United States of America, Ex Rel. Maxine Jones v. Horizon Healthcare Corporation

previously unforseen to close by its desire 3.16(A). That Rev.Code

loophole Ohio discourage the clearly enacted to law was engaged Judge behavior Mascio. exact Thus, loophole taken to close the the actions

merely intent of the effectuated addition, Judge Mascio was the

statute. seeking exploit only elected official 3.16(A), loophole in and his Ohio Rev.Code immediate atten- conduct alone “demanded Nixon, 472, 433 U.S. at 97 S.Ct. at tion.” Accordingly, the circumstances sur- 2805. passage of the law not reveal rounding the do legislative punish Judge intent to Mascio. IV. Conclusion legislation

I would hold that the Ohio substantially as it im- constitutional does and, pair clearly right contract vested event, any significant legiti- satisfies the exception purpose mate to the Contracts legis- I Clause. would further hold punishment lation does not amount to a Plaintiff, thus, con- does not violate the prohibition against

stitutional bills of attain- der. America, ex

UNITED STATES rel. JONES, Maxine Plaintiff- Appellant, HORIZON HEALTHCARE CORPORATION, Defendant-Appellee.

No. 97-1635. Appeals, United States Court of Sixth Circuit. Argued June 1998. Decided Nov. 1998. Rehearing Suggestion Rehearing

En Banc Denied Jan. briefed), Geary (argued H.

James Howard, Kalamazoo, Michigan, Howard & (briefed), Rayle A. A. Friend Brad Carol (briefed), Howard, Bloomfield Howard & Hills, Michigan, Defendant-Appellee. MOORE, CLAY, GILMAN, Before: and Judges. Circuit CLAY, J., opinion delivered the court, MOORE, J., joined. in which GILMAN, 335-337), (pp. J. delivered separate opinion concurring in the result. OPINION

CLAY, Judge. Circuit

Plaintiff-Appellant Maxine Jones action under the Federal False Act, (1994), §§ 3729-3733 Claims U.S.C. against Defendant-Appellee Horizon Health- Corporation care on the basis of Horizon allegedly Healthcare’s fraudulent activities against the United States. The district court granted summary judgment in favor of Hori- subject zon Healthcare for lack of matter jurisdiction. For the reasons set forth be- low, hereby ruling we AFFIRM the district court.

