United States v. Catholic Healthcare West , 445 F.3d 1147 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff,
and
PATRICIA HAIGHT, ex rel. and in No. 03-16937
Defense of Animals,
Plaintiff-Appellant,  D.C. No.
CV-01-02253-FJM
v.
OPINION
CATHOLIC HEALTHCARE WEST;
CATHOLIC HEALTHCARE WEST
ARIZONA; MICHAEL BERENS,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Argued and Submitted
September 13, 2005—San Francisco, California
Filed April 19, 2006
Before: Betty B. Fletcher, John R. Gibson,* and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge B. Fletcher
*The Honorable John R. Gibson, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
4381
UNITED STATES v. CATHOLIC HEALTHCARE WEST 4385
COUNSEL
Jeremy L. Friedman, Law Office of Jeremy L. Friedman,
Oakland, California, for the appellants.
Lawrence A. Kasten, Lewis and Roca LLP, Phoenix, Arizona,
for the appellees.
OPINION
B. FLETCHER, Circuit Judge:
Dr. Patricia Haight and the organization In Defense of Ani-
mals (collectively “Relators”) appeal the dismissal of their
complaint for lack of subject matter jurisdiction under the
False Claims Act’s “public disclosure” jurisdictional bar, 31
U.S.C. § 3730(e)(4). We reverse.
I.
Relators brought this qui tam action under the False Claims
Act (“FCA”), 31 U.S.C. §§ 3729-33, against Catholic Health-
care West and Dr. Michael Berens (collectively “Defen-
dants”). The Relators allege that Berens submitted a
fraudulent grant application to the National Institutes of
Health (“NIH”). Based on this application, he was awarded
over $700,000 in grant money.
4386 UNITED STATES v. CATHOLIC HEALTHCARE WEST
Defendant Berens is a research scientist at Barrow Neuro-
logical Institute, a division of Catholic Healthcare West.
Berens is the primary researcher on a project that uses beagle
dogs to research glioma, a form of malignant brain tumor. The
study is designed to develop a large animal model for study-
ing glioma and then extrapolate any knowledge gained to treat
glioma in humans. Berens attempted to develop the model by
injecting glioma tumor cells into the flanks of gestating bea-
gle puppies. This procedure had to be done during gestation
to prevent the immune systems of the puppies from rejecting
the gliomal cells and was designed to cause tumors to develop
after the puppies were born, which could then be transplanted
into their brains. Initially, Berens’ research was privately
funded. Later he sought public funding. Berens’ first grant
application to the NIH was rejected, but his second applica-
tion was approved, resulting in an award of over $700,000 in
grant money.
Relator Haight is an experimental psychologist and the
Southwest Regional Director of In Defense of Animals.
Haight performed extensive research on Berens’ study and
uncovered the fraud alleged in the complaint. Haight began
investigating Berens’ research at the request of a student and
community members who were protesting animal research
conducted at Barrow and Arizona State University (“ASU”).
She first identified the funding source for Berens’ study —
the National Institute of Neurological Disorders and Strokes,
an institute within the larger NIH — and requested documents
relating to the study pursuant to the Freedom of Information
Act (“FOIA”). She was subsequently informed that she could
obtain the documents from her FOIA request directly from
Barrow, where Berens’ study was being performed, so she
walked down personally to obtain them. The documents she
obtained because of her FOIA request included the 1997 grant
application and continuation forms, and a paper and paper
abstract by Berens.
Haight then requested documents from ASU, where the
project had formerly been housed, including animal care
UNITED STATES v. CATHOLIC HEALTHCARE WEST 4387
records and minutes from the Institutional Animal Care and
Use Committee (“IACUC”) meetings, where animal research
projects are vetted. In response to this request, Haight
received protocols submitted to ASU by Berens starting in
1990, animal care records, IACUC minutes, and correspon-
dence between Berens and IACUC concerning Berens’ with-
drawal of the project from ASU in 1997.
