Claris Law Legal Blogging Community

Name:

E-mail:

Phone Number:

Zip Code:

Your Question:

Editor: Mike Bothwell
Profession: Qui Tam Attorney

Category: Legal Analysis

The Fifth Circuit ruled yesterday that after the government declines a qui tam case and the matter is unsealed, the Relator must serve the complaint or face dismissal.

In Sealed v. Sealed, Civil Appeal No. 04-11173 (5th Cir. June 12, 2006), the Court upheld the dismissal of a qui tam that was not served within 120 days of being unsealed. While prior opinions had required that an aggravation factor must usually be found, this opinion clarified that they do not always have to be found. While prior opinions looked for culpability on the part of the plaintiff apart from the lawyer, in this case, the Court found that if the client does not hear about progress in the case for some time (in this case two years), she is no longer innocent in the process of delay.

While this may be logical in circumstances where the case is filed and immediately expected to be prosecuted, the Court did not take into account the unusual circumstances faced by a qui tam plaintiff. It is possible that the case may be under seal for far more than two years, with some seals lasting as long as 10-15 years. Indeed, other than allowing for the 120 days to run from the unsealing rather than the filing, the Court did not seem to take into account any of the unique procedural issues faced by Relators. It is also interesting, as pointed out by the dissent, that the dismissal with prejudice ordered by the majority was not even considered by the lower court and no lesser sanctions were considered.

At the end of the day, the take home message is that qui tam cases must be served soon after they are unsealed or they can be dismissed.