Swift v. U.S.

• Decision Date: 11 February 2003
• Docket Number: No. 01-5312.,01-5312.
• Citation: 318 F.3d 250
• Parties: Susan J. SWIFT, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 250

318 F.3d 250

Susan J. SWIFT, Appellant, v. UNITED STATES of America, Appellee.

No. 01-5312.

United States Court of Appeals, District of Columbia Circuit.

Argued December 5, 2002.

Decided February 11, 2003.

Appeal from the United States District Court for the District of Columbia (99cv00145).

Michael D. Kohn argued the cause for appellant. On the briefs was Susan J. Swift, appearing pro se.

Douglas Letter, Litigation Counsel, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Roscoe C. Howard Jr., U.S. Attorney, and David W. Long, Attorney.

Before: EDWARDS, HENDERSON, and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

On January 19, 1999, Susan Swift, a Department of Justice attorney employee, brought a qui tam action against one employee and two former employees of the Justice Department's Office of Legal Counsel, claiming that in 1992 and thereafter they had conspired to defraud the government, in violation of the False Claims Act, 31 U.S.C. § 3729(a)(3). For reasons unnecessary to recount, one of the defendants was dropped from the case. Swift alleged that the remaining two defendants had also violated 31 U.S.C. § 3729(a)(1) and (2) by presenting a false claim to the government. The alleged fraud, which dealt with time sheets and leave slips, amounted to $6169.20.

On April 2, 1999, without purporting to intervene, the government moved to dismiss the complaint, arguing that the amount of money involved did not justify the expense of litigation even if the allegations could be proven. Swift opposed dismissal and requested a hearing. She also sought leave to engage in discovery in order to learn the Justice Department's policy about dismissal of qui tam actions, and she moved to unseal the record, arguing that this would facilitate her efforts to gather information about the policy. The district court ordered a hearing, but denied Swift's motions for discovery and unsealing. After several delays and the hearing, the court dismissed the complaint, holding that the government had demonstrated that dismissal was rationally related to a valid governmental purpose. As a result, the complaint was never served on the defendants.

Swift's appeal is on the grounds that the government cannot move to dismiss without first intervening, that the government did not justify its decision to dismiss, that dismissal was improper since the government did not investigate her claims, and that the district court erred in denying her discovery and in refusing to unseal the record.

The section of the False Claims Act dealing with the government's dismissal of qui tam actions provides: "The Government may dismiss [a qui tam] action notwithstanding the objections of the [relator] if the [relator] has been notified by the Government of the filing of the motion and the court has provided the person with an opportunity for a hearing on the motion." 31 U.S.C. § 3730(c)(2)(A). As is evident from the quotation, the provision does not say that the government must intervene in order to seek dismissal. Swift concedes as much, but maintains that intervention is required in light of § 3730(b) and § 3730(c)(1).

Section 3730(b)(2) gives the government sixty days, plus any court-ordered extensions, "to elect to intervene and proceed with the action" after receiving the complaint and being informed of the material evidence. At the end of the sixty-day period (unless extended), the government "shall proceed with the action ... or notify the court that it declines to take over the action." 31 U.S.C. § 3730(b)(4). Swift views § 3730(b)(4) as giving the government but two options: intervene or do not intervene. This is correct, but she misses the point that § 3730(b)(2) makes intervention necessary only if the government wishes to "proceed with the action." Ending the case by dismissing it is not proceeding with the action; to "proceed with the action" means, in the False Claims Act, that the case will go forward with the government running the litigation. Cf. Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 118, 88 S.Ct. 733, 742, 19 L.Ed.2d 936 (1968).

The other provision Swift cites, § 3730(c)(1), reads: "If the Government proceeds with the action, it shall have the primary responsibility for prosecuting the action, and shall not be bound by an act of the [relator]. [The relator] shall have the right to continue as a party to the action, subject to the limitations set forth in paragraph (2)." Swift's position is that the phrase "subject to the limitations set forth in paragraph (2)" means that the government's dismissal power under § 3730(c)(2) exists only within the context of § 3730(c)(1). So viewed, the government could not move to dismiss unless it had complied with § 3730(c)(1) by intervening and proceeding with the action.

