United States ex rel. Polansky v. Executive Health Resources, Inc. HTML PDF
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Syllabus
UNITED STATES ex rel. POLANSKY v. EXECUTIVE HEALTH RESOURCES, INC.
17 F. 4th 376, affirmed.
NOTE:âWhere 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
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. §§3729â3733. The statute is unusual in authorizing private parties (known as relators) to sue on the Governmentâs behalf. Those suitsâqui tam actionsâare âbrought in the name of the Government.â §3730(b)(1). And the injury they assert is to the Government alone. But in one sense, a qui tam suit is âforâ 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)â(2).
âââBecause 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 âgood causeâ) to decide whether to âintervene and proceed with the action.â §§3730(b)(2)â(3). If the Government elects to intervene during that so-called seal period, the action âshall be conducted by the Governmentâ; otherwise, the relator gets âthe right to conduct the action.â §§3730(b)(4)(A)â(B). But even if the Government passes on intervention, it remains a âreal party in interest,â 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).
âââIn this case, the relatorâpetitioner Jesse Polanskyâfiled 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 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 â[t]he Government may dismiss the action notwithstanding the objections of the [relator],â 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.
âââThe 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)âthe 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 Governmentâs motion.
Held:
ââ1. The Government may move to dismiss an FCA action under §3730(c)(2)(A) whenever it has intervenedâwhether during the seal period or later on. Pp. 7â13.
âââ(a)Â 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 relatorâs role when needed to prevent interference with the âGovernmentâs prosecution of the case.â And subparagraph (2)(D) allows the court to restrict the relatorâs participation if the defendant would otherwise suffer an âundue burdenâ; here again the premise is that the Government has joined the case, else a court would be limiting the role of the defendantâs sole adversary.
ââZoom out to the rest of §3730(c), and the Governmentâs âintervention is irrelevantâ view looks even weaker. Section 3730(c) addresses the  âRights of the Partiesâ and contains four relevant paragraphs. Paragraph 1 states that it applies only â[i]f the Government proceeds with the actionââsomething that the parties agree cannot happen unless the Government intervenes. And the paragraph concludes by stating that the relator may continue as a party, âsubject to the limitations set forth in paragraph (2).â It thus states that when the Paragraph 1 situation obtains, the relatorâs 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 2âs 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 âsubject toâ 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 âthe Government elects not to proceed,â and Paragraph 4 applies â[w]hether or not the Government proceeds.â And just to pile on a bit, the Governmentâs alternative construction creates surplusage twice over, violating the interpretive principle that âevery clause and word of a statuteâ 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. 8â10.
âââ(b) A straightforward reading of the FCA refutes Polanskyâs position that Paragraph 2 (as linked to Paragraph 1) applies only when the Governmentâs intervention occurs during the seal period. Recall that the Government can intervene either during the seal period or âat a later date upon a showing of good cause.â §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 âproceeds with the action.â That phrase, again, is the trigger for Paragraph 1: When the Government âproceeds with the action,â it assumes âprimary responsibilityâ for the caseâs âprosecuti[on].â 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.
ââPolanskyâs contrary argument mainly relies on Paragraph 3, which provides that a court approving the Governmentâs post-seal-period intervention motion may not âlimit[ ] the status and rightsâ of the relator. That clause, Polansky argues, prevents the court from giving the Government âprimary responsibilityâ over the suit, including the power to dismiss. But on Polanskyâs reading, the Paragraph 3 clause would effectively negate Paragraphs 1 and 2. The Government, even though now âproceed[ing]â with the case, would not acquire the control that  Paragraphs 1 and 2 afford in that circumstance. Polanskyâs construction would thus put the statute âat war with itself.â 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 Governmentâs 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 FCAâs 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. 10â13.
ââ2. In assessing a motion to dismiss an FCA action over a relatorâs objection, district courts should apply the rule generally governing voluntary dismissal of suits in ordinary civil litigationâRule 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 cross-references 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 relatorâs, as the relator may have committed substantial resources to the action. But even so, the Third Circuit was right to note that the Governmentâs 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 Governmentâs 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.