I. Plaintiff-Appellant (“Appel- Maxine Jones lant”) by Defendant-Appellee was hired Ho- Corporation (“Appellee”) rizon Healthcare patient care services consultant in Novem- job responsibilities ber of 1992. Her includ- reviewing ed Medicare claim forms which sought per- reimbursement for services Appellee’s formed several skilled health Michigan care facilities in and Wisconsin. Appellant conducting claims that while claims review in March of she discover- prepared ed that several of the claim forms by Appellee’s employees administration and allegedly were incorrect because the services performed correspond pa- did not with the tients’ files and instructions of the medi- Appellant alleges cal staff. in- that she briefed), H. (argued Nathan management Resnick formed of the fraudulent claims Leigh (briefed), and, actions, Dones Moss employ- Resnick & As- as a result of her her sociates, Bloomfield, Michigan, W. for Plain- ment was terminated three months later. tiff-Appellant. termination, Appellant applied After her States, Michigan Department with the of the United but the unemployment benefits Security pro- Employment ultimately Commission Justice declined intervene. detailing the reasons for a statement vided Appellee summary judg- filed a motion for including allegation that discharge, her action ment on December Appellee preparing, perhaps filing, granted Appellee’s 1996. The district court alleg- also false Medicare claims. 11,1997, motion on March and dismissed the Michigan De- edly contacted someone at the subject jurisdic- for lack of matter allega- about her partment of Public Health FCA, prohibits qui tion under the tions of fraud. upon” public actions “based disclosures of 16, 1993, Appellant September filed On “original fraud unless the is an complaint in the United States District Court source” of the information. The district Michigan, pursu- for the Eastern District of court later denied motion for re- diversity jurisdiction, under the Michi- ant to consideration and clarified that the dismissal Act, Protection gan Whistleblower’s Mioh. prejudice of the FCA action was without Comp. 1994) (West §§ 15.361-369 Ann. Laws timely the appeal United States. This fol- CWPA”), wrongfully asserting that was she lowed.2 after she discovered that terminated false prepared by had been reimbursement claims II. Appellee. Appellant claims that she did actually know at that time whether the forms This court’s review of a district had been in violation of Medicare submitted court’s dismissal of a Federal False Claims only guidelines, because she had been told subject Act case on the basis of lack of “being the matter was taken care of’ jurisdiction matter is reviewed de novo. complained to management. when she had United States ex rel. McKenzie v. Bellsouth Cir.1997), Telecomms., Inc., 21, 1994, 935, April Appellant filed a 123 On - denied, complaint U.S. -, in the United States Dis rt. second ce (1998). 855, trict for the Eastern District of Michi Court 139 L.Ed.2d 755 All factual alle Appellee relating gan against to the fraudu gations accepted are as true forms, qui lent Medicare this one a tam light in and construed most favorable to pursuant action1 to the Federal False Claims However, plaintiff. Id. because federal (1994) (“FCA”). Act, §§ 3729-3733 U.S.C. jurisdiction, are of limited courts courts complaint, The FCA which was filed under jur establishing bears the burden of statute, specifically required seal as Id. isdiction. Appellee had submitted the false Medicare forms to for reim III. bursement. claims that it was FCA, 3729-3733, §§ The 31 U.S.C. during filing the interim between the of the qui provision private has a tam that allows a complaints two that she was able to deter a bring individual to civil action for violation that the false claims had been submit mine 3730(b)(1) (1994). ted, § of 3729. See 31 necessary was for a violation of U.S.C. which 2, 1994, brings a The individual the action as “relat May the FCA. On the FCA com suit, acting in on plaint upon Attorney was served General or”3 tam behalf motion, Appellant's 1.“Qui court had tam” is an abbreviation for the Latin 2. On the district for consolidated the WPA the FCA cases phrase "qui pro rege quam pro domino si 5, economy purposes judicial March on ipso parte sequitur,” meaning hac "Who sues in 128.) (J.A. Appellee's for Because motion King as well as for on behalf of himself.” summary solely regard judgment was (6th ed.1990). Dictionary A Law Black's action, and the district court's dismissal informer, "brought by tam action is an action action, expressly present ap- limited to that penalty under statute which establishes peal involves the FCA case. ..., the commission or omission of a certain act part penalty go any person of the who party 3. A who is "[a] "relator” is interest brings the state such action and the remainder to permitted proceeding to institute a in the name or some other institution.” Id. People Attorney or the General when the of the (4)(A) jurisdiction court shall have over govern- The No government. the United States damages any- upon this based an action under section may recover treble ment a fraud or transac has committed disclosure of one who brings criminal, civil, who and the individual or government, tions in a administrative up thirty percent administrative, may receive the action hearing, congressional, in a 3730(d)(2) money 31 U.S.C. recovered. Accounting report, or Office Government (1994). history was set forth The of the FCA audit, hearing, investigation, or from opinion in the McKen- recent in this Circuit’s media, unless the action is news case: zie Attorney person or the by the General FCA, original enacted version bringing the action is an source of 1863, anyone bring allowed the information. percent action and receive paragraph, “origi- purposes For of this Rep. No. 99th recovered. S. amount who has nal source” means individual (1986), reprinted Cong., 2d Sess. 8-10 knowledge of the independent direct and 5266, 5273. This broad 1986 U.S.C.C.A.N. abuse and in follow- provision led to voluntarily provided the in- based and has ing Supreme Court’s decision Unit- formation to the Government before Hess, Marcus v. 317 U.S. ed States which is based an action under section (1943), 379, 87 L.Ed. 443 on the information. bring qui a which held that a relator could 3730(e)(4)(A) (B)(1994). § 31 U.S.C. though even the action was tam action entirely upon information contained based IV. indictment, Congress in a determining jurisdic In whether the pre- the FCA. The 1943 version amended 3730(e)(4) applies § tional bar of to a rela actions “based on evidence or infor- cluded ease, inquiry tor’s it is useful break government had when the ac- mation the (A) down into its elements: whether there brought.” tion was United States ex rel. criminal, public in has been a disclosure a Co., 944 Stinson v. Prudential Insurance hearing; congres civil or or administrative Cir.1991) (3d (quoting 31 F.2d 1153 sional, administrative, government report, or 3730(b)(4)(1982) § (superseded)). U.S.C. audit, investigation; hearing, or or from the being claims barred in This led to even media; allegations or news trans qui plaintiff supplied tam cases where the actions that form the basis of the relator’s the information to the before (C) complaint; and whether the relator’s ac filing claim. ex rel. See United States tion is “based disclosed Dean, v. 729 1106 Wisconsin F.2d allegations or transactions. If the answer is (7th Cir.1984). any questions, inquiry “no” to of these 1986, Congress amended the FCA may proceed. If ends and the tam action again encourage any “to know- individual questions answer each of the above is ing bring of Government fraud to that Rep. (D) “yes,” inquiry then final whether information forward.” S. No. (1986), qualifies “original the relator Cong., reprinted source” 99th 2d Sess. in 3730(e)(4)(B), “To under which also would allow U.S.C.C.A.N. 5266. revitalize the See, provisions, provid- proceed. the amendment e.g., the'suit enforcement, private Del., ed incentives for in- Dunleavy County 123 F.3d awards, cluding monetary (3d Cir.1997). increased 734, 740 Each of these ele adopted proof, a lower burden of and al- jurisdictional bar ments of will be dis lowed to remain a cussed turn. party to the action even if the Government Stinson, (A) intervenes.” at 1154. There a Whether Has Been “Public Disclosure” McKenzie, 123 F.3d jurisdictional inquiry determining The first The current version of the provides jurisdictional bar of the FCA that: whether the bar of the FCA Dictionary (6th ed.1990). right solely to sue resides in that official." Black’s Law = Z, “public represents X Y Z applies allega- [I]f there has been a + is whether X Y by Appellant represent raised tion of fraud and its of the claims disclosure” complaint. essential elements. In order to FCA district court disclose publicly, the fraudulent filing Appellant’s com- transaction ruled that the WPA revealed, combination-of X and Y must be plaint “public disclosure in a constituted may from which criminal, civil, readers listeners infer hearing” un- or administrative Z, i.e., 3730(e)(4)(A). the conclusion that fraud has been During pendency der committed. panel appeal, of this Circuit ruled “public ease disclosure” the McKenzie

