UNITES STATES of America ex rel., Plaintiff-Appellee, Jacqueline Kay POTEET, Relator-Appellant, v. MEDTRONIC, INC. et al., Defendants.
No. 07-5262
United States Court of Appeals, Sixth Circuit
Jan. 14, 2009
Argued: June 5, 2008.
In attempting to show pretext pursuant to prongs two and three, Ladd argues that she had a clean discipline record apart from a minor issue with absenteeism and that Richert was found guilty of other rule violations but was not terminated. Her first argument fails because falsifying an injury report is a serious rule violation and Ladd could not show that Richert also had committed a serious rule violation. The Public Law Board found that Ladd‘s discipline of dismissal was “on valid grounds.” Ladd‘s comparisons to Richert are inapposite where Richert previously violated different rules relating to safety, for which he was reprimanded. In Klepsky v. United Parcel Serv., Inc., 489 F.3d 264 (2007), we held that two employees’ circumstances were not “sufficiently similar to raise an inference of pretext” even though both employees had broken rules regarding employee honesty. Id. at 272-73. On the other hand, we explained further that the plaintiff in Klepsky‘s dishonesty was more severe because it “went to the very root of his employability and his qualification to drive trucks” since he had failed to report a history of seizures. Id. at 272. Here, both lying about the cause of injuries and safety violations go to the root of employability. However, we look to similarly situated employees not to evaluate the employer‘s business judgment, but to inquire into the employer‘s “motivation and intent” to determine whether the employer was “motivated by retaliation.” Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir.1987). Even though as outsiders, we may regard safety violations as severe as dishonesty, it is within the company‘s business judgment to treat differently-situated parties differently. Without similarly situated parties, we cannot adjudge the intent of the employer as to retaliation. Accordingly, we find no error in the district court‘s summary judgment ruling on Ladd‘s retaliation.
Therefore, we AFFIRM the judgment of the district court in granting summary judgment to Grand Trunk on Ladd‘s hostile work environment and retaliation claims.
Before: DAUGHTREY, CLAY, and McKEAGUE, Circuit Judges.
CLAY, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. McKEAGUE, J. (p. 520), delivered a separate opinion concurring in the result.
OPINION
CLAY, Circuit Judge.
In this qui tam action, Relator, Jacqueline Kay Poteet (“Poteet“), appeals the district court‘s dismissal of her complaint, brought pursuant to the False Claims Act (“FCA“),
I. BACKGROUND
A. Statutory Framework
The FCA imposes civil liability on any person who “knowingly presents, or causes to be presented to an officer or employee of the United States Government . . . a false or fraudulent claim for payment or approval; [or] conspires to defraud the Government by getting a false or fraudulent claim allowed or paid.”
In addition to “encourag[ing] ‘whistleblowers to act as private attorneys-general’ in bringing suits for the common good,” Walburn v. Lockheed Martin Corp., 431 F.3d 966, 970 (6th Cir.2005) (quoting United States ex rel. Taxpayers Against Fraud v. General Elec. Co., 41 F.3d 1032, 1041-42 (6th Cir.1994)), the FCA also seeks “to discourage opportunistic plaintiffs from bringing parasitic lawsuits whereby would-be relators merely feed off a previous disclosure of fraud.” Id.; see also Grynberg, United States ex rel., 390 F.3d 1276, 1278 (10th Cir.2004) (“The False Claim Act‘s qui tam provisions are designed to encourage private citizens to expose fraud but to avoid actions by opportunists seeking to capitalize on public information.“); United States ex rel. LaCorte v. SmithKline Beecham Clinical Lab., Inc., 149 F.3d 227, 233 (3d Cir.1998) (“Section 3730 attempts to reconcile two conflicting goals, specifically, preventing opportunistic suits, on the one hand, while encouraging citizens to act as whistleblowers, on the other.“); United States ex rel. Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645, 649 (D.C.Cir. 1994) (noting that, in drafting the qui tam provisions of the FCA, Congress sought to achieve “the golden mean between adequate incentives for whistle-blowing insiders with genuinely valuable information and discouragement of opportunistic plaintiffs who have no significant information to contribute of their own“). Thus, the FCA places a number of jurisdictional limitations on qui tam actions, two of which are relevant for this appeal. First, the public disclosure provision removes federal jurisdiction from FCA actions “based on the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing . . . or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.”
