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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 5, 2002 Decided February 11, 2003
No. 01-5312
SUSAN J. SWIFT,
APPELLANT
V.
UNITED STATES OF AMERICA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(99cv00145)
Michael D. Kohn argued the cause for appellant. On the
briefs was Susan J. Swift, appearing pro se.
Douglas Letter, Litigation Counsel, U.S. Department of
Justice, argued the cause for appellee. With him on the brief
were Roscoe C. Howard Jr., U.S. Attorney, and David W.
Long, Attorney.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: EDWARDS, HENDERSON, and RANDOLPH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: On January 19, 1999, Susan
Swift, a former Department of Justice attorney employee,
brought a qui tam action against one employee and two
former employees of the Justice Department’s Office of Legal
Counsel, claiming that in 1992 and thereafter they had con-
spired to defraud the government, in violation of the False
Claims Act, 31 U.S.C. § 3729(a)(3). For reasons unnecessary
to recount, one of the defendants was dropped from the case.
Swift alleged that the remaining two defendants had also
violated 31 U.S.C. § 3729(a)(1) and (2) by presenting a false
claim to the government. The alleged fraud, which dealt with
time sheets and leave slips, amounted to $6169.20.
On April 2, 1999, without purporting to intervene, the
government moved to dismiss the complaint, arguing that the
amount of money involved did not justify the expense of
litigation even if the allegations could be proven. Swift
opposed dismissal and requested a hearing. She also sought
leave to engage in discovery in order to learn the Justice
Department’s policy about dismissal of qui tam actions, and
she moved to unseal the record, arguing that this would
facilitate her efforts to gather information about the policy.
The district court ordered a hearing, but denied Swift’s
motions for discovery and unsealing. After several delays
and the hearing, the court dismissed the complaint, holding
that the government had demonstrated that dismissal was
rationally related to a valid governmental purpose. As a
result, the complaint was never served on the defendants.
Swift’s appeal is on the grounds that the government
cannot move to dismiss without first intervening, that the
government did not justify its decision to dismiss, that dis-
missal was improper since the government did not investigate
her claims, and that the district court erred in denying her
discovery and in refusing to unseal the record.
3
The section of the False Claims Act dealing with the
government’s dismissal of qui tam actions provides: ‘‘The
Government may dismiss [a qui tam] action notwithstanding
the objections of the [relator] if the [relator] 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). As is evident from
the quotation, the provision does not say that the government
must intervene in order to seek dismissal. Swift concedes as
much, but maintains that intervention is required in light of
§ 3730(b) and § 3730(c)(1).
Section 3730(b)(2) gives the government sixty days, plus
any court-ordered extensions, ‘‘to elect to intervene and pro-
ceed with the action’’ after receiving the complaint and being
informed of the material evidence. At the end of the sixty-
day period (unless extended), the government ‘‘shall proceed
with the action TTT or notify the court that it declines to take
over the action.’’ 31 U.S.C. § 3730(b)(4). Swift views
§ 3730(b)(4) as giving the government but two options: inter-
vene or do not intervene. This is correct, but she misses the
point that § 3730(b)(2) makes intervention necessary only if
the government wishes to ‘‘proceed with the action.’’ Ending
the case by dismissing it is not proceeding with the action; to
‘‘proceed with the action’’ means, in the False Claims Act,
that the case will go forward with the government running
the litigation. Cf. Provident Tradesmens Bank & Trust Co.
v. Patterson, 390 U.S. 102, 118 (1968).
The other provision Swift cites, § 3730(c)(1), reads: ‘‘If the
Government proceeds with the action, it shall have the pri-
mary responsibility for prosecuting the action, and shall not
be bound by an act of the [relator]. [The relator] shall have
the right to continue as a party to the action, subject to the
limitations set forth in paragraph (2).’’ Swift’s position is that
the phrase ‘‘subject to the limitations set forth in paragraph
(2)’’ means that the government’s dismissal power under
§ 3730(c)(2) exists only within the context of § 3730(c)(1). So
viewed, the government could not move to dismiss unless it
had complied with § 3730(c)(1) by intervening and proceeding
with the action.
