Walburn v. Lockheed Martin Corp. ( 2005 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0479p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellant, -
JEFF WALBURN,
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No. 04-3458
v.
,
>
LOCKHEED MARTIN CORPORATION; LOCKHEED -
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Defendants-Appellees. -
MARTIN UTILITY SERVICES, INC.,
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N
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 02-01109—Edmund A. Sargus, Jr., District Judge.
Argued: April 28, 2005
Decided and Filed: December 20, 2005
Before: SUHRHEINRICH, BATCHELDER, and GIBSON, Circuit Judges.*
_________________
COUNSEL
ARGUED: Steve J. Edwards, Grove City, Ohio, for Appellant. Glenn V. Whitaker, VORYS,
SATER, SEYMOUR & PEASE, Cincinnati, Ohio, for Appellee. ON BRIEF: Steve J. Edwards,
Grove City, Ohio, for Appellant. Glenn V. Whitaker, VORYS, SATER, SEYMOUR & PEASE,
Cincinnati, Ohio, for Appellee.
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OPINION
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JOHN R. GIBSON, Circuit Judge. Relator Jeff Walburn appeals the district court's dismissal
of his qui tam action brought under the False Claims Act, 31 U.S.C. §§ 3729-33. Walburn's suit
alleges that defendant Lockheed Martin altered and submitted false documents for compensation and
incentive payments under its agreement with the United States to operate the Portsmouth Gaseous
Diffusion Plant in Piketon, Ohio. The district court dismissed the action under the first-to-file bar
of 31 U.S.C. § 3730(b)(5). We affirm the dismissal.
*
The Honorable John R. Gibson, Circuit Judge of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
1
No. 04-3458 Walburn v. Lockheed Martin Corp., et al. Page 2
Relator Walburn alleges that he was employed as a security officer at the Portsmouth Plant,
patrolling areas of the plant used to enrich uranium and store nuclear materials. The plant is owned
by the United States and leased by the United States Enrichment Corporation, an entity created by
Congress under the Energy Policy Act of 1992, 42 U.S.C. § 2297 (repealed). Lockheed enriches
uranium for commercial and national defense purposes at the plant pursuant to a contract with the
United States. Walburn alleges that federal law required Lockheed to maintain accreditation with
the Department of Energy in order to conduct these operations. Beginning in 1981, employees at
the plant were required to wear thermoluminescent dosimeters that would mechanically measure
individual doses of radiation exposure. As a condition of its Department of Energy accreditation,
Lockheed was required to keep records of the dosimeter readings together with a record of each
employee's dosage. Walburn alleges that after he was exposed to gases at the plant in 1994,
Lockheed changed the recorded reading of his dosimeter, and that this was just one of at least 400
to 600 such changes Lockheed made to employees' dosage readings each year. He alleges that
Lockheed perpetrated this fraud in order to maintain its Department of Energy accreditation and
continue to receive payments from the United States under its contract to operate the Portsmouth
Plant.
On July 23, 1996, Walburn filed a multi-count action against Lockheed seeking
compensatory and punitive damages as a result of his exposure to gases at the Portsmouth Plant.
Walburn sought relief in federal court on theories of (1) breach of contract, (2) civil rights violations
under 42 U.S.C. § 1983, (3) intentional tort, and (4) loss of consortium. On July 16, 1997, the
district court entered an order dismissing the action. On May 25, 2000, Walburn filed the present
qui tam action under seal with the United States Department of Justice, alleging that Lockheed's
falsification of the dosage readings violated § 3729(a) of the False Claims Act. See 31 U.S.C.
§ 3730(b)(2). Following an investigation into Walburn's allegations, the United States declined to
intervene. Id.; 31 U.S.C. § 3730(b)(4)(B). Walburn elected to prosecute the action himself, and on
November 12, 2002, the action was unsealed. See 31 U.S.C. § 3730(b)(4)(B). Reviewing
Lockheed's motion to dismiss, the district court concluded that Walburn's allegations were
encompassed by the allegations in United States ex rel. Kenneth Brooks v. Lockheed Martin Corp.,
et al., No. Civ. L-00-1088, filed in the District of Maryland on April 24, 2000. Because the Brooks
complaint was filed first, the district court dismissed Walburn's action for lack of subject matter
jurisdiction under the first-to-file bar of 31 U.S.C. § 3730(b)(5). United States ex rel. Walburn v.
