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Supreme Court will tackle government’s authority to dismiss whistleblower suits

As the court nears the final rulings of its term, next year’s docket is beginning to take shape. 

WASHINGTON (CN) — The government’s authority over the dismissal of whistleblower suits will receive high court scrutiny next term, with the justices taking up a False Claims Act case involving a doctor on Tuesday.

Dr. Jesse Polansky was acting as a physician-adviser for a Medicare billing outfit called Executive Health Resources when he cried foul over a billing scheme that apparently exploited the differing reimbursement rates for inpatient and outpatient services, resulting in the federal government paying hundreds of thousands of dollars in false claims.

As a whistleblower, Polansky would be entitled to three times whatever recovery the government made in correcting the fraud. The two-year investigation that racked up about $20 million in attorney time and costs, as well as uncontroverted evidence of a potential billion-dollar recovery, but ultimately the government declined to pass on the case.

When the case was on the verge of summary judgment, the government moved to dismiss. Polansky wants the case reinstated, saying the government lacks any dismissal authority under the False Claims Act "after initially declining to intervene and instead vesting the relator with 'the right to conduct the action' — a statutory right framed in unitary terms
that this Court has recognized as 'exclusive.'"

Per its custom, the Supreme Court did not issue any comment in adding Polansky's case to a Tuesday morning order list

The case is one of two granted a writ of certiorari. The other involves violations of the Bank Secrecy Act's requirement for people to keep records when they make a transaction with a foreign financial agency. Citizens can do this by filling out a yearly FBAR form — it's short for Report of Foreign Bank and Financial Accounts — and those do not submit an FBAR can be charged a penalty. The case before the court asks what the maximum penalty under this act can be. 

Apart from the two grants, the court declined to take up dozens of cases. Justice Clarence Thomas dissented to one such denial involving an Ohio capital case. August Cassano was already serving a life sentence when he stabbed his new cellmate 75 times with a prison shank. He was convicted of capital murder and sentenced to death. Over 20 years later, however, Cassano was granted habeas relief because a state trial court ignored his request to represent himself at trial. Joined by Justice Samuel Alito, Thomas claims the appeals court errored in granting relief and ignored deference to the Antiterrorism and Effective Death Penalty Act. 

“The Court of Appeals should have faithfully applied AEDPA deference and denied the writ,” Thomas wrote. “Its failure to do so ‘illustrate[d] a lack of deference to the state court’s determination and an improper intervention in state criminal processes, contrary to the purpose and mandate of AEDPA and to the now well-settled meaning of and function of habeas corpus in the federal system.’” 

Noting that the court has reversed the Sixth Circuit almost two dozen times for improperly applying AEDPA, Thomas said this case should have been added to that list. 

“Instead, the Court chooses to leave in place a clearly erroneous decision that relieves Cassano of his death sentence,” Thomas wrote. “In doing so, the Court inflicts a harm on ‘the State and its citizens.’ By saddling the State with the risk and expense of retrying a repeat murderer’s quarter-century-old capital case, the Court permits the Court of Appeals to ‘intrud[e] on [Ohio’s] sovereignty to a degree matched by few exercises of federal judicial authority.’”

Tuesday’s order list also included a rehearing denial on a case the justices decided this term. In April the court ruled that emotional distress damages were not available in disability discrimination suits. Only a month later, however, a petition before the court asked the justices to reconsider claiming the court used the wrong statute to decide the case. 

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