F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

A M P H A S T A R P H A R M A C E U T I C A L S I

N C ., Relator, Plaintiff-Appellee
,

v.

A V E N T I S P H A R

M A SA; A V E N T I S P H A R

M A C EU T I C A L S I N C .; S A N O F I

- A V E

N T I S SA, Defendants-Appellants. Nos. 14-56382 15-56209

D.C. No. 5:09-cv-00023-MJ G-OP

A M P H A S T A R P H A R M A C E U T I C A L S I

N C ., Relator, Plaintiff-Appellant
,

v.

A V E N T I S P H A R

M A SA; A V E N T I S P H A R

M A C EU T I C A L S I N C .; S A N O F I

- A V E

N T I S SA, Defendants-Appellees. No. 15-56122

D.C. No. 5:09-cv-00023-MJ G-OP

OPI N I ONA M P H A S T A R P H A R

M

. V

. A V E

N T I S P H A R M A 2

Appeal from the United States District Court

for the Central District of California Marvin J . Garbis, District J u dg e, Presiding by Desig nation

A rg ued and Submitted November 10, 2016

Pasadena, California

F iled May

11, 2017

B efore: Diarmuid F . O’Scannlain and J ohnnie B

. Rawlinson, Circuit J udg es, and Rosemary Marquez
, * District J udg e.
Opinion by J udg e O’Scannlain

SUMMARY * *

F a lse Claim s Act

I n a q ui tam suit under the F alse Claims A ct, the panel affirmed the district court’s dismissal o f the action for lack o f subject matter jurisdiction; dismissed as moot the defendant’s
ap p e a l from the district court’s denial of its motion for summary judg ment; reversed the d istrict court’s denial of the defendant’s motion for attorney s’ fees; and remanded the case to the district court.

* T h e Ho n orab le Ro sem ary Marq u ez, Un ited States District J u d g e f or th e District o f

A rizo n a, sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.A M P H A S T A R P H A R

M

. V

. A V E

N T I S P H A R M A 3

The plaintiff alleg ed that by committing fraud ag a inst the United S t at e s Patent and Trademark Office in a patent application, the defendant obtained a n illeg al monopoly over

a drug and then knowing ly overcharg ed the United S t a t e s. T h e panel h eld that the district court lacked subject mat t e r jurisdicti o n because the complaint was based on public disclosures in the form of alleg ations of fraud, as w ell a s alleg ations of the under ly ing facts, in a p rior patent infring ement suit. I n addition, the plaintiff did not show that it was the o rig inal source of the information on which its alleg ations were based. The panel held that the plaintiff did
not show b oth that it h ad d irect, firsthand knowledg e o f the

a l l eg ed f

raud and that it obtained this knowledg e independently

. Reversing the denial o f at t orney s’ fees under the feeshifting provision o f the F alse Claims A ct, the panel held that the district court had authority to award attorney s’ fees a fter the dismissal of the action for lack of subject m a tter jurisdiction. Ag r eeing with the Tenth Circuit, the panel h eld that the fee-shifting provision p rovides an independent g rant of jurisdiction. I n addition, th e d e fendant was a prevailing party

. T he panel concluded that the Supreme Court’s opinion i n CRST Van Expedited, Inc. v. E.E.O.C.
, 136 S. Ct. 16 4 2 (2016), effectively overruled the holding of Branson v. Nott
, 62 F .3d 287 (9th Cir. 1 995), that a defendant that wins because the action is dismissed f or lack of subject matter jurisdiction is never a prevailing party

. The panel remanded for resolution of the attorney s’ fees issue.A M P H A S T A R P H A R

M

. V

. A V E

N T I S P H A R M A 4

COUNSEL

W a y ne R. Gross ( argued), Evan C. B o rg es, Michael E. L opez , and B ret D

. Hembd, G reenberg G ro s s L L P, Costa Mesa, California, for Relator-Appellant/Appellee.

Mark A. Perry (arg

ued) a nd Stephen C. Pay

ne, Gibson Dunn & Crutcher L L P, W ashing ton, D.C.; M. Sean Roy a ll, Tracey B

. Davies, and Olivia A. Adendoroff, G i b s o n Dunn & C r u t c h e r L L P
, D a l l a s , T e x a s ; f o r D e f e n d a n t s

Appellants/Appellees.

OP INION

O’SCANNL AI

N, Circuit J udg e:

W e must decide whether we hav e subject matter jurisdiction o ver a corporate qui tam a ction 1 under the F alse Claims Act that accuses a competing company of committing fraud ag ainst the United States.

I

This sag a beg an in the early 1990s, when Aventis Pharma S.A., (“Aventis”) a F rench pharmaceutical e nterprise, 2

1 A q u i ta m actio n is o n e in w h ich a p riv ate p arty (th e relato r) b rin g s

a law su it o n b eh alf o f t

h e Un ited States g o v ern m en t alleg in g f rau d in
retu rn f o r a p o rtio n

o f an y d am ag es aw ard ed

. S

ee 3 1 U.S.C. § 3 7 30 (b ).

2 Av en tis P h arm a S.A

. an d Av en tis Ph arm aceu ticals, In c. ( t h e A m erican su

b sid iary ) m erg ed w ith an d in to San o f i- A v en t is S.A

. du r i n g th is litig atio n

. T h e d ef

en d an t s -a p pellan ts are co llectiv ely ref erred to as A v en tis.A M P H A S T A R P H A R

M

. V

. A V E

N T I S P H A R M A 5

d e v e l o ped a plan to sell the drug enox aparin in the Unite d States u nder the brand name L ove n ox

. Enox aparin is a heparin-based blood thinner that was patented in Europe i n the 1980s as European Patent 40,144 ( “EP144”). Eventually
, European authorities invalidated EP144 as lacking novelty

.

A

I n J u n e 1 991, Aventis applied to the U.S. Patent a nd Tr ad emark Office (“USPTO”) for a patent to cover a supposedly new v ersion of enox aparin (“618 Product”). 3 Aventis filed a New Drug Application (“NDA”) with the F ood and Drug

Administration (“F DA”) a month later.

The initial versions of the N DA were rejected in part a s being “obvious in view of the p rior a rt,” i n c l u d ing EP144. Aventis a cknowledg ed that EP144 was prior art, but claimed that the 618 Product was a d ifferent d r u g from the d rug produced by f

o llowing EP144 (“EP144 Product”). After several subsequent rejections, Aventis submitted a revised NDA in 1993 supported by the e x pert declaration of Dr. Andre Uz an, a F rench scientist. Dr. Uz an claimed that data in Ex ample 6 4 of the patent application, included in the revised N D A
, “clearly demonstrate[ d] ” that the 618 Product has a long er half-life r e l a tive to the EP144 Product, and thus was novel.

