Qui Tam Complaints shall be filed in camera and placed under seal
I have received questions from several readers over the past year or so about the seal requirements of the federal False Claims Act and, more specifically, what is required by the seal provisions found in 31 U.S.C. § 3730(b)(2). Several readers have informed me that some U.S. District Court Case Managers believe that qui tam cases filed under the federal FCA are automatically placed under seal by virtue of the language of the statute, and that no motion to seal or proposed order sealing the case until further notice is needed.
This exchange usually happens when a lawyer files a new qui tam action in a U.S. District Court. The unique procedural requirements of the law require that several other items be filed along with the Complaint. First, the lawyer also needs to file a Motion to Withhold Issue of Summons, and second, the lawyer needs to a Motion to File In Camera and Place Under Seal (or at least, that is what I call my motions) together with a draft Order to be entered by the Court.
Talk about a sticky wicket — generally speaking, I am of the opinion that wise lawyers treat Case Managers, Court Room Deputies, and other court officials with the exact same respect that would be shown to a Judge. The administrative staff of a Court knows a great deal about how the Court works. They are certainly worth listening to, and they are usually willing to share their knowledge freely. So what is a wise lawyer to do when a Case Manager says that a Motion to File Under Seal isn’t needed, because that particular Court simply files qui tam Complaints under seal automatically?
If a Case Manager takes this position, it is not as off-base as one might think initially.
Back to the basics — the language of 31 U.S.C. § 3730(b)(2)
31 U.S.C. § 3730(b)(2) provides that when filing a qui tam Complaint:
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.
So, the language of the statute itself does not mention a Court Order. But, I am of the firm opinion that a Seal Order is a vital element to be filed with the Court, and I think there is plenty of support for that idea in the above-language. Here is why: first, to file something with a Court in camera means, according to every legal dictionary, to file it in a non-public manner for a Judge — and only a Judge — to review. Certainly the Judge as this stage of the proceedings is not required by law to read the Complaint; I therefore think that the need for a seal order is implied by virtue of a second principle, which is that Courts speak through their Orders.
So as to how I would handle this situation (i.e., the situation where a Case Manager says a seal order isn’t necessary) I would suggest politely asking them to humor you and submit the Order to the Judge anyhow…