United States Court of Appeals

for the Fifth Circuit

No. 20-20071

United States of America, ex rel., Stephanie Schweizer, 

Plaintiff—Appellant,

versus

Canon, Incorporated; Canon Business Solutions, 

Incorporated; Canon USA, Incorporated, 

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:16-CV-582

Before Wiener, Elrod, and Higginson, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

Stephanie Schweizer appeals the district court’s dismissal of her qui 

tam claims under the False Claims Act (FCA), 31 U.S.C. §§ 3729–3733, 

alleging that Canon1 overcharged the United States for office equipment and 

provided non-compliant products. The district court dismissed Schweizer’s 

1 Schweizer does not challenge the district court’s conclusion that Canon USA, 

Inc.—a wholly owned subsidiary of Canon, Inc. and parent entity of Canon Business 

Solutions Inc.—is the only defendant that was “served and has appeared” in this case. 

United States Court of Appeals

Fifth Circuit

FILED

August 12, 2021

Lyle W. Cayce

Clerk

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2

claims under the FCA’s public disclosure bar, id. § 3730(e)(4), because they 

were based upon, or were substantially the same as, Schweizer’s prior FCA 

suit which the government settled years earlier. We AFFIRM. 

I. Background

The FCA imposes civil liability on any person who “knowingly 

presents . . . a false or fraudulent claim for payment or approval,” or 

“knowingly makes [or] uses . . . a false record or statement material to a false 

or fraudulent claim.” 31 U.S.C. § 3729(a)(1)(A), (B). The FCA permits 

private parties to enforce the statute by filing qui tam suits “in the name of 

the Government,” id. § 3730(b)(1), and incentivizes such whistleblower suits 

by awarding a substantial share of the fraudulent payments that are 

recovered, plus attorney’s fees and costs, id. § 3730(d). 

However, the FCA limits the types of actions that private plaintiffs 

can bring, including those for which the government is a party (the 

“government action bar”2) or for which the allegations have already been 

publicly disclosed (the “public disclosure bar”3). These limitations prevent 

rewarding “parasitic” suits which “add nothing to the exposure of fraud.” 

United States ex rel. Jamison v. McKesson Corp., 649 F.3d 322, 332 (5th Cir. 

2011) (quoting United States ex rel. Reagan v. E. Tex. Med. Ctr. Reg’l 

Healthcare Sys., 384 F.3d 168, 174 (5th Cir. 2004)); see also Graham Cnty. Soil 

& Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 294–

95 (2010) (describing Congress’ “effort to strike a balance between 

encouraging private persons to root out fraud and stifling parasitic 

2 “In no event may a person bring an action . . . which is based upon allegations or 

transactions which are the subject of a civil suit . . . in which the Government is already a 

party.” 31 U.S.C. § 3730(e)(3). 

3

31 U.S.C. § 3730(e)(4). See Part III, infra. 

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lawsuits”). At issue in this appeal is whether Schweizer’s claims against 

Canon are barred by these limitations. 

Schweizer filed her first FCA suit in 2006 against Océ North America 

Inc. Océ sold printers, copiers, and related services to the government. 

Schweizer worked as a General Services Administration (GSA) contracts 

manager for Océ from November 2004 until her termination in December 

2005. In that role, Schweizer alleged that she noticed “irregularities,” 

including that the United States was overpaying Océ for copiers and services, 

and that its products were manufactured in non-compliant countries 

including China. After Schweizer tried to correct these and other noncompliance problems, Océ fired her. 

Schweizer then sued Océ in the District Court for the District of 

Columbia asserting FCA claims for (1) violating the contract’s “Price 

Reductions Clause” because it overcharged the government for the same 

products it sold to non-government customers; and (2) violating the Trade 

Agreements Act (TAA) by selling products that were made in China and 

other non-TAA-compliant countries.

4

 

The government intervened and, over Schweizer’s objections, settled 

the qui tam claims with Océ in 2009. Océ agreed to pay the government 

$1,200,000 in exchange for release of the asserted FCA claims from April 1, 

2001, to December 31, 2008.5In 2013, the district court approved the 

4 See United States ex rel. Schweizer v. Océ, N.V. et al., No. 1:06-cv-648-RCL 

(D.D.C. Apr. 7, 2006). Schweizer also asserted claims for wrongful retaliation under 31 

U.S.C. § 3730(h). 

5 The settlement agreement’s “Covered Conduct” further specified that it 

included the fraud claims arising from the three contracts Schweizer asserted in her 

complaint against Océ, including the GS-25F-0060M (“60M”) contract. The agreement 

also awarded 19% of the settlement amount, or $228,000, to be split between Schweizer 

and her co-plaintiff as the qui tam relators. 

