United States Ex Rel. Holmes v. Consumer Insurance Group

Turning to Ms. Distefano’s claim The district court properly determined concerning payment, demand for the affi that Ms. Distefano’s claim repayment Liu, davit of analyst, Jessica loan states unsupported by the evidence and holder of “[t]he the notes made de could not summary judgment. survive payment according mand for to the terms judgment of the United States Dis- 10, of the notes.” R. doc. Liu Declaration trict Court for the District of Kansas is Although at 2. no date given for the AFFIRMED. Ms. Distefano’s motion to demand, alleged a reasonable inference proceed in pauperis is GRANTED. forma may be drawn that it prior was made pending All motions are DENIED. The the date guaranty agency paid mandate shall issue forthwith. holder, 8, 1984, sometime March between 2, and October 1991. Ms. Liu’s affidavit

further guaranty recites that the agency

attempted to collect the debt from Ms.

Distefano before the assignment was

made. Such attempts collection are re statute,

quired by prior to reimbursement

by the Secretary guaranty agency’s UNITED STATES of America ex rel 1080(a). loss. See 20 U.S.C. Di Ms. Mary HOLMES, L. Plaintiff- presented stefano has testimony, by Appellant, affidavit or in other form suitable for con summary sideration on judgment, that con tradicts the claim of the United States that America, United States of payment

demand for many was made Movant-Appellee, years prior to the institution of this suit. special She has failed to show a hardship,

resulting in a denial of process, due in her GROUP; CONSUMER INSURANCE case.2 Hightower, John Defendants. Alleged repayment 2. No. 01-1077. Ms. argues Distefano that her Appeals, Court of paid 1982,

father off her loans in using a Tenth Circuit. drugstore check from the he owned at that Unfortunately, present time. she did not Feb. 2002. argument in district through signed through affidavit or other evidence

that would be admissible to rebut the Unit showing

ed States’ on summary judgment

that she owed the debt. Fed.R.Civ.P.

56(e). In general, litigants proceeding pro procedural

se are held to the same stan

dards as those with counsel. Green v.

Dorrell, (10th Cir.1992). 969 F.2d pleadings might Ms. Distefano’s brought right also be an action to enforce a See, read to state a defense of e.g., laches. Such a or a interest. United States v. fail, however, Co., defense would because laches Telluride 146 F.3d 1246 n. 7 Cir.1998). against not be asserted the United States P.C., Joyce, &

Craig Joyce, D. Walters Denver, CO, appearing Appellant. for Scarborough, United States W. Charles Division, Attorney, Appellate Staff Civil (Stuart Schiffer, Justice, E. Department General, Attorney Acting Assistant Justice, Department of Office States DC, Washington, Litigation, Immigration Attor- Spriggs, United States Richard T. Attorney, of the United States ney, Office Letter, Denver, CO, Unit- Douglas N. Attorney, Appellate Staff Civil ed States Justice, Division, Washing- Department of DC, brief), ton, appearing him on the Appellee. for * TACHA, Judge, GARTH Before Chief BRISCOE, Judges. Circuit TACHA, Judge. Chief Circuit ac- Mary L. Holmes filed this Appellant Group Insurance against tion Consumer provision of the False under the Act, 3730. The United Claims U.S.C. moved to dismiss Holmes from Rule of Procedure suit under Federal Civil 12(b)(1). granted The district against judgment motion and entered pursuant to Federal Rule of Civil Holmes 54(b). appealed. Holmes We Procedure jurisdiction pursuant exercise § 1291 and AFFIRM. Background

I. at the Mary postmaster L. Holmes is Post Office Poncha United States * Circuit, Garth, sitting by designation. the Third I. Senior Cir- The Honorable Leonard Appeals Judge, United States Court of cuit interviews, ployees. In October of those Springs, Colorado. suspicions, responded inquiry by although em- revealed its to an later Group became clear

ployees of Consumer Insurance interviewees (“CIG”) already were aware fraud. In Au- mailing. about a bulk The CIG 1998, gust the Postal Service that was commended employees informed Holmes CIG Holmes’s a apprecia- efforts with letter of postal receiving per pound the bulk rate at tion and a award. Howard, $500 office in Colorado. After post the confirming post- with the this information April On Holmes filed suit Howard, granted in Holmes master CIG’s against CIG under the False Claims Act per pound Upon for the rate. request (“FCA”). person The FCA authorizes a investigation, Holmes de- further qui action, action, tarn bring a a civil called qualify termined CIG did not the against govern- those who defraud the rate, its pieces mailings because the in did 3730(b). A tarn § ment. 31 U.S.C. satisfy requirements. minimum weight relator, brings or the plaintiff, action in the therefore informed CIG that Holmes name of government, the advantage per pound not take of the could Id. elect intervene. postmaster in rate. She also informed 3730(b)(l)-(2). § The relator is entitled that CIG not entitled to this Howard was portion of proceeds recovered in the rate. 3730(d). Id. § action or settlement. later, years August

Almost two Following initiation of Holmes’s post Holmes was at the Howard CIG, against case moved provide postmaster training. office to At subject dismiss her for lack matter time, postmas- current she asked the jurisdiction. The asserted receiving per ter whether CIG was allegations its disclosure of rate, pound bulk learned that it and she to three former employ- current and CIG and, superior Holmes was. informed her investigation ees during its constituted later, Inspector the Office of the General “public disclosure.”1 The fur- (an postal systems coordinator audi- argued ther that Holmes was not an “origi- tor) defrauding that CIG was the Postal nal source” and therefore could not avoid by providing Service false information in public disclosure bar.2 The district to obtain a postal motion, order lower rate. The granted court but it did so Inspection Postal Service initiated an in- public without employing disclosure vestigation Instead, and later turned the case over analysis. district court con- Attorney. government’s to the U.S. government’s ongoing cluded that the in- investigation of vestigation allegations pre- CIG included interviews of the fraud one current and former em- cluded suit. The district court two CIG Holmes’s 3730(e)(4)(A). provides: § 1. The statute jurisdiction court shall No over an bar, purposes public 2. For of the disclosure action under this section based " ‘original source’ an individual who allegations means public disclosure or transac- civil, criminal, independent knowledge has direct tions in a or administrative of the administrative, hearing, congressional, allegations information on which the are Accounting report, or Government Office voluntarily provided based and has the infor- audit, hearing, investigation, or from the filing mation to the Government before an media, brought by news unless the action action which under this section is based on Attorney person bringing General or 3730(e)(4)(B). the information.” 31 U.S.C. original the action is an source of the infor- mation. result, rely on the cannot As a we suit. FCA. Holmes from the dismissed therefore and must bar here disclosure appealed. Holmes question address squarely II. Discussion suits file eligibility to employees’ examination on our under the FCA. Based the district argues that and federal purposes statute and of the suit, her from dismissed improperly obligations to avoid conflicts employees’ does not investigation ongoing an because interest, that Holmes we hold action, and because bar who, person A plaintiff. proper allega- had been em- as a pursuant to duties hold at issue. We or transactions tions part ongoing ployee, is reasoning court erred the district allegations may not investigation investiga- ongoing government’s that based on those tam suit pursue allegations precludes the fraud tion of allegations. suit, its dismissal of but that Holmes’s nevertheless from the case was have Circuits The First and Eleventh correct. the First Cir split question, on this with and the Elev finding jurisdiction cuit dealing prior In cases our opposite reaching the result. enth Circuit former federal by current or tam v. NEC rel. Williams United ex pre bar disclosure employees, (11th 1493, 7,n. 1502 F.2d 1496 Corp., 931 result, we have the action. As cluded Cir.1991); v. States ex rel. LeBlanc United to which defined the extent previously not (1st Co., 17, F.2d 20 Cir. Raytheon 913 may not 1990). from approach differs that Our pub qualify plaintiffs as when circuits, and we discuss each of these apply. not United lic disclosure bar does below.3 significant differences Co., MK-Ferguson v. States ex rel. Fine (10th Cir.1996); 1538, 1 99 F.3d 1541 n. A. Review Standard of rel. Fine v. Advanced States ex treated the motion The district court 1000, Sciences, Inc., 1 1003 n. 99 F.3d jurisdic- subject matter for lack of dismiss (10th Cir.1996). “public We held have 12(b)(1), tion, as a Fed.R.Civ.P. motion only allegations occurs when 12(b)(6). ap- This under dismiss Rule are affirmative or fraudulent transactions jurisdictional issue propriate when the in previously not ly provided to others from the statute creates arises States ex. rel. formed thereof.” United Ramseyer, action. 90 F.3d cause of Corp., 90 Ramseyer Century Healthcare court relied on affida- (10th Cir.1996). 1518. Because the 1514, It is un 1521 F.3d however, evidence, mo- vits and other and former em disputed that the current as a should have treated motion tion been interviewed ployees whom the pursuant to summary for Feder- prior judgment knowl investigation in its of CIG had 56(c), we al Rule of government’s dis Civil Procedure edge of the fraud. The the motion on review to them was there therefore consider of information closure summary Id. meaning judgment. of the one for “public” within the fore did, analysis new remand for noted this issue but 3. The Sixth Circuit has specifically v. A.D. evi- resolved it. Burns disclosure bar based has not under the Co., relator, Cir. 186 F.3d 722 & n. 5 Roe who was a dence that the 1999) government’s (declining to address pursu- employee, did receive information government employees pre argument are requests until after he suit. ant to FOIA filed suits, noting filing qui but cluded Id. at 726. position). no court has taken

