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. e du/thir dc ir c uit_1999/222Filed 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; PAT RICK 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 t he 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 Fals e Claims Act qui tam action that is based on certain public disclosures unless the action is brought by an "ori ginal source." We agree with the District Court that subj ect matter jurisdiction was lacking, and we therefore a ffirm.

2I.

A. The qui tam action at issue here was filed by M istick PBT, a Pittsburgh area construction company. Named as defendants were the Housing Authority of the City o f Pittsburgh ("HACP") and L.D. Astorino & Associates, Ltd. an architectural firm, as well as individual employees of the HACP and Astorino & Associates. The complaint asser ted

that the defendants made false claims to the United States Department of Housing and Urban Development (HUD) f or 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 specification s for the lead-based paint abatement work, as well as the lar ger renovation projects of which this work formed a par t, and Mistick was the general contractor for all of this work.

Since August 1986, HUD regulations have required le adbased 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 t he paint or covering it with an "encapsulant" that cov ers and prevents exposure of the lead-based paint. See 24 C .F.R.

S 35.24.

Astorino's original specifications for the lead aba tement 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 compl aint, Mistick bid and later performed its work at the two projects on the basis of Astorino's specifications, includin g the Glid Wall specification. Mistick submitted its bids in J une and July of 1989, and after those bids were accepted an d 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 u se of "Glid Wall" as an encapsulant, Glidden had begun recommending against the use of this product for th is purpose some time earlier. A Glidden Product Update s 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"Gli dden Company has no desire to warrant [the Glid-Wall Sys tem] 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 HA CP, and Mistick attended a meeting on January 5, 1990, at w hich a Glidden representative reiterated the warning con tained in the April 1988 Products Update Bulletin. JA 547. In addition, it appears that, on January 23, 1990, Gli dden sent Astorino a letter advising that "the Glidwall System can not be consider (sic) a method for lead abateme nt." JA

450.

In May 1990, Astorino revised its specifications fo r the Bedford and Addison projects and provided for the u se of a lead encapsulant called Zomat instead of Glid-Wall. This change was preceded by a series of letters from Ast orino to the HACP. On February 14, 1990, Dennis Astorino, a vicepresident of the architectural firm, wrote to Ernes t Miller, the HACP's director of development, and attached a letter from Astorino's certified industrial hygienist stat ing that his company was "still of the opinion that the Glidwall System is the most cost effective method of physical compl iance with the HUD criteria," although "an increased elem ent of

risk would be associated with the use of the Glid-W all System since the manufacturer, Glidden, indicates t he Glid-Wall System is not to be considered as a metho d for

lead abatement." JA 449. Dennis Astorino's cover le tter requested a prompt decision by the HACP regarding t he

method of abatement it wished to use -- either

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1. "JA" refers to the Joint Appendix.

4encapsulation 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 orig inal specification of Glid-Wall. Among other things, the letter

stated that Astorino's consultants had advised thef irm 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 Zo mat.

JA 436.

On April 24, Dennis Astorino wrote another letter t o Miller in which he again stated that Glidden "no lo nger guarantees [Glid-Wall] for use as a lead base paint encapsulate" and again expressed the view that Zoma t was then "the best solution to the problem of encapsuli zation." JA 434. After observing that Zomat could not have b een called for in the original specifications because i t had only recently been marketed as an encapsulant, the lette r 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 execut ive 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 encapsul ant. 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 H UD'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 "addi tional worker protection methods." JA 457.

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

more information, Washington wrote to LaMarca and s tated that "Glidwall became unacceptable as a LBP [lead-b ased paint] encapsulant because the Company informed the Architect by letter (1/23/90) that `the Glidwall Sy stem 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 Authorit y was using it for this purpose." JA 464-65. Apparently r eferring to the situation at the time of the original specif ications, the

letter added:

To our knowledge, there was no information a vailable to suggest that the Glidwall System was not approved by Glidden for its intended use as a LBP enc apsulant.

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 resu lting from the change in the lead-abatement specification s for the Bedford and Addison projects. The HACP thenfile d a third-party complaint for indemnification and contr ibution against Astorino, and Mistick subsequently moved to amend its complaint to add a direct claim of fraud against Astorino. In this proposed amended complaint, Misti ck alleged that (1) Astorino knew at the time it devel oped 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 specifi ed GlidWall for lead abatement, (3) Astorino knew or shoul d have known that this specification would delay and incre ase the cost of the renovation work, and (4) the Bedford an d Addison projects were both delayed and Mistick suff ered damages as a result. JA 226-27. In the alternative, Mistick

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2. Mistick alleges that the HACP received additiona l funds for the Bedford and Addison projects through HUD's annual b udget process.

6alleged that the HACP knew that Glid-Wall was unsui table

for use a lead-based paint encapsulant but that it directed Astorino to specify this product anyway, knowing th at this would cause delay and increased expense. JA 227. Th e Court of Common Pleas denied Mistick's motion to am end its complaint because, among other things, the stat ute of limitations had run on Mistick's claim against Asto rino, and the Court dismissed Astorino as a third-party

defendant.

Dennis Astorino gave a deposition in the state cour t action in which he acknowledged that the Astorinofi rm knew, prior to the submission of the original Bedfo rd and Addison specifications, that Glidden did not recomm end the use of Glid-Wall as an encapsulant. JA 99-100. Loui s Astorino, another principal of the firm, likewise s tated in a deposition that the firm was aware that Glid-Wall h ad "never" been warranted as a lead-based paint encaps ulant, but that he looked at Glid-Wall "as a product appro ved by

HUD for this situation" and that "HUD never asked f or a warranty for lead based paint abatement." JA 85-87. Mistick's suit against the HACP was eventually sett led in May 1996.

C. While its suit against the HACP was pending in s tate court, Mistick began what it terms "an investigatio n . . . undertaken . . . for the purpose of gathering infor mation on the HACP's relationship with HUD, which investigati on 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 di sputes Mistick and other contractors were experiencing, wi th both the HACP and Astorino, on various HUD-associated pu blic 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 project s. These files included the Authority's letters to HUD, date d April 27, 1990, January 1, 1992, and July 1, 1992, as well as the

7letters from Astorino to the HACP that were attache d to the

April 27 letter. Mistick viewed the letters submitt ed 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 Uni ted States. Mistick's complaint alleged that two false claims had been presented to the government. The first cla im 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 fo r that purpose. The second claim concerned the HACP's requ est for additional funding to pay for part of the cost of switching to Zomat as the encapsulant and the alleg edly false statements made regarding the reasons for the switch. Based on each of these two claims, the complaint as serted three separate causes of action: for presentation o f 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 gov ernment, 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 ord ered that Mistick's complaint be unsealed and served on the HACP and Astorino. The HACP and Astorino filed sepa rate motions to dismiss, in which they asserted lack of subject matter jurisdiction. In March 1997, the District Co urt dismissed for lack of subject matter jurisdiction u nder 31 U.S.C. S 3730(e)(4)(A), which, as noted, provides t hat 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 "ori ginal source." The District Court held that this jurisdic tional bar applied because Mistick's action was based on infor mation 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" e xception. Mistick then took this appeal.