3 R ef erred to as th e “ 6 1 8 P ro d u ct” b y p rev io u s co urts b ecau se it w as

ev en tu ally

co v ered b y

P aten t Nu m

b er 5 ,3 8 9 ,6 1 8

.

4 Ex am p le 6 o f th e p aten t ap p licatio n d escrib es d ata f ro m s tu d ies th at p u r p o r t to sh o w th at th e 6 18 P ro du ct h as a sig n if ican tly lo n g er h alf

- lif e th an th e EP 1 44 P ro d u ct, e n a b l in g t h e sam e ef

f ect to b e ach iev ed w i th lo w er d osag es.A M P H A S T A R P H A R

M

. V

. A V E

N T I S P H A R M A 6

The U SPTO then approved the revised applicat i o n and issued Patent Number 5,389,618 (“618 Patent” ) 5 for the 618 Product in 1995, in larg e part because of D r. Uz an’s statements reg arding Ex ample 6. However, it turned out that Dr. Uz an’s sworn declarations were incorrect. Dr. Uz an h ad based his claim of a difference by comparing a 40mg dose o f the 618 Product w ith a 60mg dose of the EP144 Product, but had not disclosed that diff e r e nt dosag es were used in the USPTO submissions. A dose-for-dose comparison w ould have shown that the difference between the products was “ not statistically sig nificant.” This error went undetected for y ears. Meanwhile, after the 618 Patent was issued, Aventis listed it in the F D A’s Orang e B ook, which invokes the protections o f the Hatch-W a x man Act. 21 U.S.C. § 355(j)(5)(B )(iii) (requiring a g eneric drug competitor to c ertify that the patent is either not infring ed or invalid).

1

Amphastar Pharmaceuticals, I nc., (“Amphastar”) a U.S.- based g e neric p harmaceutical f irm founded in 1999 by Yong F eng Z hang
, decided that enox aparin would b e a g ood prospect for a g eneric product, believing it mig ht b e possible
to develop a g eneric version b y ut i l i z i n g information from EP144. Development work bega n i n 2000 and included

ex p e r i ments p erformed f

rom 2 000 to 2003 (“Pre-L itig ation Ex periments”). The e x act nature of the Pre-L itig ation Ex periments is disputed, but t h e y led to Amphastar’s being able to manuf

a c t u re a g e neric enox aparin. A mphastar then submitted a

n Abbreviated N ew Drug Application (“ANDA”) to the F DA on March 4, 2003.

5 T h is p aten t w as reissu ed as U .S. Reissu e P aten t No

. 3 8 ,7 4 3 in 2 0 0 5

. B o t h p aten ts are co llectiv ely

ref erred to h erein as th e “ 6 1 8 P aten t.”A M P H A S T A R P H A R

M

. V

. A V E

N T I S P H A R M A 7

Aventis responded to Amphastar’s ANDA by b r ing ing suit f ive months later, alleg ing that Amphastar a nd Teva P h armaceuticals were infring ing on the 618 Pate n t

. Amphastar filed its Amended Answer and Counterclaim a nd made no mention of the Ex ample 6 error or the Pre-L itig ation Ex periments.

After d iscovery was underway
, Amphastar filed a motion
to amend i t s A nswer a

nd Counterclaim, stating
, “based on facts recently developed in this litig a tion, Amp h a star has added n e w a f

firmative defenses and several antitrust c laims
to its answer and counterclaims.” Amphastar’s additions included a

n affirmative defense a lleg ing inequitable conduct by Aventis in obtaining the 618 Patent. After Aventis filed a motion to strike the a m endments, Amphastar responded b y asserting : “As to the unenforceability of the ‘618 patent based

on inequitable conduct, all of the facts and evidence upon which this affirmative defense is based are in the possession and control of Aventis.” Amphastar did not mention the PreL itig ation Ex p eriments when it listed the evidence on which it based its inequitable conduct defense. Amp h a s t ar also alleg ed antitrust violations.

2

Amphastar eventually prevailed in its patent infring ement litig ation battle with Aventis. 6 B y the end of the litig ation the

6 T h e i n itial 2 0 0 3 paten t i nfr i n g em en t su i t b y A v en t is l ed to th e f in d in g , o n su

m m ary j u d g m en t, th at A m

p h astar’ s af

f irm ativ e d ef

en se on in eq u itab le co n d u ct g r o u n d s su cceed ed b ecau se (1 ) A v en tis’ s f alse rep resen tatio n s an d n o n d isclo su res to th e USP T O w ere m aterial, an d (2 ) i t h ad in ten t to d ec e i v e th e USP T O. Aven tis Ph a rma S .A. v. Amp h a sta r Ph a rm., In c. , 39 0 F

. S up p

. 2 d 9 52 (C.D. Cal. 2 0 0 5 ) (“ Aven tis I ”). T h e Fed eral Circu it af

f irm ed i n p art b u t rev ersed in part. 1 7 6 Fed

. A p p ’ x 1 1 7A M P H A S T A R P H A R

M

. V

. A V E

N T I S P H A R M A 8

Fe d eral Circuit had affirmed the district court’s conclusi o n s that: (1) Aventis made material nondisclosur e s and false representations t o t h e U SPTO r eg a rding the 618 Patent application and (2) Aventis intended to deceive the USPTO. Amphastar was thus able to produce generic e nox aparin without f ear of infring em ent—the 618 Patent was “found to be unenforceable on the g round of ine q u i table conduct.” However, Amphastar’s antitrust counterclaim was d ismissed.

B

Amphastar then broug ht this qui t a m action ag ainst Aventis. 7 Am p hastar duly sent the statutorily required letter
to the United States D epartment of J ustice, notify ing it of its intent to bring this a ction. Amphastar then filed its sealed complaint on J anuary 7, 2 0 09, alleg ing that by committing fraud ag a inst the USPTO, A ventis obtained a n illeg al monopoly over enox aparin and then knowing ly overcharg ed the United States. B y committing such fraud, Am p h a star

(Fed

. Cir. 2 00 6 ) (“

Aven tis I I ” ) (af f i rm in g th e m aterial f

alse rep resen tatio n s

an d n o n disclo su

res f in d in g , b u t v acatin g th e i n ten t to deceiv e co n clu sio n

an d rem an d in g th e case t o th e d istrict co u r t f o r a trial o n th e in ten t to d eceiv e issu e).

On rem an d
, t

h e d istrict co urt ag ain f

o un d t h a t A v en tis d id i nten d to d eceiv e t h e USP T O; th i s tim e th e d ecisio n w as af f irm ed o n a p p eal. Aven tis Ph a rma S

.A. v. Amp h a sta r Ph a r

m., In c. , 4 7 5 F. Su

p p

. 2 d 9 7 0
, 9 9 4 (C.D. Ca l

. 2 0 0 7 ) (“

Aven tis III

”), a ff’d
, 5 2 5 F .3 d 1 3 3 4 (Fed

. Cir. 20 0 8) (“ Aven tis IV

”).