includes tional bar Therefore, complaint. this first element of the been documents with met. 123 F.3d at 939. court, jurisdic- such enough domain to [Q ]ui tam actions are barred information exists in the expose ^{[*] [*]} the fraudulent ^{[*] [*]} transac- public when (the Y), tion combination of X and or the (B) Whether the Public Disclosure was of (Z). allegation of fraud Allegations or Transactions Springfield, 14 F.3d at 654. Other courts Form the Basis of adopted Springfield reasoning. have Complaint 741; E.g., Dunleavy, 123 F.3d at United Co., States ex rel. Rabushka v. Crane that her contends WPA was not a disclosure of the misrep- or transactions that form ba Fraud consists of two elements —a complaint. Appellant argues sis of her FCA resented state of facts and a true state of complaint reveals the that because her WPA facts —that constitute the X and the Y of the allegedly wrongful firing but equation. Springfield, basis for her F.3d at 655. actually allege Appellee only does not that en contends that one element gaged presented complaint in the fraudulent or actionable event her WPA be- submitting govern of the false claims to the complaint only Ap- cause her asserted that ment, jurisdictional apply. pellee bar does not prepared had false claim forms but not actually that the false forms were submitted case of government to the federal for reimburse- Quinn, Springfield Ry. Terminal Co. Thus, Appellant ment. contends that (D.C.Cir.1994), Ap- of F.3d 645 the Court complaint only disclosed the true state WPA peals for the District of Columbia Circuit set misrepresented of facts and not the state of up analyzing a framework for whether a (i.e., that forms were submit- facts the false “allegations public disclosure consists of the true). Appellee government ted to the transactions” that form the basis = + Y Z counters that resort to the X complaint. The court noted that a dis- FCA equation unnecessary Appellant’s is because “allegations tinction between or transactions” complaint actually allegation WPA made an ordinary “information” was warranted as “Z”). (i.e., Appellee points of fraud usage of common and sound inter- matter the fact that the substance WPA com- pretation of the FCA. Id. at 653. The court plaint complaint very simi- and the FCA provi- interpreted the rationale behind the complaint frequently lar refers and WPA many being potentially sion as that valuable claims.” “fraudulent precluded if tarn suits would be the bar applied Obviously, when the of the word even disclosure was mere use of innocuous information. Id. at 654. is not sufficient to determine wheth “fraud” Therefore, complaint allega of an the court construed the bar as er the WPA consists of applying when the of fraud of fraud or the essential elements tion time, Appellant’s argu or the critical elements of the fraudulent fraud. At the same complaint allege not transaction were disclosed and of- ment that the WPA does illustration, fered, specifically allege by way following fraud because it does not of to the equation: that the false claims were submitted entirely convincing. complaint, thé WPA did en- is not FCA also compass “allegations or transactions” complaint claims that the false Clearly, the deliberately prepared comprise complaint. or allowed that her FCA were forms version, presumably to remain in a false Therefore, (C) government. Complaint be submitted Whether FCA from the ones distinguishable Upon” this case Disclosure is “Based the Public in which the disclosed Appellant relies on Appellant contends that her FCA com- of suggest not an inference information did disclosure, upon” public plaint is not “based Springfield, 14 wrongdoing faith. or bad Cf. upon” employment rather is “based her but of facial (holding that disclosure investiga- Appellee, her own hands-on juris ly pay would not defeat valid vouchers tion, upon she retained and the documents suggest the records did not diction where Furthermore, Appellant termination. any misrepresentation on the defendant’s of contends that because she was the source them); Dunleavy, 123 submitting part information for both the WPA suit and the (noting newspaper disclo F.3d at 742 that suit, it is irrelevant whether the facts proceeds county’s sure of retention are similar to the the FCA suit allegation not constitute an sale of land would facts set forth in the WPA suit. misrepresen it mentioned the of fraud unless county failed to ted state of facts —that At least one circuit has held “based it inform the had the funds upon” to mean “derived from.” See United possession). in its States ex rel. Siller v. Becton Dickinson & Co., 21 F.3d How Dunleavy Springfield Cases such as ever, McKenzie, held in Sixth Circuit of fraud or the did constitute reasoning line with the of several other cir of fraud because the dis- elements essential cuits, “supported means “based closed information did not create infer- by” any part and includes action based even Rabushka, impropriety. ence of 40 F.3d ly public disclosures. (looking at 1512 to whether the disclosed (adopting F.3d at 940 standard in United an inference that the de- raised Indus., action); States ex rel. Precision Co. v. Koch engaged in fendants were fraudulent Inc., Cir.1992)); see Springfield, (requiring 14 F.3d at 655 disclo- also United States ex rel. Biddle v. Board misrepresented sure both the true and Univ., Stanford, Trustees the Leland necessary of “to Jr. state facts because both are of Cir.1998); Cooper government investigators set the trail of F.3d 826-28 on fraud”). Shield, case, although Appellant’s v. Blue Cross and Blue this complaint may WPA not have constituted an The McKenzie court explicit, allegation any part formal of either fraud or ruled that individuals who base of fraud, certainly the it publicly essential elements of their on disclosed infor presented enough bringing qui facts to create an mation inference are barred from a tam McKenzie, wrongdoing part Appellee. of on the of The action. 