Lockheed Martin Corp., 312 F. Supp. 2d 936, 940-41 (S.D.Ohio 2004). Walburn appeals the
dismissal. 28 U.S.C. § 1291.
I.
We review de novo the dismissal of an action under the False Claims Act for lack of subject
matter jurisdiction. United States ex rel. McKenzie v. BellSouth Telecommunications, Inc., 123 F.3d
935, 938 (6th Cir. 1997); see also United States ex rel. Lujan v. Hughes Aircraft Co., 243 F.3d 1181,
1187 (9th Cir. 2001); Minnesota Ass'n of Nurse Anesthetists v. Allina Health System Corp., 276 F.3d
1032, 1040 (8th Cir. 2002). Because federal courts are courts of limited jurisdiction, the plaintiff
must establish subject matter jurisdiction. McKenzie, 123 F.3d at 938. We may affirm the district
court's dismissal for lack of subject matter jurisdiction on any grounds supported by the record.
Southwest Williamson Cty. Cmty. Ass'n, Inc. v. Slater, 173 F.3d 1033, 1036 (6th Cir. 1999).
The False Claims Act "provide[s] for restitution to the government of money taken from it
by fraud." United States ex rel. Augustine v. Century Health Services, Inc., 289 F.3d 409, 413 (6th
Cir. 2002) (quoting United States ex rel. Marcus v. Hess, 317 U.S. 537, 551 (1943)). Under the
Act's qui tam provisions, a private individual may bring a civil action on behalf of the United States
against persons who knowingly submit false or fraudulent claims to the government for payment in
No. 04-3458 Walburn v. Lockheed Martin Corp., et al. Page 3
violation of 31 U.S.C. § 3729(a).1 See 31 U.S.C. §§ 3730(b)- (d). Before proceeding with the suit,
a qui tam plaintiff must disclose to the government the information on which his or her claim is
based. 31 U.S.C. § 3730(b)(2). If the government chooses to intervene in the action, it assumes the
role of lead prosecutor. Id.; 31 U.S.C. § 3730(b)(4)(A), (c)(1). If the government declines to
intervene, the qui tam plaintiff may serve the complaint on the defendant and proceed with the action
on its own. 31 U.S.C. § 3730(b)(4)(B). As an incentive to bring such claims, private plaintiffs suing
on behalf of the government receive a portion of the funds recovered in a successful suit. See 31
U.S.C. § 3730(d).2
The history of the False Claims Act's qui tam provisions demonstrates repeated attempts by
Congress to balance two competing policies. McKenzie, 123 F.3d at 938 (discussing legislative
history); United States ex rel. Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645, 649-51 (D.C. Cir.
1994) (same). On the one hand, the qui tam provisions seek to encourage "whistleblowers to act as
private attorneys-general" in bringing suits for the common good. See United States ex rel.
Taxpayers Against Fraud v. General Elec. Co., 41 F.3d 1032, 1041-42 (6th Cir. 1994). On the
other, the provisions seek to discourage opportunistic plaintiffs from bringing parasitic lawsuits
whereby would-be relators merely feed off a previous disclosure of fraud. United States ex rel. Jones
v. Horizon Healthcare Corp., 160 F.3d 326, 335 (6th Cir.1998) (citing McKenzie, 123 F.3d at 942-
943). To further the latter policy, Congress has placed a number of jurisdictional limitations on qui
tam actions, two of which are relevant here: the first-to-file bar of 31 U.S.C. § 3730(b)(5) and the
public disclosure bar of 31 U.S.C. § 3730(e)(4)(A). Under these provisions, if Walburn's qui tam
action was based upon information previously made public or if the claim had already been filed by
another, the district court was required to dismiss the action. Taxpayers Against Fraud, 41 F.3d at
1035. We address the application of each provision in turn.
II.
The district court dismissed Walburn's action based on 31 U.S.C. § 3730(b)(5), concluding
that the allegations contained in an earlier complaint filed against Lockheed by relator Brooks
"encompassed" the allegations of Walburn's complaint. Section 3730(b)(5) provides:
When a person brings a [qui tam action], no person other than the Government may
intervene or bring a related action based on the facts underlying the pending action.
