EDKY judge denies government's motion to stay qui tam case

by Ben Vernia | February 20th, 2013

On February 19, Judge Amul R. Tharpar of the Eastern District of Kentucky denied a motion by the Department of Justice to stay a qui tam case, U.S. ex rel. Griffith, et al. v. Conn, et al.. The case was brought by two whistleblowers – one former and one current employee of the Social Security Administration, who alleged that an attorney representing disability claimants and a (now former) Administrative Law Judge colluded to steer the cases of the lawyer’s clients to the ALJ, who overwhelmingly ruled in their favor. The government investigated the case for 14 months, but entered a notice in December 2012 that it could not decide within the Court’s deadline whether or not to intervene, and so was declining to do so (the Government also noted that its investigation was continuing). The United States moved, pursuant to 31 U.S.C. ยง 3730(c)(4) for a stay of the qui tam case.

Judge Tharpar concluded, however, that once the Government declined to intervene in the case, there was no authority for the stay it requested. The FCA’s stay provision (as opposed to the section authorizing extensions of the initial 60-day seal) only authorizes the Government to seek a stay of “harmful discovery actions by the relator” – it does not, he concluded, provide a mechanism for extending the seal period, or staying all discovery. Judge Tharpar noted that the government had argued that the stay it sought was within the Court’s inherent authority, but he concluded that the Act does not give the United States the ability to seek such a stay.

Judge Tharpar also addressed the extent to which he would lift the seal on the other documents in the court’s record. Noting the presumption in favor of public access, and reviewing the docket entries, he found only three documents that contain information whose disclosure might harm the government. He nevertheless gave the government an opportunity to object to lifting the seal on other documents.

Disclosure: The Vernia Law Firm represents the whistleblowers in this case. A copy of the Firm’s press release can be found here.

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