The False Claims Act provides that private persons who bring actions on behalf of the U.S. Government, called relators, file their complaints under seal. This means that a defendant, which is frequently a present or former employer of the relator, will not have access to the complaint or even know that a complaint has been filed, unless the Government chooses to disclose the lawsuit or the court unseals the complaint. However, the FCA does not contemplate that a complaint will remain under seal forever. In United States ex rel. Prospect Waterproofing, Inc., Civil Action No. 10-1946, 2011 WL 4793236 (D.D.C. Oct. 4, 2011), the relator, Thomas Durham, filed a qui tam complaint under seal against his present employer, Prospect Waterproofing, Inc. The Government investigated the allegations and chose not to intervene in the lawsuit. Subsequently, the relator voluntarily dismissed his complaint. Fearing retaliation from his employer, the relator asked the court to maintain the seal permanently. The Government, by contrast, requested that the complaint, the relator’s voluntary dismissal and the Government’s consent to the voluntary dismissal be unsealed. The U.S. District Court for the District of Columbia agreed with the Government and ordered that the pleadings be unsealed.
The relator’s core argument for maintaining the seal was that he feared that his employer would retaliate upon discovery of the complaint. The District Court rejected this argument, stating that “the rationale behind sealing FCA cases is to allow the United States ample time to investigate the allegations, and the FCA does not contain any language that suggests the purpose of sealing a case is to protect the relator’s identity.” The court further reasoned:
There are, moreover, potential policy concerns if relators are allowed to keep FCA cases permanently under seal due to fear of employer retaliation. First, these retaliation concerns are “similar to those of the many other employees who bring suits against their employers or former employers for various reasons” and therefore should not merit special protection in qui tam actions. In addition, when bringing suit under the FCA, Relator “concluded that these risks were worth taking if the Government would intervene. Having assumed the risk that the Government might not intervene, [R]elator cannot cherry pick the portions of the FCA that suit [him].” (quoting United States ex rel. Littlewood v. King Pharmaceuticals, Inc., 2011 WL 3805607, at *8-9 (D. Md. Aug. 29, 2011)).