PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 19-3810

__________

JESSE POLANSKY, M.D., M.P.H.; 

THE STATE OF CALIFORNIA, THE STATE OF COLORADO, THE STATE OF CONNECTICUT, THE STATE OF 

DELAWARE, THE DISTRICT OF COLUMBIA, THE 

STATE OF FLORIDA,THE STATE OF GEORGIA, THE 

STATE OF HAWAII, THE STATE OF ILLINOIS, THE 

STATE OF INDIANA, THE STATE OF IOWA, THE 

STATE OF LOUISIANA,THE STATE OF MARYLAND, 

THE COMMONWEALTH OF MASSACHUSETTS, THE 

STATE OF MICHIGAN, THE STATE OF MINNESOTA, 

THE STATE OF MONTANA, THE STATE OF NEVADA,THE STATE OF NEW JERSEY, THE STATE OF 

NEW MEXICO, THE STATE OF NEW YORK, THE 

STATE OF NORTH CAROLINA, THE STATE OF OKLAHOMA, THE STATE OF RHODE ISLAND, THE STATE 

OF TENNESSEE,THE STATE OF TEXAS, THE COMMONWEALTH OF VIRGINIA, THE STATE OF WASHINGTON, and THE STATE OF WISCONSIN

v.

EXECUTIVE HEALTH RESOURCES INC; 

UNITEDHEALTH GROUP INC; 

UNITED HEALTHCARE SERVICES INC; OPTUM INC; 

OPTUMINSIGHT INC; 

OPTUMINSIGHT HOLDINGS LLC; 

COMMUNITY HOSPITAL OF THE 

MONTEREY PENINSULA; 

YALE NEW HAVEN HOSPITAL
2

UNITED STATES OF AMERICA

Jesse Polansky, M.D., M.P.H.,

Appellant.

__________

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania

(D.C. No. 2-12-cv-04239)

Honorable Michael M. Baylson, U.S. District Judge

__________

Argued November 18, 2020

Before: JORDAN, KRAUSE, and RESTREPO, Circuit 

Judges

(Filed: October 28, 2021)

Nicholas C. Carullo

Stephen L. Shackelford, Jr.

Susman Godfrey

1301 Avenue of the Americas – 32nd Fl.

New York, NY 10019

Daniel L. Geyser [ARGUED]

Haynes & Boone

2323 Victory Avenue – Ste. 700

Dallas, TX 75219

William T. Jacks

Fish & Richardson 

111 Congress Avenue – Ste. 810

Austin, TX 78701

 Counsel for Appellant

Tejinder Singh

Goldstein & Russell

7475 Wisconsin Avenue – Ste. 850
3

Bethesda, MD 20814

Counsel for Amicus Appellant 

Taxpayers Against Fraud Education Fund

Ned I. Miltenberg

National Legal Scholars Law Firm

5410 Mohican Road – Ste. 200

Bethesda, MD 20816

Counsel for Amicus Appellants Erwin Chemerinsky,

National Whistleblowers Center, and

Project on Government Oversight

Ethan M. Posner [ARGUED]

Christopher M. Denig

Matthew F. Dunn

Michael M. Maya

Krysten R. Moller

Covington & Burling

850 10th Street, NW

One City Center

Washington, DC 20001

Abigail A. Hazlett

Tracy Rhodes

Robin P. Sumner

Troutman Pepper Hamilton Sanders

3000 Two Logan Square – Ste. 1250

18th and Arch Streets

Philadelphia, PA 19103

Counsel for Appellee Executive Health Resources Inc. 

Jeffrey B. Clark [ARGUED]

United States Department of Justice

Environment & Natural Resources Division

950 Pennsylvania Avenue, NW

Washington, DC 20530

Stephanie R. Marcus

United States Department of Justice
4

Civil Division

950 Pennsylvania Avenue, NW – Rm. 7642

Washington, DC 20530

Charles W. Scarborough

United States Department of Justice

Appellate Section 

950 Pennsylvania Avenue, NW – Rm. 7244

Washington, DC 20530

Counsel for Appellee United States of America

Jeffrey S. Bucholtz

Jeremy M. Bylund

King & Spalding

1700 Pennsylvania Avenue, NW – Ste. 200

Washington, DC 20006

Counsel for Amicus Appellee

Chamber of Commerce of the United States of America

__________

OPINION OF THE COURT

__________

KRAUSE, Circuit Judge.

The False Claims Act (FCA), 31 U.S.C. § 3729, et seq., 

empowers not just the federal government, but also private individuals, to bring claims for fraud on the United States and to 

do so in the Government’s name in exchange for a share of the 

proceeds. These individuals, known as relators, are generally 

on the same side as the Government, which has the option early 

on to either intervene or allow the relator to move forward with 

the action on her own. But what authority does the Government have when it declined to intervene at the outset and subsequently opposes the relator’s suit?

To answer, we must resolve two key questions that have 

divided our sister circuits: (1) whether the Government in that 
5

situation can move for dismissal without first intervening, and 

(2) if the Government properly moves for dismissal, what, if 

any, standard must it meet for its motion to be granted? For 

the reasons that follow, we conclude that the Government is 

required to intervene before moving to dismiss and that its motion must meet the standard of Federal Rule of Civil Procedure 

41(a). Because we also conclude that the District Court here 

acted within its discretion in granting such a motion by the 

Government, we will affirm the Court’s order of dismissal.

I. BACKGROUND

A. Factual Background

The False Claims Act has its roots in the Civil War,

when “a series of sensational congressional investigations” uncovered widespread fraud by wartime contractors that had 

bilked the federal government by charging for “nonexistent or 

worthless goods.” United States v. McNinch, 356 U.S. 595, 

599 (1958). In response, Congress not only prohibited the 

making of false claims to the Government, 31 U.S.C. 

§ 3729(a)(1), and empowered the United States to seek civil 

remedies, id. § 3730(a); it also legislated a private enforcement 

mechanism, not unlike the bounty hunting common in the

rough-and-tumble world of the mid-nineteenth century. That 

is, the statute permits private individuals, acting in the name of 

the Government, to assert FCA claims “for the person and for 

the United States Government.” Id. § 3730(b)(1). These relator-initiated lawsuits, known as qui tam actions, effectively 

deputize citizens to act as private attorneys general, compensated with a share of the money recovered.1

 See id. § 3730(d).

1 Qui tam is short for “qui tam pro domino rege quam 

pro se imposo sequitur,” which means, roughly, “who brings 

the action as well for the king as for himself.” United States 

ex rel. Kelly v. Boeing Co., 9 F.3d 743, 746 n.3 (9th Cir. 1993). 

