(Slip Opinion) OCTOBER TERM, 2022 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

UNITED STATES EX REL. POLANSKY v. EXECUTIVE 

HEALTH RESOURCES, INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE THIRD CIRCUIT 

No. 21–1052. Argued December 6, 2022—Decided June 16, 2023 

The False Claims Act (FCA) imposes civil liability on any person who

presents false or fraudulent claims for payment to the Federal Government. See 31 U. S. C. §§3729–3733. The statute is unusual in authorizing private parties (known as relators) to sue on the Government’s

behalf. Those suits—qui tam actions—are “brought in the name of the 

Government.” §3730(b)(1). And the injury they assert is to the Government alone. But in one sense, a qui tam suit is “for” the relator as 

well as the Government: If the action leads to a recovery, the relator

may receive up to 30% of the total. §§3730(b)(1), (d)(1)–(2).

Because a relator is no ordinary plaintiff, he is subject to special restrictions. He must file his complaint under seal and serve a copy and 

supporting evidence on the Government. See §3730(b)(2). The Government then has 60 days (often extended for “good cause”) to decide 

whether to “intervene and proceed with the action.” §§3730(b)(2)–(3). 

If the Government elects to intervene during that so-called seal period,

the action “shall be conducted by the Government”; otherwise, the relator gets “the right to conduct the action.” §§3730(b)(4)(A)–(B). But 

even if the Government passes on intervention, it remains a “real party

in interest,” United States ex rel. Eisenstein v. City of New York, 556 

U. S. 928, 930, and it retains continuing rights. 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).

In this case, the relator—petitioner Jesse Polansky—filed a qui tam 

action alleging that respondent Executive Health Resources helped 

hospitals overbill Medicare. The Government declined to intervene 

during the seal period, and the case spent years in discovery. Eventu-
 

 

 

 

 

 

2 UNITED STATES EX REL. POLANSKY v. EXECUTIVE 

HEALTH RESOURCES, INC. 

Syllabus 

ally, the Government decided that the varied burdens of the suit outweighed its potential value, so it filed a motion under §3730(c)(2)(A)

(Subparagraph (2)(A) for short), which provides that “[t]he Government may dismiss the action notwithstanding the objections of the [relator],” so long as the relator received notice and an opportunity for a 

hearing. The District Court granted the request, finding that the Government had thoroughly investigated the costs and benefits and come

to a valid conclusion. 

The Court of Appeals for the Third Circuit affirmed after considering

two legal questions. First, does the Government have authority to dismiss an action under Subparagraph (2)(A) if it declined to intervene 

during the seal period? The Court of Appeals held that the Government has that power so long as it intervened sometime later. And the 

court found that the Government had satisfied that condition here. 

Second, what standard should a district court use in ruling on a Subparagraph (2)(A) motion? The Court of Appeals held that the proper 

standard comes from Federal Rule of Civil Procedure 41(a)—the rule 

governing voluntary dismissals in ordinary civil litigation. And here, 

the Third Circuit ruled, the District Court had not abused its discretion in granting the Government’s motion. 

Held: 

1. The Government may move to dismiss an FCA action under 

§3730(c)(2)(A) whenever it has intervened—whether during the seal 

period or later on. Pp. 7–13.

(a) The Government contends that it may move to dismiss under 

Subparagraph (2)(A) even if it has never intervened. But Paragraph 2 

(in which Subparagraph (2)(A) appears) refutes that idea. Unlike 

other FCA provisions, Paragraph 2 does not say that it applies when 

the Government is not a party. So the Government can prevail on its 

argument only by implication. And the implication does not fit. Subparagraphs (2)(A) and (2)(B) grant the Government uncommon power:

to dismiss and settle an action over the objection of the person who 

brought it. That sort of authority would be odd to house in an entity

that has continually declined to join a case. And subparagraphs (2)(C)

and (2)(D) presuppose that the Government has intervened. Subparagraph (2)(C) enables the court to restrict the relator’s role when 

needed to prevent interference with the “Government’s prosecution of 

the case.” And subparagraph (2)(D) allows the court to restrict the 

relator’s participation if the defendant would otherwise suffer an “undue burden”; here again the premise is that the Government has joined

the case, else a court would be limiting the role of the defendant’s sole

adversary.

Zoom out to the rest of §3730(c), and the Government’s “intervention 

is irrelevant” view looks even weaker. Section 3730(c) addresses the 
 

 

 

 

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Syllabus 

“Rights of the Parties” and contains four relevant paragraphs. Paragraph 1 states that it applies only “[i]f the Government proceeds with 

the action”—something that the parties agree cannot happen unless 

the Government intervenes. And the paragraph concludes by stating

that the relator may continue as a party, “subject to the limitations set

forth in paragraph (2).” It thus states that when the Paragraph 1 situation obtains, the relator’s role will be limited in the ways set out in

Paragraph 2. And the Paragraph 1 situation obtains only when the 

Government has intervened. So that is also when Paragraph 2’s provisions (including the one about dismissal) kick in. In other words, the 

express intervention prerequisite of Paragraph 1 carries forward into

Paragraph 2 through the “subject to” clause connecting the two. Only 

when Paragraphs 3 and 4 are reached does the necessity of intervention drop away, as those paragraphs (unlike Paragraph 2) specify the 

circumstances in which they apply: Paragraph 3 applies when “the 

Government elects not to proceed,” and Paragraph 4 applies “[w]hether

or not the Government proceeds.” And just to pile on a bit, the Government’s alternative construction creates surplusage twice over, violating the interpretive principle that “every clause and word of a statute” should have meaning. Montclair v. Ramsdell, 107 U. S. 147, 152. 

