# United States ex rel. Polansky v. Executive Health Resources/Opinion of Justice Thomas

SUPREME COURT OF THE UNITED STATES
No. 21–1052
UNITED STATES, EX REL. JESSE POLANSKY, M.D., M.P.H., PETITIONER v. EXECUTIVE HEALTH RESOURCES, INC., ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT [June 16, 2023]
Justice Thomas, dissenting.
In my view, the text and structure of the False Claims Act (FCA), 31 U. S. C. §§3729–3733, afford the Government no power to unilaterally dismiss a pending qui tam action after it has “decline[d] to take over the action” from the relator at its outset. §3730(b)(4)(B). Thus, I would vacate the judgment below and remand for the Third Circuit to consider the serious constitutional questions that may affect the disposition of the Government’s motion to dismiss petitioner’s qui tam suit. Because the Court instead affirms, I respectfully dissent.
I
The FCA provides that private parties known as relators may bring qui tam suits “for [themselves] and for the United States Government.” §3730(b)(1). It then sets out a reticulated scheme to govern the initiation of a qui tam suit, see §3730(b); the parties’ procedural rights during the suit, see §3730(c); and the rights of the parties to any proceeds at the end of the suit, see §3730(d). See also ante, at 2–6, 18–21. The main structural feature of this scheme is the so-called seal period: a window of time at the start of every FCA qui tam action during which the suit is on hold and the Government must “elect” whether “to intervene and ​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 ​the action” or not. First, paragraph (1) of subsection (c) (or, paragraph (c)(1)) provides: “If the Government proceeds with the action, it shall have the primary responsibility for prosecuting the action,” but the relator “shall have the right to continue as a party to the action, subject to [paragraph (c)(2)’s] limitations.” As used here, the phrase “proceeds with the action” naturally refers to the same seal-period choice for which §3730 uses the same phrase in paragraph (b)(2) and subparagraph (b)(4)(A). And the Government “hav[ing] the primary responsibility for prosecuting the action” appears synonymous with the Government “conduct[ing]” the action under subparagraph (b)(4)(A). See 3 Oxford English Dictionary 691 (2d ed. 1989) (defining “conduct” as “[t]o lead, command, direct, manage”).
By contrast, paragraph (c)(3) provides: “If the Government elects not to proceed with the action, the [relator] shall have the right to conduct the action.” The conditional clause of this sentence is a clear reference to the seal-period “elect[ion]” described in paragraph (b)(2). Likewise, the result clause plainly echoes “the right to conduct the action” referred to under subparagraph (b)(4)(B), which the relator acquires when the Government does not “proceed with the action” under subparagraph (b)(4)(A) at the end of the seal period.
In short, the initial clauses of paragraphs (c)(1) and (c)(3) track subparagraphs (b)(4)(A) and (b)(4)(B) and point back to the Government’s seal-period choice to “proceed with the action” or not. If the Government chooses to proceed with ​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 ante, at 10–13. 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 §§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 §§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 ante, at 11, and n. 3. 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 ​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 §§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 ante, at 12. 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), §§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 ​subsection (b),” the relator is usually entitled to between 15 and 25 percent of any recovery. §3730(d)(1). Conversely, “[i]f the Government does not proceed with [the] action,” the relator is entitled to 25 to 30 percent. §3730(d)(2). Given the majority’s view that intervention under paragraph (c)(3) counts as “proceed[ing] with the action,” it follows that even an eleventh-hour intervention by the Government would automatically shunt the relator out of paragraph (d)(2)’s more generous range and into paragraph (d)(1)’s less generous one. Surely, that result would qualify as “limiting the [relator’s] status and rights.” §3730(c)(3).
The majority bolsters its tenuous textual and structural case with an appeal to “the FCA’s Government-centered purposes.” Ante, at 12. But “every statute purposes, not only to achieve certain ends, but also to achieve them by particular means.” Freeman v. Quicken Loans, Inc., 566 U. S. 624, 637 (2012) (alteration and internal quotation marks omitted). And, while it is certainly the FCA’s ultimate goal to “redress injuries against the Government,” ante, at 12–13, its chosen means is to empower private parties to seek redress of those injuries through litigation that the Government does not necessarily control and might not have brought if left to its own devices. Allowing the relator to maintain the suit after the Government has declined its initial opportunity to take it over (even if only to dismiss it) is fully consistent with the FCA.
