UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) UNITED STATES OF AMERICA ) ) Plaintiff, ) ) ex rel. BEN R. STOKES, ) ) Civil Action No. 11-1082 (ESH) Relator, ) ) FILED UNDER SEAL PURSUANT v. ) TO 31 U.S.C. §§ 3729 et. seq. ) BOSTON SCIENTIFIC, et al., ) ) Defendants. ) __________________________________________)
MEMORANDUM OPINION
Relator Ben R. Stokes filed this action on June 14, 2011, under to the False Claims Act,
31 U.S.C. §§ 3729, et seq. (“FCA”). Stokes alleges that defendants Boston Scientific, St. Jude
Medical, Inc., and Medtronic, Inc., the “leading pacemaker manufacturers” in the United States,
design and program pacemakers so as to cause the premature depletion of their batteries, thus
“maximizing the number of procedures to implant and replace” the batteries in Medicare patients
and “causing substantial expense to the Medicare Program.” (Complaint, June 14, 2011 [Dkt.
No. 1] ¶¶ 2–4.) Stokes presently serves as the owner and president of Heartland Partners, which
is in the “hospital-based heart and vascular business.” (Declaration of Ben R. Stokes, Dec. 21,
2011 [Dkt. No. 5-2] (“Stokes Decl.”) ¶¶ 6–7.) From 2004 to 2009, he was the Senior Manager of
Healthcare Economics for the Cardiac Rhythm Disease Management division at defendant
Medtronic. (Id. ¶ 1.)
Pursuant to the qui tam provisions of the FCA, Stokes filed his complaint under seal so
the United States could investigate his allegations. See 31 U.S.C. § 3730(b). After the
1 government completed its investigation, it elected not to intervene. (Notice of Election to
Decline Intervention by United States of America, December 12, 2011 [Dkt. No. 4] (“Pl.’s
Notice”).) Pending before the Court are Stokes’s Motion for Permission to File Redacted
Complaint, Motion to Dismiss the Complaint Without Prejudice, and Motion to Continue Seal
Except as to Redacted Complaint, Dec. 21, 2011 [Dkt. No. 5] (“Relator’s Mot.”); the United
States’s Response to Relator’s Motion for Permission to File and Unseal Redacted Complaint,
Dec. 22, 2011 [Dkt. No. 6] (“Pl.’s Response”); and Stokes’s reply, Jan. 4, 2012 [Dkt. No. 7]
(“Relator’s Reply”). For the reasons stated, the Court grants in part and denies in part Stokes’s
Motion.
I. DISMISSAL
Because the United States has consented to the dismissal of this action without prejudice,
the Court will grant Stokes’s motion in this regard. See 31 U.S.C. § 3730(b)(1) (providing that a
qui tam action under the FCA may only be dismissed if the government so consents).
II. SEALING
Stokes further requests leave to file an amended complaint which redacts his name and
information that might be used to identify him,1 and that the Court order sealed, for an indefinite
period of time, all filings in this case except for the amended, redacted complaint and redacted
versions of Plaintiff’s Notice and this Court’s order with regard to Stoke’s Motion. (See
Relator’s Reply at 2–3.) Stokes alleges that his identity needs to be protected so that he can
continue his investigation in the hope of convincing the United States to intervene in the future
(see Stokes Decl. ¶¶ 20–21), and because, “[i]f [his] identity is publicly disclosed at this time,
[he] fully believe[s] that [he] will experience significant retaliation within the industry” in that
1 Specifically, Stokes proposes to “substitute John Doe for [his] name throughout the [c]omplaint and . . . redact [p]aragraphs 1, 4, 40, 41, and 59–70.” (Relator’s Mot. at 8 n.4.) 2 his “heart and vascular consulting business will sustain significant and irreparable economic
damages in addition to the significant social stigma of being a whistleblower within an industry.”