So absent intervention, Paragraph 2 does not apply, and the Government cannot file a motion to dismiss. Pp. 8–10.

(b) A straightforward reading of the FCA refutes Polansky’s position that Paragraph 2 (as linked to Paragraph 1) applies only when the

Government’s intervention occurs during the seal period. Recall that 

the Government can intervene either during the seal period or “at a

later date upon a showing of good cause.” §3730(c)(3). A successful 

motion to intervene turns the movant into a party. And once the Government becomes a party, it (alongside the relator) does what parties 

do: It “proceeds with the action.” That phrase, again, is the trigger for

Paragraph 1: When the Government “proceeds with the action,” it assumes “primary responsibility” for the case’s “prosecuti[on].” And for 

the reasons above, whenever that is true, Paragraph 2 kicks in too. So 

the right to dismiss under Subparagraph (2)(A) attends a later intervention, just as it does an earlier one.

Polansky’s contrary argument mainly relies on Paragraph 3, which 

provides that a court approving the Government’s post-seal-period intervention motion may not “limit[] the status and rights” of the relator.

That clause, Polansky argues, prevents the court from giving the Government “primary responsibility” over the suit, including the power to

dismiss. But on Polansky’s reading, the Paragraph 3 clause would effectively negate Paragraphs 1 and 2. The Government, even though 

now “proceed[ing]” with the case, would not acquire the control that 
 

 

 

 

 

 

4 UNITED STATES EX REL. POLANSKY v. EXECUTIVE 

HEALTH RESOURCES, INC. 

Syllabus 

Paragraphs 1 and 2 afford in that circumstance. Polansky’s construction would thus put the statute “at war with itself.” United States v. 

American Tobacco Co., 221 U. S. 106, 180. Instead, the clause is best 

read to tell the court not to impose additional, extra-statutory limitations on the relator when granting the Government’s motion, ensuring

that the parties will occupy the same positions as they would have if 

the Government had intervened in the seal period. And that view fits 

the FCA’s Government-centered purposes. Congress knew that circumstances could change and new information come to light. So Congress enabled the Government, in the protection of its own interests, 

to reassess litigation of qui tam actions and join a case without having

to take a back seat to its co-party relator. Pp. 10–13. 

2. In assessing a motion to dismiss an FCA action over a relator’s 

objection, district courts should apply the rule generally governing voluntary dismissal of suits in ordinary civil litigation—Rule 41(a). The 

Federal Rules are the default rules in civil litigation, and nothing warrants a departure from them here. To the contrary, the FCA crossreferences the Rules, and this Court has made clear that other Rules 

also apply in the ordinary course of FCA litigation. The application of 

Rule 41 in the FCA context will differ in two ways from the norm. 

First, the FCA requires notice and an opportunity for a hearing before

a Subparagraph (2)(A) dismissal can take place. Second, in the FCA 

context, the set of interests the court should consider in ruling on a 

post-answer motion is more likely to include the relator’s, as the relator may have committed substantial resources to the action. But even 

so, the Third Circuit was right to note that the Government’s motion 

to dismiss will satisfy Rule 41 in all but the most exceptional cases.

And here, the Government gave good grounds for thinking that this 

suit would not do what all qui tam actions are supposed to do: vindicate the Government’s interests. Absent some extraordinary circumstance, that sort of showing is all that is needed for the Government to

prevail on a motion to dismiss. 

17 F. 4th 376, affirmed. 

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., 

and ALITO, SOTOMAYOR, GORSUCH, KAVANAUGH, BARRETT, and JACKSON, 

JJ., joined. KAVANAUGH, J., filed a concurring opinion, in which BARRETT, 

J., joined. THOMAS, J., filed a dissenting opinion. 
 

 

 

_________________ 

_________________ 

Cite as: 599 U. S. ____ (2023) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the 

United States Reports. Readers are requested to notify the Reporter of 

Decisions, Supreme Court of the United States, Washington, D. C. 20543, 

pio@supremecourt.gov, of any typographical or other formal errors. 

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 KAGAN delivered the opinion of the Court. 

The False Claims Act (FCA), 31 U. S. C. §§3729–3733, 

imposes civil liability on any person who presents false or 

fraudulent claims for payment to the Federal Government.

The statute is unusual in authorizing private parties—

known as relators—to sue on the Government’s behalf. 

When a relator files a complaint, the Government gets an

initial opportunity to intervene in the case. If the Government does so, it takes the lead role. If not, that responsibility falls to the relator, the only person then pressing the

suit. But even when that is so, the Government retains certain rights, including the right to intervene later upon a 

showing of good cause.

The questions presented here concern the Government’s

ability to dismiss an FCA suit over a relator’s objection. 

Everyone agrees that if the Government intervenes at the 

suit’s start, it can later move to dismiss. But the parties

dispute whether, or in what circumstances, the same is true 

if the Government declines its initial chance to intervene. 

And the parties disagree as well about the standard district 
 

 

2 UNITED STATES EX REL. POLANSKY v. EXECUTIVE 

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Opinion of the Court 

courts should use in deciding whether to grant a Government motion to dismiss. 

Today, we hold that the Government may seek dismissal 

of an FCA action over a relator’s objection so long as it intervened sometime in the litigation, whether at the outset

or afterward. We also hold that in handling such a motion,

district courts should apply the rule generally governing

voluntary dismissal of suits: Federal Rule of Civil Procedure 41(a). 

I 

A 

The FCA dates to the Civil War, when a Congressional

committee uncovered “stupendous abuses” in the sale of

provisions and munitions to the War Department. H. R. 

