The opinion of the court was delivered by: Siragusa, District Judge.
This matter is before this Court on the defendant's
application [# 76], for a review of the Decision of the
Magistrate Judge [# 75], to whom the case had been referred,
granting a protective order to the United States allowing it
not to participate in party discovery. For the reasons to be
stated, the application is denied.
This is a qui tam action where a private citizen is suing on
behalf of the United States under the False Claims Act ("FCA"),
31 U.S.C. § 3729. Relator Charles V. Farrell, a former employee
of defendant's, claims that defendant, a bearing manufacturer,
violated the FCA by improperly claiming payment from the
Department of Defense for aerospace bearings which did not meet
contractual specifications relating to particulate
contamination. The issue before this Court is whether the
United States, having chosen not to pursue the action through
its Department of Justice lawyers, nevertheless remains a
litigating party subject to the discovery rules. The magistrate
judge's decision was that the United States, despite being the
real party in interest, is not a litigant party in this suit
and is, therefore, not required to comply with discovery
demands as a party. Jurisdiction is based on 31 U.S.C. § 3729,
et seq., and presents a federal question.
Defendant claims to need certain documents from the United
States in order to mount a defense and claims further that the
process for obtaining them if the United States is not a party
to this suit is overly burdensome. Relator opposes this motion
and accepts the magistrate judge's order and is ready to
continue with discovery. Relator further argues that defendant
has contrived the "party" issue, i.e., that the United States
remains a party to this action, in a futile effort to
circumvent the magistrate judge's protective order. However,
both Relator and defendant agreed during oral argument that
discovery with the United States as a non-party is laborious,
slow and not fruitful.
During oral argument, defendant proposed that even though the
United States Department of Justice has decided not to expend
its resources on this suit and has chosen not to intervene
under the False Claims Act, Relator Farrell is the de facto
United States Attorney, and that, therefore, the United States
is, for purposes of discovery, a party litigant to this action.
Following oral argument, defendant cited the recent decision of
the Second Circuit in United States ex. rel. Stevens v. State
of Vermont, 162 F.3d 195, (2nd Cir. 1998) as controlling
authority for its position. In that case the Court stated that
a qui tam action is, "in essence a suit by the United States
and hence is not barred by the Eleventh Amendment," Stevens,
162 F.3d 195, 203. Compelling as that language might seem, the
issue there was distinctly different. In Stevens the Court was
asked to decide whether a private qui tam plaintiff could
maintain an action against a state. The Second Circuit did not
discuss whether the United States remained a party litigant to
the suit. If this Court were to interpret the False Claims Act
as Relator requests, it would effectively remove from the
statute the government's ability to choose not to intervene. If
the United States remains a party to every qui tam action,
Congress's intent in creating the option provision would be
thwarted since the government counsel would have to expend
government resources to respond to discovery requests from
hundred's of private suits*fn1.
Moreover, if, as plaintiff argues, Relator is the
government's attorney, then decisions about discovery requests,
document release and deposition of government employees, would
be left to hundreds of private attorney generals who would have
no obligation to see that the United States' overall interests
were protected. This cannot be what Congress intended when it
created the option for the United States to decline
intervention. Furthermore, "statutes must be interpreted to
give meaning to all of their terms," see United States v.
LaPorta, 46 F.3d 152, 156 (2d Cir. 1994) ("[A]ll parts of a
statute, if possible, are to be given effect.") (internal
quotations and citations omitted); United States v. Bernier,
954 F.2d 818, 819 (2d Cir. 1992) (per curiam) ("`[C]ourts must
give effect to every word of a statute where possible.'), cert.
denied, 508 U.S. 941, 113 S.Ct. 2417, 124 L.Ed.2d 640 (1993)."
Perry v. Dowling, 95 F.3d 231, 238 (2nd Cir. 1996). Thus, this
Court must decline to adopt defendant's interpretation of the
Additionally, decisions concerning the constitutionality of
the False Claims Act support this Court's finding that qui tam
plaintiffs do not act as the government's attorneys. Numerous
courts have addressed the issue of whether qui tam plaintiffs
are officers of the United States within the meaning of the
Appointments Clause of the U.S. Constitution and have held
beyond question that they are not. U.S. Const., art. 2, § 2,
cl. 2; U.S. ex rel. Taxpayers Against Fraud v. General Elec.
Co., 41 F.3d 1032 (6th Cir. 1994); U.S. ex rel. Madden v.
General Dynamics Corp., 4 F.3d 827 (9th Cir. 1993); U.S. ex
rel. Robinson v. Northrop Corp., 824 F. Supp. 830 (N.D.Ill.
1993); U.S. ex rel. Burch v. Piqua Engineering, Inc.,
803 F. Supp. 115 (S.D.Ohio 1992); U.S. ex rel. Truong v. Northrop
Corp., 728 F. Supp. 615 (C.D.Cal. 1989). Defendant's argument
that Relator is the government's attorney directly contradicts
this line of cases.
This Court finds that, though the discovery process is
prolonged and unreasonably cumbersome, the law is,
nevertheless, that the United States is no longer a party
litigant to this suit. Thus, for the reasons stated in
Magistrate Judge Leslie G. Foschio's decision and order, ,
this Court denies defendants' application under
28 U.S.C. § 636(b)(1)(A) to reconsider the magistrate judge's decision and
order. Magistrate Judge Foschio's decision is neither clearly
erroneous nor contrary to law and it is hereby
ORDERED that the magistrate judge's decision and order 
of May 18, 1998, is affirmed.