FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA EX REL 

STEVEN MATESKI,

Plaintiff-Appellant,

v.

RAYTHEON CO.,

Defendant-Appellee.

No. 13-55341

D.C. No.

2:06-cv-03614-

ODW-FMO

OPINION

Appeal from the United States District Court

for the Central District of California

Otis D. Wright II, District Judge, Presiding

Argued and Submitted

November 2, 2015–Pasadena, California

Filed March 7, 2016

Before: Mary M. Schroeder, Harry Pregerson,

and Michelle T. Friedland, Circuit Judges.

Opinion by Judge Friedland
2 UNITED STATES EX REL MATESKI V. RAYTHEON

SUMMARY*

False Claims Act

Reversing the district court’s dismissal of Mateski’s qui 

tam complaint against Raytheon Co. and remanding to the 

district court for further proceedings, the panel held that the 

public disclosure bar of the False Claims Act did not bar 

Mateski’s lawsuit.

The panel concluded that Mateski’s allegations were not 

“substantially similar” to the prior publicly disclosed reports 

when viewed at the appropriate level of generality. 

Mateski’s complaint alleged fraud that was different in kind 

and degree from previously disclosed information about 

Raytheon’s problems in performing on the contract at issue. 

The panel held that because, if his allegations prove to be 

true, Mateski is a relator who will have provided the 

government with genuinely new and material information 

about fraud, he should be allowed to move forward with his 

qui tam suit.

 

 * This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
UNITED STATES EX REL MATESKI V. RAYTHEON 3

COUNSEL

Allan J. Graf (argued) and Dean Francis Pace, Carlsmith 

Ball LLP, Los Angeles, California, for Plaintiff-Appellant.

Kimberly A. Dunne (argued), Sean A. Commons, and Brent 

L. Nichols Sidley Austin LLP, Los Angeles, California. 

Alan Charles Raul, Sidley Austin LLP, Washington, D.C., 

for Defendant-Appellee.

OPINION

FRIEDLAND, Circuit Judge:

Steven Mateski appeals the dismissal of his False Claims 

Act suit against Raytheon Co., in which he alleged fraud in 

the performance of a Government contract. Mateski argues 

that the district court erred in holding that his Complaint was 

based upon prior public disclosures and was thus precluded 

by the public disclosure bar of the False Claims Act. We 

agree. Mateski’s Complaint alleges fraud that is different in 

kind and degree from the previously disclosed information 

about Raytheon’s problems in performing on the contract at 

issue. We therefore reverse and remand for further 

proceedings.

I.

Between 1994 and 2002, the National Oceanic and 

Atmospheric Administration, Department of Defense, and 

NASA contracted with various companies to design and 

build the National Polar-Orbiting Operational 
4 UNITED STATES EX REL MATESKI V. RAYTHEON

Environmental Satellite System (“NPOESS”), a system for 

collecting meteorological, oceanographic, environmental, 

and climatic data. Raytheon entered a contract to design and 

build a Visible Infrared Imaging Radiometer Suite 

(“VIIRS”) sensor, which would be part of NPOESS. 

Eventually, the Government agencies awarded a satellite 

integration contract to a prime contractor, Northrop 

Grumman, and incorporated previously awarded NPOESS 

contracts, including Raytheon’s VIIRS contract, as 

subcontracts to the prime contract.

The NPOESS project incurred many delays and cost 

overruns. Beginning at least as early as 2003, VIIRS began 

to attract public attention as a source of these problems. For 

example, a 2004 Government Accountability Office 

(“GAO”) report stated, “At present, the program office 

considers the three critical sensors—VIIRS, CMIS, and 

CrIS—to be key program risks because of technical 

challenges that each is facing.” U.S. Gov’t Accountability 

Off., GAO-04-1054, Polar-Orbiting Envtl. Satellites: 

Information on Program Cost and Schedule Changes 18 

(Sept. 2004).1 A 2005 GAO statement explained that 

“VIIRS sensor development issues were attributed, in part, 

to [Raytheon’s] inadequate project management.” U.S. 

Gov’t Accountability Off., GAO-06-249T, Polar-Orbiting 

Operational Envtl. Satellites: Tech. Problems, Cost 

Increases, & Schedule Delays Trigger Need for Difficult 

Trade-off Decisions 18 (Nov. 2005).2 A report from the 

 

 1 Available at http://www.gao.gov/assets/250/244364.pdf.

 2 Available at http://www.gao.gov/new.items/d06249t.pdf.
UNITED STATES EX REL MATESKI V. RAYTHEON 5

Office of Inspector General at the U.S. Department of 

Commerce noted that “[i]nadequate oversight, in effect, 

postponed the critical evaluations and decisions needed to 

replan the program’s faltering elements and contain the cost 

and schedule overruns. Time and money were thus wasted 

as the problems with NPOESS continued unchecked.” U.S. 

