Supreme Court will hear Schindler Elevator case from Second Circuit, resolve (?) FOIA public disclosure question

by Ben Vernia | October 14th, 2010

On September 28, the Supreme Court granted certiorari in U.S. ex rel. Kirk v. Schindler Elev. Corp. a Second Circuit decision from April, 2010. That court had stated:

We hold that a document obtained in response to a request made under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, qualifies as an enumerated source triggering the jurisdictional bar of the False Claims Act (“FCA”), 31 U.S.C. § 3730(e)(4)(A), only when the document itself is a “congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation,” and that the documents obtained by the plaintiff through FOIA do not fall within any of these categories.

No argument date has yet been set by the Court.

Comment: It is obvious to any long-term scholar of the False Claims Act that the law has become one of the Supreme Court’s favorites. Although the Act accounts for only about 15 Supreme Court cases in its 147-year history, it has accepted one FCA case each term since its 2006-term case, Rockwell International (decided in 2007). The Court has not had a winning track record, however, in picking issues on which it can make an abiding impact, and Schindler Elevator promises to be just such a footnote in FCA history. As the Second Circuit noted, it was interpreting a version of the FCA’s public disclosure bar which was superseded (and dramatically so) by amendments to that provision in the Patient Protection and Affordable Care Act, Pub. L. 111-148. Although those amendments do not address documents received through FOIA requests, their change to the overall language makes any decision based on the old language of dubious precedential value.

The Court’s time and energy would be far better spent on any of the several circuit split issues which have not been the subject of Congressional tinkering (particularity and the application of Fed. R. Civ. P. 9(b) first and foremost among these).

It is also noteworthy (and genuinely sad) that the Solicitor General did not weigh in on the question at the certiorari petition stage. Instead, the public interest was represented by such neutral groups as the Equal Employment Advisory Council (“the nation’s largest nonprofit association of employers dedicated exclusively to the advancement of practical and effective programs to eliminate workplace discrimination,” whose main interest was in fighting the relator’s allegations of false and missing veteran preference records at federal contractors) and the U.S. Chamber of Commerce (which needs no introduction). Although I think it’s regrettable that the Court decided to hear this case, the Justice Department shares in the blame for not providing its unique perspective on the FCA.

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