By its terms, this section "unambiguously establishes a first-to-file bar, preventing successive
plaintiffs from bringing related actions based on the same underlying facts." United States ex rel.
Lujan v. Hughes Aircraft Co., 243 F.3d 1181, 1187 (9th Cir. 2001); see also United States ex rel.
LaCorte v. SmithKline Beecham Clinical Labs., Inc., 149 F.3d 227, 232 (3d Cir. 1998). The first-to-
file bar furthers the policy of the False Claims Act in that "[t]he first-filed claim provides the
government notice of the essential facts of an alleged fraud, while the first-to-file bar stops repetitive
claims." Lujan, 243 F.3d at 1187 (citing LaCorte, 149 F.3d at 233-34 (discussing legislative
history)).
1
"Qui tam" is part of the longer Latin phrase "qui tam pro domino rege quam pro se ipso in hac parte sequitur,"
which means "who pursues this action on our Lord the King's behalf as well as his own." Vermont Agency of Natural
Resources v. United States ex rel. Stevens, 529 U.S. 765, 769 n. 1 (2000).
2
The size of the bounty varies, but can be as high as thirty percent of the proceeds of a successful suit. 31
U.S.C. § 3730(d).
No. 04-3458 Walburn v. Lockheed Martin Corp., et al. Page 4
In deciding whether Walburn's action runs afoul of this bar, we compare his complaint with
that in Brooks.3 See La Corte, 149 F.3d at 234. If both allege "all the essential facts" of the
underlying fraud, the earlier-filed Brooks action bars Walburn's action, even if Walburn's complaint
"incorporates somewhat different details." Id. at 232-33; Grynberg v. Koch Gateway Pipeline Co.,
390 F.3d 1276, 1279 (10th Cir. 2004); United States ex rel. Hampton v. Columbia/HCA Healthcare
Corp, 318 F.3d 214, 217-18 (D.C. Cir. 2003); Lujan, 243 F.3d at 1189. Both 4complaints allege that
Lockheed defrauded the government in violation of the False Claims Act. The Brooks relator
alleges that Lockheed "falsified, concealed and destroyed documentation" relating to "plant
management and operations" and knowingly submitted these "false records and statements" to the
government, all in an effort to fraudulently induce government payment under Lockheed's contract
to operate the Portsmouth Plant. Walburn alleges that Lockheed maintained its Department of
Energy accreditation by "knowingly concealing" its practice of "assign[ing] dosages to a person that
differed from the dosages that were read from the [dosimeter] that the same person was wearing,"
and then "used the [Department of Energy] accreditation, which had been falsely or fraudulently
obtained ... to receive payments under the operating agreements for [the Portsmouth Plant]."
In comparing the two complaints, the district court concluded that the broad fraudulent
scheme alleged in the Brooks complaint "encompassed" the specific subset of fraud regarding the
falsification of radiation dosage readings alleged by Walburn. The district court's conclusion,
although undoubtedly correct, is ultimately unremarkable, as the same could be said for any qui tam
action alleging fraud in connection with any aspect of Lockheed's operation of the Portsmouth Plant
to have the misfortune of following behind the vague and broad-ranging allegations of fraud
contained in the Brooks complaint. However, the recognition that the haystack of fraud set forth in
Brooks' complaint, may, as a literal matter, be said to "encompass" the needle of the specific fraud
Walburn seeks to bring to the government's attention, does not answer the question before us:
whether such a vague and broadly-worded complaint should be given preemptive effect under
§ 3730(b)(5).