1249 action, summary person initiating action novo an order of review de We “may an amount the court receive decides applying the same standard as judgment, disclosing is reasonable evidence or apply must under Rule the district court information the did Government not have Am., 56(c). v. Prudential Ins. Co. of Wolf brought.” when the action was Id. (10th Cir.1995). Accord- F.3d 3730(c)(1) (superceded). quiA tam re- whether, viewing consider ingly, we words, lator, only in other could recover a light in the most favorable to the facts portion proceeds due nonmoving party, there is issue provided if had the relator new infor- that, material fact if resolved Holmes’s mation. favor, prevail. her to Id. would allow 1986, Congress amended the an issue of also review de novo We provisions. The current version of the subject jurisdiction. matter United States require statute does not that the relator Indus., ex rel. Precision Co. v. Koch provide information that (10th Cir.1992). Federal Instead, already possess. does not Con- jurisdiction, courts limited and we gress provided juris- that there is no presume juris- that there is no therefore diction over a relator’s suit that is “based party invoking it makes diction unless the public allegations the disclosure of or showing that it exists. Id. at adequate an congressional, transactions ... in a admin- party seeking 551. The invoke istrative, Accounting or Government Office jurisdiction alleging of bears the burden audit, report, hearing investigation or ... preponderance proving a person bringing unless the the action is an necessary support evidence the facts original source of the information.” 31 jurisdiction. Id. 3730(e)(4)(A). § jurisdictional This U.S.C inquiry requires ques- us to answer four Ongoing Investigation B. The (1) allegations tions: the transac- Are or court The district reasoned tions of contained one the listed investigation government’s ongoing dem (2) allegations sources? Have the capa onstrated that the (3) “publicly transactions been disclosed”? pursuing allegations ble of without the upon” public Is the suit “based disclo- of the relator. The court there assistance (4) If sure? the answer to the first three allowing qui fore a tam suit held affirmative, questions is can the relator purposes not serve the of the FCA would “original an and there- qualify source” and dismissed Holmes from the suit. Our escape jurisdictional bar? MK- fore FCA, its 1986 amend examination Co., negative F.3d at 1544. A Ferguson 99 ments, and Tenth case law leads us Circuit any questions answer to of the first three ongoing government that an to conclude may pro means that the tam action investigation per not a se a is bar to only if question ceed. The last is asked tam suit. questions the first three are all answered affirmatively. a required

Prior to the FCA court to dismiss an action that was based on investigation that a government The fact government possessed information the com- allegations contains the in Holmes’s brought, when the action was unless the ques- plaint means that the answer (1) proceed not, elected to with the step “yes.” tion in This does 3730(b)(4) (superced- action. inquiry. To hold that an end the ed). that, provided per if se ongoing investigation The Act further alone is jurisdictional ignore the four- proceed elected to with an bar would

2250 MK-Ferguson therefore that the district created in We conclude step approach concluding ongoing erred in that an eviscerate and would government investigation bars remaining steps, which are three bar’s proceed normally action. under statutory language. We firmly grounded MK-Ferguson remaining to answer Moreover, positive requiring some “[n]ot and, because there has questions three pre reinstate the act of disclosure would disclosure, we would find been ‘gov on mere jurisdictional bar based 1986 below, For jurisdiction. reasons how- per knowledge’ ernment ever, specific we hold circum- ex rel. taining to fraud.” United States stances of case—where Co., MK-Ferguson F.Supp. Fine v. 861 employee pursues during tam action (D.N.M.1994), aff'd, 99 rise (10th Cir.1996), ongoing investigation gives approval quoted — inquiry. different Ramseyer, 90 F.3d at 1520. unpersuasive the also find district We Specific C. Examination Circum- prior in a court’s reliance our reference stances “Congress’ goals rejecting case to ‘twin mayWe affirm the district court’s capable suits which adequately ground sup decision “on itself, pursuing promoting while those D-2, ported by the Z.J. record.” Gifts equipped which the ” Aurora, City L.L.C. v. 136 F.3d own.’ ex rel. bring on its United States (10th Cir.1998). therefore We consider 568, 571 Corp., Fine v. Sandia 70 F.3d specific circumstances in this whether (10th Cir.1995) (quoting United States ex jurisdiction preclude case over Holmes’s Quinn, Springfield Ry. rel. Terminal claim. (D.C.Cir.1994)). 645, 651 In F.3d case, goals matter, these FCA informed our As an initial we note that not, interpretation terms, “the by FCA does either autho- allegations or preclude transactions” and when a by government rize or all suits qui upon” tam action is that disclo- employees.4 specific “based One of the exclusions Id. at 571-72. sure. decline extend prevents “by present We suits a former or rationale, Sandia’s which we used as an against member of the ... armed forces a understanding specific statutory aid to arising member armed forces out of phrases, to reach a result that contradicts person’s such in the armed service forces.” 3730(e)(1).5 plain meaning § disclosure Another exclusion purposes qui bar and the it evidences. a a precludes “against tam suit Mem- Nor, out, suit, points as the dissent does the "whistleblower” and it is insider whistle- history legislative likely make clear whether Con- blowers who fear most retaliation when gress permit employees they intended federal may act as informers. It well be that qui act as tam relators. Congress permit qui intended by government employees who discover activity by complicity fraudulent or with the provision only 5. This indication we just superiors, of their co-workers specifically have found that or Con- contem- provide gress aimed to incentives for plated qui by employees. tam suits insiders federal by Interestingly, though, in the sector to reveal fraud their provision this addresses employers. certainly We do not intend to an "insider’s” action—an action an indi- imply every plaintiff every even employ- vidual who learned in the course —or (or, here, military plaintiff specifically employee — n ment more ser- who is a vice) colleague’s complicity proceed be an of a fraud or must insider in order to with a private company’s qui or action individual’s fraud. An the FCA.The distinction under represents typical insider’s action the most insider between and non-insider

1251 Congress, ber of judicia a member of the is to congressional determine intent.” ry, or a senior executive branch official if States, Chickasaw Nation v. United the action is F.3d, (10th based evidence informa Cir.2000) (citing Grif tion known to the Government when the Contractors, Inc., Oceanic 458 U.S. fin 3730(e)(2)(A). brought.” action was Id. 564, 570, 102 S.Ct. 73 L.Ed.2d 973 effect, this might preclude section gov (1982)). To determine the plain statute’s employees ernment filing from qui tam meaning, we “must look to particular against suits individuals in the named cate statutory issue, language at as well as the gories, argument that, based on the if a language and design of the statute as a government employee information, has the whole.” Id. (quoting K Mart Corp. v. Car also has it. govern If tier, Inc., 281, 291, U.S. 108 S.Ct. employees ment always were precluded (1988)). 100 L.Ed.2d 313 Based on our pursuing qui tam suits under the examination of the FCA purposes, and its FCA, specific these exclusions would be along with our consideration of federal em superfluous. We therefore avoid such an ployees’ obligations to avoid conflicts interpretation. N.M. Cattle Growers interest, we conclude that a federal em Serv., Ass’n v. U.S. Fish & Wildlife ployee participates who in a 1277, 1285 Cir.2001). investigation pursuant job to her duties is not, as least while the investigation is on Although we decline apply going, “person” entitled to bring a civil general jurisdictional bar to federal em 3730(b). action under section ployees, conclusion does not necessari ly mean that always are that, acknowledge We in reaching this proper tam plaintiffs unless section conclusion, position we take that conflicts 3730(e) jurisdiction. bars We therefore directly with the Eleventh Circuit’s view. consider whether a federal employee who That court has held that a former part of an ongoing government investi employee pursu- barred from gation may proceed with a qui tam suit ing tam action based upon informa- allegations. based on those We conclude acquired tion he during the course of his a federal proceed government employment, regardless of awith tam suit in these circumstances. whether is engaged in an provides, active investigation,

