United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 16, 2011 Decided May 15, 2012

No. 11-7039

UNITED STATES OF AMERICA, EX REL. MICHAEL L. DAVIS,

APPELLANT

v.

DISTRICT OF COLUMBIA,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:06-cv-00629)

Frederick A. Douglas argued the cause for appellant. 

With him on the briefs were Curtis A. Boykin and Alex M. 

Chintella. 

Stacy L. Anderson, Assistant Attorney General, Office of 

the Attorney General for the District of Columbia, argued the 

cause for appellee. With her on the brief were Irvin B. 

Nathan, Attorney General, Todd S. Kim, Solicitor General, 

and Donna M. Murasky, Deputy Solicitor General.

Before: BROWN, GRIFFITH, and KAVANAUGH, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.
2

GRIFFITH, Circuit Judge: Michael L. Davis brought this 

qui tam1 suit alleging the District of Columbia and its schools 

violated the False Claims Act by submitting a Medicaid 

reimbursement claim without maintaining adequate 

supporting documentation. The district court dismissed the 

case, relying on a precedent of this Court. Because we 

conclude that the Supreme Court has implicitly overruled that 

precedent, we reverse.

I

It is common knowledge that Medicaid is a joint federal 

and state program that funds health care services for certain 

groups. Less well known is the process by which Medicaid 

funds are disbursed through local government agencies to care 

for those in need and the safeguards in place to make sure that 

the proper amounts of funds are provided for services 

properly rendered. This case involves allegations of 

misconduct that undermine some of those safeguards brought 

by one involved in that process.

The Medical Assistance Administration (MAA), a 

District agency, administered the District’s Medicaid Plan at 

the time relevant to this suit. The District of Columbia Public 

Schools (DCPS) is eligible for Medicaid reimbursement for 

the medical and transportation services it provides to special 

education students. MAA reimburses DCPS for the estimated 

costs of these services throughout the year with federal funds 

from the Centers for Medicare and Medicaid Services. At the 

end of the year DCPS submits a reimbursement claim to 

 1 Qui tam is short for the Latin phrase “qui tam pro domino 

rege quam pro se ipso in hac parte sequitur,” which means “who 

pursues this action on our Lord the King’s behalf as well as his 

own.” Rockwell Int’l Corp. v. United States, 549 U.S. 457, 463 n.2 

(2007). 
3

MAA that sets forth the actual costs of these services. Under 

the District’s Medicaid Plan, MAA must review those claims

at least once every two years and determine whether DCPS is 

owed additional funds or whether the schools must return any 

overpayment. This annual filing of a reimbursement claim is 

similar to how a tax return reconciles an individual’s 

withholdings throughout the year with proof of the actual tax 

owed at year end. Federal regulations require DCPS to 

maintain financial data based on audit-quality documentation 

that allows “proper determination of costs payable.” 42 C.F.R. 

§ 413.20(a); see also id. § 413.24(a). To ensure that the 

claimed services were actually provided, auditors check for 

financial documentation and review student files for servicespecific medical records or progress notes signed by the

actual service provider. Claims lacking “the required servicespecific documentation . . . [may] not be part of any cost 

settlement.” Def.’s Mot. to Dismiss Ex. D, at 3. 

II

Because we are reviewing the grant of a motion to 

dismiss, we accept Davis’s version of the facts and draw all 

inferences in his favor. Atherton v. D.C. Office of the Mayor, 

567 F.3d 672, 677 (D.C. Cir. 2009). Davis’s firm, Davis & 

Associates (D&A), prepared the Medicaid reimbursement 

claims made by DCPS for fiscal years 1995, 1996, and 1997. 

While D&A was preparing the claim for fiscal year 1998, 

DCPS replaced the firm with Maximus, Inc. D&A completed 

work on the claim anyway, but DCPS never submitted it to 

MAA, filing instead a claim prepared by Maximus. According 

to Davis, only he had the required documentation supporting 

the claim, and he never gave it back to DCPS. Upon learning 

that DCPS had submitted the claim prepared by Maximus, 

Davis told District officials that the claim lacked supporting 

documentation and did not represent the full amount owed to 
4

DCPS. Despite Davis’s warnings, DCPS made no adjustments 

to its claim at that time. 

In May 2000, MAA paid DCPS $10.3 million as a 

tentative settlement for fiscal year 1998. MAA also hired an

auditor to review DCPS’s claims for fiscal years 1996-1998. 

