1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 15a0120p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

U

NITED S TATES OF A MERICA ex rel. D AVID F. A

NTOON and L INDA R. A NTOON , Relators-Appellants ,

v

.

C LEVELAND C LINIC F OUNDATION and I NTUITIVE S URGICAL , I NC ., et al., Defendants-Appellees

. ┐ │ │ │ │ │ │ │ │ │ ┘ No. 13-4348

Appeal from the United St ates District Court for the Southern District of Ohio at Dayton. No. 3:12-cv-00027—Thomas M. Rose, District Judge. Argued: August 7, 2014 Decided and Filed: June 11, 2015 Before: GIBBONS and McKEAGUE, Circ uit Judges; LAWSON, District Judge. *

_________________ COUNSEL

ARGUED: Matthew C. Schultz, BRANNON & ASSO CIATES, Dayton, Ohio, for Appellants. Matthew C. Corcoran, JONES DAY, Columbus, Ohi o, for Cleveland Clinic Appellees. Colter L. Paulson, SQUIRE SANDERS (US) LLP, Cincinnati, Ohio, for Appellee Intuitive Surgical. ON BRIEF: Matthew C. Schultz, Dwight D. Brannon, BRANNON & ASSOCIATES, Dayton, Ohio, for Appellants. Matthew C. Corcoran, Chad A. Readler, JONES DAY, Columbus, Ohio, Stephen G. Sozio, JONES DAY, Cleveland, Ohio, for Cleveland Clinic Appellees. Colter L. Paulson, Thomas A. Zeno, SQUIRE SANDERS (U S) LLP, Cincinnati, Ohio, for Appellee Intuitive Surgical.

* The Honorable David M. Lawson, United States District Judge for the Eastern District of Michigan, sitting by designation. 

### >No. 13-4348 United States ex rel. Antoon, et al. v. Cleveland Clinic, et al. Page 2

LAWSON, D.J., delivered the opinion of th e court in which McKEAGUE, J., joined and GIBBONS, J., joined in part a nd in the result. GIBBONS, J. (pp. 19–21), delivered a separate concurring opinion.

_________________ OPINION

_________________ DAVID M. LAWSON, District Judge. When Colonel David Antoon (United States Air Force, retired) learned that he needed prostate surgery, he re searched treatment options and specialists, which led him to the Cleveland Clin ic and defendant Dr. Ji had Kaouk. Col. Antoon interviewed Dr. Kaouk and arranged for him to perform the operation, or so he thought. When Col. Antoon experienced complications following the surgery, his further investigation caused him to suspect that Dr. Kaouk did not actually perform the su rgery, and passed off the major duties to a surgical resident. Based on that suspicion, Col. Antoon lodged complaints with several individuals and agencies, and he filed a medical malpractice action in state court, which was dismissed voluntarily. Finding no satisfaction, Col. Antoon brought the present lawsuit as a relator under the qui tam provisions of the False Claims Act (FCA), premised on the theory that Dr. Kaouk billed the government for work he did not perform, and promoted the robotic surgical device he recommended in violation of the anti-kic kback statute. The United States declined to intervene, and the district court granted the de fendants’ motion to dismiss, after denying Col. Antoon leave to file a second amended complaint. Although we do not necessarily agree with some of the district court’s grounds for dismissi ng the case and declining the amendment, we do find that Col. Antoon cannot maintain a false cl aims action against the defendants because of a jurisdictional bar. Co l. Antoon does not have any direct and independent knowledge of the information upon which his fraud allegations are base d; therefore he cannot qualify as an original source of that information, and cannot establish standing as a qui tam plaintiff under the FCA. On that basis, we affirm the judgment of the district court.
I. Facts and proceedings
Col. Antoon began this action by filing a pro se complaint under seal in the district court on behalf of himself and his wife. He followed that with an amended complaint. After the government declined to intervene and the lawsu it was served, the defendants filed a motion toNo. 13-4348 United States ex rel. Antoon, et al. v. Cleveland Clinic, et al. Page 3

dismiss under Federal Rule of Ci vil Procedure 12(b)(1) and (6). Col. Antoon then obtained counsel, who responded to the motion and moved fo r leave to file a second amended complaint.
A. First amended complaint
In the first amended complaint, Col. Ant oon alleged that he met with Dr. Kaouk on December 6, 2007 to discuss surgical options to tr eat prostate cancer. At that meeting, Dr. Kaouk informed him that “robotic surgery was the safest surgical option and provided the best surgical outcomes for continence and potency.” Moreover, Dr. Kaouk represented that “only he, not doctors in training, would perform [Col. Ant oon’s] major surgery.” Col. Antoon purportedly added language to the informed consent document that only Dr. Kaouk was authorized to perform the plaintiff’s surgery.
On January 8, 2008, Col. Antoon underwent surgery, which resulted in multiple permanent complications causing disability and loss of employment. Col. Antoon alleges that he “did not see Jihad Kaouk in the operating room,” a nd told a surgical resident, Dr. Raj Goel that only Dr. Kaouk was authorized to perform his su rgery. Dr. Goel called Dr. Kaouk twice from the operating room to express Col. Antoon’s concer ns and then directed surgery to proceed over Col. Antoon’s objections. Dr. Kaouk called Ms. Antoon over the phone to say he “had trouble” and “got stuck,” apparentlyin an effort to explai n the lengthy surgery.
On January 15, 2008, Col. Antoon returned to the hospital fo r post-surgery procedures. A physician’s assistant removed Co l. Antoon’s surgical drain and catheter, but no physician or resident met with him. Col. Antoon alleged th at he “began experiencing multiple complications” after the visit, which he communicated to Dr. Kaouk, but were not documented in his chart.
Since July 2009, Col. Antoon alleged that he lodged complaints with the Cleveland Clinic Foundation (CCF), the Ohio Department of Health, the St ate Medical Board of Ohio, the federal Centers for Medicare/Medicaid Services (CMS), the Joint Commission on Accreditation, and government insurance programs TRICARE and th e Civil Health and Medical Program of the Uniformed Services (CHAMPUS). He submitted multiple Freedom of Information Act (FOIA) requests to state and federal agencies. He al so filed a medical malpractice action in theNo. 13-4348 United States ex rel. Antoon, et al. v. Cleveland Clinic, et al. Page 4

