August 21, 2013
UNITED STATES OF AMERICA ex rel. Jane Roe, Plaintiff,
SUTTER HEALTH, a California Nonprofit Corporation; SUTTER VNA & HOSPICE, also known as SUTTER CARE AT HOME; TIMOTHY GIESEKE, M.D.; and DOES 1-100, inclusive, Defendants.
BENJAMIN B. WAGNER, United States Attorney, COLLEEN M. KENNEDY, Assistant United States Attorney, Sacramento, CA, Attorneys for the United States.
Stuart F. Delery, Principal Deputy Assistant Attorney General, Michael D. Granston, Renee Brooker, David T. Cohen, Attorneys, Civil Division Commercial Litigation Branch, Washington, D.C.
NOTICE OF THE UNITED STATES' ELECTION TO DECLINE INTERVENTION; ORDER
MORRISON C. ENGLAND, Jr., Chief District Judge.
Pursuant to the False Claims Act, 31 U.S.C. § 3730(b)(4)(B), the United States notifies the Court of its decision not to intervene in this action.
Although the United States declines to intervene, we respectfully refer the Court to 31 U.S.C. § 3730(b)(1), which allows the relator to maintain the action in the name of the United States; providing, however, that the "action may be dismissed only if the court and the Attorney General give written consent to the dismissal and their reasons for consenting." Id. The United States Court of Appeals for the Ninth Circuit has held that, notwithstanding this language, the United States has the right only to a hearing when it objects to a settlement or dismissal of the action. United States ex rel. Green v. Northrop Corp., 59 F.3d 953, 959 (9th Cir. 1995); United States ex rel. Killingsworth v. Northrop Corp., 25 F.3d 715, 723-25 (9th Cir. 1994). Therefore, the United States requests that, should either the relator or the defendants propose that this action be dismissed, settled, or otherwise discontinued, this Court provide the United States with notice and an opportunity to be heard before ruling or granting its approval.
Furthermore, pursuant to 31 U.S.C. § 3730(c)(3), the United States requests that all pleadings filed in this action be served upon the United States; the United States also requests that orders issued by the Court be sent to counsel for the United States. The United States reserves its right to order any deposition transcripts, to intervene in this action, for good cause, at a later date, and to seek the dismissal of the relator's action or claim. The United States also requests that it be served with all notices of appeal.
Finally, the United States requests that the relator's Complaint, this Notice, and the attached proposed Order be unsealed. The United States requests that all other papers on file in this action remain under seal because in discussing the content and extent of the United States' investigation, such papers are provided by law to the Court alone for the sole purpose of evaluating whether the seal and time for making an election to intervene should be extended.
A proposed Order accompanies this notice.
The United States having declined to intervene in this action pursuant to the False Claims Act, 31 U.S.C. § 3730(b)(4)(B), IT IS ORDERED that:
1. The complaint be unsealed and served upon the defendants by the relator;
2. All other contents of the Court's file in this action remain under seal and not be made public or served upon the defendants, except for this Order and the United States' Notice of Election to Decline Intervention, which the relator will serve upon the defendants only after service of the complaint;
3. The seal be lifted as to all other matters occurring in this action after the date of this Order;
4. The parties shall serve all pleadings and motions filed in this action, including supporting memoranda, upon the United States, as provided for in 31 U.S.C. § 3730(c)(3). The United States may order any deposition transcripts and is entitled to intervene in this action, for good cause, at any time;
5. The parties shall serve all notices of appeal upon the United States;
6. All orders of this Court shall be sent to the United States; and that
7. Should the relator or the defendants propose that this action be dismissed, settled, or otherwise discontinued, the Court will provide the United States with notice and an opportunity to be heard before ruling or granting its approval.
IT IS SO ORDERED.