Rep. No. 2, 37th Cong., 2d Sess., pt. 2, p. II (1861). Testimony before Congress “painted a sordid picture of how the 

United States had been billed for nonexistent or worthless 

goods, charged exorbitant prices for goods delivered, and 

generally robbed in purchasing the necessities of war.” 

United States v. McNinch, 356 U. S. 595, 599 (1958). To put

a stop to the plunder—and more generally, to “protect the

funds and property of the Government”—Congress enacted

the FCA. Rainwater v. United States, 356 U. S. 590, 592 

(1958). The Act, then as now, imposed civil liability for

many deceptive practices meant to appropriate government 

assets. 

From the start, the FCA has been enforced through a 

unique public-private scheme. Federal prosecutors may of 

course sue an alleged violator, all on their own. See 31 

U. S. C. §3730(a). But private parties—again, relators—

may also sue, in so-called qui tam actions. Those suits are 

“brought in the name of the Government.” §3730(b)(1).1 

—————— 1That is why the caption in this and other qui tam suits designates the 

plaintiff as “United States ex rel. [the private party’s name].” Ex rel. is 

short for the Latin term “ex relatione,” which means “by or on the relation 
 

 

 

Cite as: 599 U. S. ____ (2023) 3 

Opinion of the Court 

And the injury they assert is exclusively to the Government.

A qui tam suit, this Court has explained, alleges both an

“injury to the [Government’s] sovereignty arising from violation of its laws” and an injury to its “proprietary [interests] resulting from [a] fraud.” Vermont Agency of Natural 

Resources v. United States ex rel. Stevens, 529 U. S. 765, 771 

(2000). But in one important sense, a qui tam suit is, as the 

statute puts it, “for” both the relator and the Government. 

§3730(b)(1) (describing the action as “for the person and for

the United States”). The FCA, we have explained, “effect[s] 

a partial assignment of the Government’s” own damages

claim. Id., at 773. If the action leads to a recovery, the relator may receive up to 30% of the total. See §§3730(d)(1)–

(2).

Because the relator is no ordinary civil plaintiff, he is immediately subject to special restrictions. He must file his 

complaint under seal, and serve both “[a] copy” and supporting “material evidence” on the Government alone. 

§3730(b)(2). The Government then has 60 days (often extended for “good cause”) to decide whether to “intervene and 

proceed with the action.” §§3730(b)(2)–(3). If the Government, during that so-called seal period, elects to intervene,

the relator loses control: The action then “shall be conducted by the Government,” though the relator can continue as a party in a secondary role. §§3730(b)(4)(A), (c)(1).

Only if the Government passes on intervention does the relator “have the right to conduct the action.” §3730(b)(4)(B).

And even then, the relator is not home free. The Government, after all, is a “real party in interest” in a qui tam action. United States ex rel. Eisenstein v. City of New York, 

556 U. S. 928, 930 (2009). So Congress gave the Government continuing rights in the action—not least the right to 

—————— 

of.” Black’s Law Dictionary 727 (11th ed. 2019). So here, the caption 

refers to the United States, by (or in relation to allegations brought by)

Jesse Polansky, whom you will meet in a little while. 
 

 

4 UNITED STATES EX REL. POLANSKY v. EXECUTIVE 

HEALTH RESOURCES, INC. 

Opinion of the Court 

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. 
 

 

Cite as: 599 U. S. ____ (2023) 5 

Opinion of the Court 

Paragraph 2 then spells out certain rights of the Government. You have already seen Subparagraph (2)(A), enabling the Government to dismiss an action over the relator’s 

objection (after notice and opportunity for a hearing). Subparagraph (2)(B) is similar. It allows the Government to 

settle an action “notwithstanding [the relator’s] objections,”

so long as the court finds after a hearing that the settlement 

is fair and reasonable. §3730(c)(2)(B). Finally, subparagraphs (2)(C) and (2)(D) allow the court to limit the relator’s 

“participation” in the case—because (among other reasons) 

it would “interfere with” the “Government’s prosecution of

the case” or “cause the defendant undue burden.” 

§§3730(c)(2)(C)–(D).

Next, Paragraph 3 applies, as its first clause states, “[i]f 

the Government elects not to proceed with the action.”

§3730(c)(3). In that event, the relator “shall have the right 

to conduct the action.” Ibid. But a caveat immediately follows. The Government, as noted above, may “intervene at 

a later date”—i.e., after the seal period—“upon a showing 

of good cause.” Ibid.; see supra, at 4. And last, there is a 

caveat to that caveat: In granting a later intervention motion, the “court [may not] limit[] the status and rights” of 

the relator. §3730(c)(3).

Finally, Paragraph 4 applies, as its first clause states, 

“[w]hether or not the Government proceeds with the action.” §3730(c)(4). That provision enables the Government 

to obtain a stay of the relator’s discovery if it would interfere with the Government’s investigation or prosecution of 

a related legal matter.

And so to recap, focusing on the matter we suggested you

attend to. See supra, at 4. Paragraph 1 applies “[i]f the

Government proceeds with the action.” Paragraph 3 applies “[i]f the Government elects not to proceed with the action.” Paragraph 4 applies “[w]hether or not the Government proceeds with the action.” And Paragraph 2? It is not 
 

6 UNITED STATES EX REL. POLANSKY v. EXECUTIVE 

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Opinion of the Court 

like the others. Though granting the Government important rights—including the right to dismissal over the relator’s objection—Paragraph 2 does not specify when it applies. And that is the mystery at this case’s heart. 