Cuyahoga County, Ohio Court of Common Pleas. Other former patients of Dr. Kaouk contacted the plaintiff after a newspape r article was published about Col. Antoon’s civil complaint.
The CCF ombudsman, Daniel DiCello, inve stigated Col. Antoon’s complaint and concluded that there was “no indication that anythi ng was done outside of the standard of care.” The ombudsman confirmed that “Staff Surgeon #16 [Jihad Kaouk] performed all critical points of the surgical procedure, consistent with th e information provide[d] to the patient prior to surgery” and “the surgical fell ow [Raj Goel] was limited to non-critical points of the surgical procedure, as [is] typically the cas e with procedures of this type.” But Col. Antoon insisted that CCF’s findings were “false and intentionally mi sleading.” Col. Antoon maintained that many records, documents, and communications were c oncealed, disappeared, or redacted to conceal complications from the surgery.
The amended complaint states a single cl aim under the FCA; it appears that Col. Antoon’s theory was that CCF and Dr. Kauok vi olated several provis ions of the TRICARE manual when submitting the bill for Col. Antoon’s prostate surgery. The essence of the false claim was the submission of a CMS-1500 claim fo rm for surgery by Dr. Kauok, when in truth the surgery was performed by an unsupervised surgic al resident. The relators also alleged that Dr. Kauok, the CCF, and device ma nufacturer Intuitive violated the Medicare and Medicaid Patient Protection Act by falsely promoting the efficacy of the robotic surgical device Dr. Kauok recommended when the doctor received compensa tion from Intuitive. Presumably, they meant to cite the anti-kickback provi sion in 42 U.S.C. § 1302a-7b(b)(2). The relators made similar claims against the other defendants.
B. Proposed second amended complaint
The proposed second amended complaint, whic h was rejected by the district court on futility grounds, was considerably more de tailed; it spanned 116 pages, contained 569 paragraphs, and included over 700 exhibits. But the theory of liability was the same: the defendants violated a condition of paymen t under the TRICARE and CHAMPUS programs when they submitted a CMS-1500 claim form and certified that the surgery was performed personally by Dr. Kaouk. The condition of paym ent was found in the TRICARE reimbursement manual. The plaintiffs alleged that several me dical records do not indi cate that Dr. Kaouk wasNo. 13-4348 United States ex rel. Antoon, et al. v. Cleveland Clinic, et al. Page 5

present for the surgery or that the records were al tered or signed weeks after the surgery to cover up multiple investigations for fraud. The seco nd amended complaint would have added 26 state law claims as well.
The second amended complaint elaborated on Col. Antoon’s experience in the operating room. He says that he met with an anaesth esiologist around noon to discuss the risks and benefits of anesthesia. Thereafter, Dr. Goel, a re sident urologist, entered the room and called Dr. Kaouk. Col. Antoon was taken to the operating r oom shortly before 1:00 p.m. He asked Dr. Goel why Dr. Kaouk was not present. Dr. Goel stated that Kaouk was in another surgery, but would arrive shortly. Goel stated to the anesthesio logist “Let’s get going! We are late.” Col. Antoon was under anesthesia from 1:05 p.m. until 5: 20 p.m; the surgery began at 1:45 p.m. and concluded at 4:47 p.m. Col. Antoon “never saw Ka ouk” prior to the anesth esia or in recovery.
Col. Antoon’s wife, Linda Antoon, told her husband that Dr. Kaouk “paged her to a telephone to inform her that he had ‘trouble’ and ‘got stuck.’” Dr. Kaouk met with Col. Antoon the next day and informed him that “it took him more time to get the bowel adhesion down, because there was a lot of adhesions, and that he needed the extra 40 minutes to get all the bowel adhesions out of the way.” Dr. Kaouk expected a full recovery. However, during a meeting in December 2008, Dr. Kaouk said that Col. Antoon did not have adhesions and that Dr. Kaouk “probably placed clamps on his nerves.”
In the proposed second am ended complaint, the Antoons alleged that the CMS-1500 claim form Dr. Kaouk submitted contained a lege nd below Dr. Kaouk’s si gnature stating: “I certify that the statements on the reverse apply to this bill and are made a part thereof.” The reverse side of the CMS-1500 form stated: I certify that the services shown on this form were medically indicated and necessary for the health of the patient and were personally furnished by me or were furnished incident to my professional service by my employee under my immediate personal supervision, except as otherwise expressly permitted by Medicare or CHAM PUS regulations.

The Antoons also elaborated on their conve rsation with CCF Ombudsman DiCello. They alleged that on July 27, 2009, DiCello called the Ant oons and told them that “resident Lee . . . had no recollection of Kaouk bein g present in Antoon’s surgery” and that “customarily, KaoukNo. 13-4348 United States ex rel. Antoon, et al. v. Cleveland Clinic, et al. Page 6

would only be present during the ‘nerve sparing portion of the surgery.’” “No findings were discussed other than the assertion by DiCello that Antoon authorized doctors in training to do his surgery and he accepted such risk.” Shortly thereafter, Col. Ant oon sent DiCello an email asking “[a]t what point in my surgery did Kaouk arri ve?” On August 4, 2009, Antoon received a letter from DiCello stating that the internal review was complete and Antoon’s medical care was appropriate and within the standardof care for such surgeries.
The Antoons alleged that on October 31, 2009, Dr. Thomas Cook, an orthopedic surgeon, informed Col. Antoon that a surgeon is not allo wed to bill for services unless present for the critical procedures. Col. Antoon asked Dr. Co ok which portions of a radial prostatectomy are considered critical and Cook respond ed, “almost the entire surgery.”
On November 16, 2009, Dr. Jack Pence, a ur ologist, reviewed Col. Antoon’s surgical records and concluded that Col. Antoon’s ne gative outcome was probably the result of an unsupervised resident doing his surgery. Penc e stated that “it was common knowledge that multiple simultaneous surgeries were performed at Cleveland Clinic and other training hospitals by residents with a staff surgeon not present,” “he was aware of surgeons at the CCF allowing residents to do surgeries without patient knowledge or consent,” and “his last four penile implant procedures were on prostat ectomy patients from CCF.”

