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UNITED STATES EX REL. MIKES v. STRAUS

March 15, 1994

UNITED STATES ex rel. PATRICIA S. MIKES and PATRICIA S. MIKES individually, Plaintiffs,
v.
MARC J. STRAUS, JEFFREY M. AMBINDER and ELIOT L. FRIEDMAN, Defendants.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 This case is brought by plaintiff Patricia S. Mikes under the federal Qui Tam statute (31 U.S.C. 3730) against defendants, physicians by whom plaintiff was employed, alleging that diagnostic tests paid for by Medicare were improperly conducted. Plaintiff also asserts that defendants have failed to pay withholding taxes, dismissed her for complaining about the improprieties, and owe her back wages.

 The Qui Tam statute permits a party discovering fraud against the United States as defined in 31 U.S.C. 1329 to bring the matter to the attention of the Attorney General, who may pursue a suit for the benefit of the United States and, and alternatively if the Attorney General declines the plaintiff may, as here, proceed.

 The statutory text in permitting restrictions on Qui Tam suits (see § 3830(c)) indicates congressional recognition that the device is an extremely powerful weapon against fraud, which should be administered with care to minimize obvious risks of encouraging abuse for adventitious reasons. Compare United States v. Bryser, 838 F. Supp. 124 (S.D.N.Y. 1993) (discussing mail fraud statute, 18 U.S.C. 1341).

 Plaintiff also seeks relief under New York's "whistle blower" statute (NY Labor Law 740), which permits an employee subjected to adverse personnel action for reporting hazards to public health or safety which violate laws or regulations to seek reinstatement, back pay and similar relief.

 The United States Attorney, during investigation of the matter leading to a decision not to proceed, submitted material to the court in camera as permitted by 31 U.S.C. 3730(a)(3) seeking extensions of time during which the decision to proceed or not do so could be considered. The parties have agreed to unseal all such material except a Status Report (Docket # 6, filed December 28, 1992). Opposing positions have been submitted concerning whether or not the Status report should be made available to defendants. Because, as set forth below, examination of the document shows that it contains no confidential information, it is ordered unsealed together with all other sealed material in the court file of this case.

 II

 The Qui Tam statute evinces no specific intent to permit or deny disclosure of in camera material as a case proceeds. For contrast, see Baldrige v. Shapiro, 455 U.S. 345, 360-62, 71 L. Ed. 2d 199, 102 S. Ct. 1103 (1982) (Census Act). In permitting in camera submissions, the statute necessarily invests the court with authority to preserve secrecy of such items or make them available to the parties. Such decisions may be characterized as discovery matters either directly under, or closely analogous to those considered under, Fed.R.Civ.P. 26(c), which authorizes protective orders for protection of trade secrets and similar information. Resolution of disputes under Rule 26(c) is based on a pragmatic balancing of the need for and harm risked by, disclosures sought.

 Where disclosure of confidential investigative techniques, of information which could jeopardize an ongoing investigation, or of matters which could injure non-parties is requested, courts have recognized the interest of the public in denying or deferring disclosure. See Friedman v. Bache, 238 U.S. App. D.C. 190, 738 F.2d 1336, 1341 (D.C. Cir. 1984); Black v. Sheraton Corp, 184 U.S. App. D.C. 46, 564 F.2d 531, 542 (D.C. Cir. 1977); Ass'n for Women in Science v. Califano, 185 U.S. App. D.C. 19, 566 F.2d 339, 343 (D.C. Cir. 1977).

 No privilege is necessary for protection to be granted under Rule 26(c) if appropriate under the circumstances. See Gottlieb v. County of Orange, 151 F.R.D. 258 (S.D.N.Y. 1993). *fn1"

 III

 In camera examination shows that the Status Report describes routine investigative procedures which anyone with rudimentary knowledge of investigative processes would assume would be utilized in the regular course of business. It contains no information about specific techniques such as what items might be looked for in an audit, what types of employees of an entity should be contacted and how, what laboratory tests might be utilized, or the like. By contrast, references concerning routine sources of information actually considered may be of some, albeit doubtless limited, use to ...


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