1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-30-1999

Mistick PBT v. Housing Auth Cty Pgh

Precedential or Non-Precedential:

Docket 97-3248

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Recommended Citation

"Mistick PBT v. Housing Auth Cty Pgh" (1999). 1999 Decisions. Paper 222.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/222
Filed July 30, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-3248 

UNITED STATES OF AMERICA ex rel. 

MISTICK PBT and MISTICK PBT, 

v. 

HOUSING AUTHORITY OF THE CITY OF PITTSBURGH; 

L.D. ASTORINO & ASSOCIATES, LTD. (formerly known as

L.D. ASTORINO ARCHITECTS, INC.); ASTORINO BRANCH 

ENVIRONMENTAL INC.; ASTORINO BRANCH ENGINEERS; 

ERNEST E. MILLER, individually; DAVID B. 

WASHINGTON, individually; LOUIS D. ASTORINO, 

individually; DENNIS L. ASTORINO, individually; PATRICK 

I. BRANCH, individually; 

BERNARD J. QUINN, individually 

Mistick PBT, 

Appellant 

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

(D.C. No. 95-cv-01876) 

(District Judge: Hon. Alan N. Bloch) 

Argued June 9, 1998 

Before: BECKER, Chief Judge, ALITO and ALDISERT, 

Circuit Judges 

(Opinion Filed: July 30, 1999) 
 David J. Hickton, Esq. (Argued) 

 James P. Thomas, Esq. 

 Burns, White & Hickton 

 2400 Fifth Avenue Place 

 120 Fifth Avenue 

 Pittsburgh, PA 15222 

 Attorneys for Appellees, 

 L.D. Astorino, Astorino Branch Env., 

 Astorino Branch Eng., Louis D. 

 Astorino, Dennis L. Astorino, Patrick 

 I. Branch and Bernard J. Quinn 

 Arnd N. von Waldow, Esq. 

 Reed, Smith, Shaw & McClay 

 435 Sixth Avenue 

 Pittsburgh, PA 15219, 

 Attorney for Appellees, 

 Housing Authority of the City of 

 Pittsburgh, Ernest Miller and David 

 Washington 

 John E. Beard, III, Esq. (argued) 

 Peter N. Flocos, Esq. 

 Kirkpatrick & Lockhart LLP 

 1500 Oliver Building 

 Pittsburgh, PA 15222 

 Attorneys for Appellant 

OPINION OF THE COURT 

ALITO, Circuit Judge: 

This appeal arises from a qui tam action based on the 

False Claims Act, 31 U.S.C. SS 3729 et seq. (1994). The 

District Court dismissed the complaint for lack of subject 

matter jurisdiction under 31 U.S.C. S 3730(e)(4)(A), which 

provides that no court has jurisdiction over a False Claims 

Act qui tam action that is based on certain public 

disclosures unless the action is brought by an "original 

source." We agree with the District Court that subject 

matter jurisdiction was lacking, and we therefore affirm. 

 2 
I. 

A. The qui tam action at issue here was filed by Mistick 

PBT, a Pittsburgh area construction company. Named as 

defendants were the Housing Authority of the City of 

Pittsburgh ("HACP") and L.D. Astorino & Associates, Ltd. an 

architectural firm, as well as individual employees of the 

HACP and Astorino & Associates. The complaint asserted 

that the defendants made false claims to the United States 

Department of Housing and Urban Development (HUD) for 

the cost of lead-based paint abatement work at the HACP's 

Bedford and Addison housing projects. Astorino was the 

architectural firm that developed the specifications for the 

lead-based paint abatement work, as well as the larger 

renovation projects of which this work formed a part, and 

Mistick was the general contractor for all of this work. 

Since August 1986, HUD regulations have required leadbased paint abatement work to be performed at HUDassociated housing. See 24 C.F.R. SS 35.20 - 35.24 (1998). 

Such abatement may be achieved either by removing the 

paint or covering it with an "encapsulant" that covers and 

prevents exposure of the lead-based paint. See 24 C.F.R. 

S 35.24. 

Astorino's original specifications for the lead abatement 

work at issue were submitted in approximately April or 

June of 1989 and provided for encapsulation using a

product called "Glid Wall" that was manufactured by the 

Glidden Paint Company. According to Mistick's complaint, 

Mistick bid and later performed its work at the two projects 

on the basis of Astorino's specifications, including the Glid 

Wall specification. Mistick submitted its bids in June and 

July of 1989, and after those bids were accepted and 

contracts were executed, Mistick began work on the 

Addison project by December 1989 and on the Bedford

project by January 1990. 

Although Astorino's specifications called for the use of 

"Glid Wall" as an encapsulant, Glidden had begun 

recommending against the use of this product for this 

purpose some time earlier. A Glidden Product Updates 

Bulletin dated April 1988 stated: 

 3 
 [GLIDDEN] WILL NOT RECOMMEND OR SELL ANY 

 PAINT PRODUCT OR SHEET MATERIAL, SUCH AS 

 GLID-WALL SYSTEM OR VINYL WALL COVERING, 

 FOR USE OVER LEAD CONTAINING MATERIALS 

 WHERE THE PURPOSE OF THE APPLICATION IS TO 

 SEAL OR OTHERWISE RENDER THE AFFECTED 

 AREA NON-HAZARDOUS. 

JA 79.1 

In June 1988, a firm of "protective coatings (paint) 

consultants" wrote to an Astorino employee that"Glidden 

Company has no desire to warrant [the Glid-Wall System] 

as a lead abatement product, and therein lay their 

admonition regarding its use for that purpose." JA 82. 

According to the affidavit of D. Thomas Mistick, a principal 

of Mistick PBT, representatives of Astorino, the HACP, and 

Mistick attended a meeting on January 5, 1990, at which 

a Glidden representative reiterated the warning contained 

in the April 1988 Products Update Bulletin. JA 547. In 

addition, it appears that, on January 23, 1990, Glidden 

sent Astorino a letter advising that "the Glidwall System 

can not be consider (sic) a method for lead abatement." JA 

450. 

In May 1990, Astorino revised its specifications for the 

Bedford and Addison projects and provided for the use of a 

lead encapsulant called Zomat instead of Glid-Wall. This 

change was preceded by a series of letters from Astorino to 

the HACP. On February 14, 1990, Dennis Astorino, a vicepresident of the architectural firm, wrote to Ernest Miller, 

the HACP's director of development, and attached a letter 

from Astorino's certified industrial hygienist stating that his 

company was "still of the opinion that the Glidwall System 

is the most cost effective method of physical compliance 

with the HUD criteria," although "an increased element of 

risk would be associated with the use of the Glid-Wall 

System since the manufacturer, Glidden, indicates the 

Glid-Wall System is not to be considered as a method for 

lead abatement." JA 449. Dennis Astorino's cover letter 

requested a prompt decision by the HACP regarding the 

method of abatement it wished to use -- either 

_________________________________________________________________ 

1. "JA" refers to the Joint Appendix. 

 4 
encapsulation using Glid-Wall or some other product or the 

removal of the lead paint. Id. 

On April 23, Dennis Astorino again wrote to Miller and 

summarized the events that had resulted in the original 

specification of Glid-Wall. Among other things, the letter 

stated that Astorino's consultants had advised thefirm that 

"Glid-Wall was the encapsulating system of choice" but that 

Glidden "no longer recommend[ed] their product as a lead 

base paint encapsulate and, in fact, [was] actively advising 

against it's (sic) use." JA 435. The letter added: "We 

understand this was do (sic) to potential corporate liability 

concerns." Id. The letter concluded by stating that the field 

of alternative encapsulants had been narrowed to Zomat. 

JA 436. 

On April 24, Dennis Astorino wrote another letter to 

Miller in which he again stated that Glidden "no longer 

guarantees [Glid-Wall] for use as a lead base paint

encapsulate" and again expressed the view that Zomat was 

then "the best solution to the problem of encapsulization." 

JA 434. After observing that Zomat could not have been 

called for in the original specifications because it had only 

recently been marketed as an encapsulant, the letter 

requested additional funding of approximately $750,000 for 

the Bedford project alone. Id. 

Seeking to have HUD fund these cost increases, the 

HACP sent several letters to HUD in 1990 and 1992. On 

April 27, 1990, David Washington, the HACP's executive 

director, wrote to John Pisano, the manager of HUD's 

Pittsburgh office, and stated that the HACP needed 

additional funding for the Bedford project because Glidden 

"no longer recommends" Glid-Wall as a lead encapsulant. 

This letter had several attachments, including the February 

14, April 23, and April 27 letters from Astorino to the 

Authority. JA 418-19. 

On January 1, 1992, Miller wrote to Paul LaMarca, 

Acting Director of the Public Housing Division of HUD's 

Pittsburgh office, and requested additional funding from 

HUD for the Bedford project. Miller cited the fact that 

Glidden no longer recommended Glid-Wall as an 

encapsulant and that new regulations required "additional 

worker protection methods." JA 457. 

 5 
On July 1, 1992, in response to LaMarca's request for 

more information, Washington wrote to LaMarca and stated 

that "Glidwall became unacceptable as a LBP [lead-based 

paint] encapsulant because the Company informed the

Architect by letter (1/23/90) that `the Glidwall System can 

not be consider (sic) a method for lead abatement,' in spite 

of the fact that the system met HUD requirements in effect 

at the time and that the Baltimore Housing Authority was 

using it for this purpose." JA 464-65. Apparently referring 

to the situation at the time of the original specifications, the 

letter added: 

 To our knowledge, there was no information available 

 to suggest that the Glidwall System was not approved 

 by Glidden for its intended use as a LBP encapsulant. 

JA 465. 

On July 24, 1992, HUD informed the HACP that it was

approving $253,622.11 in additional funds for lead 

encapsulation on the Bedford project. JA 469.2 

B. Meanwhile, in July 1991, Mistick had filed su it

against the HACP in the Court of Common Pleas of 

Allegheny County, claiming that the HACP was liable to 

Mistick under their contract for delay damages resulting 

from the change in the lead-abatement specifications for 

the Bedford and Addison projects. The HACP thenfiled a 

third-party complaint for indemnification and contribution 

against Astorino, and Mistick subsequently moved to

amend its complaint to add a direct claim of fraud against 

Astorino. In this proposed amended complaint, Mistick 

alleged that (1) Astorino knew at the time it developed the 

original specifications for the Bedford and Addison projects 

that Glidden did not recommend Glid-Wall as a lead-based 

paint encapsulant, (2) Astorino nonetheless specified GlidWall for lead abatement, (3) Astorino knew or should have 

known that this specification would delay and increase the 

cost of the renovation work, and (4) the Bedford and 

Addison projects were both delayed and Mistick suffered 

damages as a result. JA 226-27. In the alternative, Mistick 

_________________________________________________________________ 

2. Mistick alleges that the HACP received additional funds for the 

Bedford and Addison projects through HUD's annual budget process. 

 6 
alleged that the HACP knew that Glid-Wall was unsuitable 

for use a lead-based paint encapsulant but that it directed 

Astorino to specify this product anyway, knowing that this 

would cause delay and increased expense. JA 227. The 

Court of Common Pleas denied Mistick's motion to amend 

its complaint because, among other things, the statute of 

limitations had run on Mistick's claim against Astorino, 

and the Court dismissed Astorino as a third-party 

defendant. 

