Dаvid E. RIDENOUR; Jeffrey B. Peters; Mark Graf, Plaintiffs-Appellants, v. UNITED STATES of America, ex rel., Plaintiff-Appellee, v. KAISER-HILL COMPANY, L.L.C., and Statutory Agent: Corporation Services Company; Wackenhut Services Limited Liability Company, and Statutory Agent: James A. Dierker; EG & G Rocky Flats, Inc., and Statutory Agent: C.T. Corporation, Defendants-Appellees.
No. 01-1510
United States Court of Appeals, Tenth Circuit
Feb. 9, 2005
397 F.3d 925
KELLY and O‘BRIEN, Circuit Judges and EAGAN, District Judge.
Kansas law recognizes three ways in which a product may be defective: (1) a manufacturing defect; (2) a warning defect; and (3) a design defect. Delaney v. Deere & Co., 268 Kan. 769, 999 P.2d 930, 936 (2000). Accordingly, a plaintiff alleging a breach of the duty to test must prove that one of these three types of product defects caused his or her injury.
In this case, Mr. Burtоn cannot claim that one of these three types of product defects caused his pvd-related injury. First, he neither argues nor points to any evidence that Reynolds’ alleged failure to test resulted in a manufacturing defect. Second, the jury expressly determined that Mr. Burton‘s injuries were not caused by a defect in Reynolds’ design of the cigarettes.
Finally, Mr. Burton presented insufficient evidence that a warning defect caused his pvd-related injury. See discussion supra. As discussed above, the record supports no other conclusion than that Mr. Burton would not have responded to a warning from Reynolds after he started smoking. See id. Of course, Mr. Burton did present evidence that he may have responded to a warning in 1950 before he ever started smoking. See id. However, he has not identified any evidence that by 1950 pvd was a reasonably foreseeable danger of smoking such that Reynolds should have investigated and then warned of the potential danger. See Richter, 45 F.3d at 1471 (applying Kansas law) (stating that produсt manufacturers have duty to test for and then warn of only foreseeable dangers, not every conceivable danger). Accordingly, that Mr. Burton would never have started smoking had he been warned of the danger of pvd in 1950 is not relevant evidence of causation.
Because Mr. Burton cannot claim that any product defect—either a manufacturing, design, or warning defect—caused his injury, he has no cause of action for failure to test.
CONCLUSION
For the reasons stated above, I would REVERSE the jury‘s entire verdict on liability and REMAND for entry of judgment as a matter of law in favor of Reynolds on all three claims.
Wilbert Benjamin Markovits of Markovits and Greiwe Co., L.P.A., Cincinnati, OH, (Phyllis E. Brown of Copeland & Brown Co., L.P.A., Cincinnati, OH; Louise Roselle of Waite, Schneider, Bayless & Chesley Co., L.P.A., of Cincinnati, OH; and James J. Christoph of McCormick & Christoph, P.C., Boulder, CO, with him on the briefs) for Plaintiffs-Appellants.
Douglas N. Letter, Appellate Litigation Counsel, (Robert D. McCallum, Jr., Assistant Attorney General, and John W. Suthers, United States Attorney, with him on
Gail D. Zirkelbach and Michael D. Schag of McKenna Long & Aldridge, L.L.P., Denver, CO; Gregory Kellam Scott of Kaiser-Hill Company, L.L.C., Golden, CO; Thomas J. Heiden of Miller, Canfield, Paddock & Stone, P.L.C., Grand Rapids, MI, on the briefs for Defendant-Appellee Kaiser-Hill Company, LLC.
Richard J. Webber of Arent Fox Kintner Plotkin & Kahn, P.L.L.C., Washington, D.C.; Dennis W. Brown and Stacy A. Carpenter of Baldwin & Brown, P.C., Denver, CO, on the brief for Defendant-Appellee Wackenhut Services Limited Liability Company.
John T. Boese and Michael J. Anstett of Fried, Frank, Harris, Shriver & Jacobson, Washington, D.C.; and F. Gregory McKenna and Alan Epstein of Hall & Evans, L.L.C., Denver, CO, on the brief for Defendant-Appellee EG & G Rocky Flats, Inc.
Before KELLY and O‘BRIEN, Circuit Judges and EAGAN1, District Judge.
O‘BRIEN, Circuit Judge.
