United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 24, 2016 Decided July 25, 2017

No. 15-7135

UNITED STATES OF AMERICA, EX REL. STEPHEN SHEA,

AND

STEPHEN M. SHEA,

APPELLANT

v.

CELLCO PARTNERSHIP, DOING BUSINESS AS VERIZON 

WIRELESS, ET AL.,

APPELLEES

Consolidated with 15-7136

Appeals from the United States District Court

for the District of Columbia

(No. 1:09-cv-01050)

Christopher B. Mead argued the cause for appellant/crossappellee. With him on the briefs were Mark London and Stuart 

A. Berman.

Seth P. Waxman argued the cause for defendantsappellees/cross-appellants. With him on the briefs were 

Jonathan G. Cedarbaum and Daniel Winik.
2

John P. Elwood, Craig D. Margolis, Jeremy C. Marwell, 

Kathryn Comerford Todd, and Steven P. Lehotsky were on the 

brief for amicus curiae The Chamber of Commerce of the 

United States of America in support of defendantsappellee/cross-appellants.

Before: SRINIVASAN and MILLETT, Circuit Judges, and 

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge SRINIVASAN.

SRINIVASAN, Circuit Judge: The False Claims Act 

penalizes the knowing submission of a false or fraudulent claim 

for payment to the federal government. 31 U.S.C. 

§ 3729(a)(1). Rather than rely solely on federal agencies to 

police fraudulent claims, Congress authorized private persons 

to bring what are known as qui tam actions. In a qui tam suit, 

a private party, called the relator, challenges fraudulent claims 

against the government on the government’s behalf, ultimately 

sharing in any recovery.

In this qui tam case, the relator is appellant Stephen M. 

Shea. He alleges that Verizon Communications, Inc. violated 

the False Claims Act by overbilling the government in its 

telecommunications contracts. Shea filed two qui tam suits 

against the company. The first ended in a settlement under 

which Shea received a $20 million payout. While that suit was

pending, Shea brought a second qui tam action against Verizon, 

alleging that the company’s fraud extended to twenty 

additional federal contracts.

The district court held that Shea’s second suit violated the 

False Claims Act’s “first-to-file” bar, 31 U.S.C. § 3730(b)(5), 

which prohibits a relator from bringing any action related to a

pending qui tam suit. The district court thus dismissed Shea’s 
3

second action. But because Shea’s first action had ended by 

that time, such that the first-to-file bar would no longer prohibit 

the filing of a new suit, the district court dismissed Shea’s 

second action without prejudice to his refiling it.

Shea now appeals the dismissal of his action, contending 

that the district court should have allowed him to amend the 

complaint rather than require him to initiate a new suit. 

Verizon cross-appeals, arguing that the district court should 

have dismissed Shea’s action with prejudice, such that he could 

not refile it. In support of its argument for a dismissal with 

prejudice, Verizon relies on the False Claims Act’s “public 

disclosure” bar, id. § 3730(e)(4), and on the pleading 

requirements established by Federal Rules of Civil Procedure 

8 and 9(b).

We reject both Shea’s arguments in his appeal and 

Verizon’s arguments in its cross-appeal. We therefore affirm 

the district court in all respects.

I.

A.

When bringing a qui tam action under the False Claims 

Act, a relator need not allege a personal injury. See Vt. Agency 

of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 772-

73 (2000). Instead, she can bring suit “to remedy an injury in 

fact suffered by the United States.” Id. at 771, 774. To 

encourage relators to bring suits on the government’s behalf, 

Congress gave them a stake in the controversy: they can share 

up to 30 percent of any proceeds ultimately recovered. 31 

U.S.C. § 3730(d). The government also can elect to intervene 

in, and assume control of, any qui tam action, in which event 
4

the relator’s share of the recovery becomes capped at 25 

percent. Id. § 3730(b)(2), (d)(1).

Over time, Congress learned that the bounty available to 

qui tam relators created “the danger of parasitic exploitation of 

the public coffers.” United States ex rel. Springfield Terminal 

Ry. v. Quinn, 14 F.3d 645, 649 (D.C. Cir. 1994). To curtail 

abusive suits, Congress established “a number of restrictions” 

on qui tam actions. State Farm Fire and Cas. Co. v. United 

States ex rel. Rigsby, 137 S. Ct. 436, 440 (2016); see United 

States ex rel. Heath v. AT&T, Inc., 791 F.3d 112, 116 (D.C. Cir. 

2015). This case involvestwo of those restrictions: (i) the firstto-file bar and (ii) the public disclosure bar.