Dennis Astorino gave a deposition in the state court 

action in which he acknowledged that the Astorinofirm 

knew, prior to the submission of the original Bedford and 

Addison specifications, that Glidden did not recommend the 

use of Glid-Wall as an encapsulant. JA 99-100. Louis 

Astorino, another principal of the firm, likewise stated in a 

deposition that the firm was aware that Glid-Wall had 

"never" been warranted as a lead-based paint encapsulant, 

but that he looked at Glid-Wall "as a product approved by 

HUD for this situation" and that "HUD never asked for a 

warranty for lead based paint abatement." JA 85-87.

Mistick's suit against the HACP was eventually settled in 

May 1996. 

C. While its suit against the HACP was pending in state 

court, Mistick began what it terms "an investigation . . . 

undertaken . . . for the purpose of gathering information on 

the HACP's relationship with HUD, which investigation was 

entirely separate and distinct from and independent of the 

[suit in state court]." Appellant's Br. at 11. This

investigation was supposedly prompted by "a series of 

serious administrative problems and construction disputes 

Mistick and other contractors were experiencing, with both 

the HACP and Astorino, on various HUD-associated public 

housing project construction jobs in the Pittsburgh area." 

JA 539. 

As part of this investigation, Mistick's attorney, David M. 

Priselac, Esq., filed a Freedom of Information Act ("FOIA") 

request with HUD in September 1993, and in response, 

HUD released several files for Pittsburgh-area HUD-funded 

projects, including the Bedford and Addison projects. These 

files included the Authority's letters to HUD, dated April 27, 

1990, January 1, 1992, and July 1, 1992, as well as the 

 7 
letters from Astorino to the HACP that were attached to the 

April 27 letter. Mistick viewed the letters submitted to HUD 

as containing false claims regarding the Glid-Wall matter. 

D. In November 1995, Mistick filed under seal this qui 

tam action in its own name and on behalf of the United 

States. Mistick's complaint alleged that two false claims 

had been presented to the government. The first claim 

involved the original specifications, which called for the use 

of Glid-Wall as an encapsulant even though certain 

defendants allegedly knew that it was not suited for that 

purpose. The second claim concerned the HACP's request 

for additional funding to pay for part of the cost of 

switching to Zomat as the encapsulant and the allegedly 

false statements made regarding the reasons for the switch. 

Based on each of these two claims, the complaint asserted 

three separate causes of action: for presentation of a false 

claim, in violation of 31 U.S.C. S 3729(a)(1); for making or 

using a false record or statement, in violation of 31 U.S.C. 

S 3729(a)(2); and for conspiring to defraud the government, 

in violation of 31 U.S.C. S 3729 (a)(3). 

In July 1996, the District Court granted the 

Government's motion to decline intervention and ordered 

that Mistick's complaint be unsealed and served on the 

HACP and Astorino. The HACP and Astorino filed separate 

motions to dismiss, in which they asserted lack of subject 

matter jurisdiction. In March 1997, the District Court 

dismissed for lack of subject matter jurisdiction under 31 

U.S.C. S 3730(e)(4)(A), which, as noted, provides that no 

court has jurisdiction over a False Claims Act qui tam suit 

that is based on certain specified types of public 

disclosures unless the action is brought by an "original 

source." The District Court held that this jurisdictional bar 

applied because Mistick's action was based on information 

obtained by Mistick pursuant to a FOIA request and 

discovery in the state court proceeding and because Mistick 

did not qualify under the Act's "original source" exception. 

Mistick then took this appeal. 

II. 

The background of the False Claims Act's qui tam 

provision has been discussed in detail in prior opinions. 

 8 
See United States ex rel. Dunleavy, 123 F.3d 734, 738 (3d 

Cir. 1997); United States ex rel. Stinson, 944 F.3d 1149, 

1152-54 (3d Cir. 1991); id. at 1162-68 (Scirica, J., 

dissenting). In brief, the qui tam provision "permits, in 

certain circumstances, suits by private parties on behalf of 

the United States against anyone submitting a false claim 

to the Government. Prior to 1986, such suits were barred 

if the information on which they were based was already in 

the Government's possession." Hughes Aircraft Co. v. United 

States ex rel. Schumer, 520 U.S. 939, 941 (1997). In 1986, 

Congress sought "[t]o revitalize the qui tam provisions," 

Stinson, 944 F.2d at 1154. After considering several 

alternatives, see Stinson, 944 F.2d at 1163-68 (Scirica, J., 

dissenting), Congress enacted 31 U.S.C. S 3730(e)(4)(A), 

which provides: 

 No court shall have jurisdiction over an action under 

 this section based upon the public disclosure of 

 allegations or transactions in a criminal, civil, or 

 administrative hearing, in a congressional, 

 administrative, or Government Accounting Office (sic) 

 report, hearing, audit, or investigation, or from the 

 news media, unless the action is brought by the 

 Attorney General or the person bringing the action is 

 an original source of the information. 

As previously noted, the District Court held that this 

provision bars Mistick's suit. Mistick argues that the 

District Court's decision rests on three erroneous legal 

determinations. First, Mistick contends that the disclosure 

of information in response to the Priselac FOIA request was 

not one of the kinds of public disclosure that trigger the 

jurisdictional bar set out in 31 U.S.C. S 3730(e)(4)(A). 

Second, Mistick maintains that its state-court suit did not 

involve the same "allegations" or "transactions" as its later 

qui tam action. Third, Mistick argues that it fell within the 

"original source" exception. 

A. The FOIA response. As noted, the qui tam provision 

refers to "the public disclosure of allegations or 

transactions in a criminal, civil, or administrative, or 

Government Accounting Office (sic) report, hearing, audit, 

or investigation, or from the news media." 31 U.S.C. 

S 3730(e)(4)(A). Thus, in order to fall within this language, 

 9 
a disclosure (1) must be "public" and (2) must occur in one 

of the specified contexts. HUD's response to the Priselac 

FOIA request satisfies both of these requirements. 

First, the disclosure of information in response to a FOIA 

request is a "public disclosure." The Freedom of Information 

Act states that "[e]ach agency shall make available to the 

public" certain specified categories of information. 5 U.S.C. 

S 552(a)(emphasis added). The Act's "central purpose" is to 

ensure that government activities are "opened to the sharp 

eye of public scrutiny." United States Dep't of Justice v. 

Reporter's Comm., 489 U.S. 749, 774 (1989)(emphasis

added). In Consumer Product Safety Commission v. GTE 

Sylvania, Inc., 447 U.S. 102 (1980), the Supreme Court 

held that the disclosure of information pursuant to the 

FOIA constitutes a "public disclosure" within the meaning 

of the Consumer Product Safety Act, 15 U.S.C. S 2055(b)(1), 

and the Court observed: 

 [A]s a matter of common usage the term "public" is 

 properly understood as including persons who are FOIA 

 requesters. A disclosure pursuant to the FOIA would 

 thus seem to be most accurately characterized as a 

 "public disclosure" within the plain meaning of [the 

 Consumer Product Safety Act]. 

447 U.S. at 108-09 (emphasis added). We see no sound 

basis for construing the term "public disclosure" any more 

narrowly here than the Supreme Court did in GTE 

Sylvania. We therefore conclude that HUD's response to the 

Priselac FOIA request was a "public disclosure."3 

_________________________________________________________________ 

3. The dissent argues that information produced pursuant to a FOIA 

request is not publicly disclosed because it is provided only to the 

requester, who is not obligated to turn it over to others. Dissent at 

28-29. The dissent therefore contends that the information is not 

"publicly accessible," id. at 28, and thus seems to suggest that "public 

disclosure" means making information accessible. 

We disagree with the dissent that information available under FOIA is 

not "publicly accessible"; on the contrary, such information is readily 

accessible to any member of the public who makes a request. More 

important, however, the dissent's argument confuses the statutory 

concept of "public disclosure" with the different concept of "public 

 10 
Second, this disclosure occurred within one or more of 

the contexts specified in 31 U.S.C. S 3730(e)(4)(A). To begin, 

we believe that HUD's response constituted an 

"administrative . . . report." Id. In Dunleavy, 123 F.3d at 

745, we concluded that the term " `administrative' when 

read with the word `report' refers only to those 

administrative reports that originate with the federal 

government." HUD's response to the FOIA request 

originated with a department of the federal government and 

constituted official federal government action, and therefore 

this response plainly satisfied Dunleavy's definition of 

"administrative." 

The response also fell within the ordinary meaning of the 

term "report." A "report" is defined as, among other things, 

"something that gives information" or a "notification," 

Webster's Third New International Dictionary 1925 (1971), 

and an "official or formal statement of facts or proceeding." 

Black's Law Dictionary 1300 (6th ed. 1990). A response to 

a FOIA request falls within these definitions. Such a 

response provides information and notification regarding 

the results of the agency's search for the requested 

documents and constitutes an official and formal statement 

concerning those results. Although Mistick ridicules the 

argument that a response to a FOIA request is an 

"administrative report," see Reply Br. at 6-7, it is telling 

that Mistick does not offer a definition of this term.4 We 

_________________________________________________________________ 

accessibility." Information may be publicly disclosed -- for example, it 

may appear buried in an exhibit that is filed in court without fanfare in 

an obscure case -- and yet not be readily accessible to the general 

public. And information may be easily accessible to the public -- it may 

be available under FOIA to anyone who simply files a request -- but 

unless there is a request and the information is actually produced, it is 

not publicly disclosed. Dunleavy, 123 F.3d at 746. 

4. The dissent argues that a FOIA response is not a report, but the 

dissent -- which elsewhere adheres strictly to the dictionary definition 

of 

the statutory phrase "based upon" (see Dissent at 32) -- does not come 

to grips with the fact that a FOIA response falls easily within accepted 

definitions of the term "report." The dissent seems to have in mind a 

particular type of government report, with "analysis," a "summary," 

and/or a "conclusion," see id. at 29, but the ordinary understanding of 

the term "report" is broader. 

 11 
thus hold that HUD's response to the Priselac FOIA request 

was an "administrative . . . report" and that the documents 

that HUD provided were publicly disclosed "in" that "report."5 

We also believe that this response occurred "in a[n] . . . 

administrative . . . investigation." 31 U.S.C.S 3730(e)(4)(A). 

For the reasons already explained, HUD's search for the 

documents sought under the FOIA and its decision to

disclose them clearly satisfied our court's interpretation of 

the term "administrative," and we believe that these 

processes should be viewed as constituting an 

"investigation" within the meaning of 31 U.S.C. 

S 3730(e)(4)(A). Accepted definitions of the term 

"investigation" include "a detailed examination," Webster's 

Third New International Dictionary 1189 (1971), and the 

"making of a search." 1 The Compact Edition of the Oxford 

English Dictionary 457 (1971). When an agency receives a 

FOIA request, it is obligated to conduct a search that is 

reasonably calculated to uncover all relevant documents.6 

See also, e.g., Miller v. United States Department of Justice, 

779 F.2d 1378, 1383 (D.C. Cir. 1983); Weisberg v. United 

States Department of Justice, 705 F.2d 1344, 1351 (D.C. 