4
Her interpretation is unwarranted. The phrase ‘‘subject to
the limitations set forth in paragraph (2)’’ can signify only
that the relator’s right to remain a party after the govern-
ment has intervened is constrained by the government’s right
to dismiss the action pursuant to § 3730(c)(2). Swift’s inter-
pretation requires one to read ‘‘subject to’’ as also having the
converse meaning—that § 3730(c)(1) acts as a limit on the
operation of § 3730(c)(2). Nothing in § 3730(c)(1) justifies
that reading. To support Swift’s interpretation, either
§ 3730(c)(2) would have to be a subsection of § 3730(c)(1)—
which it is not—or § 3730(c)(2) would have to contain lan-
guage stating that it is applicable only in the context of
§ 3730(c)(1)—which it does not (as highlighted by the fact
that § 3730(c)(2) contains two express constraints on the
government’s ability to dismiss, neither of which is related to
§ 3730(c)(1)). In other words, the second sentence of
§ 3730(c)(1) is limited by § 3730(c)(2), but § 3730(c)(2) is
independent of § 3730(c)(1).
In any event, the question whether the False Claims Act
requires the government to intervene before dismissing an
action is largely academic. As Swift conceded at oral argu-
ment, if there were such a requirement, we could construe the
government’s motion to dismiss as including a motion to
intervene, a motion the district court granted by ordering
dismissal. See United States ex rel. Neher v. NEC Corp., No.
92–2854, slip op. at 30 (11th Cir. Apr. 28, 1995).
Swift has a separate reason why the district court improp-
erly dismissed the case. The district court applied the stan-
dard stated in United States ex rel. Sequoia Orange Co. v.
Sunland Packing House Co., 912 F. Supp. 1325, 1339 (E.D.
Cal. 1995), aff’d sub nom. United States ex rel. Sequoia
Orange Co. v. Baird–Neece Packing Corp., 151 F.3d 1139 (9th
Cir. 1998). Under that standard, the government may dis-
miss a qui tam case over the relator’s objection if (1) the
government shows that the dismissal is rationally related to a
valid purpose, and (2) once the government satisfies this
burden, the relator fails to show that the decision to dismiss
was fraudulent, illegal, or arbitrary and capricious. Sequoia,
151 F.3d at 1145.
5
We hesitate to adopt the Sequoia test. It may be that
despite separation of powers, there could be judicial review of
the government’s decision that an action brought in its name
should be dismissed. Cf. United States v. Cowan, 524 F.2d
504, 513 (5th Cir. 1975). But we cannot see how
§ 3730(c)(2)(A) gives the judiciary general oversight of the
Executive’s judgment in this regard. The section states that
‘‘The Government’’—meaning the Executive Branch, not the
Judicial—‘‘may dismiss the action,’’ which at least suggests
the absence of judicial constraint. To this must be added the
presumption that decisions not to prosecute, which is what
the government’s judgment in this case amounts to, are
unreviewable. Cf. Heckler v. Chaney, 470 U.S. 821, 831–33
(1985); Newman v. United States, 382 F.2d 479, 480 (D.C.
Cir. 1967). Reading § 3730(c)(2)(A) to give the government
an unfettered right to dismiss an action is also consistent with
the Federal Rules of Civil Procedure. Rule 41(a)(1)(i) per-
mits a plaintiff to dismiss a civil action ‘‘without order of the
court’’ if the adverse party has not yet filed an answer or a
motion for summary judgment. A dismissal pursuant to Rule
41(a)(1)(i) is not subject to judicial review. See Randall v.
Merrill Lynch, 820 F.2d 1317, 1320 (D.C. Cir. 1987). In qui
tam actions, the complaint remains under seal for ‘‘at least’’
sixty days; government dismissal within that period necessar-
ily occurs before the defendant has answered. (If the govern-
ment tried to have an action dismissed after the complaint
had been served and the defendant answered, it might be
subject to Rule 41(a)(2), which requires an order of the court
‘‘upon such terms and conditions as the court deems proper.’’)
The relator’s right to a hearing, as set forth in
§ 3730(c)(2)(A), is all that points to a role for the courts in
deciding whether the case must go forward despite the gov-
ernment’s decision to end it. The Sequoia court viewed this
provision as authorizing judicial review of the government’s
reasons for dismissal, 912 F. Supp. at 1338, explaining that
this would not ‘‘place an additional burden on the executive’s
exercise of prosecutorial discretion, because the constitution
itself prohibits arbitrary or irrational prosecutorial decisions.’’
Id. at 1340. This is not an accurate statement of constitution-
6
al law with respect to the government’s judgment not to
prosecute. The Constitution entrusts the Executive with
duty to ‘‘take Care that the Laws be faithfully executed.’’