A relator, acting in this capacity, can receive up to 30 percent

of the funds recovered. 31 U.S.C. § 3730(d)(1)-(2).
6

This case involves such a qui tam action. Relator-Appellant Dr. Jesse Polansky was an official at the Centers for 

Medicare and Medicaid Services (CMS) before consulting for 

Defendant-Appellee EHR, a “physician advisor” company that 

provides review and billing certification services to hospitals 

and physicians that bill Medicare.2 While employed as a consultant, Polansky became concerned that EHR was systematically enabling its client hospitals to over-admit patients by certifying inpatient services that should have been provided on an 

outpatient basis. As alleged in the complaint he eventually 

filed in the District Court, EHR was causing hospitals to bill

the Government for inpatient stays that were not “reasonable 

and necessary” for diagnosis or treatment—a statutory requirement for reimbursement under the Government’s Medicare

program, 42 U.S.C. § 1395y(a)(1)(A), as explicated by CMS 

initially in guidance, and as of 2013, in a formal regulation, see

42 C.F.R. § 412.3(d)(1). From at least 2006 until the filing of 

his amended complaint in 2019, he alleged, EHR’s certifications were false and caused the submission of false claims to 

the Government. 

B. Procedural History

In 2012, on the basis of those allegations, Polansky filed 

this FCA action. His complaint remained in camera and under 

seal for the next two years while the Government conducted its 

own investigation and ultimately determined it would not participate in the case. Under the FCA, “[i]f the Government 

elects not to proceed with the action, the person who initiated 

the action shall have the right to conduct the action.” 31 U.S.C. 

§ 3730(c)(3). So at that point, the complaint was unsealed and 

Polansky, “for [himself] and for the United States Government,” continued as plaintiff. Id. § 3730(b)(1). 

2 Healthcare providers retain EHR to perform a second 

level of review of a doctor’s initial inpatient/outpatient assessment. Specifically, EHR reviews determinations that patients 

do not qualify for inpatient status under the relevant criteria. 
7

Over the next several years, the parties and the District 

Court invested considerable time and resources in the case. 

Once EHR’s motion to dismiss was denied,3the District Court 

divided the case into two segments for case-management purposes: “Phase I” claims, covering EHR’s certifications from 

2009 to October 1, 2013, and “Phase II” claims, covering its 

certifications after October 1, 2013, the date that CMS’s formal 

regulation went into effect. Because the complaint implicated 

hundreds of thousands of allegedly false claims, the District 

Court also decided to select a small number for a bellwether 

trial where “the jury would answer interrogatories,” and the 

Court would then “enter judgment on all other claims encompassed by the jury verdict.” Polansky v. Exec. Health Res., 

Inc., 422 F. Supp. 3d 916, 919 (E.D. Pa. 2019). In anticipation 

of that trial, the Court designed a procedure for selecting the 

bellwether claims and appointed a special master, and the parties commenced discovery, focused on Phase I claims.

In February 2019, however, the case took an unexpected 

turn: The Government notified the parties that it intended to 

dismiss the entire action pursuant to 31 U.S.C. § 3730(c). Under paragraph (c)(1) of that section, a relator’s ability to continue a suit he initiated is limited in various ways “[i]f the Government proceeds with the action.” Those limits are spelled in 

out in paragraph (c)(2), including that “[t]he Government may 

dismiss the action notwithstanding the objections of the [relator]” so long as the relator receives notice and an opportunity 

to be heard on the Government’s motion. 31 U.S.C. 

§ 3730(c)(2)(A). Here, although the Government had originally opted not to proceed with the action and had not formally

3 Polansky originally brought state claims against EHR, 

its corporate parents, and certain of its client hospitals under a 

number of states’ FCA-equivalents. Eventually, however, he 

voluntarily withdrew a number of those claims, and the District 

Court dismissed the remainder against all defendants except 

EHR. The litigation that ensued therefore focused only on the 

FCA claims against EHR.
8

intervened, it pointed to § 3730(c)(2)(A) as the source of its 

authority to dismiss the case over Polansky’s objection.

The Court stayed the proceedings while the parties negotiated with the Government. Initially, the Government acceded to Polansky’s request not to dismiss his case in exchange 

for his filing of an amended complaint that substantially narrowed the scope of his Phase I claims. But the Government 

also reserved the right to reconsider, and a few months later, in 

August 2019, it invoked that right, and filed a motion to dismiss pursuant to § 3730(c)(2)(A). The District Court accepted 

that filing and, following briefing and argument, granted the 

Government’s motion.4 It recognized the circuit split on the 

issue of what standard applies to a § 3730(c)(2)(A) dismissal,

but because it concluded that the Government had made an adequate showing under any of the prevailing standards, it declined to weigh in. That task now falls to us.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction pursuant to 31 

U.S.C. § 3732(a) and 28 U.S.C. § 1331, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review 

4 At the conclusion of the hearing on the motion to dismiss, the District Court sua sponte raised the question of summary judgment pursuant to Federal Rule of Civil Procedure 

56(f). In granting dismissal, the Court also granted partial 

summary judgment “independent of dismissal based on the 

Government’s motion” against Polansky on his Phase I claims. 

JA 41. Because we will affirm the order of dismissal, we have 

no occasion to reach that ruling. And because the District 

Court first granted the motion to dismiss, Polansky’s claims 

were fully disposed of, and the Court did not need to reach 

summary judgment. We will therefore vacate the District 

Court’s opinion and order insofar as it addressed summary 

judgment.
9

over a district court’s interpretation of a federal statute. See

United States v. Hodge, 948 F.3d 160, 162 (3d Cir. 2020) (citation omitted).

III. DISCUSSION

Polansky challenges the District Court’s dismissal on 

the ground that the Government lacked statutory authority to 

move to dismiss in the first place. He also contends that, if the 

Government did have that authority, its motion should have 

been denied on the merits under the applicable standard. 

