"The False Claims Act Seal: The DOJ's Position Part 2" By Andrew W. Schilling and Megan E. Whitehill (Business Crimes Bulletin)
Business Crimes BulletinAndrew W. Schilling, Megan E. Whitehill
Notwithstanding the absence of an explicit gag order in the statute, the Department of Justice (DOJ) takes the position that, even if the relator properly files the case under seal at the outset, that relator can later “breach the seal,” and be subject to judicial sanction, if he or she discloses the existence of the qui tam to others. Brief for United States as Defendants-Appellants, American Civil Liberties Union et al. v. Holder, et al., No. 09-2086 (4th Cir. Filed Jan. 17, 2010), at pp. 15-16. In other words, while the statute itself does not silence the relator (or anyone else), the DOJ treats the relator as both bound and gagged.
Perhaps sensitive to the First Amendment implications of its position, the DOJ has been careful not to take the position that the sealing provisions broadly gag the relator from speaking. In ACLU v. Holder, 673 F.3d 245 (4th Cir. 2011), the ACLU and other public interest organizations sued the DOJ to challenge the sealing provisions of the FCA on First Amendment grounds. They argued not only that the sealing provisions violated the public’s right of access to judicial proceedings, but also that the seal provisions “gag” relators from speaking about their qui tam complaints.