Becoming concerned about the efficacy of the project,
Haight arranged to tour the ASU facility where the dogs had
been housed and the Veterans Administration hospital to
which the dogs were transferred when Berens’ project ceased
to have the support of ASU. She also interviewed numerous
individuals who provided information about Berens’ research,
including Edward Castaneda, Chairman of the IACUC at
ASU; Ted Brandon, Director of ASU’s Animal Care Pro-
gram; Neal DeNardo, ASU Veterinarian; Ronald Barr, Assis-
tant Vice Provost for Research at ASU and IACUC member;
Tol Chesko, IACUC member; Joan McGregor, ASU faculty
member; and graduate student Clare Rhodes. In conjunction
with her tour of the VA facility, Haight interviewed Jedd Nel-
son, Director of Animal Care. Haight contacted Geoffrey
Pilkington, Professor of Experimental Neuro-oncology at
King’s College of London, who was listed as a consultant to
Berens’ project on the NIH application. Haight also met with
Joan Rankin Shapiro, Vice President for Research at Barrow
Neurological Institute.
In the course of these discussions and tours, Haight learned
what she believes to be the truth about Berens’ research. First,
she learned from DeNardo and Brandon that Berens’ research
has produced little, if any, scientific results. Many of the pups
died, were aborted, or were born with congenital defects, and
those that were born healthy did not develop the expected
subcutaneous tumors. This assessment of the project was sup-
ported by Shapiro, who told Haight that throughout the ten
years that the project had been ongoing, only three pups had
developed tumors, and one of those tumors was so small that
4388 UNITED STATES v. CATHOLIC HEALTHCARE WEST
it could not be seen until after the pup was killed. Second, she
learned that Berens’ competency to perform the complicated
surgery on the prenatal pups was questionable and that the
researchers could not identify gross anatomical landmarks
when attempting to inject the pups’ flanks with gliomal cells.
Shapiro stated that because the uterus of the beagle is murky,
it became necessary to “inject everything we think we can
see” when attempting to implant the cells in the pups’ flanks.
Third, she learned that while Berens had officially withdrawn
his project from ASU, he had done so under pressure from the
university’s IACUC to terminate the project because of its
failure to produce meaningful results after ten years of
attempts. Fourth, she learned that none of the dogs temporar-
ily housed at the VA Hospital after the project was terminated
at ASU had developed subcutaneous tumors. Fifth, she dis-
covered from Dr. Pilkington that he was surprised to have
been listed as a consultant for the project and that he had not,
as stated in the grant application, agreed to provide any dogs
for the project.
The Relators challenge an array of allegedly fraudulent or
misleading statements. The Relators’ allegations are as fol-
lows:
1. Relators challenge the indications of success
stated in the grant application, specifically that:
a. “successful allotolerant pups had been
achieved in four separate litters”;
b. “4 out of 5 pups in one litter developed
tumors”;
c. “one in four litters yielded at least one
pup with a subcutaneous tumor”;
d. “there were subcutaneous tumors in up
to 80% of the pups.”
UNITED STATES v. CATHOLIC HEALTHCARE WEST 4389
2. Relators challenge the assertions in the grant
application that the researchers have “achieved
the technical and surgical skills necessary for
realizing the desired outcome,” that they can
identify gross anatomical landmarks, and that
the cells were embedded in the desired loca-
tions.
3. Relators challenge the projections in the grant
application as to the number of tumors the
researchers would create.
4. Relators challenge the statement in the grant
application that “neonatal pups cannot be
induced to accept allogenic cells,” thus necessi-
tating the approach taken by Berens.
5. Relators challenge the assertions in the grant
application as to Pilkington’s involvement as a
consultant and provider of control dogs (i.e.
dogs with naturally occurring brain tumors).
With respect to each allegation, the false or misleading state-
ment was contained in the grant application obtained via
Haight’s FOIA request.
Before Relators filed their complaint, several news articles
were published on the Berens’ controversial animal experi-
ments. See, e.g., Scott Bewick, Researcher’s Beagle Testing
Unnecessary, Protesters Say, ASU STATE PRESS, Sept. 28,
2000, available in part at http://studentmedia.vpsa.asu.edu/
webarchives/; James Hibberd, Screwing the Pooch, PHOENIX
NEW TIMES, Jan. 4, 2001, at 14-24, available at http://
phoenixnewtimes.com/Issues/2001-01-04/news/feature.html.
