domain as they were not disclosed to the public through any of the three channels that are set forth in the false claims act to the extent that this court one thousand nine hundred nine to sit in the united states ex from matthews versus bank of farmington applies and would find that they are public nonetheless this court should take the opportunity to at a minimum clarify its decision and farmington second do we really need to reach that question here scuse me you don't even if farmington doesn't apply k letter the illinois office of auditor general's audit in two thousand and seven however is in the public domain it is not a public disclosure however as it does not contain facts establishing the essential elements of a fraud in fact if you were to look at that audit report on page seventy two of the three hundred page document there are a few sentences regarding saying that the auditor is its  review raised questions about the reporting of revenue miles it does not state or have any information about who these miles were reported to there's also no information in there about any sort of federal funding program or any federal program or funds at all as such they are simply there's also nothing in there about any sort of see enter or any of the other elements that any of the other essential elements necessary to leap frogged and that's true with the other two documents as well the two icons that are not in the public domain mr rubin's in your view there are none of these done you know the documents are public disclosures two are not in the public domain that that decision is not in accord with the statutory tax it's not in accord with the majority of the other course i've looked at this and it's not in accord with the purpose of the public disclosure bar which the supreme court has recently clarified it's graham county decision in that decision it noted that in one nine hundred eighty six congress replaced in the false claims act what was known as the government knowledge bar and it replaced it with the public disclosure bar in order to quote strike a balance between encouraging private persons for a while although it was reversed in part another part of it was reversed by this court and its glazer decision and the court today picked up are trying to reverse another part of farmington in part because in farmington that court asserted without any citation or support that a purpose of the public disclosure bar is to bring fraud to the government's attention there is simply no support for that proposition it's not the purpose  in graham county or in supreme court's two thousand and three decision in cook county nor is does the congressional record support that as a purpose in fact congressional record makes clear the congress replaced the government knowledge bar with the public disclosure bar out of the concern that quote there are instances in which the government knew of the information that was the basis of the keep them sued but in which the government took no action the graham county court the supreme court recognized the importance of the public disclosure being in the public domain stating that the false claims act public disclosure bar deprives courts of jurisdiction over key temp suits when the relevant information has already entered the public domain  certain channels this court has similarly recognized the importance of the statutory tax and the public domain in its final decision united states actual feingold from two thousand and three in which it he that a public disclosure happens when the critical elements exposing the transaction as fraudulence are placed in the public domain in that decision in that decision the court also noted that this public domain holding  cook county decision by the supreme court in two thousand and three also recognized this purpose and it noted that the repeal of the government knowledge park allowed private parties to sue even based on information already in the government's possession and we argue that none of the three documents here contain any of the essential facts stablish in any of the essential elements of a fraud but even if this court were to agree at least for the two that are not the public domain because they're not in the public domain farmington should not apply and the public this disclosure by would not prohibit this case particular i'd also like to point out that none of the three documents include information about all of the years that are issued in the complaint the memo by mr rubin which was written in two thousand and six only deals with a small subset of years the only year that specifically mention in that letter is two thousand and eleven the year that's not even an issue in this case a letter also was written after cause of action filed or submitted its initial disclosure to the government as required prior to find its complaint as required by the false claims act as such it could not have been the basis for our initial disclosure or a complaint in this action only it's unclear in that letter what if anything the government was doing it refers to both an in depth review and initial inquiry and a study of the situation but as the district court noted in its opinion below the letter simply requires revision of two thousand and eleven data you know work to ensure application of a consistent definition of revenue service across all transit systems this letter is not about wrongdoing about fraud it's not about federal funding it's about the consistent reporting of that a for administrative purposes well it's clearly about miss reporting of revenue miles from me based on an improper metric correct  it does ask and those are the critical elements of the allegations here right that it is he was using an improper metric for all these years and was ordered  and then you go back and we calculate a single year that that seems irrelevant for purposes of the claim here the fact that the remedy that f d a ordered was only to recalculate a single year what's important is that the f had actively conducted an investigation and sent an order to the agency to cease and desist using this erroneous metric