United States Ex Rel. Ondis v. City of Woonsocket

United States Court of Appeals
For the First Circuit

No. 08-2389

UNITED STATES OF AMERICA EX REL. GORDON F.B. ONDIS,

Relator, Appellant,

v.

CITY OF WOONSOCKET ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Torruella, Selya and Howard, Circuit Judges.

Leon A. Blais, with whom Blais & Parent was on brief, for
appellant.
Michael B. Galvin, with whom Justin P. O'Brien and Dwyer &
Collora LLP were on brief, for appellees.

November 18, 2009
 SELYA, Circuit Judge. Invoking the False Claims Act

(FCA), 31 U.S.C. §§ 3729-3733, a local real estate developer

brought a qui tam action against the City of Woonsocket, Rhode

Island (the City), and Mayor Susan Menard. The developer claimed,

in substance, that the City had defrauded the federal government by

making false statements to the Department of Housing and Urban

Development (HUD) when applying for federal grants.

Relying upon the FCA's public disclosure bar, the

district court dismissed the action. The developer now appeals,

raising questions of law not yet settled in this circuit regarding

the operation of the public disclosure bar. We resolve those

questions and, when all is said and done, affirm the dismissal of

the action.

I. BACKGROUND

The relator, Gordon F.B. Ondis, directly or indirectly

owns several multi-family residential complexes in Woonsocket. A

number of the dwelling units in these complexes are classified as

subsidized housing. Sometime in 2004, Mayor Menard visited one of

the relator's properties and, according to the relator, threatened

to do away with all section 8 housing.1 The relator took umbrage

and began to look into the City's housing policies. His avowed

1
"Section 8 housing" is a shorthand for housing subsidized by
the federal government under the Housing Choice Voucher Program
established pursuant to section 8 of the United States Housing Act
of 1937 as amended, 42 U.S.C. § 1437.

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objective was to ascertain whether the City was reaping a harvest

of HUD grants under false pretenses (specifically, by offering

assurances that the City would promote subsidized housing programs

when, in reality, it was trying to stifle those programs).

In the course of this probe, the relator directed his

employees to search public records, interview local developers and

others with knowledge of the City's housing policies, and obtain

documents submitted by the City to HUD.

The investigation revealed that, from 2000 to 2005, the

City received roughly $15,000,000 in HUD grants for public works

projects, social service programs, and affordable housing. The

investigators obtained the City's grant applications through a

Freedom of Information Act (FOIA) request. See 5 U.S.C. § 552.

The applications trumpeted a five-year plan, which referred to

preserving section 8 rent subsidies as a means of meeting the

City's pressing need for affordable housing.

The relator also discovered (or so he alleges) that,

during the same period, the City actually had followed a policy

that tended to restrict the spread of subsidized housing. Almost

all the specific instances that he identifies to support this

thesis were previously disclosed in daily newspapers of general

circulation in Woonsocket, namely, the Woonsocket Call and the

Providence Journal. The only additional data point unarguably came

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from the public domain — the records of a state-court suit brought

by the City against two housing partnerships.

On February 16, 2005, the relator brought a qui tam

action against the City and Mayor Menard in the United States

District Court for the District of Massachusetts. After the

federal government declined to intervene, see 31 U.S.C.

§ 3730(b)(4), the court transferred the case to the District of

Rhode Island. United States ex rel. Ondis v. City of Woonsocket

(Ondis I), 480 F. Supp. 2d 434, 438 (D. Mass. 2007).

The transferee court, in response to the defendants'

motion to dismiss for want of subject matter jurisdiction, Fed. R.

Civ. P. 12(b)(1), conducted an evidentiary hearing. Based on the

proof presented, the court dismissed the action. United States ex

rel. Ondis v. City of Woonsocket (Ondis II), 582 F. Supp. 2d 212,

214 (D.R.I. 2008). This timely appeal ensued.

II. THE STATUTORY SCHEME

The FCA allows private persons, called relators, to bring

qui tam actions on behalf of the United States against persons or

entities who knowingly submit false claims to the federal

government. 31 U.S.C. § 3730(b)(1). The United States has a right

to intervene and assume primary responsibility for prosecuting the

action. Id. § 3730(c)(1). If the United States declines to

intervene, the relator may pursue the action on its behalf. Id.