The FCA in a of the alleged section headed fraud. by private “Actions United persons,” States rel. per- ex Williams v. “[a] NEC may (11th son bring Corp., a civil action for a violation n. Cir.1991). of section person 3729 for the approach and for Our is quite different United States from Government.” that of 31 U.S.C. the Williams court. The 3730(b)(1). § Act does not Eleventh make ex- Circuit focused analysis plicit “persons” the class of eligible bar, 1499-1500, file id. at (b). civil suits under subsection In extra-statutory con- and arguments against jur- statute, struing a “our purpose isdiction, overriding contrast, id. at 1501-04. In we however, plaintiffs, significant is a reiterate, one with circumstances 'case. We respect Congress may to what have contem- though, that we do not have occasion here to plated Nothing and intended. in the statute every define government situation when em- legislative history or the suggests to us that may may ployee pursue qui tam Congress permit intended all non-insider action. Unless and until decides to by government employees. For the statute, course, clarify we find opinion, reasons we outline in this we con- ourselves faced with other cases that demand § clude 3730 does not authorize further of these limits. definition Holmes's particular non-insider action in the the individual government and juris- tween the grant initial FCA’s start with permits all the FCA qui plaintiff. that not When conclude and diction group suit, brings it person filing fall within the ment to file a eligible otherwise and for the “persons” person the action “for of the Eleventh Cir- Much action. States Government.” fail- addresses the FCA’s reasoning cuit’s 3730(b)(1). “qui tam” derives The term employees’ government all preclude ure pro domi- phrase, “qui tam from the Latin however, view, It is our tam actions. ipso parte in hac quam pro se rege explicitly au- Act does not that while the “who as well which means sequitur,” actions, may all such preclude thorize or mat- in this king as for himself sues others. In deter- and disallow allow some Dictionary 1262 Black’s Law ter.” employees are government mining which ed.1999). between relator This distinction eligible category excluded present, employee’s consider plaintiffs, we informa- employee obtains when a federal ongoing an there is and whether duties pursuit of his or tion about fraud investigation. We conclude em- duties as a particular her proceed tam action to allowing qui effect, person obtains the ployee. employ- the relator is where At least government. information as the investiga- part ongoing of an acting as ee respect ongoing to an distinc- destroy the statute’s tion6 would employee who is investigation, a federal relator, government and tion between the investigation pursuant involved FCA, purpose of the contravene the government. is the employment duties conflicts of impermissible create and would Therefore, employee we hold that such employees pursuing interest for federal 3730(b) cannot file an action under section such suits. person “for the and for the United Government.”7 Separation 1. The Between the Govern- and a Potential Relator employee in this case. Holmes is such an employ- Holmes first encountered the CIG concept of a first observe that the We capacity postmaster at the be- ees in her tam action assumes a distinction proposition beyond scope opinion 20. The Ninth Circuit called the It is of this metaphysical a feder- a contention for the inter- precise delineate the bounds of when "too investiga- part plain congressional employee pretation al of a of a statement.” because, case, I, Similarly, relator was Hagood tion in this we 929 F.2d at 1419. specif- clearly reporting pursuant to her reject that an the notion government duties. ic position can assume dual roles Holmes's plaintiff act as a for herself Interestingly, echoes 7. our conclusion here government. who is As a First, Ninth, rejec- Circuits’ and Eleventh ongoing investigation, part of an Holmes is argument in the con- tion of a "dual status" role as the with confined to her public disclosure bar. In cases text of the investigation. respect to that courts, those asserted before acknowledges, analysis our As the dissent government employee gov- that a who uses 3730(b)'s rely upon not the section head- does purposes information for ernment agree ing, by private persons.” We "Actions thereby "publicly this information disclosed" Williams, statutory that such titles and with the dissent private capacity. to himself in his 1499-1500; marginal headings generally interpretive States ex rel. 931 F.2d at that, simply were Agency, value. We note if one to Hagood County Water v. Sonoma (9th Cir.1991) ("Hagood rely upon heading, necessari- this it would not 1419-20 LeBlanc, /”); all-or-nothing ly compel conclusion that 20. In the First 913 F.2d at Rather, words, argument "requires the dissent would draw from it. this Circuit's plausible interpret government employees quite be to this assumption that lead LeBlanc, by government phrase permit actions schizophrenic F.2d at to some lives.” Springs, “no business post curiosity office in Poncha Colorado. other than to in- quire to getting To determine whether CIG was entitled about” rates CIG was at office, sought, post the bulk rate it she consulted the Howard that and she had Howard, postmaster authority was where CIG over the Howard office and receiving Though that supposedly assigned rate. had not been to check into bulk that postmaster mailings. specific the Howard confirmed Even if duty she had no rate, rates, got ultimately CIG the bulk Holmes to ask inquire about CIG’s rate, denied that based on her deter- the inquiry CIG she made and obtained the mailing mination that did meet capacity relevant information in her as undisputed weight requirements. postmaster. It

that, during progression at all times this of Moreover, duty Holmes had post- as a events, capacity Holmes acted in her as report master to information about this postmaster. type Regulation of fraud. 224.3 in the later, years

Several Holmes to the Support went Postal Service’s Administrative post provide training requires postmaster report Howard office Manual acting postmaster. undisputed It is postage, memorandum pay “[f]ailure to vi- franking Holmes undertook this task within olation of privilege, misuse of mail, scope of employment postmaster. penalty her as a depositing advertising ma- payment Holmes states in her affidavit that she terial in mailboxes without provided training approval postage, this with the and similar schemes to evade added). manager, complaint payment her and her postage.” states (Emphasis “assigned that she to the temporarily dispute regula- was Holmes does not Howard claim post applies office.” She makes no tion to her. Nothing regula- training scope, itself was its pro- outside tion limits and Holmes has scope employment. of her suggest scope affidavit vided no evidence to that its Boyle, Marsha labor specialist relations is limited to fraud conducted discovered fact, representative who post serves as a and advisor at her home office.8 she Service, that, to the applicability U.S. Postal states she concedes when states regulations, “post- under Postal Service her brief she “could have met her designated job masters may report description responsibility certified sus- postmaster pected by simply sending trainers.” a memo- Inspection randum to the Postal Service.” that, Holmes states in her affidavit dur- ing acting postmaster argues lunch with when that she did more than provide training, she was in required Howard she what We are not was her. affidavit, asked about bulk persuaded. According CIG’s rate and learned to her that it getting reported the rate she fraud to had denied Holmes first her years acting it two superior trip earlier. She and the after her to Howard in Au- postmaster gust immediately discussed the matter to- rather than sub- gether mailing mitting examined CIG’s latest to her local written memorandum postal statement. inspector charge, postal Holmes claims that she had as the Moreover, (for example, Boyle's specifically on in- based affidavit acquired independently formation postmaster acting states that who as a through government employ- the individual's postmaster trainer “is not of his re- relieved ment, against or insider actions other they sponsibilities postmaster, pertain as as á (for employees), precluding while others reporting fraud.'' example, non-insider actions based on infor- mation obtained in course of employment). investigated them. 1997, Inspection Service In December require. regulations Thus, Holmes’s find that we cannot an anything about heard yet not had she her to as to entitle her duties so exceeded inspectors. postal by the investigation pursue action. a Inspec- to the a letter sent therefore She early In March office. tor General’s a feder duties as as Holmes’s Inasmuch office notified Inspector General’s important element are an employee al it had “reviewed by letter reasoning some our bears analysis, our concerns [her] “referred information” reasoning the First Circuit’s similarity to Inspector Gen- Office of appropriate Ray v. ex rel. LeBlanc warrant- Cir.1990). action deemed (1st Director for Co., eral 17, 20 theon 913 F.2d “little confidence Holmes had ed.” however, approach that our emphasize, We done,” there- and she anything would the First Cir from significantly differs systems coordinator postal a a LeBlanc fore told held that cuit’s. The after, Soon allegations. duty, a as who has about Inspector Gen- from the to uncover agent employment, an “a condition of his tam rela about its a qualify contacted Holmes not as eral’s office fraud” does events, as him from tor, duty prevents course of investigation. This because Id. that, Holmes, “original source.” by qualifying demonstrates described contrast, unnecessary to informa- find it certainly reported the we she while question where original out- source tion, procedure follow the reach she did not Moreover, In public disclosure.9 has been no regulations. postal lined in the stead, around the that, analysis revolves it our when became undisputed it that “[a] statement meaning Congress’s allegations, the Postal the fraud aware of only plausible interpreta We see one other conducting original inqui- source 9. Before opinion. First Cir LeBlanc The con- tion of the ry, appears to have the LeBlanc court why public only disclo cuit's indication of public no disclo- that there had been cluded might applied to LeBlanc is its bar Circuit did sure at 20. The First sure. 913 F.2d conclusion, gov prevent though that the bar "does it statement explicitly state this bringing qui reject court's basis ernment explicitly the district did during acquired actions based on finding public disclosure. The district relator, employment as the having of their but not the course was that the court's rationale investigation government hearing, result of acquired information as a through Le the news media.” or audit employee, it to himself as disclosed added). Co., Blanc, (emphasis Raytheon 913 F.2d at 20 person. U.S. ex rel. LeBlanc Thus, (D.Mass.1990). that there if the court in fact concluded F.Supp. disclosure, must have public been a rejected this "dual had specifically First Circuit LeBlanc, quality because the relator —a former at 20. been argument. 913 F.2d status” De filing specialist for the Government assurance held that the It further Service—ac fense Contract Administrative public Id. The action itself is not a disclosure. not, however, from one of these quired his information specify what circuit court did original When it considered supported finding public disclosure sources. facts Circuit, too, gov that a exception, the court held source case. The Eleventh in LeBlanc’s spe job entailed a employee whose holding that there had ernment LeBlanc as has read Williams, qualify duty could not to uncover fraud cific disclosure. been original "It was LeBlanc's re Although as an source: the Tenth Circuit F.2d at 1500 n. 13. employment, his sponsibility, a condition of original question address the source does not disclosure, belong of his effort uncover fraud. The fruits see there has been unless Thus, government. Le- employer sug- to his Ramseyer, at 1522 n. LeBlanc 90 F.3d —the 'independent was not someone with a differ- Blanc gests First Circuit has taken that the view, required knowledge of the information' as respect em- to federal ent at least Therefore, even if LeBlanc Id. the statute.” ployees.