âKagan, 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.
TOP
Opinion
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. 21â1052
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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
âJustice Kagan delivered the opinion of the Court.
âThe False Claims Act (FCA), 31 U. S. C. §§3729â3733, 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 partiesâknown as relatorsâto sue on the Governmentâs 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.
âThe questions presented here concern the Governmentâs ability to dismiss an FCA suit over a relatorâs objection. Everyone agrees that if the Government intervenes at the suitâs 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  courts should use in deciding whether to grant a Government motion to dismiss.
âToday, we hold that the Government may seek dismissal of an FCA action over a relatorâs 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
âThe FCA dates to the Civil War, when a Congressional committee uncovered âstupendous abusesâ 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 âpainted 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.â United States v. McNinch, 356 U. S. 595, 599 (1958). To put a stop to the plunderâand more generally, to âprotect the funds and property of the GovernmentââCongress 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.
âFrom 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 partiesâagain, relatorsâmay also sue, in so-called qui tam actions. Those suits are âbrought in the name of the Government.â §3730(b)(1).1  And the injury they assert is exclusively to the Government. A qui tam suit, this Court has explained, alleges both an âinjury to the [Governmentâs] sovereignty arising from violation of its lawsâ and an injury to its âproprietary [interests] resulting from [a] fraud.â 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, âforâ both the relator and the Government. §3730(b)(1) (describing the action as âfor the person and for the United Statesâ). The FCA, we have explained, âeffect[s] a partial assignment of the Governmentâsâ 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)â(2).
âBecause the relator is no ordinary civil plaintiff, he is immediately subject to special restrictions. He must file his complaint under seal, and serve both â[a] copyâ and supporting âmaterial evidenceâ on the Government alone. §3730(b)(2). The Government then has 60 days (often extended for âgood causeâ) to decide whether to âintervene and proceed with the action.â §§3730(b)(2)â(3). If the Government, during that so-called seal period, elects to intervene, the relator loses control: The action then âshall be conducted by the Government,â 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 âhave the right to conduct the action.â §3730(b)(4)(B).
âAnd even then, the relator is not home free. The Government, after all, is a âreal party in interestâ 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 actionânot least the right to  the lionâs 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).
âThe 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 relatorâs objection. The FCA gives the Government unilateral authority to dismiss in at least some circumstances. Section 3730(c)(2)(A)âwhich weâll call Subparagraph (2)(A) for shortâprovides that â[t]he Government may dismiss the action notwithstanding the objections of the [relator],â 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 Governmentâs decision to let the seal period lapse without intervening.
âThe competing arguments on that score hinge significantly on surrounding provisionsâmore precisely, on how Subparagraph (2)(A) fits into the rest of §3730(c). That subsection addresses the âRights of the Partiesââthe 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 opinionâs appendix, which lays out all of §3730âs relevant text.) A helpful hint to start with: You might want to pay attention to what each paragraph saysâor notâabout when it applies.
âParagraph 1 applies, as its first clause states, â[i]f the Government proceeds with the action.â §3730(c)(1). In that event, the Government âshall have the primary responsibility for prosecuting the action, and shall not be bound by an act of the [relator].â Ibid. The relator still can âcontinue as a partyââfile motions, conduct discovery, and so forthâbut only âsubject to the limitations set forth in paragraph (2).â Ibid.
 âParagraph 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 relatorâs objection (after notice and opportunity for a hearing). Subparagraph (2)(B) is similar. It allows the Government to settle an action ânotwithstanding [the relatorâs] objections,â 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 relatorâs âparticipationâ in the caseâbecause (among other reasons) it would âinterfere withâ the âGovernmentâs prosecution of the caseâ or âcause the defendant undue burden.â §§3730(c)(2)(C)â(D).
âNext, Paragraph 3 applies, as its first clause states, â[i]f the Government elects not to proceed with the action.â §3730(c)(3). In that event, the relator âshall have the right to conduct the action.â Ibid. But a caveat immediately follows. The Government, as noted above, may âintervene at a later dateââi.e., after the seal periodââupon a showing of good cause.â Ibid.; see supra, at 4. And last, there is a caveat to that caveat: In granting a later intervention motion, the âcourt [may not] limit[ ] the status and rightsâ of the relator. §3730(c)(3).