B. Factual and Procedural History
Medtronic, Inc. (“Medtronic“), is a medical technology firm which manufactures and distributes various types of medical equipment and supplies. Medtronic Sofamor Danek USA, Inc. (“MSD“), a subsidiary of Medtronic, is a manufacturer and seller of spinal implants and other surgical devices. Both Medtronic and MSD market their products to healthcare providers throughout the United States. The doctors and hospitals who use Medtronic and MSD products frequently submit claims to the federal government for Medicare and Medicaid reimbursement.
On September 11, 2002, John Doe (“Doe“),2 a former MSD attorney, filed a qui tam action under the FCA against Medtronic, MSD, and ten named physicians in the United States District Court for the Western District of Tennessee. The complaint alleged that MSD had used improper sales and marketing tactics to induce the defendant physicians to use MSD products in violation of the FCA and the federal Anti-Kickback statute,
On December 29, 2003, more than a year after the filing of the Doe complaint and two years after the filing of the Wiese complaint, Poteet, a former MSD Senior Manager for Travel Services, filed the instant qui tam action against twelve physicians (including two physicians named as defendants in the Doe complaint) and five healthcare providers in the United States District Court for the Western District of Tennessee. Poteet alleged that the named defendants had filed numerous false, fraudulent, and ineligible claims for Medicare and Medicaid reimbursement in violation of the FCA. Specifically, Poteet claimed that MSD had paid the defendant physicians large amounts of money and provided them with lavish travel and recreational opportunities—“upgraded lodging for physicians, dinners, entertainment and activities such as golf, snorkeling, sailing, fishing, shopping trips, horse-back riding, hiking,” etc.—in connection with sham consulting contracts and royalty agreements. J.A. at 23. In return, the defendant physicians and hospitals purportedly purchased MSD products for use in their patients’ surgeries. Thereafter, according to Poteet, the individual defendants, or their employers, “actually submitted false claims for reimbursement for such devices for which payment was made in whole or in part under a federal healthcare program.” J.A. at 23. Poteet contended that these actions violated both the FCA and the Anti-Kickback statute.
During this investigation period, Poteet amended her complaint three times to include additional defendants. In her third amended complaint, filed on February 10, 2005, Poteet named Medtronic and MSD as defendants along with sixteen physicians and nine healthcare providers. This complaint contained the same allegations of fraud against the government as her prior complaints—sham consulting and royalty agreements between MSD and the defendant healthcare providers, as well as lavish travel provided to individual physicians and their families in return for the use of MSD products—but added some further details. The complaint also was accompanied by a “Supplement to Third Amended Complaint” in which Poteet alleged new and continuing payments by MSD to physicians to induce them to use and to persuade others to use MSD medical devices. Each of these complaints as well as the supplement were filed under seal as required by the FCA.
The government allowed the seal in Poteet‘s case to expire on December 20, 2005. On January 13, 2006, the district court denied the government‘s motion for a further extension of the seal, and the case was subsequently unsealed on January 20, 2006. On January 25, 2006, the district court partially reinstated the seal with respect to all pleadings filed on or prior to January 25, 2006, with the exception of Poteet‘s complaints, amended complaints, and supplements to complaints. However, the district court directed that all future pleadings be filed without seal.
On July 18, 2006, after completing its investigation into Poteet‘s allegations, the government filed a motion to dismiss Poteet‘s complaint, arguing that it was barred by the first-to-file provision and the public disclosure provision of the FCA. In this motion, the government also informed the district court that it recently had entered into a settlement agreement with Medtronic and MSD (the “Settlement Agreement“), under which those firms would pay $40 million to settle claims alleging that they had, between 1998 and 2003, paid illegal kickbacks to physicians to induce them to use certain MSD spinal products.4 Under the terms of the Settlement Agreement, dismissal of both the Poteet and Doe qui tam suits was a condition of the settlement.