In addition, In Defense of Animals issued several press and
news releases relating to the Berens study. Relators argue that
what they allege to be the truth about Berens’ study was dis-
covered through Haight’s independent investigation.
4390 UNITED STATES v. CATHOLIC HEALTHCARE WEST
Haight and In Defense of Animals filed their complaint on
behalf of the United States under the qui tam provisions of the
FCA in the Northern District of California. The United States
declined to intervene in the action. Based on Defendants’
motion, the suit was transferred to Arizona.
After transfer, the Relators filed an amended complaint,
and the Defendants filed a motion to dismiss for failure to
state a claim. After the motion to dismiss was denied, the
Defendants filed an Answer, and the parties initiated discov-
ery. Then the Defendants filed a second motion to dismiss,
now based on lack of subject matter jurisdiction under 31
U.S.C. § 3730(e)(4). After argument the district court granted
the Defendants’ motion, holding that a response to a FOIA
request is a public disclosure via an enumerated source and
that accordingly Relators’ suit was barred under 31 U.S.C.
§ 3730(e)(4). The district court also awarded costs to the
Defendants. The Relators appeal both the district court’s order
granting the motion to dismiss and the order awarding costs.
We review de novo the district court’s dismissal for lack of
subject matter jurisdiction. United States ex rel. Hochman v.
Nackman, 145 F.3d 1069, 1072 (9th Cir. 1998).
II.
[1] The False Claims Act imposes liability on those who
defraud the government. 31 U.S.C. § 3729. It encourages the
uncovering of such fraud by permitting private persons to
bring qui tam actions on behalf of the government. Id.
§ 3730(b); see also United States ex rel. Campbell v. Redding
Med. Ctr., 421 F.3d 817, 823 (9th Cir. 2005) (“ ‘[T]he Com-
mittee’s overall intent in amending the qui tam section of the
False Claims Act is to encourage more private enforcement
suits.’ ” (quoting Sen. Rep. No. 99-345, at 23-24 (1986))).
Such qui tam relators then share in any recovery obtained on
the government’s behalf. 31 U.S.C. § 3730(d). At the same
time, the FCA discourages opportunistic qui tam relators by
UNITED STATES v. CATHOLIC HEALTHCARE WEST 4391
depriving the courts of subject matter jurisdiction in actions
where the fraud allegations were publicly disclosed via a
source listed in the provision, unless the relator was the origi-
nal source of the allegations. The jurisdictional bar provision
reads:
No court shall have jurisdiction over an action under
this section based upon the public disclosure of alle-
gations or transactions in a criminal, civil, or admin-
istrative hearing, in a congressional, administrative,
or Government [General] 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 origi-
nal source of the information.
Id. § 3730(e)(4)(A).
Whether an action is barred under this provision is a two-
step inquiry. First, it must be determined whether the allega-
tions were publicly disclosed via a source enumerated in
§ 3730(e)(4)(A). If so, then it must be determined whether the
relator was the original source of those allegations. United
States ex rel. Wang v. FMC Corp., 975 F.2d 1412, 1416 (9th
Cir. 1992) (“Where there has been no ‘public disclosure’
within the meaning of section 3730(e)(4)(A), there is no need
for a qui tam plaintiff to show that he is the ‘original source’
of the information.”). “Original source” is defined in
§ 3730(e)(4)(B) as “an individual who has direct and indepen-
dent knowledge of the information on which the allegations
are based and has voluntarily provided the information to the
Government.” 31 U.S.C. § 3730(e)(4)(B). Because we con-
clude that the allegations underlying the complaint were not
publicly disclosed within the meaning of § 3730(e)(4)(A), we
need not proceed to the second step.
4392 UNITED STATES v. CATHOLIC HEALTHCARE WEST
A.