âFinally, Paragraph 4 applies, as its first clause states, â[w]hether or not the Government proceeds with the action.â §3730(c)(4). That provision enables the Government to obtain a stay of the relatorâs discovery if it would interfere with the Governmentâs investigation or prosecution of a related legal matter.
âAnd so to recap, focusing on the matter we suggested you attend to. See supra, at 4. Paragraph 1 applies â[i]f the Government proceeds with the action.â Paragraph 3 applies â[i]f the Government elects not to proceed with the action.â Paragraph 4 applies â[w]hether or not the Government proceeds with the action.â And Paragraph 2? It is not  like the others. Though granting the Government important rightsâincluding the right to dismissal over the relatorâs objectionâParagraph 2 does not specify when it applies. And that is the mystery at this caseâs heart.
B
âWith the game thus afoot, we turn to the factsâthough 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 Governmentâessentially, by charging inpatient rates for what should have been outpatient services. After reviewing Polanskyâs 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 Polanskyâs objection. The District Court granted the request, finding that the Government had âthoroughly investigated the costs and benefits of allowing [Polanskyâs] case to proceed and ha[d] come to a valid conclusion based on the results of its investigation.â 422 F. Supp. 3d 916, 927 (ED Pa. 2019).
âThe 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. See 17 F. 4th 376, 383â388 (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 392â393.2 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)âthe rule governing voluntary dismissals in ordinary civil litigation. See id., at 389â391. And here, the Third Circuit ruled, the District Courtâs decision, which was based on a âthorough examinationâ of the interests that Rule 41 makes relevant, was not an abuse of discretion. Id., at 393.
âBecause 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
âTo show why the Third Circuit is right on the first question presentedâabout when the Government can make what weâll call a (2)(A) motionâwe 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 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 appliesâe.g., when the Government âproceeds with the actionâ or when it âelects not toââthe 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 occursârather, he thinks the relator remains in controlâif the Government intervenes later on. To work our way through this thicket, we address first the Governmentâs (and EHRâs) theory, then Polanskyâs (and the dissentâs). 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
âEven 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 4â6. So the Government can prevail on its argument only  by implication. And the implication does not fit. The paragraphâs 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 inâindeed, has continually declined to joinâa case. And still more conclusive, the paragraphâs next two provisions presuppose that the Government has in fact intervened. Subparagraph (2)(C) enables the court to restrict the relatorâs role when needed to prevent interference withâwait for itâthe âGovernmentâs prosecution of the case.â And subparagraph (2)(D) allows the court to restrict the relatorâs participation if the defendant would otherwise suffer an âundue burden.â The premise is again that the Government has joined the caseâelse a court would be limiting the role of the defendantâs sole adversary.
âZoom out to the rest of §3730(c), and the Governmentâs âintervention is irrelevantâ 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 â[i]f the Government proceeds with the actionââsomething that (everyone agrees) cannot happen unless the Government intervenes. See supra, at 4. In that event, the paragraph says, the Government assumes âprimary responsibilityâ for the suit. But still, the paragraph concludes, the relator may continue as a party, âsubject to the limitations set forth in paragraph (2).â That last âsubject toâ phrase links Paragraph 2 to Paragraph 1. It says that when the Paragraph 1 situation obtains, the relatorâs 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 2âs 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 âsubject toâ 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 âthe Government elects not to proceedâ and â[w]hether or not the Government proceeds.â See supra, at 5. By contrast, Paragraph 2 is explicitly hooked to Paragraph 1, which applies only when âthe Government proceeds.â
âAnd just to pile on a bit, the Governmentâs alternative construction would create surplusage twice over. Consider first the â[w]hether or notâ introductory clause of Paragraph 4, noted just above. On the Governmentâs view, that clause has no function: A provision lacking it would likewise apply âwhether or notâ the Government chose to intervene. The Government essentially concedes the point, urging only that Paragraph 4âs preface is âthe sort of redundancy that is common in statutory drafting.â Brief for United States 25 (internal quotation marks omitted). Similarly for the âsubject to . . . paragraph (2)â proviso in Paragraph 1. On the Governmentâs view, Congress need not have included that language, because every qui tam action (not just those described in Paragraph 1) is âsubject toâ Paragraph 2âs limits. Again, the Governmentâs only response is that âCongress sometimes includes language that could be viewed as âredundant.â â Id., at 22. Yes, sometimes. But on top of everything else, the Governmentâs double violation of the interpretive principle that âevery clause and word of a statuteâ 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 applyâwhich means that the Government cannot then file a (2)(A) motion to dismiss.
