Failure To File Under Seal Leads To Dismissal

When a qui tam plaintiff files a complaint in federal court under the False Claims Act, the statute requires that the complaint be filed “under seal.”  This means that the defendant company is not made aware of the filing, and the case does not appear on the court’s publicly available docket (which is essentially the court’s index of all the cases pending before it).   To satisfy the “under seal” requirement, the qui tam plaintiff must file his or her complaint with a motion to the court asking to have the complaint filed and maintained under seal.  In the absence of such a motion, the clerk’s office (the branch of the court that is responsible for maintaining the court’s docket and files) may file the case on the public docket, thereby making the existence of the case known to the public.

So, what happens if a qui tam relator files a complaint, but does not file a motion to seal?  An answer was provided by Senior Judge Wiseman of the United States District Court for the Middle District of Tennessee.  In a decision issued on June 11, 2009 in United States ex rel. Summers v. LHC Group, Inc., Civil Action No. 09-CV-277, Senior Judge Wiseman ruled that the failure of the relator’s lawyer to file a motion to seal — which resulted in the public docketing of the case — required dismissal of the case entirely.

According to the court’s opinion, when the relator’s lawyer filed the case on a Friday, someone from the clerk’s office called him to discuss whether the case needed to be filed under seal.  The lawyer, however, took no action, and by the following Tuesday the case was publicly docketed.  A few days later, the lawyer finally filed a motion to seal, but that motion was denied because the lawyer failed to include an explanation for why the case needed to be filed under seal.  The defendant subsequently learned of the case, and filed the motion to dismiss, which the court granted.

The False Claims Act has a series of unusual procedural requirements, including the “under seal” requirement.  Even attorneys who are very experienced litigators may be unaware of these requirements if they have not handled qui tam cases before.   The lesson of this decision is that the False Claims Act contains many traps for the unwary.  Both qui tam whistleblowers, and their attorneys, need to be aware of these traps, and be fully prepared to avoid them.

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