The first-to-file bar operates on the recognition that, 

because relators can bring suit without having suffered a 

personal injury, countless plaintiffs in theory could file a qui 

tam action based on the same fraud and then share in the 

proceeds. And if multiple relators could split the recovery for 

the same conduct, they would have less “incentive to bring a 

qui tam action in the first place.” United States ex rel. LaCorte 

v. SmithKline Beecham Clinical Labs., Inc., 149 F.3d 227, 234 

(3d Cir. 1998). The first-to-file bar addresses that problem. It 

provides that, “[w]hen a person brings an action under [the 

False Claims Act], no person other than the Government may 

intervene or bring a related action based on the facts underlying 

the pending action.” 31 U.S.C. § 3730(b)(5). The first-to-file 

bar thereby ensures only one relator will share in the 

government’s recovery and encourages prompt filing from 

relators desiring to be first to the courthouse. LaCorte, 149 

F.3d at 234. 

The public disclosure bar similarly seeks “the golden 

mean” between, on one hand, encouraging relators with 

valuable information to bring suit, and, on the other hand,
5

discouraging unduly “opportunistic plaintiffs.” See Graham 

Cty. Soil & Water Conservation Dist. v. United States ex rel. 

Wilson, 559 U.S. 280, 294 (2010) (quoting Springfield, 14 F.3d 

at 649). Originally, the False Claims Act allowed qui tam 

relators simply to copy information already in the public 

domain. Indeed, in one landmark case, the relator parroted the 

government’s own filings but still shared in the government’s 

reward. See United States ex rel. Marcus v. Hess, 317 U.S. 

537, 545-48 (1943). In response, Congress established what 

became the public disclosure bar. The bar prohibits private 

parties from bringing suit based on a fraud already disclosed 

through identified public channels (unless the relator is “an 

original source of the information”). 31 U.S.C. 

§ 3730(e)(4)(A).

B.

In 2007, Shea filed a qui tam action against Verizon 

alleging that the company had knowingly charged the General 

Services Administration (GSA) for non-billable taxes and 

surcharges. Shea first became suspicious of Verizon while 

working as a consultant for commercial telecommunications 

customers. He learned that Verizon regularly overbilled its 

commercial customers for taxes, fees, and surcharges. Shea 

suspected Verizon of employing the same scheme against the 

government. After investigating, he allegedly confirmed that 

Verizon had billed the GSA for taxes and surcharges prohibited 

by its contract. The United States intervened in Shea’s action. 

In February 2011, the parties settled the action without any 

admission of liability by Verizon. Shea received nearly $20 

million in the settlement. 

Before the parties settled Shea’s first action (Verizon I), 

Shea apparently deduced that Verizon had used the same 

fraudulent billing scheme in twenty additional federal 
6

contracts. Rather than amend his complaint, however, Shea 

brought a second qui tam action against Verizon (Verizon II). 

This time, the government chose not to intervene. 

In 2012, the district court dismissed Shea’s second qui tam 

suit with prejudice. The district court held that Verizon II was 

related to Verizon I, such that the False Claims Act’s first-tofile bar blocked the later action. Although Verizon I had ended 

in a settlement the previous year, the court thought the firstfiled suit permanently barred any related suit filed while the 

first action was pending. 

Shea appealed, and a divided panel of this Court affirmed. 

The majority and dissent agreed that Verizon II was related to 

Verizon I and that the first-to-file bar thus supported a dismissal 

of Verizon II. The disagreement between the majority and 

dissent concerned whether the district court properly dismissed 

Verizon II with prejudice, such that Shea could not refile the

action. The majority affirmed the district court’s dismissal 

with prejudice because it interpreted the first-to-file bar to 

apply “even if the initial action is no longer pending.” United 

States ex rel. Shea v. Cellco P’ship, 748 F.3d 338, 343 (D.C. 

Cir. 2014), vacated, 135 S. Ct. 2376 (2015). The dissent, 

reasoning that the first-to-file bar ceases to operate once the 

first-filed suit ends, believed that the dismissal of Verizon II

should have been without prejudice. Id. at 345-51 (Srinivasan, 

J., concurring in part and dissenting in part).

The Supreme Court granted Shea’s petition for certiorari 

and vacated this Court’s decision in light of a related case, 

Kellogg Brown & Root Servs., Inc. v. United States ex rel. 

Carter, 135 S. Ct. 1970 (2015). In Carter, the Supreme Court 

held that “a qui tam suit under the [False Claims Act] ceases to 

be ‘pending’ once it is dismissed.” Id. at 1979. As a result, 

once a first-filed suit reaches completion, the first-to-file bar no 
7

longer prohibits bringing a new action. Id. This Court

remanded Shea’s suit in Verizon II for further proceedings 

consistent with the Supreme Court’s decision in Carter. 

On remand, Verizon filed a renewed motion to dismiss. 

By that point, the six-year statute of limitations had arguably 

run on Shea’s allegations of fraud. He thus resisted any 

dismissal of his action, even one without prejudice to his 

refiling it. Instead, Shea contended he could cure the first-tofile defect by amending his existing complaint in Verizon II. 