We address these arguments in three parts. We consider, first, whether the FCA requires the Government to intervene in order to seek dismissal pursuant to § 3730(c)(2)(A)—

either at the first opportunity, 31 U.S.C. §3730(c)(1), or “at a

later date upon a showing of good cause,” id. § 3730(c)(3). We 

next address the standard governing such motions. And finally, we discuss the consequences of these holdings for the 

District Court’s order of dismissal in this case.5

5 Amici Dean Erwin Chemerinsky, the National Whistleblower Center, and the Project on Government Oversight 

(Chemerinsky Amici) argue that, even if the Government’s dismissal was proper as a statutory matter, it amounted to an uncompensated taking of Polansky’s property interest in the action in violation of the Takings Clause. See U.S. Const., 

amend. V, cl. 5. The thrust of this argument is that relators 

create a property interest by investing resources in their qui tam

actions, and that the retroactive application to them of DOJ’s 

2018 guidance—reversing the Government’s decades-long 

hands-off policy toward relator-prosecuted suits—would effect an unconstitutional taking. While the idea that a relator 

can obtain a property interest in a qui tam action is open to 

doubt, we need not address the argument because the Chemerinsky Amici are the only ones advancing it, and we generally 

avoid considering arguments raised solely in amicus briefs 

“where[, as here,] the parties are competently represented by 

counsel.” New Jersey Retail Merchs. Ass’n v. Sidamon-
10

A. The Government’s Authority to Seek Dismissal under the FCA

We begin with the first of the questions in this area that 

have divided the Courts of Appeals: whether, and in what circumstances, the Government retains statutory authority to 

move to dismiss an FCA action, pursuant to 31 U.S.C. 

§ 3730(c)(2)(A), if it opted not to proceed at the outset6and 

allowed the relator to move forward “for the [relator] and for

the United States Government.”7 31 U.S.C. § 3730(b)(1). The 

Eristoff, 669 F.3d 374, 382 n.2 (3d Cir. 2012) (quoting Universal City Studios, Inc. v. Corley, 273 F.3d 429, 445 (2d Cir. 

2001)).

6 An FCA action initiated by a relator is initially filed in 

camera and under seal and served upon the Government. 31 

U.S.C. § 3730(b)(2). The Government then has 60 days, extendable “for good cause shown,” to investigate the claims for 

itself and to decide whether to “intervene and proceed with action,” id. § 3730(b)(2), (3). If it declines the case, the relator 

has the option of continuing the case alone, and if the relator

does, the complaint is unsealed, is served on the defendant, and 

the case proceeds as an otherwise-typical civil action. Id.

§ 3730(b)(4)(B); United States ex rel. Int’l Bhd. of Elec. Workers Local Union No. 98 v. Farfield Co., 5 F.4th 315, 336 (3d 

Cir. 2021).

7 As a threshold matter, Appellees object that this argument was not raised before the District Court, and “arguments 

raised for the first time on appeal are not properly preserved 

for appellate review.” Simko v. U.S. Steel Corp., 992 F.3d 198, 

205 (3d Cir. 2021). But where, as here, the failure to preserve 

an argument was in the nature of an “inadvertent failure to raise 

an argument,” or forfeiture, “we will reach a pure question of 

law even if not raised below where refusal to reach the issue 

would result in a miscarriage of justice or where the issue’s 

resolution is of public importance.” Barna v. Bd. of Sch. Dirs. 

of Panther Valley Sch. Dist., 877 F.3d 136, 147 (3d Cir. 2017) 

(internal quotation marks omitted). That is the case here. 
11

answer turns on the interrelationship among the subsections of 

§ 3730(c). So we begin with the text and structure of the statute, and then consider the relevant canons of statutory construction.

Section 3730(c) sets forth the rights and relationship of

the Government and relator through the life of an FCA action. 

Because our analysis turns on the language and structure of the 

statute, we excerpt its relevant provisions below:

(1) If the Government proceeds with the action . . . [the 

relator] shall have the right to continue as a party to the 

action, subject to the limitations set forth in paragraph 

(2). 

(2)(A) The Government may dismiss the action notwithstanding the objections of the [relator] if the [relator] has . . . [notice and] an opportunity for a hearing[.]

(B) The Government may settle the action with the defendant notwithstanding the objections of the [relator] if 

the court determines . . . the proposed settlement is fair,

adequate, and reasonable . . . . 

(C) Upon a showing by the Government that [the relator’s] unrestricted participation . . . would interfere with 

or unduly delay the Government’s prosecution of the 

case . . . the court may, in its discretion, impose limitations on the [relator’s] participation . . . .

Whether the FCA permits the Government to dismiss a relator’s action that it previously declined is a pure question of statutory interpretation; the district courts would benefit from 

guidance on a question that has divided the Courts of Appeals, 

see infra n.8; and resolving this question is logically antecedent 

to the question before us: the standard that applies when the 

Government seeks dismissal. We therefore exercise our discretion to excuse Polansky’s forfeiture. 
12

(D) Upon a showing by the defendant that [the relator’s] unrestricted participation . . . would cause the defendant undue burden or unnecessary expense, the court 

may limit the [relator’s] participation . . . .

(3) If the Government elects not to proceed with the 

action, the [relator] shall have the right to conduct the 

action. . . . 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.

(4) Whether or not the Government proceeds with the 

action, [it may seek a stay of the relator’s discovery that] 

would interfere with [a Government investigation] . . . .

31 U.S.C. § 3730(c). 

The scope of the Government’s dismissal authority in 

this context has engendered significant debate. The parties’ 

positions track a split among our sister circuits.8 The 

8 Compare United States ex rel. CIMZNHCA, LLC v. 

UCB, Inc., 970 F.3d 835, 844 (7th Cir. 2020) (interpreting the 

FCA to require intervention upon a showing of good cause before the Government can move to dismiss a relator’s case under 

§ 3730(c)(2)(A)), and United States ex rel. Poteet v. Medtronic, Inc., 552 F.3d 503, 519-20 (6th Cir. 2009) (concluding 

§ 3730(c)(2)(A) “applies only when the government has decided to ‘proceed[] with the action’” (quoting § 3730(c)(1))), 

abrogated on other grounds by United States ex rel. Rahimi v. 

Rite Aid Corp., 3 F.4th 813 (6th Cir. 2021), with Ridenour v. 

Kaiser-Hill Co., 397 F.3d 925, 934-35 (10th Cir. 2005) (holding the Government “is not required to intervene . . . before 

moving to dismiss the action under § 3730(c)(2)(A)”), Swift v. 

United States, 318 F.3d 250, 252 (D.C. Cir. 2003) (reaching 

the same conclusion), and United States ex rel. Sequoia Orange Co. v. Baird-Neece Packing Corp., 151 F.3d 1139, 1145 

(9th Cir. 1998) (suggesting the same understanding).
13

Government and EHR (collectively, “Appellees”) ask us to follow the D.C., Ninth, and Tenth Circuits in reading this provision as a standalone grant of dismissal authority that empowers 

the Government to move for dismissal of the relator’s action at 

any point in the litigation and regardless of whether it has intervened.

9

 Polansky, on the other hand, presses the view of the 

Sixth and Seventh Circuits that Congress authorized the Government to move for dismissal under § 3730(c)(2)(A) only 

when it “proceeds with the action.” 31 U.S.C. § 3730(c)(1). 