Dep’t of Commerce, OIG-177794-6-0001, Nat’l Oceanic & 

Atmospheric Admin.: Poor Mgmt. Oversight & Ineffective 

Incentives Leave NPOESS Program Well Over Budget & 

Behind Schedule 12 (May 2006).3 A slew of news articles 

also reported cost overruns and schedule delays with 

NPOESS, including in Raytheon’s work on VIIRS.

Steven Mateski, an engineer who worked at Raytheon 

from 1997 to 2006, was assigned to work on VIIRS 

beginning in 2005. Mateski filed a complaint in June 2006 

in federal district court alleging that Raytheon had violated 

the False Claims Act (“FCA”), 31 U.S.C. §§ 3729–3733, by 

failing to comply with numerous contractual requirements in 

the development of VIIRS, fraudulently covering up areas of 

noncompliance, and improperly billing the Government for 

erroneous and incomplete work.

Six years after Mateski filed his initial complaint, the 

United States declined to exercise its right under the FCA to 

intervene in Mateski’s suit. Mateski then filed a fourth 

amended complaint (“Complaint”).4 The Complaint alleges 

 

 3 Available at https://www.oig.doc.gov/OIGPublications/OIG-17794.pdf.

 4 The district court and the parties treat this as the operative complaint, 

and so do we. It contains essentially the same level of detail and types 

of allegations of fraud as Mateski’s original complaint.
6 UNITED STATES EX REL MATESKI V. RAYTHEON

that “[f]rom 2002 to at least 2012, Defendant [Raytheon] has 

knowingly submitted false NPOESS VIIRS claims for 

payment, whereby the United States Government has been 

induced to pay money that it would not have paid if 

Defendant [Raytheon] had disclosed the true defective 

nonconformances with the NPOESS VIIRS specifications 

and requirements.” As did the original complaint, this 

Complaint makes numerous specific allegations, including: 

creation of false waivers; improper (and forged) signoffs 

certifying work performed; failure to rectify issues relating 

to electrostatic discharge; cross contamination of flight and 

non-flight quality materials; and use of prohibited materials 

such as tin plating.

Raytheon moved to dismiss for lack of subject matter 

jurisdiction. It argued that the suit was barred by 

§ 3730(e)(4)(A) of the FCA, also known as the “public 

disclosure bar,” which at the time of filing provided: “No 

court shall have jurisdiction over an action under this section 

based upon the public disclosure of allegations or 

transactions.” 31 U.S.C. § 3730(e)(4)(A) (1986); United 

States ex rel. Hartpence v. Kinetic Concepts, Inc., 792 F.3d 

1121, 1127 (9th Cir. 2015) (en banc).5 The district court 

granted Raytheon’s motion to dismiss, explaining, “[I]t was 

publicly known that there was rampant mismanagement, 

deviations from protocol, and other problems with 

 

 5 In response to Raytheon’s motion to dismiss, the Government filed a 

statement of interest requesting that, in the event the court “dismisses, in 

whole or in part, [Mateski]’s amended complaint with prejudice to 

[Mateski],” any dismissal be without prejudice to the United States’ 

filing of its own action or later election to intervene in the matter.
UNITED STATES EX REL MATESKI V. RAYTHEON 7

VIIRS. . . . [W]hile the public disclosures d[id] not discuss 

the problems on the VIIRS program in the level of detail that 

Mateski does in his [Complaint], the allegations are 

nonetheless the same for the purposes of 31 U.S.C. 

§ 3730(e)(4)(A).”

II.

We review de novo a district court’s dismissal for lack 

of subject matter jurisdiction and its interpretation of the 

False Claims Act. United States ex rel. Hartpence v. Kinetic 

Concepts, 792 F.3d 1121, 1126 (9th Cir. 2015) (en banc). 

We review for clear error a district court’s findings of fact 

that underlie its decisions on subject matter jurisdiction. Id. 

at 1126–27. Whether a particular disclosure triggers the 

public disclosure bar is a mixed question of law and fact that 

we review de novo. United States ex rel. Found. Aiding The 

Elderly v. Horizon W., Inc., 265 F.3d 1011, 1013 (9th Cir.), 

amended on denial of reh’g, 275 F.3d 1189 (9th Cir. 2001); 

see also United States v. Alcan Elec. & Eng’g, Inc., 197 F.3d 

1014, 1017 (9th Cir. 1999). The plaintiff “bears the burden 

of establishing subject matter jurisdiction by a 

preponderance of the evidence.” Alcan, 197 F.3d at 1018.

III.

The FCA prohibits “knowingly present[ing], or 

caus[ing] to be presented, a false or fraudulent claim for 

payment or approval; [or] knowingly mak[ing], us[ing], or 

caus[ing] to be made or used, a false record or statement 

material to a false or fraudulent claim” to the federal 

government. 31 U.S.C. § 3729(a)(1)(A), (B). The FCA 

allows private individuals, referred to as “relators,” to bring 
8 UNITED STATES EX REL MATESKI V. RAYTHEON

suit on the Government’s behalf against entities that have 

violated the Act’s prohibitions. 31 U.S.C. § 3730(b)(1); see 

also United States ex rel. Hartpence v. Kinetic Concepts,

792 F.3d 1121, 1123 (9th Cir. 2015) (en banc). Such suits 

are commonly called qui tam suits. Vt. Agency of Nat. Res. 

v. United States ex rel. Stevens, 529 U.S. 765, 768 (2000)

(“Originally enacted in 1863, the False Claims Act . . . is the 

most frequently used of a handful of extant laws creating a 

form of civil action known as qui tam.”); see Kinetic 

Concepts, 792 F.3d at 1123.

