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United States ex rel. Levine v. Avnet, Inc.

United States District Court, E.D. Kentucky, Northern Division, Covington

April 1, 2015

UNITED STATES OF AMERICA EX REL. EVAN LEVINE, Plaintiff/Relator,
v.
AVNET, INC., ET AL., Defendants.

MEMORANDUM OPINION AND ORDER

WILLIAM O. BERTELSMAN, District Judge.

This False Claims Act case is before the Court on the United States' Motion to Dismiss, Doc. 20.

I. Factual and Procedural History

Relators Evan Levine and Keith McClellan filed this action, under seal, on January 31, 2014, in the name of the United States pursuant to the qui tam provision of the False Claims Act, 31 U.S.C. § 3730(b)(1). Doc. 1, Complaint. On September 12, 2014, the Government notified the Court of its election to decline intervention. Doc. 17. The Court then ordered the complaint unsealed and served upon the defendants by the relators. Doc. 18. On November 21, 2014, the Government moved to dismiss the action, pursuant to 31 U.S.C. § 3730(c)(2)(A). Doc. 20. Shortly thereafter, McClellan voluntarily dismissed his claims, leaving Levine as the sole relator. Doc. 21. Nearly a month after the Government moved to dismiss, the Defendants were served with the complaint on December 18, 2014. See Docs. 29, 30, 21, Returns of Executed Summonses.

On December 22, 2014, Levine filed a response in opposition to the Government's motion to dismiss, Doc. 33, and moved for a hearing on that motion, Doc. 32. The Court heard oral argument on March 12, 2015, and subsequently took the motion to dismiss under submission. Having reviewed the filings and heard from the parties, the Court now issues the following Memorandum Opinion and Order.

II. Analysis

Levine asks the Court to deny the Government's motion to dismiss on two grounds. First, he argues that the Government may only move to dismiss under § 3730(c)(2)(A) if it has intervened in the action pursuant to § 3730(c)(1). Having declined to intervene in this case, he argues, the Government may not dismiss. Alternatively, should the Court find that intervention is not necessary, Levine argues that the Government must satisfy the "rational relation test" approved by the Ninth Circuit in United States ex rel. Sequoia Orange Co. v. Baird-Neece Packing Corp., 151 F.3d 1139 (9th Cir. 1998). Levine asserts that the Government has failed to make such a showing and thus, that the action should not be dismissed.

Neither the Supreme Court nor the Sixth Circuit has addressed either of these issues directly.[1] Thus, the Court examines each of these issues without the benefit of controlling authority.

A. The Government Need Not Intervene to Dismiss

Section 3730(c)(2)(A) states: "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." 31 U.S.C. § 3730(c)(2)(A).

Levine argues that this provision, when read in context, only applies if the Government has intervened in the action.[2] At the hearing, Levine's counsel also argued that dicta in a 2009 United States Supreme Court case, U.S. ex rel. Eisenstein v. City of New York, 556 U.S. 928 (2009), demonstrates that dismissal is not available to the Government without intervention.

In response, the Government argues that requiring intervention is both contrary to the plain language of the statute and a premise that has been summarily rejected by the courts of appeals that have considered it.

The Court agrees with the Government. In interpreting a statute, a court's "starting point is the language employed by Congress." Chapman v. Higbee Co., 319 F.3d 825, 829 (6th Cir. 2003). Moreover, where a "statute's language is plain, the sole function of the courts is to enforce it according to its terms." Id. (citing United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989)). Applying these maxims here, the Court notes, first, that § 3730(c)(2)(A) does not condition dismissal on intervention. Nor does it include language limiting its application to particular circumstances. Because Congress included such limiting language in other paragraphs within § 3730(c), the Court assumes that it would have used such language in paragraph (2), had it wished to so limit the provision. See 31 U.S.C. § 3730(c)(1) ("If the Government proceeds...."); id. § 3730(c)(3) ("If the Government elects not to proceed...."); id. § 3730(c)(4)("Whether or not the Government proceeds....").

That the meaning of § 3730(c)(2) would be clearer if Congress had prefaced the provision with "Whether or not the Government proceeds, " as it did in paragraph (c)(4), does not give the Court license to assume from the absence of this language congressional intent to limit application of paragraph (c)(2) to one circumstance or the other. Nor does the Court have license to speculate as to which language Congress would have chosen and to insert it on Congress's behalf. See Bates v. United States, 522 U.S. 23, 29 (1997) (stating that courts "ordinarily resist reading words or elements into a statute that do not appear on its face"); ...


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