UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1322
UNITED STATES OF AMERICA ex rel. KAREN T. WILSON,
Plaintiff - Appellant,
v.
GRAHAM COUNTY SOIL & WATER CONSERVATION DISTRICT; CHEROKEE
COUNTY SOIL & WATER CONSERVATION DISTRICT; RICHARD GREENE,
in his individual capacity; WILLIAM TIMPSON, in his
individual capacity; KEITH ORR, in his individual and
official capacities; RAYMOND WILLIAMS, in his individual
capacity; DALE WIGGINS, in his individual capacity; GERALD
PHILLIPS, in his individual capacity; ALLEN DEHART, in his
individual capacity; LLOYD MILLSAPS; JERRY WILLIAMS, in his
individual capacity; BILLY BROWN, in his individual
capacity; LYNN CODY, in his individual capacity; BILL
TIPTON; C. B. NEWTON, in his individual capacity; EDDIE
WOOD, in his individual capacity; GRAHAM COUNTY,
Defendants – Appellees,
and
GRAHAM COUNTY BOARD OF COUNTY COMMISSIONERS; CHEROKEE COUNTY
BOARD OF COUNTY COMMISSIONERS; CHERIE GREENE; RICKY STILES;
BETTY JEAN ORR; JOYCE LANE; JIMMY ORR; EUGENE MORROW;
CHARLES LANE; CHARLES LANEY; GEORGE POSTELL; LLOYD
KISSLEBURG; TED ORR; BERNICE ORR; JOHN DOE, JR.; JOHN DOE
CORPORATION; GOVERNMENTAL ENTITIES, 1-99,
Defendants.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 08-304)
Submitted: May 24, 2010 Decided: October 1, 2010
Before TRAXLER, Chief Judge, and MOTZ and DUNCAN, Circuit
Judges.
Remanded with instructions by unpublished per curiam opinion.
ARGUED: Mark Tucker Hurt, Abingdon, Virginia, for United States
of America ex rel. Karen T. Wilson. Christopher G. Browning,
Jr., Solicitor General, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina; Zeyland G. McKinney, Jr., Robbinsville,
North Carolina, for Graham County Soil & Water Conservation
District, Cherokee County Soil & Water Conservation District,
Richard Greene, in his individual capacity, William Timpson, in
his individual capacity, Keith Orr, in his individual and
official capacities, Raymond Williams, in his individual
capacity, Dale Wiggins, in his individual capacity, Gerald
Phillips, in his individual capacity, Allen Dehart in his
individual capacity, Lloyd Millsaps, Jerry Williams, in his
individual capacity, Billy Brown, in his individual capacity,
Lynn Cody, in his individual capacity, Bill Tipton, C. B.
Newton, in his individual capacity, Eddie Wood, in his
individual capacity, Graham County. ON BRIEF: Roy Cooper,
Attorney General, Raleigh, North Carolina, for Graham County
Soil & Water Conservation District, Gerald Phillips, Allen
Dehart, Lloyd Millsaps, Cherokee County Soil & Water
Conservation District, Bill Tipton, C. B. Newton and Eddie Wood;
Sean F. Perrin, WOMBLE, CARLYLE, SANDRIDGE & RICE, P.L.L.C.,
Charlotte, North Carolina, for Graham County, Raymond Williams,
Dale Wiggins and Lynn Cody; Roy Patton, Canton, North Carolina,
for Richard Green and Billy Brown.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
This case is before us after a remand from the Supreme
Court. In a previous opinion, we concluded that the public-
disclosure bar of the False Claims Act, see 31 U.S.C.A. §
3730(e)(4) (West 2003), * “applies to federal administrative
audits, reports, hearings or investigations, but not to those
conducted or issued by a state or local governmental entity.”
United States ex rel. Wilson v. Graham County Soil & Water Cons.