Cir. 1983). Such a search falls within the common 

understanding of the term "investigation." 7 See also 5 

_________________________________________________________________ 

5. This holding is entirely consistent with our holding in Dunleavy that 

a report prepared at the behest of a county was not itself an 

"administrative report" because it did not"originate with the federal 

government." 123 F.3d at 744-46. In Dunleavy, the report was not 

produced under the FOIA. Here, we do not hold that the documents at 

issue would have fallen within S 3730(e)(4)(A) had they not been 

produced pursuant to the FOIA. Rather, we hold that HUD's FOIA 

response was an "administrative report" and the documents were 

publicly disclosed "in" that report, just as if they had been reproduced 

as an appendix to a printed report. 

6. As with the term "report" (see footnote 4, supra), the dissent insists 

on 

an interpretation of the term "investigation" that is narrower than its 

meaning in ordinary usage. According to the dissent, the term 

"investigation" seems to be limited to a criminal investigation or a like 

investigation of "wrongdoing." Dissent at 29. But in ordinary usage, the 

term is used more broadly. 

7. Because we hold that the disclosure at issue occurred in an 

"administrative . . . report" and an "administrative . . . investigation," 

we 

need not and do not reach the defendants' argument that the disclosure 

also occurred in an "administrative . . . hearing."

 12 
U.S.C. S 552(a)(3)(D) ("For purposes of this paragraph, the 

term `search' means to review, manually or by automated 

means, agency records for the purpose of locating those 

records which are responsive to a request.') 

Most of the decisions of other courts support our holding 

that the disclosure of documents under the FOIA triggers 

the jurisdictional bar of 31 U.S.C. S 3730(e)(4)(A). In United 

States ex rel. Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 

1520 (9th Cir. 1995), vacated on other grounds, 520 U.S. 

939 (1997), the Ninth Circuit stated that documents

actually produced in response to FOIA requests are publicly 

disclosed for purposes of the qui tam statute. See also 

United States ex rel. Lamers v. City of Green Bay, 998 F. 

Supp. 971, 979 (E.D. Wis. 1998), aff'd, 168 F.3d 1038 (7th 

Cir. 1999); United States of America ex rel. Burns v. A.D. 

Roe Co., Inc., 919 F. Supp. 255, 257 (W.D. Ky. 1996); 

United States ex rel. Herbert v. National Academy of 

Sciences, 1992 WL 247587, at *6 (D.D.C. Sept. 15, 1992) 

("Just as civil discovery is public, it must be the case that 

information obtained pursuant to an FOIA request has 

been made public through the administrative process and 

cannot form the basis of a qui tam action. If that were not 

the case then, like court records, public agency records 

would be flooded with citizens requesting information in 

order to bring qui tam suits. Congress did not intend the 

qui tam provision to transform FOIA from sunshine 

legislation into a search for the pot of gold at the end of the 

rainbow."). But see United States ex rel. Pentagen 

Technologies Int'l Ltd. v. CACI Int'l Inc., 1996 WL 11299, at 

*9 (S.D.N.Y. Jan. 4, 1996) 

B. The Mistick State Court Action. Mistick argues that 

even if HUD's FOIA response was a covered disclosure 

under 31 U.S.C. S 3730(e)(4)(A), its qui tam action was still 

not jurisdictionally barred. We have held that the public 

disclosure of a "transaction[ ]" within that provision 

requires the disclosure of "the elements of the underlying 

fraudulent transaction." Dunleavy, 123 F.3d at 740. This 

means that the disclosure must reveal both the 

misrepresented state of facts and the true state of facts so 

that the inference of fraud may be drawn. Id. at 741. 

Mistick acknowledges that "[t]he misrepresented facts . . . 

 13 
were discovered by Mistick in October 1993, pursuant to 

the Priselac [FOIA] Request." Appellant's Br. at 31. Thus, 

our holding that this disclosure falls within the coverage of 

31 U.S.C. S 3730(e)(4)(A) requires Mistick to fall back on the 

argument that the jurisdictional bar is not triggered 

"because the other essential element, the true state of facts, 

was not publicly disclosed within the meaning of that 

provision." Id. at 33. 

We reject Mistick's fall-back argument because "the true 

state of facts" was disclosed in civil discovery in the Mistick 

state court action, and we held in Stinson, 944 F.2d at 

1160, that civil discovery constitutes "a public disclosure 

. . . in a civil hearing" within the meaning of 31 U.S.C. 

S 3730(e)(4)(A). According to Mistick, the true facts were (1) 

that the Glidden policy of not recommending Glid-Wall as a 

lead-based encapsulant was in effect before Astorino 

submitted the specifications and (2) that Astorino and the 

Authority were aware of the policy but knowingly 

represented otherwise to HUD. As previously noted, both 

Dennis and Louis Astorino acknowledged these facts in 

their depositions, and Mistick concedes that all of these 

facts were revealed in civil discovery in the state court 

action. At oral argument, the following exchange occurred: 

 THE COURT: . . . [D]o I understand your answer to be 

 that all of the essential elements were publicly 

 disclosed in the civil litigation but you knew all of those 

 essential elements previously from other sources, 

 including the FOIA request? 

 MR. BEARD: That is correct. 

Oral Arg. Tr. at 10. 

Mistick contends, however, that although all of the

essential elements were revealed in either the FOIA

response or in civil discovery, its qui tam action was not 

"based on" those public disclosures. This argument 

requires us to consider conflicting decisions from several 

other circuits regarding the meaning of the phrase "based 

upon" in 31 U.S.C. S 3730(e)(4)(A). 

In United States ex rel. Siller v. Becton Dickinson & Co., 

21 F.3d 1339, 1348 (4th Cir.), cert. denied, 513 U.S. 928 

 14 
(1994), the Fourth Circuit held that "based upon" means 

actually derived from. The court explained: 

 Section 3730(e)(4)(A)'s use of the phrase "based upon" 

 is, we believe, susceptible of a straightforward textual 

 exegesis. To "base upon" means to "use as a basis for." 

 Webster's Third New International Dictionary 180 

 (1986) (definition no. 2 of verb "base"). Rather plainly, 

 therefore, a relator's action is "based upon" a public 

 disclosure of allegations only where the relator has 

 actually derived from that disclosure the allegations 

 upon which his qui tam action is based. Such an 

 understanding of the term "based upon," apart from 

 giving effect to the language chosen by Congress, is 

 fully consistent with section 3730(e)(4)'s indisputed 

 objective of preventing "parasitic" actions see, e.g., 

 Stinson, supra, at 1154, for it is self-evident that a suit 

 that includes allegations that happen to be similar 

 (even identical) to those already publicly disclosed, but 

 were not actually derived from those public 

 disclosures, simply is not, in any sense, parasitic. 

Id. 

All of the other circuits that have reached this question 

have disagreed with the Fourth Circuit and have held that 

"based upon" means "supported by" or "substantially

similar to," so that the relator's independent knowledge of 

the information is irrelevant. See United States ex rel. 

Biddle v. Board of Trustees of the Leland Stanford, Jr. Univ., 

147 F.3d 821, 828 (9th Cir. 1998), cert. denied, ___ S. Ct. 

___, 1999 WL 66673 (U.S. Apr. 19, 1999); United States ex 

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

682-84 (D.C. Cir.), cert. denied, 118 S. Ct. 172 (1997); 

United States ex rel. Precision Co. v. Koch Indus., Inc., 971 

F.2d 548, 552 (10th Cir. 1992), cert. denied, 507 U.S. 951 

(1993); United States ex rel. Doe v. John Doe Corp., 960 

F.2d 318, 324 (2d Cir. 1992). 

In reaching this conclusion, the Tenth Circuit observed 

that "[a]s a matter of common usage, the phrase `based 

upon' is properly understood to mean `supported by.' " 

Precision Co., 971 F.2d at 552. The District of Columbia 

Circuit, while not expressly embracing the Tenth Circuit's 

 15 
view that "based upon" may mean "supported by" in 

common usage, found the statutory language to be 

ambiguous, and then rejected the Fourth Circuit's 

approach "because it renders the `original source' exception 

to the public disclosure bar largely superfluous." Findley, 

105 F.3d at 683. After observing that the False Claims Act 

"requires that a relator have `direct and independent' 

knowledge of the alleged fraud or some of its components, 

and have voluntarily provided the information to the 

government, in order to benefit from the `original source' 

exception to the jurisdictional bar," the court continued: 

 Why, one may ask, assuming the Fourth Circuit test of 

 "based upon" as meaning "derived from," would 

 Congress provide an exception in the case of a relator 

 who has actually derived his complaint from public 

 information, that allows him to demonstrate that he 

 already provided his independently obtained knowledge 

 to the government before he filed suit? . . .[U]nder the 

 Fourth Circuit's interpretation, the primary "based 

 upon" test swallows the original source exception 

 whole. Using "based upon" as a proxy for whether the 

 relator's complaint merely parrots what is already in 

 the public domain, on the other hand, leads logically to 

 a subsidiary inquiry into whether, the relator had 

 obtained the information in his complaint 

 independently prior to the disclosure and so is an 

 "original source." 

Id. 

We see merit in both the Fourth and District of Columbia 

Circuits' arguments. We agree with the Fourth Circuit that 

in ordinary usage the phrase "based upon" is not generally 

used to mean "supported by." On the other hand, we agree 

with the District of Columbia Circuit that the Fourth 

Circuit's interpretation is suspect because it would render 

the "original source" exception largely superfluous. The 

dissent strives to show that the Fourth Circuit's 

interpretation might not render the original source

exception entirely superfluous, but we are not persuaded. 

The dissent first argues that it may be possible for the 

allegations or transactions set forth in an individual's claim 

 16 
to be derived from a public disclosure, see 31 U.S.C. 

S 3730(e)(4)(A), and yet for that individual to have had 

direct and independent prior knowledge of "the information 

on which the allegations are based." 31 U.S.C. 

S 3730(e)(4)(B). The dissent writes that "a relator who is 

barred because he has derived some of his fraud 

information from a public disclosure may still bring the 

claim as an original source if he has direct and 

independent knowledge of some other essential element of 

the claim." Dissenting Op. at 39-40. However, the dissent 

makes no effort to explain how this interpretation can be 

made to fit the language of 31 U.S.C. SS 3730(e)(4)(A) and 

31 U.S.C. S 3730(e)(4)(b) (the "original source" exception). 

Indeed, the dissent does not even commit itself to this 

interpretation but merely raises it as a possibility. See 

Dissenting Op. at 40. Thus, the dissent relies on the 

possibility that the apparent superfluity of the"original 

source" exception (under its interpretation of"based upon") 

may be avoided pursuant to a scheme of interpretation that 

it declines to explicate or embrace. We find this 

unconvincing. 

The dissent's second argument, as we understand it, is 

that, even if its interpretation of "based upon" makes the 

"original source" exception substantively superfluous, 

Congress might have adopted that exception in order to 

provide a different procedural avenue for a qui tam relator 

to use in showing that his action was not derived from a 

public disclosure. The dissent writes that "it may be easier 

for the relator to establish himself as an `original source' of 

the information than to successfully disprove a caused link 

between the public disclosures and his qui tam claim." 

Dissent at 40. However, even if there were no "original 

source" exception as such, an individual could still prove 

that his information was not derived from a public 

disclosure by showing that he was an original source of the 

information. Thus, this argument fails to explain why 

Congress would have adopted the "original source" 

exception if the phrase "based upon" in 31 U.S.C. 

