Courts generally agree in False Claims Act cases that the government alone does not count as “the public” for purposes of the Act’s public disclosure bar. The current bar calls for dismissal of complaints whose allegations have already been publicly disclosed, with the aim of preventing parasitic suits. Seven circuits subscribe to the view that “public disclosure” requires an act of disclosure to the public outside of the government.
The only circuit taking a different view is the Seventh. The Seventh Circuit agrees with the obvious conclusion that disclosure to the general public at large satisfies the requirement. But it also holds that disclosure to a competent government (think “public”) official qualifies, a view it has expressed in several opinions. In particular, it considers administrative reports and investigations to be sufficient to demonstrate public disclosure.
This Monday, the Seventh Circuit affirmed dismissal of a False Claims Act case because the plaintiff’s allegations had already been publicly disclosed through an audit report made available online to the general public. This result itself is not particularly interesting or unique, as it relies on the first, obvious category of disclosure to the general public.
But before the court considered this obvious disclosure and reached its conclusion, it reviewed its prior holdings that disclosure to the government alone satisfies the bar. It then assessed whether a different disclosure and resulting federal agency investigation was sufficient. It found that, under its precedents, a letter from the federal agency describing its “in-depth review” was “placed in the public domain” at least as early as when it was sent to the subject of the investigation.
Interestingly, the court then acknowledged and fully outlined the other circuits’ views that disclosure to the government alone does not satisfy the “public” requirement of the bar. It noted, “There is significant force in the position of the other circuits.” It next expressed that, if this different disclosure were the only one before the court, respect for the other circuits would have warranted “in-depth reconsideration of our precedent.” Ultimately, it declined to address the issue further and relied on the obvious general public disclosure alone to satisfy the “public disclosure” requirement of the bar.
Although the Seventh Circuit did not end up reversing its precedent, Monday’s opinion serves as an open invitation to challenge the standard in district court cases within the circuit and on appeal. And the full voice the court gave to its sister circuits’ view, its acknowledgement of the “significant force” of that view, and its suggestion that in-depth “reconsideration” would be warranted all indicate that the court is very open to joining the other circuits and ending the split over this issue.
This development will embolden False Claims Act plaintiffs in the Seventh Circuit, who will feel confident challenging dismissals in cases with government disclosures, investigations, and reports, but no disclosures to the general public.
Ultimately, when someone accepts the Seventh Circuit’s invitation to raise this issue again, the court should strongly consider upholding its precedents. Interpreting government disclosures as “public” is consistent with the public disclosure bar’s primary purpose of discouraging opportunistic suits by plaintiffs leeching off already-known information. And, unlike the pre-1986 amendment government knowledge bar that stymied even legitimate whistleblower cases, the original source provisions of the current public disclosure bar protect and encourage those with valuable, new information to come forward even if some of their allegations have already been disclosed to the government or the general public.
The case is Cause of Action v. Chicago Transit Authority, No. 15-1143, 2016 WL 767345 (7th Cir. Feb. 29, 2016).