Col. Antoon also clarified that in addition to the complaints he lodged with the several agencies noted earlier, he tendered “41 FO IA submissions to CMS, 38 submissions to DOD/TRICARE, and 7 to HHS.” Several of those i nvestigations revealed substantial violations related to medical records, surgi cal services, and staff credentials. The Antoons also alleged that after they filed their ma lpractice lawsuit and the Cleveland Plain Dealer published its article about the case, the “other victims of Dr. Kaouk” who contacted Col. Antoon said that they never saw Dr. Kaouk during their surgeries.
C. Proceedings in the district court

After the Antoons filed their la wsuit under seal, a nd after the United States declined to intervene, the district court ordered servi ce on the defendants and portions of the record unsealed. The defendants filed motions to dismi ss under Federal Rules of Civil Procedure 8(a),No. 13-4348 United States ex rel. Antoon, et al. v. Cleveland Clinic, et al. Page 7

9(b), 12(b)(1), and 12(b)(6 ), arguing that the district court lacked subject matter jurisdiction and the amended complaint failed to state a cl aim upon which relief c ould be granted.
In granting the motion to dismiss and re fusing leave to file the second amended complaint, the district court he ld that (1) the amended complain t did not state a claim under the FCA because it did not satisfy Rule 9(b)’s partic ularity requirement where it did not identify the services that Col. Antoon received, the specific claim form submitted for those services, and the date the claim forms were submitted; (2) the ame nded complaint did not contain sufficient facts to allege a fraudulent scheme because it did not allege that the defendants submitted any claims that were factually false, i.e. , that Dr. Kaouk did not provide a ny medical services; and (3) the relators did not cite a condition of payment th at would be violated if Kaouk was not present during the operation, because the TRICARE reimbur sement manual did not constitute a law or regulation, which is what the FCA required.

The district court also held that it lacked subject matter jurisdiction over the FCA allegations against Intuitive, Dr. Kaouk, and th e Cleveland defendants be cause there was public disclosure of the Antoons’ allegations before they filed their FCA complain t in federal court, and they could not allege plausibly that they were an original source. The dist rict court observed that facts concerning Dr. Kaouk’s financial arrangeme nt and his practice of providing unreasonably optimistic descriptions of surgery outcomes with the robotic device were already in the public domain before the lawsuit was filed. Also, th e Antoons made allegations in their June 2010 malpractice lawsuit about Dr. Kaouk’s absence from the actual surgery. The court rejected the Antoons’ argument that they provided fresh in formation to the Center s for Medicare/Medicaid Services (CMS), because the amended complaint di d not actually say that, and it appeared that the fraud allegations were ba sed on information received from CMS. Moreover, the court held, disclosure to CMS does not satisfy the FCA’s requirement of disclosing information to the government; disclosure must be made to the Depa rtment of Justice (DOJ ), and there were no factual allegations in the amended complaint or proposed second amended complaint that the Antoons made a disclosure to the DOJ.
Finally, the court held that the amended compla int did not state a claim for a violation of the anti-kickback statute because the parts of th at statute cited in the amended complaint areNo. 13-4348 United States ex rel. Antoon, et al. v. Cleveland Clinic, et al. Page 8

criminal provisions and may only be enforced by the government; and even if the Antoons could bring the claim, the factual allegations were insuffi cient to state a claim. The court also denied leave to amend because the proposed second amende d complaint did not cure the defects in the FCA claims, and the court would have declined to exercise supplementa l jurisdicti on over the remaining state-law claims.

II. Discussion
Although we do not necessarily agree with some of the district cour t’s rulings based on Rule 12(b)(6), the success of this case for th e Antoons boils down to the question of subject matter jurisdiction, which was addressed by the defendants’ motion under Rule 12(b)(1). We give fresh review to a district court’s dismissal of an FCA complaint for lack of subject matter jurisdiction. Russell v. Garrard , 83 F. App’x 781, 782 (6th Cir. 2003) (per curiam) (citing Duncan v. Rolm Mil-Spec Computers , 917 F.2d 261, 263 (6th Cir. 1990)).
Some of the defendants’ challenges address the substance of the fraud allegations and attack the merits of the relators’ claims. We have warned that attacks on the merits should not be confounded with jurisdictional ch allenges, admonishing courts to be more exacting when addressing arguments styled as jurisdictional attacks. Primax Recoveries, Inc. v. Gunter , 433 F.3d 515, 518-19 (6th Cir. 2006) (“‘Clar ity would be facilitated . . . if courts and litigants used the label “jurisdictional” not for claim-processi ng rules, but only for pres criptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal juri sdiction) falling within a court’s adjudicatory authority.’” (quoting Eberhart v. United States , 546 U.S. 12, 16 (2005) (per curiam), and citing Kontrick v. Ryan , 540 U.S. 443, 453 (2004))).
However, although it is obvious that Col. Antoon’s main grievance stems from his belief that he received poor medical care , or perhaps that he was deprived of the be nefit of his bargain (he hired the seasoned pro but belie ves he got the untested rookie in stead), the actual victim of the federal claim he seeks to advance is the United States. Under the FCA, it is illegal to present a false claim for payment to the government . 31 U.S.C. § 3729(a)(1). The qui tam provisions of the Act grant standing to a limited class of private individuals to bring such claims. See United States ex rel. Dick v. Long Island Lighting Co. , 912 F.2d 13, 18 (2d Cir. 1990) (“‘[T]he purpose of the qui tam provisions of the False Claims Act is to encourage private individuals who areNo. 13-4348 United States ex rel. Antoon, et al. v. Cleveland Clinic, et al. Page 9

