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4th Circuit upholds sealing of qui tam suits

The 4th U.S. Court of Appeals rejected today challenges to provisions that require cases filed under the federal False Claims Act to be sealed for at least 60 days and permit them to remain secret for much longer.

The American Civil Liberties Union, OMB Watch and Government Accountability Project argued that the provisions violate the public’s First Amendment right of access to judicial proceedings, infringe on First Amendment rights by gagging qui tam relators from speaking about their complaints, and violate the separation of powers by infringing on a court’s inherent authority to decide on a case-by-case basis whether a particular complaint should be sealed.

A three-judge panel split 2-1 in finding that the sealing regulations are narrowly tailored to balance the interests of the relator, the government and the defendant and that the restriction on the inherent authority of courts affects only those powers “reasonably useful to achieve justice,” a category over which Congress may intervene.

Justice James C. Dever III, a district judge in the Eastern District or North Carolina sitting by designation, wrote the majority opinion, joined by 4th Circuit Judge Barbara Milano Keenan.

Judge Roger L. Gregory dissented. “Ultimately, opacity inflicts causalities in the darkened corners of our government, deteriorating the quality of our democracy subtly but surely …,” he wrote. “Instead of striving to categorically conceal this area of civil dockets, I would more
rigorously apply the First Amendment and selectively seal records.”

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