B
âAt the same time, a straightforward reading of the FCA  refutes Polanskyâs (and the dissentâs) positionâthat Paragraph 2 (and also Paragraph 1) applies only when the Governmentâs intervention occurs during the seal period. Recall the way the statute works: The Government can intervene at that early timeâbut so too it can âintervene at a later date upon a showing of good cause.â §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 933â934. And once the Government becomes a party, it (alongside the relator) does what parties do: It âproceeds with the action.â That quoted phrase, youâll recall, is the trigger for Paragraph 1: When the Government âproceeds with the action,â it assumes âprimary responsibilityâ for the caseâs âprosecuti[on].â And as shown above, whenever that is true, Paragraph 2 kicks in too. See supra, at 8â10. 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
âPolanskyâs contrary argument (echoed in the dissent) mainly relies on the clause in Paragraph 3 telling the court that it may not âlimit[ ] the status and rightsâ of the relator  when it approves a post-seal-period intervention motion. See Brief for Polansky 23; post, at 4â5. That clause, he says, prevents the court from giving the Government âprimary responsibilityâ 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 âproceed[ing]â with the case, from acquiring the control that Paragraphs 1 and 2 afford in that circumstance. Polanskyâs construction would thus put the statute âat war with itself.â 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 Governmentâs 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 âinstructs the district court not to limit the relatorâs âstatus and rightsâ as they are defined byâ Paragraphs 1 and 2). In that way, Paragraph 3 ensures that the Government will get no special benefit from the courtâs 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.
âThat seal-agnostic view of interventionâs effects also fits the FCAâs Government-centered purposes. In Polanskyâs 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 Governmentâs interest in the suit is the sameâand is the predominant one. That interest is typically to redress injuries against  the Government, through a suit âbrought in [the Governmentâs] name.â §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. 99â345, p. 26 (1986) (explaining that the Government should have a continuing chance to intervene because ânew evidenceâ might cause it to âreevaluate its initial assessmentâ). When it does so, nothing about the statuteâs 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 Governmentâs interests.
III
âWe thus arrive at this caseâs second question: When the Government, having properly intervened, seeks to dismiss an FCA action over a relatorâs 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 389â391. Under that Rule, the standard varies with the caseâs 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 crossedâas in this caseâdismissal requires a âcourt order, on terms that the court considers proper.â 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  proposes a complicated form of arbitrary-and-capricious review, with a burden-shifting component. But again, the Third Circuitâs Goldilocks position is the legally right one. A district court should assess a (2)(A) motion to dismiss using Rule 41âs standards. And in most FCA cases, as the Court of Appeals suggested, those standards will be readily satisfied. See 17 F. 4th, at 390â391, and n. 18.
âThe 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: âThese rules govern the procedure in all civil actions and proceedings in the United States district courtsâ (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, 11â12 (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 FCAâs many cross-references 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)â(3) (requiring service to the Government and defendant âpursuant to Rule 4â). And this Court has made clear that various Rules not specifically mentionedâin particular, those dealing with discoveryâalso apply. See Eisenstein, 556 U. S., at 933â934. 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.