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§ 3730(b)(4). Either way, the relator is eligible to collect a

portion of any damages awarded. Id. § 3730(d).

The FCA is hedged about with conditions. Among other

things, it erects a jurisdictional bar, familiarly known as the

public disclosure bar, which may block a putative qui tam action.

Id. § 3730(e)(4). That bar is designed to foreclose qui tam

actions in which a relator, instead of plowing new ground, attempts

to free-ride by merely repastinating previously disclosed badges of

fraud. United States ex rel. Duxbury v. Ortho Biotech Prods.,

L.P., ___ F.3d ___, ___ (1st Cir. 2009) [2009 WL 2450716, at *12].

To draw an analogy from the world of entomology, the bar seeks to

prevent "parasitic" suits. United States ex rel. McKenzie v.

BellSouth Telecomms., Inc., 123 F.3d 935, 943 (6th Cir. 1997).

In this way, Congress aspired to etch "a fine line

between encouraging whistle-blowing and discouraging opportunistic

behavior." United States ex rel. S. Prawer & Co. v. Fleet Bank, 24

F.3d 320, 327 (1st Cir. 1994). For this purpose, Congress took

pains to delineate the dimensions of the public disclosure bar:

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.

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31 U.S.C. § 3730(e)(4)(A).

Based on this prescription, we have formulated a multi-

part inquiry for use in determining whether a relator has carried

his burden of negating the ubiquity of the bar in a given case. In

its initial stages, this formulation asks:

(1) whether there has been public disclosure
of the allegations or transactions in the
relator's complaint; (2) if so, whether the
public disclosure occurred in the manner
specified in the statute; [and] (3) if so,
whether the relator's suit is "based upon"
those publicly disclosed allegations or
transactions . . . .

United States ex rel. Rost v. Pfizer, Inc., 507 F.3d 720, 728 (1st

Cir. 2007). We conduct that multi-part inquiry here. If the

answer to any one of these three questions is in the negative, then

the public disclosure bar drops out of the case. If, however, the

answers to all three questions are in the affirmative, the relator

still may dismantle the public disclosure bar by showing that he

qualifies as an "original source" under 31 U.S.C. § 3730(e)(4)(B).

See Rost, 507 F.3d at 728. We deal with this possibility

separately. See infra Part III(D).

III. DISCUSSION

A district court's order of dismissal for want of subject

matter jurisdiction ordinarily engenders de novo review. Duxbury,

___ F.3d at ___ [2009 WL 2450716, at *5]; Valentin v. Hosp. Bella

Vista, 254 F.3d 358, 365 (1st Cir. 2001). When the district court

does not rule on the pleadings alone but, rather, takes evidence in

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connection with a motion to dismiss for want of subject matter

jurisdiction, the court's factual findings are reviewed for clear

error. See Valentin, 254 F.3d at 365; cf. Foster-Miller, Inc. v.

Babcock & Wilcox Can., 46 F.3d 138, 147-48 (1st Cir. 1995)

(describing varying standards of review in analogous context).

Federal courts, as courts of limited jurisdiction, must

be "scrupulous in applying the tenets that define the limits of

their subject matter jurisdiction." Gabriel v. Preble, 396 F.3d

10, 16 (1st Cir. 2005). The proponent of federal jurisdiction

bears the burden of proving its existence by a preponderance of the

evidence. See Campbell v. Gen. Dynamics Gov't Sys. Corp., 407 F.3d

546, 551 (1st Cir. 2005); see also 31 U.S.C. § 3731(d).

With these guideposts in place, we embark on a sequential

appraisal of the three Rost factors described above. Then, we take

up the "original source" exception and a disputed evidentiary

ruling.

A. Disclosure.

We start with the question of whether, prior to

commencement of this action, there was a public disclosure of the

transactions chronicled in the relator's complaint.

For the purpose of the FCA, public disclosure occurs when

the essential elements exposing the particular transaction as

fraudulent find their way into the public domain. United States ex

rel. Feingold v. AdminaStar Fed., Inc., 324 F.3d 492, 495 (7th Cir.