This is a qui tam action,2 filed under the False Claims Act (FCA),
Relators present several issues on appeal: (1) whether the district court applied the correct standard of review in granting the Government‘s motion to dismiss; (2) whether it erred in finding the Government met its burdens under the applied standard; (3) whether it erred in denying Relators’ request to conduct certain discovery in preparation for hearing on the Government‘s motion to dismiss, their request to subpoena the Government‘s person most knowledgeable about the decision to seek dismissal, and their request to inquire at the hearing into the reasons underlying the dismissal decision; and (4) whether it erred in allowing the Government to present evidence refuting certain of the Relators’ allegations where the parties had stipulated Relators’ claim had merit. We exercise jurisdiction pursuant to
FACTUAL BACKGROUND
The Department of Energy (DOE) operated Rocky Flats5 as a nuclear weapons manufacturing facility from 1953 through 1992. Rocky Flats is located near Golden, Colorado. In 1989, the Environmental Protection Agency (EPA) designated the by-then radiologically-contaminated faсility a CERCLA6 Superfund7 site. The site is to be decontaminated and closed by 2006.
Between 1989 and 1995, EG & G Rocky Flats, Inc., was the primary contractor with DOE for management and operations at Rocky Flats, which included security. During these same years, Wackenhut Services, L.L.C., contracted directly with the DOE to provide security at the site. In 1995, the DOE awarded Kaiser-Hill Co., L.L.C., the environmental cleanup contract at Rocky Flats. Since 1995, Kaiser-Hill has subcontracted the security portion of its contract to Wackenhut.
Relators performed security work at Rocky Flats, and each Relator independently voiced his concern about what he perceived as weak security. They ultimately filed suit as qui tam relators under
On April 13, 2000, the Government requested the DOE be added to the certificate of service to be kept aware of the progress of the suit. The Government became concerned about the handling of classified information and filed a status report concerning this issue on July 5, 2000. At a hearing on Defendants-Appellees’ motion to stay proceedings pending the Government‘s resolution of classified information, the Government announced it would file a motion to dismiss, which it did on August 21, 2000.
The Government argued its motion to dismiss should be granted because the lawsuit would delay the cleanup and closure of Rocky Flats, as well as compromise national security interests by risking inadvertent disclosure of classified information. Relators opposed dismissal, claiming the Government was seeking dismissal for fraudulent and arbitrary and сapricious reasons and the reasons for dismissal were not rationally related to a legitimate government purpose. They also argued the Government could not seek to dismiss the action without first intervening under
DISCUSSION
I. FCA claims
We review de novo the district court‘s interpretation of the FCA and its determination of what standard to apply to the Government when it moves to dismiss a qui tam action. Seе Foutz v. United States, 72 F.3d 802, 804 (10th Cir.1995) (construction of federal statutes reviewed de novo). We review the district court‘s dismissal of a qui tam action with prejudice for abuse of discretion. Stone, 282 F.3d at 809.
A. The FCA‘s Purposes and Provisions
The purpose of the FCA “is to enhance the Government‘s ability to recover losses sustained as a result of fraud against the Government.” S.Rep. No. 99-345, at 1 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5266. It empowers a private individual (a relator) to bring a civil claim on his or her own behalf, and on behalf of the Government, against a person or company who knowingly presents a false claim to the Government for payment.
Through the 1986 amendments, Congress granted the Government additional opportunities to intervene and increased its power to control qui tam actions. Under the old Act, the Government only had the initial sixty days in which to decide to intervene. The 1986 amendments allow the Government to obtain extensions be-
The FCA prescribes the process for a qui tam action. After the relator files, the complaint remains under seal for at least sixty days, plus any extensions, during which time the Government has the opportunity to investigate the claim and determine whether it wants to intervene.
B. Intervention
At the outset, we consider Relators’ argument that the Government must intervene under
The FCA provides “[t]he Government may dismiss the action notwithstanding the objections of the person initiating the action if the person 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
As a general rule, statutory language is to be interpreted according to the common meaning of the terms employed. Our analysis of statutory construction must begin with the language of the statute itself, and [absent] a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.
348 F.3d 1263, 1268 (10th Cir.2003) (quotation marks, citations and alteration omitted). Applying this canon, we identify nothing in the language of
Under current law, the Government is barred from reentering the litigation once it has declined to intervene during this initial period. The Committee recognizes that this limited opportunity for Government involvement could in some cases work to the detriment of the Government‘s interests. Conceivably, new evidence discovered after the first 60 days of the litigation could escalate the magnitude or complexity of the fraud, causing the Government to reevaluate its initial assessment or making it difficult for the qui tam relator to litigate alone. In those situations where new and significant evidence is found and the Government can show ‘good cause’ for intervening, paragraph (2) provides that the court may allow the Government to take over the suit.