Polansky would also have us go further, to hold that the Government has that authority only if it intervenes at the outset and,

having declined to do so, it is powerless to seek dismissal even 

if it subsequently intervenes. 

“[B]ear[ing] in mind the fundamental canon of statutory 

construction that the words of a statute must be read in their 

context and with a view to their place in the overall statutory 

scheme,” Mejia-Castanon v. Att’y Gen., 931 F.3d 224, 233-34 

9 To the extent Appellees postulate that we resolved this 

question in Chang v. Children’s Advocacy Center of Delaware,

938 F.3d 384 (3d Cir. 2019), they are mistaken. The question 

there was whether § 3730(c)(2)(A)’s requirement for “an opportunity for a hearing on the motion” meant an in-person hearing in every case, which we held it did not, id. at 388. After 

explaining by way of background that the Government could

intervene in a relator’s case at the outset or allow the relator to

proceed alone, id. at 386, we observed that “even under the latter scenario, the government may still ‘dismiss the action’”

pursuant to § 3730(c)(2)(A). Id. (quoting 31 U.S.C. 

§ 3730(c)(2)(A)). But that passing statement cannot bear the 

weight Appellees would place on it. We offered no opinion 

one way or the other as to whether the Government was required to intervene before seeking dismissal in that “latter scenario,” nor were we called upon to do so. “Questions which 

merely lurk in the record, neither brought to the attention of the 

court nor ruled upon, are not to be considered as having been 

so decided as to constitute precedents.” Grant v. Shalala, 989 

F.2d 1332, 1341 (3d Cir. 1993) (quoting Webster v. Fall, 266 

U.S. 507, 511 (1925)).
14

(3d Cir. 2019) (quoting King v. Burwell, 576 U.S. 473, 492

(2015)), we conclude Congress intended the reading adopted 

by the Sixth and Seventh Circuits, i.e., under § 3730(c), the 

Government must intervene before it can move to dismiss, but 

it can seek leave to intervene at any point in the litigation upon 

a showing of good cause. Considered in context, § 3730(c)(2) 

is not, as Appellees would have it, a standalone provision that 

grants the Government unconditional authority to seek dismissal as a non-party. That authority is granted as a “limitation[]” 

of the relator’s rights in the first paragraph “if”—and only if—

“the Government proceeds with the action.” 31 U.S.C. 

§ 3730(c)(1). “If the Government elects not to proceed with 

the action,” on the other hand, then the relator “shall have the 

right to conduct the action,” unencumbered by the “limitations” in subparagraph (c)(2)(A) through (c)(2)(D) on that right

that paragraph (c)(2) would otherwise impose. Id.

§ 3730(c)(3).

To this, Appellees object that those limitations are not 

nestled under paragraph (c)(1), as one might expect if they 

were contingent on “the Government proceed[ing] with the action.” Id. § 3730(c)(1). Rather, they are set forth in paragraph 

(c)(2), a separately numbered paragraph, on par with and not 

structurally subordinate to paragraph (c)(1).

10

 But Appellees’ 

argument is belied by the context of the “surrounding words 

and provisions” of statutory language. G.L. v. Ligonier Valley 

Sch. Dist. Auth., 802 F.3d 601, 617 (3d Cir. 2015) (citation

omitted). Here, the “surrounding . . . provisions” are the other 

10 The D.C. Circuit relied on this reasoning to conclude

that the Government can seek dismissal regardless of whether 

it proceeds with the action. Swift, 381 F.3d at 251-52 (emphasizing that § 3730(c)(2) is neither “a subsection of 

§ 3730(c)(1)” nor does it “contain language stating that it is 

applicable only in the context of § 3730(c)(1)”). But the observation that § 3730(c)(2) is not a subsection of § 3730(c)(1), 

while “true as a typographic matter,” misses “how the five paragraphs of subsection (c) relate to one another in text and 

logic.” CIMZNHCA, 970 F.3d at 845.
15

subparagraphs in § 3730(c)(2) that only make sense if the Government is a party in the case. Subparagraph (c)(2)(C), for example, enables the Government to limit a relator’s ability to 

call and examine witnesses where it “would interfere with or 

unduly delay the Government’s prosecution of the case,” 31 

U.S.C. § 3730(c)(2)(C), a provision that by its terms identifies 

the Government as a party. Subparagraph (D) grants FCA defendants a similar power to limit the relator’s participation in 

the litigation “[u]pon a showing . . . that [such] participation . . . would be for purposes of harassment or would cause 

the defendant undue burden or unnecessary expense,” id.

§ 3730(c)(2)(D). But this provision, too, assumes the Government is prosecuting the case because “[o]bviously a defendant 

cannot ‘restrict the participation’ of its sole adversary in a lawsuit.” United States ex rel. CIMZNHCA, LLC v. UCB, Inc., 

970 F.3d 835, 845 (7th Cir. 2020).

That § 3730(c)(2)(A) is conditioned on the Government 

proceeding under paragraph (c)(1) is also apparent from another canon of statutory construction: We must “[a]ssum[e]

that every word in a statute has meaning” and “avoid interpreting part of a statute so as to render another part superfluous.” 

Allen ex rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364, 367 

(3d Cir. 2011). Yet, if we were we to conclude, as the D.C., 

Ninth, and Tenth Circuits do, that the Government can move 

to dismiss a relator’s case whether or not it “proceeds with the 

action,” 31 U.S.C § 3730(c)(1), it would render at least two 

provisions superfluous: The qualifier in paragraph (c)(1) that a 

relator’s rights are “subject to the limitations set forth in paragraph (2)” when the Government “proceeds with the action,” 

id., would be unnecessary because relators would always be 

subject to those limitations, regardless of whether the Government “proceeds,” id.; and paragraph (c)(4)’s description of actions the Government may take “[w]hether or not [it] proceeds 

with the action” would be surplusage if every provision of paragraph (2) applied “whether or not” the Government intervened. Id. § 3730(c)(4).
16

Though we reject Appellee’s interpretation as failing to 

read the paragraphs of § 3730(c) as “a symmetrical and coherent regulatory scheme . . . [and] an harmonious whole,” Si Min 

Cen v. Att’y Gen., 825 F.3d 177, 192 (3d Cir. 2016) (quoting 

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 

133 (2000) (internal quotations omitted)), neither can we accept Polansky’s reading that the Government may seek dismissal only if it intervened at the first opportunity. Polansky

grounds that reading in the Supreme Court’s description of the 

relator’s “right to conduct the action” if “the Government 

elects not to proceed with it,” id. § 3730(c)(3), as “exclusive,” 

Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 

U.S. 765, 769 (2000)), combined with paragraph (c)(3)’s qualification that, if the Government seeks leave to intervene once 

the suit is already underway, it must do so “without limiting 

the status and rights of the [relator].” 31 U.S.C. § 3730(c)(3). 