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2003); United States ex rel. Springfield Term. Ry. Co. v. Quinn, 14

F.3d 645, 654 (D.C. Cir. 1994). "[T]he disclosure must reveal both

the misrepresented state of facts and the true state of facts so

that the inference of fraud may be drawn." United States ex rel.

Mistick PBT v. Hous. Auth. of Pittsburgh, 186 F.3d 376, 385 (3d

Cir. 1999); accord Minn. Ass'n of Nurse Anesthetists v. Allina

Health Sys. Corp., 276 F.3d 1032, 1044 (8th Cir. 2002). The two

states of facts may come from different sources, as long as the

disclosures together lead to a plausible inference of fraud. See

United States ex rel. Poteet v. Medtronic, Inc., 552 F.3d 503, 512

(6th Cir. 2009); see also United States ex rel. Reagan v. E. Tex.

Med. Ctr. Reg'l Healthcare Sys., 384 F.3d 168, 175 (5th Cir. 2004).

Against this backdrop, our initial task is to determine

whether both the City's alleged misrepresentation (that it would

promote subsidized housing) and what the relator alleges was the

City's true plan (that it would strive to curtail or eliminate

subsidized housing) were sufficiently in the public domain to

ground an inference of fraud.

The relator wisely concedes that the events disclosing

the City's opposition to subsidized housing, which he contends

reflected the City's actual housing policy, were publicized in

widely circulated newspaper articles and, thus, were in the public

domain. See Appellant's Br. at 8-9. He insists, however, that the

City's insincere promise to promote subsidized housing was kept

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under wraps and never publicly disclosed. This, then, is the bone

of contention.

This quandary turns on the fact that the City's promise

to promote subsidized housing only became evident from HUD's

response to the relator's FOIA request. Whether a response to a

FOIA request constitutes a public disclosure within the purview of

the FCA is a question of first impression in this circuit.2 See

Rost, 507 F.3d at 728 n.5 (leaving the question open).

Nevertheless, we do not write on a pristine page. Other

courts have answered this question in the affirmative. See, e.g.,

United States ex rel. Grynberg v. Praxair, Inc., 389 F.3d 1038,

1051 (10th Cir. 2004) ("It is generally accepted that a response to

a request under the FOIA is a public disclosure."); Reagan, 384

F.3d at 176 (similar); Mistick, 186 F.3d at 383 (similar). We

agree with these courts.

We have stated that the "public disclosure" requirement

is satisfied when there is "some act of disclosure to the public

outside of the government." Rost, 507 F.3d at 728. Responding to

a FOIA request constitutes such an act. See Mistick, 186 F.3d at

383 (noting that, under the FOIA, "'[e]ach agency shall make

available to the public' certain specified categories of

2
There is a related, and equally novel, question as to
whether a response to a FOIA request satisfies the second prong of
the Rost formulation. We will return to that question shortly.
See infra Part III(B).

-9-
information" (emphasis and alteration in original) (quoting 5

U.S.C. § 552(a))). The Supreme Court reached this conclusion in an

analogous context. See Consumer Prod. Safety Comm'n v. GTE

Sylvania, Inc., 447 U.S. 102, 108-09 (1980) ("[A]s a matter of

common usage the term 'public' is properly understood as including

persons who are FOIA requesters. A disclosure pursuant to the FOIA

would thus seem to be most accurately characterized as a 'public

disclosure' . . . ."). Finding this reasoning easily transferable

to the jurisprudence of the FCA, we hold that a response to a FOIA

request is an act of public disclosure because the response

disseminates (and, thus, discloses) information to members of the

public (and, thus, outside the government's bailiwick).

In this case, it is uncontested that the City's alleged

misrepresentation was disclosed, prior to suit, in HUD's response

to the relator's FOIA request. This fact, taken in conjunction

with the publication of what the relator admits were the relevant

indicia of the City's true housing policy in the local press, means

that all the essential elements of the alleged fraud were in the

public domain before the relator started suit. We may, therefore,

check the first Rost factor off the list.

B. Source.

The FCA's public disclosure bar further requires that the

disclosure emanate from a source specified in the statute. See 31

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U.S.C. § 3730(e)(4)(A); see also United States ex rel. LeBlanc v.

Raytheon Co., 913 F.2d 17, 20 (1st Cir. 1990).

