The opinion of the court was delivered by: ROBERT L. CARTER
The government argues that materials, including, but not limited to, any motions filed by the United States for extensions of the sixty-day investigative period or for any other reason, correspondence, memoranda, and supporting documents should remain under seal and not be made public or served upon the defendants because the government presented these materials to the court in camera. The government has proposed an order to this effect for the court's approval.
Pentagen seeks to have the complaint and all other documentation released from under seal and served upon the defendants, arguing that the information the government filed with the court in prior applications in the action is still relevant and that the government has not stated a sufficient reason for exclusion of these materials. Pentagen contends that once the government has decided not to intervene under § 3730(b)(4)(B), it is no longer entitled to limit the proceedings and the court, therefore, lacks jurisdiction to carry out the government's proposed order.
Based on statutory language, legislative history and precedence, the court declines to endorse the government's order and concludes that the complaint and all other materials in the court's files may be released from under seal.
A. Statutory interpretation
31 U.S.C. § 3729 provides a civil action for fraud against the government and § 3730(b)(1) authorizes individuals to "bring a civil action for a violation of section 3729 for the person and for the United States . . ." in the name of the government. § 3730(b)(1). "The Government may elect to intervene and proceed with the action," § 3730(b)(2), or it may "notify the court that it declines to take over the action, in which case the person bringing the action [the qui tam relator] shall have the right to conduct the action." § 3730(b)(4)(B); see United States ex rel. Kreindler & Kreindler v. United Technologies Corp., 985 F.2d 1148, 1153 (2d Cir.), cert. denied, 125 L. Ed. 2d 663, 113 S. Ct. 2962 (1993); United States ex rel. Dick v. Long Island Lighting Co., 912 F.2d 13, 16 (2d Cir. 1990); United States ex rel. Mikes v. Straus, 853 F. Supp. 115, 117 (S.D.N.Y. 1994) (Broderick, J.).
31 U.S.C. § 3730(c)(3) explicitly states that "if the Government elects not to proceed with the action, the person who initiated the action shall have the right to conduct the action." The statute states that under these circumstances, the government maintains the right to be served with copies of all pleadings filed in the action and to be supplied with all deposition transcripts, however, the statute makes no mention of the government's right to keep in camera information under seal indefinitely. Id. Furthermore, § 3730(c)(3) allows the government to later intervene in the action if it so desires, but only upon a "showing of good cause" and "without limiting the status and rights of the person initiating the action." Hence, even when the government intervenes it can not limit the status and rights of the qui tam relator, one of which is "the right to conduct the action." §§ 3730(b)(4)(B), 3730(c)(3). Therefore, it follows that when the government chooses not to intervene, at the very least it cannot limit the status and rights of the qui tam relator when conducting the action.
31 U.S.C. § 3730(b)(3) permits the government "for good cause" to move the court for an extension of time in which the complaint remains under seal while the government decides whether it will intervene in the action. In such case, the government's supporting affidavits to the motion and submissions are made in camera. While § 3730(b)(3) only refers to the complaint, this section illustrates that the government may be limited in the amount of time it may keep material under seal. Here, the government seeks to have all of the documents in the court's files remain under seal, save for the complaint, without providing any explanation or good cause for its request
In order to prevent the United States Treasury from being drained of millions of dollars each year by fraudulent billings by federal government contractors, Congress enacted the FCA. See S. Rep. No. 345, 99th Cong., 2d Sess. 3, reprinted in 1986 U.S Code Cong. & Admin. News 5266, 5268. Congress further strengthened the FCA in 1986 by revamping its qui tam provisions to encourage private individuals to bring suits on behalf of the government. United States ex rel. Doe v. John Doe Corp., 960 F.2d 318, 319 (2d Cir. 1992); United States ex rel. McCoy v. California Medical Review, Inc., 715 F. Supp. 967, 968 (N.D. Cal. 1989) ("Congress' objectives in amending the Act [were] principally to expand the role of qui tam plaintiffs and to keep pressure on the United States to prosecute the cases") (citing S. Rep. No. 99-345, 99th Cong., 2d Sess. 24, reprinted in 1986 U.S Code Cong. & Admin. News 5266, 5288-92). In the context of requesting extensions, Congress stated, "the Government should not, in any way, be allowed to unnecessarily delay lifting of the seal from the civil complaint or processing of the qui tam litigation." United States ex rel. McCoy, 715 F. Supp. at 969 n.1 (quoting S. Rep. No. 99-345, 99th Cong., 2d Sess. 24, reprinted in 1986 U.S. Code Cong. & Admin. News 5266, 5290). Indeed, Congress noted that "much of the purpose of qui tam actions would be defeated unless the private individual is able to advance the case to litigation." S. Rep. No. 99-345, 99th Cong., 2d Sess. 24, reprinted in 1986 U.S. Code Cong. & Admin. News 5266, 5289; see United States ex rel. McCoy, 715 F. Supp. at 970 ("Congress clearly intended to bestow upon ...