S 3730(e)(4)(A) meant "derived from." As a result, we agree 

with the District of Columbia Circuit that the Fourth 

Circuit's interpretation of "based upon" makes the "original 

source" exception largely superfluous. 

 17 
We are thus confronted with a clash between two textual 

arguments concerning the meaning of 31 U.S.C. 

S 3730(e)(4)(A): one based on the ordinary meaning of the 

phrase "based upon" and one based on the precept that a 

statute should be construed if possible so as not to render 

any of its terms superfluous. See, e.g ., United States v. 

Nordic Village, Inc., 503 U.S. 30, 36 (1992); Astoria Federal 

Savings & Loan Assn. v. Solimino, 501 U.S. 104, 112

(1991); First Bank Nat. Ass'n v. FDIC, 79 F.3d 362, 367 (3d 

Cir. 1996); United Steelworkers of America v. North Star 

Steel Co., 5 F.3d 39, 42 (3d Cir. 1993), cert. denied, 510 

U.S. 1114 (1994). In the end, we are persuaded to follow 

the majority approach. 

Section 3730(e)(4)(A) does not reflect careful drafting or a 

precise use of language. To begin with a small example, this 

section refers to the General Accounting Office as the 

"Government Accounting Office" and thus misnames an

instrumentality that Congress has consistently viewed as 

its own. See Bowsher v. Synar, 478 U.S. 714, 731 (1986). 

The section refers awkwardly to "the public disclosure . . . 

from the news media." Id. (emphasis added). The section 

refers to criminal and civil "hearing[s]," when it surely 

means, not just those proceedings that are generally 

labeled "hearings," but also full-blown criminal and civil 

trials, and other court proceedings that are not described 

as "hearings" in standard usage. See Stinson, 944 F.2d at 

1154-58. The section refers to jurisdiction over"an action" 

that is based on a public disclosure, and thus the drafters 

seem to have overlooked the elementary point that a qui 

tam "action" may contain multiple claims, only some of 

which may be "based upon" a public disclosure, however 

that phrase is defined. In addition, whether the phrase 

"based upon" means "derived from" or"supported by," a 

careful drafter would have realized the need to specify the 

degree to which the "action" must be "based upon" the 

public disclosure in order to fall within the jurisdictional bar.8 

Section 3730(e)(4)(A) refers to the disclosure of"allegations 

or transactions," but S 3730(e)(4)(B), in referring to 

independent knowledge "of the information on which the 

allegations are based," inexplicably fails to mention 

_________________________________________________________________ 

8. We were required to decide this point in Dunleavy, 123 F.3d at 746. 

 18 
"transactions." (Are "transactions" irrelevant under this 

latter provision? Are they subsumed within the concept of 

"allegations"?) The inescapable conclusion is that the qui 

tam provision does not reflect careful drafting. 

In light of this apparent lack of precision, we are hesitant 

to attach too much significance to a fine parsing of the 

syntax of S 3730(e)(4)(A). We find Section 3730(e)(4)(A) to be 

syntactically ambiguous because we are uncertain that the 

drafters of that provision focused on the difference in 

precise usage between, on the one hand, a suit based upon 

a public disclosure of an allegation or transaction and, on 

the other, a suit based upon an allegation or transaction 

and that has been publicly disclosed.9 Under these

circumstances, we think that it is best to follow the 

majority interpretation, which is much more consistent 

with the rest of the qui tam provision. We thus hold that a 

qui tam action is "based upon" a qualifying disclosure if the 

disclosure sets out either the allegations advanced in the 

_________________________________________________________________ 

9. Although we do not rely on the legislative history of the qui tam 

provision in reaching this conclusion, see Stinson, 944 F.2d at 1154, it 

is interesting that sponsors of the 1986 False Claim Act Amendments 

described it as having a meaning consistent with our holding. Senator 

Grassley, one of original Senate sponsors, in speaking of the technical 

and clarifying amendments that introduced the present language in 

S 3730(e)(4)(A), stated: 

 [J]urisdiction for qui tam actions based on information that has 

 been publicly disclosed will be limited to those people who were 

 "original sources" of the information . . . . 

132 Cong. Rec. S11238-04 (Aug. 11, 1986) (emphasis added). Similarly, 

Representative Berman, one of the sponsors of the House bill, submitted 

"legislative history" that stated in relevant part:

 Before the relevant information regarding fraud is publicly 

disclosed 

 through various government hearings, reports and investigations 

 which are specifically identified in the legislation or through the 

 news media, any person may file such an action as long as it is 

filed 

 before the government filed an action based upon the same 

 information. Once, the public disclosure of the information occurs 

 through one of the methods referred to above, then only a person 

who 

 qualifies as an "original source" may bring the action. 

132 Cong. Rec. H9382-03 (Oct. 7, 1986) (emphasis added). 

 19 
qui tam action or all of the essential elements of the qui 

tam action's claims. Because the latter condition is satisfied 

here, the qui tam action at issue was "based upon" 

qualifying disclosures and is consequently subject to the 

jurisdictional bar of S 3730(e)(4)(A) unless it is saved by the 

"original source" exception, to which we next turn.

C. "Original source" exception. Section 3730(e)(4)(A)'s 

jurisdictional bar does not apply if "the person bringing the 

action is an original source of the information." Section 

3730(e)(4)(B) (emphasis added) defines an "original source" 

as 

 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. 

Here, Mistick is not an "original source" because it did 

not have "direct and independent knowledge" of the most 

critical element of its claims, viz., that the Authority had 

made the alleged misrepresentations to HUD regarding its 

knowledge about Glid-Wall's unsuitability as a lead-based 

paint encapsulant at the time of the original specifications. 

"[A] relator who would not have learned of the information 

absent public disclosure [does] not have `independent' 

information within the statutory definition of`original 

source.' " Stinson, 944 F.2d at 1160. As previously noted, 

Mistick acknowledges that "[t]he misrepresented facts were 

discovered by Mistick in October 1993, pursuant to the 

Priselac FOIA Request." Appellant's Br. at 31. Since HUD's 

FOIA response was a qualifying public disclosure under 

S 3730(e)(4)(A), Mistick was not an original source of that 

information. While "it is not necessary for a relator to have 

all the relevant information in order to qualify as

`independent,' " Stinson, 944 F.2d at 1160, a relator cannot 

be said to have "direct and independent knowledge of the 

information on which [its fraud] allegations are based," 31 

U.S.C. S 3730(e)(4)(B), if the relator has no direct and 

independent knowledge of the allegedly fraudulent 

statements. Thus, Mistick's "original source" argument 

fails. 

 20 
III. 

In summary, we hold that Mistick's qui tam action was 

barred by 31 U.S.C. S 3730(e)(4)(A) because it was "based 

upon the public disclosure" of the relevant transactions in 

an "administrative . . . report" and "investigation" (HUD's 

search for the documents sought in the FOIA request and 

its response to that request) and in a "civil . .. hearing" 

(discovery in Mistick's state-court action) and because 

Mistick does not qualify as an "original source."10 We 

therefore affirm the decision of the District Court. 

_________________________________________________________________ 

10. In light of our disposition of these issues, we find it unnecessary to 

address the other grounds for affirmance that the defendants have 

advanced. 

 21 
BECKER, Chief Judge, dissenting: 

Judge Alito's majority opinion cuts through this 

enormously complicated area of the law in a candid and 

straightforward manner. While the result it reaches is not 

unreasonable, it is, I respectfully submit, incorrect. On the 

critical "based upon" issue, Judge Alito follows the majority 

view of other circuits. As I will explain, I would follow the 

minority view, primarily because it alone is faithful to the 

plain language of the governing statute. More particularly, 

I do not believe that the phrase "based upon," especially in 

the context in which it is found in the False Claims Act 

("FCA"), can properly be read to mean, as the majority here 

concludes, "supported by." Rather, it means"derived from" 

or "used as a basis for." I take issue with the majority's 

contention that we may avoid this plain reading of"based 

upon" because Congress was sloppy in its drafting of the 

jurisdictional bar. I also follow the minority view because I 

believe that it better reflects the policy that Congress had in 

mind in its most recent amendments to the FCA. Finally, I 

believe that the present majority is incorrect in asserting 

that a plain reading of "based upon" would render the 

"original source" exception superfluous. 

On the "public disclosure" issue, the majority feels bound 

by our prior caselaw, particularly United States ex rel. 

Stinson, Lyons, Gerlin & Bustamante, P.A. v. Prudential 

Insurance Co., 944 F.2d 1149 (3d Cir. 1991). While we are 

constrained to follow our binding precedent, I disagree with 

the majority's broad reading of Stinson, which arose in a 

very different context--civil litigation--than that involved 

here. More specifically, I believe that materials obtained 

through a FOIA request do not constitute a "public 

disclosure" under the FCA, even given our holding in 

Stinson, because a government agency's act of locating and 

duplicating records for a single FOIA requester is 

fundamentally different from the disclosure of discovery 

material in civil litigation, which includes a "presumption 

. . . of public access." Stinson, 944 F.2d at 1159.

These readings of the statute compel the conclusion that 

the jurisdictional bar does not apply in this case. First, if, 

as I believe, the FOIA material does not constitute a public 

disclosure, Mistick would not be barred from bringing its 

 22 
qui tam action, given our prior caselaw. Second, under my 

interpretation of "based upon," Mistick's qui tam action 

would not be barred if it obtained the information 

underlying its claim from a source other than a public 

disclosure. It has so alleged, and this may in fact be the 

case. Therefore, even if the FOIA material is deemed a 

public disclosure, I would still reverse the District Court's 

decision dismissing Mistick's qui tam claim and remand for 

a determination by that court whether the claim is"based 

upon," i.e., derived from, information in any public 

disclosures. Because I would reverse the District Court's 

determination that Mistick's claim is "based upon" public 

disclosures, I would not reach the question whether Mistick 

is an original source of the information in any public 

disclosures. 

So that it is fresh in our minds as we weave our way 

through this statutory maze, I rescribe the relevant 

jurisdictional bar: 

 No court shall have jurisdiction over an action under 

 this section based upon the public disclosure of 

 allegations or transactions in a criminal, civil, or 

 administrative hearing, in a congressional, 

 administrative, or Government Accounting Office 

 report, hearing, audit, or investigation, or from the 

 news media, 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. S 3730(e)(4)(A) (1994). As it will make for a more 

orderly discussion, I will first address the public disclosure 

issue. In the course of that discussion, the tenor of which 

is adumbrated above, I will explain why I believe Stinson to 

have been wrongly decided and hence a candidate, at some 

point in time, for en banc consideration. 

I. Public Disclosures 

The majority concludes that both the information in the 

state-court discovery and the product of Mistick's FOIA 

request constituted public disclosures. I am constrained to 

agree with the first of these holdings, as this was the 

precise issue decided in Stinson. However, I dissent from 

 23 
the second, as I do not believe that Stinson--even if it were 

correctly decided--inexorably leads to the conclusion that 

information obtained through a FOIA request by a single 

individual is necessarily a "public disclosure." Explication 

of my position on the FOIA issue will be informed by 

explaining at the outset my problems with Stinson's

definition of public disclosure, under which discovery 

material given to a single person in litigation between two 

private parties, and not even filed with a court, constitutes 

a "public disclosure." 