7 Said actio n w as f

iled p ursu an t t o 3 1 U

. S. C

. § 3 7 30
, w h ich w as

am en d ed o n March 2 3, 2 0 1 0
, b u t th e am en d m en t s a r e n o t retro activ e. G ra h a m Cn ty. S

o il & W a ter Co n s erva tio n Dist. v. Un ited S ta tes e x r e l

. W ilso n , 5 5 9 U.S. 2 8 0
, 2 8 3 n .1 (2 0 1 0 ). W e an aly ze th e statute as i t ex isted

w h en A m ph astar f irst f iled its co m

p lain t in2 0 0 9

.A M P H A S T A R P H A R

M

. V

. A V E

N T I S P H A R M A 9

further a lleg ed, Aventis knew the p atent was invalid and thus knowing ly d efrauded the U nited States. The complaint was

u n s ealed and the c a se proceeded in October 2011, after t h e g overnment declined to join the litig ation.

1

On November 14, 2012, the distric t c o urt ruled that Amphastar’s complaint was b ased on public disclosures, a nd therefore Amphastar had to show it was the “orig inal source

. . . of the information on which the alleg ations are based.” § 3730(e)(4). Thereafter, Aventis filed a motion for summary j u d g ment contending Amphastar had failed to meet t h e orig inal source ex ception to the jurisdictional bar. To be an orig inal source of informat i o n underlying the complaint, Amphastar needed to meet the p re-suit d isclosure and “ direct and independent knowledg e” requirements.

Aventis first a

rg ued that Amphastar had failed to d isclose enoug h information in its pre-suit d isc l o sure letter. The district c ourt d enied Aventis’s summary judg ment motion on this issue in a May 2014 r uling
, b u t ce rtified its ruling for interlocutory appeal, w hich Aventis broug ht in No. 14-56382.

2

The district court then proceeded to the “direct a nd independent knowledg e” issue. 8 I t held a four-day evidentiary

8 Direct k

n o w led g e is fi r s t h a n d k n o w led g e o f th e alleg ed f rau d

o b tain ed b y th e relato r’ s o w n lab o r. Un i ted S ta tes v. Alca n Elec. & En g ’g

, In c. , 1 97 F.3 d 1 0 1 4
, 1 0 2 0 (9 t h Cir. 1 9 99 ). In d ep en d en t k n o w led g e is k n o w l ed g e o b t ain ed b y th e relato r b ef ore t h e e v id en ce o f th e f

rau d w asA M P H A S T A R P H A R

M

. V

. A V E

N T I S P H A R M A 10

hearing to determine if A mphastar had direct and independent knowledg e of any o f the informat i o n u nderly ing its alleg ations. The district court made various factual finding s: Amphastar had no knowledg e of Ex a m p l e 6 being false before the A ventis I lit i g ation beg an; Z hang (Amphastar’s CEO) was not a credible witness; Amphastar had eng ag e d in inconsistent actions reg arding whether it had known o f the Ex ample 6 error before the A v e n t i s I litig ation, a nd such inconsistent a ctions undermined its argument. The d i s trict
court a l s o concluded that Amphastar d id not produce

enox a parin b y followi n g E P144 in its Pre-L itig ation Ex periments, but co p i ed k ey information from Patent 618. F or a ll these rea s o n s the district c ourt h eld that Amphastar had neither direct nor independent k nowledg e o f any of the elements of fraud s u pposedly committed b y A ventis. The district court then dismissed the case f or lack of jurisdiction. Aventis moved for a ttorney s’ fees, which motion was denied.

Amphastar timely a

ppealed the dismissal of its q u i t am suit. Aventis timely cross-appealed the de n i a l of attorney s’ fees.

I I

On appeal, Amphastar contends that the district court erred in dismissing its q ui tam suit for lack of jurisdiction. 9 I t

d isclo sed to th e p u

b l ic. Un ited S ta tes ex rel. Devlin v. Ca lifo rn ia , 8 4 F.3 d 3 5 8 , 3 6 1 n .5 (9 th

Cir. 1 9 9 6 ).

9 W h eth er su

b j e c t m a t t e r j urisd ictio n ex ists “ is a qu estio n of law

rev iew ed de n ovo .” Un ited S t a tes ex rel. Bid

d le v. Bd

. o

f Trs. o f Lela n d S t a n fo r d

, Jr. Un iv. , 1 6 1 F.3 d 5 3 3
, 5 35 (9 th Cir. 1 9 9 8 ). “ T h e d i s t r i c t

co urt’ s f in d i n g s of f

act relev an t t o its d eterm in atio n o f su b j ect m atter j urisd ictio n are rev iew ed f o r clear erro r.” Id

. Dis trict co urt ev i den tiaryA M P H A S T A R P H A R

M

. V

. A V E

N T I S P H A R M A 11

arg ues specifically that the district court erred in concluding that the alleg a tions of fraud had been publicly disclosed a

nd further e rred in concluding that Amphastar w as not “an orig inal source” of Aventis’s a lleg e d ly fraudulent a ctions. 31 U.S.C. § 3730(e)(4).

The r e l evant portions of Section 3730(e)(4) of the F alse Claims Act state:

(e)(4)(A): No court shall have jurisdiction

over an action under this section based upon the public disclosure o f alleg a tions o r t r a n s a c t i o n s i n a c r i m i n a l
, c i v i l
, o r administrative hearing

. . . unless

. . . t h e person bring ing the action is an orig inal source of the information.

(e)(4)(B ): F or purposes o f this parag raph, “orig inal source” means an individual who has d i r ect and independent knowledg e o f the information o n wh i c h the alleg ations a re based and has v olu n t arily provided the infor m a t ion to the Government before filing

an action under this section which is based on the information.

I f A mphastar’s alleg ations a re b a s e d o n publicly disclosed information, the jurisdictional bar applies unless Amphastar is an “orig inal source.” To be an orig inal source, Amphastar

ru lin g s are rev iew ed f

o r ab u s e o f d i s c r e t i o n

. Grib b en v. Un ited Pa rcel S erv., In c. , 5 2 8 F .3 d 1 16 6
, 1 1 7 1 (9 th Cir. 2 0 0 8 ). Oth er leg al issu es, su ch

as th e atto rn ey s’ f

ees issu e, are rev iew ed d e n o v o. S ee S a lve Reg in a Co ll. v. Ru ssell , 4 9 9 U.S. 2 2 5 , 2 3 1 (1 9 9 1 ).A M P H A S T A R P H A R

M

. V

. A V E

N T I S P H A R M A 12

must demonstrate that: (1) it had direct a n d independent knowledg e of the information on w h i c h it based its alleg ations, a

nd (2) it satisfied the pre-suit disclosure

r e quirements by providing the necessary information to t h e government b efore f

iling an action. Amphastar “bears t h e burden o f e stablishing subject m atter jurisdiction by a preponderance of the evidence.” Alcan , 197 F .3d at 1018.