Dist., 528 F.3d 292, 296 (4th Cir. 2008). We therefore reversed
the decision of the district court and remanded for
consideration of certain specified issues. The Supreme Court
granted certiorari and reversed, concluding that the public-
disclosure bar is not limited to federal reports and audits, but
also applies to reports, audits, and the like conducted or
issued by state and local governments. See Graham County Soil &
Water Cons. Dist. v. United States ex rel. Wilson, 130 S. Ct.
1396, 1400 (2010). The Supreme Court’s opinion, of course,
establishes the scope of the public-disclosure bar. The Court’s
opinion, however, does not affect our previously expressed view
*
Although § 3730(e)(4) was amended effective March 23,
2010, the amendments are not retroactive. See Graham County
Soil & Water Cons. Dist. v. United States ex rel. Wilson, 130 S.
Ct. 1396, 1400 n.1 (2010).
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that a remand to the district court is required before we can
consider the substance of Wilson’s claims.
As is relevant to this case, the public-disclosure bar
strips courts of jurisdiction over FCA actions that are “based
upon the public disclosure of allegations or transactions . . .
in a congressional, administrative, or Government Accounting
Office report, hearing, audit, or investigation.” 31 U.S.C.A. §
3730(e)(4)(A); see Rockwell Int’l Corp. v. United States, 549
U.S. 457, 468-69 (2007) (explaining that § 3730(e)(4)(A)
deprives courts of subject-matter jurisdiction over FCA claims
that fall within the scope of the public disclosure bar). As
noted in our prior opinion, the district court did not make the
necessary factual findings to establish that Wilson’s claims
were “based upon” any of the reports at issue in this case. See
31 U.S.C.A. § 3730(e)(4)(A) (West 2003). The district court
likewise failed to make the requisite findings to establish that
the reports at issue were in fact publicly disclosed. See,
e.g., United States ex rel. Ramseyer v. Century Healthcare
Corp., 90 F.3d 1514, 1521 (10th Cir. 1996) (“The mere possession
by a person or an entity of information pertaining to fraud,
obtained through an independent investigation and not disclosed
to others, does not amount to ‘public disclosure.’ Rather,
public disclosure occurs only when the allegations or fraudulent
transactions are affirmatively provided to others not previously
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informed thereof.”). Given the jurisdictional nature of the
public-disclosure bar, these subsidiary issues must be resolved
before we can proceed to consider the merits of the Wilson’s FCA
claims.
Accordingly, we must remand the case to give the district
court the opportunity to make the necessary factual
determinations as to whether the relevant federal, state, or
local governmental audits, reports, hearings, or investigations
were publicly disclosed and whether the claims Wilson asserts in
this action were derived from any such public disclosures. If
the court determines that any of the relevant reports were
publicly disclosed and that any of Wilson’s claims were derived
from those public disclosures, the court should then reconsider
whether Wilson qualifies as an original source for any of those
claims.
As we noted in our prior opinion, the district court must
consider and address these jurisdictional questions on a claim-
by-claim basis. See Rockwell, 549 U.S. at 476 (2007); United
States ex rel. Boothe v. Sun Healthcare Group, Inc., 496 F.3d
1169, 1177 (10th Cir. 2007). If the district court determines
that it has subject matter jurisdiction over any of Wilson’s
claims, it may then proceed to consider the merits of the claims
over which it has jurisdiction.
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On remand, the district court shall permit the parties to
submit additional evidence as may be necessary for the court to
make the factual determinations upon which the jurisdictional
questions turn. If the district court again concludes that the
public-disclosure bar applies and deprives the court of subject
matter jurisdiction over Wilson’s claims, the court should not
consider the merits of her claims. However, if the district
court concludes that it has jurisdiction over some or all of
Wilson’s claims, the court may then consider the merits of the
claims over which it has jurisdiction. If the district court
rejects Wilson’s claims on jurisdictional grounds or on the
merits, it should again consider the defendants’ requests for
attorneys’ fees. Nothing in our mandate should be understood as
precluding the district court from considering the merits of
Wilson’s claims anew or, if the court deems it appropriate,
permitting the parties to submit additional evidence or argument
supporting their claims.
REMANDED WITH INSTRUCTIONS
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