On January 23, 2007, the district court granted the government‘s motion to dismiss Poteet‘s complaint. The district court found that Poteet‘s complaint was jurisdictionally barred by the first-to-file rule as well as the public disclosure rule, and dismissed the case. This appeal timely followed.
II. STANDARD OF REVIEW
We review de novo a district court‘s dismissal of an FCA case for lack of subject matter jurisdiction. Walburn, 431 F.3d at 969; accord United States ex rel. McKenzie v. BellSouth Telecommunications, Inc., 123 F.3d 935, 938 (6th Cir. 1997). Because federal courts are courts of limited jurisdiction, the relator bears the burden of establishing a court‘s subject matter jurisdiction over her FCA claim. Walburn, 431 F.3d at 969; McKenzie, 123 F.3d at 938. The basis for jurisdiction must be apparent from the facts existing at the time the complaint is brought. See Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 94-95 (1998); Smith v. Sperling, 354 U.S. 91, 93 n. 1 (1957) (“The jurisdiction of the Court depends upon the state of things at the time of the action brought.“).
We review a district court‘s decisions regarding discovery requests and the conducting of evidentiary hearings for abuse of discretion. See Popovich v. Sony Music Entm‘t, Inc., 508 F.3d 348, 360 (6th Cir.2007); Ivory v. Jackson, 509 F.3d 284, 297 (6th Cir.2007). “Abuse of discretion is defined as a definite and firm conviction that the trial court committed a clear error of judgment.” Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 554 (6th Cir.2008) (quoting Tahfs v. Proctor, 316 F.3d 584, 593 (6th Cir.2003)).
III. DISCUSSION
On appeal, Poteet raises two claims. First, Poteet challenges the district court‘s dismissal of her complaint as jurisdictionally barred by the FCA‘s public disclosure rule and first-to-file provision. Second, Poteet contends that the district court abused its discretion when it failed to grant her motion for discovery and when it failed to conduct an evidentiary hearing before dismissing her complaint. We consider each of these arguments in turn.
Poteet‘s primary argument on appeal is that the district court erred in finding her qui tam action to be jurisdictionally barred by both the FCA‘s public disclosure rule and its first-to-file provision. On de novo review, we find the first-to-file rule technically inapplicable to Poteet‘s complaint. However, we agree with the district court that Poteet‘s complaint is jurisdictionally barred by the public disclosure provision, and accordingly affirm the district court‘s dismissal of Poteet‘s suit on that basis.
1. Public Disclosure Rule
The FCA‘s public disclosure provision,
No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.
To determine whether
a. Public Disclosure of Fraud
For a relator‘s qui tam action to be barred by a prior “public disclosure” of the underlying fraud, the disclosure must have (1) been public, and (2) revealed the same kind of fraudulent activity against the government as alleged by the relator. See
Following the lead of our sister circuits, we generally have found two types of disclosures sufficient to put the government on notice of fraud. See, e.g., Dingle, 388 F.3d at 212 (“Either a public disclosure which includes an allegation of fraud, or a public disclosure that describes a transaction that includes both the state of the facts as they are plus the misrepresented state of facts must be present to eliminate jurisdiction in a case.“). “First, if the information about both a false state of facts and the true state of facts has been disclosed, we [will] find that there has been an adequate public disclosure because fraud is implied.” Gilligan, 403 F.3d at 389; accord Walburn, 431 F.3d at 975 (“When the ‘misrepresented state of facts and a true state of facts’ have been disclosed, there is enough information in the public domain to give rise to ‘an inference of impropriety.‘” (quoting Jones, 160 F.3d at 332)); see also Jones, 160 F.3d at 331 (adopting the X + Y = Z analysis from the D.C. Circuit‘s decision in United States ex rel Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645 (D.C.Cir.1994)).5
In the instant case, we find the Wiese complaint sufficient to qualify as a public disclosure of fraud which could potentially bar Poteet‘s qui tam complaint.6 First, as a filing in a California civil action, the Wiese complaint clearly was a “public” disclosure. See, e.g., McKenzie, 123 F.3d at 939; Bledsoe I, 342 F.3d at 645 (“There is little doubt that [a] complaint, filed in Tennessee state court, qualifies as a public disclosure.