In Stinson, the panel majority reasoned that"section 

3730(e)(4) [is] designed to preclude qui tam suits based on 

information that would have been equally available to 

strangers to the fraud transaction had they chosen to look 

for it as it was to the relator." Stinson, 944 F.2d at 1155-56. 

It specifically held that "[i]nformation gleaned in litigation 

and on file in the clerk's office falls in this category," even 

if the information is actually known only to the small group 

of private litigants involved in the action in which the 

information was presented through discovery. Id. at 1156; 

see also id. at 1158 ("[D]isclosure of discovery material to a 

party who is not under any court imposed limitation as to 

its use is a public disclosure under the FCA."). 

The holding in Stinson was based in part on the fact that 

"the Local Rules of some district courts provide that the 

court may order the filing of discovery materials at the 

request of any person who has an interest in reviewing the 

materials." Id. at 1158-59. Although the panel may have 

been technically correct, this statement obscures the actual 

situation in most federal courts. In this circuit, every U.S. 

district court proscribes by local rule the filing of discovery 

material.1 The assumption that the right to seek access to 

such unfiled materials by requesting their filing, see infra 

note 2, will be availed of in any but a handful of cases 

seems blithe. First, the procedure is costly and 

cumbersome. Second, individuals unconnected with the 

_________________________________________________________________ 

1. See D. Del. R. Civ. P. 5.4(a) (providing that discovery materials 

"shall 

not be filed with the Court"); D.N.J. R. Civ. P. 26.1(c)(1) (same); E.D. 

Pa. 

R. Civ. P. 26.1(a) (same); M.D. Pa. R. Civ. P. 5.4(b) (same); W.D. Pa. R. 

Civ. P. 5.3(A) (same). 

 24 
litigation, other than the media, will generally not know of 

it or will be unmotivated to bear the cost and burden of 

pursuing the filing of such material. 

More importantly, Stinson's definition appears to me to 

encompass a much broader category of "disclosures" than 

what Congress intended to include within that term. Cf. 

United States v. Bank of Farmington, 166 F.3d 853, 861-62 

(7th Cir. 1999) ("[W]e reject the construction . . . according 

to which there is public disclosure if the allegations are 

disclosed to any single member of the public not previously 

informed thereof." (internal quotations and brackets 

omitted)); Stinson, 944 F.2d at 1169 (Scirica, J., dissenting) 

("I do not believe Congress intended to bar relators who 

obtain non-public information simply because that 

information might become public at a later time.").

Congress's primary intent in enacting the 1986 FCA 

amendments was "to enhance the Government's ability to 

recover losses sustained as a result of fraud against the 

Government." S. Rep. No. 99-345, at 1 (1986), reprinted in 

1986 U.S.C.C.A.N. 5266, 5266. As for the qui tam 

provisions of the FCA amendments, Congress's "overall 

intent" was "to encourage more private enforcement suits." 

Id. at 23-24, reprinted in 1986 U.S.C.C.A.N. at 5288-89. 

While avoiding parasitic lawsuits was clearly an additional 

goal, there is no indication that Congress sought to 

preclude the disclosure and prosecution of fraud when a 

prior, purely technical disclosure had been made. Rather, 

like Judge Scirica, "I can discern no reason why Congress 

would be concerned about information that has not yet 

been disclosed to the general public." Stinson, 944 F.2d at 

1170 (Scirica, J., dissenting). 

By precluding suits "based upon the public disclosure of 

allegations or transactions in" specific judicial, legislative, 

or administrative sources, or through the news media, 

Congress sought to ensure that no qui tam relator could 

profit from information that had become part of the public 

domain. Interpreting "public disclosure" to encompass 

information passed from one private litigant to another in 

the context of some obscure litigation may simplify our task 

of weeding out legitimate qui tam cases from parasitic ones 

(by effectively avoiding this sometimes difficult factual 

 25 
question), but it fails to serve Congress's primary goals of 

encouraging disclosure and aiding prosecution of fraud on 

the government. There is no assurance that information 

about a fraud on the government, contained in privately 

disclosed discovery material (which will always constitute a 

"public disclosure" under Stinson), will either come to the 

government's attention or will lead to a private qui tam 

action. I agree with Judge Scirica's observation that 

"Congress drew the line at the point of actual public 

disclosure because it felt that this rule would bring the 

most fraud to light without engendering unnecessary suits." 

Id. at 1171 (Scirica, J., dissenting). 

Although I think Stinson's reading of "public disclosure" 

is likely too broad and should be reconsidered by this court 

en banc, I also believe that materials obtained through a 

FOIA request are easily distinguishable from the discovery 

material deemed a public disclosure in Stinson. In contrast 

with Stinson, we recently held that a county government 

report filed with the federal government is not a public 

disclosure. See United States ex rel. Dunleavy v. County of 

Del., 123 F.3d 734, 745-46 (3d Cir. 1997). Distinguishing 

our holding in Stinson, we noted the danger of extending 

"Stinson's `potential availability' standard . . . to the 

context" of administrative reports. Id. at 746 n.14. I think 

that the reasoning behind Stinson and our decision in 

Dunleavy lead to the conclusion that the FOIA material at 

issue here is not a public disclosure. 

First, it is clear that under Dunleavy, the simple fact that 

information subject to a FOIA request is potentially 

available to interested parties is insufficient to render it a 

"public disclosure." If this were the case, the information in 

Dunleavy, which the defendant had provided to a federal 

government agency, would have constituted a "public

disclosure." More importantly, there is a clear distinction 

between discovery materials, which carry a "presumption 

. . . of public access," and the information contained in a 

FOIA request, which is provided to a single requester who 

is under no obligation to disclose this material to any other 

members of the public. This distinction can be seen by 

comparing the rules governing discovery with the statutory 

and regulatory provisions governing Mistick's FOIA request. 

 26 
Local court rules often provide that while discovery 

material should not be filed with the court, see supra note 

1, such material may under certain circumstances befiled. 

In this circuit, each U.S. district court also has rules 

governing filing and access to discovery materials.2 In 

Stinson, the qui tam claimant argued that discovery

material was not a "public disclosure" precisely because it 

need not be filed with the court. See Stinson, 944 F.2d at 

1158. As noted above, however, the panel rejected this 

argument, responding: 

 We do not think that it is significant, for purposes of 

 interpreting the "public disclosure" provision of the 

 FCA, whether the discovery has in fact been filed. Due 

 to the large volume of discovery materials, many 

 district courts have adopted local rules which provide 

 that discovery materials should not be filed with the 

 court except by order of the court. Such local rules do 

 not generally preclude access by interested persons to 

 nonfiled material. In fact, the Local Rules of some 

 district courts provide that the court may order the 

 filing of discovery materials at the request of any 

 person who has an interest in reviewing the materials. 

Id. at 1158-59 (emphasis added) (footnote omitted). The 

panel reiterated this point in its conclusion: "To 

recapitulate, the presumption under Rule 5(d) of public 

access to civil discovery that is not subject to a protective 

order leads us to conclude that information received as a 

result of such discovery should be deemed based on a 

`public disclosure' for purposes of the FCA jurisdictional 

bar." Id. at 1159-60. 

_________________________________________________________________ 

2. See D. Del. R. Civ. P. 5.4(c)-(e) (providing for filing when necessary 

for 

use before, during, or after trial, or on motion of the court or any 

party, 

or "on application by a non-party"); D.N.J. R. Civ. P. 26.1(c)(1) 

(providing 

for filing of discovery materials "when needed in a particular pretrial 

proceeding or upon order of the Court"); E.D. Pa. R. Civ. P. 26.1(e) 

(providing for filing of discovery materials on motion of the court or of 

any party, "or on application by a non-party"); M.D. Pa. R. Civ. P. 

5.4(c)- 

(e) (providing for filing of materials under certain circumstances); W.D. 

Pa. R. Civ. P. 5.3(E) (providing for filing of discovery materials "in the 

usual course in any case where any person shall file an affidavit with the 

clerk that he has a genuine interest in reading the material"). 

 27 
While I have taken issue with the conclusion that the 

Stinson majority drew from this potential availability of 

discovery materials, see supra at 24-25, it is clear that 

such material is far more publicly accessible than is the 

material obtained under a FOIA request. FOIA expressly 

provides that records furnished in response to a FOIA 

request are to be made "available for public inspection and 

copying" only when the relevant agency determines that, 

"because of the nature of their subject matter, .. . [the 

records] have become or are likely to become the subject of 

subsequent requests for substantially the same records." 5 

U.S.C. S 552(a)(2)(D) (1994 & Supp. II 1996). Otherwise, 

such records are provided only to the individual FOIA 

requester. Further, nothing in FOIA would require the FOIA 

recipient to share the fruits of his request with other 

members of the public. 

Although S 552(a)(2)(D) was added in 1996, 3 after Mistick 

made its FOIA request, nothing in FOIA at the time of 

Mistick's request would have required HUD (or Mistick) to 

make the materials provided through the request available 

to other members of the public. Additionally, in enacting 

the 1996 amendment, Congress did not intend to make

most materials disclosed through a FOIA request 

presumptively accessible to the general public, but was 

only ensuring broad access to "previously-released records 

on a popular topic, such as the assassinations of public 

figures." H.R. Rep. No. 104-795, at 21 (1996), reprinted in 

1996 U.S.C.C.A.N. 3448, 3464. In fact, since enactment of 

S 552(a)(2)(D), HUD has not amended its own regulations 

governing FOIA requests, as it apparently does not 

anticipate fulfilling very many FOIA requests that are likely 

to become the subject of subsequent, substantially similar 

requests. See 24 C.F.R. S 15.12(a)(1)-(3) (1998) (providing 

that HUD will make available for public inspection and 

copying three of the four categories of material included in 

5 U.S.C. S 552(a)(2), failing to include material listed in 

S 552(a)(2)(D)). 

Therefore, unlike most discovery material, no member of 

_________________________________________________________________ 

3. See Electronic Freedom of Information Act Amendments of 1996, Pub. 

L. No. 104-231, S 4(5), 110 Stat. 3048, 3049. 

 28 
the public has a right of access to information that another 

person obtained through a FOIA request--nor can anyone 

seek an order compelling a FOIA recipient himself to 

"publicly disclose" material obtained through his FOIA 

request. Of course, other members of the public may

themselves file a FOIA request seeking the same 

information, but this does not depend on, nor change the 

nature of, the material released through the prior FOIA 

request by a single citizen. And of course the information 

remains in the government's files, but under Dunleavy, this 

is insufficient to turn these records into a "public 

disclosure." See Dunleavy, 123 F.3d at 746. 

