Page:U.S. ex rel. Polansky v. Executive Health Resources.pdf/8

4 the lion’s share of the recovery. Most relevant here, the Government can intervene after the seal period ends, so long as it shows good cause to do so. See §3730(c)(3).

The main issue here is whether the Government, if it has declined to intervene during the seal period, retains yet another right: the right to dismiss a qui tam action over the relator’s objection. The FCA gives the Government unilateral authority to dismiss in at least some circumstances. Section 3730(c)(2)(A)—which we’ll call Subparagraph (2)(A) for short—provides that “[t]he Government may dismiss the action notwithstanding the objections of the [relator],” so long as the relator has received notice of the motion and an opportunity for a hearing. Nothing in the statute, however, expressly states whether (or when) that authority survives the Government’s decision to let the seal period lapse without intervening.

The competing arguments on that score hinge significantly on surrounding provisions—more precisely, on how Subparagraph (2)(A) fits into the rest of §3730(c). That subsection addresses the “Rights of the Parties”—the Government, the relator, and (more briefly) the defendant. It contains four relevant paragraphs, which we summarize in order. (Those who believe in verification may refer to this opinion’s appendix, which lays out all of §3730’s relevant text.) A helpful hint to start with: You might want to pay attention to what each paragraph says—or not—about when it applies.

Paragraph 1 applies, as its first clause states, “[i]f the Government proceeds with the action.” §3730(c)(1). In that event, the Government “shall have the primary responsibility for prosecuting the action, and shall not be bound by an act of the [relator].” Ibid. The relator still can “continue as a party”—file motions, conduct discovery, and so forth—but only “subject to the limitations set forth in paragraph (2).” Ibid.