Indeed, Shea had already amended his complaint after Verizon 

I had settled. Shea argued that Verizon I no longer barred him 

from pressing forward with Verizon II under his amended 

complaint.

The district court disagreed. It held that “merely amending 

the Complaint could [not] remedy [Shea’s] violation of the 

first-to-file bar.” United States ex rel. Shea v. Verizon 

Commc’ns, Inc., 160 F. Supp. 3d 16, 29-30 (D.D.C. 2015). 

Rather, the court determined that Shea would need to file a new 

qui tam action to proceed, and it thus dismissed his suit without 

prejudice to his doing so. At the same time, the court rejected 

Verizon’s motion to dismiss with prejudice under either the 

public disclosure bar or Rules 8 and 9(b). 

On appeal, Shea challenges the district court’s dismissal 

under the first-to-file bar. Verizon cross-appeals the court’s 

refusal to enter a dismissal with prejudice under the public 

disclosure bar or Rules 8 and 9(b). 

II.

We first address whether the district court erred in 

dismissing Shea’s suit under the first-to-file bar instead of 

allowing him to continue the action based on his amended 
8

complaint. The first-to-file bar specifies that, when a qui tam

action is “pending,” “no person other than the Government may 

intervene or bring a related action based on the [same] facts.” 

31 U.S.C. § 3730(b)(5). The district court held that Shea’s 

second qui tam action violated the first-to-file bar and that, to 

proceed, he must file a new action. We agree.

A.

Shea does not dispute that he brought his second action, 

Verizon II, while his first action, Verizon I, was pending. Nor 

does he dispute that his second suit is “related” to his first

within the meaning of the first-to-file bar. We previously held 

that the actions shared “the same material elements of fraud,” 

Shea, 748 F.3d at 341-42 (quoting United States ex rel. 

Hampton v. Columbia/HCA Healthcare Corp., 318 F.3d 214, 

217 (D.C. Cir. 2003)), and Shea does not argue otherwise.

Consequently, were Verizon I still pending, we would 

require the district court to dismiss the follow-on suit under the 

first-to-file bar. The “general rule” is that, “if an action is 

barred by the terms of a statute, it must be dismissed” rather 

than left on ice. Hallstrom v. Tillamook Cty., 493 U.S. 20, 31 

(1989). When a statute specifies that an “action shall not be 

instituted” and the plaintiff fails “to heed that clear statutory 

command,” a district court properly dismisses the suit. McNeil 

v. United States, 508 U.S. 106, 107, 113 (1993). The first-tofile bar, in specifying that “no person . . . may . . . bring a related 

action” while a first-filed suit is “pending,” 31 U.S.C. 

§ 3730(b)(5), manifests just such a statutory command. 

The Supreme Court recently confirmed as much in Rigsby, 

137 S. Ct. at 442-43. There, the Court considered a separate 

provision of the False Claims Act, 31 U.S.C. § 3730(b)(2), 

which requires a relator to file a qui tam action under seal. Id. 
9

at 439-40. The Court held that a violation of the seal 

requirement did not mandate dismissal. But in doing so, the 

Court contrasted the seal requirement with a “number of 

provisions [in the Act] that do require, in express terms, the 

dismissal of a relator’s action.” Id. at 442-43. It specifically 

cited section 3730(b)(5)—the first-to-file bar—as an example 

of a provision explicitly requiring dismissal. Id. In the 

ordinary course, then, the existence of a pending qui tam action 

should occasion the dismissal of a related action.

The only question in this case is whether the statutory 

requirement to dismiss the second action falls away in 

circumstances in which the action has yet to be dismissed by 

the time the first-filed suit reaches completion. At that point, 

we know from Carter, 135 S. Ct. at 1979, that the first-to-file 

bar would no longer block initiation of a related action. 

Consequently, although the first-to-file bar prohibited Shea 

from bringing Verizon II at the time he filed it, the bar no longer 

poses any obstacle to his refiling the action. Shea, however, 

would take Carter one step further. In his view, once his firstfiled suit ended in settlement, the district court should have 

allowed him to cure the first-to-file violation by amending his 

existing complaint in Verizon II rather than dismissed the

action with leave to refile it.

It is true that a plaintiff can often cure a pleading defect by 

amending the complaint. See Mathews v. Diaz, 426 U.S. 67, 

75 n.9 (1976) (citing 28 U.S.C. § 1653). A supplemental or 

amended complaint, however, could not remedy Shea’s 

violation of the first-to-file bar. Shea infringed the first-to-file 

bar by bringing a related action while his first-filed case 

remained pending. Although Shea’s first-filed suit is no longer 

pending, a supplemental complaint cannot change when Shea 

brought his second action for purposes of the statutory bar.
10

This Court, in another context, has drawn a similar

distinction between the complaint and the underlying action.

