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Nature of Documents Determined Applicability of Jurisdictional Bar

The dismissal of a False Claims Act qui tam action was vacated and remanded by the Court of Appeals for the Second Circuit because the documents the relator obtained through Freedom of Information Act requests, while publicly disclosed, did not constitute administrative reports or investigations within the meaning of the FCA's jurisdictional bar. The relator, a former employee of a government contractor, alleged the contractor violated the FCA by obtaining contracts and payments from the government while failing to comply with the requirements of the Vietnam Era Veterans Readjustment Assistance Act (38 USC 4212), which requires government contractors to submit annual reports to the Secretary of Labor providing information about the number of veterans they employ. Pursuant to the Veterans Employment Opportunities Act (31 USC 1354), "no agency may obligate or expend funds ... to enter into a contract [covered by VEVRAA] with a contractor from which a ... report was required" if the contractor did not submit the required report. In addition, FAR 52.222-38 provides that "[b]y submission of its offer, the offeror represents that, if it is subject to the reporting requirements [of VEVRAA] ... it has submitted the most recent ... [r]eport required by [the Act]." According to the relator, the contractor failed to submit some reports and falsified others. The relator based his allegations in large part on documents he obtained through a FOIA request. Information produced in response to a FOIA request becomes public once the requester receives it, so the information the relator received here was "publicly disclosed. "

"Investigatory Context"

At issue, therefore, was whether all FOIA materials qualify as an enumerated source under 31 USC 3730(e)(4)(A), which states courts do not have jurisdiction over actions that are based on the "public disclosure" of information found in "administrative ... report[s] ... or investigation[s] ... unless the ... person bringing the action is an original source of the information." Noting other courts of appeals were split on the issue, the court reviewed the statute and legislative history and concluded that whether a document obtained through a FOIA request is an enumerated source within the meaning of 3730(e)(4)(A) depends on the nature of the document itself. The court first looked at the language of the provision and determined all of the other terms in the list of enumerated sources involved the "synthesis of information in an investigatory context." According to the court, given this company of "neighboring words," it would strain the natural meaning of the statute to construe the terms "report" and "investigation" broadly so as to include all materials produced in response to a FOIA request. In responding to a request, the government does not synthesize the documents or their contents to glean insight or information. Rather, FOIA is simply a mechanism for granting public access to information in the government's possession. In addition, legislative history showed the 1986 amendments to the FCA's jurisdictional provision repudiated the standard for barring all actions based on information in the government's possession. Thus, the mere fact the government has assembled records, or noted the absence of records, in responding to a FOIA request does not render the produced material an "administrative ... report ... or investigation" within the meaning of 3730(e)(4)(A). (U.S. ex rel. Kirk v. Schindler Elevator Corp., CA-2, 54 CCF 79,304)




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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