II.

The background of the False Claims Act's qui tam provision has been discussed in detail in prior opi nions.

8See United States ex rel. Dunleavy, 123 F.3d 734, 7 38 (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 "permi ts, 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 b arred if the information on which they were based was alr eady in the Government's possession." Hughes Aircraft Co. v . United States ex rel. Schumer, 520 U.S. 939, 941 (1997). I n 1986, Congress sought "[t]o revitalize the qui tam provis ions," Stinson, 944 F.2d at 1154. After considering severa l alternatives, see Stinson, 944 F.2d at 1163-68 (Sci rica, J., dissenting), Congress enacted 31 U.S.C. S 3730(e)(4 )(A), which provides:

No court shall have jurisdiction over an act ion under this section based upon the public disclosur e of allegations or transactions in a criminal, c ivil, or administrative hearing, in a congressional, administrative, or Government Accounting Off ice (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 t his provision bars Mistick's suit. Mistick argues that the

District Court's decision rests on three erroneous legal determinations. First, Mistick contends that the di sclosure of information in response to the Priselac FOIA req uest was not one of the kinds of public disclosure that trig ger 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 provisi on refers to "the public disclosure of allegations or transactions in a criminal, civil, or administrativ e, 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,

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

of the specified contexts. HUD's response to the Pr iselac 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 In formation 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 purpos e" is to ensure that government activities are "opened to th e sharp eye of public scrutiny." United States Dep't of Jus tice v. Reporter's Comm., 489 U.S. 749, 774 (1989)(emphasis added). In Consumer Product Safety Commission v. GT E Sylvania, Inc., 447 U.S. 102 (1980), the Supreme Co urt held that the disclosure of information pursuant to the FOIA constitutes a "public disclosure" within the m eaning of the Consumer Product Safety Act, 15 U.S.C. S 205 5(b)(1),

and the Court observed:

[A]s a matter of common usage the term "publ ic" is properly understood as including persons who are FOIA requesters. A disclosure pursuant to the FOI A would thus seem to be most accurately characterize d 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 soun d basis for construing the term "public disclosure" a ny 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 pur suant to a FOIA request is not publicly disclosed because it is pro vided only to the requester, who is not obligated to turn it over to others. Dissent at

28-29. The dissent therefore contends that the info rmation 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 avail able under FOIA is not "publicly accessible"; on the contrary, such in formation 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 c oncept of "public

10Second, 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 fede ral government." HUD's response to the FOIA request originated with a department of the federal governm ent and constituted official federal government action, and therefore this response plainly satisfied Dunleavy's definiti on of

"administrative."

The response also fell within the ordinary meaning of the term "report." A "report" is defined as, among othe r things, "something that gives information" or a "notificati on," Webster's Third New International Dictionary 1925 ( 1971), and an "official or formal statement of facts or pr oceeding." Black's Law Dictionary 1300 (6th ed. 1990). A respo nse to a FOIA request falls within these definitions. Such a response provides information and notification rega rding the results of the agency's search for the requeste d

documents and constitutes an official and formal st atement concerning those results. Although Mistick ridicule s the argument that a response to a FOIA request is an "administrative report," see Reply Br. at 6-7, it i s telling

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

___________________________________________________ ______________

accessibility." Information may be publicly disclos ed -- for example, it may appear buried in an exhibit that is filed in co urt without fanfare in an obscure case -- and yet not be readily accessibl e 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 ac tually 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 3 2) -- does not come to grips with the fact that a FOIA response falls e asily within accepted definitions of the term "report." The dissent seems to have in mind a particular type of government report, with "analysi s," a "summary," and/or a "conclusion," see id. at 29, but the ordin ary understanding of the term "report" is broader.

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

was an "administrative . . . report" and that the d ocuments 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 373 0(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 interpr etation of the term "administrative," and we believe that thes e 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," W ebster'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 recei ves a FOIA request, it is obligated to conduct a search t hat is reasonably calculated to uncover all relevant docum ents.6 See also, e.g., Miller v. United States Department of Justice, 779 F.2d 1378, 1383 (D.C. Cir. 1983); Weisberg v. U nited 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 al so 5

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5. This holding is entirely consistent with our hol ding in Dunleavy that a report prepared at the behest of a county was not itself an "administrative report" because it did not"originat e with the federal government." 123 F.3d at 744-46. In Dunleavy, the r eport 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 doc uments were publicly disclosed "in" that report, just as if the y 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 i nvestigation or a like investigation of "wrongdoing." Dissent at 29. But i n ordinary usage, the term is used more broadly.

7. Because we hold that the disclosure at issue occ urred in an "administrative . . . report" and an "administrativ e . . . investigation,"

we need not and do not reach the defendants' argument that the disclosure also occurred in an "administrative . . . hearing."

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

term `search' means to review, manually or by autom ated means, agency records for the purpose of locating t hose records which are responsive to a request.')

Most of the decisions of other courts support our h olding

that the disclosure of documents under the FOIA tri ggers 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 10 38 (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 o f Sciences, 1992 WL 247587, at *6 (D.D.C. Sept. 15, 1 992) ("Just as civil discovery is public, it must be the case that information obtained pursuant to an FOIA request ha s 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 re cords would be flooded with citizens requesting informati on in order to bring qui tam suits. Congress did not inte nd the qui tam provision to transform FOIA from sunshine legislation into a search for the pot of gold at th e 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 t hat even if HUD's FOIA response was a covered disclosur e 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 provis ion requires the disclosure of "the elements of the und erlying 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 74 1. Mistick acknowledges that "[t]he misrepresented fac ts . . .