123 F.3d at 940. In mak complaint ing disclosed that false claim of an forms determination whether action is disclosure, prepared implied were upon” public and at least that the “based a a court identity fraudulent action —the submission of the should look to whether substantial expected allega forms —either had occurred was exists the or between disclosed comp to occur. the qui Because fraudulent submission tions or transactions the tam of these forms was Appellant’s the basis of See id. laint.4 admitting suggests, problematic. 4. While that the FCA is not a model of be rence would Had Con- clarity, questions precedent gress simply precluded bringing qui the concurrence our the tam 3730(e)(4)(A) interprets upon” upon publicly § "based actions based disclosed informa- tion, "supported by,” opining interpretation to mean that this inter- the "derived from” would be on, however, pretation yields Congress provide "an unnatural contortion of the sensible. went language.” Although "supported by” exception. the inter- Neither the concurrence nor the concurrence, pretation may inelegant, opinion by be somewhat we believe Fourth Circuit cited the interpreting that it is correct and that "based v. United States ex rel. Siller Becton Dickinson & from,” Co., (4lh Cir.1994), upon” explain why to mean "derived the concur- 21 F.3d 1339 Obviously, allegations Ap public source of the mitigated disclosure is very pellant’s complaint by similar to plaintiff position FCA the fact that a in this still complaint. allegations in her WPA As opportunity have the would maintain section, pri previous in the discussed if qualified “original suit she source.” mary the two is that the difference between preceding Consideration of the elements of actually allege that WPA does not 3730(e)(4)(A) jurisdictional § bar of leads gov the false claims were submitted to the Appellant may to the conclusion that main- in Appellant notes that McKenzie ernment. only tain her action if she is found to be public situation volved factual where the “original source.” qui plaintiffs disclosure on which the prior consisted of two law action based (D) Original Inquiry Source suits other Because individuals. The FCA states that a court'does not have public disclosure and the tam action jurisdiction upon pub- over an action based Appellant, came she this case both person lic bringing disclosure unless the argues improper that it is to consider the “original action is an source” of the informa- upon” prior Al action “based suit. 3730(e)(4)(A) tion. See 31 U.S.C. though Appellant’s argument has some intui (1994). “Original source” is defined as an appeal, rejected tive several courts have (1) independent individual: with direct and person’s qui contention that a tam action knowledge of the information upon” cannot be considered “based that same based; (2) allegations are and who has volun- public prior individual’s disclosure. Fed tarily provided govern- the information to the Servs., States, Recovery eral Inc. United ment before an action under the FCA (5th Cir.1995) (finding F.3d 450-51 which is based the information. See plaintiffs qui upon” tam action “based its 3730(e)(4)(B). public own disclosure in a staté court defendant); against Spring action the same parties dispute do not the district field, (finding allegations 14 F.3d at 656 finding court’s has “direct and placed by qui fraud domain tam independent knowledge” required proceed itself court to subject transactions that are the of her FCA original analysis). source complaint. knowledge Her of the facts re- Although may tam action garding clearly fraud is the result be, matter, as a factual derived from her employment Appellee of her action, exempt WTPA this does not her from acquired information she and witnessed as a the “based standard that this court Therefore, position. result of her adopted light problems with a regard Appellant’s issue with status as an “derived from” standard. See 123 voluntarily source is whether she (noting at 940 that use “derived provided from” standard mean that two would identi- Appellee’s allegedly about fraudulent conduct proceed long cal suits could so as each rela- prior filing complaint. to her FCA tor did not derive his or her claim from the other). Any requirement unfairness of this rule with re- to the that a addition gard provided to a who the relator must have information to Congress eliminating parasitic Congress' orig that was the intent tion would render creation of provided excep- exception superfluous. Although tam actions would have an inal source lan statutory qualifies guage starting point that a tion allows relator who serves as the original actually interpretation, interpret source to maintain an action we must strive to an Moreover, public ambiguous yield derived from al- to a disclosures. statute in such manner as though may knowledge logical giving such a relator have direct whole while consistent effect Congress. the of information that formed the basis of these to the will of See United States ex rel. disclosures, Club, public Findley Employees' we F.3d would have to contort v. FPC-Boron 105 - 675, denied, (D.C.Cir.1997), usage anyone actually normal to find that who 681 cert. U.S. -, 172, (1997). public derived L.Ed.2d We his action from disclosures had 118 S.Ct. 139 114 information, interpretation upon" “independent” knowledge of this as believe that the of "based satisfy adopted required exception. this would be to the More that this court meets McKenzie likely, accepting interpreta- objective. the "derived from” suit, original an gan agencies qualify state her as filing to her FCA prior government

