                             NOT FOR PUBLICATION                           FILED
                      UNITED STATES COURT OF APPEALS                       DEC 18 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA, ex rel.                 No. 14-56798
 Steven Mateski,
                                                   D.C. No. 2:07-cv-07035-BRO-
              Plaintiff - Appellee,                FMO

    and
                                                   MEMORANDUM *
 RAYTHEON COMPANY,

               Defendant - Appellee,

    v.

 STEVEN MATESKI,

              Plaintiff - Appellant.

                     Appeal from the United States District Court
                         for the Central District of California
                   Beverly Reid O'Connell, District Judge, Presiding

                       Argued and Submitted November 2, 2015
                                Pasadena, California

Before: SCHROEDER, PREGERSON, and FRIEDLAND, Circuit Judges.

         Relator Steven Mateski appeals the district court’s order granting the

Government’s motion to dismiss this case pursuant to 31 U.S.C. § 3730(c)(2)(A).

         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
We affirm.

      To obtain dismissal under 31 U.S.C. § 3730(c)(2)(A), the Government must

identify a valid governmental purpose and demonstrate a rational relationship

between dismissal and accomplishment of the purpose. U.S. ex rel., Sequoia

Orange Co. v. Baird-Neece Packing Corp., 151 F.3d 1139, 1145 (9th Cir. 1998).

The Government has accomplished both in this case. The Government identified

two governmental purposes—preventing the disclosure of classified information

and conserving the government’s resources—and Mateski has not challenged the

fact that these are valid purposes in the abstract. See id.; see also CIA v. Sims, 471

U.S. 159, 175 (1985) (“The Government has a compelling interest in protecting

both the secrecy of information important to our national security and the

appearance of confidentiality so essential to the effective operation of our foreign

intelligence service.”) (quoting Snepp v. United States, 444 U.S. 507, 509 n.3

(1980) (per curiam)). The Government has demonstrated a rational relationship

between avoiding the disclosure of classified information and dismissal.

Dismissal would prevent the inadvertent disclosure of classified information by the

parties during the course of litigation, including any potential need for Raytheon to



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present classified information in connection with its defense. 1 The classified

document submitted by the government, and relied upon by the district court,

confirms as much.

      Because the “government satisfies the two-step test, the burden [then]

switches to the relator to demonstrate that dismissal is fraudulent, arbitrary and

capricious, or illegal.” Sequoia Orange, 151 F.3d at 1145 (citation omitted).

Mateski has not met this burden. Mateski’s primary argument rests upon his

contention that the information the Government has deemed classified and has

redacted in this case is already in the public domain. The Government’s

classification decisions are entitled to deference. See Sims, 471 U.S. at 179 (“The

decisions of the [CIA] Director, who must of course be familiar with the whole

picture, as judges are not, are worthy of great deference given the magnitude of the

national security interests and potential risks at stake.”); see also Dep’t of Navy v.

Egan, 484 U.S. 518, 529 (1988) (“For reasons . . . too obvious to call for enlarged

discussion, the protection of classified information must be committed to the broad

1
  Because we hold that preventing the disclosure of classified information in this
case is a sufficient basis for affirming the district court’s order dismissing the case,
we need not consider whether the interest in conserving Government resources,
standing alone, would be a sufficient basis upon which to affirm the district court.

                                           3
discretion of the agency responsible, and this must include broad discretion to

determine who may have access to it.”) (alteration in original) (citation omitted).

       And the Government’s response to Mateski on this specific point has

force—reference to an agency in one context may not be classified, but reference

to that same agency in another context could be classified. See Sims, 471 U.S. at

178 (“[T]he very nature of the intelligence apparatus of any country is to try to find

out the concerns of others; bits and pieces of data may aid in piecing together bits

of other information even when the individual piece is not of obvious importance

in itself. Thus, [w]hat may seem trivial to the uninformed, may appear of great

moment to one who has a broad view of the scene and may put the questioned item

of information in its proper context.”) (second alteration in original) (citation

omitted). 2

       The district court did not err in denying Mateski a hearing in this case

because Mateski is only entitled to a hearing if he “presents a colorable claim that


2
  Mateski’s separate argument that dismissal is inappropriate because his claim is
meritorious, is foreclosed by case law. Sequoia Orange, 151 F.3d at 1147 (“We
conclude that 31 U.S.C. § 3730(c)(2)(A) permits the government to dismiss a
meritorious qui tam action over a relator’s objections.”).



                                           4
the settlement or dismissal is unreasonable in light of existing evidence, that the

Government has not fully investigated the allegations, or that the Government’s

decision was based on arbitrary or improper considerations.” Sequoia Orange,

151 F.3d at 1145 (quoting S. Rep. No. 99–345, 26 (1986), reprinted in 1986

U.S.C.C.A.N. 5266, 5291); see also U.S. ex rel. Kelly v. Boeing Co., 9 F.3d 743,

753 n.11 (9th Cir. 1993). For the reasons discussed above, Mateski did not make

that showing.

      Finally, Mateski does not prevail on his procedural due process claim

because he has not demonstrated a liberty or property interest sufficient to trigger

procedural due process rights. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.

40, 59 (1999) (“The first inquiry in every due process challenge is whether the

plaintiff has been deprived of a protected interest in property or liberty.”). “The

FCA makes clear that notwithstanding the relator’s statutory right to the

government’s share of the recovery, the underlying claim of fraud always belongs

to the government.” Stoner v. Santa Clara Cty. Office of Educ., 502 F.3d 1116,

1126 (9th Cir. 2007) (emphasis added). Even if Mateski could demonstrate a

sufficient property interest, due process was afforded him through notice of the

Government’s intent to seek dismissal and the opportunity to submit his arguments

                                          5
to the court by way of an opposition to the motion to dismiss and a motion for

reconsideration. See Walls v. Cent. Contra Costa Transit Auth., 653 F.3d 963,

968 (9th Cir. 2011) (per curiam). 3

      For the foregoing reasons, we affirm the district court’s grant of the

Government’s motion to dismiss.

      AFFIRMED.




3
  Mateski failed to preserve his equal protection and substantive due process
claims because he did not raise them in the district court, and we decline to reach
them. See Walsh v. Nev. Dep’t of Human Res., 471 F.3d 1033, 1037 (9th Cir.
2006).

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