1255 1551). “(1) may bring a civil action ... for the The statute as person amended aims encourage private and for the States Govern- to person United citizens with first- (2) ment,” 3730(b)(1), fraud; knowledge expose an hand to issue by opportunists to avoid civil logically precedes public disclo- at- tempting capitalize public to inquiries. A informa- original sure and source fed- tion seriously contributing without to the employee precluded eral who is not for the of disclosure the fraud.” Id. at 1519-20 opinion reasons we outline in this would Precision, 552). (quoting 971 F.2d at The bar, subject public still to the “public disclosure” bar manifests and occurred, public and if disclosure had that, purposes by requiring serves these if jurisdiction employ- be no unless the would information exists in one of the enumerat- qualify original could as an ee source. sources,

ed and if that information has Purposes 2. The the FCA and the 1986 disclosed, publicly only been original an of Amendments source of the information sue. Con- sideration of the circumstances at issue purposes of the FCA’s tarn here reveals several reasons that exercis- provisions and its 1986 amendments fur- jurisdiction ing would not serve the FCA’s jurisdic- support ther our conclusion that purposes encouraging exposure of fraud lacking. “Congress tion is instituted the or preventing parasitic suits. provisions tarn of the FCA to encour- age private expose citizens to fraud that First, where a employee has easily itself cannot uncov- fraud, a duty report as Holmes does as er.” States ex rel. Fine v. postmaster, Sandia underlying the information (10th Cir.1995). 568, Corp., 70 F.3d employee’s suit does not constitute Moreover, expan- the 1986 amendments’ information that the would not jurisdiction sion of over tarn actions duty report otherwise uncover. The Congress’s gov- reflects “concern itself assures that her information is the pursuing Thus, not government’s ernment was known instanc- information. this is a Ramseyer, es of fraud.” allegations 1520 case of fraud that the Co., (quoting MK-Ferguson F.Supp. capable pursuing.10 at ment is Chevron, U.S.A., requires finding disclosure as a United States ex rel. v. Fine Inc., (9th Cir.1995) (en prerequisite original inquiry, to the source 72 F.3d banc) reasoning arguably produces (holding Inspec- First Circuit’s that an auditor for the source, original same result in Holmes's case as we have tor General was not an be- reached here. job investigate report cause his was to Circuit, too, fraud). The Ninth has considered the The Eleventh Circuit has declined to issue, job responsibilities effect of on a federal em analyze rejected but the assertion ability ployee’s qualify original as an origi- that a federal can never be an source, only inquiry Williams, but it has undertaken this source. 931 F.2d at 1501 n. nal determining after that there has been a The Tenth Circuit has not had occasion to disclosure. See United States ex Biddle v. rel. question, examine this and we find it unneces- Trustees, Bd. 161 F.3d 542-43 sary to do so here. 1998) (holding government employ Cir. that a duty emphasize specific ee with a 10. We that neither this nor disclose does “voluntarily” provide subsequent points in this subsection has source); case, original Hagood particularly thus cannot be an dictated result in this Indeed, County Agency, standing Sonoma Water 81 F.3d alone. if we were to (9th Cir.1996) II") ("Hagood accept proposition government's 1476 n. 19 that the (holding attorney Army ability pursue precludes that a former for the a case in itself source, suit, Engineers Corps original simply adopt we the rea- fraud”); “job expose soning points because his was not to of the district court. These to encourage them to incentives financial investi- Second, government ongoing an fraud.11 information disclose about government that the demonstrates gation employees’ allegations allowing pursuing Finally, in is fact not would tam suits in these circumstances if, gov- until the is true even This fraud. contradict, serve, in fact Con- and would an actually initiates enforcement ernment parasitic suits. preventing gress’s goal of to uncertainty as action, may be there a outlined create we have purposes participated Holmes so. it will do whether private, be- public and between contrast investigation pursuant informa- government’s the federal tween respect With postmaster. as her duties to independent private citizens’ tion she is part of the investigation, that to Ramseyer, we concluded In knowledge. qui tam action entity. Her governmental ac- requires public disclosure bar that pursue to prodding theoretical, disclosure. tual, merely not pursue, be- not otherwise it would reasoning Underlying our at 1519. that the qui tam facts show undisputed assumption potential cause was governmen- to pursuit. do not have access active relators engaged is that has not been made tal information plainly fact, states own brief Holmes’s public: suit: this was not purpose of her po- to which the Information gov- that the confident “After Relator was actually access, but which has tential her investigating adequately ernment public, cannot released to the been information, under lawsuit she filed her parasitic lawsuit because basis of a of the her lawful share to recover the FCA tam suit relator must base Therefore, permitting proceeds.” from his or her gathered information on this qui tam suit would not serve Holmes’s specific If investigation. report a own purposes. aspect of the FCA’s affir- fraud is not detailing instances of disclosed, simply rather is Third, matively are not ones but these circumstances in an ensconced obscure to be private person needs a in which opportunist file, plaintiff first On the con- encouraged expose to fraud. report’s of the exis- have to know trary, having the information acquired it. request access in order to tence postmaster, as a course of duties her rationale, however, does Id. 1520. This post- specific obligation as had a apply who that, in report Again we note it. master of their allegations of the because know post- duties performance of her employees frequently jobs. Government master, governmental part she have access such, the informa- entity. acquired As she “publicly has not been dis- though it even Moreover, a fed- government. for the tion Thus, Ramseyer. closed,” as defined in reports com- employee who eral parasitic potential is a for government does not fraud on the pany’s employees before by government suits reprisal a com- the same fear occurs, just as there “public disclosure” acts as a insider who whistleblower pany by private per- potential for such suits have, following public reducing the sons disclosure.12 need further assisting un- pursuing or in an action holding suit of merely our is consistent illustrate that to all relief 3730 "shall be entitled and the 1986 der section the aims the statute necessary whole.” to make amendments. 3730(h). U.S.C. for a In addition to financial incentives 11. Again Holmes’s own we note that brief plaintiff, qui tam the statute addresses specific piggyback intent by providing an em- evidences particular concern government's retaliatory efforts. as a re- ployee who action suffers S. Interest specifically imposed penalties criminal Conflict of government employees who participate employees’ Federal obligations to avoid in matters in they which have financial conflicts of interest distinguish further § interests. 18 U.S.C. 208. them from qui others who file tam suits. Holmes has based her qui tam suit on glaring The inconsistency between these information that acquired she in the limitations on employees federal and allow- course of her employment postmas- as a ing employees federal pursue to qui tam ter and had specific duty to disclose. suits further supports our conclusion that At least government while the is conduct- Congress did not intend permit to ing federal an ongoing investigation of allega- tions, qui to act as Holmes’s claim plaintiffs portion tam for a proceeds directly reduces the amount that these circumstances. government may ultimately collect. The most among relevant specific To allow an employee in posi- Holmes’s prohibitions on federal employees is the pursue tion to qui tam claims these prohibition on the use of “nonpublic Gov- give circumstances personal stake ernment information”13 in the relevant to any “further information to individ- ual whose duties include private reporting fraud. interest.” C.F.R. perform “Rather than jobs their they 2635.101(b)(3),2635.703(a). §§ Other reg- required, government are employees obli- prohibit ulations participation ain gated to suspected disclose may fraud in- ment matter in which the employee has a appropriately hide fraud from their su- interest, financial 2635.402, §§ id. pervisors while preparing their tam 2635.501, 2635.502; the use of public office actions for filing.” United ex rel. for gain, 2635.101(b)(7), §§ id. Trustees, Biddle v. Bd. 161 F.3d 2635.702; government use property (9th Cir.1998) (citation omitted). We personal time for purposes, id. cannot conclude that Congress intended 2635.704, §§ 2635.705; and holding a fi- to create an government incentive for em nancial interest that conflict with the ployees to withhold information about ' impartial performance of government suspected contrary specific to their duties, § Moreover, id. 2635.403. Congress employment obligations.14 "Nonpublic information” plaintiff seal, means "informa- tam complaint file under employee gains tion that by reason of allowing to an ex- seek employment Federal and that he knows or 60-day period tension of the during which the reasonably should know has not been made seal); complaint (b)(4) (allow- under remains public.” available 5 C.F.R. ing to take over a 2635.703(b). § intervention); (c) by action (limiting plaintiff's rights when the 14. We reasoning our contrast here with the intervenes). primary arguments policy that the Eleventh court, The although Williams noted rejected Circuit involving Williams admin- government's argument "the False istrative specifically, interference difficulties— Claims Act should not allow personal re- government’s with the premature case and government employees ward to 'par- allegations disclosure of to defendants. 931 asitical' use of information obtained and agree F.2d at 1503. We concerns these developed in the course of em- require do excluding government employ- ployment,” 931 F.2d at did not con- ees eligible qui from the plain- class tiffs, plaintiff's sider particular employment weight. we accord them no The obligations in this statute context. demonstrates that Such obli- Congress consid- gations (though important aspect ered these are an specifically concerns our respect analysis Moreover, employees) Holmes's case. mitigate chose them rely upon obligation other means. 31 extent that we 3730(b)(2)-(3) U.S.C. (requiring that a employees, we use these to in- allegations, relating to the fraud applies ligations how it specify does not FCA of interest. be no conflict must there would We assume employees.