âThe 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  apply Rule 41âs standards.4 The second pertains to the set of interests the court should consider in ruling on a post-answer motion. In non-FCA cases, Rule 41(a)(2)âs âproper termsâ analysis focuses on the defendantâs interests: The court mainly addresses whether that partyâs âcommitment of time and moneyâ militates against dismissal. Cooter & Gell v. Hartmarx Corp., 496 U. S. 384, 397 (1990). But in the FCA context, the âproper termsâ 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 courtâs 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, âshould endeavor to ensure that substantial justice is accorded to all partiesâ).
âThe 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 390â391, 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 âcontextual.â 9 Wright & Miller §2364, at 599. And in this context, the Governmentâs views are entitled to substantial deference. A qui tam suit, as we have explained, is on behalf of  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.
âIn light of those principles, this case is not a close call. A district courtâs 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 âleaving billions of dollars of potential recovery on the table.â 17 F. 4th, at 393 (emphasis deleted). But that competing assessment, the District Court thought, could not outweigh the Governmentâs reasonable view of the suitâs 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 Governmentâs 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
âThe Government may move to dismiss an FCA action under Subparagraph (2)(A) whenever it has intervenedâ 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.
Â
 APPENDIX
3730. Civil actions for false claims
â(a) Responsibilities of the Attorney General.âThe 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.
â(b) Actions by Private Persons.â(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.
â(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.
â(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.
 â(4) Before the expiration of the 60-day period or any extensions obtained under paragraph (3), the Government shallâ
â(A) proceed with the action, in which case the action shall be conducted by the Government; or
â(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.
â(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.
â(c) Rights of the Parties to Qui Tam Actions.â(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).
â(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.
â(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.
â(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 Governmentâs prosecution of the case, or would be  repetitious, irrelevant, or for purposes of harassment, the court may, in its discretion, impose limitations on the personâs participation, such asâ
(i) limiting the number of witnesses the person may call;
(ii) limiting the length of the testimony of such witnesses;
(iii) limiting the personâs cross-examination of witnesses; or
(iv) otherwise limiting the participation by the person in the litigation.
â(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.
â(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 Governmentâs 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.
â(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 Governmentâs 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  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.
â(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.
Notes
1  That is why the caption in this and other qui tam suits designates the plaintiff as âUnited States ex rel. [the private partyâs name].â Ex rel. is short for the Latin term âex relatione,â which means âby or on the relation of.â Blackâs 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.
2 Â As noted above, post-seal intervention requires a showing of good cause. See supra, at 5. Here, the Third Circuit explained that âshowing âgood causeâ is neither a burdensome nor unfamiliar obligation,â but instead âa uniquely flexible and capacious concept, meaning simply a legally sufficient reason.â 17 F. 4th, at 387 (internal quotation marks omitted). And applying that standard, the Third Circuit found that the Governmentâs request to dismiss the suitâbased on its weighing of discovery burdens against likelihood of successâitself established good cause to intervene. See id., at 392â393. Polansky does not challenge that conclusion.
3 Â Polansky (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 âproceed with the actionââand so neither Paragraph 1 nor Paragraph 2 kicks in. Brief for Polansky 23 (arguing that Paragraph 3 enables the Government only to âintervene,â and not also to âproceed with the actionâ); see post, at 4 (same). But the phrase âproceed with the actionâ has no special statutory meaning and is no arcane term of art. It is just the consequence of anyoneâthe Government or the relatorâbecoming a party. See Websterâs Third New International Dictionary 1807 (1986) (defining âproceedâ as âcarry on a legal actionâ). 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) âproceeds with the action.â
4  The 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 41âs standards ârest atop the foundation of bedrock constitutional constraints on Government action.â Id., at 390, n. 16. So a hearing, whether pre- or post-answer, might inquire into allegations that a dismissal âviolate[s] the relatorâs rights to due process or equal protection.â 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.
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Concurrence
SUPREME COURT OF THE UNITED STATES
_________________
No. 21â1052
_________________
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
âJustice Kavanaugh, with whom Justice Barrett joins, concurring.
âI join the Courtâs opinion in full. I add only that I agree with Justice Thomas that â[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.â Post, at 7â8 (dissenting opinion). In my view, the Court should consider the competing arguments on the Article II issue in an appropriate case.