The auditor determined that portions of DCPS’s claims should

be disallowed because they were not adequately documented, 

and MAA eventually returned to the federal government $7.6 

million that had been overpaid to DCPS for 1998. On August 

7, 2002, the Office of the District of Columbia Auditor 

released to the public a report disclosing that for fiscal years 

1996-1998, “$15 million of costs incurred for services 

rendered to special education students [by DCPS] were 

disallowed for Medicaid reimbursement due to the absence or 

unavailability of supporting documentation,” and that 

“documentation of services” had to be “immediately 

improved.” Def.’s Mot. to Dismiss Ex. E, at ii.

On April 4, 2006, Davis filed this action alleging that the 

District and DCPS had violated the False Claims Act, 

31 U.S.C. §§ 3729-3733, by submitting the 1998 

reimbursement claim without maintaining adequate 

supporting documentation. The Act prohibits false or 

fraudulent claims for payment from the United States, 

id. § 3729(a), and authorizes private individuals to bring suit 

in the government’s name to remedy such fraud, id.

§ 3730(b)(1). These whistleblower plaintiffs (known as 

“relators”) are permitted to share in the government’s 

recovery. Id. § 3730(d). The Act authorizes a statutory penalty 

for each violation, plus treble damages for any actual damages 

suffered by the government. See id. § 3729(a). Davis’s 

amended complaint alleges that the submission of the 1998 

reimbursement claim without supporting documentation 

violates the Act’s prohibitions on knowingly presenting a 

false claim, id. § 3729(a)(1), using a false statement to get a 
5

false claim paid, id. § 3729(a)(2), and conspiring to get a false 

claim paid, id. § 3729(a)(3). Davis asserts that submitting a 

claim for Medicaid reimbursement that lacks the supporting 

documentation called for by regulation defrauds the United 

States because the government would not have knowingly 

paid such a claim. Davis does not allege, however, that any 

claimed services were not provided or that any costs were 

exaggerated. 

The 1986 version of the Act, which applies to this case, 

bars suits “based upon the public disclosure of allegations or 

transactions . . . unless the action is brought by the Attorney 

General or the person bringing the action is an original source 

of the information.” 31 U.S.C. § 3730(e)(4)(A) (2006) 

(amended 2010). An original source is “an individual who has 

direct and independent 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.” Id.

§ 3730(e)(4)(B). In short, if a qui tam suit is “based upon” a 

“public disclosure,” the suit is barred unless the relator is an 

“original source.”

On December 23, 2008, the district court granted in part 

the defendants’ motion to dismiss Davis’s qui tam action.

United States ex rel. Davis v. District of Columbia (Davis I), 

591 F. Supp. 2d 30 (D.D.C. 2008). The court dismissed DCPS 

as a defendant because D.C. law provides that it cannot be 

sued directly. Id. at 40. The court also dismissed Davis’s 

treble damages and conspiracy claims because he had not 

alleged actual damage to the government. Id. at 39-40. The 

court rejected, however, the District’s challenge to its subject 

matter jurisdiction, holding that even though the Auditor’s 

report had publicly disclosed the alleged fraud, Davis was an 

original source. Id. at 36-37. The parties proceeded with 
6

discovery and Davis filed an amended complaint. Davis then 

moved for summary judgment and the District moved again to 

dismiss for lack of subject matter jurisdiction.

This time, the district court agreed and concluded Davis 

was not an original source under our decision in United States 

ex rel. Findley v. FPC-Boron Employees’ Club, 105 F.3d 675 

(D.C. Cir. 1997). United States ex rel. Davis v. District of 

Columbia (Davis II), 773 F. Supp. 2d 21, 32 (D.D.C. 2011).

In Findley, we held that a relator must provide his information 

to the government not only prior to filing suit but “prior to 

any public disclosure.” 105 F.3d at 690. Because there was no 

evidence that Davis notified the federal government of the 

alleged fraud before the 2002 Auditor’s report, the court 

concluded it was without jurisdiction to hear his claim. Davis 

II, 773 F. Supp. 2d at 33-34. 

Davis timely appealed both the district court’s conclusion 

that it lacked subject matter jurisdiction and its dismissal of 

his claims for treble damages and conspiracy. We take 

jurisdiction under 28 U.S.C. § 1291. 