to federal that, employ- if the for federal also note intends We statutes and in such an ac- applicable to intervene adhere should choose ees to therefore endeav- to lim- tion, We the court regulations. requires the statute manner that in a the FCA recovery to construe to a qui tam plaintiffs ored it the employees’ obli- with federal is consistent if proceeds “the of the maximum of 10% obligations, these light gations. to be the court finds one which action is purposes evident along with the statute’s specific primarily on disclosures based government the and its distinction between (other pro- than information relator, conclude that we private and the action)” bringing the by persons the vided permit a feder- Congress did intend sources the government in certain in these circum- employee’s qui tam suit al 3730(d)(1). § A 31 U.S.C. news media. stances. appropriate analysis may also be different much like the employee, when a federal III. Conclusion insider in a whistleblowing typical jurisdiction in this case would Allowing expose an insider to an- company, acts as between the statute’s the ignore distinction employee’s (particularly federal other It plaintiff. and against gov- superior’s) fraud direct contrary purpose to the directly would be em- employee’s specific The ernment. discouraging parasitic lawsuits and employee and how ployment duties pur- other none of the Act’s would serve affect the de- of the fraud would learned Moreover, with it would conflict poses. employee act- of whether terminations postmaster em- obligations as Holmes’s it, reporting in ed as the government. We ployed disclosure for it is sort of whether proper that therefore hold Holmes provide incen- which intended FCA, and the district relator under the tives, allowing the suit would and whether her from the properly dismissed princi- contrary to conflict of interest be case. scope of this beyond it is ples. While that we do emphasize, We consider all the situations that opinion to employees can never that federal be hold from the compel a result different might example, a con- qui tam plaintiffs. For here, we mention have reached one we appropriate in trary conclusion be illustrate the limitations examples to these has aban- case in which the holding. of our has been investigation and there doned its reasons, foregoing we AFFIRM For the would no disclosure. court’s dismissal the district investi- part longer subject for lack of matter from the suit in cir- the suit those gation, allowing jurisdiction. statutory cumstances would serve revealing to the purpose of BRISCOE, dissenting: Judge, Circuit fraud that prosecuting I reverse respectfully I dissent. Assuming that the pursue. has failed to remand for further district court and employment all ob- employee had fulfilled jur- any statutory that indicates a statutory language interpretation of the lan- form our 3730(b)(1). government employ- against dis- isdictional bar guage We thus in section Williams, 931 plaintiffs.” ees as agree Circuit’s statement with Eleventh F.2d at 1504. Act is devoid of False "[t]he Claims proceedings. agree majority years, I with the varied over part due in to shifts in concluding that the district court erred judicial interpretations generating, and an ongoing government the existence of generated by, statutory sometimes amend operates investigation per as a se bar to a ments to the tamqui provisions. As origi suit, government’s qui tam nally enacted the FCA “contained investigation this case did not result in a provisions broad permitted “public meaning disclosure” within any person prosecute a claim on behalf 3730(e)(4)(A). However, I dis- of the and receive half of the agree majority’s with the conclusion amount recovered.” United States ex rel. precluded Holmes is pursuing this Stinson, Lyons, Bustamante, Gerlin & I specifically, disagree lawsuit. More Co., P.A. v. Prudential Ins. 944 F.2d majority’s interpretation general (3d Cir.1991) 1162 (dissenting opinion). In qui provision tam of the False Act Claims 1943, Supreme the interpreted Court these (FCA), 3730(b)(1), § 31 prohibit- U.S.C. provisions in United States ex rel. Marcus ing employee part a “federal of who Hess, 537, 379, v. 317 U.S. 63 S.Ct. 87 ongoing government investigation” from (1943), L.Ed. 443- and held that an individ proceeding qui Maj. Op. with a tam suit. ual could qui maintain a tam action under at 1251. solely the FCA based on cop information ied from a criminal indict I. Rejecting ment. government’s argu the “The FCA sets out and criminal civil ment that a reading broad of qui the tam penalties persons knowingly who sub provisions “might bring unseemly races for claims government.” mit false to the opportunity profiting the of gov from the Dunleavy United States ex. rel. County ernment’s investigations,” the Court held Delaware, (3d 734, 123 F.3d 738 Cir. of plain that -the language qui of the tam 1997); Corp. see also Avco v. United provisions allowed for a suit solely based Justice, 621, Dept. States 884 F.2d 622 of information, on and noted that Con (D.C.Cir.1989) (FCA government’s “is the gress proper body change was the or primary litigative recovery tool for the qui provisions. eliminate the FCA’s tam losses sustained as the result of fraud 547, Id. at 63 379. S.Ct. against government.”). the “A ‘ Congress responded immediately to the person knowledge against with of fraud Marcus, decision in amending the FCA’s government, acting the as a de facto ‘attor qui provisions prohibit tam suits ney general,’ instigate litigation can on the “ were ‘based evidence or infor- government’s against parties behalf the re mation in possession of the United sponsible. Such suits are known as States, any agency, or officer Dunleavy, actions.” 123 at F.3d thereof, provides The FCA at built-in incentive for time such suit was plaintiffs, relators, Stinson, such who are known as brought.’” See 944 bring 232(C) suit. Id. Specifically, (1982) § FCA (quoting (super- 31 U.S.C. shall, provides that the depending seded)). relator language, This new cre- case, upon the circumstances of the- receive problems example, ated of its own. “For percent proceeds between 10 and 30 of the in United States ex rel. Wisconsin v. action, plus expenses, reasonable Dean, (7th Cir.1984), 729 F.2d 1100 a state fees, 3730(d)(1), § and costs. 31 U.S.C. government was not to maintain allowed (2). qui tam action on information based it had

'Precisely gathered investigations, can in its qualify who as- a relator own because provisions under the supplied FCA’s the state had “[satisfaction have held instituting its We prior the information 3730(e)(4) § provisions Associ- National “the Id. action.” jurisdic- subject matter question is a urged strongly Attorneys General ation Fine v. Ad- ex rel. States tion.” United encoun- rectify problem Congress Inc., Sciences, 99 F.3d vanced subsequently Id. in Dean.” tered Cir.1996). Generally speaking, permit “to in 1986 FCA amended 3730(e)(4) § under inquiry jurisdictional Gov- based tam suits (1) whether questions: four involves except where possession, ernment’s alle- contains disclosure” alleged “public had on information based suit was of the from one or transactions gations disclosed publicly been (2) sources; alleged whether listed infor- of the original source brought by an within “public” made has been v. United Co. Hughes mation.” Aircraft Act; False Claims meaning 939, 946, Schumer, 520 U.S. rel. ex complaint (3) the relator’s whether (1997) L.Ed.2d 135 117 S.Ct. disclosure”; “public upon” “based 3730(e)(4)(A)). The (citing 31 U.S.C. (4) quali so, the relator and, if whether provides: text of amendments relevant section “original source” under as an fies jurisdiction (A) No court shall 3730(e)(4)(B). If the an at 1004. Id. this section based an action under over questions any of the first three swer allegations the upon “no,” inquiry ends jurisdictional the is criminal, civil, or in a or transactions proceeds, regard action qui the and congression- in a hearing, administrative original an relator is the of whether less administrative, Ac- al, or Government the inquiry, whether The last source. audit, or hearing, report, counting Office source, necessary is original is an relator media, the news investigation, or from of the first to each only if the answers At- brought by the is the action unless indicating the “yes,” is questions three bringing person or the General torney speci is complaint based relator’s the original an source action is the States See public disclosure. United fied information. Indus., Co. v. Koch rel. ex Precision (B) paragraph, of this purposes For Inc., 552 & n. Cir. 971 F.2d an individual source” means “original 1992). independent knowl- who has direct and the which edge of the information II. voluntarily has are allegations based subject mat- it concluding In lacked to the Govern- provided the information Holmes’ jurisdiction over ter filing an action under before acknowledged, claims, the district on the informa- is based section which four-part ultimately apply, the did but tion. According to the above. outlined inquiry (B). sum, 3730(e)(4)(A), In ap- is court, four-part inquiry the district attempt Congress’ the reflect amendments is only “where plicable between ade- golden “the mean wrongdo-

to find alleged actively investigating whistle-blowing insid- for quate concluded incentives at 125. The court App. ing.” four-part inquiry genuinely valuable purpose ers with plain- opportunistic is to determine discouragement circumstances such under ‘capable’ significant information have no is tiffs who “whether In situations ex itself.” Id. the suit pursuing of their contribute own.” actively pursu- “government is Ry. Terminal Co. where Springfield rel. (D.C.Cir.1994). wrongdoing alleged when ing Quinn, 14 F.3d sought,” action the four-part inquiry cability of the jurisdictional four-part in- is unnecessary “because clear quiry set 3730(e)(4) forth in § does not already identified the hinge upon whether is ac- (internal problem.” Id. quotation and cita- tively involved an investigation of the omitted). tion Applying this analytical alleged Rather, fraud. the four-part juris- framework, the court concluded that it dictional inquiry is applicable in all cases subject lacked jurisdiction matter over by filed qui tam and, relators as outlined Holmes’ tam claims: above, subject jurisdiction matter hinges case, In this it is undisputed that, upon the outcome of four-part inquiry. prior to the filing of tam com- Although presence or absence of an plaint by Holmes, the [Office OIG of ongoing government investigation is rele- Inspector General] PIS [Postal In- vant applying the four-part inquiry, it is spection Service] were involved in an clearly not the determinative factor. Un- active administrative investigation der the district analytical court’s frame- matters issue this suit and had work, a prospective relator would have to probable identified the offenders. When report his or her information to gov- the investigation substantiated ernment and then immediately file suit in CIG, Holmes publicly commended attempt to act before the government and received a bonus from $500 her instituted an investigation into the allega- employer for her service. July of Further, tions. the district analyt- court’s 1998, prior to the filing of Holmes’ Com- ical framework is contrary to Congression- plaint, the matter was referred to the al intent in that it Attorney could end up General’s preventing office and accepted persons legitimate, civil action. Between inside knowledge and the time the Complaint filed, wrongdoing the pursuing Attor- a qui tam ney General’s office continued action. to build against

case CIG. Because the PIS and investigation OIG and III. their subsequent referral of the matter to the Attorney Obviously recognizing the in deficiencies General set the government “squarely the district court’s analysis, the on the trail of the alleged fraud,” Ad- ment asks us to affirm the district court’s Sciences, vanced 99 F.3d at it judgment on one of two grounds. alternate would therefore “be contrary pur- to the First, government the suggests poses of the FCA to jurisdiction exercise Holmes cannot qualify as a relator because [the over relator’s] claim.” Id. Because government the investigation resulted my fundamental task in interpreting the “public disclosure” and Holmes does not FCA give “to is effect to the intent of qualify as “original an Second, source.” Congress,” American Trucking Ass’ns, government the offers public various policy U.S. at 60 S.Ct. I must reasons why it would inappropriate to grant the United States’ Motion to Dis- allow proceed Holmes to as a relator in miss Holmes. It makes no difference this action. Holmes, part as of her role as post- master, initially Public alerted the disclosure/original PIS and source OIG to the alleged wrongdoing and Focusing on parts two and four of the spurred them to investigate. jurisdictional inquiry, ar- Id. at 126. gues that “public disclosure” occurred