for calculating miles right and that's what your suit is based on it's only it only touches upon part of that certainly the reporting of revenue miles is an important element of the case but there are other essential elements that would be necessary to establish fraud additionally the f p letter only deals with two thousand and eleven while it does make a reference to prior years what those years are is unspecified and unknown there's also nothing in the letter about the revenue miles causing the federal government to pay out any additional in from any additional funds but that's not necessary for the public disclosure part to apply based on elements of the public disclosure are it is not as added to it we are not arguing based upon it as to the mr rubin memo or the bill in my office of auditor general's report however under the first part of the three part test the public disclosure bar the public disclosure has to contain the essential elements facts really need the essential elements of stablish in a fraud and that's so you have to look at just the public disclosure determine whether or not that disclosure in and of itself contains those essential elements if you get past that stage which we think is not necessary here you then get to the second step which is the this is based upon a substantially similar test and then you get to the third step which is original source i think you're reading too much into that language and feingold repeated in other cases glaser and others about essential elements it doesn't it doesn't suggests that the public disclosure has t fraud occurred it just has to contain facts or allegations suggesting that fraud is afoot or maybe afoot it doesn't have to establish anything not information right our national was a case about regulatory noncompliance in a very different context and we have here we have overbilling going on here apparently is the claim i think there's over correct but it's a lot of the table it did yes but it could result in overpayment by the government and so some really here yes there's this reporting of miles but if you look at the illinois office of outer general's report there's nothing in there about any sort of federal funding program it would take considerable knowledge and expertise as well as additional facts to know that c t a with knowledge justified by the false claims act submitted  government is apprised of information about fraud being perpetrated against congress was not at all more of unity said i mention both prodding the government to take action that on whether or not the government takes action or does not take action is not part of the past claims that all the government needs to be other needs to happen is that the government the government needs to be aware of a potential fraud being perpetrated against it there is no requirement as identified in glaciers that the government disclosure bar as having an intent of letting the the government know about the alleged fraud or issue jochum and reflecting this knowledge that this court has identified in several cases if that is it that the standard here and here cause of action came to the scene too late by the time they filed this complaint the government had already received information about the c t s and legibly improper v r m reporting both through our report answer the technical report and more a well before cause of action about this complaint absent in this case i report clearly constituted a public report it was released to the public it was released about the public it was available on the website there's no question that that was a document in the there was clearly a public disclosure here by the other two documents as well because this court has consistently found that a public disclosure occurs if there's a disclosure either to or by the government and there is no question that they happen with  technical report there is no question that it happened with the f t a letter so those are definitely public disclosures but again even if this court decides to look at crime it in and reverse it which it should not because the government already knew about the  here the complaint in the public disclosures described the same entity and the same conduct the c t a was a manatee and the same kind of was allegedly improper reporting resulting in federal rypien my complaint in the public action has not shown otherwise and it has the burden of proof positive actions not being any new information to the table they simply tacked on a characterization of fraud to already disclosed information in a technical report and it dition instances of three very quick points first the government's decision to or not to take action as a result of a public disclosure is important and in fact the false claims  act is designed to allow a private party to bring an action even when the government declines to intervene and bring the lawsuit so whether or not the government knew about a product didn't know about a fraud whether it took action or didn't take action whether intervenes in a case or not it's not relevant for the purpose of the public disclosure bar but it certainly is sort of the congress in establishing the false claims act one of the parties to be able to proceed even when the government disagreed with that private part second as to the purpose of the public disclosure bar in addition or i'm sorry as the cook county decision made clear and the grim kind the situation there are purposes of the no support that a purpose of the public disclosure bar is to alert the government that fraud is afoot or that to let the government as the fraud i think later case used the phrase fraud is afoot that this those that purpose is not found in the congressional record it's not found in supreme court precedent it is only found out of this circuit's president and other courts have disagreed with it moreover for the farmington decision does not advance the purposes of stifling parasitic lawsuits if a disclosure to a single or a small limited circle of government officials was a public disclosure bar then you could not have a parasitic up plaintiff who does not have direct