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UNITED STATES EX REL. KALISH v. DESNICK

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION


June 19, 1991

UNITED STATES OF AMERICA, ex rel., PADDY KALISH, Plaintiff,
v.
JAMES H. DESNICK, et al. Defendants

George W. Lindberg, United States District Judge.

The opinion of the court was delivered by: LINDBERG

MEMORANDUM AND ORDER

GEORGE W. LINDBERG, UNITED STATES DISTRICT JUDGE

 Paddy Kalish filed this qui tam action in the name of the United States of America (the Government) against the defendants on April 17, 1991. 31 U.S.C. § 3730(b)(1). As required by the applicable statute, the complaint was filed in camera and has remained under seal since it was filed. 31 U.S.C. § 3730(b)(2). The Government has moved ex parte for an extension of time during which the complaint in the case at bar is to remain under seal. 31 U.S.C. § 3730(b)(3).

 The Government in its notice of motion has indicated that this motion is scheduled to be presented on June 27, 1991. However, that date is subsequent to the date by which the Government must take certain action absent an extension of time. The court is therefore ruling on the Government's motion prior to the date on which it is scheduled to be presented.

 The controlling statute provides in part:

 

(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. The Government may elect to intervene and proceed with the action within 60 days after it receives both the complaint and the material evidence and information.

 

(3) The Government may, for good cause shown, move the court for extensions of the time during which the complaint remains under seal under paragraph (2). . . . .

 

(4) Before the expiration of the 60-day period or any extensions obtained under paragraph (3), the Government shall --

 

(A) proceed with the action . . .; or

 

(B) notify the court that it declines to take over the action . . . .

 31 U.S.C. § 3730(b)(2)-(4).

 As was previously noted, the complaint at bar was filed on April 17, 1991. According to the Government's motion, the Government received the complaint on April 23, 1991. Accordingly, the period during which the complaint was required to remain under seal expired on June 16, 1991; and the Government is required to intervene or notify the court that it declines to take over the action by June 24, 1991 (June 22, 1991, being a Saturday). 31 U.S.C. § 3730(b)(2) and (4); F.R.C.P. 6(a).

 In its motion, the Government seeks to extend the period during which the complaint remains under seal "for an additional period of 30 days, up to and including July 18, 1991." Under the statute such an extension would also have the effect of extending the time within which the Government must elect to proceed with the action or notify the court that it declines to take over the action. 31 U.S.C. § 3730(b)(4).

 The extension of time the Government seeks may only be granted for "good cause shown." In this regard, the Government states:

 

Since receiving service of the Complaint on April 23, the Department of Justice has notified the Department of Health and Human Services of the relator's allegations and met with and debriefed the relator and his counsel for several hours. In addition, representatives of the Office of Inspector General of the Department of Health and Human Services have inspected several thousand documents produced by the relator to assess the credibility of his allegations. The Department of Health and Human Services is now in the process of gathering the facts developed to date and formulating a recommendation to the Department of Justice which, in turn, will then make a final decision whether or not to intervene. It is to facilitate these deliberations that the extension of time sought herein is necessary.

 The Government does not state when the Department of Justice notified the Department of Health and Human Services or when it debriefed Mr. Kalish and his attorney. The Government does not state when the Office of the Inspector General of the Department of Human Services began to inspect the documents, how many hours on what particular days inspection took place, or how many people were involved in the inspection. In short, the statement of the Government is too lacking in specifics to show good cause for an extension of the period during which the complaint remains under seal. See 31 U.S.C. § 3730(b)(3).

 ORDERED: The Government's ex parte motion for an extension of time is denied. 31 U.S.C. § 3730(b)(3). The complaint is unsealed and shall be served upon defendants pursuant to Rule 4 of the Federal Rules of Civil Procedure. 31 U.S.C. § 3730(b)(2), (3); F.R.C.P. 4. The Government shall proceed with the action or notify the court that it declines to take over the action on or before June 24, 1991. 31 U.S.C. § 3730(b)(2).

19910619

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