We explained that the dismissal of a complaint without 

prejudice is non-final (and thus non-appealable) because the 

plaintiff can amend his pleadings and continue the litigation. 

Ciralsky v. CIA, 355 F.3d 661, 666 (D.C. Cir. 2004). Yet the 

“dismissal without prejudice of an action (or ‘case’),” we held, 

“is a different matter,” as it has “ended [the] suit as far as the 

District Court was concerned.” Id. (emphasis in original) 

(quoting United States v. Wallace & Tiernan Co., 336 U.S. 793, 

794 n.1 (1949)). 

In light of that distinction, the filing of an amended 

complaint, while serving to modify the complaint, does not 

operate to end the action and begin a new one. It thus cannot 

alter when Shea brought his action—i.e., at a time when a 

related suit was pending. For purposes of the first-to-file bar, 

in short, Shea’s action was incurably flawed from the moment 

he filed it. 

An alternative understanding, as the Seventh Circuit has 

reasoned, would treat the text of the first-to-file bar “as if it read 

something like: While another action under this section is 

pending, no person . . . may continue to prosecute a related 

action.” United States ex rel. Chovanec v. Apria Healthcare 

Grp. Inc., 606 F.3d 361, 362 (7th Cir. 2010) (internal quotation 

mark omitted). The statute, however, expressly forbids any 

person from “bring[ing]” (as opposed to “continuing”) an 

“action” while the first suit is pending. Id. Shea did exactly 

that, and the appropriate remedy under the False Claims Act
11

for such a violation is a dismissal (albeit one without prejudice

to his filing a new action). See Rigsby, 137 S. Ct. at 442-43.

B.

Shea seeks to resist the terms of the first-to-file bar by 

arguing that dismissing his action with leave to refile it—as 

opposed to allowing him to amend his existing complaint—

would elevate form over substance. The First Circuit agrees, 

reasoning that dismissal in the circumstances of this case would 

be a “pointless formality.” See United States ex rel. Gadbois 

v. Pharmerica Corp., 809 F.3d 1, 6 (1st Cir. 2015). But see 

Chovanec, 606 F.3d at 362. Respectfully, we see things 

differently.

Shea’s preferred rule not only is difficult to square with the 

statutory terms, but it also would give rise to anomalous 

outcomes. Under Shea’s approach, if a relator brings suit while 

a related action is pending, her ability to proceed with her 

action upon the first-filed suit’s completion could depend on 

the pure happenstance of whether the district court reached her

case while the first-filed suit remained pending.

For instance, imagine a situation in which relators A, B, 

and C each file a qui tam action alleging the same fraud. 

Relator A reaches the courthouse first and his action therefore 

goes forward. Relator B reaches the courthouse second, but the 

district court determines his suit is blocked by the first-to-file 

bar and thus dismisses it per the ordinary course. See Rigsby, 

137 S. Ct. at 442-43. Relator C files last, and shortly thereafter, 

the first-filed action is dismissed. But suppose relator C filed 

her suit so late in the game that the district court fails to dismiss 

her action before dismissing the first-filed suit. Under Shea’s 

proposed rule, relator C would receive a windfall: she, unlike 

relator B, could simply amend her existing complaint and 
12

thereby secure herself pole position in the first-to-file queue. 

Relator C would jump past relator B for the opportunity to

proceed with her suit (and to share in the government’s 

reward). 

Congress presumably would not have intended a relator’s 

fate to depend on chance considerations such as the extent of a 

particular court’s backlog and the timeliness of a particular

court’s entry of a dismissal. For that reason, adhering to the 

normal remedy of a dismissal for a first-to-file violation, see 

id., would do more than advance a mere formality. It would 

level the playing field among relators consistent with the 

ordinary operation of the first-to-file bar as conceived by 

Congress.

Those circumstances differ from the ones considered by 

the Supreme Court in Mathews, 426 U.S. 67, on which Shea 

relies. There, the Court considered a statute requiring plaintiffs 

to commence civil actions within sixty days of receiving a final 

agency decision. Id. at 75 (citing 42 U.S.C. § 405(g)). 

Although the plaintiff initially filed his suit before seeking

relief with the agency, he filed an application with the relevant 

agency while his action was pending in the district court. Id. 

The Supreme Court declined to require dismissal of the suit, 

noting that the complaint could still be supplemented to allege 

satisfaction of that condition. Id. 

In Mathews, unlike here, there was no indication that 

dismissal would have served the “general purpose” of the 

statutory condition. See Rigsby, 137 S. Ct. at 443. Although 

the statute required the plaintiff to wait for a final agency 

decision, the Court concluded that the government had waived 

the exhaustion requirement by stipulating that the plaintiff’s 

application to the agency would be denied. Mathews, 426 U.S.

at 76-77. It therefore did not matter when the plaintiff filed that 
13

application. Here, by contrast, for the reasons explained, 

adhering to the standard remedy of dismissal promotes 

Congress’s contemplation of the ordinary operation of the firstto-file queue.