The airing of the events that are said to reflect the

City's true housing policy, published in the Woonsocket Call and

the Providence Journal, constitutes a disclosure "from the news

media" and, thus, a disclosure from a listed source. See 31 U.S.C.

§ 3730(e)(4)(A). It is less clear whether the disclosure of the

City's allegedly false promise, which came about through the FOIA

response, falls within the compendium of sources listed in section

3730(e)(4)(A). Although this circuit has not yet answered that

question, two data points lead us to conclude that such a response

is an "administrative . . . report" and, thus, falls within the

taxonomy of section 3730(e)(4)(A).

First, it cannot be gainsaid that responding to a FOIA

request constitutes an administrative action. After all, the

response originates with a federal agency, and its transmission to

the requestor constitutes official government action. See

generally 5 U.S.C. § 552(a)(3) (describing agency's

responsibilities upon receipt of FOIA request). Second, a FOIA

response is a report, at least in the sense that it constitutes an

official statement concerning the results of the agency's search of

its files. See id. Given these data points, there is a logical

basis for concluding that a FOIA response is an "administrative

. . . report" within the meaning of section 3730(e)(4)(A). Several

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courts have so held. See, e.g., Grynberg, 389 F.3d at 1049;

Reagan, 384 F.3d at 176; Mistick, 186 F.3d at 383-84.

The Ninth Circuit, however, has reached a different

conclusion. See United States v. Cath. Healthcare W., 445 F.3d

1147 (9th Cir. 2006). That court suggested that whether a response

to a FOIA request triggers the public disclosure bar depends on the

nature of the document retrieved by means of the request: unless

the underlying document itself emanates from a source enumerated in

section 3730(e)(4)(A), the second prong of the public disclosure

bar is not satisfied. Id. at 1153. The court reasoned that a FOIA

response could not categorically qualify as an administrative

report because such a characterization "denotes a document that

includes an analysis of findings," and responding to a FOIA request

"requires little more than duplication" of an agency's files. Id.

We see no reason to narrow the definition of "report" so

drastically. After all, the word "report" is typically defined as

"something that gives information." Webster's Third New Int'l

Dict. 1925 (2002). The result of an agency's search of its files

in response to a FOIA request fits comfortably within this broad

definition. See Mistick, 186 F.3d at 383-84 & n.4.

To cinch matters, the Ninth Circuit's interpretation

fails to lend any independent significance to the act of responding

to a FOIA request. Just as transmittal of the FOIA response to the

relator constitutes an act of public disclosure, the end product of

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the government's search (locating and compiling the requested

documents) independently constitutes an administrative report — and

this is so regardless of the character of the underlying documents.

The Ninth Circuit also expressed concern that if a FOIA

response is categorically deemed an administrative report, it would

deter individuals from either making FOIA requests or

investigating suspected fraud. Cath. Healthcare, 445 F.3d at 1155

n.5. This is pure speculation — and speculation that ignores

legislative intent. Congress plainly intended the FCA "to

encourag[e] lawsuits by relators who have firsthand knowledge of

fraud against the government." Glaser v. Wound Care Consultants,

Inc., 570 F.3d 907, 910 (7th Cir. 2009) (emphasis supplied). An

individual who obtains information through FOIA disclosures in

order to uncover fraud is not a person with firsthand knowledge

(and, thus, not a person whom Congress chose to reward under the

FCA).

To say more on this point would be supererogatory. For

these reasons, we reject the Ninth Circuit's interpretation of

"administrative . . . report,3 adopt the majority view, and hold

3
At the possible expense of carting coal to Newcastle, we add
that, as the district court observed, the decision in Catholic
Heathcare is premised on the notion that in responding to a FOIA
request an agency "need not assimilate the information contained in
the requested documents." Ondis II, 582 F. Supp. 2d at 218
(quoting Cath. Healthcare, 445 F.3d at 1155). The district court
found the instant case "readily distinguishable" because the
relator "alleged that HUD not only 'assimilated' the defendants'
statements in their application regarding 'affordable housing' but

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that a FOIA response is an administrative report within the purview

of the FCA. The second Rost requirement is, therefore, satisfied.

