Ricks et al v. Menlo Worldwide Government Services, LLC et al

Filing 36

ORDER signed by District Judge Kimberly J. Mueller on 6/9/16 ORDERING that the United States' request to retain the seal on the extension requests is DENIED; and the temporary seal on the previous filings is LIFTED. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES ex rel. RICHARD
RICKS, et al.,
Plaintiffs,

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No. 2:13-cv-00539-KJM-AC

ORDER
v.
MENLO WORLDWIDE GOVERNMENT
SERVICES, LLC, et al.,
Defendants.

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On April 23, 2016, the United States gave notice that it had decided to intervene in

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this qui tam action under the False Claims Act (FCA), 31 U.S.C. §§ 3729 et seq. ECF No. 30.

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On May 3, 2016, this court, in reviewing the notice of intervention, ordered that the action be

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unsealed, that the first amended complaint (ECF No. 29) and the United States’ notice of

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intervention (ECF No. 30) be unsealed, and that all other previous filings remain under temporary

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seal pending further order. ECF No. 31. The court ordered any party to show cause why the

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previous filings, which included the original complaint, several requests for extensions of time for

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the United States to decide whether to intervene, and declarations and other materials submitted

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in support of those requests, should remain under seal. Id. On May 17, 2016, the United States

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responded to the court’s order, requesting that the extension requests remain under seal. ECF
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No. 35. As explained below, this court DENIES the United States’ request to retain the seal over

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the extension requests and LIFTS the temporary seal over the previous filings.

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I.

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LEGAL STANDARD
The court provided the applicable legal standard in its May 3, 2016 order. ECF

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No. 31. The FCA provides that a qui tam action must be filed under seal while the United States

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decides whether to intervene, see 31 U.S.C. § 3730(b)(2), but it clearly contemplates that after the

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United States makes a decision, the seal will be lifted, see id. § 3730(b)(3); U.S. ex rel. Lee v.

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Horizon W., Inc., No. 00-2921, 2006 WL 305966, at *2 (N.D. Cal. Feb. 8, 2006). Generally, the

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seal will be lifted entirely “unless the government shows that such disclosure would: (1) reveal

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confidential investigative methods or techniques; (2) jeopardize an ongoing investigation; or

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(3) harm non-parties.” Id. “[I]f the documents simply describe routine or general investigative

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procedures, without implicating specific people or providing substantive details, then the

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Government may not resist disclosure.” Id.; see also United States v. CACI Int’l Inc., 885 F.

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Supp. 80, 83 (S.D.N.Y. 1995). The FCA “evinces no specific intent to permit or deny disclosure

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of in camera material as a case proceeds.” U.S. ex rel. Mikes v. Straus, 846 F. Supp. 21, 23

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(S.D.N.Y. 1994). Rather, it “invests the court with authority to preserve secrecy of such items or

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make them available to the parties.” Id. Overall, the court’s decision must also account for the

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fundamental principle that court records are generally open to the public. U.S. ex rel. Costa v.

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Baker & Taylor, Inc., 955 F. Supp. 1188, 1191 (N.D. Cal. 1997).

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II.

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DISCUSSION
Here, the United States provides several reasons to retain the seal over its seal

extension requests:
First, the federal False Claims Act expressly provides for the
unsealing of a Relator’s complaint only—not the entire docket—
when the United States makes an intervention decision. Second,
revealing the contents of the government’s requests to extend the
seal would give future defendants a window into confidential
government fraud investigations and could weaken the
government’s antifraud efforts . . . . Third, unsealing the requests
could cause harm. Fourth, lifting the seal creates a “Catch-22” for
the government that could limit its ability to provide the Court
detailed information regarding the progress of the government’s
investigation in connection with requests to extend the seal.
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Finally, no party has requested these documents be unsealed or
argued any legitimate need exists for their disclosure.

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ECF No. 35 at 1.

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With respect to the first and fifth reasons, the court declines to reconsider its

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previous interpretation of the applicable legal standard articulated in its May 3, 2016 order.

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Although it is true the FCA does not explicitly reference the unsealing of any documents filed

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with the court except the complaint, the FCA also does not expressly preclude the court’s

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determining the propriety of lifting the seal on other documents. U.S. ex rel. Erickson, 339 F.

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Supp. 2d at 1126. It is within the court’s authority to determine if the seal should be lifted in part

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or in whole. See U.S. ex rel. Lee v. Horizon Wests, Inc., 2006 WL 305966, at *2.
The court is also not persuaded by the second reason. The United States argues

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the requests for extension reveal “specific, confidential information regarding the investigation,”

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such as “a description of meetings, discussion methods and [the] investigatory plan going

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forward.” ECF No. 35 at 4–5. But a careful in camera examination of the extension requests

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shows that they merely describe routine investigative procedures, without implicating specific

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people or providing substantive details. In discussing the reasons an extension was warranted, the

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United States provided a general description of the nature and status of requests made to further

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its investigation. See, e.g., ECF No. 24. Although the November 23, 2015 request to extend the

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seal detailed slightly more specific categories of information and documents being requested,

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such as “information concern[ing] the contract at issue, corporate knowledge, and thousands of

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claims under different contract provisions,” id. at 2, it did not disclose any confidential

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information, investigative techniques, or attorney thought processes. Thus, this situation is

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analogous to the one described in United States v. CACI, in which the court denied a request to

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retain extension requests under seal because the requests did not provide any substantive details

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about the investigation. 885 F. Supp. at 83.

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Similarly, with respect to the third reason, it is not clear how disclosure of the

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remaining court documents would be harmful. The United States speculates that unsealing the

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requests would generally interfere with the government’s anti-fraud efforts, but does not describe
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any specific, concrete harm that would follow any unsealing. Asserting speculative and general

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harms, without more, does not satisfy the required showing that disclosure would reveal

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confidential investigative methods or techniques, jeopardize an ongoing investigation, or harm

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non-parties. See U.S. ex rel. Lee v. Horizon Wests, Inc., 2006 WL 305966, at *2.

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Finally, the fourth “catch-22” argument is unavailing. If, as appears to be the case

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here, the United States erred on the side of withholding details in the event its sealing request was

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denied, then those details will not be disclosed upon unsealing.

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III.

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CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that:
1. The United States’ request to retain the seal on the extension requests is
DENIED.
2. The temporary seal on the previous filings is LIFTED.
IT IS SO ORDERED.

DATED: June 9, 2016

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UNITED STATES DISTRICT JUDGE

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