B 

With the game thus afoot, we turn to the facts—though 

there are only a few you need to know. Petitioner Jesse Polansky is a doctor who worked for respondent Executive

Health Resources (EHR), a company that helped hospitals

bill the United States for Medicare-covered services. In 

2012, Polansky filed (under seal, as required) a qui tam action against EHR. The complaint alleged that EHR was 

enabling its clients to cheat the Government—essentially,

by charging inpatient rates for what should have been outpatient services. After reviewing Polansky’s evidence, the 

Government declined to intervene during the seal period.

The case then spent years in discovery, with EHR demanding both documents and deposition testimony from the Government. As its discovery obligations mounted and weighty 

privilege issues emerged, the Government assessed and reassessed whether the suit should go forward. By 2019, it

had decided that the varied burdens of the suit outweighed 

its potential value. The Government therefore filed a motion under Subparagraph (2)(A) to dismiss the action over 

Polansky’s objection. The District Court granted the request, finding that the Government had “thoroughly investigated the costs and benefits of allowing [Polansky’s] case

to proceed and ha[d] come to a valid conclusion based on the 

results of its investigation.” 422 F. Supp. 3d 916, 927 (ED

Pa. 2019).

The Court of Appeals for the Third Circuit affirmed after

considering two legal questions. First, does the Government have authority to dismiss an action under Subparagraph (2)(A) if it declined to intervene during the seal period? The Court of Appeals held that the Government has 
Cite as: 599 U. S. ____ (2023) 7 

Opinion of the Court 

that power so long as it intervened sometime later. See 17 

F. 4th 376, 383–388 (2021). And here, the Third Circuit 

found, the Government had satisfied that condition because 

its motion to dismiss was reasonably construed to include a

motion to intervene, which the District Court had implicitly

granted. See id., at 392–393.2 Second, what standard 

should a district court use in ruling on a Subparagraph

(2)(A) motion to dismiss? The Court of Appeals held that 

the proper standard comes from Federal Rule 41(a)—the

rule governing voluntary dismissals in ordinary civil litigation. See id., at 389–391. And here, the Third Circuit ruled, 

the District Court’s decision, which was based on a “thorough examination” of the interests that Rule 41 makes relevant, was not an abuse of discretion. Id., at 393. 

Because both those questions have occasioned circuit

splits, we granted certiorari. 596 U. S. ___ (2022); see 17 F. 

4th, at 384, n. 8, 388 (outlining the splits). We now affirm 

the Third Circuit across the board. 

II 

To show why the Third Circuit is right on the first question presented—about when the Government can make

what we’ll call a (2)(A) motion—we proceed in two stages, 

corresponding to two sets of arguments. None of the parties 

here agrees with the Third Circuit. On the one side, the 

Government and EHR contend that a (2)(A) motion is al-

—————— 2As noted above, post-seal intervention requires a showing of good 

cause. See supra, at 5. Here, the Third Circuit explained that “showing

‘good cause’ is neither a burdensome nor unfamiliar obligation,” but instead “a uniquely flexible and capacious concept, meaning simply a legally sufficient reason.” 17 F. 4th, at 387 (internal quotation marks omitted). And applying that standard, the Third Circuit found that the 

Government’s request to dismiss the suit—based on its weighing of discovery burdens against likelihood of success—itself established good 

cause to intervene. See id., at 392–393. Polansky does not challenge 

that conclusion. 
 

8 UNITED STATES EX REL. POLANSKY v. EXECUTIVE 

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Opinion of the Court 

ways permissible, even if the Government has never intervened. Their argument is mainly one from silence: Because 

Paragraph 2 does not explicitly say when it applies—e.g., 

when the Government “proceeds with the action” or when

it “elects not to”—the provision must apply all the time. 

§§3730(c)(1), (3). On the other side, Polansky (joined by the 

dissent) contends that the Government can make a (2)(A) 

motion only if it has intervened during the seal period. Polansky understands the dismissal power to arise only when 

the Government assumes primary responsibility for the action. And he does not think that occurs—rather, he thinks 

the relator remains in control—if the Government intervenes later on. To work our way through this thicket, we 

address first the Government’s (and EHR’s) theory, then

Polansky’s (and the dissent’s). We come out the other end 

in the same place as the Third Circuit: Paragraph 2 (like 

Paragraph 1) applies only if the Government has intervened, but the timing of the intervention makes no difference. So the Government can file a (2)(A) motion to dismiss 

whenever (whether during the seal period or later) it has

intervened. 

A 

Even taken alone, Paragraph 2 refutes the idea that it 

applies regardless of intervention. When the Government 

has chosen not to intervene in a qui tam suit, it is (by definition) not a party. See Eisenstein, 556 U. S., at 933. And 

non-parties typically cannot do much of anything in a lawsuit. To be sure, a qui tam action is an unusual creature. 

Even as a non-party, the Government retains an interest in

the suit, and possesses specified rights. See, e.g., 

§3730(c)(4) (the right to get a stay of some discovery);

§3730(d)(2) (the right to share in the recovery). But Paragraph 2, unlike other FCA provisions, does not say that it 

applies when the Government is a non-party. See supra, at 

4–6. So the Government can prevail on its argument only 
Cite as: 599 U. S. ____ (2023) 9 

Opinion of the Court 

by implication. And the implication does not fit. The paragraph’s first two provisions (Subparagraphs (2)(A) and 

(2)(B)) grant the Government uncommon, even extraordinary, power: to dismiss and settle an action over the objection of the person who brought it. That sort of authority

would be odd to house in an entity that is taking no part 

in—indeed, has continually declined to join—a case. And 

still more conclusive, the paragraph’s next two provisions

presuppose that the Government has in fact intervened. 

Subparagraph (2)(C) enables the court to restrict the relator’s role when needed to prevent interference with—wait 

for it—the “Government’s prosecution of the case.” And 

subparagraph (2)(D) allows the court to restrict the relator’s

participation if the defendant would otherwise suffer an 

“undue burden.” The premise is again that the Government

has joined the case—else a court would be limiting the role

of the defendant’s sole adversary.