In Dunleavy, we held that the list of enumerated sources 

in S 3730(e)(4)(A) "constitutes an exhaustive rendition of the 

possible sources" of a public disclosure. Id. at 744. The 

only enumerated sources that could be apposite here are 

an "administrative . . . report" or an "administrative . . . 

investigation." The majority concludes that an agency's act 

of fulfilling a FOIA request satisfies this source 

requirement, as both an administrative report and an 

administrative investigation. I think that this conclusion 

also is incorrect. FOIA requires federal agencies to search 

their records "for the purpose of locating those records 

which are responsive to a request." 5 U.S.C.S 552(a)(3)(D) 

(1994 & Supp. II 1996). It does not compel an agency to 

"investigate" a request, in the sense that an agency of the 

federal government normally investigates such things as 

allegations of fraud, crimes, or other wrongdoing. Rather, 

the Act simply forces agencies to "make [their] records 

promptly available," upon request. Id. S 552(a)(3)(A); see 

also 24 C.F.R. S 15.14(g)(2) (1998) (under HUD regulation 

governing costs of FOIA requests, "search" is defined as 

"time spent looking for material that is responsive to a 

request"). The Act is essentially a mechanism for 

duplicating records that are in the possession of the federal 

government and that are not otherwise excludable from 

members of the public. Thus, there is no "administrative 

. . . investigation." 

Further, the duplication can hardly be described as an 

"administrative . . . report." There is no analysis, summary, 

conclusion, or other content to "report" to the FOIA 

 29 
requester. Rather, the actual records themselves, with 

possible redactions, are merely duplicated and provided to 

the FOIA requester. See 5 U.S.C. S 552(a)(4)(A) (1994); see 

also 24 C.F.R. S 15.14(a) (1998) (listing fees for HUD's 

fulfilling of FOIA requests through the "reproduction or 

duplication of documents"). Again, I believe that the 

majority strains to read the phrases "investigation" and 

"report" to encompass a government agency's rudimentary 

act of locating and duplicating requested records. Under 

this analysis, the methodological requirements for 

establishing the jurisdictional bar are not met. 

We held in Dunleavy that public disclosures bar a qui 

tam action only if the disclosures include both the

misrepresented state of facts and the true state of facts. See 

Dunleavy, 123 F.3d at 741. The majority concludes that the 

misrepresented state of facts (i.e., that the defendants did 

not know of the problem with Glid Wall until 1990) was 

disclosed in the FOIA material and that the true state of 

facts (i.e., that the defendants knew of the Glid Wall 

problem as early as 1987) was revealed in the state-court 

action, meeting the requirements for a public disclosure. 

Although I am constrained to agree with the majority's 

conclusion that (under our holding in Stinson) the discovery 

material in this case constitutes a public disclosure, 

because I would find that the FOIA material--the source of 

the misrepresented facts--is not a public disclosure, I 

would hold that Mistick's claim is not jurisdictionally 

barred. 

II. "Based Upon" 

Although my view of the FOIA materials would, in and of 

itself, require reversal of the District Court's dismissal of 

Mistick's claim, I address the "based upon" issue, as it is a 

critical issue, and one on which I believe the majority has 

reached a manifestly incorrect conclusion. Courts have 

differed on the proper interpretation of this phrase. 

Compare, e.g., United States ex rel. Findley v. FPC-Boron 

Employees' Club, 105 F.3d 675, 682-85 (D.C. Cir.) (holding 

that a qui tam action is based upon public disclosures if it 

relies on the same allegations or transactions as those in 

the public disclosure), cert. denied, 118 S. Ct. 172 (1997), 

 30 
with United States ex rel. Siller v. Becton Dickinson & Co., 

21 F.3d 1339, 1347-49 (4th Cir. 1994) (holding that a qui 

tam action is based upon public disclosures only if it 

"actually derived [its] allegations" from the public 

disclosures). So have commentators. ARTICLES 

FOOTNOTECompare Robert Salcido, Screening Out 

Unworthy Whistleblower Actions, 24 Pub. Cont. L.J. 237, 

272-79 (1995) (advocating broad view of "based upon"), 

with Gary W. Thompson, A Critical Analysis of Restrictive 

Interpretations Under the False Claim Act's Public Disclosure 

Bar, 27 Pub. Cont. L.J. 669, 697-705 (1998) (advocating 

plain reading of "based upon"), and Robert L. Vogel, The 

Public Disclosure Bar Against Qui Tam Suits, 24 Pub. Cont. 

L.J. 477, 499-501 (1995) (same). 

In view of this literature, I will not describe the debate at 

length here. I will, however, explain why I find more 

persuasive the view that a qui tam plaintiff is barred from 

bringing his claim only when he has derived his 

information regarding the allegations or transactions 

underlying his cause of action from public disclosures. 

A. The Contending Views of "Based Upon" 

The first court of appeals to adopt a plain reading of 

"based upon" was the Fourth Circuit, in an opinion by 

Judge Luttig. The court noted that the "reading of `based 

upon' as meaning `derived from' is the only fair 

construction of the statutory phrase." Siller, 21 F.3d at 

1348. It therefore held that "a relator's action is `based 

upon' a public disclosure of allegations only where the 

relator has actually derived from that disclosure the 

allegations upon which his qui tam action is based." Id. The 

court also noted that its reading was not only the most 

logical reading of the statute's plain text, but also 

effectuated Congress's goal of precluding "parasitic" suits 

by non-whistleblowers attempting to take advantage of 

public disclosures: "[I]t is self-evident that a suit that 

includes allegations that happen to be similar (even 

identical) to those already publicly disclosed, but[that] 

were not actually derived from those public disclosures, 

simply is not, in any sense, parasitic." Id. 

 31 
The contrasting view is explicated in Judge Wald's 

decision for the D.C. Circuit in Findley. In addition to 

claiming that the Fourth Circuit's interpretation of"based 

upon" rendered the "original source" exception superfluous, 

the court in Findley considered the legislative history of the 

FCA. See Findley, 105 F.3d at 683-84. It expressed its 

belief that Congress, in the 1986 amendments, "changed 

the focus of the jurisdictional bar from evidence of fraud 

inside the government's overcrowded file cabinets to fraud 

already exposed in the public domain." Id. at 684. 

The majority today agrees with Findley's reading of

"based upon" and rejects Siller's plain reading of the 

jurisdictional bar. It cites two justifications for doing so: (1) 

because Congress was sloppy in choosing the language of 

the jurisdictional bar, we should not give this text its plain 

meaning, and (2) the plain reading of "based upon" renders 

the "original source" exception superfluous. See Maj. Op. at 

15-16. I take up each of these contentions below, after a 

discussion of the Act's plain meaning. I conclude by 

considering whether the plain reading of the text 

adequately fulfills Congress's goals in the 1986 

amendments. 

B. The Plain Meaning of "Based Upon" 

The Supreme Court has repeatedly explained that 

recourse to legislative history or underlying legislative 

intent is unnecessary when a statute's text is clear and 

does not lead to an absurd result. See, e.g., Darby v. 

Cisneros, 509 U.S. 137, 147 (1993) ("Recourse to the 

legislative history of [a provision of the APA] is unnecessary 

in light of the plain meaning of the statutory text."); see 

also Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 

523 U.S. 26, 37 (1998) ("The language is straightforward, 

and with a straightforward application ready to hand, 

statutory interpretation has no business getting 

metaphysical."); Rubin v. United States, 449 U.S. 424, 429- 

30 (1981) ("We begin by looking to the language of the Act. 

. . . When we find the terms of a statute unambiguous, 

judicial inquiry is complete, except in rare and exceptional 

circumstances." (internal quotations omitted)). The Court 

has instructed us to begin with a statute's text when 

 32 
discerning its meaning, and to "assume that the legislative 

purpose is expressed by the ordinary meaning of the words 

used." United States v. James, 478 U.S. 597, 604 (1986) 

(internal quotation omitted). 

As the Fourth Circuit said in Siller, "Section 

3730(e)(4)(A)'s use of the phrase `based upon' is. . . 

susceptible of a straightforward textual exegesis. To `base 

upon' means to `use as a basis for.' " 21 F.3d at 1348 

(quoting Webster's Third New International Dictionary 180 

(1986)). I agree with this plain reading of the phrase "based 

upon" and further concur with Siller's conclusion that there 

is no usage, "let alone a common one or a dictionary 

definition, that suggests that `based upon' can mean 

`supported by.' " Id. at 1349. 

Other federal statutes and case law support my plain 

reading of the phrase "based upon." For example, an

exception to the Foreign Sovereign Immunities Act of 1976 

allows a plaintiff to bring suit against a foreign government 

in any case "in which the action is based upon a 

commercial activity carried on . . . by the foreign state." 28 

U.S.C. S 1605(a)(2) (1994). In Saudi Arabia v. Nelson, 507 

U.S. 349 (1993), the plaintiff had allegedly been tortured 

and beaten by Saudi Arabian law enforcement officers in 

retaliation for his complaints about safety problems at a 

Saudi hospital at which he worked. See id. at 352-53. He 

brought an action against the Saudi government, 

contending that his claim was "based upon a commercial 

activity" of that government because he was recruited to 

work at its hospital, signed an employment contract with 

the government to work at the hospital, and was actually 

employed by the government to work there. 

In determining whether the action was "based upon a

commercial activity," the Supreme Court first noted: 

 Although the Act contains no definition of the phrase 

 "based upon," and the relatively sparse legislative 

 history offers no assistance, guidance is hardly 

 necessary. In denoting conduct that forms the `basis,' 

 or `foundation,' for a claim, the phrase is read most 

 naturally to mean those elements of a claim that, if 

 proven, would entitle a plaintiff to relief under his 

 theory of the case. 

 33 
Id. at 357 (citing Black's Law Dictionary, Random House 

Dictionary, and Webster's Third New International 

Dictionary). The Court then held that, "where a claim rests 

entirely upon activities sovereign in character, . .. 

jurisdiction will not exist under that clause regardless of 

any connection the sovereign acts may have with 

commercial activity." Id. at 358 n.4. Because the 

recruitment, contract signing, and employment at the 

hospital, all admittedly commercial in character,"[were] not 

the basis for the Nelsons' suit," the action was not based 

upon a commercial activity of the foreign government. Id. at 

358; see also id. at 364 (White, J., concurring in judgment) 

(agreeing with the majority that the recruiting and hiring of 

the plaintiff was " `not the basis for the Nelsons' suit,' for it 

is unrelated to the elements of [their] complaint" (citation 

omitted)). 

The commercial activities may have provided the 

background for the complaint and have had a "connection" 

to the sovereign acts that the claim was based upon, but 

the action was not derived from these commercial activities; 

rather, the action was derived from the tortious acts of 

foreign government officials. Therefore, it was not "based 

upon" commercial activities of the foreign government. 

Similarly, in the FCA context, I believe that "guidance is 

hardly necessary." While public disclosures will typically 

have some connection to the allegations in a relator's 

complaint, in the sense that the disclosures and the 

allegations in the complaint are similar, the latter cannot 

be said to be "based upon" the former when the complaint 

"rests upon" allegations contained in some other (nonpublicly disclosed) source. 