Walburn argues that the Brooks complaint should not be given preemptive effect under the
first-to-file rule because its allegations are so fatally broad as to run afoul of the heightened
pleading requirements for fraud under Federal Rule of Civil Procedure 9(b). Although not expressly
required by the statutory language, we have previously held that a complaint alleging violations of
the False Claims Act must allege the circumstances surrounding the fraud with particularity as
required by Rule 9(b). United States ex rel. Bledsoe v. Cmty. Health Sys., Inc., 342 F.3d 634, 641-43
(6th Cir. 2003); see also Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 562-63 (6th Cir. 2003). We
based this conclusion on the False Claims Act's anti-fraud purpose as demonstrated by its text and
accompanying legislative history. See Bledsoe, 342 F.3d at 641-43. "In complying with Rule 9(b),
a plaintiff, at a minimum, must 'allege the time, place, and content of the alleged misrepresentation
on which he or she relied; the fraudulent scheme; the fraudulent intent of the defendants; and the
3
We analyze Walburn's First Amended Complaint as it was the last complaint to have been filed in the district
court. Walburn's subsequent amended complaints were tendered to the district court but never filed.
4
Section 3729(a) provides, in relevant part:
Any person who--
(1) knowingly presents, or causes to be presented, to an officer or employee of the United States Government
or a member of the Armed Forces of the United States a false or fraudulent claim for payment or approval;
(2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent
claim paid or approved by the Government;
(3) conspires to defraud the Government by getting a false or fraudulent claim allowed or paid; [or] . . .
(7) knowingly makes, uses, or causes to be made or used, a false record or statement to conceal, avoid, or
decrease an obligation to pay or transmit money or property to the Government,
is liable to the United States Government for a civil penalty . . . .
No. 04-3458 Walburn v. Lockheed Martin Corp., et al. Page 5
injury resulting from the fraud.'" Id. at 643 (quoting Coffey v. Foamex L.P., 2 F.3d 157, 161-62 (6th
Cir. 1993)); accord LaCorte, 149 F.3d at 234 ("Federal Rule of Civil Procedure 9(b) requires
plaintiffs to plead fraud with particularity, specifying the time, place and substance of the
defendant's alleged conduct.").
Here, the broad and conclusory allegations of the Brooks complaint are legally insufficient
under Rule 9(b) because they fail to provide "the time, place, and content" of any allegedly
fraudulent claim submitted to the government. The Brooks allegations merely set forth that
"documents" and "records" relating to the management and operation of the plant were falsified,
without specifying the nature of the alleged falsifications. Furthermore, the complaint neither
identifies which of the named defendants actually submitted falsified "documents" and "records" to
the government, nor which "documents" and "records" contained misrepresentations upon which the
government relied. Thus, the Brooks complaint's failure to comply with Rule 9(b) rendered it legally
infirm from its inception, and therefore it cannot preempt Walburn's action under the first-to-file
bar.5
Lockheed argues that, notwithstanding the breadth of the Brooks allegations, a holding that
only a complaint that complies with Rule 9(b) can have preemptive effect under § 3730(b)(5) carves
out an exception from the "exception-free" first-to-file bar that undermines its policy of discouraging
parasitic suits. See Lujan, 243 F.3d at 1187. However, we fail to see how according preemptive
effect to a fatally-broad complaint furthers the policy of encouraging whistleblowers to notify the
government of potential frauds. See id. A complaint that is insufficient under Rule 9(b) is dismissed
precisely because it fails to provide adequate notice to the defendant of the fraud it alleges. See
Bledsoe, 342 F.3d at 643 (requiring a complaint alleging fraud to provide fair notice to defendants
to enable them to "prepare an informed pleading responsive to the specific allegations of fraud.").
A complaint that fails to provide adequate notice to a defendant can hardly be said to have given the
government notice of the essential facts of a fraudulent scheme, and therefore would not enable the
government to uncover related frauds. LaCorte, 149 F.3d at 234. Indeed, we have previously
recognized that it is precisely the heightened pleading requirement of Rule 9(b) that deters would-be
relators from making "overly broad allegations" that fail to adequately alert the government to
possible fraud in an effort to preclude future relators from sharing in any bounty eventually
recovered. Bledsoe, 342 F.3d at 642 (quoting LaCorte, 149 F.3d at 234).
While there is no indication that the Brooks relator worded his complaint in excessively
general terms in order to preserve the lion's share of any potential recovery for himself, his broad
allegations nonetheless fail to set forth the facts underlying the fraud he alleges as required by Rule
9(b). Walburn's action cannot be "based on the facts underlying" the Brooks action when the facts
necessary to put the government on notice of the fraud alleged are conspicuously absent from the
Brooks complaint. Because the Brooks action is legally infirm under Rule 9(b), it fails to preempt
Walburn's later-filed action despite the fact that the overly-broad allegations of the Brooks complaint
"encompass" the specific allegations of fraud made by Walburn.
