United States District Court, D. Minnesota
United States of America ex rel. Leslie Davis and John D. Westley, Relators,
Hennepin County; Deborah Hedlund; Carol Molnau; Robert McFarlin; Dan Dorgan; Mark Rosenker; Steve Lilley; Ares Corporation; Wiss, Janey, Elstner Associates; Sandia National Labs, LLC, Defendants.
L. Longrie, Longrie Law Office, Maplewood, MN, for relators
Leslie Davis and John D. Westley.
A. Blumenfield and Erica MacDonald, United States
Attorney's Office, Minneapolis, MN, for plaintiff the
United States of America.
MEMORANDUM OPINION AND ORDER
C. Tostrud United States District Judge
False Claims Act (“FCA”) includes a provision
allowing the Government to dismiss an action if the relators
(1) have been notified and (2) have had “an opportunity
for a hearing on the motion.” 31 U.S.C. §
3730(c)(2)(A). The Government seeks to exercise that
prerogative here and has filed a motion to dismiss. Relators
were notified of the motion and a hearing was held. Relators
oppose dismissal on two grounds. First, Relators argue that
the Government waived its right to dismiss when it declined
to intervene in the action. Second, Relators argue that, to
be granted, the Government's motion to dismiss must be
supported by a valid government purpose and a rational
relation between dismissal and accomplishment of the
articulated purpose. The Government maintains that
intervention is not a prerequisite to exercising its right to
dismiss and that its right to dismiss is subject only to
satisfying the notification and “opportunity for a
hearing” requirements set forth in the plain text of 31
U.S.C. § 3730(c)(2)(A). In other words, the Government
says that it need not show a valid purpose or rational basis
to obtain dismissal. The law and practical considerations
support the Government's position that it need not
intervene in order to seek dismissal of an FCA case. On the
separate question of what showing the Government must make,
if any, to obtain dismissal, it does not matter which
position is accepted. Though the law tilts in favor of the
rule advanced by the Government, the Government here
satisfies the test advocated by Relators. The
Government's motion will be granted.
Relators' third qui tam FCA case against
Defendants, and their second in the District of Minnesota.
See U.S. ex rel. Davis v. Hennepin Cty., No.
15-cv-2671 (RWP/CFB), 2016 WL 10747256 (D. Minn. July 8,
2016) (“Davis I”); U.S. ex rel.
Davis v. Hennepin Cty., No. 5:17-cv-81 (GRJ/RH), 2017 WL
4475938 (N.D. Fla. May 23, 2017) (“Davis
II”). In each case, the allegations have been
essentially the same: “that the various named
Defendants conspired to cover up and conceal the true causes
of the Minnesota Interstate 35 West bridge collapse so that
Hennepin County could make false claims and thereby
improperly secure various types of federal funding for the
bridge's reconstruction.” Davis I, 2016 WL
10747256, at *1; accord Davis II, 2017 WL 4475938,
at *1; Compl. ¶ 16 [ECF No. 1].
additional detail about Relators' allegations is
appropriate, because part of the Government's rationale
for dismissal-to the extent it must have one-is that the
“factual sequence of events” suggested by
Relators “appears unlikely.” Mem. in Supp. at 5
[ECF No. 12]. Relators allege that they have “specific
information, ” which they do not divulge in their
complaint, that “local governmental officials conspired
to cover up and conceal the causes of the Interstate 35W
bridge collapse so that false claims could be made by
Hennepin County to obtain” some $250 million in
“[f]ederal disaster relief, grants, congressional and
other stimulus funding.” Compl. ¶¶ 16, 21.
They further allege that Hennepin County “contaminated
an active disaster scene” and that the head of the
Minnesota Department of Transportation (“MNDOT”),
defendant Molnau, “abused her authority and committed
numerous illegal acts and quid pro quo political dealings to
cover up the cause of the . . . bridge collapse so that false
claims could be made.” Id. ¶¶ 18,
23. Relators are particularly concerned that false claims
were made about “foreign materials and labor”
used in the bridge reconstruction, in violation of the Buy
American Act, and that this foreign steel created problems
requiring additional government expenditures. Id.
¶¶ 29, 33.
three of Relators' FCA cases, the Government has declined
to intervene. Davis I, 2016 WL 10747256, at *1;
Davis II, 2017 WL 4475938, at *1; Not. of Election
to Decline Intervention [ECF No. 20]. Relators' two
previous cases ultimately were dismissed without prejudice
because of Relators' pro se status. See Davis I,
2016 WL 10747256, at *2 (“[C]ourts have uniformly held
that non-lawyers may not litigate qui tam actions on behalf
of the United States.” (citations omitted)); Davis
II, 2017 WL 4475938, at *2 (“Relators are not
permitted to bring this qui tam FCA case as pro
have secured legal representation in their current case.
