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Civil False Claims Act: Supreme Court Holds that Government FOIA Responses Are “Public Disclosures” and that “Opportunistic” FCA Suits Based on Information Obtained via FOIA Cannot Proceed by Douglas W. Baruch
Fried, Frank, Harris, Shriver & Jacobson LLP - Washington Office
John T. Boese
Fried, Frank, Harris, Shriver & Jacobson LLP - Washington Office
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May 23, 2011
Previously published on May 16, 2011
Today, the Supreme Court held that a government agency's response to requests for information under FOIA is a “report” within the meaning of the False Claims Act¿s “public disclosure” bar. See Schindler Elevator Corp. v. United States ex rel. Kirk, No. 10-188 (May 16, 2011). Under the FCA's public disclosure provision, qui tam suits that are based on “allegations or transactions . . . in a congressional, administrative, or Government [Accountability] Office report” are foreclosed unless the qui tam relator is an “original source” of the underlying information. In Schindler Elevator, the Court reversed the Second Circuit¿s decision applying a narrower definition of “report” under this bar and remanded the case to see if the relator nevertheless qualifies as an “original source” of the information. Justice Thomas's majority opinion reinforced the Court's unanimous decision last term in Graham County II that adopted a broad interpretation of the enumerated sources of public disclosure under the statute. See Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 130 S. Ct. 1936 (2010). Justice Ginsburg wrote a dissenting opinion, joined by Justices Breyer and Sotomayor. (Justice Kagan did not participate). The majority specifically noted, but left undecided, several other “public disclosure” bar disputes.
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