C. Basis.

Because the relator's allegations track facts that were

publicly disclosed prior to suit through specified sources, we are

left with the last piece of the tripartite puzzle: whether the

relator's qui tam action is "based upon" those disclosures. This

inquiry, too, demands that we answer a question of first impression

in this circuit.

The courts are divided over the meaning of the phrase

"based upon" as that phrase is used in the FCA. The majority view

holds that as long as the relator's allegations are substantially

similar to information disclosed publicly, the relator's claim is

"based upon" the public disclosure even if he actually obtained his

information from a different source. See, e.g., United States ex

rel. Meyer v. Horizon Health Corp., 565 F.3d 1195, 1199 (9th Cir.

2009); Grynberg, 389 F.3d at 1051; Minn. Ass'n of Nurse

Anesthetists, 276 F.3d at 1047; Mistick, 186 F.3d at 388; McKenzie,

123 F.3d at 940; United States ex rel. Findley v. FPC-Boron

Employees' Club, 105 F.3d 675, 683 (D.C. Cir. 1997); Cooper v. Blue

Cross & Blue Shield of Fl., Inc., 19 F.3d 562, 567 (11th Cir.

1994); United States ex rel. Doe v. John Doe Corp., 960 F.2d 318,

that HUD actually relied on those statements in awarding [the]
grants in question." Id. We agree with this assessment.

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324 (2d Cir. 1992). A few courts have interpreted the phrase more

narrowly, requiring proof that the relator's allegations are

actually derived from the publicly disclosed information. See

United States v. Bank of Farmington, 166 F.3d 853, 864 (7th Cir.

1999); United States ex rel. Siller v. Becton Dickinson & Co., 21

F.3d 1339, 1347-48 (4th Cir. 1994). Earlier this year, however,

the tilt in favor of the majority view grew more pronounced; the

Seventh Circuit switched from the minority to the majority

position. See Glaser, 570 F.3d at 910. This leaves the Fourth

Circuit alone among the courts of appeals in favoring a narrow

reading of the "based upon" language.

Having examined this split, we conclude that the majority

view is correct. While the Fourth Circuit's interpretation draws

some sustenance from the phrase itself, see Siller, 21 F.3d at 1348

(relying on dictionary definition of "base upon" as meaning "to use

as a base or basis for"), there are situations in which rigid

adherence to semantic orthodoxy must yield to common sense. This

is such a situation: the construction of "based upon" spawned by

the Fourth Circuit is highly suspect because it renders the FCA's

"original source" provision superfluous. We explain briefly.

The FCA pretermits suits "based upon the public

disclosure of allegations or transactions . . . unless . . . the

person bringing the action is an original source of the

information." 31 U.S.C. § 3730(e)(4)(A). For purposes of this

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exception, the statute defines an "original source" as "an

individual who has direct and independent knowledge of the

information on which the allegations are based." Id.

§ 3730(e)(4)(B).4 If, as the Fourth Circuit suggests, a relator's

allegations actually must be derived from a public disclosure in

order to trigger the jurisdictional bar, then the relator's

knowledge never could be independent of that disclosure.

Consequently, the relator could not under any circumstances be an

original source. See Glaser, 570 F.3d at 916; United States ex

rel. Biddle v. Bd. of Trs. of the Leland Stanford, Jr. Univ., 161

F.3d 533, 538 (9th Cir. 1998); Findley, 105 F.3d at 683.

There is no principled way in which we can read the

"original source" exception out of the statute. Doing so would be

contrary to the venerable canon of statutory construction that

requires courts, whenever possible, to give meaning to every word

and phrase contained in the text of a statute. Corley v. United

States, 129 S. Ct. 1558, 1566 (2009); Aguilar v. U.S. Immig. &

Customs Enf., 510 F.3d 1, 10 (1st Cir. 2007). Respect for this

canon is one of the main reasons why, upon revisiting the question,

the Seventh Circuit reversed its field. See Glaser, 570 F.3d at

916.

4
We discuss the original source exception in greater detail
infra.

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 More broadly, the Fourth Circuit's view does not further

the policies that undergird the FCA. Congress designed the law to

"encourag[e] lawsuits by relators who have firsthand knowledge of

fraud against the government." Id. at 910. When the material

elements of a fraud are already in the public domain, the

government has no need for a relator to bring the matter to its

attention. See Biddle, 161 F.3d at 539; Findley, 105 F.3d at 685.