Similarly, Shea misses the mark in relying on Oscar 

Mayer & Co. v. Evans, 441 U.S. 750 (1979), and our decision 

in Brown v. Whole Foods Market Group, 789 F.3d 146 (D.C. 

Cir. 2015) (per curiam). Both decisions stayed pending actions 

to allow pro se litigants to satisfy conditions precedent to 

bringing suit. Evans, 441 U.S. at 764-65 & n.13; Brown, 789 

F.3d at 153-54. Those cases dealt with atypical “statutory 

scheme[s] in which laymen, unassisted by trained lawyers, 

initiate the process.” Evans, 441 U.S. at 765 n.13 (quoting 

Love v. Pullman Co., 404 U.S. 522, 527 (1972)); see Brown, 

789 F.3d at 153-54. In light of the unique circumstances, those

decisions departed from the “general rule” that, “if an action is 

barred by the terms of a statute, it must be dismissed.” 

Hallstrom, 493 U.S. at 31. By contrast, the Supreme Court has 

confirmed that the general rule of dismissal applies to 

violations of the first-to-file bar. See Rigsby, 137 S. Ct. at 442-

43.

Shea argues that dismissal of his action could deter followon relators with valuable information from bringing suit, as 

relators might discount the probability of a reward against the 

risk of a dismissal. See United States ex rel. Wood v. Allergan, 

Inc., No. 10-CV-5645, 2017 WL 1233991, at *14 (S.D.N.Y. 

Mar. 31, 2017). But district courts already must dismiss suits 

that infringe the first-to-file bar, at least as long as the first-filed 

suit remains pending. That is the very object of the bar. See 

Rigsby, 137 S. Ct. at 442-43. Accordingly, any would-be 

relator already faces the risk that “someone else ha[s] beaten 

her to the courthouse door.” See Wood, 2017 WL 123991, at 

*14. 
14

Moreover, relators ordinarily will be free to bring any 

follow-on action after the first-filed suit ends. First-filed cases 

do not last forever, and there might well be cases in which a

first-filed suit is dismissed for reasons completely independent 

of the merits. The second relator can bring suit at that time and 

provide the government an additional means of recovery. See 

Carter, 135 S. Ct. at 1979. In the mine run of situations, 

therefore, our holding will have no effect on the second relator. 

Once the first-filed suit reaches completion, relators with 

original information about the fraud can simply bring a new 

action. 

Of course, the statute of limitations can present an obstacle 

to bringing a new action in certain circumstances. Here, for 

instance, the six-year limitations period arguably ran on 

Verizon’s alleged fraud. See 31 U.S.C. § 3731(b)(1). Thus, 

the statute of limitations could block Shea or other relators 

from refiling an action. Shea argues that we therefore should 

allow him to proceed with his amended complaint, which he 

purportedly brought after the first-filed suit terminated but 

before the statute of limitations ran. 

Shea’s situation, however, presents something of a 

procedural oddity. The limitations period continued to run

while he was involved in protracted litigation of this case, 

litigation that has reached this Court twice and the Supreme 

Court once. In fact, Shea could have avoided any potential 

statute of limitations problem by amending his original qui tam 

action (Verizon I) to add the new allegations instead of bringing 

them in a new suit. He also could have filed a new action as 

soon as Verizon I settled rather than filing his amended 

complaint at that time.

To be sure, there may be cases in which the statute of 

limitations blocks a relator’s claim “through no fault of his 
15

own.” See Wood, 2017 WL 1233991, at *14. That possibility, 

though, already inheres in the False Claims Act’s design. The 

government maintains an interest in enabling relators to bring

suit on its behalf, at least to the extent the government is not 

already “equipped to bring [suit] on its own.” Hampton, 318 

F.3d at 217 (quoting Springfield, 14 F.3d at 651). Insofar as 

the statute of limitations can inhibit the vindication of that 

interest, that is by congressional design: a person must file suit

either six years from when the fraud is committed or three years 

after the United States knows or should know about the 

material facts, whichever comes later (so long as the action is 

filed within ten years of the alleged fraud). 31 U.S.C. 

§ 3731(b). The government can often act on the information 

before the statute of limitations has run, at least within ten years 

of the violation. Once the limitations period has run, however, 

Congress evidently considered the marginal value of additional 

suits to be outweighed by other considerations. 

We note, finally, that Shea intends to seek equitable tolling 

of the limitations period if we uphold the dismissal of his 

action. Courts “have long invoked . . . equitable tolling to 

ameliorate the inequities that can arise from strict application 

of a statute of limitations.” Chung v. U.S. Dep’t of Justice, 333 

F.3d 273, 275 (D.C. Cir. 2003). While we hold that the district 

court correctly dismissed Shea’s suit without prejudice under 

the first-to-file bar, we express no view on the potential 

applicability of equitable tolling principles if he refiles his 

action.