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Dissent
SUPREME COURT OF THE UNITED STATES
_________________
No. 21â1052
_________________
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
âJustice Thomas, dissenting.
âIn my view, the text and structure of the False Claims Act (FCA), 31 U. S. C. §§3729â3733, afford the Government no power to unilaterally dismiss a pending qui tam action after it has âdecline[d] to take over the actionâ 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 Governmentâs motion to dismiss petitionerâs qui tam suit. Because the Court instead affirms, I respectfully dissent.
I
âThe FCA provides that private parties known as relators may bring qui tam suits âfor [themselves] and for the United States Government.â §3730(b)(1). It then sets out a reticulated scheme to govern the initiation of a qui tam suit, see §3730(b); the partiesâ 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 2â6, 18â21. 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 âelectâ whether âto intervene and  proceed with the action,â §3730(b)(2), or, alternatively, to âdeclin[e] to take over the actionâ and allow the relator to proceed, §3730(b)(4)(B).
âThis 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 âat a later dateâ after the relator has âproceed[ed] with the action.â §3730(c)(3). Today, the Court holds that the Government has all of the same procedural rights in both circumstances, including the right to âdismiss the action notwithstanding the objections of the [relator].â §3730(c)(2)(A). I would instead hold that the structure of the FCAâs 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.
âTo bring out the statutory structure, it is helpful to take the FCAâs 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 â[t]he Government may elect to intervene and proceed with the action.â §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: â(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.â §3730(b)(4). Thus, under §3730(b)(4), the Governmentâs seal-period choice to âproceed with the actionâ or not determines who âshallâ âconductâ the suitâthe Government or the relator.
âSection 3730(c) picks up at this critical juncture, defining the respective litigating rights of the Government and the relator based on the Governmentâs choice to âproceed with  the actionâ or not. First, paragraph (1) of subsection (c) (or, paragraph (c)(1)) provides: âIf the Government proceeds with the action, it shall have the primary responsibility for prosecuting the action,â but the relator âshall have the right to continue as a party to the action, subject to [paragraph (c)(2)âs] limitations.â1 As used here, the phrase âproceeds with the actionâ 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 âhav[ing] the primary responsibility for prosecuting the actionâ appears synonymous with the Government âconduct[ing]â the action under subparagraph (b)(4)(A). See 3 Oxford English Dictionary 691 (2d ed. 1989) (defining âconductâ as â[t]o lead, command, direct, manageâ).
âBy contrast, paragraph (c)(3) provides: âIf the Government elects not to proceed with the action, the [relator] shall have the right to conduct the action.â The conditional clause of this sentence is a clear reference to the seal-period âelect[ion]â described in paragraph (b)(2).2 Likewise, the result clause plainly echoes âthe right to conduct the actionâ referred to under subparagraph (b)(4)(B), which the relator acquires when the Government does not âproceed with the actionâ under subparagraph (b)(4)(A) at the end of the seal period.
âIn 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 Governmentâs seal-period choice to âproceed with the actionâ or not. If the Government chooses to proceed with  the action under §3730(b)(4)(A), then paragraph (c)(1) applies, along with the conditions of paragraph (c)(2). Conversely, if the Government elects not to proceed with the action under §3730(b)(4)(B), then paragraph (c)(3) applies.
âTo be sure, the last sentence of paragraph (c)(3) provides: âWhen [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.â 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 10â13. The sentence itself makes that clear by cautioning that the Governmentâs later intervention may not âlimi[t] the status and rights of the [relator].â §3730(c)(3). Read in the context of §§3730(b)(4) and (c), this âwithout limitingâ condition clearly preserves the relatorâs status as an autonomous litigant and the âright to conduct the actionâ 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 âthe right to conduct the actionâ under §§3730(b)(4)(B) and (c)(3), as opposed to being demoted to paragraph (c)(1)âs inferior âright to continue as a partyâ with the restrictions set out in paragraph (c)(2).
