United States ex rel. Levine v. Avnet, Inc.
| Decision Date | 01 April 2015 |
| Docket Number | CIVIL ACTION NO. 2:14-cv-17 (WOB-CJS) |
| Parties | UNITED STATES OF AMERICA EX REL. EVAN LEVINE PLAINTIFF/RELATOR v. AVNET, INC., ET AL. DEFENDANTS |
| Court | U.S. District Court — Eastern District of Kentucky |
This False Claims Act case is before the Court on the United States' Motion to Dismiss, Doc. 20.
Relators Evan Levine and Keith McClellan filed this action, under seal, on January 31, 2014, in the name of the United States pursuant to the qui tam provision of the False Claims Act, 31 U.S.C. § 3730(b)(1). Doc. 1, Complaint. On September 12, 2014, the Government notified the Court of its election to decline intervention. Doc. 17. The Court then ordered the complaint unsealed and served upon the defendants by the relators. Doc. 18. On November 21, 2014, the Government moved to dismiss the action, pursuant to 31 U.S.C. § 3730(c)(2)(A). Doc. 20. Shortly thereafter, McClellan voluntarily dismissed his claims, leaving Levine as the sole relator. Doc. 21. Nearly a month after the Government moved to dismiss, the Defendants were served with the complaint on December 18, 2014. See Docs. 29, 30, 21, Returns of Executed Summonses.
On December 22, 2014, Levine filed a response in opposition to the Government's motion to dismiss, Doc. 33, and moved for a hearing on that motion, Doc. 32. The Court heard oral argument on March 12,2015, and subsequently took the motion to dismiss under submission. Having reviewed the filings and heard from the parties, the Court now issues the following Memorandum Opinion and Order.
Levine asks the Court to deny the Government's motion to dismiss on two grounds. First, he argues that the Government may only move to dismiss under § 3730(c)(2)(A) if it has intervened in the action pursuant to § 3730(c)(1). Having declined to intervene in this case, he argues, the Government may not dismiss. Alternatively, should the Court find that intervention is not necessary, Levine argues that the Government must satisfy the "rational relation test" approved by the Ninth Circuit in United States ex rel. Sequoia Orange Co. v. Baird-Neece Packing Corp., 151 F.3d 1139 (9th Cir. 1998). Levine asserts that the Government has failed to make such a showing and thus, that the action should not be dismissed.
Neither the Supreme Court nor the Sixth Circuit has addressed either of these issues directly.1 Thus, the Court examines each of these issues without the benefit of controlling authority.
Section 3730(c)(2)(A) states: "The Government may dismiss the action notwithstanding the objections of the person initiating the action if the person 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).
Levine argues that this provision, when read in context, only applies if the Government has intervened in the action.2 At the hearing, Levine's counsel also argued that dicta in a 2009 United States Supreme Court case, U.S. ex rel. Eisenstein v. City of New York, 556 U.S. 928 (2009), demonstrates that dismissal is not available to the Government without intervention.
In response, the Government argues that requiring intervention is both contrary to the plain language of the statute and a premise that has been summarily rejected by the courts of appeals that have considered it.
The Court agrees with the Government. In interpreting a statute, a court's "starting point is the language employed by Congress."Chapman v. Higbee Co. , 319 F.3d 825, 829 (6th Cir. 2003). Moreover, where a "statute's language is plain, the sole function of the courts is to enforce it according to its terms." Id. (citing United States v. Ron Pair Enters., Inc. , 489 U.S. 235, 241 (1989)). Applying these maxims here, the Court notes, first, that § 3730(c)(2)(A) does not condition dismissal on intervention. Nor does it include language limiting its application to particular circumstances. Because Congress included such limiting language in other paragraphs within § 3730(c), the Court assumes that it would have used such language in paragraph (2), had it wished to so limit the provision. See 31 U.S.C. § 3730(c)(1) ("If the Government proceeds . . . ."); id. § 3730(c)(3) (); id. § 3730(c)(4)("Whether or not the Government proceeds . . . .").