Because involuntary dismissal would “limit[]” the relator’s 

“exclusive” right to conduct the action, Polansky contends, the 

Government intervenes pursuant to § 3730(c)(3) without the 

authority it originally had to seek dismissal under 

§ 3730(c)(2)(A). 

Both of Polansky’s premises are flawed. First, nothing 

in Stevens compels such a reading. The Court used “exclusive” 

to mean that only the relator, as opposed to any other private 

individual, could proceed with an FCA action after the Government declines it, which the statute explicitly states in another section.11

 See 31 U.S.C. § 3730(b)(5); Stevens, 529 U.S. 

11 The Stevens Court held, among other things, that qui 

tam relators have Article III standing because the FCA partially 

assigns the United States’s claims to them. 529 U.S. at 773-

74. The word “exclusive” appears only in the Supreme Court’s 

background explanation of the FCA’s framework which, in 

context, reads: “[i]f the Government declines to intervene 

within the 60–day period, the relator has the exclusive right to 

conduct the action, and the Government may subsequently intervene only on a showing of ‘good cause.’” Id. at 769 (emphasis added) (citing 31 U.S.C. § 3730(b)(4), (c)(3)).
17

at 769. It nowhere suggests that the relator’s right to control 

the action is exclusive vis-a-vis the Government. Second, had 

Congress intended so draconian a consequence as to strip the 

Government of all ability to terminate a case brought in its 

name, it would not have obscured it in a clause preserving the 

“status and rights of the [relator].” 31 U.S.C. § 3730(c)(3). 

Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does 

not, one might say, hide elephants in mouseholes.” Whitman 

v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001). 

Indeed, if anything the language of paragraph (c)(3) cuts 

the other way, for the statutory rights that the relator retains 

upon the Government’s intervention can be no more or less 

than those originally vested by the FCA: “the right to continue 

as a party to the action, subject to the limitations set forth in 

paragraph (2),” 31 U.S.C. § 3730(c)(1), i.e., subject to the Government’s ability to seek dismissal pursuant to paragraph 

(c)(2)(A). In other words, we read § 3730(c) as a whole, as do 

the Sixth and Seventh Circuits, to mean that: “[I]f the Government elects not to proceed,” the relator conducts the action; the 

Government may “intervene at a later date upon a showing of 

good cause;” and the relator then retains the same status and 

rights as if the Government originally intervened. Id. 

§ 3730(c)(3). Those rights include the right to continue as a 

party, but “subject to the limitations set forth in paragraph (2).”

Id. § 3730(c)(1). And under paragraph (c)(2) the Government 

may seek involuntary dismissal against the relator, but the relator must be provided notice and an opportunity to be heard. 

Id. § 3730(c)(2)(A).

In opposition to that reading, Appellees invoke one last 

canon of construction: constitutional avoidance. They argue 

that interpreting the statute to make intervention a prerequisite 

to moving to dismiss would compromise the Government’s 

ability to control litigation brought in its name and thereby 

“place the FCA on constitutionally unsteady ground.” Ridenour v. Kaiser-Hill Co., 397 F.3d 925, 934 (10th Cir. 2005). 

Specifically, they contend, it risks violating the separation of 
18

powers embodied in the Take Care Clause, which entrusts the 

Executive Branch with the duty to “take Care that the Laws be 

faithfully executed.” U.S. Const., art. II, § 3; see Seila Law 

LLC v. CFPB, 140 S. Ct. 2183, 2205 (2020) (recognizing that, 

although there is no “separation of powers clause,” “[this] 

foundational doctrine[] [is] instead evident from the Constitution’s vesting of certain powers in certain bodies,” among them 

“Article II’s vesting of the ‘executive Power’ in the President”). As a result, they urge that we eschew any requirement 

of intervention to avoid “grave doubts” to the statute’s constitutionality. United States v. Palomar-Santiago, 141 S. Ct. 

1615, 1622 (2021).

We recognize that the Tenth Circuit found this argument persuasive, see Ridenour, 397 F.3d at 934-35, but we do 

not see genuine constitutional doubts to avoid. As the Seventh 

Circuit also concluded, showing “good cause” is neither a burdensome nor unfamiliar obligation. See CIMZNHCA, 970 F.3d 

at 848-49. It is a “uniquely flexible and capacious concept,” 

meaning simply a “legally sufficient reason,” id. at 846 (quoting Good Cause, s.v. Cause, Black’s Law Dictionary 101 (4th 

pocket ed. 2011)), and it is a standard the Government routinely satisfies to extend its time to investigate the relator’s 

case under § 3730(b)(3). See 31 U.S.C. § 3730(b)(3) (allowing 

Government to extend the time it has to decide whether to proceed with the action upon “good cause shown”); see also CIMZNHCA, 970 F.3d at 848 (observing that even in actual criminal cases, “the government must have ‘leave of court’ to dismiss the prosecution” once it is underway). And, of course, as 

the Seventh Circuit also noted, “avoiding offense to the separation of powers in a case that actually risks it would itself 

weigh heavily in any ‘good cause’ determination,” id. at 847, 

providing an adequate forum to vindicate the prerogatives of 

the Executive Branch.12

12 We also note the long history of qui tam actions in 

Anglo-American jurisprudence, which were a common feature 

of the legal landscape at the time of the founding. See Stevens, 

529 U.S. at 774-77 (recounting the history of qui tam actions 
19

In sum, while we respect the contrary view of some our 

sister Circuits, we agree with the Seventh Circuit that the text 

and structure of § 3730(c), as well as settled canons of statutory 

interpretation, require the Government to intervene pursuant to 

paragraph (c)(3), before it can exercise its authority to seek dismissal pursuant to paragraph (c)(2)(A). Once it has intervened

as a party, the Government is then “proceed[ing] with the action” under paragraph (c)(1); the rights of the relator are 

“limit[ed]” accordingly under paragraph (c)(2); and the Government can seek an involuntary dismissal of the relator’s action. 

B. The Applicable Standard

We next consider the standard applicable to the Government’s motion. Is the Government automatically entitled to 

dismissal, or does that decision lie in the District Court’s discretion? Or in practical terms, is the “opportunity for a hearing 

on the motion” in § 3730(c)(2)(A) merely a forum for the relator to attempt to “convince the [G]overnment not to end the 

in both England and at the time of the founding); Marvin v. 