“). Moreover, the allegations contained in the Wiese complaint were sufficient to put the government on notice of potential fraud by MSD and its physician customers. In his complaint, Wiese alleged that he had been terminated because he had “refused his supervisors [sic] directives to pay illegal kickbacks and bribes to [MSD‘s] customers in exchange for business.” J.A. at 386. Wiese explained that these illegal payments took the form of “hunting and/or fishing trips” and other “extravagant trips for doctors and their families” which would be disguised as “Think Tanks.” J.A. at 380-81. Wiese claimed that, while these “Think Tanks” were “touted as a way to brainstorm among doctors and other professionals in the medical device industry regarding current trends and technology,” in reality, they “were nothing more than additional perks offered to doctors in exchange for their business.” J.A. at 381. Wiese further described how MSD made “illegal payments to doctors in the guise of ‘consulting contracts,‘” under which doctors would perform “little work.” J.A. at 382. In short, Wiese provided a detailed description of how MSD and its physician customers were covertly violating the Anti-Kickback statute. While Wiese did not directly allege that the doctors accepting kickbacks from MSD submitted fraudulent reimbursement claims to the federal government, his description of the manner in which these doctors and MSD were attempting to disguise these illegal kickbacks as legitimate business activities strongly suggested that these physicians were not disclosing such information—which would have disqualified them from receiving Medicare or Medicaid reimbursement—when submitting insurance claims to the government. The Wiese complaint “presented enough facts to create an inference of wrongdoing,” Jones, 160 F.3d at 332, and thereby was sufficient to “put the government on notice of the ‘possibility of fraud.‘” Gilligan, 403 F.3d at 390.
b. Qui Tam Complaint “Based Upon” Disclosed Fraud
After finding a public disclosure of fraud, the next step in the public disclosure analysis is to determine whether the relator‘s qui tam complaint is “based upon” this disclosed fraud. See
In the instant case, we find that Poteet‘s qui tam complaint is “based upon” the information contained in the Wiese complaint. Despite the presence of one major allegation that was not made in the Wiese complaint—namely, Poteet‘s claim that the named defendants had filed false claims for Medicare and Medicaid reimbursement in violation of the FCA—the primary focus of Poteet‘s complaint is the same MSD illegal kickback scheme which Wiese described in his complaint. Moreover, even though the particular details concerning the kickbacks paid and the defendants involved are slightly different, the illegal kickback scheme described in Poteet‘s complaint is essentially the same as the scheme alleged by Wiese in his complaint. Like Wiese, who claimed that doctors named in his complaint received illegal compensation from MSD in the form of “hunting and/or fishing trips” and other “extravagant trips for doctors and their families” which were disguised as “Think Tanks,” J.A. at 380-81, Poteet contends that the doctors named in her complaint were rewarded for their use of MSD products with “discounted and upgraded [travel] lodgings[,] dinners, entertainment and activities such as golf, snorkeling, sailing, fishing, shopping trips, horse-back riding, hiking and other such activities, all of which were paid by MSD.” J.A. at 140. Similarly, Poteet‘s claim that MSD provided this unlawful compensation during physician “training and education” meetings and in the form of sham “consulting contracts,” J.A. at 136-37, seems to mirror Wiese‘s allegations that MSD presented some of its illegal kickbacks during “Think Tanks” and disguised others as “consulting contracts.” J.A. at 381-82.
In short, while Poteet‘s complaint presents new details concerning MSD‘s illegal kickback scheme and describes its operation in relation to different doctors, her allegations bear a substantial likeness to Wiese‘s prior and publicly disclosed allegations, and consequently are “based upon” the Wiese complaint.7 See Jones, 160 F.3d at 332. Thus, absent a showing that Poteet is an “original source” of the information contained in her complaint, her qui tam action is jurisdictionally barred by the FCA‘s public disclosure provision. See
Under the FCA, an original source is “an individual: (1) with direct and independent knowledge of the information on which the allegations are based; and (2) who has voluntarily provided the information to the government before filing an action under the FCA which is based upon the information.” Jones, 160 F.3d at 333 (citing
Poteet wisely does not contend that she qualifies as an original source. While Poteet, due to her former position as MSD‘s Senior Manager for Travel Services, arguably has direct and independent knowledge of most of the facts alleged in her complaint, she undisputedly failed to provide this information to the government before filing her complaint and before the filing of the Wiese complaint. Thus, she cannot qualify as an original source under the FCA.