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settlement and dismissed the qui tam claims against Océ.6 Prior to the Océ 

action becoming final, Canon acquired Océ in 2012. 

On January 5, 2016, Schweizer subsequently commenced this 

action—her second FCA suit—alleging that Canon fraudulently 

overcharged the government for printers, copiers, and other office 

equipment, and that such products were produced in non-compliant 

countries. Schweizer alleges that Canon, after it acquired Océ, continued the 

fraud by (1) violating its contracts’ Price Reduction Clauses, and (2) 

providing non-TAA compliant products that were manufactured in China 

and other non-designated countries, in violation of the FCA, 31 U.S.C. 

§ 3729(a)(1).7 

Specifically, Schweizer asserts that Canon violated the terms of the 

same GSA contracts alleged in her first FCA suit which Schweizer says

Canon novated after acquiring Océ, and also violated the same Price 

Reduction and TAA clauses in additional contracts. For example, Schweizer 

asserts that Canon novated, and continued to violate, the GS-25F-0060M

(“60M”) contract, which Schweizer asserted in her first FCA suit against 

Océ, and for which the government specifically settled in 2009. She alleges

that Canon continued the fraudulent scheme “between January 2010 and 

January 2016,” which includes both before and after Canon acquired Océ in 

2012, and after the government settled the prior Océ action for claims 

6 United States ex rel. Schweizer v. Océ N. Am., 956 F. Supp. 2d 1, 3 (D.D.C. 2013). 

At first, the district court erroneously granted the settlement without conducting the 

requisite fairness hearing under § 3730(c)(2)(B). See United States ex rel. Schweizer v. Océ 

N.V., 677 F.3d 1228, 1237, 1241 (D.C. Cir. 2012), rev’g 681 F. Supp. 2d 64 (D.D.C. 2010), 

and rev’g 772 F. Supp. 2d 174 (D.D.C. 2011). 

7 As she alleged in her complaint against Océ, Schweizer also alleges that Canon 

conspired to defraud the government by making false or fraudulent claims for payment in 

violation of 31 U.S.C. § 3729(a)(1)(C). 

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between April 1, 2001, to December 31, 2008. Though Schweizer was no 

longer employed with Océ or Canon since her termination in 2005, she claims

to have “reviewed the modification history of the GSA Contracts involved 

here,” and based on “conversations with several Océ employees” and 

“information and belief,” the production “either continued in the Océ

facilities in China and Malaysia, or were moved to the manufacturing 

facilities that Canon already owned in China.”

The government declined to formally intervene in Schweizer’s 

second FCA suit. Canon moved to dismiss the complaint, asserting that 

Schweizer’s claims were barred by the government action and public 

disclosure bars, and alternatively failed to allege fraud with particularity 

under Federal Rules of Civil Procedure 12(b)(6) and 9(b). Schweizer 

opposed the motion in full, and the United States filed a statement of interest 

in opposition as to Canon’s interpretation of the government action bar, but 

noted that “[t]he United States takes no position on any other aspect of 

Canon’s Motion.” 

Following further summary judgment briefing, the magistrate judge 

recommended dismissing the claims because, based on the prior Océ 

litigation and settlement, both the government action and public disclosure 

bars applied to Schweizer’s claims against Canon. Both the United States 

and Schweizer timely objected. The United States, as in its prior statement, 

objected only to the government action bar, but took “no position on the 

Magistrate Judge’s Memorandum and Recommendation as it relates to the 

FCA’s public disclosure bar, 31 U.S.C. § 3730(e)(4), an alternative grounds 

for dismissal of relator’s case.” Schweizer objected to both grounds for 

dismissal. 

The district judge adopted in part the magistrate judge’s 

recommendation that Schweizer’s claims were publicly disclosed and 

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therefore barred Schweizer’s complaint against Canon. However, the 

district judge declined to reach whether the government action bar applied, 

overruling that portion of the recommendation. The district judge also

denied Schweizer’s subsequent Rule 59(e) motion for reconsideration. This 

appeal timely followed. 

II. Standard of Review

We review motions for summary judgment de novo. United States ex 

rel. Jamison v. McKesson Corp., 649 F.3d 322, 326 (5th Cir. 2011). A challenge 

under the FCA’s public disclosure bar “is necessarily intertwined with the 

merits and is, therefore, properly treated as a motion for summary 

judgment.” Id. (internal quotation marks and citation omitted). Summary 

judgment is appropriate “if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a).