Zoom out to the rest of §3730(c), and the Government’s

“intervention is irrelevant” view looks even weaker. Above 

Paragraph 2 is (you guessed it) Paragraph 1, which begins 

and ends in telling ways. Recall that Paragraph 1 starts by

announcing that it applies only “[i]f the Government proceeds with the action”—something that (everyone agrees) 

cannot happen unless the Government intervenes. See supra, at 4. In that event, the paragraph says, the Government assumes “primary responsibility” for the suit. But 

still, the paragraph concludes, the relator may continue as

a party, “subject to the limitations set forth in paragraph 

(2).” That last “subject to” phrase links Paragraph 2 to Paragraph 1. It says that when the Paragraph 1 situation obtains, the relator’s continuing role will be limited in the 

ways set out in Paragraph 2. And once again, the Paragraph 1 situation obtains only when the Government has

intervened. So that is also when Paragraph 2’s provisions 

(including the one about dismissal) kick in. In other words, 
10 UNITED STATES EX REL. POLANSKY v. EXECUTIVE 

HEALTH RESOURCES, INC. 

Opinion of the Court 

the express intervention prerequisite of Paragraph 1 carries forward into Paragraph 2 through the “subject to”

clause connecting the two. Only when Paragraphs 3 and 4

are reached does the necessity of intervention drop away. 

Recall that they apply, respectively, when “the Government

elects not to proceed” and “[w]hether or not the Government

proceeds.” See supra, at 5. By contrast, Paragraph 2 is explicitly hooked to Paragraph 1, which applies only when 

“the Government proceeds.”

And just to pile on a bit, the Government’s alternative

construction would create surplusage twice over. Consider 

first the “[w]hether or not” introductory clause of Paragraph 4, noted just above. On the Government’s view, that 

clause has no function: A provision lacking it would likewise 

apply “whether or not” the Government chose to intervene. 

The Government essentially concedes the point, urging only 

that Paragraph 4’s preface is “the sort of redundancy that

is common in statutory drafting.” Brief for United States 

25 (internal quotation marks omitted). Similarly for the 

“subject to . . . paragraph (2)” proviso in Paragraph 1. On 

the Government’s view, Congress need not have included 

that language, because every qui tam action (not just those

described in Paragraph 1) is “subject to” Paragraph 2’s limits. Again, the Government’s only response is that “Congress sometimes includes language that could be viewed as

‘redundant.’” Id., at 22. Yes, sometimes. But on top of everything else, the Government’s double violation of the interpretive principle that “every clause and word of a statute” 

should have meaning, Montclair v. Ramsdell, 107 U. S. 147, 

152 (1883), dooms the view that Paragraph 2 applies even

when the Government has not intervened. The paragraph

does not then apply—which means that the Government 

cannot then file a (2)(A) motion to dismiss. 

B 

At the same time, a straightforward reading of the FCA 
 

Cite as: 599 U. S. ____ (2023) 11 

Opinion of the Court 

refutes Polansky’s (and the dissent’s) position—that Paragraph 2 (and also Paragraph 1) applies only when the Government’s intervention occurs during the seal period. Recall the way the statute works: The Government can 

intervene at that early time—but so too it can “intervene at 

a later date upon a showing of good cause.” §3730(c)(3); see 

supra, at 5. The consequence of a successful motion to intervene, in the FCA context as in any other, is to turn the

movant into a party. See Eisenstein, 556 U. S., at 933–934. 

And once the Government becomes a party, it (alongside the 

relator) does what parties do: It “proceeds with the action.”

That quoted phrase, you’ll recall, is the trigger for Paragraph 1: When the Government “proceeds with the action,”

it assumes “primary responsibility” for the case’s “prosecuti[on].” And as shown above, whenever that is true, Paragraph 2 kicks in too. See supra, at 8–10. So the right to

dismiss under Subparagraph (2)(A) attends a later intervention, just as it does an earlier one. Either way, the Government becomes a party, proceeding with the action; so either way, it acquires the right to dismiss.3 

Polansky’s contrary argument (echoed in the dissent) 

mainly relies on the clause in Paragraph 3 telling the court 

that it may not “limit[] the status and rights” of the relator 

—————— 3Polansky (joined by the dissent) briefly tries to subvert the above 

reading at the first step, by arguing that when the Government intervenes after the seal period, it somehow does not “proceed with the action”—and so neither Paragraph 1 nor Paragraph 2 kicks in. Brief for 

Polansky 23 (arguing that Paragraph 3 enables the Government only to

“intervene,” and not also to “proceed with the action”); see post, at 4 

(same). But the phrase “proceed with the action” has no special statutory 

meaning and is no arcane term of art. It is just the consequence of anyone—the Government or the relator—becoming a party. See Webster’s 

Third New International Dictionary 1807 (1986) (defining “proceed” as

“carry on a legal action”). Regardless whether intervention is pre-seal or

post-seal, the Government at that moment becomes a party; and when 

the Government becomes a party, it (necessarily) “proceeds with the action.” 
12 UNITED STATES EX REL. POLANSKY v. EXECUTIVE 

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Opinion of the Court 

when it approves a post-seal-period intervention motion. 

See Brief for Polansky 23; post, at 4–5. That clause, he says, 

prevents the court from giving the Government “primary

responsibility” over the suit, including the power to dismiss.

But on that reading, the Paragraph 3 clause would effectively negate Paragraphs 1 and 2. The Paragraph 3 clause

would prevent the Government, even though now “proceed[ing]” with the case, from acquiring the control that

Paragraphs 1 and 2 afford in that circumstance. Polansky’s

construction would thus put the statute “at war with itself.” 