III

A

Davis first argues that his suit is not “based upon” the 

August 2002 Auditor’s report. We have explained that a suit 

is “based upon” publicly disclosed “allegations or 

transactions” when the allegations in the complaint are 

“substantially similar” to those in the public domain. Findley, 

105 F.3d at 682. This rule prevents suits by those other than 

an “original source” when the government already has enough 

information “to investigate the case and to make a decision 

whether to prosecute” or where the information “could at least 
7

have alerted law-enforcement authorities to the likelihood of 

wrongdoing.” U.S. ex rel. Springfield Terminal Ry. v. Quinn, 

14 F.3d 645, 654 (D.C. Cir. 1994) (quoting United States ex 

rel. Joseph v. Cannon, 642 F.2d 1373, 1377 (D.C. Cir. 1981)).

The 2002 Auditor’s report disclosed that, for fiscal years 

1996-1998, DCPS was not reimbursed for $15 million worth 

of services provided to special education students but not 

adequately documented. Def.’s Mot. to Dismiss Ex. E, at ii.

The report revealed to the public the “allegation” that DCPS 

did not have adequate supporting documentation for its 1998 

Medicaid reimbursement claim and provided ample reason for 

the government to investigate further. See Springfield 

Terminal, 14 F.3d at 654. Davis contends that his allegation is

more specific than what was in the Auditor’s report, and that 

is true. He points out the 1998 claim lacked any 

documentation while the Auditor’s report found some for 

three years, just not enough. But providing “more specific 

details about what happened” does not change the fact that 

Davis’s allegation is substantially similar to and therefore 

“based upon” the publicly disclosed allegations in the 

Auditor’s report. United States ex rel. Settlemire v. District of 

Columbia, 198 F.3d 913, 919 (D.C. Cir. 1999).

Davis’s claim can proceed only if he is an “original 

source.” 

B

The District argues that Davis is not an original source 

because he did not prove he voluntarily provided his 

information to the government before filing suit, let alone that 
8

he did so before Findley’s public-disclosure deadline.2 The 

district court found that he had provided his information to the 

government before filing suit, relying on two letters Davis

received from federal officials which acknowledged that he 

had written them alleging “Medicaid fraud” and “diversion of 

Medicare funds.” Davis II, 773 F. Supp. 2d at 32. At oral 

argument, we questioned whether these letters, vague as they 

are, were sufficient. After argument, Davis provided us with 

other letters he sent to the government and an affidavit 

asserting their authenticity.3 Most relevant, in a letter dated

August 19, 2004, he informed the Inspector General of the 

U.S. Department of Health & Human Services that the 

District and DCPS “do not have in their possession 

documentation to support a drawdown of federal medicaid 

funds for [1996-1998].” Appellant’s Mot. to Suppl. R., 

Attach. at 1. This letter removed any concern we had about 

whether Davis had “provided the information to the 

Government” before filing suit.

Relying upon our decision in Findley, the district court 

dismissed Davis’s suit because he failed to provide his 

information to the government prior to the publication of the 

Auditor’s report. Davis II, 773 F. Supp. 2d at 33-34. Davis 

argues that the Supreme Court eliminated this requirement in 

 2 The District concedes on appeal that Davis had direct and 

independent knowledge that the 1998 claim for Medicaid 

reimbursement lacked documentation. Appellee’s Br. 34.

3 Although we normally do not consider evidence presented 

for the first time on appeal, we have discretion to make “limited 

exceptions to this rule when ‘injustice might otherwise result.’” In 

re AOV Indus., Inc., 797 F.2d 1004, 1012 (D.C. Cir. 1986) (quoting 

Singleton v. Wulff, 428 U.S. 106, 121 (1976)). Because these new 

documents go “to the heart of the contested issue, it would be 

inconsistent with this court’s own equitable obligations . . . to 

pretend that they do not exist.” Id. at 1013.
9

Rockwell International Corp. v. United States, 549 U.S. 457 

(2007). The district court acknowledged that Rockwell raised 

doubts about Findley but concluded that it would not “lightly 

infer an abrogation of settled precedent.” Davis II, 773 F. 

Supp. 2d at 33. Although we have previously expressed doubt 

about whether this part of Findley survived Rockwell, see 

United States ex rel. Davis v. District of Columbia, 413 F. 

App’x 308, 310 (D.C. Cir. 2011) (noting this concern but 

dismissing a related suit by Davis on different grounds), we 

have not yet had occasion to address the issue squarely. 

