Filing a Qui Tam Complaint Under Seal
A False Claims Act case begins the way no other civil case does. The complaint goes to the clerk in camera, the defendant learns nothing, and a second document that never reaches the public docket carries the evidence to the government.
The rule in short
Under 31 U.S.C. 3730(b) a private relator may sue in the name of the United States. The complaint is filed in camera, remains under seal for at least sixty days, and is not served on the defendant until the court orders it. A copy of the complaint and a written disclosure of substantially all material evidence and information the relator possesses must be served on the government. The United States is the real party in interest throughout.
A qui tam action is a civil suit brought by a private person, called a relator, in the name of the United States. The False Claims Act permits it, and it begins in a way no other civil case does. The complaint goes to the clerk in camera, it stays under seal, and the defendant is not served. The point of that silence is to let the government investigate before the target knows an investigation exists.
Who may bring the action and in whose name
Section 3730(b)(1) allows any person to bring a civil action for a violation of section 3729. The action is brought for the person and for the United States Government, and it is brought in the name of the Government. That phrasing does real work. The United States is the real party in interest even when it has not appeared, which is why the same subsection provides that the action may be dismissed only if the court and the Attorney General give written consent and state their reasons.
The relator does not need to have been injured. An employee, a competitor, a subcontractor or an outsider who has assembled the facts may all file. What the relator needs is information about conduct described in section 3729: presenting a false or fraudulent claim for payment, using a false record material to such a claim, or improperly avoiding an obligation to pay money to the government. Whether the claim itself is false is a separate question, addressed in express and implied certification.
The sealed filing itself
Section 3730(b)(2) states the mechanics in one sentence. The complaint is filed in camera, it remains under seal for at least sixty days, and it is not served on the defendant until the court so orders. There is no self-executing motion to seal in the ordinary sense; the statute directs the result, and district courts have local procedures for accepting the filing without docketing it publicly.
Venue comes from section 3732(a), which reaches any district in which a defendant can be found, resides, transacts business, or in which any act proscribed by section 3729 occurred. That is broad, and it is broader than the general venue statute because a single defendant anywhere in the district supports venue for all of them. The limitations rules and the burden of proof sit in section 3731, which fixes the standard as a preponderance of the evidence.
The written disclosure of material evidence
The second document is the one that surprises people. Section 3730(b)(2) requires the relator to serve on the government a copy of the complaint and a written disclosure of substantially all material evidence and information the person possesses. This disclosure is not a pleading. It is not filed with the court and does not appear on the docket at all.
In practice it is a narrative memorandum with exhibits: how the scheme worked, which claims were submitted, who knew what, and what documents exist. Its quality drives everything that follows, because the government's first read of the case is this document rather than the complaint. Courts have divided on whether a defendant may later obtain it in discovery, with some treating it as ordinary work product subject to a showing of need and others holding it protected outright.
Relators sometimes write a thin disclosure, reasoning that the strongest documents can be produced later once the government commits. The statute asks for substantially all material evidence and information the relator possesses, and a government lawyer who discovers held-back material reads it as a signal about the relator rather than about the case. It also weakens any later argument for original source status, which depends on what the relator knew and shared.
Service, and what the defendant is not told
Service runs to the United States under the Federal Rules, which means the United States Attorney for the district and the Attorney General in Washington. In practice a third copy goes to the Civil Division unit that handles fraud matters, because that is where the decision to investigate is coordinated. Nothing at all goes to the defendant.
| Document | Filed with the court | Served on the government | Served on the defendant |
|---|---|---|---|
| Complaint | Yes, in camera and under seal | Yes, a complete copy | No, not until the court orders service |
| Written disclosure of material evidence | No, it is not a court filing | Yes, with its exhibits | No |
| Government motion to extend the seal | Yes, ordinarily in camera | Filed by the government itself | No |
| Notice of the election on intervention | Yes | Filed by the government itself | Only once the seal is lifted |
What the government does while the case sits
The sealed period exists so the government can investigate without alerting the defendant. Its principal tool is the civil investigative demand under section 3733, which can compel documents, written answers and oral testimony before any suit is public. Investigators may also interview witnesses, pull claims data and coordinate with the agency that paid the money.
At the end of that work the government must elect whether to proceed with the action, and the consequences of each path are set out in the intervention or declination decision. Before then, the sixty days is routinely extended for good cause, a practice described in the seal period and its extensions.