United States v. American Tobacco Co., 221 U. S. 106, 180 

(1911). The statute would direct one result (the Government assuming the primary role upon intervening) while 

telling the court not to allow that state of affairs. The better 

reading makes the instruction to the court congruent with

the background operation of the statute. The clause tells 

the court not to impose additional, extra-statutory limits on 

the relator when granting the Government’s post-seal-period motion to intervene. See United States ex rel. 

CIMZNHCA, LLC v. UCB, Inc., 970 F. 3d 835, 854 (CA7 

2020) (explaining that the Paragraph 3 clause “instructs 

the district court not to limit the relator’s ‘status and rights’ 

as they are defined by” Paragraphs 1 and 2). In that way,

Paragraph 3 ensures that the Government will get no special benefit from the court’s involvement in a later intervention: The parties will occupy the same positions as they

would have if the Government had intervened in the seal 

period.

That seal-agnostic view of intervention’s effects also fits

the FCA’s Government-centered purposes. In Polansky’s

proposed world, the Government has primary control of the 

action if it intervenes in the seal period, but the relator has

primary control if the intervention occurs later on. See 

Brief for Polansky 17. But in both cases, the Government’s 

interest in the suit is the same—and is the predominant 

one. That interest is typically to redress injuries against 
Cite as: 599 U. S. ____ (2023) 13 

Opinion of the Court 

the Government, through a suit “brought in [the Government’s] name.” §3730(b)(1). Or else, as here, that interest 

is to obtain dismissal of the suit because it will likely cost 

the Government more than it is worth. Either way, that 

interest does not diminish in importance because the Government waited to intervene. Congress decided not to make

seal-period intervention an on-off switch. It knew that circumstances could change and new information come to 

light. So Congress enabled the Government, in the protection of its own interests, to reassess qui tam actions and 

change its mind. See S. Rep. No. 99–345, p. 26 (1986) (explaining that the Government should have a continuing

chance to intervene because “new evidence” might cause it

to “reevaluate its initial assessment”). When it does so, 

nothing about the statute’s objectives suggests that the 

Government should have to take a back seat to its co-party 

relator. The suit remains, as it was in the seal period, one 

to vindicate the Government’s interests. 

III 

We thus arrive at this case’s second question: When the

Government, having properly intervened, seeks to dismiss

an FCA action over a relator’s objection, what standard

should a district court use to assess the motion? The Third 

Circuit held that the appropriate standard derives from 

Federal Rule 41(a), which governs voluntary dismissals in 

ordinary civil litigation. See 17 F. 4th, at 389–391. Under 

that Rule, the standard varies with the case’s procedural 

posture. If the defendant has not yet served an answer or 

summary-judgment motion, the plaintiff need only file a notice of dismissal. But once that threshold has been 

crossed—as in this case—dismissal requires a “court order,

on terms that the court considers proper.” Fed. Rule Civ. 

Proc. 41(a)(2). Again, both the Government and Polansky

object from different directions. The Government thinks it 

has essentially unfettered discretion to dismiss; Polansky 
 

14 UNITED STATES EX REL. POLANSKY v. EXECUTIVE 

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Opinion of the Court 

proposes a complicated form of arbitrary-and-capricious review, with a burden-shifting component. But again, the 

Third Circuit’s Goldilocks position is the legally right one. 

A district court should assess a (2)(A) motion to dismiss using Rule 41’s standards. And in most FCA cases, as the 

Court of Appeals suggested, those standards will be readily 

satisfied. See 17 F. 4th, at 390–391, and n. 18. 

The reason for alighting on Rule 41 is not complicated: 

The Federal Rules are the default rules in civil litigation,

and nothing warrants a departure from them here. As Rule 

1 states: “These rules govern the procedure in all civil actions and proceedings in the United States district courts”

(with specified exceptions not relevant here). Of course, 

Congress may override that command when it wishes. But 

we do not lightly infer that Congress has done so; and silence on the subject is seldom enough. See Jones v. Bock, 

549 U. S. 199, 212 (2007); Marek v. Chesny, 473 U. S. 1, 11– 

12 (1985). Here, nothing in the FCA suggests that Congress 

meant to except qui tam actions from the usual voluntary 

dismissal rule. To the contrary, the FCA’s many crossreferences to the Rules suggest that their application is the 

norm. See, e.g., §3732(a) (requiring that a summons in an

FCA action comply with the Rules); §§3730(b)(2)–(3) (requiring service to the Government and defendant “pursuant to Rule 4”). And this Court has made clear that various 

Rules not specifically mentioned—in particular, those dealing with discovery—also apply. See Eisenstein, 556 U. S., 

at 933–934. As a practical matter, the Federal Rules apply 

in FCA litigation in courts across the country every day.

There is no reason to make an exception for the one about 

voluntary dismissals.

The application of Rule 41 in the FCA context will differ 

in two ways from the norm. The first pertains to procedure. 

The FCA requires notice and an opportunity for a hearing 

before a Subparagraph (2)(A) dismissal can take place. So 

the district court must use that procedural framework to 
 

Cite as: 599 U. S. ____ (2023) 15 

Opinion of the Court 

apply Rule 41’s standards.4 The second pertains to the set

of interests the court should consider in ruling on a postanswer motion. In non-FCA cases, Rule 41(a)(2)’s “proper 

terms” analysis focuses on the defendant’s interests: The 

court mainly addresses whether that party’s “commitment

of time and money” militates against dismissal. Cooter & 

Gell v. Hartmarx Corp., 496 U. S. 384, 397 (1990). But in 

the FCA context, the “proper terms” assessment is more

likely to involve the relator. For all relators faced with a 

(2)(A) motion want their actions to go forward, and many

have by then committed substantial resources. Part of the 

district court’s task is to consider their interests. Cf. 9 C. 