Judicial use of the words "based upon" also supports my 

reading of this simple phrase. For example, in the context 

of the "independent source" exception to the exclusionary 

rule, evidence is not excluded if it is derived from some 

source other than the tainted search or identification. The 

Supreme Court has described the government's burden in 

such a situation as proving that evidence introduced at trial 

was "based upon" some source other than the illegal one, or 

that "the evidence to which instant objection is made has 

[not] been come at by exploitation of that illegality [but] 

 34 
instead by means sufficiently distinguishable to be purged 

of the primary taint." United States v. Wade , 388 U.S. 218, 

241 (1967) (internal quotation omitted). The Court's use of 

the phrase "based upon" in Wade, to mean "come at by 

exploitation of," is consistent with my plain reading of 

"based upon" in the FCA. If a qui tam action exists only by 

exploitation of publicly disclosed allegations or 

transactions, it falls within the jurisdictional bar. If, on the 

other hand, knowledge of the allegations or transactions at 

the heart of a qui tam claim was obtained through"means 

sufficiently distinguishable to be purged of the primary 

taint" of the public disclosures, the bar should not apply.4 

In the present case, the majority finds that a qui tam 

action that relies on information that is similar to that 

which has been publicly disclosed is ineluctably"based 

upon" the public disclosures, even though the qui tam 

relator has not "come at [this information] by exploitation 

of " the public disclosures, or "substantially copied" its 

information from the public disclosures. I find that this 

reading flies in the face of the plain meaning of"based 

upon," as indicated by its usage in common parlance, in 

other statutes, and in judicial opinions. It is noteworthy 

that the majority does not take issue with this plain 

meaning discussion. Indeed, it implicitly concedes its 

efficacy, though not its overwhelming force. I now turn to 

the majority's efforts to blunt the pellucid text of the FCA 

by reference to Congress's sloppy drafting and the alleged 

undermining of the "original source" exception by this plain 

reading of the statute. I then examine the purpose and 

policy undergirding the qui tam statute, which inform the 

varying interpretations of "based upon." But on the basis of 

the plain meaning alone, I would find that the jurisdictional 

_________________________________________________________________ 

4. My plain reading of "based upon" finds support in still other fields. 

For 

example, under copyright law, a "derivative" work is defined as one that 

is "based upon one or more preexisting works," 17 U.S.C. S 101 (1994), 

a definition that has been read as requiring that the derivative work be 

"substantially copied from a prior work." 1 Melville B. Nimmer & David 

Nimmer, Nimmer on Copyright S 3.01, at 3-3 (1997) (emphasis omitted). 

In other words, if the latter work is similar to the preexisting one, but 

is 

not copied substantially therefrom, it is not "based upon" that 

preexisting work. 

 35 
bar does not apply to a qui tam claim that is not derived 

from public disclosures. 

C. Congress's Sloppy Drafting 

The majority claims that we may ignore the plain 

meaning of S 3730(e)(4)(A) because it "does not reflect 

careful drafting or a precise use of language." Maj. Op. at 

18.5 The majority lists a number of minor drafting problems 

in support of its argument. For example, it notes the 

mistaken identification of the General Accounting Office (or 

"GAO") as the "Government Accounting Office,"6 the use of 

the phrase "hearing" when the broader concept of "trial" 

was clearly intended, and the preclusion of jurisdiction over 

qui tam "actions," when such actions may contain many 

"claims," some of which are "based upon" public 

disclosures and others which are not. The majority's 

reliance on Congress's alleged sloppiness appears to be a 

different way of saying that "the language of the statute is 

ambiguous," thereby giving us license to "consider the 

structure and context of the ambiguous language," Findley, 

105 F.3d at 683, rather than giving it its plain meaning. 

_________________________________________________________________ 

5. This is hardly a new phenomenon. Congress regularly lapses into 

sloppy drafting, as has been frequently noted by courts. See, e.g., H.J. 

Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249 (1989) ("RICO may 

be a poorly drafted statute; but rewriting it is a job for Congress, if it 

is 

so inclined, and not for this Court."); Lansford-Coaldale Joint Water 

Auth. 

v. Tonolli Corp., 4 F.3d 1209, 1221 (3d Cir. 1993) (noting that CERCLA 

is "notorious for its lack of clarity and poor draftsmanship"); Cvikich v. 

Railroad Retirement Bd., 860 F.2d 103, 104 (3d Cir. 1988) (giving a 

provision of the Railroad Retirement Act its plain meaning, despite its 

"poor draftsmanship"). Yet we interpret these poorly drafted statutes as 

best we can, and "assume that in drafting legislation, Congress says 

what it means." Sundance Assocs., Inc. v. Reno, 139 F.3d 804, 809 (10th 

Cir. 1998). 

6. The drafter who made this error was likely confused by the 

appellations of the Government Printing Office, which publishes 

government reports, and the General Accounting Office, which performs 

government audits. I note that both reports and audits of the 

"Government Accounting Office" are listed as public disclosures in 

S 3730(e)(4)(A). 

 36 
I find this argument unpersuasive because, whether or 

not Congress was sloppy in its choice of certain words, 

there is nothing ambiguous about the phrase "based upon," 

and its interpretation requires no "fine parsing of the 

syntax of S 3730(e)(4)(A)." Maj. Op. at 19. As for the 

majority's examples of Congress's sloppiness, it certainly 

was reasonable for Congress to use the general phrase, 

"criminal, civil, or administrative hearing," if it intended to 

include under this aegis criminal or civil trials. Its choice of 

words could easily reflect not imprecise drafting, but an 

attempt to broadly encompass criminal, civil, or 

administrative proceedings, without listing every possibility, 

such as criminal pre-trial hearings, criminal trials, 

sentencing hearings, civil discovery proceedings, civil trials, 

appellate hearings, administrative hearings, etc. 

The majority gives no indication of the origin of the GAO 

mistake, and it is possible that it was simply a transcribing 

problem or a mistake by a single staff person that escaped 

detection. Courts have frequently referred to the General 

Accounting Office as the Government Accounting Office, a 

reasonable mistake on which I believe the majority places 

more emphasis than it deserves. See, e.g., Adams v.

Hinchman, 154 F.3d 420, 421 (D.C. Cir. 1998) (referring to 

the "Government Accounting Office" in a Fair Labor 

Standards Act case brought by federal employees), cert. 

denied, 119 S. Ct. 2046 (1999); Dunleavy, 123 F.3d at 745 

("We take notice of the fact that Congress and the 

Government Accounting Office are entities of our federal 

government."). 

In addition, Congress has previously made the same 

mistake, and corrected it when its error was discovered. 

Compare Resolution Trust Corporation Refinancing, 

Restructuring, and Improvement Act of 1991, Pub. L. No. 

102-233, S 106(d), 105 Stat. 1761, 1764 (adding new

subsection (k)(11)(B) to 12 U.S.C. S 1441a, requiring the 

Resolution Trust Corporation to report to certain 

congressional committees "[t]he total number of individuals 

performing services for the Corporation as an employee of 

. . . the Government Accounting Office"), with Housing and 

Community Development Act of 1992, Pub. L. No. 102-550, 

S 1611(d)(3)(B), 106 Stat. 3672, 4091 (amending 

 37 
S 1441a(k)(11)(B), to replace "Government Accounting 

Office" with "General Accounting Office").7 The majority 

cannot be suggesting that courts should have ignored the 

plain meaning of the entire Resolution Trust Corporation 

Refinancing, Restructuring, and Improvement Act of 1991, 

simply because of the misidentification of the GAO in one 

part of that enactment. 

Finally, as with its misnaming of the GAO, Congress's 

use of a broad term such as "action" (or "case") when the 

more limited "claim" might be more appropriate is far from 

unprecedented. See, e.g., Wisconsin Dep't of Corrections v. 

Schacht, 118 S. Ct. 2047, 2054 (1998) ("Conceivably, one 

might also read [28 U.S.C. S 1447(c)'s] reference to `case,' to 

include a claim within a case as well as the entire case."). 

As noted supra note 5, however, our ultimate task is to 

effectuate Congress's intent, as demonstrated first and 

foremost by the language it has employed, even if that 

language is less than precise. 

Most importantly, as I discuss infra Part II.E, even if the 

language of the FCA is imprecise or ambiguous, thereby 

justifying resort to legislative intent, Congress's intent is 

better effectuated by the narrow reading of "based upon." 

Suffice it to say here that I find unavailing the majority's 

attempt to avoid the plain meaning of this phrase on the 

ground that Congress was being sloppy at the time it 

codified the relevant statutory provision. 

D. Does a Plain Reading of "Based Upon" Render the 

 "Original Source" Exception Meaningless? 

The majority adopts the view of the D.C. Circuit that the 

plain reading of "based upon" renders the"original source" 

exception superfluous, a result we should try to avoid. See 

_________________________________________________________________ 

7. Apparently, the leading newspapers in our nation's capital are also not 

immune to the problem of misnaming the GAO. A search of the relevant 

Westlaw databases produced 128 articles from the Washington Post over 

the past fifteen years in which the GAO was mistakenly identified as the 

"Government Accounting Office," and 48 articles from the Washington 

Times over the past nine years in which the same mistake was made. On 

the other hand, the papers correctly identified the GAO thousands of 

times during these periods. 

 38 
Maj. Op. at 15-16. In Findley, Judge Wald posited an 

example of a relator who "independently" investigated a 

fraud after reading about it in the Washington Post or 

Washington Times in order to qualify as an original source 

despite the fact that the hypothetical relator's claim was 

derived from a public disclosure. See Findley, 105 F.3d at 

683. It is clear, however, that the present relator, Mistick, 

is nothing like the opportunistic and parasitic relator 

conjured up by Judge Wald. Rather, Mistick plausibly 

alleges (but has not had the opportunity to prove) that it 

learned of defendants' fraud well before it was "publicly 

disclosed" in state-court litigation (not in a widely 

circulated newspaper). Thus, Judge Wald's bellwether 

example is so extreme as to undermine her position.

Under the plain reading of "based upon," it is true that a 

relator whose claim is derived entirely from public

disclosures cannot be an original source because the entire 

claim is "dependent" on the public disclosures, and a 

fortiori the relator does not have "independent" knowledge 

of any elements of his claim. While it is entirely possible 

that Congress, in enacting the complex and overlapping 

amendments to the FCA in 1986, failed to foresee that its 

new "based upon" language could render the"original

source" exception superfluous, this provides scant basis for 

our failing to give effect to plain congressional language. 

Ironically, the majority implies that the same Congress 

whose sloppy drafting it invokes to justify ignoring the 

FCA's plain meaning would have been careful (or 

sufficiently astute) to avoid enacting an original source 

exception that has subtle, and perhaps unintended, 

interactions with the jurisdictional bar in S 3730(e)(4)(A). 

But even under the plain reading of "based upon," I believe 

that there are at least two situations in which the original 

source exception will assist a relator whose claim is (or 

appears to be) derived from public disclosures. 

First, in Stinson, the majority observed that, 

"[u]ndoubtedly, it is not necessary for a relator to have all 

the relevant information in order to qualify as 

`independent.' " Stinson, 944 F.2d at 1160; see also United 

States ex rel. Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 

645, 657 (D.C. Cir. 1994) (holding that a relator, to be an 

 39 
original source, need have "direct and independent 

knowledge of any essential element of the underlying fraud 

transaction"). Just as the Stinson majority assumed that an 

original source need not have independent knowledge of all 

elements of his claim, it is possible that a qui tam claim 

need not be derived entirely from public disclosures to fall 

under the "based upon" jurisdictional bar, as long as some 

essential element of the qui tam claim is derived from 

public disclosures. A number of courts have so held, 

though I take no position here on this complex question. 

See, e.g., Farmington, 166 F.3d at 863 (holding that a claim 

is "based upon" a public disclosure "[i]f the public 

disclosure from which the information is actually derived is 

essential to a qui tam claim"); cf. United States ex rel. 

Precision Co. v. Koch Indus., 971 F.2d 548, 552 (10th Cir. 

