Schindler Elevator Corp. v. United States ex rel. Kirk

(Slip Opinion) OCTOBER TERM, 2010 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
SCHINDLER ELEVATOR CORP. v. UNITED STATES EX
REL. KIRK
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 10–188. Argued March 1, 2011—Decided May 16, 2011
The public disclosure bar of the False Claims Act (FCA) generally fore
closes private parties from bringing qui tam suits to recover falsely or
fraudulently obtained federal payments where those suits are “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 investiga
tion, or from the news media.” 31 U.S. C. §3730(e)(4)(A). Respon
dent Kirk brought such a suit, alleging that his former employer, pe
titioner Schindler Elevator Corp., had submitted hundreds of false
claims for payment under its federal contracts. To support his alle
gations, Kirk pointed to information his wife received from the Labor
Department (DOL) in response to three requests for records she filed
under the Freedom of Information Act (FOIA), 5 U.S. C. §552.
Granting Schindler’s motion to dismiss, the District Court concluded,
inter alia, that the FCA’s public disclosure bar deprived it of jurisdic
tion over Kirk’s allegations that were based on information disclosed
in a Government “report” or “investigation.” The Second Circuit va
cated and remanded, holding, in effect, that an agency’s response to a
FOIA request is neither a “report” nor an “investigation.”
Held: A federal agency’s written response to a FOIA request for records
constitutes a “report” within the meaning of the FCA’s public disclo
sure bar. Pp. 4–14.
(a) “[R]eport” in this context carries its ordinary meaning. Pp. 4–8.
(1) Because the FCA does not define “report,” the Court looks
first to the word’s ordinary meaning. See, e.g., Gross v. FBL Finan
cial Services, Inc., 557 U. S. ___, ___. Dictionaries define “report” as,
for example, something that gives information. This ordinary mean
2 SCHINDLER ELEVATOR CORP. v. UNITED STATES
EX REL. KIRK
Syllabus
ing is consistent with the public disclosure bar’s generally broad
scope, see, e.g., Graham County Soil and Water Conservation Dist. v.
United States ex rel. Wilson, 559 U. S. ___, ___, as is evidenced by the
other sources of public disclosure in §3730(e)(4)(A), especially “news
media.” Pp. 4–6.
(2) Nor is there any textual basis for adopting a narrower defini
tion of “report.” The Second Circuit committed the very error this
Court reversed in Graham County. In applying the noscitur a sociis
canon to conclude that a narrower meaning for “report” was man
dated, the court failed to consider all of the sources of public disclo
sure listed in the statute—in particular, the reference to “news me
dia.” See 559 U. S., at ___. Applying the ordinary meaning of
“report” also does not render superfluous the other sources of public
disclosure in §3730(e)(4)(A). Pp. 6–8.
(b) The DOL’s three written FOIA responses in this case, along
with the accompanying records produced to Mrs. Kirk, are “reports”
within the public disclosure bar’s ordinary meaning. FOIA requires
each agency receiving a request to “notify the person making such re
quest of [its] determination and the reasons therefor.” 5 U.S. C.
§552(a)(6)(A)(i). Like other federal agencies, the DOL has adopted
FOIA regulations mandating a written response. Such agency re
sponses plainly fall within the broad, ordinary meaning of “report”
as, e.g., something that gives information. Moreover, any records
produced along with such responses are part of the responses, just as
if they had been produced as an appendix to a printed report. Pp. 8–
9.
(c) This Court is not persuaded by assertions that it would be
anomalous to read the public disclosure bar to encompass written
FOIA responses. Pp. 9–14.
(1) The Court’s holding is not inconsistent with the public disclo
sure bar’s drafting history. If anything, the drafting history supports
this Court’s holding. Kirk’s case seems a classic example of the “op
portunistic” litigation that the public disclosure bar is designed to
discourage. Id., at ___. Anyone could identify a few regulatory filing
and certification requirements, submit FOIA requests until he dis
covers a federal contractor who is out of compliance, and potentially
reap a windfall in a qui tam action under the FCA. Pp. 9–11.
(2) Nor will extending the public disclosure bar to written FOIA
responses necessarily lead to unusual consequences. Kirk argues
that the Court’s ruling would allow a suit by a qui tam relator pos
sessing records whose release was required by FOIA even absent a
request, but bar an action by a relator who got the same documents
by way of a FOIA request. Even assuming, as Kirk does, that unre
quested records are not covered by the public disclosure bar, the
Cite as: 563 U. S. ____ (2011) 3
Syllabus
Court is not troubled by the different treatment. By its plain terms,
the bar applies to some methods of public disclosure and not to oth
ers. See Graham County, 559 U. S., at ___. It would not be anoma
lous if some methods of FOIA disclosure fell within the bar’s scope
and some did not. Moreover, Kirk’s assertion that potential defen
dants will now insulate themselves from liability by making a FOIA
request for incriminating documents is pure speculation. Cf. id., at
___. There is no suggestion that this has occurred in those Circuits
that have long held that FOIA responses are “reports” within the
public disclosure bar’s meaning. Pp. 11–13.