S. Rep. 99-345, at 26-27 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5291-92. This language clearly suggests the purpose of late intervention is to pursue litigation, not dismiss it.
The D.C. Circuit has recently held the Government need not first intervene in a qui tam action before moving to dismiss it. Although the case concerned a government motion to dismiss during the seal period, the court‘s reasoning applies with equal force to a motion to dismiss filed after the seal period:
[Section] 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.
Swift v. United States, 318 F.3d 250, 251 (D.C.Cir.), cert. denied, 539 U.S. 944, 123 S.Ct. 2622, 156 L.Ed.2d 630 (2003).13 As we just noted, the purpose of late intervention, as with intervention in the seal period, is to proceed with the action. Other courts have agreed in dicta that prior intervention is not necessary to enable a government motion to dismiss. See Juliano v. Fed. Asset Disposition Ass‘n, 736 F.Supp. 348, 351 (D.D.C.1990), aff‘d, 959 F.2d 1101 (D.C.Cir.1992); Kelly, 9 F.3d at 753 n. 10; United States ex rel. Sequoia Orange Co. v. Baird-Neece Packing Corp., 151 F.3d 1139, 1145 (9th Cir.1998);
Our holding comports with constitutional concerns as well. As the Supreme Court has instructed, “it is a cardinal principle of statutory interpretation ... that when an Act of Congress raises a serious doubt as to its constitutionality, [we] will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Zadvydas v. Davis, 533 U.S. 678, 689, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (quotation marks omitted). The constitutionality of the FCA has been challenged several times under the claim it violates the separation of powers doctrine inherent in the Take Care Clause.14 In this case, we examine whether the Government would be unconstitutionally hamstrung by a requirement, as urged by Relators, to intervene with a showing of good cause before moving to dismiss a qui tam action.
In a case where the Government successfully intervened upon a showing of good cause, we have previously held the qui tam provisions are constitutional under the Take Care Clause. Stone, 282 F.3d at 807. We expressly reserved the question of whether the qui tam provisions would pass constitutional muster if the Government was denied intervention for cause. Id. at 806 n. 6. Stone cited favorably to decisions of other circuits that have uniformly held the FCA is constitutionally sound as long as it is interpreted as vesting in the Executive Branch sufficient control over qui tam actions so there is no violation of its duty to enforce the laws of the land. The Fifth Circuit has stated the Government retains sufficient control of a qui tam action to save the FCA from being unconstitutional because the Government can veto settlements without intervening, and it “retains the unilateral power to dismiss an action notwithstanding the objections of the person.” Riley v. St. Luke‘s Episcopal Hosp., 252 F.3d 749, 753 (5th Cir.2001) (en banc) (quotation marks omitted). The Ninth Circuit has concluded the FCA does not violate the doctrine of separation of powers because the Government retains sufficient control over qui tam actions, including the power “albeit somewhat qualified, to end qui tam litigation.” Kelly, 9 F.3d at 754. These limitations to which the Kelly court refers are the FCA requirements to give the relator notice and a hearing. Id. at 753. The Sixth Circuit has also concluded the FCA scheme embraces sufficient provisions to assure the freedom of the Government to control a qui tam action. United States ex rel. Taxpayers Against Fraud v. General Elec. Co., 41 F.3d 1032, 1041 (6th Cir.1994). See also Stevens, 529 U.S. at 801, 120 S.Ct. 1858 (history of qui tam action in England and America sufficient to establish it does not implicate Take Care Clause).
Although the qui tam provisions have thus far withstood constitutional challenge, we conclude that to condition the Government‘s right to move to dismiss an action in which it did not initially intervene upon a requirement of late intervention tied to a showing of good cause would place the FCA on constitutionally unsteady ground. Because we are to interpret statutes in a manner that renders them constitutionally valid, Zadvydas, 533 U.S. at 689, 121 S.Ct. 2491, we should avoid an interpretation that unnеcessarily binds the Government. Therefore, we conclude that the
C. Dismissal
We turn now to the correct standard of review of a government motion to dismiss a qui tam action under
[W]hen the Government takes over a privately initiated action, the individual who brought the suit will be served, upon request, with copies of all pleadings filed as well as deposition transcripts. Additionally, the person who brought the action may formally object to any motions to dismiss or proposed settlements between the Government and the defendant.
