Faced with the unusual prospect of hearing oral argument in a sealed case, the Georgia Court of Appeals has punted a whistleblower case back to a Gwinnett County judge.
The case has been sealed since it was filed in 2013 in Superior Court, and the lawyers involved aren’t saying much. But the appeals court made public its Jan. 23 order remanding the case, providing a sliver of light onto what is happening.
Atlanta lawyer Marlan Wilbanks of Wilbanks & Bridges, who frequently represents whistleblowers but isn’t involved in the Gwinnett case, said he had never seen a whistleblower case in which an appeal was filed prior to the case being unsealed. “The notion that a trial court … could have conducted a hearing and made determinations that could be appealed before the seal was lifted is highly unusual,” he said.
If it ever is unsealed, the case may provide some guidance on how a state whistleblower law is supposed to work.
The Court of Appeals’ online docket indicates the case was before Judge Ronnie Batchelor in Gwinnett Superior. The appeals court order says the case was brought against certain unnamed pharmaceutical companies under the Georgia False Medicaid Claims Act, which allows private parties to bring and recover some of the proceeds awarded in a lawsuit alleging fraudulent Medicaid claims to the state.
The appeals court order indicates the trial judge dismissed the whistleblowers’ complaint on a motion by the state, which is represented by the state Law Department.
The whistleblowers appealed, and the case was set for a Jan. 21 oral argument before judges John Ellington, Christopher McFadden and Stephen Dillard. The case, which had been sealed in Gwinnett since its inception pursuant to the state false claims act, remained under seal at the appeals court.
About a week before the argument, the whistleblowers filed a motion with the Court of Appeals asking the record to be unsealed. The state responded that the record on appeal should remain sealed.
After the Daily Report made inquiries with the appeals court about the case the day before the scheduled argument, the court’s clerk of court, Stephen Castlen, said that oral argument had been postponed. On Jan. 23, the court issued a two-page order, signed by Castlen, sending the case back to Gwinnett. The order is available on the court’s public online docket per the court’s usual practices.
The order said the court postponed oral argument “given the tension between the [Medicaid false claims] statute and the presumption in Georgia that ‘the public will have access to all court records.'” (The court was quoting a 1988 decision by the state Supreme Court, Atlanta Journal & Atlanta Constitution v. Long, 258 Ga. 410, that ruled for the newspapers’ request to unseal records.)
“Having considered the parties’ competing motions, we find that, in essence, the parties are litigating an issue with potentially important implications for the first time on appeal,” the appeals court said in the Gwinnett case.
The appeals court noted that at a hearing on the state’s motion to dismiss the whistleblowers’ complaint, the trial judge offered to hear argument as to whether the case should remain sealed, but the offer was declined.
The appeals court directed the trial court to determine whether the case is to remain under seal and, if so, how much of the case is to remain sealed.
After that, the appeals court said, the losing party may appeal the ruling on sealing, and the whistleblowers also may renew their appeal of the trial judge’s order dismissing their complaint.
What is unclear is why the case was dismissed and why the case was not unsealed at the time of the dismissal. The state Medicaid false claims statute, referenced in the appeals court order, says that a private citizen’s lawsuit under the statute must remain under seal for at least 60 days after it is filed and not be served on the defendant without a court order.
The stated rationale for the secrecy is to allow the state attorney general a chance to investigate the allegations and decide whether to intervene in the case. The statute says the AG may ask the court to extend the time that the complaint remains under seal.
The statute says the AG can dismiss the case over the objections of the whistleblower who brought it originally, although that person must be given notice and an opportunity to be heard.
It also says the AG can settle the case over the objections of the whistleblower, with court approval.
A spokeswoman for Attorney General Sam Olens declined to comment, noting
the case still was under seal.
Harris Penn Lowry partner Jeffrey Harris said only that “the case has been remanded back to Gwinnett, and once it gets back there we will move to unseal it.”