U.S., ex rel. Polansky v. Executive Health (21-1052)

argument 21-1052

U.S., ex rel. Polansky v. Executive Health

Supreme Court of the United States 1h 21m 8 speakers 8 chapters transcribed 8 days ago official recording ↗

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What is the statutory basis for the government's authority to dismiss a False Claims Act case after declining to intervene?

John G. Roberts 0:00

We'll hear argument first this morning in case twenty one ten fifty two, United States exrael Polanski versus

Michael Geyser 0:06

Executive. Executive Health Resources. Mr. Geyser. Thank you, Mr. Chief Justice, and may it please the Court. The government lacks the statutory authority to dismiss a False Claims Act case after declining to proceed with the action. And that conclusion follows directly from the Act's plain text, structure, history, and purpose. Respondents' contrary view reads the Act's dismissal authority in isolation. It makes nonsense of the Act's deliberate. structure, it renders key clauses superfluous, which respondents concede, and it requires limiting the relators' status and rights, where the Act unambiguously says the court may not limit the relators' status and rights. When the FCA was enacted in 1863, the government could not intervene at all.

Michael Geyser 0:51

It was not until in 1943 that the government even had the option to take over the case at the outset. If Congress truly intended the government to have a global right to dismiss a declined case at any time, this is not remotely how the statute would read. Nor can respondents escape their weak textual position with a plea to constitutional avoidance, especially one requiring an unprecedented holding that an ancient practice predating the founding by centuries is somehow unconstitutional. Because the government lacked the power to dismiss, the judgment below should be reversed. I welcome the court's questions.

Clarence Thomas 1:26

Um Mr. Geyser, would you spend um just a few minutes on uh the constitutional problems that we that could be anticipated from your taking your approach, uh the separation of powers problems that uh suggested in the uh briefs on the other side.

Michael Geyser 1:44

Sure, Your Honor. I I I don't think that there really is much of a constitutional problem precisely because of the strong historical pedigree of key TAM actions. Uh at the founding, key TAM actions were commonplace. And this Court has said when you have an open and unchallenged practice that predates to the founding where the very framers who crafted Article two didn't have any problem with enacting these statutes, that effectively fixes the constitutional meaning.

Clarence Thomas 2:08

Uh beyond that, uh d uh could you point to a constitutional basis for it? Uh the the country was quite different then. You the the attorney general until the mid nineteenth century did not h was not really an institution uh was a probably part time. Uh so it was different. And I understand that you would would like to rely on that history. But uh I think we need a little bit more. You l at least would need a constitutional hook, a statute uh a textual hook of some sort.

Michael Geyser 2:41

Sure. Well I I'll provide the textual hook just before I do. Th this court in Stevens said that the history was well nigh conclusive for Article three purposes, and it'd be very strange for it not to be well nigh conclusive for Article two purposes. Well, the assignment is what gave the relator and Article III interest in the case. But the point was, was this consistent with Article III? And the Court said it was, precisely because of the historical foundation. But this is the same foundation that existed when the False Claims Act was enacted in 1863. It's the same False Claims Act when this Court confronted it in the United States versus Hess, where the the Court confronted a series of challenges That look very much like the constitutional uh claims raised by the respondents, and not a single member of the court even paused to suggest there was an Article II problem.

Michael Geyser 3:28

But to look at the textual basis for this, the the False Claims Act does not give uh the relator exclusive control to do whatever they'd like. No false claims act suit can proceed without the government's permission. The government has plenary authority at the outset to take over the case, where it can step in proceed with the action, move to dismiss the action, it can amend the complaint, it can add claims, it can subtract claims. If a false claims act case goes forward, it's precisely because the executive has effectively said that it can.