[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14642 ELEVENTH CIRCUIT
________________________ AUGUST 26, 2011
JOHN LEY
CLERK
D.C. Docket No. 3:06-cv-00016-CDL
UNITED STATES OF AMERICA,
ex rel., et al.,
Plaintiffs,
DAVID L. LEWIS, Ph.D,
R.A. MCELMURRAY, III,
G. WILLIAM BOYCE,
Plaintiffs-Appellants,
versus
JOHN WALKER, Ph.D.,
JULIA W. GASKIN,
ROBERT B. BROBST,
WILLIAM P. MILLER, Ph.D.,
E. WILLIAM TOLLNER, Ph.D., et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(August 26, 2011)
Before HULL and FAY, Circuit Judges, and VINSON,* District Judge.
PER CURIAM:
David Lewis, R.A. McElmurray III and G. William Boyce (collectively
“Relators”) appeal the District Court’s order dismissing their qui tam action for
lack of subject matter jurisdiction. The District Court found that the documents
obtained by Relators, which form the basis of the qui tam action, were gathered
through Freedom of Information Act (“FOIA”) and Georgia Open Records Act
(“GORA”) requests and therefore fell within the public disclosure bar of the False
Claims Act (“FCA”). After careful review of the record and counsels’ briefs we
affirm.
I. BACKGROUND
On February 17, 2006, Appellants/Relators filed suit against several
individuals employed by the United States Environmental Protection Agency, the
*
The Honorable Clyde Roger Vinson, United States District Court for the Northern
District of Florida, sitting by designation.
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University of Georgia and the University of Georgia Research Foundation.
Relators claimed that the individuals, Appellees, provided false information to the
United States government in order to obtain research funds to investigate a variety
of reported sewage sludge incidents on local Georgia farms, in violation of the
False Claims Act, 31 U.S.C. § 3729 et seq. Appellees filed various motions to
dismiss which were all denied. On September 25, 2009, after extensive discovery,
Appellees filed motions for summary judgment. On September 8, 2010, the
District Court entered an order dismissing the case for lack of subject matter
jurisdiction. The District Court held that all documents obtained through FOIA or
GORA are considered “publically disclosed” for purposes of the FCA’s public
disclosure bar. Therefore, because Relators were not the “original source” of these
documents, the District Court lacked jurisdiction. On October 5, 2010, Relators
filed this timely appeal.
II. DISCUSSION
We review the District Court’s dismissal of an action for lack of subject
matter jurisdiction de novo. Pillow v. Bechtel Constr., Inc., 201 F.3d 1348, 1351
(11th Cir. 2000). When the determination of subject matter jurisdiction requires
the Court to look at matters beyond the face of the complaint, the Court applies an
analysis similar to the summary judgment standard. Lawrence v. Dunbar, 919
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F.2d 1525, 1530 (11th Cir. 1990) (courts should apply “a Rule 56 summary
judgment standard when ruling on a motion to dismiss which asserts a factual
attack on subject matter jurisdiction”). This Court applies a three part inquiry to
determine if subject matter jurisdiction over a qui tam FCA claim exists: “(1) have
the allegations made by the plaintiff been publicly disclosed; (2) if so, is the
disclosed information the basis of the plaintiff's suit; (3) if yes, is plaintiff an
‘original source’ of that information.” McElmurray v. Consol. Gov’t of Augusta-
Richmond Cnty., 501 F.3d 1244, 1252 (11th Cir. 2007) (citing Battle v. Bd. of
Regents, 468 F.3d 755, 762 (11th Cir. 2006) (quoting Cooper v. Blue Cross &
Blue Shield of Fla., 19 F.3d 562, 565 n.4 (11th Cir. 1994))).
Appellants argue that the District Court erred in determining that documents
obtained through the FOIA and GORA requests were “publically disclosed” for
purposes of the FCA, thus barring the qui tam action. The FCA bars private
parties from bringing qui tam suits based upon information that has been publicly
disclosed “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 person bringing the action is
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the original source of the information.” 31 U.S.C. § 3730(e)(4)(A).1 Appellants
contend that the holding in United States ex rel. Kirk v. Schindler Elevator Corp.,
601 F.3d 94 (2d Cir. 2010) is directly on point, and that because Kirk has been
granted certiorari by the United States Supreme Court, an affirmance by the
Supreme Court would require reversal of the District Court in this case.2 Because
the Supreme Court decided the public disclosure issue in Appellees’ favor,
reversing the Second Circuit’s decision in Kirk, we affirm.