Trout, 199 U.S. 212, 225 (1905) (noting that qui tam statutes 

were “in existence for hundreds of years in England, and in this 

country ever since the foundation of our government”); Adams 

v. Woods, 6 U.S. (2 Cranch) 336, 341 (1805) (Marshall, C.J.) 

(“Almost every fine or forfeiture under a penal statute, may be 

recovered by an action of debt [qui tam].”); 3 William Blackstone, Commentaries *160 (relating that forfeitures created by 

penal statutes “more usually . . . are given at large, to any common informer; or . . . to the people in general . . . . [I]f any one 

hath begun a qui tam, or popular, action, no other person can 

pursue it; and the verdict passed upon the defendant . . . is . . . 

conclusive even to the king himself.”). These deep historical 

roots suggest that, even if the “good cause” standard reduces 

the Government’s degree of control over a relator’s suit, such 

a lack of direct control was not considered an unconstitutional

flaw at the founding.
20

case,” as the Government argues, Gov’t Br. 28, or is it an adversarial hearing to inform the District Court’s ruling on the 

Government’s motion? 

This issue, too, has divided the Courts of Appeals, see

Chang v. Children’s Advocacy Center of Delaware, 938 F.3d 

384, 387 (3d Cir. 2019), which have taken three paths.

13

 While 

the D.C. Circuit agrees with the Government that it has an “unfettered right” to dismiss, see Swift v. United States, 318 F.3d

250, 252 (D.C. Cir. 2003), and the Ninth and Tenth Circuits 

hold it to a “rational relation” standard drawn from substantive 

due process jurisprudence, see United States ex rel. Sequoia

Orange Co. v. Baird-Neece Packing Corp., 151 F.3d 1139,

1145-46 (9th Cir. 1998); Ridenour, 397 F.3d at 936, the Seventh Circuit simply applies the Federal Rules of Civil Procedure as it would to any party, see CIMZNHCA, 970 F.3d at 849-

50. Today we wade into the fray, again siding with the Seventh 

Circuit. 

Below, we discuss the standard we adopt, and then explain why we decline to follow the competing views offered by 

our sister Circuits. 

13 Amicus Taxpayers Against Fraud Education Fund 

(TAFEF) suggests a fourth answer—in its view, the Government “must show that dismissal is reasonable in light of all of 

the circumstances.” TAFEF Br. 16. It argues that the legislative history behind Congress’s 1986 amendments strengthening the qui tam provisions demonstrates that Congress intended 

courts to scrutinize Government motions for reasonableness. 

In particular, it points to a draft provision that allowed the relator to object to dismissal by the Government and to request a 

hearing on a number of grounds, among them that “the settlement or dismissal is unreasonable in light of existing evidence.” Id. at 5 (quoting S. Rep. No. 99-345, at 26 (1986)). 

But this version of the statute was not the one ultimately enacted, and we are bound to interpret the language that Congress 

actually used.
21

1. The Standard We Adopt

The standard applicable to the Government’s motion to 

dismiss follows logically from the FCA’s request that the Government intervene before seeking dismissal. Having intervened, the Government becomes a party, and like any party, it 

is subject to the Federal Rules of Civil Procedure, including the 

rule governing Voluntary Dismissal.

That is Rule 41(a), which establishes different standards 

for a motion to dismiss depending on the procedural posture of 

the case. If the motion is filed before the defendant files an 

answer or summary judgment motion, “the plaintiff may dismiss an action without a court order” simply by filling a “notice 

of dismissal.” Fed. R. Civ. P. 41(a)(1)(A). The effect of that 

notice is “automatic and immediate,” such that “no order of the 

district court is needed to end the action,” In re Bath & Kitchen 

Fixtures Antitrust Litig., 535 F.3d 161, 165 (3d Cir. 2008). But 

once the action has passed the “point of no return,” id. (quoting 

Manze v. State Farm Ins. Co., 817 F.2d 1062, 1065 (3d Cir. 

1987)), with the filing of the defendant’s responsive pleading, 

then “an action may be dismissed at the plaintiff’s request only 

by court order, on terms that the court considers proper.”14 

Fed. R. Civ. P. 41(a)(2). We see no reason for these standards 

to apply with less force in a qui tam action than they do in any 

other civil action. As this Court has recently noted, “[i]t could 

hardly be clearer” that Congress intended the False Claims Act 

to establish “civil” proceedings, i.e., “lawsuits brought in accordance with the Federal Rules of Civil Procedure,” United 

14 We note that, as a practical matter, the considerations 

that inform the Government’s showing of “good cause” to intervene pursuant to § 3730(c)(3) and those that convince the 

District Court that dismissal is “proper” under Rule 41(a) may 

well converge. But, as a legal matter, these are distinct inquiries, so, while the Government may move to intervene and dismiss simultaneously, these motions must be resolved by the 

District Court independently and in sequence.
22

States ex rel. Int’l Bhd. of Elec. Workers Local Union No. 98 

v. Farfield Co., 5 F.4th 315, 336 (3d Cir. 2021).

15

 

Of course, the FCA does add certain wrinkles. For example, while Rule 41(a) “obviously does not authorize an intervenor-plaintiff to effect involuntary dismissal of the original 

plaintiff’s claims,” CIMZNHCA, 970 F.3d at 850, the FCA permits the Government-as-intervenor to “dismiss the action notwithstanding the objections of the person initiating the action,” 

31 U.S.C. § 3730(c)(2)(A). And while a pre-answer notice of 

dismissal under Rule 41(a)(1)(A) is self-effectuating, 

“invit[ing] no response from the district court and permit[ting] 

no interference by it,” Bath & Kitchen, 535 F.3d at 165, the 

FCA statute, even at that stage, requires the relator be given 

notice and an opportunity for a hearing before the case is dismissed, 31 U.S.C. § 3730(c)(2)(A). But these small modifications do not render Rule 41(a) inapplicable. To the contrary, 

such modifications are expressly contemplated by the Rule itself, which functions “[s]ubject to . . . any applicable federal 

statute.” Fed. R. Civ. P. 41(a)(1)(A).

In practice, then, when the Government moves to dismiss a relator’s case pursuant to § 3730(c)(2)(A), it must do so 

within the framework of Rule 41(a). The relator must receive 

notice and an opportunity for a hearing, 31 U.S.C. 

§ 3730(c)(2)(A), and the Government must meet whatever 

threshold the relevant prong of Rule 41(a) requires. If the defendant has yet to answer or move for summary judgment, the 

Government is entitled to dismissal, Fed. R. Civ. 