The district court’s analysis clearly is when investigators questioned flawed. Contrary conclusions, to its appli- (Jim Benbrook) one current and two uncontrovert- It is Modrejewski. ton, and Mo- Henry (Cameron Benton

former participat- individuals and, three that these ed employees,1 CIG drejewski) another, alleged in the “orig- degree an ed, or qualify not to one event, does “previ- to were obligated thus she was scheme fraudulent because inal source” (and not thus did scheme of the fraudulent alleged ously report the informed” it). “voluntarily” report interviews respective to their prior investigators.2 not de- is disclosure” “public The term ex rel. In United FCA. in the fined is “there concedes Corp., Century Healthcare Ramseyer v. proge- its Ramseyer and support” some Cir.1996), held we 1514, 1519 to that, for there in order notion ny for the than “signifies more term disclosure, recipient public abe availability of potential or theoretical mere stranger abe must information disclosed publicly to be order “[I]n information.” 22. Notwith- Br. at Gov’t fraud. to the transactions disclosed, allegations or gov- concession, standing must suit is based tamqui which these distinguish to attempts ernment to known made have been not they “do address by arguing that cases of disclo- act affirmative through some situation where the different Thus, Id. sure.” strangers to to no disclosures been anor by person possession mere [t]he fully aware fraud, the Government but fraud, pertaining entity actively pursuing and is allegations inves- independent through an obtained its Although Id. investigation.” own others, does disclosed and not tigation clear, appears exactly argument disclosure.” “public amount tous effectively asking only occurs Rather, if the test “public disclosure” modify the fraudulent allegations when allegations, is aware affirmatively provided transactions are into investigation actively pursuing there- previously others informed disclo- for the responsible allegations, sure(s). added). (emphasis at Id. how precisely it is unclear Although the ease principles these Applying dis- “public modify the government did disclosure public a hand, it clear circumstances, it ar- test such closure” their when, the course during occur minimum, to “disclosures that, its at gues government investigation, administrative [Benton employees two former CIG Benbrook, the Ben- questioned investigators qualify the to post order the Howard office 1 that number Although uncontroverted it is postage mailings lower for the also interviewed CIG bulk employees were postal inves had 8. Benton talked the administrative Br. at during course of Pltf's the rates.” attempt to government mailing makes in October tigation, the about a bulk “public disclo ain these resulted bulk assert that CIG’s "that he aware Indeed, the allegations at issue. of the sure” postage the lower for mailings qualify did not "disclosures concedes that its government receiving from the Howard CIG was rates CIG ... employees of current former Modrejewski "accom- Id. at 9. post office.” applica for always the sole basis been the during visit to the panied ... Benton case.” in this bar public disclosure tion the in October post office” Springs Poncha 37. Govt. Br. at bulk mail- CIG’s rates for that the and “knew higher than were by ... ing quoted [Holmes] many mail- of the “transported Benbrook receiving from the Howard CIG was rates post Howard CIG the ings at issue Id. post office.” certifications false "submitted office” and ModrejewsM] during investigation public disclosure had occurred with- [in this case] should trigger public in the meaning §of 3730(e)(4)(A),the Sec- bar, disclosure though even it turned out ond Circuit focused not on the fact that the that they not strangers were to the fraud.” government had generally disclosed infor- Id. at 34. does not clear- mation to the defendant’s employees, but explain, however, ly why the disclosure to rather that the disclosures had been made these employees former should be deemed to many who were innocent and sufficient “public constitute a disclo- knew nothing about the defendant’s sure.” Apparently, finds wrongdoing: significant they fact that no longer Here, ... the allegations of fraud However, work the defendant. were just potentially principled offers no accessible to distinction strangers, they (Benbrook) between them and were actually the one man divulged to still defendant, fraud, who worked for strangers to the since namely the inno- three prior all men had knowledge of cent employees of John Doe Corp. While alleged Further, wrongdoing. the search warrant was being executed, ment cites no case where has held the investigators spoke to numerous em- person disclosure to a familiar with ployees of John Doe Corp., some of the fraud “public constitutes a disclosure” whom knew of But, the fraud. more for purposes 3730(e)(4). §of importantly, many these individuals The government makes several other knew nothing ar- about defendants’ ongoing guments in an effort to demonstrate awhy scheme; they were strangers to the “public disclosure” has occurred within the fraud. These people were neither tar- 3730(e)(4). meaning §of Citing United gets of the investigation nor potential States ex. rel Doe v. John Corp., Doe witnesses. The may have (2d F.2d Cir.1992), hoped that these individuals poten- were suggests that “the Second Circuit has witnesses, tial but is clear that they squarely held that by disclosures made were not. Government to employees of a defendant Thus, at 322-23.3 contrary to the corporation during the course of a fraud government’s assertions, the decision in investigation constitute disclosures John 3730(e)(4)(A).” supports Doe under section conclusion that no Br. Gov’t 21. A occurred in decision, review John Doe this case when demonstrates persons Second interviewed holding Circuit’s in, as broad who were involved prior de- or had knowl- government. scribed of, concluding edge alleged wrongdoing.4 argument 3. An ences, Inc., can be made majority that the (10th Cir.1996). 99 F.3d 1000 See decision in wrong, John Doe was and ("Likewise, that Gov’t Br. at 21 this Court has questioning so-called "innocent” made that clear a allegations disclosure of to of a company suspected wrongdoing of single person does even a outside the Government "public constitute pur- disclosure” for trigger bar.”). jurisdictional will the Al poses of the It unnecessary FCA. is to decide though it is true the that court in Advanced issue, however, light the the of fact that all "public Sciences concluded a that disclosure” three witnesses at issue in prior case had this had occurred based the disclosure of knowledge of the fraud. individual, single information to a key as pect that of conclusion was that the individual government similar, The 4. overly makes a to whom the information was was disclosed broad characterization of this court’s "previously decision alleged unconnected with the in United States ex rel. Fine v. Advanced Sci- fraud.” 99 F.3d at 1005. 1264 (which qui tam “parasitic” prevent requires Doe John of aspect other One 1943 amend- its with consistent Congress, disclo- “public its Throughout

mention. limit).5 to to ments, want continued re- discussion, government the sure” proposition for the Doe cites John peatedly po- if its that suggests government The disclosure” “public the purpose the court, that it will the accepted by sition into the prod ‘to “was test relevant disclosures make forced “to on, to sit allowing it action, than rather parties third ‘innocent’ to allegations of fraud allegations suppress, possibly bar- disclosure public the satisfy order in the to be seem might inaction when suits qui tam opportunistic ensure that ” Br. at Gov’t government.’ the interest This 31. at Br. Gov’t barred.” will be 323). Doe, at John (quoting If there merit. without argument is (as far accurate is quotation Although the information, public disclosure no been John of the review careful goes), parasitic no se, can be then, there per gov- the that demonstrates decision Doe if a qui differently, Stated lawsuits. said. the court what misconstrues ernment disclo- any prior is filed public action by the quoted language the Importantly, pre- obviously reasonable sure, is there “public to the not refer does which the that sumption the 1986 implemented test disclosure” personally was is based suit the relator’s to the amendments, rather but by the relator. obtained F.2d at See 960 general. amendments a rule that complains The (“One the 1986 amendments reason “to individuals with disclosure requiring action.”). into the prod towas neces- of the fraud knowledge prior was ab- Circuit Second point, that the On the concerning mini-trial a bizarre sitate “prodding” solutely correct: Gov’t witnesses.” of various of mind state Congress’ obviously action was into ment faced a court Obviously, Br. at 31-32. “gov- pre-1986 jettisoning impetus for may have question disclosure standard, under knowledge” ernment when findings regarding factual make if the barred actions were qui tam which Noth- a disclosure occurred. whom and to in- already possessed inappropri- is suggests in the FCA ing tam action was upon which formation was event, the sort nothing of ate. mean, that does That based. the govern- where case in this required test disclosure” “public of the purpose wit- three that has conceded Rather, of the a review same. in, ator all involved issue were nesses history legislative amendments of, alleged knowledge prior had least “public of the purpose makes clear wrongdoing. identify and help test was disclosure” However, point of Br. at 30. Gov't arguments suit.” several makes not to requirement is public disclosure mischaracterization are tied for the impetus is an there determine whether gov- example, the quotation. For Doe John filing take action'—the government to where argues ''[i]n cases ernment Rather, that. care of takes qui tam lawsuit aware of Government no evidence is to test point filing, ... qui tam allegations to a prior is a qui tam lawsuit whether determine of fraud determining a disclosure whether parasitic one. at least one to allegations been made suggests repeatedly government also The is thereof' previously informed 'not individual looking a disclo- purpose of that "the sole assessing whether the proxy for a reasonable is Government if the to determine allega- sure of the will made aware be Government Br. Govt. of the fraud.” already the trail on to act pressure feel some tions—and clearly incorrect. at 39. This impetus of a tam without them —even