aware of fraud being perpetrated against the Gove rnment to bring such information forward.’”) (quoting H.R.Rep. No. 99-660, at 22 (1986)); see also United States ex rel. May v. Purdue Pharma L.P. , 737 F.3d 908, 912 (4th Cir. 2013) (noting that the qui tam provisions of the FCA “statutorily vests private citizens with standing” (citing Vt. Agency of Natural Res. v. United States ex rel. Stevens , 529 U.S. 765, 773 (2000))). To establish standing, Col. Antoon must plead facts in his complaint that dem onstrate that he satisfies the FCA’s qui tam requirements. See United States ex rel. Poteet v. Medtronic, Inc. , 552 F.3d 503, 515-16 (6th Cir. 2009) (reiterating that “for a qui tam relator to have standing to bri ng her claim, she ‘must be a true “whistleblower”’” (quoting United States ex rel. Taxpayers A gainst Fraud v. General Elec. Co. , 41 F.3d 1032, 1035 (6th Cir.1994))). If he cannot meet those requirements, then he does not have standing and the federal courts do not have subject matter jurisdiction over his FCA claim. Loren v. Blue Cross & Blue Shield of Mich. , 505 F.3d 598, 607 (6th Cir. 2007) (“As the party invoking federal jurisdiction, Plaintiffs bear the bur den of establishing st anding. If Plaintiffs cannot establish constituti onal standing, their claims must be di smissed for lack of subject matter jurisdiction.”) (internal citations omitted); Zurich Ins. Co. v. Logitrans, Inc. , 297 F.3d 528, 534 (6th Cir. 2002) (Gilman, J., concurring) (“Without Article III standing, the district court lacked subject matter jurisdiction over the entire case. Where jurisdiction does not exist, ‘the only function remaining to the court is that of announcing the fact and dismissing the cause.’”); Ward v. Alternative Health Delivery Sys., Inc. , 261 F.3d 624, 626 (6th Cir. 2001) (“Standing is thought of as a ‘jurisdictional’ matter, and a plaintiff's lack of standing is said to deprive a court of jurisdiction.”) (citations omitted).
One of those requirements is that when th e basis of the lawsuit has been publically disclosed in advance, the person filing the action must be the original source of the information that a false claim has been presented. Poteet , 552 F.3d 503, 507 (6th Cir. 2009) (stating that there is no “federal jurisdiction” under the “FCA [for] actions ‘b ased on the public disclosure of allegations or transactions . . . unless the action is brought by the Attorney General or the person bringing the action is an origin al source of the information.’” (quoting 31 U.S.C. § 3730(e)(4)(A) (2005)). After a public disclosure of the basis of the lawsuit, if a qui tam relator cannot establish himself as an original source of the information, he has no standing to pr oceed with the action.No. 13-4348 United States ex rel. Antoon, et al. v. Cleveland Clinic, et al. Page 10

The “original source” requirement in effect when the claim arose is jurisdictional. Rockwell Intern. Corp. v. United States , 549 U.S. 457, 467-68 (2007).

A. 2010 amendments to the FCA
Before we address the CCF defendants’ pub lic disclosure bar arguments, we must determine which version of the statute applies to this case. The events described in the complaint occurred in 2007 and 2008. Congress amended the FCA in March 2010 and modified several aspects of the public disclosure bar, including the definition of “original source” in section 3730(e)(4)(B). There is no indication thatthe statute was meant to have retroactive effect, which would be n ecessary to apply it to conduct that occurred be fore the amendment. See Hughes Aircraft Co. v. United States ex rel. Schumer , 520 U.S. 939, 946 (1997) (holding that the presumption against retroactivity must apply “unle ss Congress has clearly mani fested its intent to the contrary”); see also Landgraf v. USI Film Prods. , 511 U.S. 244, 265 (1994) (observing that “the principle that the legal e ffect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal” (internal quotation marks omitted)). The Supreme Court ha s held on two occasions that th e 2010 FCA amendments do not apply to cases arising before the effective date of the statute. Schindler Elevator Corp. v. United States ex rel. Kirk , --- U.S. ---, 131 S.Ct. 1885, 1889 n.1 (2011); Graham Cnty. Soil & Water
Conservation Dist. v. Unite d States ex rel. Wilson , 559 U.S. 280, 283 n.1 (2010) (“The legislation makes no mention of retroactivity, which would be n ecessary for its application to pending cases given that it eliminates petitioners’ claimed defense to a qui tam suit.”). Other circuit courts that have consid ered the question have applied th e pre-2010 version of the statute to such cases. See May , 737 F.3d at 918; United States ex rel. Zizic v. Q2Administrators, LLC , 728 F.3d 228, 232 n.3 (3d Cir. 2013); United States ex rel. Goldberg v. Rush Univ. Med. Ctr. , 680 F.3d 933, 934 (7th Cir. 2012); United States ex rel. Jamison v. McKesson Corp. , 649 F.3d 322, 326 n.6 (5th Cir. 2011); United States ex rel. Poteet v. Bahler Med., Inc. , 619 F.3d 104, 107 n.2 (1st Cir. 2010); United States ex rel. Hixson v. Health Mgmt. Sys., Inc. , 613 F.3d 1186, 1188 n.3 (8th Cir. 2010). In May , the Fourth Circuit thoroughly an alyzed the changes to section 3730(e)(4) wrought by the 2010 amendments and concl uded that “the 2010 version of the publicdisclosure bar cannot be applied in [that] case, notwithstanding the fact that the complaint wasNo. 13-4348 United States ex rel. Antoon, et al. v. Cleveland Clinic, et al. Page 11

filed after the effective date of the amendments.” May , 737 F.3d at 918 (citation omitted). We agree and hold that the pre-2010 version of section 3730(e)(4) applies in this case.
B. Original source

A relator cannot establish qui tam status if the “action under . . . section [3730 is] based upon the public disclosure of allegations or trans actions in a criminal, ci vil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media” unless the relator “is an original source of the information.” 31 U.S.C. § 3730(e)(4)(A) (1986). Congress has defined an “original source” as an individual who has direct and indepe ndent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information. 31 U.S.C. § 3730(e)(4)(B) (1986). Th e district court held that the relators did not qualify as an original source because they did not disclose their information to a Department of Justice official. On appeal, the CCF defendants also ar gue that the relators did not have personal knowledge of the fraudulent conduct. The relato rs challenge both conclusions on appeal, as well as the conclusion that a public disclosure occurred.