Any objections filed by the qui tam plaintiff may be accompanied by a petition for an evidеntiary hearing on those objections. The Committee does not intend, however, that evidentiary hearings be granted as a matter of right. We recognize that an automatic right could provoke unnecessary litigation delays. Rather, evidentiary hearings should be granted when the qui tam relator shows a ‘substantial and particularized need’ for a hearing. Such a showing could be made if the relator presents a colorable claim that the settlement or dismissal is unreasonable in light of existing evidence, that the Government has not fully investigated the allegations, or that the Government‘s decision was based on arbitrary and improper considerations.
S. Rep. 99-345, at 26 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5291.15
In Swift, the D.C. Circuit considered the standard to apply to a government motion to dismiss a qui tam action where the Government has not previously intervened and the defendant has not yet been served. 318 F.3d at 251. In its view, the Government‘s decision to dismiss is nearly unreviewable.16 Section 3730(c)(2)(A)‘s “opportunity for a hearing” language is simply intended to provide a forum for the relator to try to convince the Government not to dismiss the case. Id. at 253. The court reserved deciding the correct standard to apply in instances where the defendant was already served. Id. at 252-53. Because the case we review is one in which the defendants were served, and because under these circumstances we construe the hearing language of § 3730(c)(2)(A) to impart more substantive rights for a relator, we look to the Ninth Circuit for guidance.
The Ninth Circuit took up the standard of review of a government motion to dismiss a qui tam action in Sequoia v. Baird-
The Ninth Circuit established the following standard for testing whether dismissal by the Government is appropriate: “(1) identification of a valid government purpose; and (2) a rational relation between dismissal and accomplishment of the purpose.” Id. at 1145 (quotation marks omitted). If the Government satisfies this two-step test, “the burden switches to the relator to demonstrate that dismissal is fraudulent, arbitrary and capricious, or illegal.” Id. (quotation marks omitted). The district court here applied this standard, and we adopt it. In our view, it recognizes the constitutional prerogative of the Government under the Take Care Clause, comports with legislative history, and protects the rights of relators to judicial review of a government motion to dismiss.17
We next examine whether the district court erred in finding the Government met the standard set in Sequoia v. Baird-Neece, and in dismissing with prejudice the Relators’ action. After an exhaustive review of the record, we conclude the court did not abuse its discretion in dismissing the qui tam action.
1. Rational Relation to Valid Government Purpose
The Government argues that protecting classified information from disclosure and the timely closing of the contaminated Rocky Flats facility18 are valid governmental purposes supporting its motion to dismiss the qui tam action. Relators agree. Where the parties part company, however, is on the question of whether dismissal of the action bears a rational relation to the stated objectives. Based on evidence adduced at the five-day evidentiary hearing, the district court, adopting the recommendation of the magistrate, concluded that it does. We concur.
The Government demonstrated that classified documents required in the litigation19 would present a risk of inad-
The Government also demonstrated the litigation would delay the clеan-up and closure of Rocky Flats by diverting the focus of security planners and management from the clean-up effort, by requiring the reassignment of personnel from the project to a review of classified documents for declassification or redaction in aid of litigation, and by placing an added financial burden on the project through a requirement to shift funds from clean-up to litigation.20
The Relators argued that many of their claims could have been determined without a significant diversion of resources by the Government. The magistrate concluded that while the evidence of diversion of resources from the clean-up effort to litigation was not “concrete” (Appellants’ Br., Tab I at 21), it sufficiently established the likelihood of some diversion of resources, and “any diversion of personnel attention away from the closure project would negatively impact the closure schedule.”20 (Id. at 22) Once again, the Government satisfied the Sequoia test by advancing a “plausiblе, or arguable” reason for the dismissal. Id.