Wright & A. Miller, Federal Practice and Procedure §2364, 

p. 554 (4th ed. 2022) (explaining that a court, in applying 

Rule 41, “should endeavor to ensure that substantial justice

is accorded to all parties”).

The Third Circuit, though, was right to note that (2)(A)

motions will satisfy Rule 41 in all but the most exceptional 

cases. See 17 F. 4th, at 390–391, and n. 18. This Court has 

never set out a grand theory of what that Rule requires, and 

we will not do so here. The inquiry is necessarily “contextual.” 9 Wright & Miller §2364, at 599. And in this context, 

the Government’s views are entitled to substantial deference. A qui tam suit, as we have explained, is on behalf of 

—————— 4The Court of Appeals briefly addressed the purpose of a hearing when 

dismissal is sought before an answer is filed. See 17 F. 4th 376, 390, 

n. 16 (CA3 2021). In that context, Rule 41 entitles the movant to a dismissal; the district court has no adjudicatory role. So what is the court 

supposed to do at the hearing the FCA requires? The Third Circuit suggested that Rule 41’s standards “rest atop the foundation of bedrock constitutional constraints on Government action.” Id., at 390, n. 16. So a 

hearing, whether pre- or post-answer, might inquire into allegations that

a dismissal “violate[s] the relator’s rights to due process or equal protection.” Ibid. But because Polansky has not raised a claim of that sort, we 

do not consider the circumstances in which, or procedures by which, a 

court should find the Constitution to prevent the Government from dismissing a qui tam action. 
16 UNITED STATES EX REL. POLANSKY v. EXECUTIVE 

HEALTH RESOURCES, INC. 

Opinion of the Court 

and in the name of the Government. The suit alleges injury 

to the Government alone. And the Government, once it has 

intervened, assumes primary responsibility for the action. 

Given all that, a district court should think several times 

over before denying a motion to dismiss. If the Government 

offers a reasonable argument for why the burdens of continued litigation outweigh its benefits, the court should grant

the motion. And that is so even if the relator presents a

credible assessment to the contrary. 

In light of those principles, this case is not a close call. A 

district court’s Rule 41 order is generally reviewable under

an abuse-of-discretion standard, and the Third Circuit 

properly applied that standard here. But in the interest of 

providing guidance, it might be useful for us to put that 

standard of review to the side, and simply to say that the 

District Court got this one right. The Government, in moving to dismiss, enumerated the significant costs of future

discovery in the suit, including the possible disclosure of 

privileged documents. At the same time, the Government 

explained in detail why it had come to believe that the suit 

had little chance of success on the merits. Polansky vigorously disputed the latter point, claiming that the Government was “leaving billions of dollars of potential recovery 

on the table.” 17 F. 4th, at 393 (emphasis deleted). But 

that competing assessment, the District Court thought, 

could not outweigh the Government’s reasonable view of 

the suit’s costs and benefits. We agree. The Government 

gave good grounds for thinking that this suit would not do

what all qui tam actions are supposed to do: vindicate the

Government’s interests. Absent some extraordinary circumstance, that sort of showing is all that is needed for the 

Government to prevail on a (2)(A) motion to dismiss. 

IV 

The Government may move to dismiss an FCA action under Subparagraph (2)(A) whenever it has intervened— 
 

Cite as: 599 U. S. ____ (2023) 17 

Opinion of the Court 

whether during the seal period or later on. The applicable

standards for deciding such a motion are those set out in 

Federal Rule 41. Under that Rule, the Government was entitled to dismiss this qui tam action. We therefore affirm in 

all respects the judgment below. 

It is so ordered. 
Opinion of the Court 

18 UNITED STATES EX REL. POLANSKY v. EXECUTIVE 

HEALTH RESOURCES, INC. 

Appendix to opinion of the Court 

APPENDIX 

3730. Civil actions for false claims 

(a) RESPONSIBILITIES OF THE ATTORNEY GENERAL.—The 

Attorney General diligently shall investigate a violation under section 3729. If the Attorney General finds that a person has violated or is violating section 3729, the Attorney 

General may bring a civil action under this section against

the person. 

(b) ACTIONS BY PRIVATE PERSONS.—(1) A person may

bring a civil action for a violation of section 3729 for the 

person and for the United States Government. The action 

shall be brought in the name of the Government. The action 

may be dismissed only if the court and the Attorney General

give written consent to the dismissal and their reasons for 

consenting. 

(2) A copy of the complaint and written disclosure of substantially all material evidence and information the person 

possesses shall be served on the Government pursuant to

Rule 4(d)(4) of the Federal Rules of Civil Procedure. The 

complaint shall be filed in camera, shall remain under seal

for at least 60 days, and shall not be served on the defendant until the court so orders. The Government may elect to

intervene and proceed with the action within 60 days after 

it receives both the complaint and the material evidence

and information. 

(3) The Government may, for good cause shown, move the

court for extensions of the time during which the complaint

remains under seal under paragraph (2). Any such motions

may be supported by affidavits or other submissions in camera. The defendant shall not be required to respond to any 

complaint filed under this section until 20 days after the 

complaint is unsealed and served upon the defendant pursuant to Rule 4 of the Federal Rules of Civil Procedure. 
 

Opinion of the Court 

Cite as: 599 U. S. ____ (2023) 19 

Appendix to opinion of the Court 

(4) Before the expiration of the 60-day period or any extensions obtained under paragraph (3), the Government 

shall– 

(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 person bringing the action shall have the 

right to conduct the action. 