(Id. ¶ 22 (emphasis added).) The United States objects to Stokes’s request. (See Pl.’s Response
at 4 (“Because this case does not appear to present the type of extraordinary circumstances that
courts have found to warrant an indefinite seal . . ., the United States respectfully reiterates its
request that the Court lift the seal for the Complaint, [Pl.’s Notice], and [Relator’s Mot.].”).)
In the typical qui tam action, once the government has decided whether to intervene, the
relator’s complaint is unsealed. See ACLU v. Holder, --- F.3d ----, ----, No. 09-2086, 2011 WL
1108252, at *12 (4th Cir. Mar. 28, 2011) (“We agree that ‘sunlight’ and ‘openness’ are important
values that further the functioning of this republic and note that in every FCA case, the qui tam
complaint will be unsealed.”); United States ex rel. Coughlin v. IBM Corp., 992 F. Supp. 137,
140 (S.D.N.Y. 1998) (the FCA “envisions the lifting of the seal as to certain documents,
particularly the relator’s complaint”); cf. 31 U.S.C. § 3730(b)(2) (“The complaint shall be filed in
camera, shall remain under seal for at least 60 days, and shall not be served on the defendant
until the court so orders.”); id. § 3730(b)(3) (“The defendant shall not be required to respond to
any complaint filed under this section until 20 days after the complaint is unsealed . . . .”). In
order to grant Stokes’s request, therefore, the Court would have to order a partial continuance of
the seal provided by the FCA.
“In this Circuit, when evaluating whether to seal case pleadings, ‘the starting point . . . is
a strong presumption in favor of public access to judicial proceedings.’” United States ex rel.
Durham v. Prospect Waterproofing, Inc., --- F. Supp. 2d ----, ----, No. 10-cv-1946, 2011 WL
4793236, at *1 (D.D.C. Oct. 4, 2011) (some internal quotation marks omitted; alteration in the
original) (quoting EEOC v. Nat’l Children’s Ctr., 98 F.3d 1406, 1409 (D.C. Cir. 1996)). Indeed,
3 the Durham Court denied a relator’s request to continue the seal in his qui tam action after it was
dismissed without prejudice. Id. at *4; see id. at *1–4 (applying the six-factor test, which the
D.C. Circuit articulated in United States v. Hubbard, 650 F.2d 293, 317–22 (D.C. Cir. 1980), for
when the presumption of public access may be overcome); see also In Re Sealed Case, No. 97-
5001, 1997 WL 661779, at *1 (D.C. Cir. Oct. 8, 1997) (unpublished) (remanding and instructing
the district court to apply the Hubbard factors in deciding whether to continue the seal on a qui
tam action).
This matter differs from Durham in one crucial respect. Whereas the relator in Durham
“requested that the Court allow the case to remain under seal permanently,” such that the public
would have no access to his allegations, 2011 WL 4793236 at *1 (emphasis added), Stokes
requests a limited seal for the purpose of concealing his identity.2 The seal Stokes proposes
would allow taxpayers, the “‘real parties in interest’ in FCA cases,” id. at *2 (quoting United
States ex rel. Schweizer v.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) UNITED STATES OF AMERICA ) ) Plaintiff, ) ) ex rel. BEN R. STOKES, ) ) Civil Action No. 11-1082 (ESH) Relator, ) ) FILED UNDER SEAL PURSUANT v. ) TO 31 U.S.C. §§ 3729 et. seq. ) BOSTON SCIENTIFIC, et al., ) ) Defendants. ) __________________________________________)
MEMORANDUM OPINION
Relator Ben R. Stokes filed this action on June 14, 2011, under to the False Claims Act,
31 U.S.C. §§ 3729, et seq. (“FCA”). Stokes alleges that defendants Boston Scientific, St. Jude
Medical, Inc., and Medtronic, Inc., the “leading pacemaker manufacturers” in the United States,
design and program pacemakers so as to cause the premature depletion of their batteries, thus
“maximizing the number of procedures to implant and replace” the batteries in Medicare patients
and “causing substantial expense to the Medicare Program.” (Complaint, June 14, 2011 [Dkt.