(3) Even if the foregoing extratextual arguments were accepted,
Kirk and his amici have provided no principled way to define “report”
to exclude FOIA responses without excluding other documents—e.g.,
the Justice Department’s annual report of FOIA statistics—that are
indisputably reports. Pp. 13–14.
(d) Whether Kirk’s suit is “based upon . . . allegations or transac
tions” disclosed in the reports at issue is a question to be resolved on
remand. P. 14.
601 F.3d 94, reversed and remanded.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, and ALITO, JJ., joined. GINSBURG, J., filed
a dissenting opinion, in which BREYER and SOTOMAYOR, JJ., joined.
KAGAN, J., took no part in the consideration or decision of the case.
Cite as: 563 U. S. ____ (2011) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
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SUPREME COURT OF THE UNITED STATES
_________________
No. 10–188
_________________
SCHINDLER ELEVATOR CORPORATION, PETI-
TIONER v. UNITED STATES EX REL.
DANIEL KIRK
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[May 16, 2011]
JUSTICE THOMAS delivered the opinion of the Court.
The False Claims Act (FCA), 31 U.S. C. §§3729–3733,
prohibits submitting false or fraudulent claims for pay
ment to the United States, §3729(a), and authorizes qui
tam suits, in which private parties bring civil actions in
the Government’s name, §3730(b)(1). This case concerns
the FCA’s public disclosure bar, which generally forecloses
qui tam suits that are “based upon the public disclosure of
allegations or transactions . . . in a congressional, adminis
trative, or Government Accounting Office report, hearing,
audit, or investigation.” §3730(e)(4)(A) (footnote omitted).1
We must decide whether a federal agency’s written re
sponse to a request for records under the Freedom of
Information Act (FOIA), 5 U.S. C. §552, constitutes a
“report” within the meaning of the public disclosure bar.
——————
1 During the pendency of this case, the Patient Protection and Afford
able Care Act, 124 Stat. 119, amended the public disclosure bar.
Because the amendments are not applicable to pending cases, Graham
County Soil and Water Conservation Dist. v. United States ex rel.
Wilson, 559 U. S. ___, ___, n. 1 (2010) (slip op., at 1, n. 1), this opinion
refers to the statute as it existed when the suit was filed.
2 SCHINDLER ELEVATOR CORP. v. UNITED STATES
EX REL. KIRK
Opinion of the Court
We hold that it does.
I
Petitioner Schindler Elevator Corporation manufac
tures, installs, and services elevators and escalators.2 In
1989, Schindler acquired Millar Elevator Industries, Inc.,
and the two companies merged in 2002.
Since 1999, Schindler and the United States have en
tered into hundreds of contracts that are subject to the
Vietnam Era Veterans’ Readjustment Assistance Act of
1972 (VEVRAA). That Act requires contractors like
Schindler to report certain information to the Secretary of
Labor, including how many of its employees are “qualified
covered veterans” under the statute. 38 U.S. C.
§4212(d)(1). VEVRAA regulations required Schindler to
agree in each of its contracts that it would “submit VETS–
100 Reports no later than September 30 of each year.” 48
CFR §52.222–37(c) (2008); see also §22.1310(b).
Respondent Daniel Kirk, a United States Army veteran
who served in Vietnam, was employed by Millar and
Schindler from 1978 until 2003. In August 2003, Kirk
resigned from Schindler in response to what he saw as
Schindler’s efforts to force him out.3
In March 2005, Kirk filed this action against Schindler
under the False Claims Act, which imposes civil penalties
and treble damages on persons who submit false or
——————
2 Thefacts in this Part, which we must accept as true, are taken
from the amended complaint and the filings submitted in opposition to
Schindler’s motion to dismiss.
3 Kirk filed a complaint with the Department of Labor’s Office of Fed
eral Contract Compliance Programs (OFCCP), claiming that he had
been “improperly demoted and constructively terminated by Schindler
despite his status as a Vietnam era veteran.” App. 23a. The OFCCP
investigated Schindler’s compliance with VEVRAA and found insuffi
cient evidence to support Kirk’s claim. In November 2009, the Depart
ment of Labor affirmed the OFCCP’s finding. 601 F.3d 94, 99 (CA2
2010).