1265 Finally, government argues that the private gain,” “the use of Government “stranger-to-the-fraud” test “is flawed on property or personal time for purposes,” its own terms not because all ‘strangers’ “the use of ‘nonpublic Government infor- have incentives to disseminate information mation’ to further interests,” and fraud, about and some individuals who “the holding of any financial interests that prior knowledge of fraud have may conflict with the impartial perfor- compelling incentives not to publi- further mance of Government duties.” at 44- Id. cize it.” Id. at 33. Although govern- further argues that ment is undoubtedly correct that will “there is no expressed intent in the [FCA] always exceptions (as to the rule far as permit to qui tam suits by federal employ- a particular person’s willingness to dissem- ees job whose it is to report fraud when information), inate the “stranger-to-the- they it,” encounter and in fact “the legisla- fraud” rule is obviously based on generali- tive history of 1986 amendments to the Moreover, ties. has not FCA reveals an intent to ‘encourage more offered convincing test that could ade- private suits,’ enforcement ... to not en- quately replace the “stranger-to-the-fraud” courage by suits public employees seeking rule. In any event, we are by bound prior capitalize on information learned during precedent and thus are not free to ignore course their federal employment.” the “stranger-to-the-fraud” concept. Id. at 45. Finally, argues Because no “public that “permitting qui disclosure” occurred suits by federal prior to the filing employees Holmes’ who already are under an obli- action, is unnecessary gation to disclose would, determine fraud a prac- as whether Holmes matter, was an tical “original perverse source” create incentives for of the information upon which her employees.” com- Government Id. at 45-46. plaint was based. As previously discussed, Although the government’s arguments

where, here, as a public disclosure did are not merit, without we must not lose occur, jurisdictional inquiry comes to sight of the fact that nothing in the FCA an end and the qui tam proceeds, action expressly precludes employees federal regardless of whether the qualifies relator from filing qui tam suits. Prior to as original source. “precluded the FCA jurisdiction where the Public policy action was upon based possession a fall-back argument, States or any employees offers several at the time policy of the suit.” why reasons United States employees ex rel. should Burns v. A.D. be allowed to Roe Co., maintain qui tam Cir.1999). n. 5 based infor- Thus, “government mation obtained during the course of were their effec employment. tively prohibited According to bringing claims un ment, der the “[permitting qui tam pursue provision.” Id. The 1986 qui tam action on the FCA, facts amendments to here would be revised inconsistent with her specific provision duty as allow “per United States son” Postmaster to report bring such id.; a suit. See and with numerous legal 3730(b). imposed duties on U.S.C. “It is not clear whether all federal employees.” Gov’t Br. at 43. intended the amendments to For example, argues, per- allow employees to bring mitting proceed Holmes to suit,” Burns, relator F.3d at 722 n. since would be contrary to federal regulations nothing in the amendments or legisla prohibiting “the use office for tive history thereto addresses the issue.

1266 238- Theis, supra, at employment.” their did not Congress that Indeed, appears 2785, bill, proposed S. time it The second at the 39. the issue thought to give gov- brought by amend tam suits 1986 “all banning the enacted and formulated Wallace, ac- base[d] Govern their who Major David employees ernment See ments. Relators, Qui during Tam the as obtained Employees ment on information tions (“The (1996) 14, 22 Law. Army employment.” 1996-AUG of their course amendments 1986 FCA the of crit- had sponsors Both bills Wallace, supra, at 23. of issue the contemplate not simply did ultimately passed ics, were and neither using information employees into law. of their duties course in the they learned history, “no court with this Consistent in their own lawsuits of the basis govern argument the accepted has Hanifin, Qui Tam names.”); W. Patrick rela- never be can per se employees ment Employees Government by Federal Suits Burns, F.3d 186 tam action.” in a tors 20 Information, Government on Based judges from Although some n. 5. at 722 (“The (1991) 556, 570-71 L.J. Cont. Pub. practice criticized have Circuit Ninth re expressly history does legislative bring qui employees allowing federal of Congress of whether question solve rel. Fine ex actions, States see United suits. source permit intended 747, 740, Inc., U.S.A., 72 F.3d Chevron, v. determining where instance an This Hawkins, Cir.1995) (Trott, J., (9th issue is an 749 thought about Congress what in has, at thought least that court J., concurring), never because difficult express employee issue, instance, least did not a federal at allowed about one action. clearly.”). in a tamqui relator itself as a proceed Agency, Co. v. Sonoma Water Hagood See activity sug- congressional Post 1986 Cir.1996). (9th Like 1465, 1476 the FCA as Congress views gests held wise, Circuit the First qui tam to file employees allowing federal “prevent se 3730(e)(4)(A) per does on 1990, the “In Subcommittee actions. bringing Rela- employees Governmental Administrative Judiciary acquired Committee information House on of actions based tions hearings on oversight employment.” first their course of during held Em- Theis, Government C. Virginia Raytheon Act.” rel. LeBlanc ex States United Subverting Qui Cir.1990). Tam ployees as (1st 17, Co., Plaintiffs: 913 F.2d Act, 28 Claims the False Purposes view, persuasive discus- the most my (1999). During L.J. Cont. Pub. the Eleventh comes from sion of issue Department, Justice hearings, “[t]he those rel. ex decision Circuit’s the Department General Inspector Corp., 931 F.2d v. NEC Williams Services, John and Human Health Cir.1991). There, the relator was participated attorney who Phillips, an R. Force Air the United States attorney for ..., proposed drafting the amendments employ- his course of who, “[djuring the seeking to employees on federal limits ... became government, “In Con- Id. bring actions.” [FCA] corpo- part of on the bidrigging aware intended, bills introduced two gress con- seeking telecommunications ration the issue part, address Id. States.” the United tracts with Wallace, at 22. supra, relators.” court dismissed The district bills, “would H.R. first of con- FCA grounds on the suit on limitations established suits against bar jurisdictional tained based qui tam suits file[d] who employees based by government brought course during the gained upon information acquired in the course of tion. But it is no warrant for extend- employment. their On appeal, ing a statute that experience may dis- initially determined that public disclo- close that it should have been made sure had prior occurred to the relator fil- more comprehensive. The natural suit, ing and thus concluded that it was meaning words cannot be displaced unnecessary for the relator to establish by reference to difficulties in adminis- that he was an “original source” of the tration. For the question ultimate information on which his suit was based. what has commanded, when Id. at 1499-1501. The rejected court then given no clue intentions government’s argument that “the com- except familiar English words and no prehensive bar against qui tam by suits hint by the draftsmen of the words government employees in the 1943 version they meant to use them in any repealed [FCA] never by the but an ordinary sense. The idea 1986 amendments.” Id. at 1501. par- which is now sought to be read into ticular, the court concluded that “[t]he ... [Act] so complicated nor structure of the 1986 version of the Act English speech poor so that words and several basic canons of statutory in- were not easily available to express terpretation make it clear that no such idea at least to suggest it. general prohibition any longer exists.” Id. Addison v. Holly Hill Prods., Fruit [322 Finally, rejected the court vari- 607, 617-18, U.S. 64 S.Ct. 88 L.Ed. ous policy arguments by forwarded (1944). 1488] Congress could have cer- “for finding that Congress tainly indicated its desire to prevent intended to bar government employees from filing qui from initiating qui tam suits upon based tam suits upon based information ac- information acquired in the course of their quired in the course of their government employment.” Id. at 1503. employment. The False Claims Act is Specifically, the court held: devoid of statutory language that recognize We that the concerns articu- jurisdictional indicates a bar against lated may United States legiti- government employees as qui plain- tam ones, mate and that the application of tiffs. We also note absence of any the False Claims Act since its 1986 clear indication that Congress intended may amendment have revealed difficul- such a bar to be implied in spite of the ties in of administration plain language of the statute. There- suits, particularly those brought by gov- fore, we decline to judicially create an ernment employees. Notwithstanding exception where none exists. recognition, however, we are (internal Id. at 1503-04 footnotes quo- charged only with interpreting the stat- omitted). tations

ute before us and not with amending it to eliminate administrative For these reasons, difficulties. same I reject The limits upon judicial government’s prerogative public policy arguments and in interpreting statutory language were decline to hold that government employees well articulated by Supreme per Court are precluded se from filing when it cautioned: based information obtained

Legislation introducing during sys- new course employment. their tem is at empirical, best Although and not may infre- be sound policy quently administration reveals gaps or reasons for limiting government employ- inadequacies of one sort or another ees’ ability file actions, that is call for amendatory legisla- Congress’ prerogative, not ours.

1268 human “a ed.1990) “person” as (defining IV. that noting (i.e. but person),” natural being government’s using the majority, The labor may include term [the] “by statute stepping as arguments policy associations, partnerships, organizations, accomplish what stone, seeks trust- representatives, legal corporations, 1986 do since unable has been itself receivers”). or bankruptcy, in ees, trustees gov- ability of i.e., amendments, limit be plausibly it cannot differently, Stated qui tam actions to file employees ernment reason- is “person” that the argued word during obtained based exclud- as being construed of ably capable More employment. their of course or general, in employees ing effectively majority specifically, particu- employees specific government provi- tamqui general FCA’s amends ultimately interpretation Thus, lar. as “person,” the word interpreting by sion classi- be majority cannot by adopted 3730(b)(1),6to exclude § in 31 U.S.C. used meaning “everyday” or a “normal” fied of part “is employee who any government v. Unit- E.g., Smith “person.” the word of of investigation ongoing 223, 228, 113 S.Ct. States, 508 U.S. ed qui tam pursuing allegations” (“When a (1993) 138 2050, L.Ed.2d 124 Maj. allegations.” those on “based suit statute, normal- we by defined word view, improper. this is my at 1248. Op. or ordinary it in accord ly construe to offer fails with, majority begin To meaning.”). natural applying adopting for any justification invoked has majority the word of interpretation unique its own per 3730(b)’s title, by “Actions § 3730(b)(1). § Neither used “person,” as As so. do legitimately it sons,” could nor this stat- interpret us to has asked party out, the pointed has. Supreme Court specif- does Admittedly, the FCA ute. limit “cannot statutory provision of a title However, “person.” the word ically define text,” instead meaning plain ambiguous, is word mean the does not that light [it] shed[s] “when only be used can it the extent respect to at least with Pennsylvania phrase.” word or ambiguous some Supreme theAs encompasses individuals. 524 U.S. Yeskey, Corr. Dep if of noted, ambiguous t. statute Court 1952, 141 L.Ed.2d 212, 206, 118 S.Ct. in two or being understood of “capable it is omitted). Even (internal (1998) quotation ways.” Chicka senses possible more ambigu “person” the word assuming 84, States, U.S. v. United Nation saw not), of (which employment it ous 151 L.Ed.2d -, 122 S.Ct. of 3730(b)’s only lead one title could § - omitted). (internal (2001) quotation govern all either two conclusions: argued reasonably be might