A

W a s the public disclosure bar trig g ered?

1

Transactions or a lleg ations ar e disclosed if they can be found in pleading s o r other public filing s. Hagood v. S onoma Cnty. W ater Agency
, 8 1 F .3d 1465, 1474 n.13 (9th Cir. 1996). Our circuit interprets “alleg ations” to r efer to direct claims o f fraud, and, we interpret “transaction to refer t o facts from which fraud can be inferred.” United States ex rel. Mateski v

. Raytheon Co.
, 816 F .3d 565, 571 (9th Cir. 201 6 )

. W e have adopted the r easoning of United States ex rel. S pringfield Termina l Railway Co. v

. Quinn
, which states that w hen a critical mass of t h e underlying f acts o r of the alleg ations in the qui tam complaint have been disclosed prior to the qui
tam complaint being filed, the public d isclosure bar a pplies. Mateski
, 816 F .3d at 571 (citing 1 4 F .3d 645, 653–54 (D.C. Cir. 1994)).

The Mateski court ex p lained that if “X + Y = Z
, Z represents the alleg ation of fraud and X and Y re p r e sent its essential elements.” Id. (quoting United States ex rel. Found. Aiding the E lderly v. Horizon W ., Inc.
, 265 F .3d 1011, 1015 (9th Cir. 2 001), amended o n d e n i al of reh’g
, 275 F .3d 1189A M P H A S T A R P H A R

M

. V

. A V E

N T I S P H A R M A 13

(9th Cir. 2001)). I f the fraud a lleg ations [ Z ] are disclosed, the bar a pplies. I d

. I f enoug h o f the underlying facts making up the elements of fraud are disclosed, the bar applies. Id. “[ I ] n

a fraud case, X and Y inevitably stand for but two elements:”
t h e misrepresented facts [ X] and the true facts [ Y]

. I d

. (quoting Found. Aiding , 265 F .3d at 1015).

2

Amphastar argues that the alleg ations of fraud were never publicly disclosed before it filed this qui tam action. I t

conc ed e s t hat g eneral alleg ations of f raud were made in its Aventis I A mended Answer and Counterclaim, but say s these past alleg a tions never mentioned any false claims submitted
to or paid by the federal g overnment and state g overnments. I n s t e ad, its current alleg ations concern the fact that false

c l aims w ere submitted to one or another g overnme n t , alleg ations w hich were never made in a n y prior publicly disclosed document.

However, “[ a] n alle ga t i on n eed not include an ex press reference to the [ F a lse Claims A ct] ” for the public disclosure bar to apply

. Alcan
, 1 97 F .3d a t 1019. Nor does a disclosed alleg ation need to c o n t ain every specific detail to constitute

a disclosure. Id. (rejecting an a r g ument the relator’s new alleg ations are meaning f u lly different bec a use the old alleg ations “did n o t m e ntion the [ F a lse Claims Act] a nd did
not include details of the v iolations”). Alcan i n v olved a situation wh e re the publicly disclosed alleg ations “did not mention any overcharg ing
, false-invoicing

. . . or a ny other specific fraud on the g overnment.” I d. L ike Alcan
, this is not

a case where the prior alleg ations concerned “a very different problem” than the qui tam alleg ations. See Mateski
, 816 F .3dA M P H A S T A R P H A R

M

. V

. A V E

N T I S P H A R M A 14

at 574 (discussing the “substantially sim i l ar” spectrum) (quoting Found. Aiding , 265 F .3d at 1016).

Amphastar’s Amended Answer and Counterclaim in the 2003 Patent I nfring ement case made n early ide n t i c al alleg ations to those made here. I t a ccused A v entis o f obtaining a

n invalid patent due to misrepresentations. I t also claimed t h a t , d e s p i t e k

n owing about these misrepresentations, “Aventis has a ttempted to maintain or obtain a m o n o p oly

over others” b y doing thing s such as improperly listing the Patent in the Orang e B ook. Fi nally
, it alleg ed that “Aventis has wro n gf

u lly derived, a

n d will continue to wrong f ully derive, income and profits f rom this conduct.” The only new alleg ation Amphastar makes in the instant ca s e is that the g overnment a lso bou g h t t he drug while Aventis held its illeg al monopoly
, but this is an obvious inference b a s e d on the p u blicly d isclosed alleg a tions. The alleg ations in this case are so “substantially similar” to the prior alleg ations that we

are satisfied the public disclosure bar applies. See M a t e s k i , 816 F .3d at 573–74.

3

W h ile the fraud alleg ations being disclosed are enoug h to trig g er the bar, Amphastar also failed to demonstrate that both the misrepresented facts and the true facts were not disclosed. This is also enoug h to trig g er the bar on its ow n

. The misrepresented facts presented to the g overnment ( via the USPTO) are that the 618 Product d iffe red from the EP144 Product because the half-life of the products was di f f erent, and thus A ventis he l d a valid patent—and, the true facts (actual state of the world) a r e that Ex amp l e 6 was false a nd thus Aventis held an invalid patent, and this invalid patent allowed Aventis u nlawfully to charg e monopoly prices toA M P H A S T A R P H A R

M

. V

. A V E

N T I S P H A R M A 15

customers. I n this c a se “the information publicly disclosed

. . . c ontained the material f acts underlying [ the r e l a t o r’s] alleg ation o f f

raud.” A-1 Ambulance Serv., Inc. v

. California
, 202 F .3d 1238, 1245 ( 9th Cir. 2000); see also Found. Aiding
, 265 F .3d at 1015–17 (asking if the true state of the world was disclosed ( i.e. the defendant’s substandard care) an d i f the misrepresented facts were d isclosed (i.e. the f alse statements to the g overnment)).

The evidence that the misrepresented facts and the true facts w ere actually disclosed is o verwhelming

. The qui tam

c o mplaint alleg es that: (1) Aventis intentionally ma d e material misrepresentations to the USPTO reg arding whether the 618 Product w as novel relative to prior art, (2) such misrepresentations allowed i t fraudulently to obtain the 618 Patent, (3) Aventis then improperly listed the 6 18 Patent in the F DA Orang e B ook, and (4) such listing allowed Aventis to o v e r charg e the g overnment. The 2 004 alleg ations 1 0 that were publicly d isclosed included a l l o f these facts,

ex c e pt, instead of mentioning overcharg ing the g overnment, they mentioned overcharg ing in g eneral. W hile the Amended Answer and Counterclaim did not specifically mention Ex a m p l e 6, it did alleg e material misrepresentations reg arding “studies of the pharmacolog ical properties of prior art compounds, including half life.”