The FCA’s public disclosure bar deprives federal courts 

of subject matter jurisdiction when a relator alleges fraud 

that has already been publicly disclosed, unless the relator 

qualifies as an “original source.”6 Kinetic Concepts, 

792 F.3d at 1123 (quoting 31 U.S.C. § 3730(e)(4)). Under 

the public disclosure bar:

No court shall have jurisdiction over an 

action under this section based upon the 

public disclosure of allegations or 

transactions . . . unless the action is brought 

by the Attorney General or the person 

 

 6 An “‘original source’ means an individual who has direct and 

independent knowledge of the information on which the allegations are 

based and has voluntarily provided the information to the Government 

before filing an action under this section which is based on the 

information.” 31 U.S.C. § 3730(e)(4)(B) (1986). We need not decide 

whether Mateski qualifies as an original source because this case does 

not turn on the original source exception.
UNITED STATES EX REL MATESKI V. RAYTHEON 9

bringing the action is an original source of 

the information.

31 U.S.C. § 3730(e)(4)(A) (1986) (emphases added).7

The public disclosure bar is intended to encourage suits 

by whistle-blowers with genuinely valuable information, 

while discouraging litigation by plaintiffs who have no 

significant information of their own to contribute. See 

Graham Cty. Soil & Water Conservation Dist. v. United 

States ex rel. Wilson, 559 U.S. 280, 294–95 (2010). A prior 

version of the FCA had attempted to achieve a similar goal 

by banning “qui tam actions based on information already in 

the Government’s possession.” Id. at 294. Congress decided 

that provision “thwarted a significant number of potentially 

 

 7 In 2010, the Affordable Care Act replaced the 1986 version of 

31 U.S.C. § 3730(e)(4)(A) with new language, changing “based upon” 

to “substantially the same.” See 31 U.S.C. § 3730(e)(4)(A) (2010) (“The 

court shall dismiss an action or claim under this section, unless opposed 

by the Government, if substantially the same allegations or transactions 

as alleged in the action or claim were publicly disclosed.”); see also 

United States ex rel. Bogina v. Medline Indus., Inc., 809 F.3d 365, 368 

(7th Cir. 2016) (explaining that the 2010 amendment replacing the 

“based upon” language “was not a significant change, [because] both 

formulas [were] aimed at barring ‘“me too” private litigation [that] 

would divert funds from the Treasury’ to bounty seekers whose efforts 

had duplicated those of the government or an earlier bounty seeker.”) 

(third alteration in original) (quoting United States ex rel. Goldberg v. 

Rush Univ. Med. Ctr., 680 F.3d 933, 934 (7th Cir. 2012)). Given that 

Mateski’s suit was filed in 2006, the prior version of the statute governs 

here, see Graham Cty. Soil & Water Conservation Dist. v. United States

ex rel. Wilson, 559 U.S. 280, 283 n.1 (2010), though our analysis of the 

issue of substantial similarity would be the same under either version.
10 UNITED STATES EX REL MATESKI V. RAYTHEON

valuable claims. Rather than simply repeal [it], however, 

Congress replaced it [in 1986] with the public disclosure bar 

in an effort to strike a balance between encouraging private 

persons to root out fraud and stifling parasitic lawsuits.” Id.

at 294–95.8

“The public disclosure bar is triggered if three things are 

true: (1) the disclosure at issue occurred through one of the 

channels specified in the statute; (2) the disclosure was 

‘public’; and (3) the relator’s action is ‘based upon’ the 

allegations or transactions publicly disclosed.” Malhotra v. 

Steinberg, 770 F.3d 853, 858 (9th Cir. 2014) (quoting 

31 U.S.C. § 3730(e)(4)(A) (1986)). It is undisputed that the 

first two elements of this test are satisfied in this case. The 

statements Raytheon relies upon in invoking the bar 

occurred through the channels specified in the statute—news 

 

