Supreme Court of the United States

“ 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 ”

“ 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) ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ↑ As 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.” ”

“ 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”) . ”