13were discovered by Mistick in October 1993, pursuan t to

the Priselac [FOIA] Request." Appellant's Br. at 31 . Thus, our holding that this disclosure falls within the c overage of 31 U.S.C. S 3730(e)(4)(A) requires Mistick to fall back on the argument that the jurisdictional bar is not trigger ed "because the other essential element, the true stat e of facts, was not publicly disclosed within the meaning of th at 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.2 d at 1160, that civil discovery constitutes "a public di sclosure . . . in a civil hearing" within the meaning of 31 U.S.C. S 3730(e)(4)(A). According to Mistick, the true fac ts were (1) that the Glidden policy of not recommending Glid-Wa ll as a lead-based encapsulant was in effect before Astorin o 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 oc curred:

THE COURT: . . . [D]o I understand your answ er to be that all of the essential elements were publ icly disclosed in the civil litigation but you kn ew all of those essential elements previously from other sou rces, 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" m eans

actually derived from. The court explained:

Section 3730(e)(4)(A)'s use of the phrase "b ased upon" is, we believe, susceptible of a straightfor ward 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"). Ra ther plainly, therefore, a relator's action is "based upon " a public disclosure of allegations only where the rel ator has actually derived from that disclosure the al legations upon which his qui tam action is based. Such an understanding of the term "based upon," apar t from giving effect to the language chosen by Cong ress, is fully consistent with section 3730(e)(4)'s i ndisputed objective of preventing "parasitic" actions see, e.g., Stinson, supra, at 1154, for it is self-evid ent that a suit that includes allegations that happen to be similar (even identical) to those already publicly d isclosed, but were not actually derived from those public disclosures, simply is not, in any sense, pa rasitic.

Id.

All of the other circuits that have reached this qu estion have disagreed with the Fourth Circuit and have hel d that "based upon" means "supported by" or "substantially similar to," so that the relator's independent know ledge 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 Sta tes ex rel. Findley v. FPC-Boron Employees' Club, 105 F.3d 675, 682-84 (D.C. Cir.), cert. denied, 118 S. Ct. 172 (1 997); 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 obse rved that "[a]s a matter of common usage, the phrase `ba sed upon' is properly understood to mean `supported by. ' " Precision Co., 971 F.2d at 552. The District of Col umbia Circuit, while not expressly embracing the Tenth Ci rcuit's

15view 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 Cla ims Act "requires that a relator have `direct and independe nt' knowledge of the alleged fraud or some of its compo nents, and have voluntarily provided the information to th e government, in order to benefit from the `original source' exception to the jurisdictional bar," the court con tinued:

Why, one may ask, assuming the Fourth Circui t test of "based upon" as meaning "derived from," woul d 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 exce ption whole. Using "based upon" as a proxy for whe ther the relator's complaint merely parrots what is a lready in the public domain, on the other hand, leads logically to a subsidiary inquiry into whether, the relat or 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 Col umbia Circuits' arguments. We agree with the Fourth Circu it that in ordinary usage the phrase "based upon" is not ge nerally used to mean "supported by." On the other hand, we agree with the District of Columbia Circuit that the Four th Circuit's interpretation is suspect because it woul d 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 pers uaded.

The dissent first argues that it may be possible fo r the allegations or transactions set forth in an individ ual's claim

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

S 3730(e)(4)(A), and yet for that individual to hav e had direct and independent prior knowledge of "the info rmation 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 brin g the claim as an original source if he has direct and independent knowledge of some other essential eleme nt of the claim." Dissenting Op. at 39-40. However, the d issent 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" ex ception). Indeed, the dissent does not even commit itself to this interpretation but merely raises it as a possibilit y. See Dissenting Op. at 40. Thus, the dissent relies on t he possibility that the apparent superfluity of the"or iginal source" exception (under its interpretation of"base d upon") may be avoided pursuant to a scheme of interpretati on 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" ma kes the "original source" exception substantively superfluo us, 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 f rom a public disclosure. The dissent writes that "it may be easier for the relator to establish himself as an `origina l source' of the information than to successfully disprove a cau sed link between the public disclosures and his qui tam clai m." Dissent at 40. However, even if there were no "orig inal source" exception as such, an individual could stil l prove that his information was not derived from a public disclosure by showing that he was an original sourc e of the information. Thus, this argument fails to explain w hy 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 Four th Circuit's interpretation of "based upon" makes the "original source" exception largely superfluous.

17We are thus confronted with a clash between two tex tual

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 th at a statute should be construed if possible so as not t o render any of its terms superfluous. See, e.g ., United St ates v. Nordic Village, Inc., 503 U.S. 30, 36 (1992); Astor ia 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. deni ed, 510 U.S. 1114 (1994). In the end, we are persuaded to f ollow the majority approach.

Section 3730(e)(4)(A) does not reflect careful draf ting or a precise use of language. To begin with a small exam ple, this section refers to the General Accounting Office as the "Government Accounting Office" and thus misnames an instrumentality that Congress has consistently view ed as its own. See Bowsher v. Synar, 478 U.S. 714, 731 (1 986). The section refers awkwardly to "the public disclos ure . . . from the news media." Id. (emphasis added). The sec tion refers to criminal and civil "hearing[s]," when it surely means, not just those proceedings that are generall y labeled "hearings," but also full-blown criminal an d civil trials, and other court proceedings that are not de scribed 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, howe ver that phrase is defined. In addition, whether the ph rase "based upon" means "derived from" or"supported by," a careful drafter would have realized the need to spe cify the degree to which the "action" must be "based upon" t he public disclosure in order to fall within the juris dictional bar.8 Section 3730(e)(4)(A) refers to the disclosure of"a llegations 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 menti on

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

18"transactions." (Are "transactions" irrelevant unde r this

latter provision? Are they subsumed within the conc ept 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 o f the syntax of S 3730(e)(4)(A). We find Section 3730(e)( 4)(A) to be syntactically ambiguous because we are uncertain th at the drafters of that provision focused on the differenc e in precise usage between, on the one hand, a suit base d upon a public disclosure of an allegation or transaction and, on the other, a suit based upon an allegation or trans action and that has been publicly disclosed.9 Under these circumstances, we think that it is best to follow t he majority interpretation, which is much more consist ent with the rest of the qui tam provision. We thus hol d that a qui tam action is "based upon" a qualifying disclos ure if the disclosure sets out either the allegations advanced in the

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9. Although we do not rely on the legislative histo ry 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 Clai m Act Amendments described it as having a meaning consistent with ou r holding. Senator Grassley, one of original Senate sponsors, in speak ing of the technical and clarifying amendments that introduced the prese nt 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 t hose 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 H ouse bill, submitted "legislative history" that stated in relevant part:

Before the relevant information regarding fr aud is publicly

disclosed through various government hearings, reports and investigations which are specifically identified in the leg islation or through the news media, any person may file such an acti on 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 ad ded).

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

tam action's claims. Because the latter condition i s 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 br inging the action is an original source of the information." S ection 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 al legations are based and has voluntarily provided the i nformation to the Government before filing an action un der this

section which is based on the information.

