# United States Court of Appeals

f or 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 Canon 1 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 Case: 20-20071 Document: 00515976898 Page: 1 Date Filed: 08/12/2021No. 20

- 20071

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 w hich 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,” i

d. § 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 e xposure of fraud.”
U nited States ex rel. Jamison v. McKesson Corp. , 649 F.3d 322, 332 (5th Cir. 2011) (quoting U

nited 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. U nited 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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3 lawsuits”)

. At issue in this appeal is whether S chweizer’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 non

compliance pro blems, 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

- gov ernment 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 $1,200,00 0 in exchange for release of the asserted FCA claims from April 1, 2001, to December 31, 2008. 5 In 2013, t he district court approved the

4 S ee U nited 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. Th e agreement also awarded 19% of the settlement amount , or $228,000, to be split between Schweizer and her co

- plaintif

f as the qui tam relators. Case: 20-20071 Document: 00515976898 Page: 3 Date Filed: 08/12/2021No. 20

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4 settlement and dismissed the qui tam claims agai nst 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 . Schweize r alleges that Canon , after it acquired Océ , continued the fraud by (1) violating its contrac t s’ Price Reduction Clauses, and (2) providing non

- T AA 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

S pecifically , 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 c ontinued 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 U nited States ex rel. Schweizer v. Oc é 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 U nited States ex rel. Schweizer v. Océ N.V. , 677 F.3d 1228, 1237, 1241 (D.C. Cir. 2012), r ev’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)

. Case: 20-20071 Document: 00515976898 Page: 4 Date Filed: 08/12/2021No. 20

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5 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. ”

T he 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, t he 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 C anon. 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 w ere publicly disclosed and Case: 20-20071 Document: 00515976898 Page: 5 Date Filed: 08/12/2021No. 20

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6 therefore bar red 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 Schwei zer’s subsequent Rule 59(e) motion for reconsideration. This appeal timely followed.

I I

. Standard of Review

We review m otion s for summary judgment de novo. U nited 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).

II I. Discussion The primary issue on appeal is whether Schwe izer’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 subst antially 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, Case: 20-20071 Document: 00515976898 Page: 6 Date Filed: 08/12/2021No. 20

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7 u nless 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 subs ection (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 tran sactions, 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, 20 10. 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 subseq uent 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). T he 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. , U nited 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 t he 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 U nite d 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 a mended, 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)) )

. Mo reover, o ur conclusion is the same under either version. Case: 20-20071 Document: 00515976898 Page: 7 Date Filed: 08/12/2021No. 20

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8 Not so. B oth of the government’s filings below expressly stated that it opposed only the government action bar and th at it took no pos ition 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, for ecloses dismissal under the public disclosure bar.

As to whether Schweizer’s claims are barred under the FCA’s public

disclosure provision, this court traditionally applies “a three

- part test, asking ‘1) whether there has been a “ public disclosure ” of al legations 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.” U nited States ex rel. Fried v. W. Indep. Sch. Dist. , 527 F.3d 439, 4 42 (5th Cir. 2008) (quoting U nited States ex 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. Case: 20-20071 Document: 00515976898 Page: 8 Date Filed: 08/12/2021No. 20

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9 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 s ynthesizing 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 allegati ons or transactions, this court applies a two

- part burden

shifting 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. Secon d, “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, 3 24 (1986)). 10

B efore 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 judge s 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 Schwei zer 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. Case: 20-20071 Document: 00515976898 Page: 9 Date Filed: 08/12/2021No. 20

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10 litigat ion. 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, he r complaint against Canon draws largely, if not exclusively, from her complaint against Océ. At oral argument, Schweizer ’s counsel conceded that her FCA claims again st 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 h er 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 Schwei zer only broadly alleges that Canon, like Océ , failed to comply with its government contracts. Case: 20-20071 Document: 00515976898 Page: 10 Date Filed: 08/12/2021No. 20

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11 But n one of this creates a genuine issue of material fact that Schweizer’s complaint against Canon was “based upon , ” or is “substantially the same” as , the Océ litigation. Nor do a llegations 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 Serv s., 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 Na t. Gas Royalties , 562 F.3d 1032, 1042

– 43 (10th Cir. 2009)) )

. 12

Schw eizer 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, w hich 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 o rder “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] Cano n’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. Case: 20-20071 Document: 00515976898 Page: 11 Date Filed: 08/12/2021No. 20

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12 decision in U

nited States ex rel. Ibanez v. Bristol

- Myers Squibb Co. , 874 F.3d 905 (6th Cir. 2017).

In Ibanez , the relator

- plaintiffs filed suit a gainst 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 sett lements, 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 fr om 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 pre

agreement 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 agreeme nts 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 sc heme 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. Case: 20-20071 Document: 00515976898 Page: 12 Date Filed: 08/12/2021No. 20

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13 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 post

settlement fraud other than Canon’s novation of Océ’s prior contr acts or generalized allegations that Canon violated the same terms of similar , and in at least one case , identical, contracts. See i d

. 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 promot ions 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 p ublic disclosure bar, we need not reach the parties’ alternative arguments regarding the government action bar or adequacy of the pleadings. Case: 20-20071 Document: 00515976898 Page: 13 Date Filed: 08/12/2021