Accordingly, we conclude that Poteet‘s qui tam complaint is jurisdictionally barred by the FCA‘s public disclosure provision,
2. First-to-File Rule
The FCA‘s first-to-file rule provides that “[w]hen a person brings an action under this subsection, no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.”
In order to determine whether a relator‘s complaint runs afoul of the
One important caveat to this first-to-file rule, however, is that, in order to preclude later-filed qui tam actions, the allegedly first-filed qui tam complaint must not itself be jurisdictionally or otherwise barred. See Walburn, 431 F.3d at 972 (finding that an earlier filed complaint‘s failure to comply with
A comparison of the Doe and Poteet complaints reveals that they allege the same essential facts regarding the fraud against the government committed by MSD and its physician customers. While Poteet‘s complaint contains different (and, indeed, not as extensive) details, both complaints allege that MSD violated the FCA and the Anti-Kickback statute by providing monetary and in kind compensation to physicians as an inducement to use MSD surgical products. Both Doe and Poteet indicate that these kickbacks took the form of lavish trips to desirable locations, sham consulting agreements, and sham royalty arrangements. Likewise, both complaints identify the FCA violation as involving false or ineligible claims for Medicare and Medicaid reimbursement.
The only potentially significant differences between the two complaints is that, with the exception of two overlapping physician defendants and Medtronic and MSD, the complaints identify different physician defendants. However, because the purpose of the FCA‘s first-to-file provision is to prevent the filing of more qui tam suits once the government already has been made aware of the potential fraud perpetrated against it, see Walburn, 431 F.3d at 970; Grynberg, 390 F.3d at 1279, the fact that the later action names different or additional defendants is not dispositive as long as the two complaints identify the same general fraudulent scheme. See Hampton, 318 F.3d at 218 (finding that differences in named defendants “are not differences in the material elements of the fraud“). Similarly, the fact that the allegations in the Poteet and Doe complaints may cover somewhat different time periods is irrelevant because they both allege the same type of fraudulent activity by the same general group of actors. See, e.g., United States ex rel. Ortega v. Columbia Healthcare, Inc., 240 F.Supp.2d 8, 13 (D.D.C.2003) (“If the later-filed complaint alleges the same type of wrongdoing as the first, and the first adequately alleges a broad scheme encompassing the time and location of the later filed, the fact that the later complaint describes a different time period or geographic location that could theoretically lead to a separate recovery does not save it from the absolute first-to-file bar of
In light of the substantial similarity between Poteet‘s qui tam complaint and the Doe qui tam complaint, the first-to-file rule generally would apply to bar Poteet‘s complaint. However, as noted above, Doe‘s earlier-filed action cannot bar a later-filed action under the first-to-file rule if the Doe action is itself jurisdictionally barred, see Campbell, 421 F.3d at 825, or has failed to comply with the special pleading requirements of
In the instant case, Doe‘s complaint specifically identifies the false claims submitted to the government in violation of the FCA as “all claims for payment related to [MSD] products . . . associated with physicians that were receiving remuneration as described” in the complaint. J.A. at 415-16. The Doe complaint also outlines in great detail the overall fraudulent scheme and identifies the particular doctors and healthcare providers involved in it. These detailed allegations are more than sufficient to enable the named defendants to prepare a responsive pleading to the charges presented. The Doe complaint thus satisfies the pleading requirements of
Nevertheless, we note that the Doe complaint appears to be jurisdictionally barred by the FCA‘s public disclosure rule. In the same way that Poteet‘s complaint is supported by prior public disclosures, the Doe complaint also is “based upon” the publicly available Wiese complaint. Indeed, similar to Poteet‘s complaint, the primary focus of the Doe complaint is the same illegal kickback scheme described in detail in the Wiese complaint. While Doe does provide significant additional details regarding MSD‘s monetary and in-kind payments to physicians, many of Doe‘s allegations, like those in Poteet‘s complaint, are substantially similar to the allegations in the Wiese complaint. In short, the Doe complaint, just like Poteet‘s complaint, is “based upon” the public disclosures in the Wiese complaint. Moreover, the record indicates that it is unlikely that Doe can qualify as an “original source,” because the record suggests that Doe never shared his information about Medtronic and MSD with the government prior to filing his qui tam complaint. Accordingly, we conclude that, despite the fact that the Doe complaint and Poteet complaint allege all of the same essential facts concerning the fraud against the government, the Doe complaint technically cannot bar Poteet‘s complaint under the first-to-file rule.