10 T h e s e in clu d e th e A m en d ed A n sw er an d Co un terclaim f i led b y A m p h astar an d t

h e Mo tio n f

o r L eav e (A f

t er th e Fact) t o File its A m en ded A n sw er an d Co un terclaim (A m en d Mo tio n ) in Aven tis I
, w h ich ad ded n ew af f irm ativ e d ef

en ses an d s ev eral an titru st claim s “ b ased o n f acts recen tly d ev elo ped inth is litig atio n .”A M P H A S T A R P H A R

M

. V

. A V E

N T I S P H A R M A 16

4

Amphastar also argues that the d i strict court erred because it recited: “The ‘public disclosure’ standard is not intended to be difficult to meet. Hagood
, 81 F

. 3d a t 1476 n.18 (n o t i n g that courts often treat the ‘based upon public disclosure’ step

as a ‘quick trigg er’ to arrive at the more ex acting ‘orig inal source’ inquiry).” A mphastar Pharm., Inc. v. Aventis P h arma S.A.
, N o. EDCV-09-0023, 2 012 W L 5512466, at *7 (C.D. Cal. N ov. 14, 2012) (“

Aventis V

”). M ateski specifica l l y rejected a defe n d a nt’s a rg ument that the “quick trig g e r” lang uag e of Hagood means the c o urt s should avoid substantively analy

z ing a public disclosure issue. 816 F .3d at 577–78 (stressing the n eed to analy ze the is s u e “with some specificity ” ).

Even assuming the district c o urt committed leg al error b y failing to analy

z e this issue in enoug h detail, any error would be harmless. W e are satisfied that enoug h of th e f r a u d alleg ations, or alternatively
, enoug h of the underly in g facts,

were publicly disclosed such that th e public disclosure bar should have been trig g ered.

B

Since the public disclosure b ar was trig g e r e d, did Amphastar qualify

as an orig inal source?

1

The first prong of the orig inal source a n a ly sis a sks whether A mphastar c an show it had “knowledg e that is both direct and independent.” Devlin
, 84 F .3d at 361 n.5. To prove “direct” knowledg e , Amphastar “must show tha t [ it] h adA M P H A S T A R P H A R

M

. V

. A V E

N T I S P H A R M A 17

firstha n d k n o wledg e of the alleg ed f raud, a nd that [ it] obtained this knowledg e throug h [ its] own labor unmediated by any thing else.” Alcan
, 197 F .3d at 1020. T o p rove “independent” knowledg e, relators have to show they h ad relevant “evidence of fraud pr i o r to the public disclosure o f the alleg ations.” Devlin , 84 F .3d at 361 n.5.

Amphastar claimed it learned that Ex ample 6 was false throug h its Pre-L itig ation Ex periments (direct) and knew this information before the Aventis I disclosures (independent). 1 1 Amphastar Pharm., Inc. v. Aventis Pharma S.A.
, No. EDCV09-0023, 2015 W L 4511573, at *6 (C.D. Cal. J uly 20, 2 015) (“ Aventis V I ” ). S p e c i fically
, Amphastar argued that its PreL itig atio n Ex p eriments showed that it could create “a b i o e q u i v alent e nox aparin with the same molecular weig ht a n d half-life properties as” the 618 Product b y j ust following EP144. Id. Thus, E x ample 6, which showed a difference in

11 A m p h astar also arg u es th at it g ain ed d irect an d in d ep en d en t k n o w l ed g e th at A v en tis co m m itted f ra u d d urin g th e Aven tis I disco v ery p ro cess. H o w e v e r, th is arg u m en t is n o t relev an t to th e o rig in al so urce

an aly sis. Ev en if A m

p h astar d id g ain k

n o w l ed g e o f th e f

rau d b ecau se of th e Aven tis I d i sco v ery p ro cess, a relato r’ s i n v o lv em en t in p rio r litig atio n th at co n s titu ted a p u

b l i c d isclo su

re d o es n o t m ak e i t a n o rig in al so urce

w h en i t learn ed of th e alleg ed f rau d so lely th ro u g h d isco v ery o f m aterials th at co u ld p oten tially b e accessed b y th e p u b lic. S ee, e.g

. , U

n i t ed S ta tes

ex rel. K r e i n d ler & Krein dler v. Un ited T ech s

. Co rp

. , 9 85 F .2 d 1 1 4 8
, 1 1 5 8

– 5 9 (2 d C ir. 1 9 9 3 ); Un ited S ta tes ex rel. Sti n s o n , Lyo ns, Gerlin & Bu sta ma nte, P.A. v. Pru d en t ia l In s. Co

. , 9 4 4 F.2 d 1 1 4 9
, 1 1 6 0

– 6 1 (3 d Cir. 1 9 9 1 ). T o q u alif

y as an o r i g i n a l s o urce A m ph astar m u st sh o w it g ain ed

so me d irect an d in d ep en d en t k n o w led g e f

ro m i ts P re- L itig atio n Ex perim en t s , s i n ce th is is th e o n l y n o n

- Aven tis I d i sco v ery so urce of in f o rm atio n f

ro m w h ich it claim s it g ain ed d irect a n d in d ep en d en t k n o w l ed g e. T h is is p resu m ab ly w h y A m p h astar d ev o ted alm o st all o f its ef f o rts at th e J u l y 2 0 1 4 ev id en tiary h earin g to p ro v in g th at it learn ed Ex am p le 6 w as f

alse b ecau se o f

its P re- L i tig atio n

Ex perim en ts.A M P H A S T A R P H A R

M

. V

. A V E

N T I S P H A R M A 18

half-life between the two products, must be false, it argu ed. Id.

2

So the crucial question is wheth er the district court’s factual finding s derived from the J ul y 2 0 14 evidentiary hearing are clearly erroneous. The distric t c o urt did a thoroug h job d eveloping the record—ei g ht w itnesses (including four ex perts) t e stified, 300 ex hibits were submitt e d
, and the transcript for the hearing ex ceeds 1,100 pag es. The d istrict court f ound that Amphast a r h a d no knowledg e Ex ample 6 was false b efore this fact was publicly disclosed in the Aventis I litig ation. Avent i s V I
, 2015 W L 4511573, at * 6. T he c ourt concluded that Z hang ’s testimony
, that he knew Ex ample 6 of the 618 Patent a pplication was false b efore the Av e n t i s I litig ation beg an, was not c redible. Id. I t also concluded that Amphastar had no d i re c t o r independent knowledg e that Aventis h ad made false reports t o t h e F DA about its manufacturing process. Id. at *14 (“Indeed, in arg ument, Amphastar acknowledg ed that its only witness reg ard ing its supposed ‘direct and independent knowledg e,’ Z hang , did not offer such evidence.”).