Indeed, the FCA’s history undermines the majority’s free-floating account of its “purposes.” As enacted in 1863, the original FCA contained no provision for the Government to intervene in a relator’s suit at all. See 12 Stat. 698. In 1943, Congress first gave the Government that opportunity by creating the 60-day seal period, which it set up to function as the very “on-off switch” the majority seems to consider implausible, ante, at 13: Either the Government intervened during the seal period and assumed sole control of ​the action, or it did not intervene and was permanently excluded from the action. See 57 Stat. 608–609. Finally, in 1986, Congress revamped the FCA into its modern form, under which (as never before) the Government and the relator can litigate side by side as co-plaintiffs in the same action. In creating this possibility, Congress tweaked both halves of the previous regime in roughly parallel ways. If the Government intervenes during the seal period, paragraphs (c)(1) and (c)(2) now permit the relator to remain a party and play a role in the litigation—but only a subordinate role. Conversely, if the Government does not intervene and proceed with the action during the seal period, it is not forever barred from taking a litigating role—but, if it intervenes later, it does not downgrade the relator’s “status and rights” to those of a second-chair litigant. §3730(c)(3).
In sum, the text, structure, and history of the FCA all point to the same conclusion. The FCA affords the Government no statutory right to unilaterally dismiss a declined action when it intervenes under §3730(c)(3).
II
However, the text and structure of the FCA are not the end of the story. Defendant-respondent has pointed to serious constitutional questions that might affect the disposition of the Government’s motion here. At the same time, it is not clear that the parties have examined these questions in their full complexity, and the Third Circuit’s reading of §3730(c) gave it no reason to do so. Therefore, after holding that the Government could not invoke the dismissal authority of §3730(c)(2)(A) as a statutory matter, I would remand this case for the Third Circuit to consider whether the Constitution nonetheless requires the dismissal of petitioner’s suit.
The FCA’s qui tam provisions have long inhabited something of a constitutional twilight zone. There are substantial arguments that the qui tam device is inconsistent with ​Article II and that private relators may not represent the interests of the United States in litigation. Because “[t]he entire ‘executive Power’ belongs to the President alone,” Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S. ___, ___ (2020) (slip op., at 11), it can only be exercised by the President and those acting under him, see id., at ___ (slip op., at 2) (Thomas, J., concurring in part and dissenting in part). And, as “[a] lawsuit is the ultimate remedy for a breach of the law,” the Court has held that “conducting civil litigation … for vindicating public rights” of the United States is an “executive functio[n]” that “may be discharged only by persons who are ‘Officers of the United States’ ” under the Appointments Clause, Art. II, §2, cl. 2. Buckley v. Valeo, 424 U. S. 1, 138–140 (1976) (per curiam) (some internal quotation marks omitted). A private relator under the FCA, however, is not “appointed as an officer of the United States” under Article II. Cochise Consultancy, Inc. v. United States ex rel. Hunt, 587 U. S. ___, ___ (2019) (slip op., at 8). It thus appears to follow that Congress cannot authorize a private relator to wield executive authority to represent the United States’ interests in civil litigation.
The potential inconsistency of qui tam suits with Article II has been noticed for decades. See, e.g., Riley v. St. Luke’s Episcopal Hospital, 252 F. 3d 749, 758–775 (CA5 2001) (en banc) (Smith, J., dissenting); J. Blanch, Note, The Constitutionality of the False Claims Act’s Qui Tam Provision, 16 Harv. J. L. & Pub. Pol’y 701, 736–767 (1993); Constitutionality of the Qui Tam Provisions of the False Claims Act, 13 Op. OLC 207, 221–224, 228–232 (1989). The primary counterargument has emphasized the long historical pedigree of qui tam suits, including the fact that the First Congress passed a handful of qui tam statutes. See, e.g., Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765, 801 (2000) (Stevens, J., dissenting); Riley, 252 F. 3d, at 752–753 (“[H]istory alone resolves … whether the qui tam provisions in the FCA violate Article II”). ​“Standing alone,” however, “historical patterns cannot justify contemporary violations of constitutional guarantees,” Marsh v. Chambers, 463 U. S. 783, 790 (1983), even when the practice in question “covers our entire national existence and indeed predates it,” Walz v. Tax Comm’n of City of New York, 397 U. S. 664, 678 (1970). Nor is enactment by the First Congress a guarantee of a statute’s constitutionality. See Marbury v. Madison, 1 Cranch 137 (1803). Finally, we should be especially careful not to overread the early history of federal qui tam statutes given that the Constitution’s creation of a separate Executive Branch coequal to the Legislature was a structural departure from the English system of parliamentary supremacy, from which many legal practices like qui tam were inherited. See S. Prakash, The Chief Prosecutor, 73 Geo. Wash. L. Rev. 521, 589 (2005) (noting that, for this reason, “we ought to be cautious about importing English constraints or exceptions to the executive power, when those limitations might be based on the principle of parliamentary supremacy”).