 8 Although this general purpose is well established, the legislative 

history does not reveal anything more specific about Congress’s intent 

behind the 1986 public disclosure bar. See Graham, 559 U.S. at 295 

(noting that “[h]ow exactly § 3730(e)(4) came to strike this balance in 

the way it did is a matter of considerable uncertainty”). The Court 

explained, “‘One difficulty in interpreting the 1986 amendments is that 

Congress was never completely clear about what kind of parasitic suits 

it was attempting to avoid’ . . . . Because Section 3730(e)(4) was drafted 

subsequent to the completion of the House and Senate Committee reports 

on the proposed False Claims Act Amendments, those reports, which 

contained discussion of altogether different bars, cannot be used in 

interpreting it.” Id. at 296 n.15 (quoting United States ex rel. Stinson, 

Lyons, Gerlin & Bustamante, P.A. v. Prudential Ins., 944 F.2d 1149, 

1163 (3d Cir. 1991) (Scirica, J., dissenting)). The Court further 

explained that “[t]he House and Senate Judiciary Committees each 

reported bills that contained very different public disclosure bars from 

the one that emerged in the Statutes at Large.” Id. at 295.
UNITED STATES EX REL MATESKI V. RAYTHEON 11

media, congressional hearings, and GAO reports—all of 

which were public. See United States ex rel. Found. Aiding 

the Elderly v. Horizon W., Inc., 265 F.3d 1011, 1014 (9th 

Cir.), amended on denial of reh’g, 275 F.3d 1189 (9th Cir. 

2001) (explaining that “[p]ublic disclosure can occur in one 

of only three categories of public fora: (1) in a ‘criminal, 

civil, or administrative hearing;’ (2) in a ‘congressional, 

administrative, or Government Accounting Office report, 

hearing, audit, or investigation;’ or (3) in the ‘news media.’”)

(quoting A-1 Ambulance Serv., Inc. v. California, 202 F.3d 

1238, 1243 (9th Cir. 2000)).

The dispute in this case is thus about whether Mateski’s 

action is “‘based upon’ the allegations or transactions 

publicly disclosed.” Malhotra, 770 F.3d at 858 (quoting 

31 U.S.C. § 3730(e)(4)(A) (1986)). This depends on: 

(A) whether the publicly available information about 

Raytheon’s work on VIIRS contained an “allegation or 

transaction” of fraud; and, if so, (B) whether Mateski’s 

Complaint was “based upon” said “allegation or 

transaction.” See United States ex rel. Zizic v. 

Q2Administrators, LLC, 728 F.3d 228, 235 (3d Cir. 2013). 

We address these issues in turn.

A.

The False Claims Act’s public disclosure bar uses the 

terms “allegations” and “transactions” without defining 

either term. 31 U.S.C. § 3730(e)(4)(A). Courts have 

interpreted “allegation” to refer to a direct claim of fraud, 

and “transaction” to refer to facts from which fraud can be 

inferred. See, e.g., Zizic, 728 F.3d at 235–36 (“An allegation 

of fraud is an explicit accusation of wrongdoing. A 
12 UNITED STATES EX REL MATESKI V. RAYTHEON

transaction warranting an inference of fraud is one that is 

composed of a misrepresented state of facts plus the actual 

state of facts.”) (citation omitted); United States ex rel. 

Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645, 653–54 

(D.C. Cir. 1994) (defining “allegation” as a direct claim of 

fraud and “transaction” as a combination of facts from which 

“readers or listeners may infer” fraud).

For purposes of the public disclosure bar, we have held 

that “[t]he substance of the disclosure . . . need not contain 

an explicit ‘allegation’ of fraud, so long as the material 

elements of the allegedly fraudulent ‘transaction’ are 

disclosed in the public domain.” Found. Aiding, 265 F.3d at 

1014; see also A-1 Ambulance Serv., 202 F.3d at 1243.9 We 

have explained:

[I]f X + Y = Z, Z represents the allegation of 

fraud and X and Y represent its essential 

elements. In order to disclose the fraudulent 

transaction publicly, the combination of X 

and Y must be revealed, from which readers 

 

 9 The Supreme Court has noted, “The phrase ‘allegations or 

transactions’ in § 3730(e)(4)(A) additionally suggests a wide-reaching 

public disclosure bar. Congress covered not only the disclosure of 

‘allegations’ but also ‘transactions,’ a term that courts have recognized 

as having a broad meaning.” Schindler Elevator Corp. v. United States

ex rel. Kirk, 563 U.S. 401, 408 (2011). Although the Court did not 

further elaborate on the type of “broad meaning” it intended, the Court’s 

statement supports reading the “transactions” portion of the public 

disclosure bar inclusively, as we did in Foundation Aiding, 265 F.3d 

1011.
UNITED STATES EX REL MATESKI V. RAYTHEON 13

or listeners may infer Z, i.e., the conclusion 

that fraud has been committed.

Found. Aiding, 265 F.3d at 1015 (alteration in original) 

(quoting Springfield Terminal, 14 F.3d at 654). We have 

further explained that, “in a fraud case, X and Y inevitably 

stand for but two elements: ‘a misrepresented state of facts 

and a true state of facts.’” Id. (quoting Springfield Terminal, 

14 F.3d at 654). “[I]n order to invoke the jurisdictional bar, 

a defendant must show ‘that the transaction . . . [is] one in 

which a set of misrepresented facts has been submitted to the 

government.’” Id. at 1016–17 (first alteration in original) 

(quoting United States ex rel. Dunleavy v. Cty. of Del., 

123 F.3d 734, 741 (3d Cir. 1997), abrogated on other 

grounds by Graham Cty., 559 U.S. 280 (2010)).