âThe majority short-circuits this straightforward conclusion by essentially stipulating that the Government âproceeds with the actionââand thus activates paragraphs (c)(1) and (c)(2)âwhenever it is a party, regardless of when and how it became a party. See ante, at 11, and n. 3. Nothing in the FCAâs overall text or structure favors that interpretation. Nor does the text of paragraph (c)(3). When that provision describes the Government âinterven[ing]â after the seal period, it does not use the phrase âproceed with the actionâ (except in reference to the relator). Cf. §3730(b)(2) (âThe Government may elect to intervene and proceed with  the actionâ (emphasis added)). Nor is the majorityâs understanding compelled by the ordinary meaning of the term âproceed.â To âproceedâ means to move forward, generally with the distinctive connotation of moving forward from a particular point. See 12 Oxford English Dictionary, at 544 (â[t]o go, move, or travel forward; to make oneâs way onward; esp. to move onward after interruption or stoppage, or after reaching a certain pointâ). That idea fits the FCA like a glove. The Government âproceeds with the actionââas that phrase is used in §§3730(b)(2), (b)(4)(A), (c)(1), and (c)(3)âif it chooses to move forward with an action from the seal period, which is specifically set up for the Government to decide whether to âproceed with the action,â §3730(b)(2).
âThe majorityâs interpretation of âproceeds with the actionâ in turn dictates an unnatural reading of paragraph (c)(3)âs âwithout limitingâ condition. When the FCA says that the Governmentâs belated intervention may not âlimi[t]â the relatorâs âstatus and rights,â 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 âproceeds with the action,â 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.
âNor is that the end of the problems with the majorityâs âseal-agnostic view.â Ibid. Immediately below subsection (c), §§3730(d)(1) and (d)(2) establish two alternative ranges for the relatorâs share of any recovery at the end of a qui tam action. Like the partiesâ litigation rights under paragraphs (c)(1) and (c)(3), those ranges depend on whether the Government has âproceed[ed] withâ the action or not. âIf the Government proceeds with an action brought . . . under  subsection (b),â the relator is usually entitled to between 15 and 25 percent of any recovery. §3730(d)(1). Conversely, â[i]f the Government does not proceed with [the] action,â the relator is entitled to 25 to 30 percent. §3730(d)(2). Given the majorityâs view that intervention under paragraph (c)(3) counts as âproceed[ing] with the action,â it follows that even an eleventh-hour intervention by the Government would automatically shunt the relator out of paragraph (d)(2)âs more generous range and into paragraph (d)(1)âs less generous one. Surely, that result would qualify as âlimiting the [relatorâs] status and rights.â §3730(c)(3).
âThe majority bolsters its tenuous textual and structural case with an appeal to âthe FCAâs Government-centered purposes.â Ante, at 12. But âevery statute purposes, not only to achieve certain ends, but also to achieve them by particular means.â Freeman v. Quicken Loans, Inc., 566 U. S. 624, 637 (2012) (alteration and internal quotation marks omitted). And, while it is certainly the FCAâs ultimate goal to âredress injuries against the Government,â ante, at 12â13, 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.
âIndeed, the FCAâs history undermines the majorityâs free-floating account of its âpurposes.â As enacted in 1863, the original FCA contained no provision for the Government to intervene in a relatorâs 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 âon-off switchâ the majority seems to consider implausible, ante, at 13: Either the Government intervened during the seal period and assumed sole control of  the action, or it did not intervene and was permanently excluded from the action. See 57 Stat. 608â609. 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 litigationâbut 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 roleâbut, if it intervenes later, it does not downgrade the relatorâs âstatus and rightsâ to those of a second-chair litigant. §3730(c)(3).
âIn 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).
âII
âHowever, 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 Governmentâs motion here. At the same time, it is not clear that the parties have examined these questions in their full complexity, and the Third Circuitâs 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 petitionerâs suit.