the source. a relator also must held that this Circuit with the information government provide 3730(e)(4)(A)provides, part, that Section prior allegations are based to upon which “voluntarily original source is one who has an McKenzie, 123 any public disclosure. provided the information to the Government approach of United (adopting the at 942 F.3d filing Appellant argues action.” before an Findley Em rel. v. FPC-Boron ex States and, ambiguous is there- that “Government” (D.C.Cir.1997), Club,

ployees’ fore, legislative his- the court should examine — denied, U.S. -, rt. ce interpretation that tory in order to render an (1997)). The court 139 L.Ed.2d gives Congress’ effect to intent. See United necessary is because that this rule reasoned (In Lines, First Truck States Noland re is true unless she one is not a whistleblower Cir.1995). Inc.), How- alerting government to responsible for ever, meaning of the word “Government” such information is alleged fraud before 3730(e)(4)(A) ambiguous. §in The is not public Id. domain.5 § 3730 to “Government” is first reference in 3730(b)(1), person that a which states in this case ruled The district court may bring an action for violation of section Appellant original was not an source that person 3729 for the and for “the United because, although Appellant provide in did very next sen- States Government.” Appellee’s allegedly about fraudu formation that the action shall be tence then states Michigan Employment lent conduct to in the name of the “Government.” Security Michigan and the De Commission clearly This reference is to the United States partment bringing to Government, of Public Health of and the use “Government” suit, to disclose her to section, she failed throughout the rest of the filing her government before jurisdictional procedural describes federal argues Appellant actions.6 action, WPA and FCA requirements filing such natu- nothing in language there is rally that because applies to the federal as 3730(e)(4)(A) specifically Furthermore, that states well. since the is con- provide the information to the against a relator must cerned with false claims filed government, interpretation before an FCA federal this federal case, any Therefore, opposed government agency, only logical to one. fail- disclosing report her actions in the fraud to Michi- ure to fraud questions ap- encourages reporl 5. whether it was The concurrence individuals fraud propriate for the government expeditiously preclude court infer re- and works to McKenzie quirement original provide that an source infor- parasitic recog- actions. The court McKenzie government prior any public mation to the nized the other circuits that had considered We disclosure. interpretation believe that court’s McKenzie interpretive question split, this were and this problematic of this statute was interpretation court decided that an of these sec- First, legitimate inferring both and correct. requires tions that to disclose the rele- relator requirement additional does not conflict with the government prior any vant information to the language literal statute. Section keeping most in with the disclosure was 3730(e)(4)(A)permits pro- source to language and intent of the statute. We believe despite public ceed with a tam action disclo- correct, certainly that this decision was and it is sure, despite prior public disclosure as the the law of the Circuit. concurrence asserts. The difference is critical. interpreted by As the statute does not alleges appeal for the first time on bar relator who discloses information to the that her with the counsel contacted someone government prior filing prior to suit and to this Department pri- of Justice in December of becoming public maintaining information filing Appellee disputes or to the FCA case. this despite becoming pub- the action properly argument and notes that contention this origi- lic before the is heard. Without the action may be considered waived because it is raised for exception, juris- nal source the court would lack appeal. time on See Brickner v. Voino first respect, to such an diction hear action. In this vich, 238 Further interpretation perfectly consis- McKenzie more, Second, although alleged prior contact was to tent with the statute as written. suit, interpretation merely Appellant’s filing prior of her FCA it was not ensures that an McKenzie way "original original. requirement public by source” be This disclosure of her WPA suit.