The filing errors that cost cases
Three recur. The first is speaking about the case while it is sealed, which the seal itself forbids and which courts have punished with dismissal. The second is filing after someone else already filed on the same essential facts, which runs into the first-to-file bar. The third is building the complaint out of material that is already in the public domain, which raises the public disclosure bar and original source status.
A fourth is less dramatic and just as damaging. Fraud allegations must be pleaded with particularity, and a complaint that describes a scheme without identifying representative claims is vulnerable on a motion to dismiss even after the government declines. Circuits differ on how much claim-level detail is required, so the practical answer is to plead what the documents actually show and to keep the proof of it organized in the way authenticating documents and electronic records will eventually demand.
Points to carry away
- A qui tam complaint is filed in camera and stays under seal for at least sixty days.
- The defendant is not served until the court orders service, which usually follows the government's election.
- A written disclosure of substantially all material evidence must be served on the government, not filed on the docket.
- Service runs to the Attorney General and the United States Attorney for the district.
- The action is brought in the name of the United States, which remains the real party in interest.
- Venue lies in any district where a defendant can be found, resides, transacts business, or where a violation occurred.
Questions readers ask
Can a relator file the same allegations in a state court case at the same time?
It is a poor idea and it can destroy the federal case. Many states have their own false claims statutes with their own sealing rules, and parallel filings are common where both federal and state funds were paid. What causes trouble is filing an ordinary, unsealed suit that recites the same fraud. That filing may itself become a public disclosure, and it tells the defendant what the sealed case says. Counsel normally coordinates the filings so that every version is sealed and served on the right government offices.
Does the relator need to have suffered any harm?
No. The relator sues in the name of the United States and the injury pleaded is the government's, not the relator's. That is what makes the action qui tam rather than an ordinary damages suit. A relator with no employment relationship to the defendant at all may bring the case if the information is genuinely in hand. Separate retaliation relief exists for employees, contractors and agents who were fired or demoted for lawful acts in furtherance of the action, but it is an additional claim, not a precondition.
What happens if the complaint is filed on the public docket by mistake?
The relator should move immediately to seal it and tell the government. Courts have discretion in how they respond and the outcomes vary. Some have sealed the case going forward and allowed it to proceed, treating the error as harmless where nobody read the docket. Others have dismissed where the filing tipped off the defendant or was published. The safest assumption is that an unsealed filing is a serious defect rather than a formality, and that speed and candor with the court matter more than argument about prejudice.
Sources
- Cornell Legal Information Institute — 31 U.S.C. 3730, Civil Actions for False ClaimsThe sealed filing requirement, the disclosure statement, service on the government and the election.
- Cornell Legal Information Institute — 31 U.S.C. 3729, False ClaimsThe conduct that creates liability and the definitions of claim, obligation and knowingly.
- Cornell Legal Information Institute — 31 U.S.C. 3732, False Claims JurisdictionWhere the action may be brought and the rule on service of process in these cases.
- Cornell Legal Information Institute — 31 U.S.C. 3731, False Claims ProcedureThe limitations period, the standard of proof and the effect of a prior criminal judgment.
- Cornell Legal Information Institute — 31 U.S.C. 3733, Civil Investigative DemandsThe compulsory process the government uses to investigate while the case is sealed.
- United States Department of Justice — The False Claims ActThe government's own description of the statute and how qui tam matters are handled.
Liberty Law Library is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
More in Whistleblower Law
Employment Agreements That Try to Bar Whistleblowing
Rule 21F-17 provides that no person may take any action to impede an individual from communicating directly with Commission staff about a possible securities law violation, including by enforcing or threatening to enforce a confidentiality agreement. The commodities rules contain a parallel prohibition. Section 3730(h) separately entitles an employee, contractor or agent who suffers retaliation to reinstatement, double back pay with interest and special damages.
The Seal Period, Extensions and What May Not Be Said
Section 3730(b)(3) allows the government to move for extensions of the sixty-day seal for good cause, and those motions are made in camera. The seal binds the relator as well as the government: the existence of the action, its contents and the identity of the defendant are not to be disclosed. Breaking the seal does not automatically end the case, and courts weigh the harm to the government, the severity of the violation and evidence of bad faith.
Damages, Trebling and Per-Claim Penalties
Section 3729(a)(1) makes a violator liable for three times the damages the government sustains because of the act, plus a civil penalty for each false claim within a statutory range that is adjusted for inflation under the Federal Civil Penalties Inflation Adjustment Act. Single damages are usually the difference between what the government paid and the value of what it received. Credits for amounts already recovered are applied after the multiplier rather than before it.