Here, Mistick is not an "original source" because i t did not have "direct and independent knowledge" of the most critical element of its claims, viz., that the Auth ority had made the alleged misrepresentations to HUD regardin g its knowledge about Glid-Wall's unsuitability as a lead -based paint encapsulant at the time of the original speci fications. "[A] relator who would not have learned of the info rmation absent public disclosure [does] not have `independe nt' information within the statutory definition of`orig inal source.' " Stinson, 944 F.2d at 1160. As previously noted, Mistick acknowledges that "[t]he misrepresented fac ts were discovered by Mistick in October 1993, pursuant to the Priselac FOIA Request." Appellant's Br. at 31. Sinc e HUD's FOIA response was a qualifying public disclosure un der S 3730(e)(4)(A), Mistick was not an original source of that information. While "it is not necessary for a relat or to have all the relevant information in order to qualify as `independent,' " Stinson, 944 F.2d at 1160, a relat or cannot be said to have "direct and independent knowledge o f the information on which [its fraud] allegations are ba sed," 31 U.S.C. S 3730(e)(4)(B), if the relator has no direc t and independent knowledge of the allegedly fraudulent statements. Thus, Mistick's "original source" argum ent

fails.

20III.

In summary, we hold that Mistick's qui tam action w as barred by 31 U.S.C. S 3730(e)(4)(A) because it was "based upon the public disclosure" of the relevant transac tions 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 bec ause Mistick does not qualify as an "original source."10 We

therefore affirm the decision of the District Court

.

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10. In light of our disposition of these issues, we find it unnecessary to address the other grounds for affirmance that the d efendants have

advanced.

21BECKER, 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, incorre ct. On the critical "based upon" issue, Judge Alito follows th e majority view of other circuits. As I will explain, I would follow the minority view, primarily because it alone is faithf ul to the plain language of the governing statute. More parti cularly, I do not believe that the phrase "based upon," espe cially in

the context in which it is found in the False Claim s Act ("FCA"), can properly be read to mean, as the major ity here concludes, "supported by." Rather, it means"derived from" or "used as a basis for." I take issue with the maj ority's contention that we may avoid this plain reading of" based upon" because Congress was sloppy in its drafting o f the jurisdictional bar. I also follow the minority view because I believe that it better reflects the policy that Con gress had in

mind in its most recent amendments to the FCA. Fina lly, I believe that the present majority is incorrect in a sserting that a plain reading of "based upon" would render t he "original source" exception superfluous.

On the "public disclosure" issue, the majority feel s bound by our prior caselaw, particularly United States ex rel. Stinson, Lyons, Gerlin & Bustamante, P.A. v. Pruden tial Insurance Co., 944 F.2d 1149 (3d Cir. 1991). While we are constrained to follow our binding precedent, I disa gree with the majority's broad reading of Stinson, which aros e in a very different context--civil litigation--than that involved here. More specifically, I believe that materials o btained through a FOIA request do not constitute a "public disclosure" under the FCA, even given our holding i n Stinson, because a government agency's act of locat ing and duplicating records for a single FOIA requester is fundamentally different from the disclosure of disc overy material in civil litigation, which includes a "pre sumption . . . 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 bringi ng its

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

interpretation of "based upon," Mistick's qui tam a ction

would not be barred if it obtained the information underlying its claim from a source other than a pub lic disclosure. It has so alleged, and this may in fact be the case. Therefore, even if the FOIA material is deeme d a public disclosure, I would still reverse the Distri ct Court's decision dismissing Mistick's qui tam claim and rem and for a determination by that court whether the claim is" based upon," i.e., derived from, information in any publi c disclosures. Because I would reverse the District C ourt'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 pub lic

disclosures.

So that it is fresh in our minds as we weave our wa y through this statutory maze, I rescribe the relevan t jurisdictional bar:

No court shall have jurisdiction over an act ion under this section based upon the public disclosur e of allegations or transactions in a criminal, c ivil, or administrative hearing, in a congressional, administrative, or Government Accounting Off ice 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 f or 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 S tinson 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 constr ained to agree with the first of these holdings, as this was the precise issue decided in Stinson. However, I dissen t from

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

correctly decided--inexorably leads to the conclusi on that information obtained through a FOIA request by a si ngle individual is necessarily a "public disclosure." Ex plication of my position on the FOIA issue will be informed b y explaining at the outset my problems with Stinson's definition of public disclosure, under which discov ery material given to a single person in litigation bet ween two private parties, and not even filed with a court, c onstitutes a "public disclosure."

In Stinson, the panel majority reasoned that"sectio n 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 cat egory," even if the information is actually known only to the sm all group of private litigants involved in the action in whic h the information was presented through discovery. Id. at 1156; see also id. at 1158 ("[D]isclosure of discovery ma terial 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 fac t that "the Local Rules of some district courts provide th at the court may order the filing of discovery materials a t the request of any person who has an interest in review ing the materials." Id. at 1158-59. Although the panel may have been technically correct, this statement obscures t he 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 ac cess 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 th e

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1. See D. Del. R. Civ. P. 5.4(a) (providing that di scovery 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).

24litigation, other than the media, will generally no t know of

it or will be unmotivated to bear the cost and burd en of pursuing the filing of such material.

More importantly, Stinson's definition appears to m e 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 allegati ons are disclosed to any single member of the public not pr eviously informed thereof." (internal quotations and bracket s omitted)); Stinson, 944 F.2d at 1169 (Scirica, J., dissenting) ("I do not believe Congress intended to bar relator s 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 again st the Government." S. Rep. No. 99-345, at 1 (1986), repri nted in 1986 U.S.C.C.A.N. 5266, 5266. As for the qui tam provisions of the FCA amendments, Congress's "overa ll intent" was "to encourage more private enforcement suits." Id. at 23-24, reprinted in 1986 U.S.C.C.A.N. at 528 8-89. While avoiding parasitic lawsuits was clearly an ad ditional goal, there is no indication that Congress sought t o preclude the disclosure and prosecution of fraud wh en a prior, purely technical disclosure had been made. R ather, like Judge Scirica, "I can discern no reason why Co ngress would be concerned about information that has not y et been disclosed to the general public." Stinson, 944 F.2d at 1170 (Scirica, J., dissenting).

By precluding suits "based upon the public disclosu re of allegations or transactions in" specific judicial, legislative, or administrative sources, or through the news medi a, Congress sought to ensure that no qui tam relator c ould profit from information that had become part of the public domain. Interpreting "public disclosure" to encompa ss information passed from one private litigant to ano ther in the context of some obscure litigation may simplify our task of weeding out legitimate qui tam cases from parasi tic ones (by effectively avoiding this sometimes difficult f actual

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

encouraging disclosure and aiding prosecution of fr aud on the government. There is no assurance that informat ion about a fraud on the government, contained in priva tely disclosed discovery material (which will always con stitute a "public disclosure" under Stinson), will either com e to the government's attention or will lead to a private qu i tam action. I agree with Judge Scirica's observation th at "Congress drew the line at the point of actual publ ic

disclosure because it felt that this rule would bri ng the most fraud to light without engendering unnecessary suits." Id. at 1171 (Scirica, J., dissenting).