[2] Determining whether the allegations underlying a fraud
claim have been publicly disclosed under § 3730(e)(4)(A)
itself requires two inquiries. First, to constitute a public dis-
closure, the fraud must have been disclosed in one or more1
of the sources specified under the statute:
1) a criminal, civil, or administrative hearing;
2) a congressional, administrative, or [General]
Accounting Office report, hearing, audit or
investigation; or
3) the news media.
Id. § 3730(e)(4)(A). If there has been such a disclosure, the
content of that disclosure must consist of the “allegations or
transactions” giving rise to Relators’ claim. A-1 Ambulance
Serv., 202 F.3d at 1243. “The substance of the disclosure . . .
need not contain an explicit ‘allegation’ of fraud, so long as
the material elements of the allegedly fraudulent ‘transaction’
are disclosed in the public domain.” Found. Aiding the
Elderly, 2001 U.S. App. LEXIS 27363 at *4-5.
If X + Y = Z, Z represents the allegation of fraud and
X and Y represent its essential elements. In order to
1
Contrary to Appellants’ assertion, we assume that the elements of the
fraud allegation need not have been made public in a single document.
See, e.g., United States ex rel. Found. Aiding the Elderly v. Horizon West
Inc., 265 F.3d 1011 (9th Cir. 2001), amended by, 275 F.3d 1189 (9th Cir.
2001), reprinted as amended, 2001 U.S. App. LEXIS 27363, *7-11 (pin
cites and subsequent citations are to the reprinted opinion) (analyzing sev-
eral documents to determine whether the allegations and transactions were
publicly disclosed); A-1 Ambulance Serv., Inc. v. California, 202 F.3d
1238 (9th Cir. 2000) (finding a complaint barred by the jurisdictional pro-
vision based on the disclosures in several administrative hearings and the
documents filed in conjunction with those hearings).
UNITED STATES v. CATHOLIC HEALTHCARE WEST 4393
disclose the fraudulent transaction publicly, the com-
bination of X and Y must be revealed, from which
readers or listeners may infer Z, i.e., the conclusion
that fraud has been committed.
Id. at *7-8 (quoting United States ex rel. Springfield Terminal
Ry. Co. v. Quinn, 14 F.3d 645, 654 (D.C. Cir. 1994)). In a
fraud case, X and Y stand for “a misrepresented state of facts
and a true state of facts.” Id. at *8 (internal quotation marks
and citation omitted). Thus, for the suit to be barred, Defen-
dants must show that its essential elements, both the alleged
truth and the allegedly fraudulent statements, were publicly
disclosed via an enumerated source.
The district court determined that the allegations underly-
ing the fraud claim were publicly disclosed because the
alleged fraud occurred in a grant application obtained by
Relators pursuant to a FOIA request, and Relators’ claims
were disclosed in press releases and various news articles. We
conclude that the district court was incorrect in holding that
the response to the FOIA request was a public disclosure via
an enumerated source within the meaning of § 3730(e)(4)(A).
Because the misrepresented state of facts, “X,” was not pub-
licly disclosed via an enumerated source, we need not reach
the questions of whether the true state of facts, “Y,” was pub-
licly disclosed via an enumerated source or whether Relators
were the “original source” of that true state of facts.
B.
[3] Whether a response to a FOIA request is a public dis-
closure in a form prescribed by the jurisdictional provision is
an open question in the Ninth Circuit.2 Appellees contend that
2
This court addressed a related question in United States ex rel.
Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 1520 (9th Cir. 1995),
vacated on other grounds, 520 U.S. 939 (1997), which the district court
cited in support of its decision. Schumer’s holding is not on point, how-
4394 UNITED STATES v. CATHOLIC HEALTHCARE WEST
we should hold that all documents obtained via FOIA request
are public disclosures for the purposes of the jurisdictional
statute. In support, they cite United States ex rel. Mistick PBT
v. Housing Authority, 186 F.3d 376, 383 (3d Cir. 1999), in
which the Third Circuit concluded that a response to a FOIA
request is a publicly disclosed “administrative report” or “ad-
ministrative investigation” so as to invoke the jurisdictional
bar. See also United States ex rel. Reagan v. E. Tex. Med. Ctr.