The district court rejected Z hang ’s testimony that he believed Ex ample 6 was false before Aventis I for several

reasons. F or ex ample, there was no written documentation o f this seemi n gl y important d iscovery

. T h e only proof Z hang offered was a s i n g le statement in his deposition that he alleg edly told two other people in passing
, y et neither of these people testified to confirm these alleg ed conversations. Id. at

* 6. The court also concluded that the Pre-L itig ati o n Ex periments did not actually produce enox aparin b y following EP144, and thus did not demonstrate that Ex ampleA M P H A S T A R P H A R

M

. V

. A V E

N T I S P H A R M A 19

6 was false—despite Z hang claiming this is how he first came to believe it. I

d. at *8.

Additional evidence supporting t h e district court’s conclusion w as the notebo o k s d o c u m e n t ing the Pre-L itig ation Ex periments; they provided c r itical evidence that Amphastar ended up relying on the 618 Patent to create a g eneric

enox a par i n. Id. at * 9–14. 1 2 This g reatly undermined Amphastar’s argument that it wa s a b le to duplicate the 618 Product using just EP144 disclosures and thus proved to itself that something w as w r o n g w ith the 618 Patent. Amphast a r e v e n conceded that it is “ not challeng ing the

c o u r t ’ s f

a c t u a l f i n d i n gs r e garding its pre-litig ation

ex p eriments.”

The district court was a lso deeply troubled (for g ood reason) by Amphastar’s inconsistent prior s t a tements about when it discovered the Ex ample 6 erro r

. Amphastar d id not raise the Ex ample 6 issue as a defense until a y ear af t e r the Aventis I litig ation beg an. Aventis VI
, 2015 W L 4511573, at *7. W hen it did raise the defense, in its J une 7, 2 0 04 motion, it recited, “ based on

facts recently developed in this litigation
, Amphastar has added new affirmative defenses [ and several counterclaims] .” I

d

. (emphasis added by district court). Amphastar did not list th e s upposedly important PreL itig ation Ex p eriments among the e vidence in support of its J une 2004 contentions. Id. Also, the pre-suit disclosure letter written by Amphastar in 2008 a n d s e n t t o the g overnment

1 2 Am p h astar o rig in ally p ro du ced co p ies o f th e n o teb o o k s d o cu m en tin g th e P re- L itig atio n Exper i m en ts th at w ere m issin g certain
p a g e s

. I d

. at 9

. Ho w ev er, A m

p h astar actu ally k

n ew th at th e o rig in al

n o teb o o k s co n tain ed so m e of th o s e p ag es an d d i d n o t in f o rm th e co urt of th is d i screp an cy

u n til it w as cau g h t. Id

. at 9

– 1 1

.A M P H A S T A R P H A R

M

. V

. A V E

N T I S P H A R M A 20

before Aventis VI stated that “ [d] uring A m phastar’s litigation against Aventis, Amphastar d iscovere d that Aventis has committed frauds against [ the United States]
, w h ich have resulted in false claims.” Id. at *8 (emphasis added by district court).

All of Amphastar’s leg al arguments reg arding direct a nd independent knowledg e fail i f the f actual finding s of the evidentiary hearing stand. Amphastar argues the district court incorrectly required A mphastar to show it had knowledg e o f Ex ample 6’s falsity a nd of Aventis’s intent to deceive. F urt h e rm o r e, the district court d oes u se the phrases “false statement” a n d “knowledg e of the alleg e d fraud” interchang e a bly
, which is problematic. See, e.g. , id. at *6. Amphastar o nly needed to prove it had direc t a n d independent k

nowledg e that E x a mple 6 was false to be an orig inal source—the district court should h a v e spoken with

more precision. Nevertheless, the factual conclusion that Amphastar had no knowledg e o f the Ex ample 6 issue before it w a s disclosed makes this argument moot. Any e r ror is harmless if Amphastar fails to overturn the factual finding s.
Amp hastar was required to offer compelling proof the district court erred t o o v ercome the deferential clear error standard that g overns fa ct u a l f inding s. Anderson v. City of Bessemer
, 470 U.S. 5 64, 573 (1985) (describing the “ clearly erroneous” standard). Yet, Amphastar does not even directly challeng e the district court’s factual finding s, instead arguing that the district court did not adequately co n s i d e r its March 17, 2003, e x periment in considering whether Amp h a s tar knew a bout the Ex ample 6 issue throug h its own lab o r preAventis I

. However, the district c o urt clearly concluded that

no Pre-L i t ig ation Ex periment provided Amphastar this information. I t discussed all of the issues with the Pre-A M P H A S T A R P H A R

M

. V

. A V E

N T I S P H A R M A 21

L itig ation E x periments in g e neral and then provided specific

ex amples. T h e d i s t rict c ourt is not required to list all o ne hundred plus ex periments and ex plain why each one did not
pr o v i de this information, but instead it is presumed to have

con s i d e red all the evidence u nless something indicates otherwise. See W

. Pac. Fisheries, I

nc. v. SS President Grant
, 730 F .2d 1280, 1285 (9th Cir. 1984). Here, the district court consider ed “ t he evidence” and r eached the n o t clearly

erron e o u s conclusion that none of the Pre-L itig ation Ex periments prod u ced enox aparin utiliz ing just EP144 disclosures. Aventis VI

, 2015 W L4511573, at *1, 8.

3

Amphastar further argues that the district court abused its discretion by allowing Aventis to present an arg ument at the evidentiary

hearing that it copied 618 Patent p r ocesses in its P r e

- L i t i g a t i o n E xp e r i ments. Amphastar served interro g a t o r i e s to Aventis before the e videntiary hearing to di s c l o s e facts, witnesses, and other items supporting its arg u ments. Aventis did not d isclose that it would ma k e a n a rg ument that Amphastar copied the 618 Patent i n response to the interrog atories or in its p re-evidentiary hearing b r ief. Amphastar believes this theory , and any related contentions, sh o u l d have been ex cluded under F ederal Rule of Civil P ro ce d u re 37(c)(1), w hich states: “I f a p arty fails to provide information or identify a witness as required by Rule 26(a) o r (e), the party is not allowed to u se that information

. . . unless the failure was substantially justified or is harmless.”

However, Amphastar waived this arg ument by failing to raise it adequately below. N owhere before t he district court did Amphastar make a Rule 3 7 ( c )(1) o bjection or ask that evidence relating to the c opy ing theory be ex cluded. At theA M P H A S T A R P H A R

M

. V

. A V E

N T I S P H A R M A 22

evidentiary hearing ’ s closing argu ments Amphastar did mention being caug ht off-g uard by the “copy

ing ” theory
, but g ot several facts wrong and never a ttempted to ex c lude the theory or raise a Rule 37 objection. Amphastar did make a cursory Rule 37(b)(2)(A) ( ii) request for sanctions and an objection in its post-hearing b rief, alleg ing that “Aventis . . . failed to provide a f

u ll and complete disclosure of its contentions.” B ut no citation to Rule 37(c)(1) was made.

