The Supreme Court’s order granting certiorari in Polansky v. Executive Health Resources signals its intention to settle a circuit court split on the procedure and standard by which the government can exercise its dismissal authority under the False Claims Act in declined qui tam cases. The Court’s decision to expend its resources on this question—as opposed to ones of far greater importance that remain unresolved—is somewhat surprising. That is because, in reality, the government rarely deploys its broad powers to dismiss—although it has exercised this power more after the issuance of the “Granston Memo”—and that reluctance to act both predates the circuit split and cannot be attributed to it.
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