âThe FCAâs qui tam provisions have long inhabited something of a constitutional twilight zone. There are substantial arguments that the qui tam device is inconsistent with  Article II and that private relators may not represent the interests of the United States in litigation. Because â[t]he entire âexecutive Powerâ belongs to the President alone,â 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 â[a] lawsuit is the ultimate remedy for a breach of the law,â the Court has held that âconducting civil litigation . . . for vindicating public rightsâ of the United States is an âexecutive functio[n]â that âmay be discharged only by persons who are âOfficers of the United Statesâ â under the Appointments Clause, Art. II, §2, cl. 2. Buckley v. Valeo, 424 U. S. 1, 138â140 (1976) (per curiam) (some internal quotation marks omitted). A private relator under the FCA, however, is not âappointed as an officer of the United Statesâ 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 Statesâ interests in civil litigation.
âThe potential inconsistency of qui tam suits with Article II has been noticed for decades. See, e.g., Riley v. St. Lukeâs Episcopal Hospital, 252 F. 3d 749, 758â775 (CA5 2001) (en banc) (Smith, J., dissenting); J. Blanch, Note, The Constitutionality of the False Claims Actâs Qui Tam Provision, 16 Harv. J. L. & Pub. Polây 701, 736â767 (1993); Constitutionality of the Qui Tam Provisions of the False Claims Act, 13 Op. OLC 207, 221â224, 228â232 (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 752â753 (â[H]istory alone resolves . . . whether the qui tam provisions in the FCA violate Article IIâ).  âStanding alone,â however, âhistorical patterns cannot justify contemporary violations of constitutional guarantees,â Marsh v. Chambers, 463 U. S. 783, 790 (1983), even when the practice in question âcovers our entire national existence and indeed predates it,â Walz v. Tax Commân of City of New York, 397 U. S. 664, 678 (1970). Nor is enactment by the First Congress a guarantee of a statuteâs 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 Constitutionâs 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, âwe 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 supremacyâ).
âIn short, there is good reason to suspect that Article II does not permit private relators to represent the United Statesâ 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 âfor [himself]â as well as âfor the United States Government.â §3730(b)(1) (emphasis added). In Stevens, we read this language âas effecting a partial assignment of the Governmentâs damages claim,â which provided âthe theoretical justificationâ for our holding âthat a qui tam relator under the FCA has Article III standing.â 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.
 âUnder Stevensâ partial-assignment theory, it is not immediately clear that the Government may dismiss the relatorâs interest in a qui tam suit, even assuming that the relatorâs representation of the United Statesâ 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 FCAâs attempt to vest the authority to represent the United States in litigation in a party outside the Executive Branch.
âIn examining these issues, moreover, it may be necessary to consider a question that Stevens left unaddressed: What is the source of Congressâ power to effect partial assignments of the United Statesâ 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 FCAâs qui tam provisions could be considered ânecessary and proper for carrying into Executionâ any constitutional power. See Gonzales v. Raich, 545 U. S. 1, 60 (2005) (Thomas, J., dissenting) (âTo act under the Necessary and Proper Clause,â âCongress must select a meansâ not â âprohibitedâ by the Constitutionâ or âinconsistent with âthe letter and spirit of the Constitutionâ â (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 âto dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States,â and which may include the power to assign claims for damages as âother Property.â Art. IV, §3, cl. 2; see also D. Engdahl, The Basis of the Spending Power, 18 Seattle U. L. Rev. 215, 256â257 (1995) (âThe 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 wellâ).
 âIn 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 Governmentâs motion to dismiss and remand for the Third Circuit to consider the correct disposition of that motion in light of any applicable constitutional requirements.
Notes
1 Â The remainder of paragraphs (c)(1) and (c)(2) largely describe the contours of the Governmentâs primary responsibility vis-Ă -vis the relatorâs circumscribed litigation rights. I agree with the Courtâs holding that paragraph (c)(2) is clearly subordinate to paragraph (c)(1). See ante, at 8â10.
2  One other provision of the FCA refers to the Government âmaking an election under section 3730(b),â which likewise clearly signifies the seal-period decision. 31 U. S. C. §3733(a)(1).
3  For two reasons, the fact that my reading of §3730 would require confronting these constitutional questions in this case does not counsel in favor of a different interpretation. First, principles of constitutional avoidance can operate only âin the choice of fair alternatives,â 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 majorityâs 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.