15 That Congress intended the FCA to function hand in 

glove with the Federal Rules of Civil Procedure is apparent in 

the numerous cross-references to the Rules in the text of the 

statute. See, e.g., 31 U.S.C. § 3730(b)(2) (requiring relator to 

serve materials on the Government “pursuant to Rule 

4(d)(4)”); id. § 3730(b)(3) (directing service upon the defendant “pursuant to Rule 4”); id. § 3732(a) (instructing a summons 

in actions brought under section 3730 to be issued and served 

“as required by the Federal Rules of Civil Procedure”).
23

P. 41(a)(1)(A), albeit with an opportunity for the relator to be 

heard,

16 31 U.S.C. § 3730(c)(2)(A), subject only to the bedrock 

constitutional bar on arbitrary Government action.17 See CIMZNHCA, 970 F.3d at 850-52. And if the litigation is already 

past that “point of no return,” Bath & Kitchen, 535 F.3d at 165, 

then dismissal must be “only by court order, on terms the court 

considers proper.” Fed. R. Civ. P. 41(a)(2).

16 The interplay of Rule 41(a)(1)(A) and 

§ 3730(c)(2)(A) leads to the “seem[ingly] counterintuitive” 

conclusion that a district court may hold a hearing on a preanswer Government motion to dismiss at which it has no substantive role. CIMZNHCA, 970 F.3d at 850. But as the Seventh Circuit observed, Rule 41(a)’s procedures rest atop the 

foundation of bedrock constitutional constraints on Government action, such that even a pre-answer dismissal could not 

violate the relator’s rights to due process or equal protection. 

Id. at 851-52 (citing Sequoia, 151 F.3d at 1145; Oyler v. Boles, 

368 U.S. 448, 456 (1962)). So in “exceptional cases [these 

constitutional limits] could supply the grist for the hearing under § 3730(c)(2)(A).” Id. at 852.

17 Polansky argues that the Government’s dismissal was 

arbitrary and irrational because it did not “assess[] the potential 

benefits” of proceeding with the case, namely, the “potential 

billion-dollar recovery” it would receive if Polansky prevailed. 

Polansky Br. 36 (emphasis in original). But, even assuming a 

relator has a property interest in a qui tam action, see supra n.5,

this argument misunderstands the showing of arbitrariness that 

due process requires. “[O]nly the most egregious official conduct can be said to be arbitrary in the constitutional sense.” 

Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (internal quotation omitted). Thus, the constitutional question 

would not be whether the Government adequately weighed the 

costs and benefits of its actions, but whether there was “executive abuse of power” that “shocks the conscience.” Id. In any 

event, Polanksy has not come close to meeting that exceedingly high standard.
24

As an important caveat, we note that, even in a typical 

case between private parties, dismissal at this later stage 

“should be allowed unless defendant will suffer some prejudice 

other than the mere prospect of a second lawsuit,” Estate of 

Ware v. Hosp. of the Univ. of Pa., 871 F.3d 273, 285 (3d Cir. 

2017) (quoting In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 

863 (3d Cir. 1990)), and that rule carries particular force, with 

constitutional implicationsin an FCA case, where it is the Government seeking to dismiss a matter brought in its name.18

 See 

31 U.S.C. § 3730(c)(1) (requiring that, once the Government 

has intervened in an FCA action, “it shall have the primary responsibility for prosecuting the action”); id. § 3730(c)(2)(A) 

(allowing the Government to dismiss “notwithstanding the objections of the [relator]”); CIMZNHCA, 970 F.3d at 850 

18 While the FCA authorizes the Government, once having intervened, to dismiss the action, Rule 41(a)(2) vests a 

“broad grant of discretion” in district courts to dismiss “‘on 

terms that the court considers proper,’” Carroll v. E One Inc., 

893 F.3d 139, 146 (3d Cir. 2018) (quoting Fed. R. Civ. 

P. 41(a)(2)), and we do not foreclose the court’s ability to exercise that discretion to mitigate against extraordinary prejudice in an exceptional case. Cf. Frank v. Crawley Petroleum 

Corp., 992 F.3d 987, 998 (10th Cir. 2021) (observing, in a typical case, that a district court addressing a Rule 41(a)(2) dismissal must “consider the equities not only facing the defendant, but also those facing the plaintiff” (internal quotation omitted)); Estate of Ware v. Hosp. of the Univ. of Pa., 871 F.3d 273, 

285 (3d Cir. 2017) (same). While the FCA imposes significant 

restrictions on such terms, e.g., 31 U.S.C. § 3730(f) (disallowing the recovery of fees and costs against the Government); cf. 

Int’l Bhd. of Elec. Workers Local Union No. 98, 5 F.4th at 337

(noting that “the FCA does not authorize the award of prejudgment interest or consequential damages, which typically 

accompany recovery for fraud” (citing Cook Cnty., Ill. v. U.S. 

ex rel. Chandler, 538 U.S. 119, 131 (2003))), we do not rule 

out the possibility that others remain available, e.g., Raab v. 

City of Ocean City, N.J., 833 F.3d 286, 296 (3d Cir. 2016) (imposing court’s “retention of jurisdiction” over an agreement 

between the parties).
25

(explaining that the standards set out in Rule 41(a) are limited 

by “any applicable background constraints on executive conduct in general”); see also Seila Law, 140 S. Ct. at 2205 (noting 

that “separation of powers” is a “foundational doctrine”).

 

2. The Alternative Approaches Among the 

Courts of Appeals

While we respect and have carefully weighed the considered views of other courts, we are satisfied that we have 

chosen the best path forward.

The D.C. Circuit has interpreted § 3730(c)(2)(A) to 

“give the government an unfettered right to dismiss an action.” 

Swift, 318 F.3d at 252. It reached that conclusion by analogizing the Government’s motion to the exercise of prosecutorial 

discretion, id., which is reserved to the executive, and reasoning that “[n]othing in § 3730(c)(2)(A) purports to deprive the 

Executive Branch of its historical prerogative to decide which 

cases should go forward in the name of the United States.” Id.

at 253. While the Court acknowledged that § 3730(c)(2)(A)’s 

hearing requirement “points to a role for the courts in deciding 

whether the case must go forward despite the government’s decision to end it,” it concluded that the “function of a hearing” 

is “simply to give the relator a formal opportunity to convince 

the government not to end the case.” Id.

Appellees (alongside amicus United States Chamber of 

Commerce, Commerce Br. 9-10) have pressed these points 

with us as well, but we are unconvinced. For one, the analogy 

to prosecutorial discretion is too loose a fit because qui tam

actions involve not just the Government but also the relator in 

the role of “prosecutors,” each with its own interest in the action. And as Congress recognized in assuring the relator a 

hearing on the Government’s motion, those interests can be 

different. 