335 filing her court in government prior to suit McKenzie v. federal Telecomms., Inc., being original source.7 Bellsouth 123 F.3d 935 prevents her from - Cir.1997), denied, -, cert. U.S. 118 (1998). 755 I S.Ct. L.Ed.2d write V. however, separately, I because believe that provisions tam of the Fed key rulings two of the in McKenzie were to en eral False Claims Act are intended wrongly decided. who are aware of courage private individuals perpetrated against govern I being ruling question fraud The first is the court’s bring phrase ment to such information forward and construction of the “based 3730(e)(4)(A) prevent parasitic qui meaning “sup- § tam actions in which as U.S.C. simply previous ported by.” off of disclo ruling relators feed Id. 940. The other I government judicial question sures fraud. See is the addition to 31 U.S.C. 3730(e)(4)(B) 942-943; “that, § Springfield, requirement 123 F.3d at F.3d at of a to be source, (calling congressional original FCA a effort “to an a relator must inform the encouraging government walk a fine line between whistle- of the fraud before the blowing discouraging opportunistic and be information has been disclosed.” Id. havior”). Appellant’s Although lawsuit at 942. parasitic opportun nor this case was neither reference, repeated For ease of I have istic, provisions were intended operative language below the from the FCA: relators, freeloading not to block but (A) jurisdiction No court shall have over inspire also to whistleblowers to come for upon an action under this section based Findley, possible.