See Compl. ¶ 1. As a result, instead of filing
another “suggestion of dismissal” on the grounds
that Relators cannot proceed pro se, the Government has filed
a motion to dismiss. ECF No. 10. Shortly after filing its
motion to dismiss, the Government filed a notice of election
to decline intervention. ECF No. 20. Since that time, the
case has been unsealed and Relators have been ordered to
serve their complaint upon the Defendants. ECF No. 21.
Relators evidently have not yet done so. See Longrie
Decl. ¶ 8 [ECF No. 24] (declaration of Relators'
attorney, Diana Longrie, stating that “[Relators] have
a meritorious FCA action and with the case now unsealed, we
are ready to serve the Defendants and proceed with the
case”); see also Docket (containing no summons
returned executed). Accordingly, only Relators and the
Government have appeared in the action and at oral argument
on the motion to dismiss. See Min. Entry [ECF No.
33]; see also 31 U.S.C. § 3730(c)(2)(A) (making
no mention of defendants' involvement in the hearing on
the Government's motion to dismiss).
Government seeks dismissal pursuant to 31 U.S.C. §
3730(c)(2)(A). Mem. in Supp. at 1. Section 3730(c) of the FCA
is entitled “Rights of the parties to qui tam actions,
” and subsection (c)(2)(A) provides: “The
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 on the motion.”
Parties' disputes arise out of the potential ambiguities
caused by § 3730(c)(2)(A)'s failure of expression:
May the Government dismiss an action if it has declined to
intervene? And is the Government's right to dismiss
absolute, or conditioned upon satisfying some standard, such
as rational basis? These are questions of statutory
interpretation that are resolved as a matter of law. See
Smythe v. City of Onamia, No. 12-cv-3149 (ADM/LIB), 2014
WL 4096966, at *4 (D. Minn. Aug. 19, 2014) (“Statutory
interpretation is a matter of law, and the outcome in general
does not rely on the facts of any one case.” (citing
Wingert & Assocs., Inc. v. Paramount Apparel
Int'l, Inc., 458 F.3d 740, 743 (8th Cir. 2006)
(“We review questions of statutory interpretation de
novo.”))). There is no binding Supreme Court or Eighth
Circuit precedent on these issues, but the Parties have
identified the leading cases: Sequoia Orange from
the Ninth Circuit, and Swift from the D.C. Circuit.
See Swift v. United States, 318 F.3d 250, 251 (D.C.
Cir. 2003); U.S. ex rel. Sequoia Orange Co. v.
Baird-Neece Packing Corp., 151 F.3d 1139 (9th Cir.
first issue is whether the Government may dismiss a case in
which it has declined to intervene. Put another way, must the
Government intervene to obtain dismissal? Relators maintain
that the “language, structure, and legislative
history” of § 3730(c)(2)(A) “do not
expressly or impliedly authorize the United States to
outright dismiss a qui tam action they have not intervened
in.” Mem. in Opp'n at 2-3 [ECF No. 22] (stating
“[t]he United States gave up the driver's seat when
they declined to intervene”). The Government's
position is that the statutory dismissal provision
“applies equally to intervened and declined claims, so
that the United States may dismiss a claim after declining to
intervene.” Mem. in Supp. at 2-3.
threshold question, Sequoia Orange is not directly
on point because the Government did intervene there before
seeking dismissal. See 151 F.3d at 1141.
Nonetheless, in dicta, the Ninth Circuit recognized that
“[n]othing in § 3730(c)(2)(A) purports to limit
the government's dismissal authority based upon the
manner of intervention” and the statute “may
permit the government to dismiss a qui tam action without
actually intervening in the case at all.” Id.
at 1145 (citing U.S. ex rel. Kelly v. Boeing Co., 9
F.3d 743, 753 n.10 (9th Cir. 1993)).
is more apposite, as that case involved a motion to dismiss
that was filed “without purporting to intervene.”
318 F.3d at 251. The same is true of the present case, except
that here, the Government also subsequently filed a notice
confirming it did not intend to intervene. ECF No. 20. In
Swift, the D.C. Circuit interpreted the FCA
dismissal provision to contain no intervention requirement.
318 F.3d at 251 (“As is evident from the [statutory]
quotation, the provision does not say that the government
must intervene in order to seek dismissal.”). The court
focused on how the only purpose of intervention is to
“proceed with the action, ” 31 U.S.C. §
3730(b)(2), and “[e]nding the case by dismissing it is
not proceeding with the action”-to
“proceed” would mean “that the case will go