On February 3, 2015, United States ex rel. Wilson v. Graham Cnty. Soil & Water Conservation Dist., No. 13-2345, 2015 WL 427649, 2015 U.S. App. LEXIS 1663 (4th Cir. Feb. 3, 2015), the Fourth Circuit Court of Appeals reversed the district court’s public disclosure bar dismissal, holding that reports circulated only amongst government officials does not constitute a “public disclosure.”

In the mid-1990s, the Graham County Soil & Water Conservation District (“SWCD”) received federal funding as part of the Emergency Watershed Protection Program. Relator Karen Wilson, a former part-time secretary at the Graham County SWCD, voiced her concerns to the United States Department of Agriculture (“USDA”) that her employer had misappropriated government funds through hiring contractors based on their willingness to provide a kickback of the profits, hiring ineligible salaried employees as “independent contractors,” and stealing supplies procured through government funding. In response to Wilson’s inquiries, the USDA issued an audit report and a findings report; each report indicated that it was only for distribution to federal and state officials. In 2001, Wilson filed a qui tam action alleging that fraudulent invoices had been submitted to the government. The district court dismissed Wilson’s complaint finding that the reports had been publicly disclosed, that Wilson had based her claims on these public disclosures, and that she was not the original source of her claims.

The Fourth Circuit reversed, holding that the public disclosure bar applies only where disclosures have been made available to the public at large and that there must be “some act of disclosure outside of the government” in order to constitute a public disclosure. In so holding, the Fourth Circuit joined the approach taken by the First, Ninth, Tenth, Eleventh, and the D.C. Circuit. To date, only the Seventh Circuit has held that a disclosure to a government official constitutes a public disclosure.

The Fourth Circuit also rejected the defendants’ contention that even if the reports had been circulated only amongst government officials, public information enabled the reports to be disclosed to the public at large. The Fourth Circuit explained that the public disclosure bar applies only to information that has been “affirmatively provided to others not previously informed thereof.” The Court reasoned that equating “eligibility for disclosure with disclosure itself does more than merely place the cart before the horse; it places the cart before a horse that may never follow.”

As the Fourth Circuit commented, Graham County has taken a “long and winding road” as the case has been before the Supreme Court twice and this marked its third trip to the Fourth Circuit. Although the Fourth Circuit addressed an earlier version of the public disclosure bar, the holding is nevertheless important as it furthers the circuit split on what constitutes a “public disclosure.” Consequently, while courts have made clear that government reports accessible by the public are subject to the public disclosure bar, the majority of courts to have addressed the issue have found that in order to constitute a public disclosure, the documents must have actually reached the public.