III. Discussion

The primary issue on appeal is whether Schweizer’s claims against 

Canon were barred by the FCA’s public-disclosure provision. The current 

version of the FCA’s public disclosure bar states: 

(A) The court shall dismiss an action or claim under this 

section, unless opposed by the Government, if substantially the 

same allegations or transactions as alleged in the action or claim 

were publicly disclosed--

(i) in a Federal criminal, civil, or administrative hearing 

in which the Government or its agent is a party;

(ii) in a congressional, Government Accountability 

Office, or other Federal report, hearing, audit, or 

investigation; or

(iii) from the news media,

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unless the action is brought by the Attorney General or the 

person bringing the action is an original source of the 

information.

(B) For purposes of this paragraph, “original source” means 

an individual who either (i) prior to a public disclosure under 

subsection (e)(4)(a), has voluntarily disclosed to the 

Government the information on which allegations or 

transactions in a claim are based, or (2) [sic] who has 

knowledge that is independent of and materially adds to the 

publicly disclosed allegations or transactions, and who has 

voluntarily provided the information to the Government before 

filing an action under this section.

31 U.S.C. § 3730(e)(4) (2010).

8

 

As a threshold matter, Schweizer argues that the public disclosure bar 

cannot apply because the government objected to dismissal of Schweizer’s 

claims, and thus was “opposed by the Government.” Id. § 3730(e)(4)(A). 

8 This version of the public disclosure bar resulted from an amendment that 

became effective on July 22, 2010. See Patient Protection and Affordable Care Act, Pub. L. 

No. 111–148, 124 Stat. 119, 901, § 10104(j)(2) (Mar. 23, 2010); see also Jamison, 649 F.3d at 

326 n.6. Relevant here, the prior version of the public disclosure bar applied only where 

the subsequent action was “based upon the public disclosure of allegations or transactions,” 

§ 3730(e)(4)(A) (2006) (emphasis added), rather than being “substantially the same

allegations or transactions,” § 3730(e)(4)(A) (2010) (emphasis added). The parties state

that this change is immaterial to resolving the present case, and we therefore need not 

decide whether the amendment materially alters our public-disclosure analysis. Compare,

e.g., United States ex rel. Reed v. KeyPoint Gov’t Sols., 923 F.3d 729, 743–44 (10th Cir. 2019)

(concluding that the amended language is consistent with the court’s prior application of 

the public disclosure bar and “confirms the vitality of our pre-2010 standard”), and id. at 

744 n.6 (citing cases), with United States ex rel. May v. Purdue Pharma L.P., 737 F.3d 908, 

917 (4th Cir. 2013) (previously interpreting “based upon” to mean “that the plaintiff must 

have ‘actually derived’ his knowledge of the fraud from the public disclosure,” but 

concluding that “[a]s amended, however, the public-disclosure bar no longer requires 

actual knowledge of the public disclosure, [and] instead applies ‘if substantially the same 

allegations or transactions were publicly disclosed’” (quoting 31 U.S.C. § 3730(e)(4)(A) 

(2010))). Moreover, our conclusion is the same under either version. 

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Not so. Both of the government’s filings below expressly stated that it 

opposed only the government action bar and that it took no position as to 

dismissal of Schweizer’s claims under the public disclosure bar. Moreover, 

as Schweizer concedes, she “has not located caselaw”—and we have 

likewise found none—to support her novel interpretation that any

opposition, no matter how limited, forecloses dismissal under the public 

disclosure bar. 

As to whether Schweizer’s claims are barred under the FCA’s publicdisclosure provision, this court traditionally applies “a three-part test, asking 

‘1) whether there has been a “public disclosure” of allegations or 

transactions, 2) whether the qui tam action is “based upon” such publicly 

disclosed allegations, and 3) if so, whether the relator is the “original source”

of the information.’” Jamison, 649 F.3d at 327 (quoting Fed. Recovery Servs., 

Inc. v. United States, 72 F.3d 447, 450 (5th Cir. 1995)). “[C]ombining the 

first two steps can be useful, because it allows the scope of the relator’s action 

in step two to define the ‘allegations or transactions’ that must be publicly 

disclosed in step one.” Id.

9

We have previously applied the FCA’s public disclosure bar when “a 

qui tam action is ‘even partly based upon public allegations or transactions’ 

. . . . Even if [the relator] uncovered some nuggets of new, i.e., non-public, 

information, [the relator’s] claims of fraud are based at least in part on 

allegations already publicly disclosed.” United States ex rel. Fried v. W. Indep. 

Sch. Dist., 527 F.3d 439, 442 (5th Cir. 2008) (quoting United Statesex rel. Fed. 

