The Seal Period, Extensions and What May Not Be Said
The statute gives the government sixty days. Almost no case ends there. Understanding how extensions are sought, and what the relator may and may not say while the file is closed, is most of what a relator lives with for years.
The rule in short
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.
The seal is the defining feature of a False Claims Act case and the part that clients understand least. The statute gives sixty days. The reality is that most cases sit sealed far longer, on a series of extensions the relator never sees granted and the defendant never learns were sought. This article covers how the extensions work, what the seal actually restrains, and what happens when it is broken.
The statutory period and how it grows
Section 3730(b)(2) fixes the initial seal at not less than sixty days, running from the date the complaint is filed in camera. Section 3730(b)(3) then allows the government to move, for good cause shown, for extensions of the time during which the complaint remains under seal. Those motions may be supported by affidavits or other submissions in camera, which is the statute's way of saying the government may explain its investigation to the judge without the relator or the defendant reading the explanation.
Good cause is not defined. In practice it is shown by describing investigative steps in progress: civil investigative demands outstanding, claims data being analyzed, witnesses not yet interviewed, a parallel criminal inquiry, or a related case that must be resolved first. Courts vary widely in how readily they grant repeat extensions, and some set status conference schedules to keep pressure on the government.
There is no statutory ceiling on the number of extensions. A complex health care or defense procurement matter with many defendants and years of claims data can remain sealed for a long time, and a matter with a parallel criminal investigation usually stays sealed until the criminal side resolves. A relator can object, and occasionally a judge refuses a further extension and forces an election, but the relator has no right to compel one. What the relator can do is press through counsel for a realistic schedule and offer to narrow the case so that a decision becomes easier to make.
What the seal restrains, and what it does not
The seal covers the action. The relator may not disclose that a complaint has been filed, may not identify the case, and may not describe its allegations as allegations in a pending suit. That restraint applies to colleagues, journalists, industry groups and, most importantly, the defendant.
The seal does not convert the underlying facts into secrets. A relator who complained internally about the conduct before filing may continue to describe that complaint. An employee who is asked in an unrelated deposition about what he observed cannot lie. Where the two collide, the answer is usually to tell the government and, if necessary, to ask the court for guidance rather than to improvise.
Long extensions are frustrating, and relators sometimes conclude that a case nobody seems to be working on cannot really be secret. It can. The obligation runs until the court lifts the seal, not until the relator loses patience, and the most common seal violations come from relators who talked to a reporter or a former colleague after months of silence from the government. The correct move is a request through counsel for a status conference.
Breaking the seal, and the consequences
Dismissal is not automatic. The Supreme Court held in Rigsby that a seal violation does not require dismissal of the relator's complaint, and that district courts have discretion in choosing a sanction. The Court pointed to the factors the lower courts had used: the actual harm to the government, the severity of the violation, and whether the relator acted in bad faith or repeatedly.
That framework means outcomes vary. A single disclosure to a family member that reached nobody is unlikely to end a case. A relator who fed the complaint to a trade publication while the government was still issuing civil investigative demands has damaged the very interest the seal protects, and dismissal is a live possibility. Lesser sanctions are available too, including partial dismissal, fee shifting and a reduced share.
Partial and staged unsealing
The seal is not all or nothing. Courts routinely lift it partially so that specific things can happen while the rest of the file stays closed. The government may ask to disclose the complaint to the defendant in order to open settlement discussions. It may ask to share the allegations with a state agency, a suspension and debarment official, or a foreign authority. A relator may seek a limited lift to pursue a retaliation claim that cannot wait.
| Step | Who moves | Heard in camera | What becomes public |
|---|---|---|---|
| Initial sixty-day seal | Automatic under the statute | Not applicable | Nothing |
| Extension for good cause | The government | Yes, with in camera support | Nothing |
| Partial lift for settlement talks | The government | Usually | The complaint, to the defendant only |
| Election filed and seal lifted | The government | No | Complaint, docket and election notice |
| Extension filings unsealed | Usually the defendant | Contested | Rarely more than the fact of the motions |
Practical consequences of a long seal
Evidence decays. Witnesses leave, systems are replaced, and documents fall out of retention schedules while the case is invisible. A relator who preserved records lawfully before filing is in a far better position than one who assumed the government would collect everything, and the eventual admissibility of what was preserved will turn on the ordinary rules covered in authenticating documents and electronic evidence.
The seal also shapes the relator's working life. Employment continues, or does not, without any explanation the relator is free to give. Where the employer has imposed contract terms that appear to restrict reporting, the analysis in agreements that try to bar whistleblowing applies, and those terms do not override the statute. If a competing case surfaces during the seal, the first-to-file bar decides which one survives, and the seal is what kept each filer from knowing about the other.
When the seal finally lifts, the case changes character entirely. The government files its election, the defendant is served, and the ordinary rules of litigation resume. What the government chose, and what each choice means for control of the case, is the subject of the government's election between intervention and declination.
Points to carry away
- The statutory seal is sixty days, and extensions are granted on a showing of good cause.
- Extension motions are made in camera and the supporting material is not shared with the defendant.
- The seal restrains the relator from disclosing the existence and contents of the action.
- A seal violation is not an automatic dismissal; courts weigh harm, severity and bad faith.
- The seal covers the case, not the underlying facts a relator may have to disclose elsewhere.
- Partial lifting is common so that a settlement or a related proceeding can go forward.
Questions readers ask
May a relator tell an employer why he resigned while the case is sealed?
Not by describing the sealed action. A relator may say he is leaving, may describe the conduct he objected to in general terms if he had already raised it internally, and may cooperate with a government interview. What he may not do is reveal that a qui tam complaint has been filed, name the case or describe its allegations. The distinction is between the underlying facts, which the relator was free to discuss before filing, and the existence of the action, which the seal covers.
Can the defendant see the government's extension motions later?
Usually not in full. The motions and supporting declarations are filed in camera and describe the investigation, so they contain material the government treats as law enforcement work product. Once the seal lifts, courts commonly unseal the complaint and the docket entries but keep the substance of the extension filings sealed. Defendants sometimes move to unseal them to build an argument about delay or prejudice, and results vary by district. There is no general right to review them.
Does the seal stop the limitations clock?
No. The seal is a filing condition, not a tolling provision. The relevant timing rules are in section 3731, which sets an outside period running from the violation and an alternative period running from when the responsible government official knew or should have known the material facts, subject to an absolute outer limit. Because a case can sit under seal for years, relators and the government track both measures. Claims that were already stale at filing do not revive because the case was hidden.
Sources
- Cornell Legal Information Institute — 31 U.S.C. 3730, Civil Actions for False ClaimsThe sixty-day seal, the good cause extension provision and the government's election.
- Cornell Legal Information Institute — 31 U.S.C. 3731, False Claims ProcedureThe limitations periods that continue to run while a case is under seal.
- Cornell Legal Information Institute — 31 U.S.C. 3733, Civil Investigative DemandsThe compulsory process that gives the government its reason for asking for more time.
- Cornell Legal Information Institute — 31 U.S.C. 3729, False ClaimsThe substantive violations the government is investigating during the sealed period.
- United States Department of Justice — The False Claims ActThe agency description of how qui tam matters are reviewed before an election is made.
- Cornell Legal Information Institute — 31 U.S.C. 3732, False Claims JurisdictionThe court in which the sealed action sits and which therefore controls the seal.
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
Filing a Qui Tam Complaint Under Seal
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.
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.
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.