1. Public disclosure
A public disclosure occurs “when enough info rmation exists in the public domain to expose the fraudulent transaction.’” United States ex rel. Jones v. Horizon Healthcare Corp. , 160 F.3d 326, 331 (6th Cir. 1998) (quoting United States ex rel. Spri ngfield Terminal Ry. Co. v. Quinn , 14 F.3d 645, 654 (D.C. Cir. 1994)). There is enough information in the public domain if “‘the information is sufficient to put the gove rnment on notice of the likelihood of related fraudulent activity.’” Poteet , 552 F.3d at 512 (quoting United States ex rel. Gilligan v. Medtronic, Inc., 403 F.3d 386, 389 (6th Cir. 2005)). Public disclosure “incl udes documents that have been filed with a court, such as disc overy documents and a plaintiff’s complaint,” ibid. , even if the plaintiffs filed the documents themselves, United States ex rel. Jones v. Horizon Healthcare Corp. , 160 F.3d 326, 333 (6th Cir. 1998). Public disclosure also includes responses to FOIA requests. Schindler Elevator , 131 S. Ct. at 1893.No. 13-4348 United States ex rel. Antoon, et al. v. Cleveland Clinic, et al. Page 12

Two types of disclosures are sufficient to put the government on notice of fraud. Poteet , 552 F.3d at 512. First, “‘if the information about bot h a false state of facts and the true state of facts has been disclosed, we [will] find that there has been an adequate public disclosure because fraud is implied.’” Ibid. (quoting Gilligan , 403 F.3d at 389). Second, “i f there has been a direct allegation of fraud, we will find a public disclosure because such an alle gation, regardless of its specificity, is sufficient to put the government on notice of the potential existence of fraud.” Ibid. (citing Gilligan , 403 F.3d at 389). “Moreover, the information suggesting fraud need not even come from the same source as long as the different sources ‘together provide information that leads to a conc lusion of fraud.’” Ibid. (quoting Gilligan , 403 F.3d at 390).
Several aspects of the relators ’ pleadings show that there wa s a prior public disclosure of fraud. First , the Antoons filed a state court complaint on June 6, 2010, nearlytwo years before they filed their federal court ac tion, in which they alleged that “upon information and belief, Dr. Kaouk either was not present duri ng Colonel Antoon’s surgery, or he merely observed while key aspects of the procedure were completed by Dr. Goel , Dr. Lee, or some othe r doctor-in-training.” Second , the Cleveland Plain Dealer published an article highlighting the Antoons’ allegations and referenced the CMS investigation that, am ong other things, reviewed whether Dr. Kaouk performed his surgery. Third , the amended complaint and proposed second amended complaint contain allegations that the Antoons learned fro m responses to FOIA requests. Not only are those allegations sufficient to put the governme nt on notice of the likelihood of “related fraudulent activity,” Poteet , 552 F.3d 503 at 516, but the govern ment (CMS) investigated whether Dr. Kaouk performed the surgery and concluded he had.
Further, the relators’ qui tam complaint was “based upon” a prior disclosure of fraud because there was “‘a substantial identity . . . between the publicly disclosed allegations or transactions and the qui tam complaint.’” Id. at 514 (quoting Jones , 160 F.3d at 332). For instance, the state court complaint, noted above, accused Dr. Kaouk of being absent from or not personally performing the core surgical tasks. And at least some of the allegations in the federal pleadings about Dr. Kaouk’s surgery schedule and inaccuracies contained in Dr. Kaouk’s medical records are based on responses that the Antoons received from their FOIA requests.No. 13-4348 United States ex rel. Antoon, et al. v. Cleveland Clinic, et al. Page 13

Because there was a public disclosure, the Antoons cannot establish qui tam status unless they are an “original source.”

2. Disclosure to the “Government”

The district court held that the Antoons cannot be an original source because they did not disclose their information about the defendants’ fraud to a Department of Justice official. A relator must disclose evidence of fraud to the government before filing an action under the FCA.
Jones , 160 F.3d at 334. “[T]his rule is necessary b ecause one is not a true whistleblower unless she is responsible for alerting the government to th e alleged fraud before such information is in the public domain.” Ibid. However, we have never held th at disclosure to the government under 31 U.S.C. § 3730(e)(4)(A) is limited to the Departmentof Justice. Instead, a relator satisfies the requirements of 31 U.S.C. § 3730(e)(4)(A) if he discloses the information to the federal government. Jones , 160 F.3d at 334-335; see also United States ex re l. Davis v. District of Columbia , 679 F.3d 832 (D.C. Cir. 2012) (disclosure to In spector General of Dept. of Health and Human Services held to be sufficien t disclosure to “the government”); Minn. Assoc. of Nurse Anesthetists v. Allina Health System Corp. , 276 F.3d 1032, 1032 (8th Cir. 2002) (holding that an association of nurse anesthetists qualified as an original sour ce because it voluntarily provided information to the local Medicare office before fili ng suit). The district c ourt erred in concluding that the Antoons did not qualify as an original source because they directed their complaints to CMS rather than the Department of Justice.
3. Direct and independent knowledge
An original source is “an i ndividual: (1) with direct and independent knowledge of the information on which the allegations are based . . . .” Jones , 160 F.3d at 333 (citing 31 U.S.C. § 3730(e)(4)(B) (1986)). Our cases have addre ssed the meaning of “direct and independent knowledge” only in passing. We firs t discussed what it takes to be an “original source” in United States ex rel. McKenzie v. BellSouth Telecommunications, Inc. , 123 F.3d 935, 941 (6th Cir. 1997), where we assessed the competing interpre tations of that term among the circuits. We adopted the D.C. Circuit’s approach in United States ex rel. Findley v. FPC-Boron Employees’ Club , 105 F.3d 675 (D.C. Cir. 1997), overruled on other grounds by United States ex rel. Davis v. District of Columbia , 679 F.3d 832, 838-39 (D.C. Cir. 2012), and held that a relator is anNo. 13-4348 United States ex rel. Antoon, et al. v. Cleveland Clinic, et al. Page 14