III.

Although we uphold the dismissal of Shea’s suit without 

prejudice under the first-to-file bar, Verizon asks for more. It 

argues for dismissal of Shea’s action with prejudice under a 

separate provision of the False Claims Act, the public 
16

disclosure bar. That bar prohibits a relator from bringing suit 

based on a fraud that has already been disclosed through certain 

public channels, unless the relator is an “original source” of the 

information. 31 U.S.C. § 3730(e)(4)(A). The district court 

held that Shea did not base his allegations of fraud on publicly 

available information. The court thus had no occasion to reach 

the question whether Shea would qualify as an original source. 

Reviewing the district court’s decision de novo, United States 

ex rel. Doe v. Staples, Inc., 773 F.3d 83, 86 (D.C. Cir. 2014), 

we reach the same conclusion.

At the outset, we note that the parties dispute which

version of the public disclosure bar governs. At the time Shea 

filed his action in 2009, the public disclosure bar deprived 

courts of jurisdiction over any action “based upon the public 

disclosure of allegations or transactions” of fraud, except when 

“the person bringing the action is an original source of the 

information.” 31 U.S.C. § 3730(e)(4) (2006). In 2010, 

Congress amended the public disclosure bar, including by

removing its express jurisdictional language. See 31 U.S.C. 

§ 3730(e)(4) (2010). Verizon argues that, because the case was 

brought in 2009, the pre-amendment version applies. See

Schindler Elevator Corp. v. United States ex rel. Kirk, 563 U.S. 

401, 404 n.1 (2011); Graham Cty., 559 U.S. at 283 n.1; United 

States ex rel. Oliver v. Philip Morris USA Inc., 763 F.3d 36, 38 

n.2 (D.C. Cir. 2014) (Oliver I). Shea responds that the current, 

non-jurisdictional version applies to the allegations in his 

amended complaint because he filed it after the 2010 

amendment. We need not resolve the dispute because, even 

applying the pre-amendment version to all allegations, we hold 

in Shea’s favor. 

On the merits, we consider the application of the public 

disclosure bar “in the context of [Congress’s] twin goals”: 

“rejecting suits which the government is capable of pursuing 
17

itself, while promoting those which the government is not 

equipped to bring on its own.” Springfield, 14 F.3d at 651. 

Shea’s suit falls in the second category. His action 

“contributed significant independent information” about a 

possible fraud. Id. at 653.

The public disclosure bar asks whether the relator’s 

allegations are “substantially similar” to publicly available 

information. United States ex rel. Davis v. District of 

Columbia, 679 F.3d 832, 836 (D.C. Cir. 2012) (quoting United 

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

675, 682 (D.C. Cir. 1997)). One of our foundational decisions 

on the subject described the public disclosure bar in algebraic 

terms. We explained that an allegation of fraud (Z) consists of 

two “essential elements,” a misrepresented state of facts (X) 

and a true state of facts (Y), such that X + Y = Z. Springfield, 

14 F.3d at 654. If the allegation of fraud (Z) is not itself in the 

public domain, then the bar applies only if both X and Y are 

publicly known. Id. But while both elements must be public, 

the public information need not itself prove fraud. Rather, the 

information must alert the government to “the likelihood of 

wrongdoing.” Id. (internal quotation marks omitted). 

In Shea’s allegations of fraud, the misrepresented state of 

facts (X) was that Verizon, under its contracts, would not bill 

the government for certain taxes and surcharges. The true state 

of facts (Y) was that Verizon nonetheless charged the 

forbidden taxes and surcharges. According to Shea, Verizon’s 

charges were impermissible for various reasons. In some 

cases, Verizon’s contracts were firm fixed-price contracts, 

which “include[d] all applicable Federal, State[,] and local 

taxes and duties.” J.A. 21 (quoting 48 C.F.R. § 52.299-4(b)(1))

(internal quotation marks omitted). Shea alleged that Verizon 

effectively double-billed the government by separately 

charging it for fees already built in to the contract’s fixed price. 
18

In other cases, Shea acknowledged that the contract allowed 

Verizon to bill certain surcharges in addition to the fixed price. 

In those instances, however, he claims Verizon charged the 

government for taxes and surcharges beyond those allowed 

under the contract. 

We agree with the district court that there was sufficient 

publicly disclosed information to infer X, the misrepresented 

state of facts (or, at least, Shea did not supplement the publicly 

available information with any of his own). To allege X, Shea 

relied on public regulations governing federal contracts as well 

as snippets of public contracts. From there, Shea consulted 

public databases to compile the names and numbers of twenty

contracts between Verizon and the government. He then 

alleged, on information and belief, that those contracts included 

similar provisions disallowing certain taxes and surcharges. 