In addition, reading § 3730(c)(2)(A) to give the Government “unfettered” discretion to dismiss would make it 
26

incongruous with other provisions of the FCA. For example, 

§ 3730(b)(1) requires “the court and the Attorney General [to] 

give written consent” for the relator to voluntarily dismiss an 

action. Appellees’ reading thus would mean that the court had 

more of an oversight role when the Government and relator 

agreed to dismiss than it would when the Government wanted 

to force a dismissal against the relator’s will. Likewise, because § 3730(c)(2)(B) requires a court to find a proposed settlement, to which a relator objects, to be “fair, adequate, and 

reasonable,” Appellees’ reading would require more judicial 

oversight of an opposed settlement than of a dismissal—despite the far more severe consequences for the relator.19

 Finally, an unfettered discretion standard creates tension with 

§ 3730(c)(2)(A)’s provision for a hearing, which implies some 

role for the Article III judge; in contrast, that standard would 

limit the court’s role to “serv[ing] . . . some donuts and coffee 

. . . while the parties carry on an essentially private conversation in its presence.” CIMZNHCA, 970 F.3d at 850 (internal 

quotation omitted).

Polansky asks us to go the other way and adopt the rational relation test promulgated by the Ninth Circuit and followed by the Tenth, which is drawn from the former’s substantive due process jurisprudence. See Sequoia, 151 F.3d at 1145; 

Ridenour, 397 F.3d at 936. Under this test, the court requires 

“(1) identification of a valid government purpose; and (2) a rational relation between dismissal and accomplishment of the 

19 The share of the proceeds that a relator receives, either by settlement or judgment award, is a function of the Government’s role in the action. If the Government “proceeds with 

[the] action,” the relator is entitled to between 15 and 25 percent of the recovery. 31 U.S.C. § 3730(d)(1). If the Government does not proceed, the relator receives between 25 and 30 

percent of the recovery, plus attorneys’ fees and costs. Id.

§ 3730(d)(2). But if the Government merely dismisses, the relator gets nothing, as there is no possibility for recovery. As 

one amicus puts it, “a dismissal is effectively a settlement for 

zero dollars.” TAFEF Br. 14.
27

purpose.” Sequoia, 151 F.3d at 1145. If the Government satisfies that two-prong test, “the burden switches to the relator to 

demonstrate that dismissal is fraudulent, arbitrary and capricious, or illegal.” Id. (internal quotation marks omitted).

But neither does that slipper fit. The right against arbitrary government action may provide a constitutional floor, but

the Federal Rules of Civil Procedure are built above it, and the 

Ninth Circuit’s approach omits that structure entirely. And 

Rule 41(a) duly provides standards for voluntary dismissal, 

promulgated by the Supreme Court and with Congressional 

oversight.

In sum, our review of the alternate approaches confirms 

the one on which we have settled: When the Government declines to adopt a relator’s FCA action, and the relator elects to 

proceed on his or her own, the Government must intervene pursuant to § 3730(c)(3) before it can seek to dismiss under 

§ 3730(c)(2)(A). And when it does so, its motion to dismiss is 

governed by the provisions of Rule 41(a). 

C. Whether the District Court’s Grant of Dismissal was a Reasonable Exercise of Discretion

Having clarified the operation of § 3730(c)(2)(A), we 

now consider the propriety of the District Court’s order in this 

case granting the Government’s motion to dismiss. While we 

ordinarily review a district court’s grant of a motion to dismiss 

de novo, see Chang, 938 F.3d at 386-87 (citing Fowler v. 

UPMC Shadyside, 578 F.3d 203, 206 (3d Cir. 2009)), we review a district court’s order under Rule 41(a)(2) for an abuse 

of discretion. Carroll v. E One Inc., 893 F.3d 139, 145 (3d Cir. 

2018).

We start with the requirement that the Government intervene under § 3730(c)(3) before seeking to dismiss the relator’s case. Although the Government did not formally file such 

a motion before the District Court, that is no cause for remand 

on this record. Instead, we construe the Government’s motion 
28

to dismiss as including a motion to intervene because “intervention was in substance what the government sought and in 

form what the False Claims Act requires.” CIMZNHCA, 970 

F.3d at 849 (treating a government motion to dismiss as a motion to intervene as well); see also Swift, 318 F.3d at 252 (assuming that, if intervention “were . . . a requirement, we could 

construe the government’s motion to dismiss as including a 

motion to intervene”). And, by thoroughly examining the Government’s stated reasons for moving to dismiss and granting 

the motion, the District Court necessarily found the Government had shown the “legally sufficient reason” for intervening 

that good cause requires. CIMZNHCA, 970 F.3d at 846. 

Moving on to the District Court’s grant of dismissal, we 

perceive no abuse of discretion. The Court exhaustively examined the interests of the parties, their conduct over the course 

of the litigation, and the Government’s reasons for terminating 

the action. It discussed, for instance, the litigation costs that 

Polansky’s suit imposed on the Government, including “internal staff obligations,” “anticipated . . . document production,” 

and the need to expend attorney time preparing and defending 

depositions of CMS personnel. Polansky, 422 F. Supp. 3d at 

928. It also noted three events that took place in the run-up to 

the Government’s motion that justified its interest in discontinuing the action: (1) the Government and Polansky apparently 

disagreed on the extent to which Polansky had actually narrowed his case pursuant to their agreement; (2) EHR deposed 

Polansky; and (3) a mere five days before the Government 

sought to dismiss the case, the District Court overruled the 

Government’s objections to the Special Master’s rejection of 

its deliberative process privilege and ordered it to begin producing documents. 

The District Court also adequately considered the prejudice to the non-governmental parties, concluding that, even 

though the litigation was at an advanced stage and significant 

resources had been expended on it by both the parties and the 

Court, there was little risk of prejudice to EHR because it supported the Government’s motion. As for Polansky, the District 
29

Court considered his argument that, by dismissing the case, the 

Government was “leaving billions of dollars of potential recovery on the table,” but concluded that there were “genuine concerns” that “the potential benefits he highlights will be realized,” both because Polansky maintained he had significantly 

narrowed his claims and because the prospect of success was 

doubtful. Id. at 927. The Court also noted that Polansky had 

engaged in potentially sanctionable conduct during the course 

of discovery, and that this “behavior was material and plays a 

role in the final disposition of this case.” Id. at 920.

In light of this thorough examination and weighing of 

the interests of all the parties, and Rule 41(a)(2)’s “broad grant 

of discretion” to shape the “proper” terms of dismissal, we conclude that District Court did not abuse its discretion in granting 

the Government’s motion to dismiss on the terms that it did. 

Carroll, 839 F.3d at 146. We will, therefore, affirm the dismissal of Polansky’s action.