Cite as: 563 U. S. ____ (2011) 3
Opinion of the Court
fraudulent claims for payment to the United States. 31
U.S. C. §3729(a). The FCA authorizes both civil actions
by the Attorney General and private qui tam actions to
enforce its provisions. §3730. When, as here, the Gov
ernment chooses not to intervene in a qui tam action, the
private relator stands to receive between 25% and 30% of
the proceeds of the action. §3730(d)(2).
In an amended complaint filed in June 2007, Kirk al
leged that Schindler had submitted hundreds of false
claims for payment under its Government contracts.
According to Kirk, Schindler had violated VEVRAA’s
reporting requirements by failing to file certain required
VETS–100 reports and including false information in
those it did file. The company’s claims for payment were
false, Kirk alleged, because Schindler had falsely certified
its compliance with VEVRAA. Kirk did not specify the
amount of damages he sought on behalf of the United
States, but he asserted that the value of Schindler’s
VEVRAA-covered contracts exceeded $100 million.
To support his allegations, Kirk pointed to information
his wife, Linda Kirk, received from the Department of
Labor (DOL) in response to three FOIA requests. Mrs.
Kirk had sought all VETS–100 reports filed by Schindler
for the years 1998 through 2006. The DOL responded by
letter or e-mail to each request with information about the
records found for each year, including years for which no
responsive records were located. The DOL informed Mrs.
Kirk that it found no VETS–100 reports filed by Schindler
in 1998, 1999, 2000, 2002, or 2003. For the other years,
the DOL provided Mrs. Kirk with copies of the reports
filed by Schindler, 99 in all.
Schindler moved to dismiss on a number of grounds,
including that the FCA’s public disclosure bar deprived
the District Court of jurisdiction. See §3730(e)(4)(A). The
District Court granted the motion, concluding that most of
Kirk’s allegations failed to state a claim and that the
4 SCHINDLER ELEVATOR CORP. v. UNITED STATES
EX REL. KIRK
Opinion of the Court
remainder were based upon the public disclosure of alle
gations or transactions in an administrative “report” or
“investigation.” 606 F. Supp. 2d 448 (SDNY 2009).
The Court of Appeals for the Second Circuit vacated and
remanded. 601 F.3d 94 (2010). The court effectively held
that an agency’s response to a FOIA request is neither a
“report” nor an “investigation” within the meaning of the
FCA’s public disclosure bar. See id., at 103–111 (agreeing
with United States ex rel. Haight v. Catholic Healthcare
West, 445 F.3d 1147 (CA9 2006), and disagreeing with
United States ex rel. Mistick PBT v. Housing Auth. of
Pittsburgh, 186 F.3d 376 (CA3 1999)). We granted certio
rari, 561 U. S. ___ (2010), and now reverse and remand.
II
Schindler argues that “report” in the FCA’s public dis
closure bar carries its ordinary meaning and that the
DOL’s written responses to Mrs. Kirk’s FOIA requests are
therefore “reports.” We agree.4
A
1
Adopted in 1986, the FCA’s public disclosure bar pro
vides:
“No court shall have jurisdiction over an action under
this section based upon the public disclosure of allega
tions or transactions in a criminal, civil, or adminis
trative 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
——————
4 Becausewe conclude that a written response to a FOIA request
qualifies as a “report” within the meaning of the public disclosure bar,
we need not address whether an agency’s search in response to a FOIA
request also qualifies as an “investigation.”
Cite as: 563 U. S. ____ (2011) 5
Opinion of the Court
the information.” 31 U.S. C. §3730(e)(4)(A) (footnote
omitted).
Because the statute does not define “report,” we look
first to the word’s ordinary meaning. See Gross v. FBL
Financial Services, Inc., 557 U. S. ___, ___ (2009) (slip op.,
at 7) (“Statutory construction must begin with the lan
guage employed by Congress and the assumption that the
ordinary meaning of that language accurately expresses
the legislative purpose” (internal quotation marks omit
ted)); Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187
(1995) (“When terms used in a statute are undefined, we
give them their ordinary meaning”). A “report” is “some
thing that gives information” or a “notification,” Webster’s
Third New International Dictionary 1925 (1986), or “[a]n
official or formal statement of facts or proceedings,”
Black’s Law Dictionary 1300 (6th ed. 1990). See also 13
Oxford English Dictionary 650 (2d ed. 1989) (“[a]n account
brought by one person to another”); American Heritage
Dictionary 1103 (1981) (“[a]n account or announcement
that is prepared, presented, or delivered, usually in formal
or organized form”); Random House Dictionary 1634 (2d
ed. 1987) (“an account or statement describing in detail an
event, situation, or the like”).