Today we do, and we agree with Davis. 

Findley established this requirement based on its reading 

of the statute and a resulting policy concern. First, interpreting 

§ 3730(e)(4)’s text, the court concluded that “the allegations” 

referred to in subparagraph (B) were the publicly disclosed 

“allegations or transactions” in subparagraph (A), “since those 

are the only allegations mentioned at all in section 

3730(e)(4).” Findley, 105 F.3d at 690. From this, the court

determined that the word “information” in both subparagraphs 

referred to the information “on which the [publicly disclosed] 

allegations are based.” Id. (alteration in original). Under this 

reading, the information an original source must provide to 

the government is the information underlying the publicly 

disclosed allegations. 

Findley then turned to the question at issue here: when

must the relator provide this information to the government?

Although the text seems to impose a clear deadline of “before 

filing an action,” Findley held that “the only reading of the 

statute that accounts for the requirement that an ‘original 

source’ voluntarily provide information to the government 

before filing suit, and Congress’ decision to use the term 

‘original source’ . . . is one that requires an original source to 

provide the information to the government prior to any public 
10

disclosure.” Id. at 691. The court offered two primary reasons 

for this reading. First, it would be odd to call someone an 

“original source” of information if the government had

already obtained the relevant information from the public. See 

id. Second, and more centrally, Findley surmised that “[o]nce 

the information has been publicly disclosed . . . there is little 

need for the incentive provided by a qui tam action.” Id. A

relator adds little value, so the thinking goes, by repeating 

what is already publicly available and known to the 

government. 

In Rockwell, the Supreme Court rejected Findley’s 

reading of what information a relator must provide the 

government, concluding that the word “information” in 

§ 3730(e)(4) refers to “the information on which the relator’s 

allegations are based[, not] the information on which the 

publicly disclosed allegations that triggered the publicdisclosure bar are based.” 549 U.S. at 470. With the wrong 

“information” in mind, Findley’s argument that the 

information must be provided to the government not only 

before suit is filed but before a public disclosure is made 

simply unravels. Findley’s concern about why Congress used

the term “original source” is answered: The relator can be an 

“original source” to the government of his information even if 

the publicly disclosed information came from someone else.

And Findley’s judgment that “[o]nce the information has 

been publicly disclosed . . . there is little need for the 

incentive provided by a qui tam action,” 105 F.3d at 691, no 

longer follows because Rockwell changed the premise. We 

now understand that the “information” provided is the 

relator’s. Importantly, the relator’s information can be 

different and more valuable to the government than the 

information underlying the public disclosure, which might be 

nothing more than speculation or rumors. See Rockwell, 549 
11

U.S. at 472. The relator may have an eyewitness account or 

important documents supporting the public allegation, but not 

available from any other source, which could aid the 

government. Findley’s reading of the statute assumed the 

relator could provide nothing new after a public disclosure. 

Rockwell rejected that view. Given this, it is apparent that 

Findley’s categorical rule bars productive suits. See United 

States ex rel. Duxbury v. Ortho Biotech Prods., L.P., 579 F.3d 

13, 24-25 (1st Cir. 2009) (concluding that Rockwell

“substantially undercuts” Findley and shows that Findley “has 

the potential to bar productive suits”). Findley’s requirement 

no longer has any textual basis, and the policy judgment upon 

which it relied contradicts Rockwell’s rationale.

Applying the 1986 version of the Act, we will no longer 

require that a relator provide information to the government 

prior to any public disclosure of allegations substantially 

similar to the relator’s and will instead enforce only the text’s 

deadline of “before filing an action.”4

 4 Although Rockwell corrected Findley’s tendency to bar some 

productive suits, the 1986 Act’s approach is itself imperfect 

because it allows suits in which the relator’s information does in 

fact mirror the publicly disclosed information, the situation Findley

assumed would always apply. Congress has since addressed this 

problem by amending the statute to provide incentives to only those 

relators whose information adds value. The Act now defines an 

“original source” as

Because Davis satisfies

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

voluntarily disclosed to the Government the information on 

which allegations or transactions in a claim are based, or (2) 

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. 
12

the requirements of § 3730(e)(4)(B), we conclude that he is an 

original source and that the district court has jurisdiction over 

his claims.