Reg’l Healthcare Sys., 384 F.3d 168, 176 (5th Cir. 2004);
United States ex rel. Burns v. A.D. Roe Co., 186 F.3d 717,
723-24 (6th Cir. 1999). We disagree: a response to a FOIA
request is not necessarily a report or investigation, although
it can be, if it is from one of the sources enumerated in the
statute. Since the document obtained via FOIA request here
was not from one of the sources enumerated in the statute, the
FOIA response does not trigger the jurisdictional bar.
In interpreting the jurisdictional bar, we “look first to the
plain language of the statute, construing the provisions of the
entire law, including its object and policy, to ascertain the
intent of Congress.” United States ex rel. Lujan v. Hughes
Aircraft Co., 243 F.3d 1181, 1187 (9th Cir. 2001) (quoting
United States v. Hockings, 129 F.3d 1069, 1071 (9th Cir.
ever. Schumer holds only that material in a government file that is poten-
tially accessible to the public through a FOIA request is not publicly
disclosed. Id. at 1519-20. Only in dicta does the court discuss information
that is disclosed through FOIA, saying: “In the FOIA context, information
cannot be deemed disclosed until a member of the public requests the
information and receives it from the government. Only then is the infor-
mation actually, rather than theoretically or potentially, available to the
public.” Id. at 1520. Furthermore, Schumer was vacated by the Supreme
Court on grounds unrelated to the public disclosure analysis. See Hughes
Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 952 (1997).
It is thus only persuasive authority and is not binding precedent.
Orhorhaghe v. INS, 38 F.3d 488, 493 n.4 (9th Cir. 1994). The Schumer
opinion does not supply the answer as to whether information received
through a FOIA request is publicly disclosed.
UNITED STATES v. CATHOLIC HEALTHCARE WEST 4395
1997)). If the statutory text is ambiguous, we look to the leg-
islative history. Id.
[4] Interpreting “report” or “investigation” as listed in the
jurisdictional bar to include any document obtained in
response to a FOIA request would stretch the meaning of
those terms too broadly. FOIA requires only that federal agen-
cies search their records for those that are responsive to the
request. 5 U.S.C. § 552(a)(3)(D) (“ ‘[S]earch’ means to
review, manually or by automated means, agency records for
the purpose of locating those records which are responsive to
a request.”). In essence, a FOIA request is a “mechanism for
duplicating records that are in the possession of the federal
government and that are not otherwise excludable from mem-
bers of the public.” Mistick, 186 F.3d at 393 (Becker, C.J.,
dissenting). In contrast, reports and investigations generally
involve independent work product. “Report” denotes a docu-
ment that includes an analysis of findings; “investigation”
implies independent governmental leg-work. Moreover, the
FCA’s jurisdictional bar groups “report” and “investigation”
with a series of other enumerated sources that each involve
extensive governmental work product and involvement.3
Because responding to a FOIA request requires little more
than duplication, labeling any response to a FOIA request a
“report” or “investigation” would ignore the way in which
each of the enumerated sources involves governmental work
product.
[5] The legislative history of the jurisdictional provisions of
the False Claims Act lends support to the interpretation that
3
The enumerated sources are “criminal, civil, or administrative hear-
ing[s], . . . congressional, administrative, or Government [General]
Accounting Office report[s], hearing[s], audit[s], or investigation[s], or . . .
the news media.” 31 U.S.C. § 3730(e)(4)(A). With the exception of the
news media, each of these enumerated sources is a form of work product
originating with the government. The contents of those sources is expected
to be well-known to the government. Likewise, the reports of the news
media can be presumed to be known by the government.
4396 UNITED STATES v. CATHOLIC HEALTHCARE WEST
a response to a FOIA request is not, standing alone, an admin-
istrative report or investigation. See United States ex rel.
Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645, 649-51
(D.C. Cir. 1994) (providing a more detailed history); United
States ex rel. Stinson, Lyons, Gerlin & Bustamante, P.A. v.