B. Denial of Poteet‘s Requests for Discovery and an Evidentiary Hearing
In addition to challenging the district court‘s dismissal of her complaint pursuant to the FCA‘s first-to-file and public disclosure provisions, Poteet contends that the district court abused its discretion by not granting her discovery request and by failing to conduct an evidentiary hearing prior to ruling on the government‘s motion to dismiss her claims. In particular, Poteet argues that her discovery request should have been granted so that the court could “obtain factual information necessary in order to resolve the dispute.” Relator Br. at 17. Poteet further maintains that she was statutorily entitled to an evidentiary hearing under
Moreover, contrary to Poteet‘s suggestion, she was not entitled to any discovery prior to the district court‘s ruling on the government‘s motion to dismiss the complaint for lack of jurisdiction. As noted above, the basis for a federal court‘s subject matter jurisdiction over an action must be apparent from the facts existing at the time the complaint is brought. See Citizens for a Better Env‘t, 523 U.S. at 94; Smith, 354 U.S. at 93 n. 1. In determining whether the facts supported jurisdiction over Poteet‘s action, the district court did not need any evidence that was not already present in the record. To determine whether the public disclosure provision barred jurisdiction, the district court needed only to compare Poteet‘s complaint to the allegedly publicly disclosed materials, including the Wiese complaint, which the government had provided as an attachment to its motion to dismiss. See Walburn, 431 F.3d at 974. Likewise, to determine whether the first-to-file rule denied Poteet standing, the district court needed only to compare Poteet‘s complaint to the previously-filed Doe complaint, which also had been included as an attachment to the government‘s motion to dismiss. See Id. at 971. As no discovery was needed to rule on the government‘s motion to dismiss, no evidentiary hearing was warranted.
Poteet attempts to avoid this conclusion by suggesting that she was entitled to an evidentiary hearing under
For the foregoing reasons, the judgment of the district court dismissing Poteet‘s qui tam action is AFFIRMED.
McKEAGUE, Circuit Judge, concurring.
I concur in the result reached by the majority and its analysis of Poteet‘s complaint under the public disclosure rule. However, I do not agree with the majority‘s further (and entirely unnecessary) discussion of the inapplicability of the first-to-file rule. Even assuming, for the sake of argument, that the first-to-file rule only bars subsequent complaints filed after a complaint that itself is not barred by the public disclosure rule, Campbell v. Redding Med. Ctr., 421 F.3d 817, 825 (9th Cir.2005), I do not believe that the record in this case provides a sufficient factual basis for concluding that Doe did not qualify as an “original source,”
Notes
Whoever knowingly and willfully solicits or receives [or offers or pays] any remuneration (including any kickback, bribe or rebate) directly, or indirectly, overtly, or covertly, in cash or in kind . . . in return for referring an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under a Federal health care program . . . shall be guilty of a felony and upon conviction thereof, shall be fined not more than $25,000 or imprisoned for not more than five years, or both.
Springfield, 14 F.3d at 654.[I]f X + Y = Z, Z represents the allegation of fraud and X and Y represent its essential elements. In order to disclose a fraudulent transaction publicly, the combination of X and Y must be revealed, from which readers or listeners may infer Z, i.e., the conclusion that fraud has been committed. . . . [Q]ui tam actions are barred only when enough information exists in the public domain to expose the fraudulent transaction (the combination of X and Y), or the allegation of fraud (Z). When either of these conditions is satisfied, the government itself presumably can bring an action under the FCA and there is no place in the enforcement scheme for qui tam suits.