The Hurdle of the Public Disclosure Bar. A whistleblower who brings a qui tam lawsuit under the federal False Claims Act (FCA) faces the hurdle of the public disclosure bar.
A qui tam case may be dismissed if it is “based upon the public disclosure of allegations or transactions” in certain specified ways, including in a government “report, hearing, audit, or investigation,” unless the whistleblower is the “original source” of that information. In 1999, the U.S. Court of Appeals for the Seventh Circuit ruled that information provided to a “competent government official” was “publicly disclosed” within the meaning of the public disclosure bar, National Law Journal reports. That interpretation of “public disclosure” is problematic for a whistleblower, who may have no way of knowing whether information was previously provided to the government if that same information was not also disclosed to the general public. If a government internal investigation uncovered the fraud, then under Bank of Farmington, a non-public report of that investigation could trigger the public disclosure bar.
Only Disclosures Made to the Public.
But the Seventh Circuit’s interpretation has been rejected by other federal appellate court decisions. The U.S. Court of Appeals for the Fourth Circuit considered whether government audits and investigations are public disclosures if the reports are distributed within the government, but not to the general public. The Fourth Circuit held that such reports were not public disclosures, reasoning that that “Congress indicated that only disclosures made to the public at large or to the public domain” would trigger the public-disclosure bar, according to National Law Journal. The Court specifically rejected the ruling in Bank of Farmington.
The Sixth Circuit Court of Appeals reached the same result in a case in which the whistleblower said that the defendant, which operated a hospital, submitted false claims to federally funded healthcare programs. The whistleblower alleged he discovered the fraud by analyzing the defendant’s internal records, but unbeknown to him, the government had begun an audit of defendant’s billing practices in late 2006. The audit resulted in a settlement in late 2009, National Law Journal reports. The whistleblower disclosed his allegations to the government in 2010, and filed his qui tam case in 2011. The district court dismissed his case under the public disclosure bar, holding that the administrative audit was a “public disclosure” within the meaning of the bar. The Sixth Circuit reversed the dismissal, holding that disclosure of information to the government does not constitute a “public disclosure” because the government is not the “public.” The involvement by private companies—AdvanceMed and Deloitte—in the audit process did not change the result, the Court held, because their reports were distributed only within the government, and the companies were under an obligation to keep their findings confidential.