Prudential Ins. Co., 944 F.2d 1149, 1152-54 (3d Cir. 1991)
(same). The original version of the False Claims act, enacted
in 1863, permitted qui tam suits to be filed regardless of how
the relator came by the information that underlay the fraud
claim, even if the government was already aware of that infor-
mation. In 1943, the Supreme Court interpreted this broad
statutory language to permit qui tam suits even when the alle-
gations in the complaint were copied by the relator directly
from criminal indictments in public court files, clearly within
the government’s cognizance. See United States ex rel. Mar-
cus v. Hess, 371 U.S. 537, 546-48 (1943). Congress
responded quickly to this interpretation of the statute by
swinging far in the other direction. The 1943 amendments to
the FCA prohibited qui tam suits “based on evidence or infor-
mation the Government had when the action was brought,” 31
U.S.C. § 3730(b)(4) (1982) (superceded), even when that
information was obtained by the relator through substantial
independent effort and provided to the government in antici-
pation of the suit. See, e.g., United States ex rel. Wisconsin v.
Dean, 729 F.2d 1100 (7th Cir. 1984) (barring jurisdiction over
a qui tam suit filed by the state of Wisconsin alleging Medic-
aid fraud the state had uncovered and reported to the federal
government as required by law).
[6] In 1986, Congress passed further amendments,
acknowledging that less restrictive jurisdictional provisions
were required to fight the ever-growing problem of fraud. The
current language, then, was designed to create a scheme in
which “the qui tam suit provision[s] operate somewhere
between the almost unrestrained permissiveness represented
by the Marcus decision, and the restrictiveness of the post-
1943 cases, which precluded suit even by the original
sources.” Stinson, 944 F.2d at 1154 (citation omitted); see
UNITED STATES v. CATHOLIC HEALTHCARE WEST 4397
also United States ex rel. Devlin v. California, 84 F.3d 358,
362 (9th Cir. 1996) (explaining that the 1986 amendments to
the FCA represent “the golden mean between adequate incen-
tives for whistle-blowing insiders with genuinely valuable
information and discouragement of opportunistic plaintiffs
who have no significant information to contribute of their
own” (internal quotation marks and citation omitted)). The
current provisions seek to balance the primary fraud-detection
function of the FCA while “ensur[ing] that no qui tam relator
could profit from information that had become part of the
public domain.” Mistick, 186 F.3d at 391 (Becker, C.J., dis-
senting). Thus, the jurisdictional bar provisions “must be ana-
lyzed in the context of these twin goals of rejecting suits
which the government is capable of pursuing itself, while pro-
moting those which the government is not equipped to bring
on its own.” Springfield Terminal, 14 F.3d at 651.
[7] Interpreting the jurisdictional provision to bar qui tam
suits where the allegations are based on otherwise private
information obtained via a FOIA request would be out of step
with Congress’s intentions in amending the jurisdictional pro-
vision of the FCA. In order to prevent opportunistic qui tam
relators from profiting from information that was already part
of the public domain, Congress sought to bar suits in which
the government could already be expected to be on notice of
the fraud. It determined that the government could be
expected to be aware of information derived from the enumer-
ated sources, because the information originated from the
government or involved governmental work product.4 By lim-
iting the enumerated sources to that narrow list, however,
Congress also sought to capitalize on the independent efforts
of prospective qui tam relators who call information to the
attention of the government. As stated by the D.C. Circuit:
4
The sole exception to this generalization about the enumerated sources
is the news media. The same principle applies in this instance, however.
While information in the news media does not necessarily originate from
the government, it is so public that the government can be presumed to be
on notice of it.
4398 UNITED STATES v. CATHOLIC HEALTHCARE WEST
[T]he entire qui tam regime is premised on the idea
that the government’s knowledge of misrepresented
claims against the federal fisc (without knowledge
that they are misrepresented) does not in itself trans-
late into effective enforcement of the laws against
fraud.