Assuming arguend

o t h at this issue was not waived a nd the district court did err, any error was harmless. Even if the “copy ing ” theory were ex cluded, the record w ould sti ll contain all o f the other factual finding s that indicate Amphastar la c k e d direct and independent knowledg e

. The i n c o n s i s t e n c i e s , t h e n o t e b o o k s , Z h a n g ’ s l a c k o f credibility

—all would r emain. Amphastar would still bear the b urden of prevailing on the jurisdictional bar issue. A lc a n , 197 F .3d at 1018. I t has not come close to doing so. 1 3

I I I

I n its cross-appeal, Aventis contends that the district court erred in concluding

it had no power to award attorney s’ fees
to Aventis, and we ag ree. The relevant fee-shifting provision
states:

13 B ecau se w e co n clu d e th at A m p h astar is n o t an o rig in al so urce sin ce it lack s d irect an d i n d ep en d en t k n o w l ed g e o f so m e o f th e in f o r m a tio n

u p o n w h ich th e q u i ta m alleg at i o n s are b ased
, w e n eed n o t ad d ress, an d ch o o se n ot to co n sid er, Av en tis’ s in terlo cu to ry ap p eal ( N o

. 14

- 5 6 3 8 2 ). T h at ap p eal raised th e issu e of w h eth er th e d istrict co urt erred b y
co n clu d i n g th at Am

p h astar’ s p re- su it d isclo su re letter satisf

ied th e p re- su i t d isclo su re req u irem en t o f § 37 3 0(e)(4 )(B ). In l ig h t o f o ur co n c l u s i o n s ab o v e, th e in terlo cu to r y a p p eal w ill be d ism issed as m o o t. S ee Ea r th Isla n d In st. v. U.S . Fo r est S

erv. , 4 4 2 F.3 d 1 1 4 7 , 1 1 5 7 (9 th Cir. 2 00 6 ).A M P H A S T A R P H A R

M

. V

. A V E

N T I S P H A R M A 23

I f the Government does n ot proceed with the action and the p erson bring ing th e action conducts the action, the co u r t m ay award to the defendant i t s reasonable a ttorney s’ fees and ex penses if the defendant prevails in the action a nd the court finds that the claim of the
per s o n bring ing the a c tion was clearly frivolous, clearly v ex a tious, or broug ht primarily for purposes of harassment.

31 U.S.C. § 3730(d)(4) (emphasis added).

A

The district court relied on Branson v

. Nott
, 62 F

. 3d 287, 293 (9th Cir. 1995), to c onclu d e t h a t as a matter o f law attorney s’ fees cannot be awarded under a fee-shifting statute if the u nderlying claim was d ismissed f o r l a ck of subject matter jurisdiction. Aventis VI , 2015 W L

4511573, at *16.

B r a nson and its prog eny set out a two-part test f o r analy z ing w hether a district c o u r t c a n award attorney s’ fees when the underlying action is dismissed for lack o f subject
matter jurisdiction i n a c ase such as this: (1) Does the feeshifting provision contain an ind e p e n dent g rant of subject
matter jurisdiction? (2) I f so, did the winning party “ prevail? ” 62 F .3d at 293.

Fi rst, we look to see if the fee-shifting provision “provide[ s] the district court with jurisdiction to g rant an attorney fee award where subject matter jurisdi c tion to hear
t h e underly

ing

. . . claim is lacking .” Id. Sometim e s t h e

a n swer is no. See, e.g. , Zambrano v. I.N.S.
, 282 F .3d 1145, 1150 ( 9th Cir. 2002) ( concluding that the fee-shifting statuteA M P H A S T A R P H A R

M

. V

. A V E

N T I S P H A R M A 24

“does not provide an independent g ran t of jurisdiction” a nd therefore th e d istrict court lacks the jurisdiction to award attorney s’ fees). Some t i m e s the answer is y es. See, e.g. , Alaska Right to Life Political A c tion Comm. v. Feldman
, 504 F .3d 840, 852 ( 9 th Cir. 2007) (holding that we “may award attorney s’ fees and costs e ven after dismissing for lack of jurisdiction”). And sometimes the answer is y es, but only with reg a rd to the jurisdictional issues. Latch v. United States
, 842 F. 2 d 1 0 3 1, 1 033 n .4 (9th Cir. 1988) (per curiam) (ex plaining that 26 U.S.C. § 7430 allows fees to be awarded
to a d e f endant that “prevailed on the only issue over which the dis t r i c t court properly had jurisdiction, i.e., the determination that it had no jurisdiction”).

Second, “ even if the district court had the jurisdiction to impose

. . . attorney ’s fees [ under the f e e -shifting provision]
, a t torney ’ s fees are only av ailable under that p rovision t o a party w ho h as ‘prevailed’ on the merits.” Branson
, 62 F .3d at 293. T he district court skipped to the sec o n d

- p rong a nd reasonably concluded that Branson contr o l l e d, Aventis did
not “prevail,” and it c ould not award attorney s’ fees. A v entis VI
, 2015 W L 4 511573, a t *16; see a lso Bra n s o n , 62 F

. 3d at 293 ( “W here, as h e r e, dismissal is mandated by a la ck o f subject matter jur i s diction, a d efendant is not a ‘prevailing ’ party within the meaning of § 1988.”).

B

B u t, Branson ’s an a l y sis of the second-prong has been called into question. I n CRST V an Expedited Inc. v. E.E.O.C. the Supreme Court ex p lained that “a favorable ruling on the merits is not a n ecessary predicate to find that a defendant has prevailed.” 136 S. Ct. 16 4 2
, 1 6 46 (2016). I t reversed an Eig hth Circuit decision that declined to award attorney s’ feesA M P H A S T A R P H A R

M

. V

. A V E

N T I S P H A R M A 25

because the defendan t d i d n o t w in “on the merits.” I d

. at 1650, 1654. T he court elaborated a t l e n g th a bout why d efendants who p r evail for various non-meritorious reas o n s should still be deemed “p revailing part[ ies] .” Id. at 1651–54. 1 4 I n doing so it includ e d an ex ample where defendants prevailed fo r j u risdictional reasons, id. at 1653, and never indicated that jurisdictional and non-jurisdictional victor i es should be treated differently

. F inally
, it made clear that its reasoning applied to other fee-shifting statutes, stating that “Cong r ess has included the term ‘ prevailing p a r t y ’ in various fee-shifting statutes, and it has b een t h e Court’s approach to interpret the term in a consistent manner.” Id. at 1646. F or these reasons, we c onclude that the Supreme Court has effectively o verruled Branson ’ s holding that w hen a defendant wins because the action is dismis s e d for lack o f subject matter jurisdiction he is never a prevailing party

. See Miller v. Gammie
, 335 F .3d 8 89, 899–900 (9th Cir. 2003) (en banc) (ex plaining that a three-judg e panel ma y no long er be bound by prior circuit p recedent if it is “effectively overruled by subsequent Supreme Court decisions”).