This broad ordinary meaning of “report” is consistent
with the generally broad scope of the FCA’s public disclo
sure bar. As we explained last Term, to determine the
meaning of one word in the public disclosure bar, we must
consider the provision’s “entire text,” read as an “inte
grated whole.” Graham County Soil and Water Conserva
tion Dist. v. United States ex rel. Wilson, 559 U. S. ___, ___,
___, n. 12 (2010) (slip op., at 8, 12, n. 12); see also Tyler v.
Cain, 533 U.S. 656, 662 (2001) (“We do not . . . construe
the meaning of statutory terms in a vacuum”). The other
sources of public disclosure in §3730(e)(4)(A), especially
“news media,” suggest that the public disclosure bar pro
6 SCHINDLER ELEVATOR CORP. v. UNITED STATES
EX REL. KIRK
Opinion of the Court
vides “a broa[d] sweep.” Graham County, supra, at ___
(slip op., at 8). The statute also mentions “administrative
hearings” twice, reflecting intent to avoid underinclusive
ness even at the risk of redundancy.
The phrase “allegations or transactions” in §3730(e)
(4)(A) additionally suggests a wide-reaching public disclo
sure bar. Congress covered not only the disclosure of
“allegations” but also “transactions,” a term that courts
have recognized as having a broad meaning. See, e.g.,
Moore v. New York Cotton Exchange, 270 U.S. 593, 610
(1926) (“ ‘Transaction’ is a word of flexible meaning”);
Hamilton v. United Healthcare of La., Inc., 310 F.3d 385,
391 (CA5 2002) (“[T]he ordinary meaning of the term
‘transaction’ is a broad reference to many different types of
business dealings between parties”).
2
Nor is there any textual basis for adopting a narrower
definition of “report.” The Court of Appeals, in holding
that FOIA responses were not “reports,” looked to the
words “hearing, audit, or investigation,” and the phrase
“criminal, civil, [and] administrative hearings.” It con
cluded that all of these sources “connote the synthesis of
information in an investigatory context” to “serve some
end of the government.” 601 F.3d, at 107; cf. Brief for
Respondent 30, n. 15 (“Each is part of the government’s
ongoing effort to fight fraud”). Applying the noscitur a
sociis canon, the Court of Appeals then determined that
these “ ‘neighboring words’ ” mandated a narrower mean
ing for “report” than its ordinary meaning. 601 F.3d, at
107.
The Court of Appeals committed the very error we re
versed in Graham County. Like the Fourth Circuit in that
case, the Second Circuit here applied the noscitur a sociis
canon only to the immediately surrounding words, to the
exclusion of the rest of the statute. See 601 F.3d, at 107,
Cite as: 563 U. S. ____ (2011) 7
Opinion of the Court
n. 6. We emphasized in Graham County that “all of the
sources [of public disclosure] listed in §3730(e)(4)(A) pro
vide interpretive guidance.” 559 U. S., at ___ (slip op., at
8). When all of the sources are considered, the reference
to “news media”—which the Court of Appeals did not
consider—suggests a much broader scope. Ibid.
The Government similarly errs by focusing only on
the adjectives “congressional, administrative, or [GAO],”5
which precede “report.” Brief for United States as Amicus
Curiae 18. It contends that these adjectives suggest that
the public disclosure bar applies only to agency reports
“analogous to those that Congress and the GAO would
issue or conduct.” Ibid. As we explained in Graham
County, however, those three adjectives tell us nothing
more than that a “report” must be governmental. See 559
U. S., at ___, n. 7 (slip op., at 7, n. 7). The governmental
nature of the FOIA responses at issue is not disputed.
Finally, applying the ordinary meaning of “report” does
not render superfluous the other sources of public disclo
sure in §3730(e)(4)(A). Kirk argues that reading “report”
to mean “something that gives information” would sub
sume the other words in the phrase “report, hearing,
audit, or investigation.” Brief for Respondent 23. But
Kirk admits that hearings, audits, and investigations are
processes “to obtain information.” Ibid. (emphasis added).
Those processes are thus clearly different from “something
that gives information.” Moreover, the statute contem
plates some redundancy: An “audit,” for example, will
often be a type of “investigation.”
We are not persuaded that we should adopt a “different,
somewhat special meaning” of “report” over the word’s
——————
5 Although the statute refers to the “Government Accounting Office,”
it is undisputed that Congress meant the General Accounting Office,
also known as GAO and now renamed the Government Accountability
Office. See Graham County, 559 U. S., at ___, n. 6 (slip op., at 6, n. 6).
8 SCHINDLER ELEVATOR CORP. v. UNITED STATES
EX REL. KIRK
Opinion of the Court
“primary meaning.” Muscarello v. United States, 524 U.S.