U.S. CONST., art. II, § 3. The decision whether to bring an
action on behalf of the United States is therefore ‘‘a decision
generally committed to [the government’s] absolute discre-
tion’’ for the reasons spelled out in Heckler v. Chaney, 470
U.S. at 831. The government’s discretion to dismiss an action
it has already brought may not be absolute, but even then
courts presume the Executive is acting rationally and in good
faith. See, e.g., Rinaldi v. United States, 434 U.S. 22, 30
(1977); see also United States v. Armstrong, 517 U.S. 456,
464–65 (1996). Nothing in § 3730(c)(2)(A) purports to de-
prive the Executive Branch of its historical prerogative to
decide which cases should go forward in the name of the
United States. The provision neither sets ‘‘substantive prior-
ities’’ nor circumscribes the government’s ‘‘power to discrimi-
nate among issues or cases it will pursue.’’ Heckler v.
Chaney, 470 U.S. at 833. We therefore conclude that the
function of a hearing when the relator requests one is simply
to give the relator a formal opportunity to convince the
government not to end the case. While the government
conceded at oral argument that there may be an exception for
‘‘fraud on the court,’’ no evidence of that sort was presented,
and we therefore do not pass on whether this type of excep-
tion, or any other, might be consistent with our reading of
§ 3730(c)(2)(A).
The Sequoia court also justified its test on the basis of
legislative history of the 1986 amendment to the False Claims
Act. The Ninth Circuit quoted statements from a Senate
committee report that a relator may object to a government
motion to dismiss in order to prevent the government from
‘‘dropp[ing] TTT false claims cases without legitimate reasons’’
and may petition for an evidentiary hearing, which the court
should grant ‘‘if the relator presents a colorable claim that the
TTT dismissal is unreasonable in light of existing evidence,
that the Government has not fully investigated the allega-
tions, or that the Government’s decision was based on arbi-
trary or improper considerations.’’ S. REP. NO. 99–345, at 26
7
(1986). But this portion of the Senate report relates to an
unenacted Senate version of the 1986 amendment. That
version read: ‘‘If the Government proceeds with the action
TTT the [relator] shall be permitted to file objections with the
court and to petition for an evidentiary hearing to object to
TTT any motion to dismiss filed by the Government.’’ Id. at
42. The whole point here is that the government has not
elected to proceed; it has elected to dismiss the case. Had
the Senate version been enacted, the Senate report still would
not support the Ninth Circuit’s judgment.
Even if Sequoia set the proper standard, the government
easily satisfied it. The asserted governmental interests were
that the dollar recovery was not large enough to warrant
expending resources monitoring the case, complying with
discovery requests, and so forth, and that spending time and
effort on this case would divert scarce resources from more
significant cases. Although Swift believes that the costs
would be relatively small, the government’s goal of minimiz-
ing its expenses is still a legitimate objective, and dismissal of
the suit furthered that objective. See Heckler v. Chaney, 470
U.S. at 831; Selective Serv. Sys. v. Minnesota Pub. Interest
Research Group, 468 U.S. 841, 859 n.17 (1984). In addition,
Swift failed to establish that the government’s prosecutorial
judgment was arbitrary and capricious, illegal, or fraudulent.
While she asserted that the government’s reasons for dismiss-
al were pretextual, she offered nothing to support the
charge.*
Few words are needed to dispose of Swift’s remaining
arguments. Since the government conceded the truth of
Swift’s allegations when it sought to dismiss, the fact that the
government did not investigate the validity of her charges is
of no consequence. As to her claim that she was entitled to
* The theory is that a relator’s standing derives from the injury
to the United States and a partial assignment of the government’s
claim for damages. See Vermont Agency of Natural Resources v.
United States ex rel. Stevens, 529 U.S. 765, 773–74 (2000). Dismiss-
al ends the assignment.
8
discovery, the Supreme Court has stated that a party is not
entitled to discovery of information relating to prosecutorial
decisions absent a substantial threshold showing. See Arm-
strong, 517 U.S. at 463. As we have said, Swift offered no
evidence to support her allegations that the government acted
improperly. Nor did the district court abuse its discretion in
denying Swift’s motion to unseal the case. Swift did not
oppose the government’s motion to keep the case sealed
during the proceedings on dismissal, and although she had
many months to file a motion to unseal, her motion came at
the eleventh-hour; granting it would have delayed the hear-
ing, which had already been postponed twice at Swift’s re-
quest. Cf. Ned Chartering & Trading, Inc. v. Republic of
Pakistan, 294 F.3d 148, 151 (D.C. Cir. 2002).
Affirmed.