itWhile the class fall within employees ment or ex includes either “person” the word filing suit under capable “persons” entities, can certain cludes all or that provisions, tamqui be all human encompasses that it doubt See that class.7 fall outside employees employees. including ings, (indicating Dictionary 1196 Law Black’s Dictionary Law Black’s See inter- plausible to quite would be gests "it part, pertinent provides, in provision That 6. what distinguish between may bring pret” action title civil person “[a] for the filed Act] Claims actions” as "insider [the False refers to majority violation Govern- and for the person against other ment.” employees, and "non-insider course in the obtained on information based any reli- majority disclaims Although the Maj. Op. at employment.” title, sug- 3730(b)'s nevertheless ance on “private person” is a “[t]erm sometimes not consider question gov- whether used to persons refer to other than those ernment employees should be allowed to holding public or in office military ser- use information obtained the course of vices”). Adoption of the latter conclusion their employment as the basis for a qui superfluous render specific ex- Thus, action. by interpreting the adopted by clusions “person” word does, as it the majority 3730(e)(1) § (prohibiting “former pres- or ends up “rewriting the statute rather than ent member[s] of the armed forces” from correcting a technical mistake.” Id. filing qui tam “against a member of The majority suggests the First Circuit the armed arising forces out per- of such adopted a somewhat similar interpretation son’s forces”). service in the armed in LeBlanc. A LeBlanc, review of howev- Nor can the majority’s er, interpretation that demonstrates the First Circuit’s

rest error” “scrivener’s doctrine. holding was dramatically different than the Under the doctrine of error,” “scrivener’s majority’s in this case. Rather than inter- may “give an unusual (though not preting the “person,” word as used in unheard-of) meaning which, to a word § if 3730(b)(1), the First Circuit was asked given its normal meaning, produce to interpret “public disclosure” lan- an absurd and arguably unconstitutional guage 3730(e)(4)(A) §in contained and the result.” United States v. X-Citement Vid definition of “original source” contained in eo, Inc., 64, 82, U.S. 115 S.Ct. 3730(e)(4)(B). § 913 F.2d at 20. With (1994) (Scalia, J., L.Ed.2d dissenting). respect “public provi- disclosure” Although be valid public policy sion, the First Circuit concluded that why reasons certain employ “bar[red] employees, as well ees precluded should be from availing as citizens, from bringing themselves of provisions of the actions only if the information forming the FCA, it cannot be said that defining the basis of the action acquired was in the “person” word as encompassing all individ circumstances described in 31 U.S.C. uals, including government employees, 3730(e)(4)(A).” Id. Notably, the First would produce an “absurd and arguably Circuit held provision that the “does not unconstitutional result.” Nor can it prevent employees from said that the interpretation adopted by the bringing qui tam actions based on informa- majority was “genuinely intended [by Con tion acquired during the course of their gress] but inadequately expressed.” Id. It employment but not as the result appears that in enacting the 1986 amend hearing, investigation or audit ments FCA, to the Congress simply did or through the news media.”8 Id. As for view, 1266 n. 7. my proposed distinc- case, disclosure” in Maj. that Op. at 1268 n. implausible. tion scenario, In either 9, that is not opinion. clear from the See 913 potential relator obtains the information in F.2d at 20 (discussing meaning "public the course of his or her employ- provision disclosure” failing but specify only ment. The practical distinction between "public whether actually disclosure” had the two perpetrator scenarios is the of the it). occurred in the case before Given the (i.e., another employee vs. subsequent court's “original discussion of the non-government entity). Pre- provision, source" it is presume fair to cisely how the perpetrator status of court concluded “public that a disclosure” fraud could potential affect the relator's status occurred, had triggering thus requirement “private as a person” explained. that qualify relator "original as an 8. Although majority contends the First source.” See Id. Circuit concluded “there had been no persuaded I am First Nor provision, source” “original majority by the offered rationale em- additional a government concluded Circuit ma- example, the For decision. justify included responsibilities job ployee, whose view, my mistakenly suggests, as fraud, qualify jority could not uncovering case in this jurisdiction exercising if the information “original source” purpose the FCA’s contrary to qui tam action his “would be the basis formed Maj. Op. fulfilling those suits.” parasitic preventing in the course obtained sum, First suit” “parasitic Id. In paradigmatic 1256. The responsibilities. job certain unfamil- otherwise holdings prohibit person, occurs when Circuit’s “origi- situation, qualifying about learns iar with qui acting as thereby sources,” and public nal from a alleged fraud “pub- been a relators, there has on capitalize where to file suit and attempts then in 31 U.S.C. as described lic disclosure” It is uncontroverted information. from far 3730(e)(4)(A).9 cry is a That § the knowledge of had direct that Holmes provision qui tam rewriting general the who person the and was fraud alleged “persons” 3730(b)(1) the class to limit § notifying govern- by whistle” the “blew bring suit. may who may there Although investigators. ment her, excluding for con- reasons policy is sum, majority’s the decision be 3730(b)(1) filing suit § from employee, language plain as a trary to the is interpreta- her suit statutory provisions, ordinary the rules under “a majority, federal the one. According “parasitic” not a certainly tion. in a govern- participates employee who by out carved Notably, the exclusion job to her pursuant investigation

ment possibility eliminate majority does not investiga- not, at least while duties as classified accurately be could of what bring ‘person’ ongoing, a entitled tion setting, in the suits parasitic 3730(b).” Maj. section under a civil action lack- employees i.e., by government suits might be Although this at 1251. Op. alleged knowledge of ing first-hand choice, in the nothing legislative acceptable after example, that Suppose, fraud. by the cited sources or the other FCA case, in this discovering alleged fraud gov- regulation (e.g., majority or subor- colleague had told Holmes “nonpub- use of employees’ erning federal colleague or it, that the about dinate information”) mandates lic Government on based tam action filed subordinate “only my It is view this exclusion. Be- by Holmes. supplied oversights ... can correct pre- or subordinate colleague cause Director, here. presented arguably kind” in” be “involved sumably not would Pro- Compensation Workers’ Office of of lack investigation because ensuing & Shipbuilding Newport News grams fraud, or he knowledge about personal 115 S.Ct. Co., U.S. Dry Dock ma- under the precluded J., not be (1995) she would (Ginsburg, L.Ed.2d 160 filing suit.10 holding jority’s concurring). majority this can- claims extent 10. To the holdings, Circuit's the First 9. Under per occur, to a holding would amount not pursuing her excluded from be not by government se ban "public has been tam action because of a during pendency as set forth disclosure” (a holding quite similar investigation ment 3730(e)(4)(A). court and by adopted the district the one majority). rejected allegedly majority The also fails to clearly Finally, define the majority suggests that “a when a government is, employee in its federal employee reports who a private words, “involved in” a investi- company’s fraud on does gation. Presumably, audi- not have the same fear of reprisal that a tor or investigator would deemed to be company insider who acts as a whistle- in” any investigation “involved in which he may blower Maj. have.” Op. at Al- or she professional has a responsibility. though that may where, well be true as about, however, What person such as here, there is no indication that govern- Holmes who is employed as an auditor ment employees participated investigator, but who nevertheless actors in alleged scheme, that is learns about alleged reports fraud and it to certainly always the Indeed, case. supervisor her or to investiga- majority recognizes much notes, when it Although tors? person pre- in its concluding section, that there may be cipitated an investigation, is she “involved legitimate reasons for allowing a govern- it, in” thereby precluding her from filing to file a qui tam action suit? Based the majority’s holding, when his or her supervisor is involved in the answer to question appears to be the alleged fraud. possibility of these “yes.” this, however, Doesn’t create a per- differing scenarios why reinforces this is a verse incentive for a matter Congress, rather than this simply suit file under the prior FCA court, to decide. disclosing the information to any superiors investigators? I would reverse decision of the dis- trict court and majority

The remand for suggests pro- further ceedings. should precluded from filing suit be-

cause “this is a case of fraud allegations capable pursu- ing." Maj. Op. at (emphasis in origi-

nal). Given the FCA’s require-

ments, the same can be literally said for ROWE, Robert R. Plaintiff-Appellant, any qui tam action. Under 31 U.S.C.

§ 3730(a)(2), a relator filing tam ac- tion must serve on the government “[a] LAUDERDALE, FORT OF, The CITY copy complaint and written disclo- municipal corporation, Blackburn, in sure of substantially all material evidence dividually and police officer of the person information the possesses.” City Lauderdale, Fort al., et De complaint relator’s then remains “un- fendants-Appellees. der seal for at least days” and is not No. 00-16361. served “on the defendant until the court so orders.” Id. After receiving the relator’s United States Appeals, Court of complaint evidence, Eleventh Circuit. days has 60 within which to elect “to inter- Jan. vene and proceed with the action.” Id. If elects to proceed with the action, “it shall have primary responsi-

bility for prosecuting action, and shall be bound an act of person

bringing action.” 3730(c)(1).

Case Details

Case Name: United States Ex Rel. Holmes v. Consumer Insurance Group

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Feb 19, 2002

Citation: 279 F.3d 1245

Docket Number: 01-1077

Court Abbreviation: 10th Cir.