ward as soon as public allegations disclosure or transac- (“[T]he provisions F.3d at 685 criminal, civil, tions in a or administrative designed inspire FCA were whistleblowers administrative, hearing, congressional, promptly to come forward with information Accounting report, or Government Office concerning government so that can fraud hearing, audit, investigation, or from the stop ill-gotten gains.”). it and recover media, news unless the action is Appellant’s Because action was based by Attorney person General or the prior public allega- disclosure of the bringing original source the action is against Appellee, tions of fraud and because the information. Appellant qualify original does purposes paragraph, “origi- For of this . bring source due to her failure to the infor- nal source” means an individual who has prior mation to the federal independent knowledge of the direct and disclosure, prop- the district court information on which the erly subject determined that it lacked matter voluntarily provided the in- based and jurisdiction Accordingly, her action. we over filing before formation to Government hereby ruling AFFIRM the of the district an action this section which is based under court. on the information. 3730(e)(4)(A) (B)(1994). § GILMAN, Judge, concurring. U.S.C. Circuit (Henceforth simply these subsections will be by I concur in the result reached the ma- (A) (B).) referred to as jority, Maxine Jones failed to both because least, report say statutory lan- her of fraud to the federal To the above guage False has not been found to be a model of government before Claims (FCA) (an clarity. complaint explicit requirement Act The District of Columbia Circuit had (A) (the 3730(e)(4)(B)), say “public § we this to about disclosure” of 31 U.S.C. because statute): prong are bound the earlier decision of this 3730(b)(2) preceded by We note that 31 U.S.C. instructs disclosure the federal seal, requirements relator to her FCA under as comply file with the source did here.' It is WPA 3730(e)(4)(B) interpreted of 31 U.S.C. complaint, complaint, not her sealed FCA McKenzie. the that must be constitutes disclosure by interpretation the rendered McKenzie every appeals of that has Virtually court majority explic- public disclosure bar and the other circuits cited the considered upon” thing, how- that “based implicitly agrees opinion, on one to the effect itly or so of the statute is not an unnatural language “supported by,” the to be ever: means clearly which cases plain as to describe language of to reach a result contortion the to bar. Congress intended fairly supported by the statute that is not (“We are unfamiliar itself. See Id. at 1349 Findley ex rel. v. FPC-Boron United States common one or a any usage, with let alone a (D.C.Cir. Club, Employees’ 105 F.3d definition, suggests that dictionary that 1997). court made a similar comment The ”) (em- by.’ upon’ ‘supported can mean (the ‘based (B) prong “original source” of to original). in statute): phasis prong, “public disclosure” As with McKenzie brings This me to the second addressing “original source” courts judicial question: I addition ruling that jurisdictional bar have inter- prong of the (B) “that, requirement origi- to be an to of varying ways. preted it in source, govern- nal a relator must inform the Id. at 689. alleged the informa- ment of the fraud before McKenzie, tion has been disclosed.” ambiguous statutory lan