9 On appeal, Schweizer no longer argues that she is an “original source,” and has 

therefore abandoned that argument. Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) 

(“An appellant abandons all issues not raised and argued in its initial brief on appeal.”). 

Thus, if Schweizer’s claims against Canon were publicly disclosed through the Océ 

litigation, they are barred. 

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Recovery Servs., Inc. v. E.M.S., Inc., 72 F.3d 447, 451 (5th Cir. 1995)). We 

have also emphasized that “[a] guiding query is whether ‘one could have 

produced the substance of the complaint merely by synthesizing the public 

disclosures’ description’ of a scheme.” Little v. Shell Expl. & Prod. Co., 690 

F.3d 282, 293 (5th Cir. 2012) (quoting Jamison, 649 F.3d at 331).

When considering whether a relator’s action is “based upon” publicly 

disclosed allegations or transactions, this court applies a two-part burdenshifting approach. First, the “defendants must first point to documents 

plausibly containing allegations or transactions on which [relator’s] 

complaint is based.” Jamison, 649 F.3d. at 327. Second, “to survive 

summary judgment, [the relator] must produce evidence sufficient to show 

that there is a genuine issue of material fact as to whether [her] action was 

based on those public disclosures.” Id. (citing Celotex Corp. v. Catrett, 477 

U.S. 317, 324 (1986)).10 

Before the district court, Canon pointed to documents from the Océ 

litigation, including the operative Océ complaint, the district court’s 2013 

order approving the Océ settlement, and news articles reporting on the 

litigation. Schweizer does not challenge that these documents constitute 

“public disclosures” under the statute, which include disclosures made in 

either “a Federal . . . civil . . . hearing in which the Government or its agent 

is a party” or “the news media.” 31 U.S.C. § 3730(e)(4)(A)(i), (iii). 

We agree with both the magistrate and district judges below that 

Canon satisfied its burden of showing that Schweizer’s allegations against 

Canon are “based upon” the allegations and transactions asserted in the Océ 

10 While Schweizer appeals the district court’s application of this burden-shifting 

framework, neither party disputes that it is the proper framework for considering whether 

Schweizer’s claims were publicly disclosed here. 

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litigation. Schweizer asserts that Canon committed the same fraudulent 

scheme she alleged against Océ. At least one of the contracts asserted (and 

settled) against Océ—the “60M” contract—is the identical contract

asserted in her suit against Canon. Moreover, her complaint against Canon 

draws largely, if not exclusively, from her complaint against Océ. At oral 

argument, Schweizer’s counsel conceded that her FCA claims against Canon 

involve the “same contracts” and the “same scheme” asserted in the Océ 

litigation.11 

Thus, the allegations against Canon are more than “even partly based 

upon” the Océ allegations or transactions, Fried, 527 F.3d at 442 (internal 

quotation marks and citation omitted), and “one could have produced the 

substance of the [Canon] complaint merely by synthesizing the public 

disclosures’ description of the [Océ] scheme,” Jamison, 649 F.3d at 331. 

We next consider whether, to survive summary judgment, Schweizer 

“produce[d] evidence sufficient to show that there is a genuine issue of 

material fact as to whether [her] action was based on those public 

disclosures.” Id. at 327. She has not. 

Schweizer primarily argues that her FCA claims against Canon are not 

barred because Canon is a different entity from Océ, and that it perpetuated 

the fraud over a later time period and with additional contracts. In support, 

she points to the Océ settlement agreement, which agreed only to settle

claims against Océ between April 2001 to December 2008; a 5-pargraph 

declaration describing her role as the relator in the Océ litigation; and the 

allegations in her operative complaint against Canon describing Canon’s 

novation of Océ’s contracts and subsequent entry into additional contracts. 

11 Schweizer’s counsel also conceded that Schweizer only broadly alleges that 

Canon, like Océ, failed to comply with its government contracts. 

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But none of this creates a genuine issue of material fact that 

Schweizer’s complaint against Canon was “based upon,” oris “substantially 

the same” as, the Océ litigation. Nor do allegations that Canon violated 

additional GSA contracts establish otherwise. See United States ex rel. 

Colquitt v. Abbott Lab’ys, 858 F.3d 365, 374 (5th Cir. 2017) (“[C]ontributing 

more of the same does not change the public character of a relator’s 

allegations: [Relator] ‘cannot avoid the [public disclosure] bar simply by 

adding other claims that are substantively identical to those previously 

disclosed.’” (quoting Fed. Recovery Servs., Inc. v. United States, 72 F.3d 447, 

451 (5th Cir. 1995))); see also Jamison, 649 F.3d at 329 (noting that public 

disclosures may be “sufficient” if they “‘set the government on the trail of 

the fraud’ and ensure that the government will not ‘need to comb through 

myriad transactions performed by various types of entities in search of 

potential fraud’” (quoting In re Nat. Gas Royalties, 562 F.3d 1032, 1042–43 

(10th Cir. 2009))).