125, 130, 128 (1998). Indeed, we have cautioned recently
against interpreting the public disclosure bar in a way
inconsistent with a plain reading of its text. In Graham
County, we rejected several arguments for construing the
statute narrowly, twice emphasizing that the sole “touch
stone” in the statutory text is “public disclosure.” 559
U. S., at ___, ___ (slip op., at 11, 19). We chose in that case
simply to give the text its “most natura[l] read[ing],” id., at
___ (slip op., at 5), and we do so again here.
B
A written agency response to a FOIA request falls
within the ordinary meaning of “report.” FOIA requires
each agency receiving a request to “notify the person
making such request of [its] determination and the
reasons therefor.” 5 U.S. C. §552(a)(6)(A)(i). When an
agency denies a request in whole or in part, it must addi
tionally “set forth the names and titles or positions of each
person responsible for the denial,” “make a reasonable
effort to estimate the volume of any [denied] matter,” and
“provide any such estimate to the person making the
request.” §§552(a)(6)(C)(i), (F). The DOL has adopted
more detailed regulations implementing FOIA and man
dating a response in writing. See 29 CFR §70.21(a) (2009)
(requiring written notice of the grant of a FOIA request
and a description of the manner in which records will be
disclosed); §§70.21(b)–(c) (requiring a “brief statement of
the reason or reasons for [a] denial,” as well as written
notification if a record “cannot be located or has been
destroyed” (italics deleted)). So, too, have other federal
agencies. See, e.g., 28 CFR §16.6 (2010) (Dept. of Justice);
43 CFR §2.21 (2009) (Dept. of Interior); 7 CFR §1.7 (2010)
(Dept. of Agriculture). Such an agency response plainly is
“something that gives information,” a “notification,” and
an “official or formal statement of facts.”
Cite as: 563 U. S. ____ (2011) 9
Opinion of the Court
Any records the agency produces along with its written
FOIA response are part of that response, “just as if they
had been reproduced as an appendix to a printed report.”
Mistick, 186 F.3d, at 384, n. 5. Nothing in the public
disclosure bar suggests that a document and its attach
ments must be disaggregated and evaluated individually.
If an allegation or transaction is disclosed in a record
attached to a FOIA response, it is disclosed “in” that FOIA
response and, therefore, disclosed “in” a report for the
purposes of the public disclosure bar.6
The DOL’s three written FOIA responses to Mrs. Kirk,
along with their attached records, are thus reports within
the meaning of the public disclosure bar. Each response
was an “official or formal statement” that “[gave] informa
tion” and “notif[ied]” Mrs. Kirk of the agency’s resolution
of her FOIA request.
III
A
In interpreting a statute, “[o]ur inquiry must cease if
the statutory language is unambiguous,” as we have
found, and “ ‘the statutory scheme is coherent and consis
tent.’ ” Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)
(quoting United States v. Ron Pair Enterprises, Inc., 489
U.S. 235, 240 (1989)). We are not persuaded by asser
tions that it would be anomalous to read the public disclo
sure bar to encompass written FOIA responses.
1
The drafting history of the public disclosure bar does not
contradict our holding. As originally enacted in 1863, the
FCA placed no restriction on the sources from which a qui
tam relator could acquire information on which to base a
——————
6 It is irrelevant whether a particular record is itself a report. The
attached records do not “becom[e]” reports, 601 F.3d, at 109, but
simply are part of a report.
10 SCHINDLER ELEVATOR CORP. v. UNITED STATES
EX REL. KIRK
Opinion of the Court
lawsuit. See Graham County, 559 U. S., at ___ (slip op.,
at 12). Accordingly, this Court upheld the recovery of a
relator, even though the Government claimed that he had
discovered the basis for his lawsuit by reading a federal
criminal indictment. See United States ex rel. Marcus v.
Hess, 317 U.S. 537 (1943). In response, Congress
amended the statute to preclude such “parasitic” qui tam
actions based on “evidence or information in the posses
sion of the United States . . . at the time such suit was
brought.” 559 U. S., at ___ (slip op., at 12–13) (internal
quotation marks omitted). Then, in 1986, Congress re
placed the so-called Government knowledge bar with the
narrower public disclosure bar. Id., at ___ (slip op., at 13).
The Court of Appeals concluded that it would be incon
sistent with this drafting history to hold that written
FOIA responses are reports. The court reasoned that
doing so would “essentially resurrect, in a significant
subset of cases, the government possession standard . . .
repudiated in 1986.” 601 F.3d, at 109.