2. Arbitrary and Capricious
Once the Government meets its burden of establishing a rational relationship between dismissal of a qui tam action and a valid government purpose, the “burden switches to the relator to demonstrate that dismissal is fraudulent, arbitrary and capricious, or illegal.” Sequoia v. Baird-Neece, 151 F.3d at 1145 (quotation marks omitted). Relators’ principal argument is that the Government‘s motion to dismiss was fraudulent because it was motivated by a desire to spare DOE embarrassment over security lapses at Rocky Flats.21 They contend a revolving door of employment between the DOE and its contractors at Rocky Flats fostered a climate of cover-up of security violations at the facility, including misuse of classification of
II. Discovery and Other Rulings in Limine
In preparation for the hearing on the Government‘s motion to dismiss, the magistrate stayed discovery. The district court approved the stay. We review discovery rulings for an abuse of discretion. Motley v. Marathon Oil Co., 71 F.3d 1547, 1550 (10th Cir.1995), cert. denied, 517 U.S. 1190, 116 S.Ct. 1678, 134 L.Ed.2d 781 (1996). The discovery Relators wanted to conduct would have involved classified documents. Thus, discovery would have allowed what the Government was trying to avoid in moving to dismiss the action: divulging classified information. Furthermore, the Relators sought through discovery to challenge the Government‘s motivation behind the dismissal.22 The magistrate denied the requested discovery on the grounds it would reach classified information and was irrelevant to the question of whether the proposed dismissal was rationally related to a valid governmental purpose. The court limited Relators’ proof to their own witnesses and documents and cross-examination of government witnesses.
We expect the district court to exercise its discretion in determining when and how to limit discovery. Clearly, the district court did not abuse its discretion in this case in limiting discovery so as to avoid revelation of classified information, particularly when this was one of the very purposes behind the Government‘s motion to dismiss. Neither, for the reasons we next discuss in relation to the deliberative process privilege, did it err in denying inquiry into the Government‘s subjective motivation behind its dismissal.
Ruling in limine, the magistrate quashed the Relators’ subpoena of the Government‘s person most knowledgeable about its motion to dismiss.23 Furthermore, she indicated she would apply the deliberative process privilege at the
The magistrate was correct to quash the subpoena for the Government‘s person most knowledgeable about its motion to dismiss for the plain reason that
“rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance the quality of agency decisions by protecting open and frank discussion among those who make them within the Government.”
Casad v. U.S. Dep‘t of Health & Human Servs., 301 F.3d 1247, 1251 (10th Cir.2002) (quoting U.S. Dep‘t of Interior v. Klamath Water Users Protective Ass‘n, 532 U.S. 1, 8-9 (2001) (quotations and citations omitted)). Relators argue the Government should not be allowed the protection of the deliberative process privilege because they seek to establish the Government‘s motivation, for which the privilege is unavailable. They rely on In re: Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency, 156 F.3d 1279 (D.C.Cir.1998). The unavailability of the privilege in that case, however, did not extend to inquiries into the Government‘s subjective motivation for a decision. Id. at 1280. “When a party challenges agency action as arbitrary and capricious the reasonableness of the agency‘s action is judged in accordance with its stated reasons. Agency deliberations not part of the record are deemed immaterial.” Id. at 1279 (citation omitted). Therefore, the district court was correct to apply the deliberative process privilege.
III. Stipulation of Facts
Prior to the evidentiary hearing on the motion to dismiss, the Government agreed to stipulate, for purposes of the hearing, that Relators’ claims of security deficiencies at Rocky Flats had merit. Relators quibble that the district court erred in allowing the Government to present evidence refuting certain of the Relators’ factual allegations. We review the lower court‘s decision to admit, exclude, limit or refuse to limit the scope of the еvidence for abuse of discretion. McCue v. State of Kansas, Dept. of Human Res., 165 F.3d 784, 788 (10th Cir.1999).
Relators list only two examples of statements they believe challenged the merits of their claims. In one, a Government witness expressed doubts the Relators would win anything in the lawsuit. He felt the nuclear material at Rocky Flats was secure. He believed the potential benefits of prosecuting the lawsuit were outweighed by the benefits of timely closure of the facility. In the same vein, the Government argued in closing that it preferred timely closure to the uncertain benefits at the end of a lawsuit. We first note that a stipulation to the merit of a claim does not translate into automatic recovery on the claim. Therefore, it was
CONCLUSION
We hold the FCA does not require the Government to intervene prior to moving to dismiss a qui tam action, we adopt the Sequoia standard for reviewing the Government‘s motion to dismiss, and we find it has met its burden under Sequoia v. Baird-Neece. We also hold the district court did not abuse its discretion in its rulings in discovery or in limine. We AFFIRM the decision of the district court.
EAGAN, J., dissenting in part and concurring in part and in the result.
I dissent only on the basis of the majority‘s determination that the FCA does not require the Government to intervene prior to moving to dismiss a qui tam action. In my view, where the Government has declined to intervene during the sixty-day seal period, it is required to intervene upon a showing of good cause under
The majority‘s focus on the provision of the statute which permits the Government to dismiss a qui tam action,
If the Government proceeds with the action, it shall have the primary responsibility for prosecuting the action, and shall not be bound by an act of the person bringing the action. Such person shall have the right to continue as a party to the action subject to the limitations set forth in paragraph (2).