original source if the re lator informs the government of the allegations of fraud before those allegations are disclosed to the public. Id. at 942 (finding “difficult[y] . . . understand[ing] how one can be a ‘true whistleblower’ unless she is responsible for alerting the government to the alleged fraud before such inform ation is in the public domain”) . However, a relator is not required to have had a hand in the public disc losure of the allegations that make up the qui tam lawsuit. Ibid.
In arriving at that conclu sion, we observed that the mean ing of “direct knowledge” is commonly “interpreted as ‘marked by absence of intervening agency,’” Id. at 941 (quoting United States ex rel. Stinson v. Prudential Ins. Co. , 944 F.2d 1149, 1160 (3d Cir. 1991)); and “‘independent knowledge’ is not ‘d ependant on public disclosure,’” ibid. (quoting Houck v. Folding Carton Admin. Comm. , 881 F.2d 494, 505 (7th Cir. 1989 )). We noted that the Findley court defined “direct knowledg e” to mean first-hand knowledge a nd “independent” to mean that the information known by the re lator does not depend or rely upon the public disclosures, id. at 942, although we had no occasion to adoptthose definitions at the time.
However, that definitional question presents itself here, because much of the information of the fraud alleged by the Antoons was pieced together from their interpretation of the records they gathered and their suspicion generated by what Col. Antoon saw — or did not see — immediately before and after his surgery. The CCF defendants argue that a relator cannot have “direct knowledge” under sec tion 3730(e)(4)(B) unless his k nowledge is first-hand.
There is language in the opinions from some courts that supports that idea. In United States ex rel. Aflatooni v. Kitsap Physicians Servs. , 163 F.3d 516 (9th Cir. 1998), for instance, the court held that the relator, a physician, was not an original sour ce of alleged Medicare billing fraud because the information “stem[med] from suspicions he developed after talking with patients who had previously receive d medical services from [the defendants] and after reviewing the information contained intheir medical records.” Id. at 523. The court looked to its own precedent, United States ex rel. Devlin v. State of California , 84 F.3d 358, 360 (9th Cir. 1996), in which it had held that the relator was not an original source of the alleged fraud because he learned of it from an insider w ho actually witnessed the record fa lsification, and told the relator about it. In both cases, the c ourt contrasted the facts in Wang v. FMC Corp. , 975 F.2d 1412 (9thNo. 13-4348 United States ex rel. Antoon, et al. v. Cleveland Clinic, et al. Page 15

Cir. 1992), in which an engineer-r elator was found to be an original source because, when he was called in to study a problem w ith a product sold to the govern ment because “he saw [it] with his own eyes” and his knowledge was “unmediated by anything but [his] own labor.” Id. at 1417. The court then concluded that second-h and information does not constitute “direct knowledge”; to be an original source, the relator “must show that he had firsthand knowledge of the alleged fraud, and that he obtained this kn owledge through his ‘own labor unmediated by anything else.’” Aflatooni , 163 F.3d at 525 (quoting Devlin , 84 F.3d at 361).
However, there is nothing in the statutory text that limits “direct knowledge” to first-hand knowledge. And “we have never st ated whether a relator must possess a certain nature and quantity of information in order to have ‘direct and independent knowledge’ of her allegations.” United States ex rel. Branhan v. Mercy Health Sys. of Sw. Ohio , 188 F.3d 510 (6th Cir. 1999) (table) (Clay, J., concurring in part and dissenting in part). “Congress did not prescribe by mathematical formulae the quantum or centrality of nonpublic information that must be in the hands of the qui tam relator for suits to proceed.” Springfield, 14 F.3d at 653.
Certainly, proof of first- hand knowledge of fraud is sufficient to establish direct knowledge. After all, “[t]he paradigmatic ‘origina l source’ is a whistleblowing insider” who is a “‘close observer[] or otherwise invol ved in the fraudulent activity.’” United States ex rel. Stinson, Lyons, Gerlin & Bustamante, P.A. v. Prudential Ins. Co. , 944 F.2d 1149, 1154, 1161 (3d Cir. 1991) (quoting S. Rep. No. 345, at 4, reprin ted in U.S. Code Cong. & Admin. News 5269). But first-hand knowledge is not a necessary component of direct knowledge. A relator may rely in part on research or on informa tion already in the public domain. See Minn. Ass’n of Nurse Anesthetists , 276 F.3d at 1050 (“If the relator has direct knowledge of the true state of the facts, it can be an original source even though its know ledge of the misrepresentation is not firsthand.”); United Stated ex rel. At kinson v. PA. Shipbuilding Co. , 473 F.3d 506, 522-23 (3d Cir. 2007) (“We decline to adopt a ri gid rule that consultation withpublic documents automatically disqualifies a relator from being an original source. Some relian ce on public records or information is acceptable and, inde ed, it is hard to im agine that a non-inside r could ever obtain original source status without at least some consultation of publicly available information.”) (citing United States ex rel. Grynberg v. Praxair, Inc. , 389 F.3d 1038, 1053 (10th Cir. 2004)).No. 13-4348 United States ex rel. Antoon, et al. v. Cleveland Clinic, et al. Page 16