To achieve its real purpose, the FCA should reward only those who

come forward with original, direct, and independent knowledge of a

fraud. See Biddle, 161 F.3d at 539.

We think it follows that the majority view of the meaning

of "based upon," rather than the minority view, comports with the

overall structure and purpose of the FCA. Accordingly, we hold

that the "based upon" requirement is satisfied when the relator's

allegations are substantially similar to allegations or

transactions already in the public domain at the time he brings his

qui tam action. This holding precludes qui tam actions that merely

parrot previously disclosed allegations or transactions (unless the

relator is an original source).

In the case at hand, the relator insists that he did not

base his claim on the newspaper accounts that indicated the City's

true housing policy but, rather, on his own private investigation.

Even so, the relevant allegations in the relator's complaint bear

a substantial similarity to what was journalistically disclosed.

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Likewise, the relator's claim that the City represented to HUD that

it would welcome section 8 housing is substantially similar

(indeed, identical) to the disclosures made in HUD's FOIA response.

In contemplation of law, then, the relator's qui tam action was

"based upon" previous public disclosures from statutorily

enumerated sources. No more is exigible to trigger the public

disclosure bar.

D. The Exception.

There is an escape hatch from the public disclosure bar,

available to relators who qualify as original sources. 31 U.S.C.

§ 3730(e)(4)(A). The statute defines an "original source" as:

[A]n individual who has direct and independent
knowledge of the information on which the
allegations are based and has voluntarily
provided the information to the Government
before filing an action under this section
which is based on the information.

Id. § 3730(e)(4)(B). It is thus apparent that a relator, in order

to qualify as an original source, must have both direct and

independent knowledge of the information upon which his allegations

are based. See Glaser, 570 F.3d at 921; Minn. Ass'n of Nurse

Anesthetists, 276 F.3d at 1048.

The Supreme Court recently held that "the 'information'

to which [section 3730(e)(4)(B)] speaks is the information upon

which the relator's allegations are based." Rockwell Int'l Corp.

v. United States, 549 U.S. 457, 470-71 (2007) (emphasis supplied).

Thus, the appropriate inquiry in an FCA case is whether the relator

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had direct and independent knowledge of the information upon which

his own allegations were based.

1. Direct Knowledge. We begin with whether the relator

had direct knowledge of the information upon which he based his

claim. "Direct" is defined as "marked by absence of an intervening

agency, instrumentality, or influence: immediate." Webster's Third

New Int'l Dict., supra, at 640. Several courts have transplanted

this sort of definition into the FCA. See, e.g., Minn. Ass'n of

Nurse Anesthetists, 276 F.3d at 1048; Springfield, 14 F.3d at 656;

United States ex rel. Stinson, Lyons, Gerlin & Bustamante, P.A. v.

Prudential Ins. Co., 944 F.2d 1149, 1160 (3d Cir. 1991). We agree

that this definition signifies the proper meaning of "direct" as

that word is used in the FCA.

In this instance, the relator's knowledge was based on a

private investigation, which consisted of directing his employees

to review public records and interview third parties. A relator is

not disqualified as an original source merely because his agents

assisted in the investigation into the alleged fraud.5 Here,

however, the relator's knowledge was simply a compilation of

publicly disclosed information. Knowledge that is based on

5
The district court found that the relator did not have
direct knowledge in part because his employees, rather than he
himself, conducted investigatory steps. Ondis II, 582 F. Supp. 2d
at 220. We disagree with this aspect of the district court's
reasoning. Merely because a person acts through agents does not
necessarily render his knowledge indirect. See Minn. Ass'n of
Nurse Anesthetists, 276 F.3d at 1049.

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research into public records, review of publicly disclosed

materials, or some combination of these techniques is not direct.

See Reagan, 384 F.3d at 178-79; United States ex rel. Barth v.

Ridgedale Elec., Inc., 44 F.3d 699, 703 (8th Cir. 1995).