Consequently, Shea added only speculation to the publicly 

existing information, and we have held that a relator cannot 

overcome the public disclosure bar by contributing 

“speculation, background information or collateral research.” 

See United States ex rel. Oliver v. Philip Morris USA, Inc., 826 

F.3d 466, 479 (D.C. Cir. 2016) (Oliver II) (internal quotation 

marks omitted). 

But we, like the district court, reach the opposite 

conclusion about the true state of facts (Y). As to that element, 

Shea’s allegations rest on the following logic: if (a) Verizon 

overbilled its commercial customers for certain surcharges and 

taxes, and (b) Verizon used the same billing practices for the 

government, then (c) Verizon must have billed the illegal 

surcharges and taxes in its government contracts. At each step, 

Shea based his claims on nonpublic information. 

With regard to Verizon’s commercial customers, Shea’s 

allegations came from his firsthand knowledge of Verizon’s 
19

billing practices. His contention that Verizon used the same 

practices for its government contracts likewise relied on 

nonpublic sources. First, he obtained a document in 2004 from 

MCI Communications, a company later acquired by Verizon. 

Shea explained that the document enumerated all the taxes and 

surcharges collected by Verizon in its government contract 

with GSA, and he determined that the listed charges bore a very 

close resemblance to the fees charged by Verizon to its 

commercial customers, suggesting that Verizon passed along 

the same charges to both groups. Second, Shea discussed 

Verizon’s billing practices with a former (and longtime) 

company employee, who reported that Verizon used the same 

billing system for commercial and government customers. 

According to the complaint, Verizon even lacked the ability to 

selectively withhold charges generally billed to all customers. 

While Shea’s central allegations about the true state of 

facts came from nonpublic information, we still must ask 

whether the complaint’s allegations bear a substantial 

similarity to public information, including information “from 

the news media.” 31 U.S.C. § 3730(e)(4) (2006). Neither party 

disputes that publicly available websites can fall in that 

category. Verizon also urges us to look beyond sources cited 

in Shea’s complaint (as we may do when addressing a 

jurisdictional issue, see Settles v. U.S. Parole Comm’n, 429 

F.3d 1098, 1107 (D.C. Cir. 2005)). But even looking outside 

the complaint, we conclude that publicly available information 

failed to create an inference of fraud. 

Verizon argues that Shea admitted in his deposition that he 

found mock-up invoices for government contracts online. 

Because neither Verizon nor Shea has reproduced the mockups, we can rely only on Shea’s characterization of those 

documents in his deposition. He stated that the mock-up 

invoices were “not the actual monthly invoice[s],” but were 
20

“mock-up presentations . . . used for training . . . the accounts 

payable people.” J.A. 162. The mock-up invoices included a 

section for surcharges and taxes but did not “get into the []

nitty-gritty.” J.A. 163. That the mock-up presentations 

included a subcategory for taxes and surcharges tells us little 

about whether Verizon in fact billed unlawful surcharges to the 

government. It was not necessarily fraudulent for Verizon to 

charge some taxes and fees to the government. The contracts 

prohibited only charges built in to the contract’s fixed price, a 

subject on which the mock-up invoices shed little light. 

At times, Shea’s deposition suggests he saw specific taxes 

and surcharges in online contracts. For example, he thought 

one contract “was even more specific in terms of” surcharges 

and had a “recollection of a lot of the surcharges being named 

on documents.” J.A. 164. Again, however, Shea never claimed 

he saw unlawful surcharges in any contract, and his statements 

therefore do not indicate a “likelihood” of fraud. See 

Springfield, 14 F.3d at 654. 

Shea’s complaint and deposition reference other publicly 

available documents, but each falls short of giving rise to an 

inference of fraud. For instance, Shea’s complaint cites 

Verizon’s Service Publication and Price Guide, which 

allegedly “confirm[ed] the company’s practice of billing 

customers for a broad range of taxes.” J.A. 47. By its own 

terms, however, that guide applies only to commercial 

customers. In his deposition, Shea added that he consulted 

Verizon’s federal Contract User Guide, but it, too, lacks 

specific information about the company’s billing practices. 

Instead, the User Guide merely advertised the products and 

services that Verizon offers the federal government. 

Finally, Shea’s complaint highlights a series of public 

modifications to one of Verizon’s contracts. The 
21

modifications, in his view, show that Verizon knowingly 

misled the government about charging prohibited regulatory 

fees, including a surcharge known as the Federal Universal 

Service Charge. The public modifications, however, in fact 

undercut the notion that Verizon committed fraud. In them, 

Verizon alerts the government that it would begin collecting 

charges to “help defray costs of taxes and governmental 

surcharges and fees imposed on us, . . . [including] a 

Regulatory Charge and a Federal Universal Service Charge.” 

J.A. 56. The modifications thus tend to show that Verizon 

contracted with the government to charge the fees, not that it 

fraudulently billed the government. 