(5) When a person brings an action under this subsection, 

no person other than the Government may intervene or

bring a related action based on the facts underlying the 

pending action.

 (c) RIGHTS OF THE PARTIES TO QUI TAM ACTIONS.—(1) If

the Government proceeds with the action, it shall have the 

primary responsibility for prosecuting the action, and shall 

not be bound by an act of the person bringing the action.

Such person 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 person initiating the action if 

the person has been notified by the Government of the filing 

of the motion and the court has provided the person with an

opportunity for a hearing on the motion. 

(B) The Government may settle the action with the defendant notwithstanding the objections of the person initiating the action if the court determines, after a hearing, 

that the proposed settlement is fair, adequate, and reasonable under all the circumstances. Upon a showing of good

cause, such hearing may be held in camera. 

(C) Upon a showing by the Government that unrestricted 

participation during the course of the litigation by the person initiating the action would interfere with or unduly delay the Government’s prosecution of the case, or would be 
Opinion of the Court 

20 UNITED STATES EX REL. POLANSKY v. EXECUTIVE 

HEALTH RESOURCES, INC. 

Appendix to opinion of the Court 

repetitious, irrelevant, or for purposes of harassment, the 

court may, in its discretion, impose limitations on the person’s participation, such as— 

(i) limiting the number of witnesses the person may

call; 

(ii) limiting the length of the testimony of such witnesses; 

(iii) limiting the person’s cross-examination of witnesses; or 

(iv) otherwise limiting the participation by the person 

in the litigation. 

(D) Upon a showing by the defendant that unrestricted 

participation during the course of the litigation by the person initiating the action would be for purposes of harassment or would cause the defendant undue burden or unnecessary expense, the court may limit the participation by the 

person in the litigation. 

(3) If the Government elects not to proceed with the action, the person who initiated the action shall have the right

to conduct the action. If the Government so requests, it

shall be served with copies of all pleadings filed in the action and shall be supplied with copies of all deposition transcripts (at the Government’s expense). When a person proceeds with the action, the court, without limiting the status

and rights of the person initiating the action, 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, upon a showing by the Government that certain actions of discovery by the person initiating the action would

interfere with the Government’s investigation or prosecution of a criminal or civil matter arising out of the same

facts, the court may stay such discovery for a period of not

more than 60 days. Such a showing shall be conducted in 
Opinion of the Court 

Cite as: 599 U. S. ____ (2023) 21 

Appendix to opinion of the Court 

camera. The court may extend the 60-day period upon a

further showing in camera that the Government has pursued the criminal or civil investigation or proceedings with

reasonable diligence and any proposed discovery in the civil 

action will interfere with the ongoing criminal or civil investigation or proceedings. 

(5) Notwithstanding subsection (b), the Government may

elect to pursue its claim through any alternate remedy 

available to the Government, including any administrative 

proceeding to determine a civil money penalty. If any such

alternate remedy is pursued in another proceeding, the person initiating the action shall have the same rights in such

proceeding as such person would have had if the action had

continued under this section. Any finding of fact or conclusion of law made in such other proceeding that has become

final shall be conclusive on all parties to an action under 

this section. For purposes of the preceding sentence, a finding or conclusion is final if it has been finally determined 

on appeal to the appropriate court of the United States, if 

all time for filing such an appeal with respect to the finding 

or conclusion has expired, or if the finding or conclusion is

not subject to judicial review. 
_________________ 

_________________ 

Cite as: 599 U. S. ____ (2023) 1 

KAVANAUGH, J., concurring 

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 KAVANAUGH, with whom JUSTICE BARRETT 

joins, concurring. 

I join the Court’s opinion in full. I add only that I agree

with JUSTICE THOMAS that “[t]here 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.” Post, at 7–8 

(dissenting opinion). In my view, the Court should consider 

the competing arguments on the Article II issue in an

appropriate case. 
_________________ 

_________________ 

Cite as: 599 U. S. ____ (2023) 1 

THOMAS, J., dissenting 

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 
 

2 UNITED STATES EX REL. POLANSKY v. EXECUTIVE 

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THOMAS, J., dissenting 

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 
Cite as: 599 U. S. ____ (2023) 3 

THOMAS, J., dissenting 

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.”1 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).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 

—————— 1The 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. 2One other provision of the FCA refers to the Government “making an

election under section 3730(b),” which likewise clearly signifies the sealperiod decision. 31 U. S. C. §3733(a)(1). 
 

4 UNITED STATES EX REL. POLANSKY v. EXECUTIVE 

HEALTH RESOURCES, INC. 

THOMAS, J., dissenting 

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 
 

Cite as: 599 U. S. ____ (2023) 5 

THOMAS, J., dissenting 

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 
6 UNITED STATES EX REL. POLANSKY v. EXECUTIVE 

HEALTH RESOURCES, INC. 

THOMAS, J., dissenting 

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 freefloating 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 
Cite as: 599 U. S. ____ (2023) 7 

THOMAS, J., dissenting 

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 
8 UNITED STATES EX REL. POLANSKY v. EXECUTIVE 

HEALTH RESOURCES, INC. 

THOMAS, J., dissenting 

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”). 
Cite as: 599 U. S. ____ (2023) 9 

THOMAS, J., dissenting 

“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. 
 

10 UNITED STATES EX REL. POLANSKY v. EXECUTIVE 

HEALTH RESOURCES, INC. 

THOMAS, J., dissenting 

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”). 
 

Cite as: 599 U. S. ____ (2023) 11 

THOMAS, J., dissenting 

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.3 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. 

—————— 3For 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.