We disagree with the Court of Appeals’ conclusion. As a
threshold matter, “the drafting history of the public disclo
sure bar raises more questions than it answers.” Graham
County, supra, at ___ (slip op., at 14). In any event, it is
hardly inconsistent with the drafting history to read the
public disclosure bar as operating similarly to the Gov
ernment knowledge bar in a “subset of cases.” 601 F.3d,
at 109. As we have observed, “[r]ather than simply repeal
the Government knowledge bar,” the public disclosure bar
was “an effort to strike a balance between encouraging
private persons to root out fraud and stifling parasitic
lawsuits.” 559 U. S., at ___ (slip op., at 13) (emphasis
added).
If anything, the drafting history supports our holding.
The sort of case that Kirk has brought seems to us a clas
sic example of the “opportunistic” litigation that the public
disclosure bar is designed to discourage. Ibid. (internal
Cite as: 563 U. S. ____ (2011) 11
Opinion of the Court
quotation marks omitted). Although Kirk alleges that he
became suspicious from his own experiences as a veteran
working at Schindler, anyone could have filed the same
FOIA requests and then filed the same suit. Similarly,
anyone could identify a few regulatory filing and certifica
tion requirements, submit FOIA requests until he discov
ers a federal contractor who is out of compliance, and
potentially reap a windfall in a qui tam action under the
FCA. See Brief for Chamber of Commerce of the United
States of America et al. as Amici Curiae 20 (“Government
contractors . . . are required to submit certifications re
lated to everything from how they dispose of hazardous
materials to their affirmative action plans” (citing 40
U.S. C. §3142 and 29 U.S. C. §793)).7
2
Nor will extending the public disclosure bar to written
FOIA responses necessarily lead to unusual consequences.
FOIA requires agencies to release some records even
absent a request. See 5 U.S. C. §§552(a)(1), (2). Kirk
argues that it would be strange that two relators could
obtain copies of the same document but that only the
relator who got the document in response to a FOIA re
quest would find his case barred.
This argument assumes that records released under
FOIA, but not attached to a written FOIA response, do not
fall within the public disclosure bar. We do not decide
that question. But even assuming, as Kirk does, that such
records are not covered by the public disclosure bar, we
——————
7 There is no merit to the suggestion that the public disclosure bar is
intended only to exclude qui tam suits that “ride the investigatory
coattails of the government’s own processes.” Brief for Taxpayers
Against Fraud Education Fund as Amicus Curiae 25, 26; see Graham
County, 559 U. S., at ___ (slip op., at 19) (rejecting the argument that
the public disclosure bar applies only to allegations or transactions that
“have landed on the desk of a DOJ lawyer”).
12 SCHINDLER ELEVATOR CORP. v. UNITED STATES
EX REL. KIRK
Opinion of the Court
are not troubled by the different treatment. By its plain
terms, the public disclosure bar applies to some meth-
ods of public disclosure and not to others. See Graham
County, supra, at ___ (slip op., at 4) (“[T]he FCA’s public
disclosure bar . . . deprives courts of jurisdiction over qui
tam suits when the relevant information has already
entered the public domain through certain channels”
(emphasis added)). It would not be anomalous if some
methods of FOIA disclosure fell within the scope of the
public disclosure bar and some did not.
We also are not concerned that potential defendants will
now insulate themselves from liability by making a FOIA
request for incriminating documents. This argument
assumes that the public disclosure of information in a
written FOIA response forever taints that information for
purposes of the public disclosure bar. But it may be that a
relator who comes by that information from a different
source has a legitimate argument that his lawsuit is not
“based upon” the initial public disclosure. 31 U.S. C.
§3730(e)(4)(A). That question has divided the Courts of
Appeals, and we do not resolve it here. See Glaser v.
Wound Care Consultants, Inc., 570 F.3d 907, 915 (CA7
2009) (describing the split in authority). It may also
be that such a relator qualifies for the “original source”
exception.8
In any event, the notion that potential defendants will
make FOIA requests to insulate themselves from liability
——————
8 An “original source” is “an individual who has direct and independ
ent 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.”
§3730(e)(4)(B). Some Courts of Appeals have narrowly construed the
exception to limit “original sources” to those who were the cause of the
public disclosure, while others have been more generous. See United
States ex rel. Duxbury v. Ortho Biotech Prods., L. P., 579 F.3d 13, 22
(CA1 2009) (describing a three-way split among the Courts of Appeals).
That question is not before us, and we do not decide it.
Cite as: 563 U. S. ____ (2011) 13
Opinion of the Court
is pure speculation. Cf. Graham County, 559 U. S., at ___
(slip op., at 19) (rejecting as “strained speculation” an
argument that local governments will manipulate the
public disclosure bar to escape liability). There is no
suggestion that this has occurred in those Circuits that
have long held that FOIA responses are “reports” within
the meaning of the public disclosure bar.