Although I think Stinson's reading of "public discl osure" is likely too broad and should be reconsidered by t his court en banc, I also believe that materials obtained thr ough a FOIA request are easily distinguishable from the di scovery material deemed a public disclosure in Stinson. In contrast with Stinson, we recently held that a county govern ment report filed with the federal government is not a p ublic disclosure. See United States ex rel. Dunleavy v. C ounty of Del., 123 F.3d 734, 745-46 (3d Cir. 1997). Distingu ishing our holding in Stinson, we noted the danger of exte nding "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 mater ial 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 potentiall y available to interested parties is insufficient to render it a "public disclosure." If this were the case, the inf ormation in Dunleavy, which the defendant had provided to a fed eral government agency, would have constituted a "public disclosure." More importantly, there is a clear dis tinction between discovery materials, which carry a "presump tion . . . of public access," and the information contai ned in a FOIA request, which is provided to a single request er 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 st atutory and regulatory provisions governing Mistick's FOIA request.

26Local court rules often provide that while discover y

material should not be filed with the court, see su pra note 1, such material may under certain circumstances be filed. 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 be cause it need not be filed with the court. See Stinson, 944 F.2d at 1158. As noted above, however, the panel rejected t his argument, responding:

We do not think that it is significant, for purposes of interpreting the "public disclosure" provisi on 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 whi ch provide that discovery materials should not be filed with the court except by order of the court. Such loc al 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 o rder 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 pu blic access to civil discovery that is not subject to a protective

order leads us to conclude that information receive d as a result of such discovery should be deemed based on a `public disclosure' for purposes of the FCA jurisdi ctional

bar." Id. at 1159-60.

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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 mot ion 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 certai n circumstances); W.D. Pa. R. Civ. P. 5.3(E) (providing for filing of disc overy materials "in the usual course in any case where any person shall fil e an affidavit with the clerk that he has a genuine interest in reading the material").

27While I have taken issue with the conclusion that t he

Stinson majority drew from this potential availabil ity of discovery materials, see supra at 24-25, it is clea r that such material is far more publicly accessible than is the material obtained under a FOIA request. FOIA expres sly provides that records furnished in response to a FO IA request are to be made "available for public inspec tion and copying" only when the relevant agency determines t hat, "because of the nature of their subject matter, .. . [the records] have become or are likely to become the su bject of subsequent requests for substantially the same reco rds." 5 U.S.C. S 552(a)(2)(D) (1994 & Supp. II 1996). Other wise, such records are provided only to the individual FO IA requester. Further, nothing in FOIA would require t he FOIA recipient to share the fruits of his request with o ther 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 Misti ck) to make the materials provided through the request ava ilable to other members of the public. Additionally, in en acting 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 p ublic figures." H.R. Rep. No. 104-795, at 21 (1996), repr inted in 1996 U.S.C.C.A.N. 3448, 3464. In fact, since enactm ent of S 552(a)(2)(D), HUD has not amended its own regulat ions 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) (p roviding that HUD will make available for public inspection and copying three of the four categories of material in cluded in 5 U.S.C. S 552(a)(2), failing to include material l isted in S 552(a)(2)(D)).

Therefore, unlike most discovery material, no membe r of

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3. See Electronic Freedom of Information Act Amendm ents of 1996, Pub. L. No. 104-231, S 4(5), 110 Stat. 3048, 3049.

28the public has a right of access to information tha t another

person obtained through a FOIA request--nor can any one seek an order compelling a FOIA recipient himself t o "publicly disclose" material obtained through his F OIA 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 chang e the nature of, the material released through the prior FOIA request by a single citizen. And of course the info rmation remains in the government's files, but under Dunlea vy, this is insufficient to turn these records into a "publi c disclosure." See Dunleavy, 123 F.3d at 746.

In Dunleavy, we held that the list of enumerated so urces in S 3730(e)(4)(A) "constitutes an exhaustive rendi tion of the possible sources" of a public disclosure. Id. at 74 4. The only enumerated sources that could be apposite here are an "administrative . . . report" or an "administrat ive . . . investigation." The majority concludes that an agen cy's act of fulfilling a FOIA request satisfies this source requirement, as both an administrative report and a n administrative investigation. I think that this con clusion also is incorrect. FOIA requires federal agencies t o search their records "for the purpose of locating those re cords which are responsive to a request." 5 U.S.C.S 552(a )(3)(D) (1994 & Supp. II 1996). It does not compel an agenc y to "investigate" a request, in the sense that an agenc y of the federal government normally investigates such thing s as allegations of fraud, crimes, or other wrongdoing. Rather, the Act simply forces agencies to "make [their] rec ords promptly available," upon request. Id. S 552(a)(3)( A); see also 24 C.F.R. S 15.14(g)(2) (1998) (under HUD regu lation governing costs of FOIA requests, "search" is defin ed 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 t he federal government and that are not otherwise excludable fr om members of the public. Thus, there is no "administr ative . . . 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 FOI A

29requester. Rather, the actual records themselves, w ith

possible redactions, are merely duplicated and prov ided to the FOIA requester. See 5 U.S.C. S 552(a)(4)(A) (19 94); see also 24 C.F.R. S 15.14(a) (1998) (listing fees for HUD's fulfilling of FOIA requests through the "reproducti on or duplication of documents"). Again, I believe that t he majority strains to read the phrases "investigation " and "report" to encompass a government agency's rudimen tary 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 q ui 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 t hat the misrepresented state of facts (i.e., that the defen dants did not know of the problem with Glid Wall until 1990) was disclosed in the FOIA material and that the true st ate of facts (i.e., that the defendants knew of the Glid W all problem as early as 1987) was revealed in the state -court action, meeting the requirements for a public discl osure. Although I am constrained to agree with the majorit y's conclusion that (under our holding in Stinson) the discovery material in this case constitutes a public disclosu re, because I would find that the FOIA material--the so urce of the misrepresented facts--is not a public disclosur e, I would hold that Mistick's claim is not jurisdiction ally

barred.

II. "Based Upon"

Although my view of the FOIA materials would, in an d of itself, require reversal of the District Court's di smissal of Mistick's claim, I address the "based upon" issue, as it is a critical issue, and one on which I believe the majo rity has reached a manifestly incorrect conclusion. Courts h ave differed on the proper interpretation of this phras e. 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 disclosu res if it relies on the same allegations or transactions as t hose in the public disclosure), cert. denied, 118 S. Ct. 17 2 (1997),

30with United States ex rel. Siller v. Becton Dickins on & 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 publi c 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 Restr ictive Interpretations Under the False Claim Act's Public Disclosure Bar, 27 Pub. Cont. L.J. 669, 697-705 (1998) (advoca ting 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 mo re persuasive the view that a qui tam plaintiff is bar red from bringing his claim only when he has derived his information regarding the allegations or transactio ns underlying his cause of action from public disclosu res.