Given that little public information suggested Verizon 

acted fraudulently, Verizon errs in relying on our decision in 

Staples, 773 F.3d 83. There, a relator alleged that office supply 

companies concealed their import of pencils from China in an 

effort to avoid antidumping tariffs. Id. at 84. The parties 

agreed that a public database contained the companies’ 

misrepresentations to the government. Id. at 86-87. 

Additionally, public reports described the “giveaway 

characteristics” of Chinese pencils and also revealed three of 

the four principal defendants to be “possible” importers of 

Chinese pencils. Id. at 86, 88. The relator merely examined 

the defendants’ pencils, observed the characteristics described 

in the report, and filed suit. Id. In those circumstances, the 

relator’s allegations were based on public information so as to 

trigger application of the public disclosure bar. 

Here, by contrast, Shea supplied the missing link between 

the public information and the alleged fraud. Unlike in Staples, 

in which a public report identified the telltale signs of fraud, 

Shea relied on nonpublic information to interpret each contract. 

Without Shea’s nonpublic sources (the 2004 MCI document 

and the former Verizon employee), there was insufficient 
22

information to conclude Verizon employed the same billing 

scheme for commercial and government contracts. When the 

relator “bridge[s] the gap by [his] own efforts and experience,” 

the public disclosure bar does not apply. Springfield, 14 F.3d 

at 657. That is the case here.

IV.

Finally, we conclude that the district court did not abuse 

its discretion in declining to dismiss Shea’s action with 

prejudice under Rules 8 and 9(b). Because the district court 

had already dismissed the suit without prejudice under the firstto-file bar, it considered only whether to dismiss with prejudice 

for failure to meet the pleading requirements. It declined to do 

so because it found that “Shea could cure any deficiency in [the 

complaint’s] factual allegations with additional consistent 

allegations.” Shea, 160 F. Supp. 3d at 31. 

Under Rule 8, a complaint must allege sufficient facts, 

accepted as true, to state a claim plausible on its face. Ashcroft 

v. Iqbal, 556 U.S. 662, 678 (2009). For allegations of fraud, 

Rule 9(b) additionally requires the plaintiff to “state with 

particularity the circumstances constituting fraud or mistake.” 

Fed. R. Civ. P. 9(b). Together, Rules 8 and 9(b) require a 

plaintiff to plead the time, place, and content of the fraud and 

to identify the individuals allegedly involved. United States ex 

rel. Williams v. Martin-Baker Aircraft Co., 389 F.3d 1251, 

1256 (D.C. Cir. 2004). 

Regardless of whether Shea’s complaint meets those 

standards, we generally do not dismiss suits with prejudice for 

failing to plead fraud with particularity. Firestone v. Firestone, 

76 F.3d 1205, 1209 (D.C. Cir. 1996). Rather, we “almost 

always” allow leave to amend. Id. (quoting Luce v. Edelstein, 

802 F.2d 49, 56 (2d Cir. 1986)). A court should dismiss with 
23

prejudice only if it determines the plaintiff “could not possibly 

cure the deficiency” by alleging new or additional facts. Id.

(internal quotation marks omitted).

Considered in that light, the district court did not abuse its 

discretion by allowing Shea to refile his action. Shea has 

outlined the basic mechanics of Verizon’s alleged fraud, and 

he could potentially provide more detail about the “who,” 

“what,” “where,” and “when” of the fraud as to each individual 

contract. See Heath, 791 F.3d at 125. Verizon counters that 

Shea admitted he did not know which taxes and surcharges 

each contract prohibited. Shea, though, admitted only that he 

did not know each contract’s contents with certainty. And at 

the pleading stage, Shea need show only a “strong inference” 

of fraud. Id. at 126. At any rate, the district court correctly 

noted that Federal Rule of Civil Procedure 12(d) forbids 

considering facts beyond the complaint in connection with a 

motion to dismiss the complaint for failure to state a claim. 

And based on the face of the complaint, there was no abuse of 

discretion in the district court’s conclusion that it would not be 

“futile” to allow Shea to re-file. See Firestone, 76 F.3d at 1209. 

Verizon, finally, suggests that we convert its motion to 

dismiss into one for summary judgment. Under Rule 12(d), a 

court can do so only when “[a]ll parties [are] given a reasonable 

opportunity to present all the material that is pertinent to the 

motion.” Fed. R. Civ. P. 12(d). The district court considered 

a motion to dismiss, and there is no indication that Shea had a 

reasonable opportunity to present material outside of his 

complaint. We therefore decline to treat Verizon’s motion as 

one for summary judgment.
24

* * * * *

For the foregoing reasons, we affirm the district court’s 

dismissal without prejudice of Shea’s action under the first-tofile bar. We also affirm the district court’s denial of Verizon’s 

motion to dismiss with prejudice under the public disclosure 

bar or Rules 8 or 9(b). 

So ordered.