12

Schweizer alternatively argues that because Canon allegedly 

“restarted” the fraudulent scheme, her second FCA suit “exposes a 

different wrongful scheme that does not implicate the Public Disclosure 

Bar.” For this point, Schweizer relies primarily on the Sixth Circuit’s 

12 We also reject Schweizer’s argument that the district court erred by applying the 

incorrect summary judgment standard under Jamison. The district court twice rejected 

this argument, which Schweizer fails to address in her briefing let alone identify any error 

on appeal. See Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 

1987) (failure to identify an error in the district court’s order “is the same as if [appellant] 

had not appealed that judgment”). Schweizer’s alternative argument that she was “denied 

discovery” is also belied by the record: she conceded before the district court that discovery 

was only necessary “to oppos[e] Canon’s motion as to the sufficiency of the pleadings,” 

but that “the public-disclosure-bar and government-action-bar issues are ripe for resolution 

at this time under Rule 56,” and her Rule 56(d) discovery motion was denied without 

prejudice to renewal. 

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decision in United States ex rel. Ibanez v. Bristol-Myers Squibb Co., 874 F.3d 

905 (6th Cir. 2017). 

In Ibanez, the relator-plaintiffs filed suit against two pharmaceutical 

companies asserting FCA claims arising from their off-label promotion, and 

related kickback scheme, of the antipsychotic drug Abilify. Ibanez, 874 F.3d 

at 911–12. Several years earlier, the pharmaceutical companies had settled 

“nearly identical allegations” and, as part of their settlements, entered into 

five-year Corporate Integrity Agreements requiring them to “ensure 

compliance with the FCA, the Anti-Kickback Statute, and cease off-label 

promotion of Abilify.” Id. at 912. The relators—both former sales 

representatives employed from 2005 to 2010—asserted that despite these 

agreements in 2007 and 2008, the defendants “continued to promote Abilify 

off-label and offer kickbacks to physicians who prescribed it.” Id. The 

district court dismissed the allegations under, inter alia, the public disclosure 

bar because the “relators’ alleged scheme ‘closely track[s]’ the preagreement promotion scheme.” Id. at 919 (alteration in original). 

The Sixth Circuit reversed, noting that “it was error for the court to 

hold that this resemblance alone called for dismissal under the public 

disclosure bar.” Id. The court emphasized that “allegations that the scheme 

either continued despite the agreements or was restarted after the 

agreements are different.” Id. Thus, the court concluded, “to the extent 

that relators are able to describe with particularity post-agreement, improper 

promotion of Abilify, the mere resemblance of those allegations to a scheme 

resolved years earlier is not by itself enough to trigger the public disclosure 

bar.” Id. However, the court cautioned that its reasoning was applicable

“only to the extent that the new allegations are temporally distant from the 

previously resolved conduct.” Id. at 919 n.4. 

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As both the magistrate judge and district judge concluded, Ibanez is 

readily distinguishable. To start, Schweizer’s claims are not “temporally 

distant”: the government settled with Océ in 2009 for claims spanning 2001 

through 2008, and Schweizer’s claims against Canon begin the following year 

in 2010. Moreover, Schweizer fails to describe with “particularity” any postsettlement fraud other than Canon’s novation of Océ’s prior contracts or 

generalized allegations that Canon violated the same terms of similar, and in 

at least one case, identical, contracts. See id. at 919. As the district court 

emphasized, Schweizer “failed to bring forward summary judgment 

evidence detailing Canon’s alleged fraudulent scheme and its scope to even 

permit the [c]ourt to draw an inference of a new or continued fraud.”13 

* * *

For the foregoing reasons, the district court’s summary judgment 

order is AFFIRMED.

14

13 Notably, too, the Ibanez relators were still employed at the defendant 

pharmaceutical companies from 2005–2010, which spanned the companies’ 2007 and 

2008 entry into compliance agreements as well as the alleged continued violations of the 

off-label promotions scheme between 2005 and 2015. Ibanez, 874 F.3d at 911–12. By 

contrast, Schweizer was only employed at Océ until 2005, well before the government 

settled the FCA claims against Océ. 

14 Because we affirm the dismissal of Schweizer’s claims under the public 

disclosure bar, we need not reach the parties’ alternative arguments regarding the 

government action bar or adequacy of the pleadings. 

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