c)(3) that leads the parties back to their relative rights under paragraphs (c)(1) and (c)(2). See. The sentence itself makes that clear by cautioning that the Government’s later intervention may not “limi[t] the status and rights of the [relator].” §3730(c)(3). Read in the context of §§§ [sic]3730(b)(4) and (c), this “without limiting” condition clearly preserves the relator’s status as an autonomous litigant and the “right to conduct the action” that he acquired when the Government declined to take over the action at its inception. In other words, the plain import of the condition is that the relator keeps “the right to conduct the action” under §§§ [sic]3730(b)(4)(B) and (c)(3), as opposed to being demoted to paragraph (c)(1)’s inferior “right to continue as a party” with the restrictions set out in paragraph (c)(2).

The majority short-circuits this straightforward conclusion by essentially stipulating that the Government “proceeds with the action”—and thus activates paragraphs (c)(1) and (c)(2)—whenever it is a party, regardless of when and how it became a party. See, and. Nothing in the FCA’s overall text or structure favors that interpretation. Nor does the text of paragraph (c)(3). When that provision describes the Government “interven[ing]” after the seal period, it does not use the phrase “proceed with the action” (except in reference to the relator). Cf. §3730(b)(2) (“The Government may elect to intervene and proceed with