B
Even if we accepted these extratextual arguments, Kirk
and his amici have provided no principled way to define
“report” to exclude FOIA responses without excluding
other documents that are indisputably reports. The Gov
ernment, for example, struggled to settle on a single defi
nition. Compare Brief for United States as Amicus Curiae
19 (“report” must be read to “reflect a focus on situations
in which the government is conducting, or has completed,
some focused inquiry or analysis concerning the relevant
facts”) with id., at 21 (“A FOIA response is not a ‘report’
. . . because the federal agency is not charged with uncov
ering the truth of any matter”), and Tr. of Oral Arg. 33
(“[T]he way to think about it is whether or not the agency
. . . is engaging in a substantive inquiry into and a sub
stantive analysis of information”). It is difficult to see how
the Department of Justice’s “Annual Report” of FOIA
statistics—something that is indisputably a Government
report—would qualify under the latter two definitions.
See Dept. of Justice, Freedom of Information Act An-
nual Report, Fiscal Year 2010, http://www.justice.gov/oip/
annual_report/2010/cover.htm (as visited May 12, 2011,
and available in Clerk of Court’s case file); see also Tr. of
Oral Arg. 19 (Kirk conceding that the DOJ annual report
is a report). And even if the first definition arguably
encompasses that report, it would seem also to include
FOIA responses, which convey the results of a Govern
ment agency’s “focused inquiry.”
14 SCHINDLER ELEVATOR CORP. v. UNITED STATES
EX REL. KIRK
Opinion of the Court
Kirk also was unable to articulate a workable definition.
His various proposed definitions suffer the same deficien
cies as the Government’s. Compare Brief for Respondent
27 and Tr. of Oral Arg. 17–18 with Brief for Respondent
34–39 and Tr. of Oral Arg. 23. Kirk’s first suggestion
would exclude “a lot of things that are labeled . . . report,”
id., at 22, and the second—the definition advanced by the
Court of Appeals—would seem to include written FOIA
responses, id., at 28–29. In the end, it appears that the
“only argument is that FOIA is a different kind of mis
sion”—“a special case.” Id., at 31. We see no basis for that
distinction and adhere to the principle that undefined
statutory terms carry their ordinary meaning.
* * *
The DOL’s three written FOIA responses in this case,
along with the accompanying records produced to Mrs.
Kirk, are reports within the meaning of the public dis
closure bar. Whether Kirk’s suit is “based upon . . .
allegations or transactions” disclosed in those reports is a
question for the Court of Appeals to resolve on remand.
The judgment of the United States Court of Appeals for
the Second Circuit is reversed, and the case is remanded
for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE KAGAN took no part in the consideration or
decision of this case.
Cite as: 563 U. S. ____ (2011) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–188
_________________
SCHINDLER ELEVATOR CORPORATION, PETI-
TIONER v. UNITED STATES EX REL.
DANIEL KIRK
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[May 16, 2011]
JUSTICE GINSBURG, with whom JUSTICE BREYER and
JUSTICE SOTOMAYOR join, dissenting.
The Veteran Era Veterans’ Readjustment Assistance
Act of 1972 (VEVRAA) requires federal contractors to
certify, each year, the number of “qualified covered veter
ans” they employ and related information. 38 U.S. C.
§4212(d); 48 CFR §§22.1310(b) and 52.222–37(c) (2008).
Respondent Daniel A. Kirk, a Vietnam War veteran and a
former employee of petitioner Schindler Elevator Corpora
tion (Schindler), had cause to believe, based on his own
experience and observations, that Schindler failed to meet
VEVRAA’s annual information-reporting requirements.
To confirm and support his on-the-job observations, Kirk
obtained, through several Freedom of Information Act
(FOIA) requests to the Department of Labor (DOL), copies
of Schindler’s VEVRAA filings. The DOL responses re
vealed that, in some years, Schindler filed no information,
while in some other years, the corporation filed false in
formation. Armed with the DOL’s confirmation of his own
impressions, Kirk commenced suit against Schindler
under the federal False Claims Act (FCA), 31 U.S. C.
§3729 et seq.
In a carefully developed, highly persuasive opinion, the
Second Circuit explained why a federal agency’s response
2 SCHINDLER ELEVATOR CORP. v. UNITED STATES
EX REL. KIRK
GINSBURG, J., dissenting
to a FOIA request should not automatically qualify as
a “report, hearing, audit, or investigation” preclusive of a
whistleblower’s lawsuit under the public disclosure bar of
the FCA, §3730(e)(4). I would affirm the Second Circuit’s
judgment as faithful to the text, context, purpose, and
history of the FCA’s public disclosure bar.
The Court finds no “textual basis” for the Second Cir
cuit’s interpretation of the statutory language. Ante, at 6.