Appellants based a large part of their argument on Kirk, and on the
assumption that the Supreme Court would affirm that an agency’s written response
to a FOIA request was not a “report” for purposes of the FCA’s public disclosure
bar to bringing certain qui tam actions. However, in Schindler Elevator Corp. v.
United States ex rel. Daniel Kirk, -- U.S. --, 131 S. Ct. 1885 (2011), the Supreme
Court reversed the Second Circuit’s ruling and found that a federal agency’s
written response to a FOIA request for records constitutes a “report” within the
1
On March 23, 2010, the President signed the Patient Protection and Affordable Care Act,
which, among many other things, amended 31 U.S.C. § 3730(e)(4). See Pub. L. No. 111-148,
§ 10104(j)(2), 124 Stat. 901 (2009). Because Congress did not make this § 3730(e)(4)
amendment retroactive to pending cases, we apply the prior version of § 3730(e)(4) that was in
effect when Appellants filed their FCA claim. See Graham Cnty. Soil & Water Conservation
Dist. v. United States ex rel. Wilson, ___ U.S. ___, 130 S. Ct. 1396, 1400 n.1 (2010).
2
Appellants’ Brief was filed November 16, 2010. The Supreme Court heard argument in
Kirk on March 1, 2011, and issued its opinion on May 16, 2011.
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meaning of the FCA’s public disclosure bar. Thus, the Court found that such
information was publicly disclosed. Applying the Supreme Court’s decision in
Kirk to the facts of this case, it is clear that the information Appellants obtained
through their FOIA and GORA requests falls within the FCA’s public disclosure
bar. Therefore, the information cannot support a qui tam action by Appellants
unless Appellants fall under the “original source” exception. See McElmurray,
501 F.3d at 1251-52.
The FCA defines an “original source” as an “individual who has direct and
independent knowledge of the information on which the allegations are
based . . . .” 31 U.S.C. § 3730(e)(4)(B). Here, Appellants obtained their
information through FOIA and GORA requests, previous litigation, government
reports and a journal article. There is no indication in the record that Appellants
had independent, undisclosed knowledge of any information regarding the alleged
fraud. Toward the end of Appellants’ brief, which was based almost entirely on
the assumption that Kirk would be decided in their favor, Appellants make the
conclusory assertion that they were the “original source” of the information and
therefore it would not matter whether the information was ultimately held to be
publicly disclosed under Kirk. Appellants cite no evidence to support this
contention. Rather, it appears that Appellants reconstructed what they believed to
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be the contents of the subject grant application, which was never provided nor
publicly disclosed, from documents provided in response to GORA. Thus,
Appellants claim that their compilation of the publicly disclosed information to
reconstruct the grant application was independent information for which they were
the original source.
The problem with this argument is that, based on the Supreme Court’s
ruling in Kirk, the GORA information that Appellants used to reconstruct the grant
application is publicly disclosed, and Appellants point to no additional
information which they held directly or independently of the public disclosures.
The information which Appellants purportedly used to “compile” the grant
application was available to anyone who wished to use it for the same purpose.
Appellants further argue that they are the original source because, were it not for
the lawsuits they filed in 1998, the grant application and related study would never
have existed. Appellants’ “but for” argument, however, does not establish that
they were the “original source” of the information. See United States ex rel.
Dhawan v. N.Y. Med. Coll., 252 F.3d 118, 121 n. 3 (2d Cir. 2001) (remarking that,
even if the government would not have performed an audit “but for plaintiff’s
request for an audit, this allegation would not suffice to show that they were the
source of the core information”) (emphasis in original); United States ex rel.
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Hafter v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1163 (10th Cir. 1999)
(concluding that where “most of the core information contained in the . . .
complaint came from [a third party’s] independent research and investigation,” the
plaintiff’s claim that it “provided the initial impetus for [the third party’s]
investigation” did not support a conclusion that the plaintiff was the “original
source” of the information). Appellants did not have or provide any original
information beyond what was publicly disclosed.
Because Appellants are not the “original source” of the information upon
which their qui tam action is based, and because, under Kirk, the information is
considered publicly disclosed, Appellants’ qui tam action is barred. The District
Court, therefore, correctly dismissed this qui tam action for lack of jurisdiction.
AFFIRMED.
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