1992) (holding that "an FCA qui tam action even partly 

based upon publicly disclosed allegations or transactions is 

nonetheless `based upon' such allegations or transactions"). 

Under this view, a relator who is barred because he has 

derived some of his fraud information from a public

disclosure may still bring the claim as an original source if 

he has direct and independent knowledge of some other 

essential element of the claim. 

Second, my view of "based upon" would admittedly 

require a factual inquiry into the basis of a qui tam relator's 

allegations. Whenever there were public disclosures

revealing both the true and the misrepresented facts, a 

defendant would no doubt claim that the relator derived his 

information from these disclosures. In response, it may be 

easier for the relator to establish himself as an"original 

source" of the information than to successfully disprove a 

causal link between the public disclosures and his qui tam 

claim. The original source exception would sometimes be 

invoked by a relator with a claim that is not technically 

derived from public disclosures, but that is difficult to 

separate from those disclosures. This would be particularly 

true in the case of widely publicized disclosures, such as 

those in Judge Wald's example. If the relator in her 

example had prior direct knowledge of the fraud allegations 

revealed in the newspaper articles, but failed tofile suit 

until after the articles appeared (a scenario quite similar to 

Mistick's), it may well be easier for that relator to simply 

 40 
identify its prior "original source" of the information than to 

prove that its qui tam action is not causally linked with the 

very public disclosures. 

The majority has sought to discredit the foregoing 

analysis. The majority's response inevitably has some force, 

but that is so because minor, unintended consequences 

may result from our effectuating the plain meaning and 

evident intent of a complex federal statute. But only my 

reading of the jurisdictional bar gives effect to (and fulfills 

Congress's intent regarding) both the "based upon" 

language and the "original source" exception, without 

ignoring the plain meaning of either phrase. The intent of 

the "original source" exception is to allow one who

contributes valuable, first-hand information regarding a 

fraud on the government to bring a qui tam action whether 

or not that information (or possibly other information 

related to the fraud) was publicly disclosed, and whether or 

not that relator can prove that his claim is not derived from 

these disclosures. The "based upon" requirement is 

intended to foreclose parasitic qui tam suits that derive 

their claim from publicly disclosed information. Taken 

together, these two requirements will bar actions by 

relators who piggyback on public disclosures and cannot 

demonstrate that they have contributed any useful (i.e., 

independent and direct) information regarding a fraud on 

the government. 

E. Purpose of Qui Tam Actions 

1. Legislative Intent 

Even if I were to ignore the plain meaning of the FCA and 

to instead look to Congress's alleged intent in amending the 

statute in 1986, I believe that my reading of "based upon" 

more fully effectuates all of Congress's goals. Congress had 

three primary aims in enacting the 1986 amendments: (1) 

encouraging those with information regarding frauds on the 

government to disclose this information; (2) discouraging 

parasitic qui tam actions that simply take advantage of 

information already in the public domain; and (3) assisting 

--and prodding--the government to act upon information 

 41 
that it had been (or is being) defrauded. See S. Rep. No. 99- 

345, at 1-8, 23-24 (1986), reprinted in 1986 U.S.C.C.A.N. 

5266, 5266-73, 5288-89; cf. Thompson, supra, at 693

("Congress not only wanted to expose fraud but also wanted 

to encourage the use of nongovernmental resources to 

activate and advance qui tam cases to prosecution."). My 

interpretation of "based upon" effectuates all three of these 

goals, while the view adopted by the majority in this case 

will in many situations only advance the first goal. 

Initially, I note that it is only the hair-trigger invocation 

of the jurisdictional bar, created by our precedent in 

Stinson, that renders the strained interpretation of "based 

upon" even arguably necessary. Under Stinson , the phrase 

"public disclosure" is something of a misnomer. While it 

may conjure up images of a widely disseminated piece of 

information or something divulged at a press conference, it 

includes information revealed to a small number of 

persons, such as evidence disclosed to a single litigant 

through unfiled state-court discovery (or, under the 

majority's holding today, information obtained from a single 

FOIA request). See supra Part I. Therefore, a "public 

disclosure" will exist in a great number of qui tam cases, 

foreclosing all actions "based upon" these disclosures if not 

brought by an original source. 

In the paradigmatic whistleblower case, the varying

interpretations of "based upon" will usually lead to the 

same result. When a public disclosure is widely 

disseminated, such as through a filing in a highly 

publicized legal case or in a press conference by a

whistleblower or the government agency involved, the 

information regarding the fraud will have been brought 

forth, anyone who is not an original source will almost 

certainly be prevented from demonstrating that their claim 

was not derived from the highly publicized public 

disclosure, and the government will be hard pressed to sit 

on the information that it was defrauded, given the

publicity. 

However, in the case of a "public disclosure" in legal 

construct only, the different interpretations of"based upon" 

will lead to varying results, and, I contend, the plain 

reading of "based upon" will most fully effectuate all of the 

 42 
goals Congress sought to advance in the 1986 

amendments. The argument that a broad reading of"based 

upon" most fully effectuates Congress's intent to preclude 

parasitic suits "ignores the reality that the term `public 

disclosures' encompasses disclosures that receive all 

different degrees of publicity, reaching audiences ranging 

from one person to millions of people." Vogel, supra, at 513. 

When allegations have been "publicly disclosed" under 

Stinson's broad interpretation of this phrase, but have been 

revealed to few people, rather than "millions of people," the 

purpose of the FCA is best fulfilled by encouraging those 

who discover the information through some other source to 

bring suit. This can be seen from our decision in Stinson, 

and in the majority's holding today that information 

obtained through a FOIA request is a "public disclosure." In 

both cases, if the narrow group of individuals (as few as 

one) who are privy to these "disclosures" decide to keep 

them secret, at least two purposes of the FCA--encouraging 

the disclosure of fraud, and prodding and/or assisting the 

government in prosecuting this fraud--will be furthered 

only if another individual who discovers the fraud through 

some other means is allowed to bring a qui tam action. 

2. Legislative History 

While disclaiming reliance on legislative history, see Maj. 

Op. at 19 n.9, the majority cites two statements by FCA 

sponsors in support of its argument. However, as this court 

has previously noted, statements can easily be found 

pointing in opposite directions when it comes to the FCA's 

legislative history. See Stinson, 944 F.2d at 1154 ("The bill 

that eventuated in the 1986 amendments underwent 

substantial revisions during its legislative path. This 

provides ample opportunity to search the legislative history 

and find some support somewhere for almost any 

construction of the many ambiguous terms in thefinal 

version."). 

The D.C. Circuit in Findley purported to rely more 

extensively on legislative history, arguing that, in changing 

the jurisdictional bar of the FCA from claims "based upon 

evidence or information in the possession of the United 

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States" to those "based upon the public disclosure of 

allegations or transactions," Congress altered the focus of 

the bar from information in the government's possession to 

"fraud already exposed in the public domain." Findley, 105 

F.3d at 684. More precisely, however, what Congress

intended was to change the focus from information in the 

government's possession to information that is sufficiently 

publicly disclosed to bring the fraud to the government's 

attention and to spur it into acting upon the information. 

If Congress had the intent claimed by the Findley court, 

it could simply have substituted in the jurisdictional bar 

the phrase "information that has been publicly disclosed" 

for "information in the possession of the United States." The 

statute would then have read, in relevant part,"No court 

shall have jurisdiction over an action under this section 

based upon evidence or information that has been publicly 

disclosed in a criminal, civil, or administrative hearing, 

[etc.] . . . ." Instead, Congress completely changed the focus 

of the key phrase "based upon," eliminating a structure in 

which the phrase referred to "evidence or information," and 

creating one in which it referred to "public disclosure of 

allegations or transactions." The actual statute now reads, 

"No court shall have jurisdiction over an action under this 

section based upon the public disclosure of allegations or 

transactions in a criminal, civil, or administrative hearing, 

[etc.] . . . ." 

There is a fundamental difference between a claim that is 

based upon certain information that has been publicly 

disclosed, and a claim that is based upon certain 

enumerated public disclosures. This difference evinces an 

intent to focus not broadly on information in the public 

domain, but narrowly on the specific public disclosures 

that contain the information. The Findley court interpreted 

"based upon" as if Congress chose to make the former 

change--precluding suits based upon certain information-- 

rather than the change it actually made, in which"based 

upon" refers to certain disclosures. While this change in 

focus is not conclusive in and of itself, I believe the D.C. 

Circuit's misreading of this substantial change undercuts 

its argument regarding Congress's intent. 

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F. Summary 

In sum, I do not believe we can escape the plain meaning 

of the phrase "based upon" in the FCA's jurisdictional bar. 

There is no justification for giving this phrase a convoluted 

reading that not only ignores its plain meaning, but that 

also extends Stinson's error of interpreting the jurisdictional 

bar so as to foreclose virtually all qui tam suits that do not 

fit within the mold of the paradigmatic 

insider/whistleblower case. The plain meaning most 

effectively fulfills Congress's intent, and does so without 

ignoring or rendering meaningless any portion of the 1986 

amendments. 

III. Disposition of Mistick's Qui Tam Suit 

As I disagree with the majority's conclusion that the 

material obtained through Mistick's FOIA request was a 

public disclosure, I would find that the misrepresented 

state of facts underlying its qui tam claim had not been 

publicly disclosed. Therefore, under our holding in

Dunleavy that the jurisdictional bar does not apply unless 

both the true and the misrepresented facts have been 

publicly disclosed through one of the enumerated sources, 

Mistick's qui tam claim is not jurisdictionally barred. 

But even if the FOIA material were to constitute a public 

disclosure, Mistick's qui tam action may not be"based 

upon" public disclosures because it claims that it learned of 

the true state of facts not through the public disclosure in 

the state-court action, but earlier, through meetings with 

the maker of Glid Wall, and through its own independent 

investigations. Because it is ultimately a fact question 

whether Mistick's information underlying its qui tam action 

was derived from the public disclosures, and because the 

District Court did not reach this issue, I would remand for 

the District Court's determination of this issue in the first 

instance. Cf. Siller, 21 F.3d at 1349 (remanding for the 

district court to determine whether the allegations in a 

relator's action were derived from a public disclosure); 

Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 

891 n.16 (3d Cir. 1977) ("[T]he district court is free to 

determine facts relevant to its jurisdiction . . . ."). 

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IV. Conclusion 

The policy consideration undergirding the restrictive view 

of qui tam litigation (and the expansive view of the 

jurisdictional bar) is that it is necessary to eliminate 

opportunistic and parasitic lawsuits. I share the view that 

such suits are an abomination. I believe, however, that 

Stinson, Findley, and their progeny (including the majority 

opinion here) cut such a broad swath that they eviscerate 

bona fide suits, such as the one at bar, in a laudable but 

misguided effort to halt a feared torrent of litigation. 

In my view, the recent amendments to the False Claims 

Act were intended to encourage qui tam suits that do not 

derive their knowledge of an underlying fraud from truly 

public disclosures, and to encourage those with information 

about frauds on the government to inform the government 

about the fraud, assist the government in bringing legal 

action to bear against the defrauders, and, if necessary, 

prod the government into action. I see the majority opinion 

as inconsistent with this intent of Congress. More 

importantly, it is inconsistent with the plain language of the 

FCA. Because the majority's misreading affects the outcome 

of this case, I respectfully dissent. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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