11th Circuit affirms dismissal of qui tam suit on public disclosure grounds

by Ben Vernia | September 7th, 2011

On August 26, the Eleventh Circuit Court of Appeals affirmed the district court’s dismissal of U.S. ex rel. Lewis v. Walker, a qui tam alleging that several employees of the EPA, the Univ. of Georgia and the university’s research foundation violated the False Claims Act by submitting false information to obtain grants to study the contamination of farmland by sewage sludge.

The relators had obtained information used in their qui tam suit though federal and state Freedom of Information Act requests, and they had argued, prior to the Supreme Court’s decision in Schindler Elev. Corp. v. U.S. ex rel. Kirk that the agencies’ responses to the FOIA requests were not reports within the meaning of the public disclosure bar. Post-Kirk (holding that FOIA responses are reports triggering the bar), the Court of Appeals concluded that the only issue remaining was whether the relators were original sources under the pre-health care reform version of the FCA governing the case.

The Eleventh Circuit rejected the relator’s original source claims, first dismissing the argument that their reconstruction of the undisclosed grant applications qualified them, on the grounds that all of the information they used to reconstruct the applications was publicly available. The court likewise disagreed with the relators that their role in filing an earlier lawsuit that led to the grant application and study qualified them as an original source.

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