In short, there is good reason to suspect that Article II does not permit private relators to represent the United States’ interests in FCA suits. However, even if that is true, the follow-on implications may not be as straightforward as they appear at first glance. Under the FCA, the relator brings suit “for [himself]” as well as “for the United States Government.” §3730(b)(1) (emphasis added). In Stevens, we read this language “as effecting a partial assignment of the Government’s damages claim,” which provided “the theoretical justification” for our holding “that a qui tam relator under the FCA has Article III standing.” 529 U. S., at 773, 778. For that holding to make sense, it appears that this assignment must be effective no later than the point in time at which the Government declines to intervene in the seal period and the relator may proceed with the action as the only plaintiff in court.
​Under Stevens’ partial-assignment theory, it is not immediately clear that the Government may dismiss the relator’s interest in a qui tam suit, even assuming that the relator’s representation of the United States’ interest is unconstitutional. Whether the Government may do so may depend on the implicit conditions of the assignment; conceivably, it may also depend on whether the assignment is severable from the FCA’s attempt to vest the authority to represent the United States in litigation in a party outside the Executive Branch.
In examining these issues, moreover, it may be necessary to consider a question that Stevens left unaddressed: What is the source of Congress’ power to effect partial assignments of the United States’ damages claims? One candidate might be the Necessary and Proper Clause, Art. I, §8, cl. 18; but, if qui tam suits violate Article II, then it appears unlikely that any assignment effectuated by the FCA’s qui tam provisions could be considered “necessary and proper for carrying into Execution” any constitutional power. See Gonzales v. Raich, 545 U. S. 1, 60 (2005) (Thomas, J., dissenting) (“To act under the Necessary and Proper Clause,” “Congress must select a means” not “ ‘prohibited’ by the Constitution” or “inconsistent with ‘the letter and spirit of the Constitution’ ” (quoting McCulloch v. Maryland, 4 Wheat. 316, 421 (1819); alteration omitted)). Alternatively, such assignments might rely at least partly on the Property Clause, which empowers Congress “to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States,” and which may include the power to assign claims for damages as “other Property.” Art. IV, §3, cl. 2; see also D. Engdahl, The Basis of the Spending Power, 18 Seattle U. L. Rev. 215, 256–257 (1995) (“The Article IV Property Clause is most familiar, of course, in its application to landed property, … but it has been recognized as applying to personal property as well”).
​In any event, these are complex questions, which I would leave for the parties and the court below to consider after resolving the statutory issues that have been the focus of this case up to now. Therefore, I would vacate the judgment below granting the Government’s motion to dismiss and remand for the Third Circuit to consider the correct disposition of that motion in light of any applicable constitutional requirements.
* ↑ The remainder of paragraphs (c)(1) and (c)(2) largely describe the contours of the Government’s primary responsibility vis-à-vis the relator’s circumscribed litigation rights. I agree with the Court’s holding that paragraph (c)(2) is clearly subordinate to paragraph (c)(1). See ante, at 8–10.
* ↑ One other provision of the FCA refers to the Government “making an election under section 3730(b),” which likewise clearly signifies the seal-period decision. 31 U. S. C. §3733(a)(1).
* ↑ For two reasons, the fact that my reading of §3730 would require confronting these constitutional questions in this case does not counsel in favor of a different interpretation. First, principles of constitutional avoidance can operate only “in the choice of fair alternatives,” not when the text and structure of a statute point to a clear answer. United States v. Rumely, 345 U. S. 41, 45 (1953); see also Skilling v. United States, 561 U. S. 358, 423 (2010) (Scalia, J., concurring in part and concurring in judgment). Second, the force of constitutional-avoidance principles is inherently limited where, as here, the choice of interpretations is tangential to the constitutional questions at stake. On any interpretation, the FCA purports to authorize private parties to represent the United States in litigation. That basic feature of the qui tam device must be the core of any Article II objection to the FCA. If it is constitutionally problematic, then the majority’s interpretation of the FCA does not cure the problem; on the other hand, if qui tam is constitutional, then there is no constitutional problem to avoid.