For instance, a relator may have direct (but not first-hand) knowledge of the billing practices of an institution, and uncover fraud only after consu lting a public document that reveals that those practices are fraudulent. See Minn. Ass’n of Nurse Anesthetists , 276 F.3d at 1050. We believe, therefore, the better viewis that “direct” knowledge is kno wledge gained by the relator’s own efforts and not acquired from the labor of other people. See United States ex rel Stone v. Rockwell Int’l Corp. , 282 F.3d 787, 799 (10th Cir. 2002); United States ex rel. Reagan v. E. Tex. Med. Ctr. Reg’l Healthcare Sys. , 384 F.3d 168, 177 (5th Cir. 2004) . The statute requires the relator to possess direct knowledge of the “i nformation” upon which th e fraud allegation is based. “On the basis of plain meaning . . . § 3730(e)(4)(B) does no t require that the qui tam relator possess direct and independent knowledge of allof the vital ingredients to a fraudulent
transaction .” Springfield , 14 F.3d at 656-57; see also Reagan , 384 F.3d at 177 (“The plain meaning of the term ‘direct’ requires ‘knowledge derived from the source without interruption or gained by the relator’s own efforts rather th an learned second-hand through the efforts of others.’”); Kennard v. Comstock Res., Inc. , 363 F.3d 1039, 1044-45 (10th Cir. 2004) (“Our review of the relevant case law revealed no require ment that a relator be a corporate insider. Additionally, we can think of no valid reason for creati ng such a restriction.”).
Each case is different and must be analyzed to assess the degree of the relator’s original input into the facts disclosed to the government. As the court explained in Kennard v. Comstock Resources, Inc. , 363 F.3d 1039 (10th Cir. 2004), A mere compilation of documents or reports already in the public domain will not allow a relator to qualify as an original source. However, a complete and thorough investigation of a fraud on the Government will likely necessarily involve some review of contracts, docume nts, or other information in the public domain. It is the character of the relator’s discovery and investigation that controls this inquiry.

Id. at 1045; see also Atkinson , 473 F.3d at 522 (noting that “[t]he more obscure the records and the more significant the investigative input of th e relator, the more lik ely it is that granting original source status will fulfill the FCA’s ‘twin goals of rejecting suits which the government is capable of pursuing itself, while promoting those which the government is not equipped to bring on its own’” (quoting Springfield , 14 F.3d at 651)).No. 13-4348 United States ex rel. Antoon, et al. v. Cleveland Clinic, et al. Page 17

Applying these principles requires us to fo cus on the character of the information of which Col. Antoon had direct knowledge. He knew that Dr. Kaouk was not present in the operating room before his surgery or after he woke up in the recovery room, but he did not personally observe whether Dr. Kaouk performed hi s surgery. Nor did Col. Antoon personally observe Dr. Kaouk create fraudulent medical records or bill TRICARE for other surgeries that he alleges Dr. Kaouk did not perform himself. Col. Antoon contends that the allegations that CCF and Dr. Kaouk violated conditions of payment are based on his own observations and a review of his private medical records. He received a copy of those records on February 11, 2009, March 11, 2010, and March 17, 2010 — in the case of some documents, years before he received any FOIA responses. The heart of the Antoons’ FCA cl aim appear to be based on his review of those records — which led him to believe that Dr. Ka ouk did not perform his surgery — and the fact that Col. Antoon did not see Dr. Kaouk befo re or after he performed his surgery.
However, that information is not suffici ent to constitute dire ct and independent knowledge within the meaning of 31 U.S.C. § 3730(e)(4)(B), because the conclusion that Dr. Kaouk was not personally involved in the surgery is largely speculative. “[T]he purposes of the Act would not be served by allowing a relato r to maintain a qui tam suit based on pure speculation or conjecture.” Aflatooni , 163 F.3d at 526. “[M]ere susp icion that there must be a false or fraudulent claim lurki ng around somewhere simply does notcarry [a relator’s] burden of proving that he is entitled to original source status.” United States ex rel. Vuyyuru v. Jadhav , 555 F.3d 337, 353 (4th Cir. 2009). Although the Antoons suspect that CCF and Dr. Kaouk committed fraud, they do not have any direct and independent knowledge of the information upon which their allegations are based. Col. An toon does not have any direct or independent knowledge of any of the essential elements of an FCA claim. He did not see whether Dr. Kaouk performed his surgery, did not observe Dr. Ka ouk submit false claims, and has only suspicion that his medical records were altered. Moreov er, although the Antoons “may have provided the initial impetus” for the CMS investigation, th at fact does not support a conclusion that the Antoons qualify as an original source. Hafter , 190 F.3d at 1162. Although Col. Antoon suspects that Dr. Kaouk submitted a false claim, mere susp icion is insufficient to qualify Col. Antoon as an original source.No. 13-4348 United States ex rel. Antoon, et al. v. Cleveland Clinic, et al. Page 18

Because Col. Antoon is not an original s ource of the information on which his complaint was based, the public disclosure bar deprived the district court of subject matter jurisdiction over this action. Dismissal of the amended complain t, therefore, was prop er. And because the proposed amended complaint did not cure those defects, refusal to a llow the amendment on futility grounds was proper.

