US ex rel Polansky v. Executive Health Resources (US Supreme Ct 06/17/2023) [PDF] was unremarkable as to its actual holding – the government can let a False Claims Act qui tam case proceed for years and then intervene and get it dismissed quite easily.

What needs to be noticed is that three Justices opined 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."

Justice Thomas laid it out this way:

"The FCA’s qui tam provisions have long inhabited something of a constitutional twilight zone. There are substantial arguments that the qui tam device is inconsistent with Article II and that private relators may not represent the interests of the United States in litigation. Because “[t]he entire ‘executive Power’ belongs to the President alone,” it can only be exercised by the President and those acting under him. 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. A private relator under the FCA, however, is not “appointed as an officer of the United States” under Article II. 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." [Several citations omitted]

Justice Kavanaugh, joined by Justice Barrett, penned a brief concurring opinion expressing the same view.

The False Claims Act has been the main vehicle for fighting fraud against the government, and private whistleblowers (relators in qui tam language) have collected countless millions of dollars. The chance to collect between 15 and 30 percent has been a big incentive for whistleblowers.