Springfield Terminal, 14 F.3d at 656. While the government
can be expected to be on notice of fraud when the allegations
are contained in a public disclosure such as an administrative
or congressional hearing, when responding to a FOIA request,
the government need not assimilate the information contained
in the requested documents. The duplication of FOIA-
requested documents does not require the degree of familiar-
ity and cognizance that the drafting of a report or the conduct-
ing of an investigation would. Accordingly, prohibiting qui
tam relators from basing their allegations on any information
obtained in a FOIA response would damage the fraud-
detection purpose of the FCA while failing to serve its twin
goal of preventing opportunism.5
[8] The specific facts of this case illustrate how ill-fitting
the labels of “report” or “investigation” can be for responses
to FOIA requests. Haight ultimately obtained the documents
5
Moreover, holding that a FOIA response is necessarily a “report” or
“investigation” would deter individuals who suspect fraud from investigat-
ing it. FOIA requests are one of the simplest vehicles by which interested
citizens can uncover possible fraud against the government. If information
obtained pursuant to FOIA requests could never form the basis of a qui
tam action, prospective relators would have to invest substantially more
energy into uncovering the suspected fraud through other means. More-
over, the government is not harmed by permitting claims based on infor-
mation obtained pursuant to FOIA request from going forward; it still has
an opportunity to intervene and take over the suit. See 31 U.S.C.
§ 3730(b)(2). Permitting claims based on otherwise private information
obtained via a FOIA request to go forward also has the happy effect of
encouraging private citizens with suspicions of fraud to take the most
expeditious route toward uncovering information related to that fraud and
hastening recovery for the government.
UNITED STATES v. CATHOLIC HEALTHCARE WEST 4399
that she had requested by FOIA — saliently Dr. Berens’ suc-
cessful grant application containing the alleged misrepresenta-
tions — by walking to Barrow and obtaining them herself. In
this instance, the FOIA response consisted only of alerting
Haight to the location of the documents relating to Dr.
Berens’ research. Far from putting any work product into
those documents, in this instance the FOIA response did not
even involve duplication. Responding to Haight’s FOIA
request did not position the government to detect or respond
to the alleged fraud.
[9] Haight, on the other hand, put in substantial time and
effort into uncovering the allegations the Relators make in
their complaint. In addition to filing a FOIA request, Haight
requested documents, including animal care records and min-
utes from IACUC meetings, from Arizona State University;
she toured the two facilities where dogs associated with
Berens’ research were housed; she contacted and interviewed
at least nine people who had knowledge about the Berens’
project; she also corresponded with a scientist overseas who
was listed as a consultant to Berens’ research. Moreover, she
combed the documents that she received through her FOIA
inquiry and from ASU in an attempt to learn about Berens’
research. Ultimately, she uncovered what Relators allege to be
serious misrepresentations about the project that resulted in an
award of over $700,000 in federal funds. Relators did not
behave opportunistically. To the contrary, Haight performed
precisely the sort of investigative work that the qui tam provi-
sions of the FCA encourage in order to promote detection of
fraud against the government.
[10] We hold that whether a document obtained via FOIA
request should invoke the jurisdictional bar should be deter-
mined by reference to the nature of that document itself. If the
document obtained via FOIA request is a public disclosure of
a “criminal, civil, or administrative hearing, . . . a congressio-
nal, administrative, or [General] Accounting Office report,
hearing, audit, or investigation, or [is] from the news media,”
4400 UNITED STATES v. CATHOLIC HEALTHCARE WEST
then the jurisdictional bar is applicable. If, as was the case
here, the document obtained via FOIA does not itself qualify
as an enumerated source, its disclosure in response to the
FOIA request does not make it so.
[11] In the present case, the allegations and transactions in
the complaint were based on information found solely in the
grant application Haight obtained in response to the FOIA
request. Because the grant application was not publicly dis-
closed via an enumerated source, Relators’ suit is not barred
by § 3730(e)(4)(A).
C.
Because we hold that the misrepresented state of facts, “X,”
was not publicly disclosed via an enumerated source, we need
not, and do not, reach the questions of whether the true state
of facts, “Y,” was publicly disclosed via an enumerated
source, or whether Relators were the “original source” of that
true state of facts.
III.
We REVERSE and REMAND.