That the meaning of § 3730(c)(2) would be clearer if Congress had prefaced the provision with "Whether or not the Government proceeds," as it did in paragraph (c)(4), does not give the Court license to assume from the absence of this language congressional intent to limit application of paragraph (c)(2) to one circumstance or the other. Nor does the Court have license to speculate as to which language Congress would have chosen and to insert it on Congress's behalf. See Bates v. United States, 522 U.S. 23, 29 (1997) (); Keene Corp. v. United States, 508 U.S. 200, 208 (1993) ().
The Court similarly declines to read into § 3730(c)(2) language making it subject to § 3730(c)(1) because the statute's language plainly reveals only the opposite intent. Section 3730(c)(1) states:
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 person bringing the action. Such person shall have the right to continue as a party to the action, subject to the limitations set forth in paragraph (2).
Narrowing the scope of paragraph (1) by making it "subject to the limitations in paragraph (2)" in no way indicates that Congress intended to narrow the scope of paragraph (2) by making it subject to the Government's intervention as described in paragraph (1).
The Court is similarly unpersuaded by Levine's argument that subparagraphs (2)(C) and (2)(D) would be rendered superfluous if intervention is not a prerequisite to the Government dismissing under subparagraph (2)(A). Although subparagraphs (2)(C) (allowing a court to limit the relator's participation under certain circumstances "[u]pon a showing by the Government") and (2)(D) (allowing a court to limit the relator's participation under certain circumstances "[u]pon a showing by the defendant") logically apply when the Government has intervened and assumed primary responsibility for prosecuting the action, the rights described in subparagraphs (2)(A) (the Government's right to dismiss) and (2)(B) (the Government's ability to settle with the defendant) logically apply regardless of whether the Government has intervened. See, e.g., United States ex rel. Smith v. Gilbert Realty Co., 34 F. Supp. 2d 527 (E.D. Mich. 1998) ().
Moreover, had Congress intended for these four rights to exist only in cases where the Government intervened, Congress could have easily signaled that by drafting them as subparagraphs of paragraph (1). Instead, in a section titled "Rights of the parties to qui tam actions," these four rights are listed as part of paragraph (2) -- the structural equal of paragraphs (1), (3), (4), and (5). Without clear statutory language directing it to do so, the Court will not subjugate paragraph (2) to paragraph (1).
The Court is also unpersuaded by Levine's reliance on Eisenstein. In Eisenstein, the Supreme Court addressed whether the government, when it does not intervene, is a "party" to a False Claims Act case, for purposes of 28 U.S.C. § 2107 and Federal Rule of Appellate Procedure 4, pertaining to the amount of time allowed to file a notice of appeal. 556 U.S. at 929, 932-37. In explaining the False Claims Act process, the Supreme Court stated:
If the United States declines to intervene, the relator retains "the right to conduct the action." § 3730(c)(3). The United States is thereafter limited to exercising only specific rights during the proceeding. These rights include requesting service of pleadings and deposition transcripts, § 3730(c)(3), seeking to stay discovery that "would interfere with the Government's investigation or prosecution of a criminal or civil matter arising out of the same facts," § 3730(c)(4), and vetoing a relator's decision to voluntarily dismiss the action, § 3730(b)(1).
Eisenstein, Id. at 932. Levine argues that because the Supreme Court did not list dismissal among these rights, it is not available to the government when it declines to intervene.
This argument is flawed in several respects. First, these statements are dicta and not made in response to the question currently before this Court. Second, the list is introduced with "including," which does not signal an exhaustive list. See, e.g. , BellSouth Telecomm., Inc. v. Ky. Pub. Serv. Comm'n, 669 F.3d 704, 713 (6th Cir. 2012)( that the use of "includes" or "including" "signal[s] that the examples are 'illustrative rather than exhaustive'")(quoting Samantar v. Yousuf, 560 U.S. 305, 317 (2010))). Finally, the comments were made in the context of a case where the government had declined to intervene but was not opposed to the suit proceeding, as evidenced by the United States' request for continued service of the pleadings in the case. See id. at 930. The Supreme Court's list in Eisenstein thus defines the role of the United States in cases that proceed so that the Court can distinguish that role from the role and functions of a "party." Discussion, in that context, of the United States' right to dismiss would not have been relevant.3
Thus, the Court concludes that intervention is not required for the Government to dismiss pursuant to §...
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