2. Independent Knowledge. The relator also failed to

show that he possessed independent knowledge. Virtually by

definition, a relator whose knowledge is dependent upon the public

disclosure of allegedly fraudulent transactions cannot be said to

have independent knowledge of the fraud. See Glaser, 570 F.3d at

921; Minn. Ass'n of Nurse Anesthetists, 276 F.3d at 1048; Mistick,

186 F.3d at 389; Barth, 44 F.3d at 703; Springfield, 14 F.3d at

656.

In this instance, the relator, whatever he may have

suspected, would not have learned of the City's alleged

misrepresentations to HUD but for the response to his FOIA request.

Thus, the relator lacked independent knowledge.

In an effort to dodge this bullet, the relator asserts

that his background and experience as a developer of section 8

housing gave him a unique insight into the fraud that the City was

perpetrating on the federal government. This is whistling past the

graveyard.

"If a relator merely uses his or her unique expertise or

training to conclude that the material elements already in the

public domain constitute a false claim, then a qui tam action

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cannot proceed." Findley, 105 F.3d at 688. Expertise that enables

a relator to understand the significance of publicly disclosed

information, without more, is insufficient to qualify him as an

original source. See id.; see also United States ex rel. Fried v.

W. Indep. Sch. Dist., 527 F.3d 439, 443 (5th Cir. 2008).

For these reasons, the relator does not qualify for the

original source exception.

E. Exclusion of Evidence.

A loose end remains. The relator contends that the

district court erred in precluding certain testimony during the

evidentiary hearing. We review this contention for abuse of

discretion. See Pike v. Guarino, 492 F.3d 61, 70 (1st Cir. 2007)

(explaining that decisions about the scale and scope of an

evidentiary hearing are subject to review for abuse of discretion);

see also Valentin, 254 F.3d at 364 (noting that "when a factbound

jurisdictional question looms, a court must be allowed considerable

leeway in weighing the proof, drawing reasonable inferences, and

satisfying itself that subject-matter jurisdiction has attached").

In a nutshell, the relator wanted to have two witnesses

— one of his lawyers and the mayor of a neighboring community —

"corroborate" his testimony as to why his background qualified him

as an original source. Additionally, he sought, at the end of the

hearing, to call Mayor Menard and other Woonsocket planning

officials to show that the allegations in his complaint had not

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been widely appreciated. The district court determined, however,

that the testimony of witnesses other than the relator himself was

irrelevant to the jurisdictional issue; that is, to establishing

what facts, not publicly disclosed, the relator obtained or why he

was an original source. We discern no abuse of discretion in this

ruling.

A trial court has considerable latitude in making

relevancy determinations. United States v. Tierney, 760 F.2d 382,

387 (1st Cir. 1985). Here, the relator failed to advance any

convincing rationale either as to why the proffered testimony was

needed or how it would be probative vis-à-vis the jurisdictional

issue.

Moreover, the record dashes any hope of such a showing.

The proffered testimony of the municipal officials could not have

supported the relator's claim of non-disclosure because that

testimony would not have contradicted the fact that the newspaper

articles had been published, the fact that the FOIA response was

requested and received, or the fact that these submissions, taken

together, conclusively established public disclosure from

statutorily enumerated sources. By the same token, the proffered

testimony anent the relator's background and experience would have

been irrelevant because, as stated earlier, the relator's expertise

in the field of subsidized housing is not enough to bring him

within the original source exception. Given those verities, we

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cannot say that the court below misused its wide discretion. See,

e.g., Richards v. Relentless, Inc., 341 F.3d 35, 49-50 (1st Cir.

2003) (finding no abuse of discretion where appellant failed to

explain the relevance of excluded evidence).

If more is needed — and we doubt that it is — the

district court did not base its ultimate decision on the relator's

credibility but, rather, on the fact that his testimony, even if

true, did not show him to be an original source. Ondis II, 582 F.

Supp. 2d at 220. Consequently, the excluded testimony, which was

proffered for corroboration, was cumulative at best. The exclusion

of cumulative testimony, if error at all, would be harmless. See,

e.g., Ahern v. Scholz, 85 F.3d 774, 786 (1st Cir. 1996).

IV. CONCLUSION

We need go no further. For the reasons elucidated above,

the district court did not err in concluding that the FCA's public

disclosure bar applied to divest it of subject matter jurisdiction

over this action.

Affirmed.

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