5
Indeed, the lack of specificity in the Brooks complaint ultimately proved to be its undoing, as it was dismissed
during the pendency of this appeal for failure to plead fraud with particularity as required by Rule 9(b). See United
States ex rel. Kenneth Brooks v. Lockheed Martin Corp., et al., No. Civ. L-00-1088, 2005 WL 841997 (D. Md.March
22, 2005). Although we are authorized to "take judicial notice of proceedings in other courts of record," Rodic v.
Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th Cir. 1980) (quoting Granader v. Public Bank, 417 F.2d 75, 82-83
(6th Cir. 1969) (citing cases)), we decline to base our decision here on the conclusion reached by the district court in the
Brooks action. We decline to do so because the ultimate fate of an earlier-filed action does not determine whether it bars
a later action under § 3730(b)(5); rather, the question is only whether the earlier action was "pending" at the time the later
action was filed. 31 U.S.C. § 3730(b)(5); see Grynberg, 390 F.3d at 1279; Lujan, 243 F.3d at 1188. Here, the Brooks
action was still pending when Walburn filed his initial complaint on November 12, 2002 and his First Amended
Complaint on June 26, 2003, even if the Brooks action was eventually dismissed on March 22, 2005.
No. 04-3458 Walburn v. Lockheed Martin Corp., et al. Page 6
III.
While the qui tam provisions of the False Claims Act are designed to encourage corporate
whistleblowers, a "relator must be a true 'whistleblower'" in order to bring suit. United States ex rel.
Taxpayers Against Fraud v. General Elec. Co., 41 F.3d 1032, 1035 (6th Cir. 1994). To that end,
§ 3730(e)(4) limits the subject matter jurisdiction of federal courts over qui tam actions based upon
previously disclosed information. United States ex rel. McKenzie v. BellSouth Telecommunications,
Inc., 123 F.3d 935, 938 (6th Cir. 1997). Specifically, the "public disclosure" bar provides:
(4)(A)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.
(B) For purposes of this paragraph, "original source" means an 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.
31 U.S.C. § 3730(e)(4).
In determining whether the jurisdictional bar of § 3730(e)(4) applies to a relator's case, we
consider: "(A) whether there has been a public disclosure; (B) of the allegations or transactions that
form the basis of the relator's complaint; and (C) whether the relator's action is 'based upon' the
publicly disclosed allegations or transactions." United States ex rel. Jones v. Horizon Healthcare
Corp., 160 F.3d 326, 330 (6th Cir. 1998); see also A.D. Roe Co., 186 F.3d at 721-23. If the answer
is "no" to any of these questions, the inquiry ends, and the qui tam action may proceed; however,
if the answer to each of the above questions is "yes," then we must determine whether the relator
nonetheless qualifies as an "original source" under § 3730(e)(4)(B), in which case the suit may
proceed. Jones, 106 F.3d at 330.
We have no trouble concluding that Walburn's 1996 complaint in his civil action against
Lockheed qualifies as a "public disclosure." The plain language of § 3730(e)(4) includes as a public
disclosure the dissemination of information through a "civil hearing." We have interpreted "civil
hearing" to include court filings generally, and "a plaintiff's complaint" specifically. McKenzie, 123
F.3d at 939; Jones, 160 F.3d at 331. In order to determine whether Walburn's 1996 complaint
disclosed the "allegations and transactions" forming the basis of his later-filed qui tam action we
must compare the allegations of the two complaints. As discussed previously, Walburn's qui
tam action alleges that Lockheed falsified dosage readings obtained from thermoluminescent
dosimeters in order to maintain its accreditation and receive payments from the United States under
its contract to operate the Portsmouth Plant. In his 1996 suit Walburn alleged, inter alia:
16. To alert these [Defendants'] employees to any such radiation exposure,
certain employees are required to submit urinalysis periodically and there is
a dosimeter program. The dosimeter program consists of a monitoring badge
that registers an employee's dose exposure to radiation. Certain employees
are also required to submit to bioassay urinalysis to detect exposure to
various gasses.