III.
For the reasons discussed above, the di strict court’s judgment of dismissal is
AFFIRMED

.No. 13-4348 United States ex rel. Antoon, et al. v. Cleveland Clinic, et al. Page 19

_________________

CONCURRENCE

_________________ JULIA SMITH GIBBONS, Circuit Judge, concu rring. I agree with th e result reached by the majority, but I differ in my analysis of th e meaning of “direct and independent knowledge.” 31 U.S.C. § 3730(e)(4)(B). The ma jority is correct that the r ecords and experts relied upon by the Antoons could not support their knowledge of the fraud they alle ged. Even assuming that the Antoons could rely completely on second-handknowledge, the Antoons had at most, as the majority notes, a set of facts and inferences that gave them a “‘mere suspicion,’” Maj. Op. at 23 (quoting United States ex rel. Vuyyuru v. Jadhav , 555 F.3d 337, 353 (4th Cir. 2009)), that fraud had occurred. But the Antoons’ complete reliance on “‘speculati on or conjecture,’” id. (quoting United States ex rel. Aflatooni v. Kitsap Physicians Servs. , 163 F.3d 516, 526 (9th Cir. 1998)), means that we need not fully answer the questi on of what sort of knowledge is “direct and independent” under § 3730(e)(4)(B). 1

But since the majority addresses that ques tion, I believe the better approach would hew more closely to that of the Findley court. In other words, “to be ‘direct,’ the information must be first-hand knowledge.” United States ex rel. Findley v. FPC-Boron Emps.’ Club , 105 F.3d 675, 690 (D.C. Cir. 1997), abrogated on other grounds as recognized by United St ates ex rel. Davis v. District of Columbia , 679 F.3d 832, 837–39 (D.C. Cir. 2012). Cert ainly, a relator need not have first-hand knowledge of allof the information supporting his allegations, see United States ex rel. Springfield Terminal Ry. Co. v. Quinn , 14 F.3d 645, 656–57 (D.C. Ci r. 1994), but he must have at least some first-hand knowledge of that information. See United States ex rel. Branhan v. Mercy Health Sys. of Sw. Ohio , 188 F.3d 510 (6th Cir. 1999) (unpublished table decision) (citing United States ex rel. McKenz ie v. BellSouth Telecomms., Inc. , 123 F.3d 935, 943 (6th Cir. 1997), to hold that relator cannot be an original source without first- hand knowledge). As the Third Circuit has explained, “[s]ome relia nce on public records or information is acceptable . . . . [but] courts must be mindful of suits based only on secondhand information, speculation, background informati on or collateral research.” United States ex rel. Atkinson v.

1 This is especially true since the class of claims governed by that language is finite and shrinking, see 31 U.S.C. § 3731(b), after the 2010 amendments to the original source definition.No. 13-4348 United States ex rel. Antoon, et al. v. Cleveland Clinic, et al. Page 20

PA. Shipbuilding Co. , 473 F.3d 506, 522–23 (3d Cir. 2007) (em phasis added) (internal quotation marks omitted). The relator may have personal knowledge of the defendant’s business practices, for instance, but not of its represen tations to the federal government. See Minn. Ass’n of Nurse Anesthetists v. Allina Health Sys. Corp. , 276 F.3d 1032, 1050 (8th Cir. 2002).
A personal knowledge requirement seems to me a closer reading of the cases from our sister circuits. In fact, th is is quite possibly what the Aflatooni and Vuyyuru courts meant when they dismissed the claims before them as founded on suspicion and conjecture. See Vuyyuru , 555 F.3d at 352–53 (citing Rockwell Int’l Corp

. v. United States , 549 U.S. 457, 474–75 (2007)) (holding that a doctor-relator c ould not establish direct knowle dge of a hospital’s fraudulent billing after he “had withdrawn from practicing” there at the time of the alleged fraud); Aflatooni , 163 F.3d at 525 (equating direct knowledge w ith first-hand knowledge). When courts have defined “direct” as, say, “m arked by the absence of interven ing agency,” they have often applied this phrase to require so me amount of first-hand knowledge. See, e.g. , United States ex rel. Stinson, Lyons, Gerlin & Bustamante, P.A. v. Prudential Ins. Co. , 944 F.2d 1149, 1160–61 (3d Cir. 1991) (finding no direct knowledge wh ere relator acquired information “through two intermediaries”); accord United States ex rel. Hafte r v. Spectrum Emergency Care, Inc. , 190 F.3d 1156, 1162–63 (10th Cir. 1999); United States ex rel. Barth v. Ridgedale Elec., Inc. , 44 F.3d 699, 703 (8th Cir. 1995); see also United States ex rel. Reagan v. E. Tex. Med. Ctr. Reg’l Healthcare Sys. , 384 F.3d 168, 178–79 (5th Cir. 2004) (“[B ]y [relator’s] own admission, the knowledge that she brings to the case is almost entirely indirect —that is, based on research and review of public reco rds, not . . . her own obser vation.”). This conclusion also comports with the “theme recurring through the legislative histor y [of the 1986 amendments] . . . to encourage persons with first-hand knowledge of fraudulen t misconduct to report fra ud. Congress sought to stop the ‘conspiracy of silence’ among employees of corporations engaging in fraud.” Prudential Ins. Co. , 944 F.2d at 1154 (quoting S. Rep. No. 99-345, at 4 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5269); cf. Rockwell Int’l Corp. , 549 U.S. at 475 (“ Because Stone was no longer employed by Rockwell at the time , he did not know that the pondcrete was insolid . . . .” (emphasis added)).No. 13-4348 United States ex rel. Antoon, et al. v. Cleveland Clinic, et al. Page 21

In addition to aligning more closely with cas e law, a rule of some first-hand knowledge comports with the normal meanin g of “direct” as applied to ev idence. Direct evidence is testimony of a witness about what that witness personally saw orheard or did. Sixth Circuit Pattern Jury In structions § 1.06(2) (West 2013); see also 1 Clifford S. Fishman & Anne T. McKenna, Jones on Evidence § 1:5 (7th ed. 2014). In other wo rds, direct eviden ce is based on first-hand knowledge. The knowledge possessed by the Antoons is based on their investigation of records created and maintained by others, and this is not first-hand. To the extent they have first-hand knowledge, it does not extend to having witnessed Kaouk’s presence or absence during surgery or to the filing of any claims with the government. Because the Antoons do not qualify as an original source, I agree th at their complaint must be dismissed.