Applying the foregoing principles here, we find no 

allegation of fraud because the publicly disclosed 

information does not contain “an explicit accusation of 

wrongdoing.” Zizic, 728 F.3d at 236.

10 Although the public 

reports described delays and incompetence, none explicitly 

asserted deception by Raytheon.

Whether the public reports described a “transaction” 

within the meaning of the public disclosure bar is less clear. 

 

 10 Counsel for Raytheon submitted a letter after oral argument 

suggesting that a particular exchange between a member of Congress and 

an individual from the Office of the Inspector General constituted a 

“public disclosure” of fraud. But the colloquy in question conveyed 

exactly the opposite. The Office of the Inspector General explained 

therein that no indicators of fraud had been found. Hearing on the 

Inspector Gen. Report on NOAA Weather Satellites Before the H. Comm. 

on Science, 109th Cong. 66–67 (2006).
14 UNITED STATES EX REL MATESKI V. RAYTHEON

Many of the public documents Raytheon supplied to the 

district court described management and engineering 

problems with the VIIRS project—thus presenting a “true” 

state of facts. A November 2005 GAO statement is the most 

specific public statement Raytheon identifies in this respect. 

It provides:

Problems involving multiple levels of 

management—including subcontractor, 

contractor, program office, and executive 

leadership—have played a role in bringing 

the NPOESS program to its current state. As

noted earlier, VIIRS sensor development 

issues were attributed, in part, to the 

subcontractor’s inadequate project 

management. Specifically, after a series of 

technical problems, internal review teams 

sent by the prime contractor and the program 

office found that the VIIRS subcontractor had 

deviated from a number of contract, 

management, and policy directives set out by 

the main office and that both management 

and process engineering were inadequate.

Neither the contractor nor the program office 

recognized the underlying problems in time 

to fix them. After these issues were 

identified, the subcontractor’s management 

team was replaced. Further, in January 2005, 

the NPOESS Executive Committee (Excom) 

called for an independent review of the 

VIIRS problems. This independent review, 

delivered in August 2005, reported that the 

program management office did not have the 
UNITED STATES EX REL MATESKI V. RAYTHEON 15

technical system engineering support it 

needed to effectively manage the contractor, 

among other things.

U.S. Gov’t Accountability Off., GAO-06-249T, PolarOrbiting Operational Envtl. Satellites: Tech. Problems, Cost 

Increases, & Schedule Delays Trigger Need for Difficult 

Trade-off Decisions 18 (Nov. 2005) (emphasis added).11

While we are therefore satisfied that these reports 

describe a “true” state of facts, whether we can glean a 

“misrepresented” state of facts is a closer question. Reading 

between the lines of the publicly disclosed information, we 

possibly could infer that Raytheon falsely represented to the 

Government that all was well with VIIRS. Potentially 

supporting this inference is the fact that, even as the 

problems with VIIRS continued, the public statements 

suggest that Raytheon continued to be paid for its work. For 

example, an Office of the Inspector General report triggered 

by cost overruns noted that “VIIRS itself was 12 percent 

 

 11 See also, e.g., U.S. Dep’t of Commerce, OIG-177794-6-0001, Nat’l 

Oceanic and Atmospheric Admin.: Poor Mgmt. Oversight & Ineffective 

Incentives Leave NPOESS Program Well Over Budget & Behind 

Schedule 8 (May 2006) (noting that an independent review team had 

found that the “internal processes of the VIIRS subcontractor were 

inadequate and not being followed, and the subcontractor’s management 

communication and oversight were poor”); id. at 10 (“[M]onthly status 

reports repeatedly described the problems with VIIRS, as well as the 

actions being taken to solve them, and consistently noted that VIIRS was 

causing the majority of the constantly growing cost and schedule 

overruns.”).
16 UNITED STATES EX REL MATESKI V. RAYTHEON

behind schedule and approximately 30 percent over budget. 

Nevertheless, the contractor received 92 percent of available 

award fees.”12 U.S. Dep’t of Commerce, OIG-177794-6-

0001, Nat’l Oceanic & Atmospheric Admin.: Poor Mgmt. 

Oversight & Ineffective Incentives Leave NPOESS Program 

Well Over Budget & Behind Schedule iii (May 2006). The 

Inspector General’s report concluded that “[t]ime and money 

were . . . wasted as the problems with NPOESS continued 

unchecked.” Id.

Applying our X+Y=Z equation, arguably [Raytheon’s 

contract deviations] + [the Government’s continued 

payments to Raytheon] = the plausible inference that 

[Raytheon was continuing to bill the Federal Government 

and represent that all was well despite its failure to follow 

contract and policy directives]. On the other hand, the 

information in the public reports may come closer to 

suggesting breach of contract than fraud. Cf. Cafasso, 

United States ex rel. v. Gen. Dynamics C4 Sys., Inc., 

637 F.3d 1047, 1057–58 (9th Cir. 2011) (explaining that 

generally “breach of contract claims are not the same as 

fraudulent conduct claims, and the normal run of contractual 

disputes are not cognizable under the [FCA,]” and that 

“unsavory conduct is not, without more, actionable under the 

FCA.”) (alteration in original) (quoting United States ex rel. 

Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 383 

(4th Cir. 2008)). Ultimately, we believe it is arguable that a 

“transaction” was publicly disclosed, but we decline to 

 

 12 Although “contractor” may have referred to the prime contractor, 

Northrop Grumman, it is fair to infer that the subcontractor Raytheon 

was also continuing to be paid.
UNITED STATES EX REL MATESKI V. RAYTHEON 17

definitively answer that question because doing so is 

unnecessary to the resolution of this case. Even assuming 

that the public reports disclosed a “transaction,” the public 

disclosure bar does not deprive the district court of 

jurisdiction—because, as we next explain, when we examine 

the public statements most likely to constitute a transaction 

and compare them to Mateski’s Complaint, we find that the 

Complaint is not “based upon” those statements.13

B.

Under our case law, for a relator’s allegations to be 

“based upon” a prior public disclosure, “the publicly 

disclosed facts need not be identical with, but only 

substantially similar to, the relator’s allegations.” United 

States ex rel. Meyer v. Horizon Health Corp., 565 F.3d 1195, 

1199 (9th Cir. 2009), overruled on other grounds by Kinetic 

Concepts, 792 F.3d at 1128 n.6; see also Malhotra, 770 F.3d 

 

 13 The Seventh Circuit used a similar approach in United States ex rel. 

Baltazar v. Warden, 635 F.3d 866 (7th Cir. 2011), declining to answer 

the question whether the publicly disclosed information included 

“allegations or transactions” within the meaning of the public disclosure 

bar. Id. at 869. The Seventh Circuit explained that its conclusion that 

Baltazar’s suit was not “based upon” the published reports “ma[de] it 

unnecessary to decide whether those reports disclosed the ‘allegations or 

transactions’ underlying the suit.” Id. The Seventh Circuit noted that 

this allowed it to avoid answering “a more difficult” question, because 

whether there was an allegation or transaction depended on whether the 

court “underst[ood] the reports to allege widespread fraud (that is, 

intentional deceit) or only errors: fraud is actionable under the False 

Claims Act, while negligent errors are not.” Id.
18 UNITED STATES EX REL MATESKI V. RAYTHEON

at 858 (“[T]he phrase ‘based upon’ in § 3730(e)(4)(A) 

means ‘substantially similar to,’ not ‘derived from.’”) 

(quoting Meyer, 565 F.3d at 1199).14

1.

Although “substantially similar” is a phrase that appears 

frequently in our FCA decisions, we have never had 

occasion to articulate an approach to evaluating whether two 

sets of allegations are similar enough to qualify as 

“substantially similar” under the public disclosure bar. Our 

prior cases fall at the far ends of the similarity spectrum—on 

one end are cases finding substantial similarity because the 

allegations in the qui tam complaint were virtually identical 

to prior public disclosures, and on the other end are cases 

finding no similarity because the allegations in the qui tam

complaint were completely different from prior disclosures. 

Mateski’s case falls between these two extremes. If 

considered at a high level of generality, Mateski’s Complaint 

and the public reports both discuss problems with VIIRS. If 

considered at a more granular level, the allegations in 

Mateski’s Complaint discuss specific issues found nowhere 

in the publicly disclosed information. This case therefore 

requires us to at least partially fill the gap left by our prior 

decisions.

United States v. Alcan Electrical & Engineering, Inc., 

197 F.3d 1014 (9th Cir. 1999), is an example of a case on the 

virtually-identical end of the spectrum. In Alcan, we 

 

 14 This substantial similarity concept has now been codified in the 2010 

version of the FCA. See supra n.7.
UNITED STATES EX REL MATESKI V. RAYTHEON 19

explained that an FCA complaint was substantially similar 

to an earlier publicly filed complaint because there was no 

difference in the substance of the fraud alleged in the two. 

The only difference was that the earlier complaint described 

the defendant in a fairly identifiable way but without actually 

using the defendant’s name, whereas the later complaint 

added the defendant’s name specifically. Id. at 1018–19.

On the other end of the spectrum, we have found no 

substantial similarity when the prior public statements 

disclosed nothing about the fraud alleged in the later qui tam

complaint. In Foundation Aiding, for example, we 

concluded that an earlier complaint alleged “a very different 

problem—asbestos contamination—than the one alleged” in 

the relator’s complaint about receiving Medicaid and 

Medicare payments for care not actually provided. 265 F.3d 

at 1013, 1016. Thus, “the allegations contained [in the 

earlier complaint] completely failed to disclose anything 

remotely similar to the fraud alleged” in the complaint at 

issue. Id. at 1016.