17. Defendants periodically collect the monitoring badges from each
individual employee, records any dosage readings from each individual
badge, and maintains records of these dosages.
No. 04-3458 Walburn v. Lockheed Martin Corp., et al. Page 7
...
19. Defendants altered and/or destroyed its dosimeter records on the amount
of radiation Plaintiff Jeff Walburn was exposed to while an employee of
Defendants.
...
33. Defendants have failed to perform their obligations and duties under said
contract, including but not limited to:
a) Altering and destroying results of employees [sic] radiation
exposure in the dosimeter program ...
...
38. Defendant, by intentionally altering Plaintiff's radiation records and
medical records, had violated 10 CFR Part 19 and specifically § 19.12 and
19.13; 29 CFR § 1910.96 and 1910.97; 48 CFR § 952.223-75, § 970.23 et
Seq., and § 970.52.
39. This violation of federal law ...
We have previously held that the "allegations and transactions" forming the basis of a qui
tam have been disclosed "when enough information exists in the public domain to expose the
fraudulent transaction or the allegation of fraud." Jones, 160 F.3d at 331. 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." Id. at 332 (citing United States ex rel.
Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645, 655 (D.C. Cir. 1994)). As in Jones, although
Walburn's 1996 suit "may not have constituted an explicit, formal allegation of either fraud or the
essential elements of fraud, it certainly presented enough facts to create an inference of wrongdoing
on the part of [Lockheed]." Id. The 1996 complaint disclosed both the misrepresented state of facts:
the falsified dosage readings submitted to the government, as well as the true state of facts: the
actual dosimeter readings. The allegations of falsified dosage readings in violation of federal law
gives rise to an inference of impropriety on the part of Lockheed in its operation of the Portsmouth
Plant, and thus effectively alerted the public to the fraud later alleged in Walburn's qui tam action.
Furthermore, we conclude that Walburn's qui tam action is "based upon" the allegations and
transactions disclosed in his 1996 suit. In line with the reasoning of the majority of circuits, we have
construed "based upon" broadly to mean "supported by" information previously disclosed.
McKenzie, 123 F.3d at 940; Bledsoe, 342 F.3d at 646; A.D. Roe, 186 F.3d at 725; Jones, 160 F.3d
at 332. Walburn's present action is "supported by" the same alleged falsification of dosage readings
alleged in his 1996 suit. To be sure, Walburn's qui tam action provides greater detail regarding the
falsification of the dosimeter readings than did his 1996 complaint. However, these additional
details are insufficient to avoid our broad construction of the public disclosure bar, which precludes
individuals who base any part of their allegations on publicly disclosed information from bringing
a later qui tam action. McKenzie, 123 F.3d at 940; Bledsoe, 342 F.3d at 646; A.D. Roe, 186 F.3d at
725; Jones, 160 F.3d at 332.
Because we conclude that Walburn's qui tam action is based upon allegations and
transactions publicly disclosed in his 1996 suit, Walburn must qualify as an "original source" to
maintain his suit. 31 U.S.C. § 3730(e)(4)(A) and (B); see also A.D. Roe, 186 F.3d at 725 n. 7. An
"original source" is "an 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
No. 04-3458 Walburn v. Lockheed Martin Corp., et al. Page 8
before filing an action under this section which is based on the information." 31 U.S.C.
§ 3730(e)(4)(B) (emphasis added). Under the law of this Circuit, the individual must have provided
the government with the information prior to any public disclosure to qualify as an "original
source." McKenzie, 123 F.3d at 942 (adopting the approach of United States ex rel. Findley v. FPC-
Boron Employees' Club, 105 F.3d 675, 690 (D.C. Cir. 1997)). Here, Walburn filed his 1996 action
long before he filed his sealed qui tam action with the government on May 25, 2000. Walburn's
failure to report his allegations of fraud to the federal government before filing his 1996 suit
precludes him from enjoying original source status. Jones, 160 F.3d at 335 n. 7. Thus, his qui tam
action is barred under 31 U.S.C. § 3730(e)(4).
IV.
Because the district court lacked jurisdiction under 31 U.S.C. § 3730(e)(4), its dismissal of
Walburn's complaint is affirmed.