If the Government elects not to proceed with the action, the person who initiated the action shall have the right to conduct the action.... When a person proceeds with the action, the court, without limiting the status and rights of the person initiating the action, may nevertheless permit the Government to intervene at a later date upon a showing of good cause.
In effect, the majority‘s reading of the statute eviscerates the provision addressing late intervention. Familiar canons of
Further, this court has long acknowledged: “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” In re Wise, 346 F.3d 1239, 1241 (10th Cir.2003) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)); see Ferroni v. Teamsters, Chauffeurs & Warehousemen Local No. 222, 297 F.3d 1146, 1151 (10th Cir.2002) (citations omitted) (“To determine the plain meaning of the statute, we must consider the statute as a whole.“); Wyoming v. United States, 279 F.3d 1214, 1230 (10th Cir.2002) (To construe legislation, the court examines “the purpose, structure, and legislative histоry of the entire statute.“) (quoting California v. Federal Energy Regulatory Comm‘n, 495 U.S. 490, 504 (1990)); In re Overland Park Financial Corp., 236 F.3d 1246, 1252 (10th Cir.2001) (“When interpreting statutory language, this court ‘must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.’ “) (citation omitted.); United States v. Nichols, 184 F.3d 1169, 1171 (10th Cir.1999) (“When interpreting statutory language, however, appellate courts must examine the ... language in context, not in isolation.“). Here, the context, design, and structure of the statute as a whole indicate that the government has unfettered discretion to dismiss if it intervenes within the sixty-day seal period, but not after.
The legislative history cited by the majority speaks to the circumstances of this case: “In those situations where new and significant evidence is found and the Gov-ernment can show ‘good cause’ for intervening, paragraph (2) provides that the court may allow the Government to take over the suit.” S. Rep. 99-345, at 26-27 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5292. This legislative history relates to the section of the amendment which becamе subsection (c)(3) of the statute. The legislative history is clear that late intervention requires good cause and even suggests that it requires new and significant evidence. Contrary to the conclusion of the majority, taking over the suit does not mean that intervention under subsection (c)(3) is permitted only if the government plans to proceed. Such is too expansive a reading of the legislative history. It does mean taking control of the action—which inherently includes the ability to seek dismissal.
Examination of the statutory language in context and in light of the legislative history does not place the FCA on unsteady constitutional ground. The Take Care Clause of the United States Constitution entrusts the Executive Branch with the duty to “take Care that the Laws be faithfully executed....” U.S. Const. art. II, § 3. The FCA vests in the Executive
To the extent the Government‘s motion to dismiss can be construed as an implied motion to intervene, the issue becomes, then, whether the Government showed good cause for intervention. The district court found that mere intent of the Government to dismiss the case constitutes good cause. Such finding effectively eliminates the need to intervene at all, a finding which, again, renders the FCA‘s late intervention provision superfluous. I therefore disagree with the district court as to what constitutes good cause. In my view, the Government did show good cause by demonstrating that the lawsuit would compromise national security interests and delay the cleanup and closure of Rocky Flats.
I recognize that there is persuasive authority from other jurisdictions to support the majority‘s conclusion as tо intervention, but I believe that those courts have engaged in iconoclastic statutory construction to reach that conclusion. As the majority acknowledges, the decision in Swift v. United States, 318 F.3d 250, 251 (D.C.Cir.2003), concerned a government motion to dismiss during the seal period, and the language in other cases occurs in dicta, Kelly, 9 F.3d at 753 n. 10; United States ex rel. Friedman v. Rite Aid Corp., 152 F.Supp.2d 766, 772 (E.D.Pa.2001); Juliano v. Fed. Asset Disposition Ass‘n, 736 F.Supp. 348, 351 (D.D.C.1990), or simply ignores the language in
The majority declined to “engraft a good cause rеquirement on a government motion to dismiss.” Maj. Op. 935. I believe that its holding as to intervention essentially engrafts the Sequoia standard on a government motion to intervene after the seal period, and that such action contravenes the express language of the statute, as well as Congressional intent. For these reasons, I respectfully dissent. However, I concur in the result because, here, the Government has shown good cause to intervene under
TERRENCE L. O‘BRIEN
UNITED STATES CIRCUIT JUDGE