But the Court of Appeals’ opinion considered text as well
as context. Leaving aside the term “report,” the court
explained:
“All of the other terms in [§3730(e)(4)(A)’s] list of
enumerated sources connote the synthesis of informa
tion in an investigatory context. ‘[C]riminal, civil,
[and] administrative hearings,’ for instance, all entail
a government inquiry into a given subject, here into
an alleged case of fraud. Similarly, government ‘hear
ing[s and] audit[s]’ are processes by which information
is compiled with the concerted aim of deepening a
government entity’s knowledge of a given subject or,
often, determining whether a party is in compliance
with applicable law. . . .
“In this context, the term ‘report’ most readily bears
a narrower meaning than simply ‘something that
gives information.’ Rather, it connotes the compila
tion or analysis of information with the aim of synthe
sizing that information in order to serve some end of
the government, as in a ‘hearing’ or ‘audit.’ It does
not naturally extend to cover the mechanistic produc
tion of documents in response to a FOIA request made
by a member of the public.” 601 F.3d 94, 107 (2010)
(citations omitted).
Focusing on the FOIA requests in this case, the Court of
Appeals observed that DOL’s responses did not “synthe
size the documents or their contents with the aim of itself
Cite as: 563 U. S. ____ (2011) 3
GINSBURG, J., dissenting
gleaning any insight or information, as . . . it necessarily
would in conducting a ‘hearing’ or ‘audit.’ ” Id., at 108.
Far from “compil[ing] or synthesiz[ing] information to
serve its own investigative or analytic ends,” id., at 111,
DOL merely assembled and duplicated records, or noted
the absence of records.
Contrary to the Court’s assertion, moreover, the Second
Circuit was mindful of the “error we reversed in Graham
County [Soil and Water Conservation Dist. v. United
States ex rel. Wilson, 559 U. S. ___ (2010)],” ante, at 6; the
Court of Appeals used the noscitur a sociis canon only “as
a guide in sifting through the common understandings of
‘report’ and ‘investigation’ to discover their intended
meaning within the FCA.” 601 F.3d, at 108, n. 6. The
court explained:
“We . . . have not used the canon to impose commonal
ity on terms that ‘do not share any . . . core of mean
ing,’ Graham County, [559 U. S., at ___, n. 7 (slip op.,
at 7, n. 7)]. To the contrary, the terms ‘hearing,’ ‘re
port,’ ‘audit,’ and ‘investigation’ all refer to processes
of uncovering and analyzing information or to the
products of those processes. Our interpretation fo
cuses on their shared ‘core of meaning.’ ” Ibid.
The Court faults the Court of Appeals for not consider
ing §3730(e)(4)(A)’s “reference to ‘news media,’ ” ante, at 7,
suggesting that this omission overlooked Graham County’s
observation that “all of the sources [of public disclosure]
listed in §3730(e)(4)(A) provide interpretive guidance.”
559 U. S., at ___ (slip op., at 8). Schindler did not make
this argument below. In any event, the point would have
been unavailing. Disclosures “of allegations or transac
tions . . . from the news media,” §3730(e)(4)(A) (emphasis
added), share a common core of meaning with disclosures
in other sources that involve “processes of uncovering and
analyzing information or . . . the products of those proc
4 SCHINDLER ELEVATOR CORP. v. UNITED STATES
EX REL. KIRK
GINSBURG, J., dissenting
esses.” 601 F.3d, at 108, n. 6.
The Court regards the case Kirk has brought as “a
classic example of the ‘opportunistic’ litigation that the
public disclosure bar is designed to discourage.” Ante, at
10. But as the Second Circuit observed:
“[T]he facts of this case belie the assertion that indi
viduals who are not original sources and who obtain
information through FOIA requests will generally not
be persons with firsthand knowledge of fraud but
rather will be opportunistic litigators. The facts also
illustrate how an overbroad reading of the jurisdic
tional bar would prevent an individual with inde
pendent but partial knowledge of a possible fraud
would be barred from bringing a lawsuit that is nei
ther parasitic nor frivolous.” 601 F.3d, at 110 (cita
tion omitted).
By ranking DOL’s ministerial response an “administra
tive . . . report,” akin to a “Government Accounting Office
report,” §3730(e)(4)(A) (footnote omitted), the Court weak
ens the force of the FCA as a weapon against fraud on
the part of Government contractors. Why should a whis
tleblower attentive to the heightened pleading standards
of Federal Rule of Civil Procedure 9(b) be barred from
court if he seeks corroboration for his allegations, as Kirk
did, through a FOIA request simply for copies of a contrac
tor’s filings? After today’s decision, which severely limits
whistleblowers’ ability to substantiate their allegations
before commencing suit, that question is worthy of Con
gress’ attention.