Her interpretation is unwarranted. The phrase "subject to the limitations set forth in paragraph (2)" can signify only that the relator's right to remain a party after the government has intervened is constrained by the government's right to dismiss the action pursuant to § 3730(c)(2). Swift's interpretation requires one to read "subject to" as also having the converse meaning — that § 3730(c)(1) acts as a limit on the operation of § 3730(c)(2). Nothing in § 3730(c)(1) justifies that reading. To support Swift's interpretation, either § 3730(c)(2) would have to be a subsection of § 3730(c)(1) — which it is not — or § 3730(c)(2) would have to contain language stating that it is applicable only in the context of § 3730(c)(1) — which it does not (as highlighted by the fact that § 3730(c)(2) contains two express constraints on the government's ability to dismiss, neither of which is related to § 3730(c)(1)). In other words, the second sentence of § 3730(c)(1) is limited by § 3730(c)(2), but § 3730(c)(2) is independent of § 3730(c)(1).

In any event, the question whether the False Claims Act requires the government to intervene before dismissing an action is largely academic. As Swift conceded at oral argument, if there were such a requirement, we could construe the government's motion to dismiss as including a motion to intervene, a motion the district court granted by ordering dismissal. See United States ex rel. Neher v. NEC Corp., No. 92-2854, slip op. at 30 (11th Cir. Apr.28, 1995).

Swift has a separate reason why the district court improperly dismissed the case. The district court applied the standard stated in United States ex rel. Sequoia Orange Co. v. Sunland Packing House Co., 912 F.Supp. 1325, 1339 (E.D.Cal.1995), aff'd sub nom. United States ex rel. Sequoia Orange Co. v. Baird-Neece Packing Corp., 151 F.3d 1139 (9th Cir.1998). Under that standard, the government may dismiss a qui tam case over the relator's objection if (1) the government shows that the dismissal is rationally related to a valid purpose, and (2) once the government satisfies this burden, the relator fails to show that the decision to dismiss was fraudulent, illegal, or arbitrary and capricious. Sequoia, 151 F.3d at 1145.

We hesitate to adopt the Sequoia test. It may be that despite separation of powers, there could be judicial review of the government's decision that an action brought in its name should be dismissed. Cf. United States v. Cowan, 524 F.2d 504, 513 (5th Cir.1975). But we cannot see how § 3730(c)(2)(A) gives the judiciary general oversight of the Executive's judgment in this regard. The section states that "The Government" — meaning the Executive Branch, not the Judicial — "may dismiss the action," which at least suggests the absence of judicial constraint. To this must be added the presumption that decisions not to prosecute, which is what the government's judgment in this case amounts to, are unreviewable. Cf. Heckler v. Chaney, 470 U.S. 821, 831-33, 105 S.Ct. 1649, 1655-57, 84 L.Ed.2d 714 (1985); Newman v. United States, 382 F.2d 479, 480 (D.C.Cir.1967). Reading § 3730(c)(2)(A) to give the government an unfettered right to dismiss an action is also consistent with the Federal Rules of Civil Procedure. Rule 41(a)(1)(i) permits a plaintiff to dismiss a civil action "without order of the court" if the adverse party has not yet filed an answer or a motion for summary judgment. A dismissal pursuant to Rule 41(a)(1)(i) is not subject to judicial review. See Randall v. Merrill Lynch, 820 F.2d 1317, 1320 (D.C.Cir.1987). In qui tam actions, the complaint remains under seal for "at least" sixty days; government dismissal within that period necessarily occurs before the defendant has answered. (If the government tried to have an action dismissed after the complaint had been served and the defendant answered, it might be subject to Rule 41(a)(2), which requires an order of the court "upon such terms and conditions as the court deems proper.")

The relator's right to a hearing, as set forth in § 3730(c)(2)(A), is all that points to a role for the courts in deciding whether the case must go forward despite the government's decision to end it. The Sequoia court viewed this provision as authorizing judicial review of the government's reasons for dismissal, 912 F.Supp. at 1338, explaining that this would not "place an additional burden on the executive's exercise of prosecutorial discretion, because the constitution itself prohibits arbitrary or irrational prosecutorial decisions." Id. at 1340. This is not an accurate statement of constitutional law with respect to the government's judgment not to prosecute. The Constitution entrusts the Executive with duty to "take Care that the Laws be faithfully executed." U.S. CONST., art. II, § 3. The decision whether to bring an action on behalf of the United States is therefore "a decision generally committed to [the government's] absolute discretion" for the reasons spelled out in Heckler v. Chaney, 470 U.S. at 831, 105 S.Ct. at 1655. The government's discretion to dismiss an...