No. 1] ¶¶ 2–4.) Stokes presently serves as the owner and president of Heartland Partners, which
is in the “hospital-based heart and vascular business.” (Declaration of Ben R. Stokes, Dec. 21,
2011 [Dkt. No. 5-2] (“Stokes Decl.”) ¶¶ 6–7.) From 2004 to 2009, he was the Senior Manager of
Healthcare Economics for the Cardiac Rhythm Disease Management division at defendant
Medtronic. (Id. ¶ 1.)
Pursuant to the qui tam provisions of the FCA, Stokes filed his complaint under seal so
the United States could investigate his allegations. See 31 U.S.C. § 3730(b). After the
1 government completed its investigation, it elected not to intervene. (Notice of Election to
Decline Intervention by United States of America, December 12, 2011 [Dkt. No. 4] (“Pl.’s
Notice”).) Pending before the Court are Stokes’s Motion for Permission to File Redacted
Complaint, Motion to Dismiss the Complaint Without Prejudice, and Motion to Continue Seal
Except as to Redacted Complaint, Dec. 21, 2011 [Dkt. No. 5] (“Relator’s Mot.”); the United
States’s Response to Relator’s Motion for Permission to File and Unseal Redacted Complaint,
Dec. 22, 2011 [Dkt. No. 6] (“Pl.’s Response”); and Stokes’s reply, Jan. 4, 2012 [Dkt. No. 7]
(“Relator’s Reply”). For the reasons stated, the Court grants in part and denies in part Stokes’s
Motion.
I. DISMISSAL
Because the United States has consented to the dismissal of this action without prejudice,
the Court will grant Stokes’s motion in this regard. See 31 U.S.C. § 3730(b)(1) (providing that a
qui tam action under the FCA may only be dismissed if the government so consents).
II. SEALING
Stokes further requests leave to file an amended complaint which redacts his name and
information that might be used to identify him,1 and that the Court order sealed, for an indefinite
period of time, all filings in this case except for the amended, redacted complaint and redacted
versions of Plaintiff’s Notice and this Court’s order with regard to Stoke’s Motion. (See
Relator’s Reply at 2–3.) Stokes alleges that his identity needs to be protected so that he can
continue his investigation in the hope of convincing the United States to intervene in the future
(see Stokes Decl. ¶¶ 20–21), and because, “[i]f [his] identity is publicly disclosed at this time,
[he] fully believe[s] that [he] will experience significant retaliation within the industry” in that
1 Specifically, Stokes proposes to “substitute John Doe for [his] name throughout the [c]omplaint and . . . redact [p]aragraphs 1, 4, 40, 41, and 59–70.” (Relator’s Mot. at 8 n.4.) 2 his “heart and vascular consulting business will sustain significant and irreparable economic
damages in addition to the significant social stigma of being a whistleblower within an industry.”
(Id. ¶ 22 (emphasis added).) The United States objects to Stokes’s request. (See Pl.’s Response
at 4 (“Because this case does not appear to present the type of extraordinary circumstances that
courts have found to warrant an indefinite seal . . ., the United States respectfully reiterates its
request that the Court lift the seal for the Complaint, [Pl.’s Notice], and [Relator’s Mot.].”).)
In the typical qui tam action, once the government has decided whether to intervene, the
relator’s complaint is unsealed. See ACLU v. Holder, --- F.3d ----, ----, No. 09-2086, 2011 WL
1108252, at *12 (4th Cir. Mar. 28, 2011) (“We agree that ‘sunlight’ and ‘openness’ are important
values that further the functioning of this republic and note that in every FCA case, the qui tam
complaint will be unsealed.”); United States ex rel. Coughlin v. IBM Corp., 992 F. Supp. 137,
140 (S.D.N.Y. 1998) (the FCA “envisions the lifting of the seal as to certain documents,
particularly the relator’s complaint”); cf. 31 U.S.C. § 3730(b)(2) (“The complaint shall be filed in
camera, shall remain under seal for at least 60 days, and shall not be served on the defendant
until the court so orders.”); id. § 3730(b)(3) (“The defendant shall not be required to respond to
any complaint filed under this section until 20 days after the complaint is unsealed . . . .”). In
order to grant Stokes’s request, therefore, the Court would have to order a partial continuance of
the seal provided by the FCA.