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 t he 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 al so effectuated Congress's goal of precluding "parasiti c" suits by non-whistleblowers attempting to take advantage of public disclosures: "[I]t is self-evident that a su it that includes allegations that happen to be similar (eve n identical) to those already publicly disclosed, but [that] were not actually derived from those public disclos ures, simply is not, in any sense, parasitic." Id.

31The contrasting view is explicated in Judge Wald's

decision for the D.C. Circuit in Findley. In additi on to claiming that the Fourth Circuit's interpretation o f"based upon" rendered the "original source" exception supe rfluous, the court in Findley considered the legislative his tory of the FCA. See Findley, 105 F.3d at 683-84. It expressed its belief that Congress, in the 1986 amendments, "chan ged the focus of the jurisdictional bar from evidence o f fraud inside the government's overcrowded file cabinets t o 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 languag e of the jurisdictional bar, we should not give this tex t its plain meaning, and (2) the plain reading of "based upon" renders the "original source" exception superfluous. See Ma j. Op. at 15-16. I take up each of these contentions below, a fter a discussion of the Act's plain meaning. I conclude b y 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 legis lative intent is unnecessary when a statute's text is clea r and does not lead to an absurd result. See, e.g., Darby v. Cisneros, 509 U.S. 137, 147 (1993) ("Recourse to th e 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 straightfo rward, and with a straightforward application ready to han d, statutory interpretation has no business getting metaphysical."); Rubin v. United States, 449 U.S. 4 24, 429- 30 (1981) ("We begin by looking to the language of the Act. . . . When we find the terms of a statute unambiguo us, judicial inquiry is complete, except in rare and ex ceptional circumstances." (internal quotations omitted)). The Court has instructed us to begin with a statute's text wh en

32discerning its meaning, and to "assume that the leg islative

purpose is expressed by the ordinary meaning of the words used." United States v. James, 478 U.S. 597, 604 (1 986) (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 1 348 (quoting Webster's Third New International Dictiona ry 180 (1986)). I agree with this plain reading of the phr ase "based upon" and further concur with Siller's conclusion t hat there is no usage, "let alone a common one or a dictionar y definition, that suggests that `based upon' can mea n `supported by.' " Id. at 1349.

Other federal statutes and case law support my plai n reading of the phrase "based upon." For example, an exception to the Foreign Sovereign Immunities Act o f 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. Nels on, 507 U.S. 349 (1993), the plaintiff had allegedly been t ortured and beaten by Saudi Arabian law enforcement officer s in retaliation for his complaints about safety problem s at a Saudi hospital at which he worked. See id. at 352-5 3. He brought an action against the Saudi government, contending that his claim was "based upon a commerc ial activity" of that government because he was recruit ed to work at its hospital, signed an employment contract with the government to work at the hospital, and was act ually 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 t he phrase "based upon," and the relatively sparse legi slative history offers no assistance, guidance is ha rdly necessary. In denoting conduct that forms th e `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.

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

Dictionary, and Webster's Third New International Dictionary). The Court then held that, "where a cla im rests entirely upon activities sovereign in character, .

.. jurisdiction will not exist under that clause regar dless of any connection the sovereign acts may have with commercial activity." Id. at 358 n.4. Because the recruitment, contract signing, and employment at th e hospital, all admittedly commercial in character,"[ were] not the basis for the Nelsons' suit," the action was no t based upon a commercial activity of the foreign governmen t. 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 "connec tion" to the sovereign acts that the claim was based upon , but

the action was not derived from these commercial ac tivities; rather, the action was derived from the tortious ac ts of foreign government officials. Therefore, it was not "based upon" commercial activities of the foreign governme nt.

Similarly, in the FCA context, I believe that "guid ance is hardly necessary." While public disclosures will ty pically have some connection to the allegations in a relato r's complaint, in the sense that the disclosures and th e allegations in the complaint are similar, the latte r cannot be said to be "based upon" the former when the comp laint "rests upon" allegations contained in some other (n onpublicly disclosed) source.

Judicial use of the words "based upon" also support s my reading of this simple phrase. For example, in the context of the "independent source" exception to the exclus ionary rule, evidence is not excluded if it is derived fro m some source other than the tainted search or identificat ion. The Supreme Court has described the government's burden in such a situation as proving that evidence introduce d at trial was "based upon" some source other than the illegal one, or that "the evidence to which instant objection is ma de has [not] been come at by exploitation of that illegali ty [but]

34instead 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 b y exploitation of," is consistent with my plain readi ng 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 ba r. If, on the other hand, knowledge of the allegations or transac tions at the heart of a qui tam claim was obtained through"m eans sufficiently distinguishable to be purged of the pr imary taint" of the public disclosures, the bar should no t apply.4

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

action that relies on information that is similar t o that which has been publicly disclosed is ineluctably"ba sed upon" the public disclosures, even though the qui t am relator has not "come at [this information] by expl oitation of " the public disclosures, or "substantially copi ed" its information from the public disclosures. I find tha t this reading flies in the face of the plain meaning of"b ased upon," as indicated by its usage in common parlance , in other statutes, and in judicial opinions. It is not eworthy that the majority does not take issue with this pla in 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 o f the FCA by reference to Congress's sloppy drafting and the alleged undermining of the "original source" exception by t his plain reading of the statute. I then examine the purpose and policy undergirding the qui tam statute, which info rm the varying interpretations of "based upon." But on the basis of the plain meaning alone, I would find that the juri sdictional

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

For example, under copyright law, a "derivative" work i s 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 t he derivative work be "substantially copied from a prior work." 1 Melvill e 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 th e preexisting one, but

is not copied substantially therefrom, it is not "base d upon" that preexisting work.

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

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 ref lect 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 t he mistaken identification of the General Accounting O ffice (or "GAO") as the "Government Accounting Office,"6 the use of the phrase "hearing" when the broader concept of "t rial" was clearly intended, and the preclusion of jurisdi ction over qui tam "actions," when such actions may contain ma ny "claims," some of which are "based upon" public disclosures and others which are not. The majority' s reliance on Congress's alleged sloppiness appears t o be a different way of saying that "the language of the s tatute is ambiguous," thereby giving us license to "consider the structure and context of the ambiguous language," F indley, 105 F.3d at 683, rather than giving it its plain me aning.

