Page:U.S. ex rel. Polansky v. Executive Health Resources.pdf/31

Rh the action” (emphasis added)). Nor is the majority’s understanding compelled by the ordinary meaning of the term “proceed.” To “proceed” means to move forward, generally with the distinctive connotation of moving forward from a particular point. See 12 Oxford English Dictionary, at 544 (“[t]o go, move, or travel forward; to make one’s way onward; esp. to move onward after interruption or stoppage, or after reaching a certain point”). That idea fits the FCA like a glove. The Government “proceeds with the action”—as that phrase is used in §§§ [sic]3730(b)(2), (b)(4)(A), (c)(1), and (c)(3)—if it chooses to move forward with an action from the seal period, which is specifically set up for the Government to decide whether to “proceed with the action,” §3730(b)(2).

The majority’s interpretation of “proceeds with the action” in turn dictates an unnatural reading of paragraph (c)(3)’s “without limiting” condition. When the FCA says that the Government’s belated intervention may not “limi[t]” the relator’s “status and rights,” it naturally means the status and rights that the relator actually enjoyed under paragraph (c)(3) immediately before the Government sought to intervene. By contrast, to accommodate its misreading of “proceeds with the action,” the majority is compelled to read paragraph (c)(3) to protect only the status and rights that the relator would have enjoyed in an alternative timeline where the Government intervened during the seal period and paragraph (c)(3) never came into play at all. See. That reading is counterintuitive, to say the least.

Nor is that the end of the problems with the majority’s “seal-agnostic view.” Ibid. Immediately below subsection (c), §§§ [sic]3730(d)(1) and (d)(2) establish two alternative ranges for the relator’s share of any recovery at the end of a qui tam action. Like the parties’ litigation rights under paragraphs (c)(1) and (c)(3), those ranges depend on whether the Government has “proceed[ed] with” the action or not. “If the Government proceeds with an action brought … under