“In this Circuit, when evaluating whether to seal case pleadings, ‘the starting point . . . is
a strong presumption in favor of public access to judicial proceedings.’” United States ex rel.
Durham v. Prospect Waterproofing, Inc., --- F. Supp. 2d ----, ----, No. 10-cv-1946, 2011 WL
4793236, at *1 (D.D.C. Oct. 4, 2011) (some internal quotation marks omitted; alteration in the
original) (quoting EEOC v. Nat’l Children’s Ctr., 98 F.3d 1406, 1409 (D.C. Cir. 1996)). Indeed,
3 the Durham Court denied a relator’s request to continue the seal in his qui tam action after it was
dismissed without prejudice. Id. at *4; see id. at *1–4 (applying the six-factor test, which the
D.C. Circuit articulated in United States v. Hubbard, 650 F.2d 293, 317–22 (D.C. Cir. 1980), for
when the presumption of public access may be overcome); see also In Re Sealed Case, No. 97-
5001, 1997 WL 661779, at *1 (D.C. Cir. Oct. 8, 1997) (unpublished) (remanding and instructing
the district court to apply the Hubbard factors in deciding whether to continue the seal on a qui
tam action).
This matter differs from Durham in one crucial respect. Whereas the relator in Durham
“requested that the Court allow the case to remain under seal permanently,” such that the public
would have no access to his allegations, 2011 WL 4793236 at *1 (emphasis added), Stokes
requests a limited seal for the purpose of concealing his identity.2 The seal Stokes proposes
would allow taxpayers, the “‘real parties in interest’ in FCA cases,” id. at *2 (quoting United
States ex rel. Schweizer v. Oce, N.V., 577 F. Supp. 2d 169, 172 (D.D.C. 2008), to learn of the
scheme he alleges by reading his amended, redacted complaint.
Nonetheless, “the rationale behind sealing FCA cases is to allow the United States ample
time to investigate the allegations, and the FCA does not contain any language that suggests the
2 As such, instead of applying the Hubbard factors, this Court might assess Stokes’s request “by applying the factors that courts in this Circuit have used to determine whether a plaintiff should be allowed to proceed anonymously.” Yaman v. United States Dep’t of State, 786 F. Supp. 2d 148, 152 (D.D.C. 2011); see Nat’l Ass’n of Waterfront Emp’rs v. Chao, 587 F. Supp. 2d 90, 99 (D.D.C. 2008) (listing the factors courts should consider when assessing a plaintiff’s request to proceed anonymously); Whistleblower 14106-10W v. Comm’r, 137 T.C. No. 15, 2011 WL 6110061, at *5–14 (U.S. Tax Ct. Dec. 8, 2011) (listing and applying the same). “Pseudonymous litigation has been permitted only in those exceptional cases involving matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiff’s identity.” Chao, 578 F. Supp. 2d at 99 (internal quotation marks and citation omitted). As applicable here, the Tax Court recently noted that where qui tam plaintiffs have sought “to protect their identities on the basis of feared retaliatory harm[,] . . . [t]he results have been mixed.” Whistleblower 14106-10W, 2011 WL 6110061 at *9 (footnote omitted) (collecting cases). 4 purpose of sealing a case is to protect the relator’s identity.” Id. Furthermore, the reasons Stokes
seeks the seal—so that he can continue his investigation and because, “at this time,” he fears
retaliation in his industry (Stokes Decl. ¶¶ 20–22)—do not justify permanently protecting his
identity from public disclosure. Upon consideration of the parties’ positions and the
comprehensive and persuasive application of the Hubbard factors to a similar but not identical
request in Durham, the Court will continue the seal so as to protect Stokes’s identity for a period
of one year only. An order accompanies this memorandum opinion.
/s/ ELLEN SEGAL HUVELLE United States District Judge
Date: January 6, 2012