IV

Davis also argues that the district court wrongly 

dismissed his claims for treble damages and conspiracy on the 

ground that he failed to allege actual damage to the United 

States. He argues that the entire amount the federal 

government paid to DCPS in 1998 constitutes damages 

because the government would not have paid DCPS anything 

had it known there was no documentation for its 

reimbursement claim. We conclude, however, that the district 

court was right to find that the government suffered no 

damages.

The False Claims Act imposes two types of liability: 

First, a defendant who submits a false claim . . . is liable 

for civil penalties regardless of whether the government 

shows that the submission of that claim caused the 

government damages. Second, the defendant is liable for 

“3 times the amount of damages which the Government 

sustains because of the act of [the defendant].”

United States v. Sci. Applications Int’l Corp., 626 F.3d 1257, 

1277-78 (D.C. Cir. 2010) (quoting 31 U.S.C. § 3729(a))

 

31 U.S.C. § 3730(e)(4)(B) (Supp. 2010). Thus, as the district court 

explained, the Act now “allows a relator to proceed if he either

meets the Findley pre-public disclosure notification requirement, or

if he possesses knowledge independent of the public disclosure that 

materially adds to the public disclosure, and he provides the 

information to the Government prior to filing suit.” Davis II, 773 F. 

Supp. 2d at 33 n.9. 
13

(citation omitted). Our decision in Science Applications sets 

forth the proper framework for determining damages in qui 

tam actions. There, a contractor who had agreed to provide a 

federal agency with expert advice certified it had no conflicts 

of interest. The contractor provided the advice but failed to 

disclose several conflicts. Id. at 1261-62. Like Davis does 

here, the government sought damages equal to the full amount 

it had paid the contractor and relied on evidence showing it

would not have paid the contractor anything had it known of 

the conflicts. But we explained that this evidence only proved 

causation, not damages, because False Claims Act damages 

are meant to “put[] the government in the same position as it 

would have been if the defendant’s claims had not been 

false.” Id. at 1278. Thus, “[t]o establish damages, the 

government must show not only that the defendant’s false 

claims caused the government to make payments that it would 

have otherwise withheld, but also that the performance the 

government received was worth less than what it believed it 

had purchased.” Id. at 1279. Although the government was 

not entitled to recover all of its payments, we concluded that a 

jury could find that the value of the contractor’s performance 

“was compromised by the appearance of bias created by the 

company’s failure to live up to its contractual conflict of 

interest obligations.” Id. at 1278. We therefore instructed that 

the proper measure of damages was the difference in value 

between “services tainted by potential conflict” and the 

untainted services promised. Id. at 1280. 

Under the Medicaid program, the federal government 

pays for specified services to be provided to eligible 

recipients. In this case, Davis does not allege that any services 

paid for were not provided. The sole defect Davis claims is 

the failure to maintain documentation for those services. 

Unlike the contractor’s undisclosed conflicts in Science 

Applications, the defect in this case in no way calls into 
14

question the value of the medical care provided by DCPS. 

The purpose of maintaining documentation is to ensure that 

the government pays only for services actually rendered. 

Because all agree that the services paid for were provided, the 

maintenance of documents to prove that they were has no 

independent monetary value. This is the rare case in which 

there is no allegation that what the “government received was 

worth less than what it believed it had purchased.” Id. at 

1279; cf. United States ex rel. Schwedt v. Planning Research 

Corp., 59 F.3d 196, 200 (D.C. Cir. 1995) (finding actual 

damage because, unlike here, the defendant’s false claims had 

caused the government to pay for “useless goods”). A server’s 

failure to bring a receipt after dinner causes no harm when 

you know you’ve been properly charged. The same is true 

here: The government got what it paid for and there are no 

damages. Cf. Ab-Tech Constr., Inc. v. United States, 31 Fed. 

Cl. 429, 434 (1994); United States v. Woodbury, 359 F.2d 

370, 379 (9th Cir. 1966). If Davis proves his claims he may 

still be eligible to share in the statutory penalties assessed 

against the District.

Finally, the District invokes the Act’s six-year statute of 

limitations to bar some of Davis’s claims. See 31 U.S.C. 

§ 3731(b)(1). Because the district court had no occasion to 

address this question, we leave it the opportunity to do so in 

the first instance on remand. 

V

For the foregoing reasons, the district court’s order 

dismissing the case for lack of jurisdiction is vacated and the 

case is remanded for further proceedings consistent with this 

opinion.

So ordered.