In our prior cases, we sometimes have asked whether the 

Government was on notice to investigate the fraud before the 

relator filed his complaint—which is another way of 

thinking about substantial similarity. But our cases 

discussing notice to the Government also fall at the same far 

ends of the similarity spectrum, so they likewise do not 

clarify the level of similarity required. In Alcan, for 

example, we noted that the Tenth Circuit in United States ex 

rel. Fine v. Sandia Corp., 70 F.3d 568 (10th Cir. 1995), had 

found that the “the prior public disclosures contained enough 

information to enable the government to pursue an 

investigation against [the defendant].” 197 F.3d at 1019. 
20 UNITED STATES EX REL MATESKI V. RAYTHEON

We explained that “the instant case is similar to Sandia, in 

that the government, as regulator and owner, presumably 

would have ready access to documents identifying [the 

wrongdoers].” Id. We then concluded that “[t]his ready 

access makes it highly likely that the government could 

easily identify the [wrongdoers] at issue.” Id. In contrast, in 

Foundation Aiding, we observed that “it is impossible to say 

that the evidence and information in the possession of the 

United States at the time the False Claims Act suit was 

brought was sufficient to enable it adequately to investigate 

the case and to make a decision whether to prosecute.” 

265 F.3d at 1016 (alteration omitted) (quoting United States 

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

1981)).

Because the allegations in Alcan were virtually identical 

to prior public statements, and the allegations in Foundation 

Aiding were completely different from prior public 

statements, these conclusions were inevitable. These cases’ 

alternative articulation of the “substantially similar” 

inquiry—asking whether the Government was on notice—

therefore leaves the same gap identified above.

Raytheon has pointed to nothing in this circuit’s case law 

to help guide us in filling that gap. Raytheon relies upon 

Wang v. FMC Corp., 975 F.2d 1412 (9th Cir. 1992), 

overruled on other grounds by Kinetic Concepts, 792 F.3d 

1121, to support its argument that the public disclosures 

were “substantially similar” to Mateski’s allegations. Wang, 

however, is inapposite because we never addressed whether 

Wang’s complaint was substantially similar to allegations or 

transactions that were previously disclosed. Rather, in 

resolving the case based upon whether Wang qualified as an 
UNITED STATES EX REL MATESKI V. RAYTHEON 21

original source, we specifically explained that “the necessary 

premise of the [district] court’s ruling is that Wang’s 

allegation of fraud [about a military vehicle] had been 

publicly disclosed before Wang brought his suit. Wang has 

never disputed, and his arguments appear to accept, that his 

allegation had been publicly disclosed.” Id. at 1417 

(emphasis added). We touched briefly on the similarity of 

the prior disclosure but did so while emphasizing that the 

issue was not contested:

It is true that Wang’s allegation about [a 

military vehicle] is supported by a few factual 

assertions never before publicly disclosed; 

but “fairly characterized” the allegation 

repeats what the public already knows: that 

serious problems existed with the [vehicle’s] 

transmission. The district court characterized 

Wang’s allegation and most of his 

information as a rehash of what already had 

been publicly disclosed. Wang does not 

dispute this characterization, and it finds 

support in the record.

Id. (emphasis added) (citation omitted) (quoting United 

States ex rel. Dick v. Long Island Lighting Co., 912 F.2d 13, 

14 (2d Cir. 1990)).

Mateski’s case falls between the poles created by our 

prior precedent, because whether his Complaint is 

substantially similar to prior public reports depends on the 

level of generality at which the comparison is made. This 

case therefore requires us to address for the first time 

whether we should approach the substantial similarity 

question at a high or low level of generality, and accordingly 
22 UNITED STATES EX REL MATESKI V. RAYTHEON

whether a complaint that is similar only at a high level of 

generality triggers the public disclosure bar.

2.

The Seventh Circuit appears to be the only circuit to have 

focused on this level-of-generality question, developing its 

response over the course of three key cases. In United States 

ex rel. Baltazar v. Warden, 635 F.3d 866 (7th Cir. 2011), the 

relator, a chiropractor, had filed suit alleging that her former 

employer had submitted fraudulent bills to the Medicare and 

Medicaid programs by adding services that had not been 

performed and by “upcoding.” Id. at 866–67. 15 Applying 

the public disclosure bar, the district court dismissed the 

complaint based on the existence of an earlier public report 

that alleged that “57% of chiropractors’ claims (in a sample 

of 400) were for services not covered by the Medicare 

program, and another 16% were for covered services that 

had been miscoded.” Id. at 867. The Seventh Circuit 

reversed, holding that the district court had erred when it 

concluded that the report “establishe[d] such prevalent 

fraud” “that it [is] unnecessary to give private relators a piece 

of the action in order to locate wrongdoers.” Id. The court 

explained that the relator’s suit “supplied vital facts that 

were not in the public domain” because it alleged “that [the 

defendant] not only was submitting false claims but also was 

submitting them knowing them to be false, and thus was 

 

 15 The court explained that the process known as “upcoding” consists 

of changing the billing codes for services that have been performed to 

reflect procedures that would fetch higher reimbursement. Id. at 866–

67.
UNITED STATES EX REL MATESKI V. RAYTHEON 23

committing fraud.” Id. at 869. The court concluded that 

“[the relator’s] suit is ‘based on’ those defendant-specific 

facts, not on the public information that false or mistaken 

claims are common.” Id. (emphasis added).

