Today, the Supreme Court asked the Solicitor General to submit a brief expressing the views of the United States on a key definitional issue under the public disclosure bar in Graham County Soil & Water Conservation District v. United States ex rel. Wilson, No. 08-304 ("Graham County II"). The issue raised in Petitioner/Defendant Graham County's petition for certiorari is whether an audit and investigation performed by a state or its political subdivision could be considered an "administrative report" that qualifies as a "public disclosure" within the meaning of Section 3730(e)(4)(A). This is the second time in two years that the Supreme Court has requested the government's views on this issue.
This question comes to the Court from a case arising in the Fourth Circuit, United States ex rel. Wilson v. Graham County Soil & Water Conservation District, 528 F.3d 292 (4th Cir. 2008), and is virtually identical to the one raised two terms ago in the relator's petition for certiorari in United States ex rel. Bly-Magee v. Premo (No. 06-1269) (filed Mar. 16, 2007). See FraudMail Alert No. 07-05-30. As it did today, the Court invited the Solicitor General to file a brief expressing the views of the United States in Bly-Magee. The Solicitor General recognized the importance of the question, but recommended denying certiorari in Bly- Magee on the basis that only one circuit, the Third, had disagreed with the Eighth, Ninth and Eleventh Circuits in holding that the public disclosure bar was limited to federal administrative reports, and that this issue was unlikely to affect the outcome of that case.
Now that the Fourth Circuit in Graham County II has joined the Third Circuit in United States ex rel. Dunleavy v. County of Delaware, 123 F.3d 734 (3d Cir. 1997) in creating a per se rule against public disclosures made in state reports, audits, or investigations--regardless of any other factors, including the scope, nature, subject, or circulation of the state report--the circuit split on this important issue is more pronounced than it was in Bly-Magee. This per se rule undermines the purpose of the public disclosure bar by allowing parasitic suits based on public information to go forward without assessing the relator's qualifications as an original source. See Br. of the Washington Legal Foundation and the Allied Educational Foundation as Amici Curiae in Support of Petitioners, Graham County II (filed Oct. 8, 2008), available at http://www.wlf.org/upload/101008grahamBrief.pdf. (The reader should note that the author represents WLF and AEF and submitted this amicus brief on their behalf).
There is no time limit in the Court's invitation to the Solicitor General to file a brief in Graham County II. In view of the impending change in administrations, it is likely that the government's brief will be the new Obama administration's first opportunity to weigh in on an FCA issue before the Supreme Court.