On March 30, 2010, the Supreme Court decided Graham County Soil and Water Conservation Dist. v. U.S. ex rel. Wilson, — S.Ct. —-, 2010 WL 1189557 (2010), holding that the public disclosure provisions of the qui tam section of the federal civil false claims act, 29 U.S.C. 3730(e)(4) barred qui tam relators from bringing an action based on information disclosed in county and state administrative reports. Both the majority opinion written by Justice Stevens and the dissent authored by Justice Sotomayor (joined by Breyer) offer treatises on statutory construction (complimented by a grumpy concurring opinion by Scalia reminding the reader that the “snippets of legislative history” are “utterly irrelevant” as it is “utterly impossible” to discern legislative intent from anything other than the text of a law).
It should be noted that even as the Court announced its decision, it was already moot. Section 10404(j) of the Patient Protection and Affordable Care Act has amended 29 U.S.C. 3730(e)(4) to provide:
“The court shall dismiss an action or claim under this section, unless opposed by the Government, if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed—
(i) in a Federal criminal, civil, or administrative hearing in which the Government or its agent is a party; (ii) in a congressional, Government Accountability Office, or other Federal report, hearing, audit, or investigation; or (iii) from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.”
Under this statute, information found in a state administrative report (or in a state court case or even in a federal court case to which the federal government is not a party) is not publicly disclosed, and can form the basis of a qui tam case, contrary to the Court’s holding.
The statute also amends the definition of “original source”:
“For purposes of this paragraph, ‘‘original source’’ means an individual who either (i) prior to a public disclosure under subsection (e)(4)(a), has voluntarily disclosed to the Government the information on which allegations or transactions in a claim are based, or (2) who has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions, and who has voluntarily provided the information to the Government before filing.”
I discussed the ramifications of this change in an earlier post.