NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__________ No. 11

- 3682

__________ UNITED STATES OF AMERICA EX REL; RODNEY REPKO, Rodney Repko, Appellant

v. GUTHRIE CLI NIC, P.C.; GUTHRIE HEALTHCARE SYSTEM, INC.; ROBERT PACKER HOSPITAL; TERENCE DEVINE, M.D.; GUTHRIE HEALTH

__________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3

- 04

- cv - 01556 ) District Judge: The Hono rable James M. Munley Submitted Under Third Circuit L.A.R. 34.1(a)

June 5, 2012
BEFORE: SCIRICA , GREENAWAY, Jr. , and NYGAARD , Circuit Judges
(Filed August 1, 2012 )

__________ OPINION OF THE COURT

__________ NYGAARD, Circuit Judge2

Rod ne y Repko appeals the di smissal of his qui tam suit against Gu thrie Clinic, Guthrie Healthcare System , Robert Pa c ker Hospital, Terence Devine, M.D., and Guthrie Health. Repko a sserts violat ions of the False Claims Act. The District Court dismissed the suit. We will affirm.
Re pko worked for Guthrie Clinic, and separately Guthrie Healt hcare System, from 1982 through 199 8

. 1 Approximately f our years after he separated from Guthrie, he stole two million dollars by taking out a loan and forging the names of Guthrie officials on the loan documents . Repko pleaded guilty to bank fraud. The plea agreement required Repko to cooperate by “providing information concerning the unlawful activities of others.” After investigati ng the inform ation that Repko provided about Guthrie entities , the G overnment determined that it was baseless

. Approximately t hree month s after reaching the plea deal Repko filed th is qui tam complaint against the Gu thrie entities

. T he G overnment declined to intervene. The District Court unsealed the complaint and Repko elected to prosecute the case. In subsequent amended complaints, Repko alleged ten counts . Following t he District Court‟s grant of the appellees‟ motion to dismiss , five counts remained , all rooted in the False Claims Act. Repko alleged that the G uthrie entities had financial relationships with one another , resu lt ing in medical referrals between the entities that violated the Stark Act (42 U.S.C. § 1395nn) and Anti

- Kickback Act (42 U.S.C. § 1320a

- 7b). He also allege d

1 Repko worked as general counsel for Guthrie Clinic from 1982 to 1990 and was general counsel to the Clinic and Guthrie Heal thcare System from 1990 to 1993. He became executive vice president and general counsel of the Clinic in 1994 and remained in these positions until 1997. He did some work for Guthrie in 1998, but ceased his association with any Guthrie entity in that sam e year.3

that Guthrie employed a doctor who was excluded from the New York Medicaid program. All of this, according to Repko, resulted in appellees seeking Medicare and Medicaid payments while falsely certifying that they were in compliance with the law , in violation of the False Claims Act. Repko also raised a separate count of conspiracy arising from the same conduct. Upon the appellees‟ second motion to dismiss, and cross motions for summary judgment, the District Court determined that it lacked subject matter jurisdiction over claims aris ing from the False Claims Act ( holding that Repko‟s claims were based on publically disclosed information , and that Repko was not an “original source” under the False Claims Act ).
T he District Court is correct that it does not have jurisdiction over False Claims
Act claims that are based upon publically disclosed information , unless “„ the person bringing the action is an original source of the information

. ‟ ” U nited S tates ex rel

. Mistick PBT v. Hous ing Auth ority of City of Pittsburgh, 186 F.3d 376 , 38 8 (3 d Cir. 1999) (quoting 31 U.S.C. §3730(e)(4)(A) )

. W e agree wit h the District Court ‟s detailed analysis of the evidence in this case, and its conclusion that the web sites and prior litigation it referenced constitute public disclosure of information on both the issue s of financial assistance between Guthrie entities , and associated referral relation ships

. Repko‟s view
that some of the disclosed information is vague or misleading

— preventing the discovery of fraud

— is unavailing. The District Court did not er r by determining that the publically disclosed information could imply fraud. Ad ditionally, the District Court correctly concluded that the publically disclosed information was substantially similar to Repko‟s4

complai nt. 2 United States ex rel. Paranich v . Sorgnard, 396 F.3d 326, 334 (3d Cir. 2005). Therefore, t h e District Court properly determined that his claims arising from the False Claims Act were base d on publically disclosed information that creat ed a jurisdictional bar

. Next, the District Court correctly de cided that, since Repko initially provided the substance of his complaint to comply with the obligations of his plea agreement , he could not be regarded as an “original source.” He gave this information only after he pleaded guilty to bank fr aud , faced a substantial sentence , and bargained for a lower sentence

. Repko‟s attempt to distinguish his plea agreement obligation to disclose information from the analogous duty to provide information under a subpoena is not persuasive

. We agree with t he District Court in this case that the plea agreement compelled Repko‟s
disclosures. As a result, the District Court properly determined that it could not apply the “original source” exception, and that it did not have jurisdiction over Repko‟s False
Cla ims Act claims

. Finally, though the District Court did not devote any speci fic analysis to the conspiracy claim, it did decide a necessary predicate for the conspiracy, ruling that it did not have jurisdiction over the False Claims Act claims. Lacking jurisdiction to determine the underlying claims, the District Court was not empowered to de cide the conspiracy
claim. Though not mandatory, i t would have been preferable for the District Court to have made explicit mention of the conspiracy count in its o pinion

. Yet, t he District

2 We are not persuaded by Repko‟s argument that appellees‟ motion for a protective order estopped them from arguing that information was publically disclosed. Moreover, Repko‟s theory of relation back regarding the amended complaints is meritless

.5

Court‟s de termination to grant the appellees‟ mot ion to dismiss

— a motion that explicitly raise d the conspiracy claim

— was sufficient here to dispose of that claim in light of its thorough discussion of the False Claims Act claims on which the conspiracy was allegedly base d

. For these reasons, we will affirm the order of the District Court.