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5. This is hardly a new phenomenon. Congress regula rly lapses into sloppy drafting, as has been frequently noted by co urts. See, e.g., H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 2 49 (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-Co aldale 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 draf tsmanship"); 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 poorl y drafted statutes as best we can, and "assume that in drafting legislati on, 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 confu sed by the appellations of the Government Printing Office, whi ch publishes government reports, and the General Accounting Offi ce, which performs government audits. I note that both reports and aud its of the "Government Accounting Office" are listed as public disclosures in S 3730(e)(4)(A).

36I find this argument unpersuasive because, whether or

not Congress was sloppy in its choice of certain wo rds, 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 ce rtainly was reasonable for Congress to use the general phra se, "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 p ossibility, such as criminal pre-trial hearings, criminal trial s, sentencing hearings, civil discovery proceedings, c ivil trials, appellate hearings, administrative hearings, etc.

The majority gives no indication of the origin of t he GAO mistake, and it is possible that it was simply a tr anscribing problem or a mistake by a single staff person that escaped detection. Courts have frequently referred to the G eneral Accounting Office as the Government Accounting Offi ce, 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) (refer ring to the "Government Accounting Office" in a Fair Labor Standards Act case brought by federal employees), c ert. 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 fe deral government.").

In addition, Congress has previously made the same mistake, and corrected it when its error was discov ered. 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, requiri ng the Resolution Trust Corporation to report to certain congressional committees "[t]he total number of ind ividuals performing services for the Corporation as an emplo yee of . . . the Government Accounting Office"), with Hous ing and Community Development Act of 1992, Pub. L. No. 102- 550, S 1611(d)(3)(B), 106 Stat. 3672, 4091 (amending

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

Office" with "General Accounting Office").7 The maj ority cannot be suggesting that courts should have ignore d the plain meaning of the entire Resolution Trust Corpor ation 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") wh en the more limited "claim" might be more appropriate is f ar from unprecedented. See, e.g., Wisconsin Dep't of Correc tions v. Schacht, 118 S. Ct. 2047, 2054 (1998) ("Conceivably , one might also read [28 U.S.C. S 1447(c)'s] reference t o `case,' to

include a claim within a case as well as the entire case."). As noted supra note 5, however, our ultimate task i s to effectuate Congress's intent, as demonstrated first and foremost by the language it has employed, even if t hat language is less than precise.

Most importantly, as I discuss infra Part II.E, eve n if the language of the FCA is imprecise or ambiguous, ther eby 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 m ajority's attempt to avoid the plain meaning of this phrase o n the ground that Congress was being sloppy at the time i t 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 th at the plain reading of "based upon" renders the"original source" exception superfluous, a result we should try to av oid. See

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7. Apparently, the leading newspapers in our nation 's capital are also not immune to the problem of misnaming the GAO. A searc h of the relevant Westlaw databases produced 128 articles from the Wa shington Post over the past fifteen years in which the GAO was mistake nly identified as the "Government Accounting Office," and 48 articles fro m the Washington Times over the past nine years in which the same mi stake was made. On the other hand, the papers correctly identified the GAO thousands of times during these periods.

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

example of a relator who "independently" investigat ed 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 cl aim 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 rel ator conjured up by Judge Wald. Rather, Mistick plausibl y alleges (but has not had the opportunity to prove) that it learned of defendants' fraud well before it was "pu blicly disclosed" in state-court litigation (not in a wide ly circulated newspaper). Thus, Judge Wald's bellwethe r 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 th e entire claim is "dependent" on the public disclosures, and a fortiori the relator does not have "independent" kn owledge of any elements of his claim. While it is entirely possible that Congress, in enacting the complex and overlapp ing amendments to the FCA in 1986, failed to foresee th at 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 l anguage. Ironically, the majority implies that the same Cong ress whose sloppy drafting it invokes to justify ignorin g 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 t o have all the relevant information in order to qualify as `independent.' " Stinson, 944 F.2d at 1160; see als o United States ex rel. Springfield Terminal Ry. Co. v. Quin n, 14 F.3d 645, 657 (D.C. Cir. 1994) (holding that a relator, to be an

39original source, need have "direct and independent

knowledge of any essential element of the underlyin g 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 ta m claim need not be derived entirely from public disclosure s to fall under the "based upon" jurisdictional bar, as long as some essential element of the qui tam claim is derived f rom public disclosures. A number of courts have so held

, though I take no position here on this complex ques tion. See, e.g., Farmington, 166 F.3d at 863 (holding tha t a claim is "based upon" a public disclosure "[i]f the publi c disclosure from which the information is actually d erived is essential to a qui tam claim"); cf. United States e x rel. Precision Co. v. Koch Indus., 971 F.2d 548, 552 (10 th Cir. 1992) (holding that "an FCA qui tam action even par tly based upon publicly disclosed allegations or transa ctions is nonetheless `based upon' such allegations or transa ctions"). 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 oth er essential element of the claim.

Second, my view of "based upon" would admittedly require a factual inquiry into the basis of a qui t am relator's allegations. Whenever there were public disclosures revealing both the true and the misrepresented fact s, a defendant would no doubt claim that the relator der ived his information from these disclosures. In response, it may be

easier for the relator to establish himself as an"o riginal source" of the information than to successfully dis prove a causal link between the public disclosures and his qui tam claim. The original source exception would sometime s be invoked by a relator with a claim that is not techn ically derived from public disclosures, but that is diffic ult to separate from those disclosures. This would be part icularly true in the case of widely publicized disclosures, such as those in Judge Wald's example. If the relator in he r example had prior direct knowledge of the fraud all egations revealed in the newspaper articles, but failed tofi le suit until after the articles appeared (a scenario quite similar to Mistick's), it may well be easier for that relator to simply

40identify its prior "original source" of the informa tion than to

prove that its qui tam action is not causally linke d with the very public disclosures.

The majority has sought to discredit the foregoing analysis. The majority's response inevitably has so me force, but that is so because minor, unintended consequenc es may result from our effectuating the plain meaning and evident intent of a complex federal statute. But on ly 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, witho ut ignoring the plain meaning of either phrase. The in tent of the "original source" exception is to allow one who contributes valuable, first-hand information regard ing a fraud on the government to bring a qui tam action w hether or not that information (or possibly other informat ion related to the fraud) was publicly disclosed, and w hether or not that relator can prove that his claim is not de rived from these disclosures. The "based upon" requirement is intended to foreclose parasitic qui tam suits that derive their claim from publicly disclosed information. Ta ken together, these two requirements will bar actions b y relators who piggyback on public disclosures and ca nnot demonstrate that they have contributed any useful ( i.e., independent and direct) information regarding a fra ud on the government.