Interpreting course, ruling Although at 942. the first guage, of is the bread-and-butter so, upon” argua- is at least doing interpreting “based work of the federal courts. (albeit opinion impermissible interpreta my ble adopt should reasonable courts stretch), purpose Congress tion that furthers the this wholesale addition seems completely unjustified. v. Truck me. United States American intended. 534, 542, Inc., ing Ass’ns 310 U.S. correctly majority opinion states that (1940). Congress’s But 84 L.Ed. 1345 statutory requirements “original be ... must be carried into “general intention source” are as follows: reasonably language which can be construed “Original source” is defined individ- can not to effect it. Otherwise the intention (1) independent ual: with direct and by provisions the courts. The of be enforced knowledge of the information on which the by implica such acts are not to be extended (2) based; who v. tion.” Smietanka First Trust & Sav. voluntarily provided the information to the

Bank, 602, 606, 257 U.S. S.Ct. filing an action before under (1922) provision (interpreting L.Ed. 391 of upon the FCA which is based the informa- relating Tax the Income Law of 1913 3730(e)(4)(B). tion. See by taxation of income held and accumulated then, McKenzie, majority But based of trustee for the benefit unborn and unas- requirement adds the additional that “a rela- persons). certained provide government with tor must also brings first Which me to the McKenzie which the ruling question: interpretation I of any public are based disclosure.” (A) upon” “supported by.” “based to mean 123 F.3d at 942. got I it right believe that the Fourth Circuit Although may good policy when it found that “based means “de- there well be (as support requirement rived from.” reasons to new Siller Co., (123 explained Becton Dickinson & in both McKenzie F.3d at 942-43) (105 685)), interpretation Findley This strikes F.3d at linguistically fully judicial me as both correct flat into addition fact runs the face (A). Congress’s objective pre- statutory language consistent with This is (“Such (A) venting parasitic “original lawsuits.- Id. an un- because allows an source” rela- disclosure, derstanding upon,’ apart proceed prior public of the term ‘based tor to despite giving directly language require- effect to the chosen conflicts with the new a, Congress, fully ment is if the consistent section relator barred 3730(e)(4)’s indisputed objective pre- fraud is not [sic] disclosed ”) venting ‘parasitic’ knowledge public. actions ... I find that becomes Fur- before thermore, proper simply not the role of it is by judicial terms

the courts to add additional - States, U.S. -, Brogan v. fiat. United 805, 811-12, -, 118 S.Ct. (1998) (“Courts may not create L.Ed.2d 830 legislation, no matter their own limitations doing alluring policy arguments for how ...”); and Accident Ins. Co. v. so Nat’l Life (6th States, 559, 560 Cir. United 524 F.2d 1975) (“The pow ... Courts do have repeal er to or amend the enactments though they may disagree legislature even result; rather it is their function meaning give plain natural and effect to passed by Congress.”). This is statutes States, job Congress. Neal v. United 296, 284, 516 U.S. L.Ed.2d (1996) Court, (“Congress, not this has the statutes”). responsibility revising its above, Despite my misgivings as set forth panel law of this circuit is clear that one of this court cannot overrule decision panel. Secretary Salmi v. Health Servs., and Human Cir.1985). I in the result therefore concur by majority. reached Larry Mitelman, ROMINE and Sonia

Plaintiffs-Appellants, CORPORATION, COMPUSERVE al., Defendants-Appellees. et

No. 98-3480. Appeals, Court of Sixth Circuit. Argued Nov. 1998. Decided Nov.

Case Details

Case Name: United States of America, Ex Rel. Maxine Jones v. Horizon Healthcare Corporation

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jan 11, 1999

Citation: 160 F.3d 326

Docket Number: 97-1635

Court Abbreviation: 6th Cir.