W ith Branson out of the w ay , the question of whether Aventis is a p revailing party is an easy one: Yes. Aventis has

14 T h e Su p rem e Co urt tells u s th at w e s h o u ld lo o k to w h eth er th ere

w as a “ m aterial alteratio n o f th e leg al rel a t io n sh ip o f th e p arties.” Id

. at 1 6 4 6

. W e sh o u ld also lo o k to w h eth er d eem in g a p arty “ p rev ailin g ” an d

aw ard in g f

ees f o r f riv o lo u s litig atio n f

urth ers t h e p urp o s e of th e statuto ry

s c h e m e. Id

. at 1 6 5 2

. Giv en th at th e purp o se o f f ee- sh if t in g statutes i s t o d eter f riv o l o u s litig atio n , an d s i n ce f ees can on ly b e aw ard ed if th e p lain tif f ’ s actio n is d eem ed f

riv o lo u s, th e an sw er is alm o st alw ay s y es. S ee id

. (“ Im p o sin g an o n

- th e- m erits req u i rem en t f or a d ef en d an t to o b tain
p r ev ailin g party statu s w o u ld un d erm i n e th at co n g ressio n al p o lic y b y b lo ck in g a w

h ole categ o ry o f d ef

en d an ts f o r w h o m Co n g ress w ish ed to

m ak e f ee aw ard s av ailab le.”).A M P H A S T A R P H A R

M

. V

. A V E

N T I S P H A R M A 26

spent eig ht y ears, q

uite a bit of mon e y , a n d q u ite a bit o f energ y , fig hting this lawsuit. This lawsuit has probably lasted long er than the vast majority of lawsuits that are resolved on the “merits.” I f Amphastar broug ht a f rivolous action, t he

s t a tutory scheme strong ly indicates that this is the kind o f

case for which fee awards should b e available to deter future frivolous plaintiffs. See CRST
, 136 S. Ct. at 1652. Common

sense say s that Aventis has won a sig nificant victory a nd permanently chang ed the “leg al relati o n s h i p of the parties.” Id. at 1646.

C

Amphastar challeng e s whether § 3730(d)(4) contains an independent g rant of subject matte r jurisdiction to award attorney s’ fees. W e have located independent g rants in some

cases but not in others, as discu s s e d above, b u t whether § 3730(d)(4) contains an independent g rant of jurisdiction is

a matter of first impression for this circuit. W h e n d eciding this question we have looked at the tex t and structure of the
statute. See Latch
, 842 F .2d at 1033. W e have also been more willing to allow a district court to award attorney s’ fees when the u n derlying issues c o ncerned whether the district court h ad jurisdiction—since a court alway s has jurisdic t i o n to determine its own jurisdiction. Id. at 1033 n.4.

Two courts in other circuits h ave addressed this question. B oth conclude that § 3730(d)(4) provides an independent g rant of jurisdiction to awar d a ttorney s’ fees even if the underlying action is dismissed for lack of jurisdict ion. See United States ex rel. Grynberg v. Praxair, Inc.
, 3 8 9 F.3d 1038, 1055–5 8 (10th Cir. 2004); United States ex rel. Atkinson v. Pa. Shipbuilding Co.
, 528 F

. Supp. 2d 533, 540 (E.D. Pa. 2007). B oth relied on the tex t and structure o f theA M P H A S T A R P H A R

M

. V

. A V E

N T I S P H A R M A 27

statute. Id. Atkinson observed that “[ e] liminating jurisdiction
to award attorney fees and ex penses in such cases would have the illog ical consequence of disallowing fe e s in cases specifically identified by C o n gr ess as u ndesirable.” 528 F

. Supp. 2d at 539–40.

The F alse Claims Act jurisdictional bar covers a huge number of cases. To rule that a district court cannot award attorney s’ f

ees even when it determines that a Relator broug ht

a frivolous suit just because th e jurisdictional bar applies would undermine one o f t h e key p urposes of the 1986 amendments to the F alse Claims A c t—“to discourag e ‘parasitic’ suits broug ht by individuals with no information o f their own to contribute to the suit.” 1 5 U nited States v

. Johnson Controls, Inc.
, 457 F .3d 1009, 1017 (9th Cir. 2006) (quoting Seal 1 v. Seal A
, 255 F .3d 1154, 1158 ( 9 th Cir. 2001)). I t is consistent with the statutory scheme that Aventis can receive attorney s’ fees from Amphastar if its cl a i m was frivolous, g iven the immense amount of resources and time this action has cost e very one. Cf. CRST
, 136 S. Ct. at 1652–53 (discussing how in the contex t of Title VI I of the Civil Rig hts Act, “sig nificant attorney time and ex penditure m ay have g one into contesting the claim [ in cases l i ke these] ” a nd “Cong ress could not have intended to bar defendants from obtaining attorney ’s fees in these cases”).

Given Latch
, the tex t and s tructure of the statute, a nd Grynberg and Atkinson
, we conclude that § 3730(d)(4) contains an independent g r ant of subject matter jurisdict ion
at least to the e x tent that a court is able to award attorney s’

15 Co n g r ess en acted tw o related p ro v i sio n s to f urth er th at g o al in 1 9 8 6 : t h e p u b lic d i s c lo su

re b ar (§ 3 7 3 0 (e)(4 )) an d th e atto rn ey s ’ f ees p ro v isio n f o r p rev ailin g d ef

en d an t s (§ 3 7 30 (d )(4 )).A M P H A S T A R P H A R

M

. V

. A V E

N T I S P H A R M A 28

f e e s even w here the issue is whether the court had subjec t matter jurisdiction at all.

D

W e are p ersuaded that the district court had subject matter jurisdiction over the attorney s’ fees issue and that Aventis is the prevailing p a r t y

. As such, the district court may award attorney s’ fees to Aventis if it determines that Amphastar’s claim “was clearly frivolous, clearly vex atious, or broug ht primarily for purposes of harassment.” § 3730(d)(4).

I V

Amphastar’s alleg at i o n s in this a ction were based on pu b l i c ly disclosed information, and it lacked the direct a nd independent knowledg e needed to be an orig inal source. W e uphold the judg ment of the district court in favor of Aventis

on the merits. However, because the F alse Claims Act’s feeshifting p rovision contains an independ ent g rant of subject
matter jurisdiction and because a party who wins a lawsuit on

a non-merits issue is a “prevaili n g p arty ,” the conclusion o f the district court that it c ould not award attorney s’ fees is
erroneous, and the case is remanded for res o l u tion of the attorney s’ fees issue.

Therefore, the judg ment of the district court in N o. 15- 56 1 22 is AF F IRMED
, the appeal in No. 1 4-56382 is D I S MI S S E D
, t h e j u d g m e n t i n N o

. 1 5

- 5 6 2 0 9 i s REVERSED
, and the case is REMANDED for furth er proceeding s consistent with this opin ion.