XIII. The secret docketing procedures for qui tam cases under the False Claims Act, and their misapplication to the 90c5009 case. 

On August 28, the clerk created an electronic docket for 90c5009 that was captioned, not with the names of the parties, but anonymously, as “Suppressed v. Suppressed.”  No other entries were made on the 90c5009 docket for the next 58 months, until May 15, 1995.  As a result of this derogation from the requirements of FRCP 79(a), there was, during that 58-month period, no official record of the approximately 380 pleadings, motions, briefs, orders, and other papers generated in 90c5009. 

So far as I have been able to determine, qui tam cases filed under the False Claims Act (“Act” or “FCA”)[1]  are the only category of cases exempt from the docketing requirements in FRCP 79(a).  Even in qui tam cases the exemption is for only 60 days, and can be extended only on a showing of good cause by the United States Department of Justice (“DOJ”).  

As explained below in §D, the secret operating procedures for qui tam cases are inapposite to civil litigation in which the DOJ is not involved.

A. The Northern District of Illinois’ electronic docketing procedures.

Rule 79(a) of the Federal Rules of Civil Procedure requires the clerk of court to keep a “book known as ‘civil docket.”  The clerk is required to enter on the docket all papers filed by the litigants and all “orders, judgments, and verdicts” rendered by the court.  These docket entries define the scope of the official record in the trial court.[2] 

The Northern District of Illinois complies with FRCP 79(a) electronically.  The electronic docket for each new case is captioned with the names of the initial plaintiff and initial defendant (“Smith, et al., v. Jones, et al.”).  It also lists the name and address of the plaintiff’s lawyers and describes the nature of plaintiff’s claims and the relief sought.  As and when parties file new papers, or the court issues orders, the clerk updates the docket, recording both the date the paper (or order) was filed (or issued) and the date the paper (or order) was entered on the docket. 

B. The secret docketing procedures required for qui tam cases under the False Claims Act.

The FCA was enacted in 1863 in an effort to “combat rampant fraud in Civil War defense contracts.”[3]  The Act enabled the government to recover civil penalties, including double the damages caused by the submission of false claims.

The Act contained a qui tam[4] provision stating that a lawsuit enforcing the statute “may be brought and carried on by any person, as well for himself as for the United States.”  Such a person, known as the “relator” (but now more commonly referred to as a “whistleblower”), would be entitled to half the government's recovery, plus costs.

For the first 123 years of the existence of the FCA, qui tam actions were filed and docketed publicly, in accordance with the rules governing civil actions generally.  This changed in 1986, when amendments to the FCA provided that a “[qui tam] 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.”[5]  According to the DOJ, this temporary seal is necessary to prevent the potential defendant from being tipped off that there might be a parallel criminal investigation.[6]

So long as a qui tam case is under seal, it is not listed on the court’s public docket, so the public does not know that the case has been filed.[7] 

The qui tam complaint is, however, served on the DOJ, along with a “disclosure statement” containing substantially all the evidence in the possession of the relator about the allegations set forth in the complaint.[8]  This disclosure statement is not filed in any court, nor is it available to the named defendant. 

After the qui tam case is filed, and while it remains under seal, the DOJ has 60 days to investigate the allegations and then to decide whether to take over the lawsuit and adopt it as its own.  This 60-day period is subject to extensions for “good cause.”  In practice, the DOJ routinely asks for several extensions, and the courts routinely grant such requests.  As a result, lawsuits may be kept under seal for up to a year, or even longer.[9] 

Once there has been sufficient time to investigate the allegations, the DOJ must notify the court either that it will intervene and adopt the case, or that it will decline the case. At that point, the court unseals the case and the lawsuit is served on the defendant.

C. The Northern District of Illinois’ unpublished operating procedures for sealing qui tam cases

The Northern District of Illinois has developed special operating procedures for handling qui tam suits subject to the FCA.  These procedures have never been published, though in August 2000, I persuaded Ms. Nelida French, a deputy clerk, to summarize them in an email.[10]

When a qui tam case is filed under seal, an electronic docket is created on the day the case is filed, but the docket is captioned, not with the names of the parties, but as “Suppressed v. Suppressed.”  No other entries are made on the initial docket, not even the name of the lawyer who filed the case. 

So long as the case remains under seal, the clerk does not make any chronological entries on the electronic docket or otherwise make any written record of the parties’ filings or the court’s orders.  The sealed papers are stored on a shelf in the vault on the 20th floor of the Dirksen Building by case number and, within each case, in chronological order. 

An official record is created for a sealed case only if, and when, an appeal is filed.  Then, the clerk will manually create a docket of the entire case file and transmit the docket and the file to the court of appeals, under seal.  

D. The qui tam secrecy procedures have no place in purely private civil litigation that does not involve the DOJ.

Congress mandated secrecy for the initial stages of a qui tam case for one reason only—to protect the DOJ’s interest in conducting an undercover criminal investigation of the civil defendants.  The secrecy is not for the benefit of the civil defendants.  United States ex rel. Lujan v. Hughes Aircraft Co., 67 F.3d 242 (9th Cir. 1995) (holding that “protecting the rights of defendants is not an appropriate consideration when evaluating the appropriate sanction for a violation of the [False Claims Act’s] seal provision”).

There is no plausible reason for applying the qui tam secrecy procedures to purely private civil litigation that does not involve the DOJ. 

[1] The FCA is codified at 31 U.S.C. §§ 3729-3733.

[2] A pleading, motion, or brief that is not docketed is not part of the official record and cannot be considered by a court of appeals.  International Business Machines Corp. v. Edelstein, 526 F.2d 37, 45 (2d Cir. 1975).  An order, judgment or verdict that is not docketed cannot be appealed.  Stelpflug v. Federal Land Bank of St. Paul, 790 F.2d 47, 49 (7th Cir. 1986).

[3] S. Rep. No. 99-345, at 8 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5273.

[4] Qui tam is an abbreviation of the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, meaning “[he] who sues in this matter for the king as [well as] for himself.”

[5] 31 U.S.C. §3730(b)(2).  The 1986 amendments also increased statutory liability from double to treble damages and raised the level of civil penalties.

[6] 1986 U.S.C.C.A.N. at 5288-89.

[7] U.S. Department of Justice, False Claim Act Cases: Government Intervention in Qui Tam (Whistleblower) Cases, available at http://www.usdoj.gov/usao/pae/Documents/fcaprocess2.pdf.

[8] 31 U.S.C. §3730(b)(2). 

[9] R. Vogel, “The Civil False Claims Act,” an unpublished paper available at http://www.goldwyn.org/deliverable.pdf. Vogel is a former trial attorney in the Commercial Frauds Section of the Civil Division United States Department of Justice.

[10] A copy of the Nelida Finch letter has been posted on the web site.