E. Purpose of Qui Tam Actions

1. Legislative Intent

Even if I were to ignore the plain meaning of the F CA and to instead look to Congress's alleged intent in ame nding the statute in 1986, I believe that my reading of "base d upon" more fully effectuates all of Congress's goals. Con gress had three primary aims in enacting the 1986 amendments: (1) encouraging those with information regarding frauds on the government to disclose this information; (2) discou raging parasitic qui tam actions that simply take advantag e of information already in the public domain; and (3) a ssisting --and prodding--the government to act upon informat ion

41that it had been (or is being) defrauded. See S. R ep. 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 t o activate and advance qui tam cases to prosecution." ). My interpretation of "based upon" effectuates all thre e of these goals, while the view adopted by the majority in th is 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 o f "based upon" even arguably necessary. Under Stinson , the phrase "public disclosure" is something of a misnomer. Whi le it may conjure up images of a widely disseminated piec e of information or something divulged at a press confer ence, it

includes information revealed to a small number of persons, such as evidence disclosed to a single lit igant through unfiled state-court discovery (or, under th e majority's holding today, information obtained from a single FOIA request). See supra Part I. Therefore, a "publ ic disclosure" will exist in a great number of qui tam cases, foreclosing all actions "based upon" these disclosu res if not brought by an original source.

In the paradigmatic whistleblower case, the varying interpretations of "based upon" will usually lead t o 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, th e information regarding the fraud will have been brou ght forth, anyone who is not an original source will al most certainly be prevented from demonstrating that thei r 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 le gal construct only, the different interpretations of"ba sed upon" will lead to varying results, and, I contend, the p lain reading of "based upon" will most fully effectuate all of the

42goals Congress sought to advance in the 1986

amendments. The argument that a broad reading of"ba sed upon" most fully effectuates Congress's intent to p reclude parasitic suits "ignores the reality that the term `public disclosures' encompasses disclosures that receive a ll different degrees of publicity, reaching audiences ranging from one person to millions of people." Vogel, supr a, at 513.

When allegations have been "publicly disclosed" und er Stinson's broad interpretation of this phrase, but have been revealed to few people, rather than "millions of pe ople," the purpose of the FCA is best fulfilled by encouraging those who discover the information through some other sou rce to bring suit. This can be seen from our decision in S tinson, and in the majority's holding today that informatio n obtained through a FOIA request is a "public disclo sure." 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--enco uraging the disclosure of fraud, and prodding and/or assist ing the government in prosecuting this fraud--will be furth ered only if another individual who discovers the fraud through some other means is allowed to bring a qui tam acti on.

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 th is court has previously noted, statements can easily be foun d pointing in opposite directions when it comes to th e 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 legislativ e history and find some support somewhere for almost any construction of the many ambiguous terms in thefina l version.").

The D.C. Circuit in Findley purported to rely more extensively on legislative history, arguing that, i n changing the jurisdictional bar of the FCA from claims "base d upon evidence or information in the possession of the Un ited

43States" to those "based upon the public disclosure of

allegations or transactions," Congress altered the focus of the bar from information in the government's posses sion to "fraud already exposed in the public domain." Findl ey, 105 F.3d at 684. More precisely, however, what Congress intended was to change the focus from information i n the government's possession to information that is suff iciently publicly disclosed to bring the fraud to the govern ment's attention and to spur it into acting upon the infor mation.

If Congress had the intent claimed by the Findley c ourt, it could simply have substituted in the jurisdictio nal bar the phrase "information that has been publicly disc losed" for "information in the possession of the United St ates." The statute would then have read, in relevant part,"No court shall have jurisdiction over an action under this s ection based upon evidence or information that has been pu blicly disclosed in a criminal, civil, or administrative h earing, [etc.] . . . ." Instead, Congress completely change d the focus of the key phrase "based upon," eliminating a struc ture in which the phrase referred to "evidence or informati on," and creating one in which it referred to "public disclo sure of allegations or transactions." The actual statute no w reads, "No court shall have jurisdiction over an action un der this section based upon the public disclosure of allegat ions or transactions in a criminal, civil, or administrativ e hearing,

[etc.] . . . ."

There is a fundamental difference between a claim t hat is based upon certain information that has been public ly disclosed, and a claim that is based upon certain enumerated public disclosures. This difference evin ces an intent to focus not broadly on information in the p ublic domain, but narrowly on the specific public disclos ures that contain the information. The Findley court int erpreted "based upon" as if Congress chose to make the forme r change--precluding suits based upon certain informa tion-- rather than the change it actually made, in which"b ased upon" refers to certain disclosures. While this cha nge in focus is not conclusive in and of itself, I believe the D.C. Circuit's misreading of this substantial change und ercuts its argument regarding Congress's intent.

44F. Summary

In sum, I do not believe we can escape the plain me aning of the phrase "based upon" in the FCA's jurisdictio nal bar. There is no justification for giving this phrase a convoluted reading that not only ignores its plain meaning, bu t that also extends Stinson's error of interpreting the ju risdictional 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 th e 1986

amendments.

III. Disposition of Mistick's Qui Tam Suit

As I disagree with the majority's conclusion that t he material obtained through Mistick's FOIA request wa s a public disclosure, I would find that the misreprese nted 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 bee n publicly disclosed through one of the enumerated so urces, Mistick's qui tam claim is not jurisdictionally bar red.

But even if the FOIA material were to constitute a public disclosure, Mistick's qui tam action may not be"bas ed upon" public disclosures because it claims that it learned of the true state of facts not through the public disc losure in the state-court action, but earlier, through meetin gs with the maker of Glid Wall, and through its own indepen dent investigations. Because it is ultimately a fact que stion whether Mistick's information underlying its qui ta m action was derived from the public disclosures, and becaus e the District Court did not reach this issue, I would re mand for

the District Court's determination of this issue in the first instance. Cf. Siller, 21 F.3d at 1349 (remanding fo r the district court to determine whether the allegations in a relator's action were derived from a public disclos ure); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 n.16 (3d Cir. 1977) ("[T]he district court is f ree to determine facts relevant to its jurisdiction . . . .").

45IV. Conclusion

The policy consideration undergirding the restricti ve view of qui tam litigation (and the expansive view of th e jurisdictional bar) is that it is necessary to elim inate opportunistic and parasitic lawsuits. I share the v iew 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 evis cerate bona fide suits, such as the one at bar, in a lauda ble but misguided effort to halt a feared torrent of litiga tion.

In my view, the recent amendments to the False Clai ms Act were intended to encourage qui tam suits that d o not derive their knowledge of an underlying fraud from truly public disclosures, and to encourage those with inf ormation about frauds on the government to inform the govern ment about the fraud, assist the government in bringing legal action to bear against the defrauders, and, if nece ssary, 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 lang uage 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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