“The Constitution precludes transferring the Executive’s prosecutorial power to qui tam relators while cutting off the Executive’s right to control the litigation.”
—Cory L. Andrews, WLF General Counsel & Vice President of Litigation

Click HERE for WLF’s brief.

(Washington, DC)—Washington Legal Foundation (WLF) today urged the U.S. Supreme Court to affirm a decision of the U.S. Court of Appeals for the Third Circuit that confirms the government’s right to dismiss a qui tam suit under the False Claims Act (FCA), even after initially declining to intervene in the suit. WLF’s amicus brief was drafted with the pro bono assistance of Kristin Graham Koehler, Joshua J. Fougere, Christopher S. Ross, and Alexandria T. Mushka of Sidley Austin LLP.

The case arises from a qui tam suit alleging that respondent, Executive Health Resources, enabled hospitals to certify inpatient services when, under Medicare rules, those services should have been outpatient. The government investigated the allegations for two years before declining to intervene. When the relator failed to narrow the suit’s claims, the government decided to dismiss the action. The Third Circuit affirmed, and the Supreme Court granted review.

The relator asks the Court to interpret the FCA to mean that the Executive Branch has no authority to dismiss an FCA action after declining to intervene. In its amicus brief, WLF explains why adopting that interpretation would undermine the Constitution’s separation of powers. The FCA’s enlistment of private prosecutors already pushes the limits of Article II near the breaking point. The statute so far has survived more sweeping constitutional challenges, but it has done so only because of the significant control that the dismissal power provides to the Executive. Taking that power away would undermine the Executive Branch and violate the Constitution’s separation of powers.