U.S. ex rel. Erickson v. University of Wa Phys., C99-1261-R.

• Citation: 339 F.Supp.2d 1124
• Decision Date: 07 October 2004
• Docket Number: No. C99-1261-R.,C99-1261-R.
• Parties: UNITED STATES of America ex rel. ERICKSON, Plaintiff v. UNIVERSITY OF WASHINGTON PHYSICIANS, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

Page 1124

339 F.Supp.2d 1124

UNITED STATES of America ex rel. ERICKSON, Plaintiff v. UNIVERSITY OF WASHINGTON PHYSICIANS, et al., Defendants.

No. C99-1261-R.

United States District Court, W.D. Washington. At Seattle.

October 7, 2004.

Jeffrey Todd Sprung, Hagens Berman, Seattle, WA, Michael Brown, Phillips & Cohen, San Francisco, CA, Stephen Meagher, Phillips & Cohen, San Francisco, CA, Steve W. Berman, Hagens Berman, Seattle, WA, for Mark F. Erickson, United States.

David B Robbins, Bennett Bigelow & Leedom, Seattle, WA, Dierk J Meierbachtol, Bennett Bigelow & Leedom, Seattle, WA, for University of Washington Physicians.

Alan E Kleinburd, U.S. Dept. of Justice, Washington DC, Brian C Kipnis, U.S. Attorney's Office, Seattle, WA, Robert Henry Westinghouse, U.S. Attorney's Office, Seattle WA, Susan G Loitz, U.S. Attorney's Office, Seattle, WA, for U.S.

Jessica L Goldman, Summit Law Group, Seattle, WA, for Seattle Times.

ORDER GRANTING THE SEATTLE TIMES' MOTION TO INTERVENE AND UNSEAL COURT FILE

ROTHSTEIN, District Judge.

This matter comes before the court on The Seattle Times' Motion to Intervene and Unseal Court File. Having reviewed this motion, and all responsive filings, and, being fully advised, the court finds and concludes as follows:

On August 3, 1999, Plaintiff-Relator Mark F. Erickson filed a False Claims Act ("FCA"), 31 U.S.C. § 3729 et seq., action against University of Washington Physicians, Children's University Medical Group, and Association of University Physicians (collectively, "defendants" or the "UW Plans"). Defendants are medical practice groups affiliated with the University of Washington Medical Center, Harborview Medical Center, Children's Hospital and Medical Center, Fred Hutchinson Cancer Research Center, and a network of primary care clinics.

The complaint was filed under seal, pursuant to the qui tam provisions of the FCA, 31 U.S.C. § 3730(b), which allows private citizens ("relators") to initiate lawsuits alleging that the United States has been defrauded in connection with certain federal activities and programs. Under these provisions, the relator files a complaint ex parte, under seal, and the lawsuit remains unknown to defendant for a period of 60 days. 31 U.S.C. § 3730(b)(2). The statute contemplates that during this 60-day period, the United States will commence and, if possible, complete, an investigation into the allegations, with the goal of deciding whether to intervene and prosecute the action. 31 U.S.C. § 3730(b)(2) and (b)(4).

In this case, the Relator alleged that defendants had engaged, over a substantial period of time, in various schemes to defraud the federal Medicare, Medicaid and TRICARE programs. The United States began a broad investigation into the Relator's claims, in the course of which it repeatedly applied to the court to enlarge the period of time for intervention. The FCA expressly allows extensions upon the government's showing of "good cause," and provides that a motion for such an extension may be supported by in camera submissions. 31 U.S.C. § 3730(b)(3). Each of the government's requests for an enlargement of time was filed ex parte and under seal pursuant to 31 U.S.C. § 3730(b)(3). These requests and the court's orders enlarging the time for intervention comprise the bulk of the documents in the court file.

The government's lengthy investigation ultimately resulted in its decision to intervene, and in the filing of a joint stipulation of dismissal in settlement of all civil claims.¹ This court approved the settlement as fair, adequate and reasonable pursuant to 31 U.S.C. § 3730(c)(2)(B) and (b)(1). At the time of settlement and dismissal, pursuant to the government's request, the court unsealed only the complaint, the joint stipulation of dismissal, and the order consenting to the joint stipulation of dismissal. The court ordered the parties, as well as any interested parties, to show cause why the remainder of the file should not be unsealed.

The Seattle Times, which, along with other local media organizations has shown dogged interest in this case over the years, quickly moved to intervene and unseal the court file. The government strongly opposes this motion, arguing that the court should maintain the seal, or that at the very least, the court should keep sealed certain of its in camera motions that the government claims contain particularly sensitive information. The UW Plans initially joined the government by objecting to the unsealing of the court file, also requesting permission, should the court decide to unseal the file, to perform a review of the relevant documents prior to disclosure. The court allowed the UW Plans the opportunity to examine the sealed documents, and, following its review, the UW Plans withdrew its objection to unsealing the court file.

The FCA clearly contemplates the lifting of the seal on the relator's complaint. 31 U.S.C. § 3730(b)(3). However, nowhere does the statute reference the unsealing of any other documents filed with the court. The FCA, therefore, provides no explicit authority for the court to permit or deny disclosure of material filed in camera other than the complaint.

This court is in agreement with courts that have reasoned that in permitting in camera submissions, the statute necessarily...