Operation Orders - Regarding all Qui Tam actions filed under the Federal False Claims Act pending on the docket of United States District Judge Joseph F Anderson Jr
OPERATING ORDER regarding Qui Tam actions on the docket of Judge Joseph F. Anderson, Jr. Signed by Honorable Joseph F. Anderson, Jr on 11/18/2013. (bshr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ALL QUI TAM ACTIONS FILED UNDER
THE FEDERAL FALSE CLAIMS ACT
PENDING ON THE DOCKET OF UNITED
STATES DISTRICT JUDGE JOSEPH F.
This order is being entered to memorialize this court’s position regarding repeated
requests to extend the sixty-day statutory seal period1 by the government in numerous
unrelated qui tam actions now pending on this court’s docket.
In particular, in recent years, this court has extended the seal period, at the request of
the government, on eight occasions in two actions. The government recently announced its
intention not to join in those actions, and the court, therefore, has authorized the unsealing
of those cases and the service of the pleadings upon the defendants. These cases are both
31 U.S.C.A. § 3730 provides:
(2) A copy of the complaint and written disclosure of substantially all material evidence and
information the person possesses shall be served on the Government pursuant to Rule
4(d)(4) of the Federal Rules of Civil Procedure. The complaint shall be filed in camera, shall
remain under seal for at least 60 days, and shall not be served on the defendant until the
court so orders. The Government may elect to intervene and proceed with the action within
60 days after it receives both the complaint and the material evidence and information.
(3) The Government may, for good cause shown, move the court for extensions of the time
during which the complaint remains under seal under paragraph (2). Any such motions may
be supported by affidavits or other submissions in camera.
now more than three years old and, therefore, must be reported on this court’s semi-annual
report of long-pending cases.2
In four other sealed actions, this court has extended the seal numerous times, ranging
from two (in an action filed March 12, 2013) to five (in an action filed June 14, 2011). Most
of the time, the government has suggested that an extension of the seal period is appropriate
because the government has received permission from this court to disclose the existence of
the lawsuit to the defendant for the purpose of requesting documents from the defendant and
attempting to settle the case.
As observed by the United States Court of Appeals for the Fourth Circuit, Congress
adopted the sixty-day seal period for numerous reasons:
(1) to permit the United States to determine whether it already was
investigating the fraud allegations (either criminally or civilly); (2) to permit
the United States to investigate the allegations to decide whether to intervene;
(3) to prevent an alleged fraudster from being tipped off about an
investigation; and, (4) to protect the reputation of a defendant in that the
defendant is named in a fraud action brought in the name of the United States,
but the United States has not yet decided whether to intervene.
Am. Civil Liberties Union v. Holder, 673 F.3d 245, 250 (4th Cir. 2011) (citing S.Rep. No.
99–345, at 24–25 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5289–90; Under Seal v.
Under Seal, 326 F.3d 479, 486 (4th Cir. 2003); United States ex rel. Pilon v. Martin Marietta
Corp., 60 F.3d 995, 998–99 (2d Cir.1995)).
Noticeably, none of the foregoing reasons for extending the seal period involve
In one of the cases, the government repeatedly represented that extensions were necessary because
the case was very close to settlement. That case has not settled and the government declined to intervene.
discovery of documents from the putative defendant or settlement negotiations. Further, the
Committee on the Judiciary, in a Senate report, found “that with the vast majority of cases,
60 days is an adequate amount of time to allow Government coordination, review and
decision.” S. REP. 99-345, 24-25, 1986 U.S.C.C.A.N. 5266, 5289-90.
For the foregoing reasons, this court enters this Standing Order to provide notice to
the government that, henceforth, the court will no longer consider informal discovery and/or
settlement negotiations as sufficient grounds for extending the seal period. Rather, the court
will determine, as commanded by the statute, whether the government has shown “good
cause” for extending the seal period.
IT IS SO ORDERED.
November 18, 2013
Columbia, South Carolina
Joseph F. Anderson, Jr.
United States District Judge
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