A year later, in United States ex rel. Goldberg v. Rush 

University Medical Center, 680 F.3d 933 (7th Cir. 2012), the 

Seventh Circuit again reversed a district court’s dismissal 

pursuant to the public disclosure bar, finding no substantial 

similarity because the earlier public disclosure failed to 

identify the precise type of hospital-billing deceit alleged in 

the later qui tam complaint. There, a GAO report and several 

public audits had indicated that teaching hospitals were often 

receiving double compensation for procedures performed by 

residents. The Seventh Circuit explained that Medicare pays 

teaching hospitals for work by residents on a fee-for-service 

basis only when a teaching physician supervises the 

residents. Id. at 933–34. “Technically[, those] payments are 

for the services rendered by the teacher,” and the cost of 

educating residents is reimbursed through government 

grants instead of through payments for specific services. Id. 

Nevertheless, many teaching hospitals, according to the 

GAO report, were billing on a fee-for-service basis for 

unsupervised services that the residents performed on their 

own, and then also receiving the teaching grants. Id. at 934.

The Goldberg relators’ complaint alleged a somewhat 

different billing issue—that a particular university had 

allowed teaching physicians to supervise multiple operations 

simultaneously and then had sought Medicare 

reimbursement for all of the procedures by certifying that 

they had all been supervised. Id. at 935. The relators alleged 

fraud on the basis that regulations permit Medicare 
24 UNITED STATES EX REL MATESKI V. RAYTHEON

reimbursement only when the teaching physician is “present 

during all critical portions of the procedure and immediately 

available to furnish services during the entire service or 

procedure,” and that the double booking of the teaching 

physicians at this university meant that they were not 

“present” and “available” as the regulations required. Id. 

(quoting 42 C.F.R. § 415.172(a)(1)).

The Seventh Circuit concluded in Goldberg that 

“[relators] allege a kind of deceit that the GAO report does 

not attribute to any teaching hospital,” and that the public 

disclosure bar therefore did not apply. Id. at 936. 

Importantly, the court explained, “Unless we understand the 

‘unsupervised services’ conclusion of the GAO report . . . at 

the highest level of generality—as covering all ways that 

supervision could be missing or inadequate—the allegations 

of these relators are not ‘substantially similar.’” Id. 

Referencing Baltazar, the court concluded that “boosting the 

level of generality in order to wipe out qui tam suits that rest 

on genuinely new and material information is not sound.” 

Id.

Most recently, in Leveski v. ITT Educational Services, 

Inc., 719 F.3d 818 (7th Cir. 2013), the Seventh Circuit 

examined whether a qui tam complaint was substantially 

similar to a prior complaint that had been publicly filed. “To 

be sure,” the court explained, “Leveski’s case looks similar 

to the [earlier] Graves case at first blush. The relators in both 

cases are former employees of ITT—and even held the same 

job title. The relators in both cases also allege that ITT 

violated the incentive compensation provision of the [Higher 

Education Act].” Id. at 832. That, however, was where the 

similarities ended. Id. The court explained that “[t]he details 
UNITED STATES EX REL MATESKI V. RAYTHEON 25

of how ITT allegedly violated the [Act] are quite different in 

Leveski’s case than they were in Graves. Unlike the Graves

relators, who alleged a more rudimentary scheme by ITT to 

violate the [Act’s] incentive compensation provision, 

Leveski alleges a more sophisticated, second-generation 

method of violating the [Act].” Id. Addressing the question 

of “whether Leveski’s allegations are different enough from 

the Graves allegations to bring her suit outside the public 

disclosure bar,” the Seventh Circuit held:

A review of our recent case law leads us to 

the conclusion that they are different enough. 

Indeed, Leveski’s allegations against ITT are 

only similar to the Graves allegations when 

viewed at the highest level of generality. But 

in the last few years, we have indicated on 

more than one occasion that viewing FCA 

claims “at the highest level of generality . . . 

in order to wipe out qui tam suits that rest on 

genuinely new and material information is 

not sound.”

Id. at 831 (alteration in original) (emphasis added) (quoting 

Goldberg, 680 F.3d at 936).

We find the reasoning of these cases persuasive, and we 

believe that the Seventh Circuit’s approach effectuates the 

purpose of the public disclosure bar by “strik[ing] a balance

between encouraging private persons to root out fraud and 

stifling parasitic lawsuits.” Schindler Elevator Corp. v. 

United States ex rel. Kirk, 563 U.S. 401, 413 (2011) (quoting 

Graham Cty., 559 U.S. at 295). Allowing a public document 

describing “problems”—or even some generalized fraud in 

a massive project or across a swath of an industry—to bar all 
26 UNITED STATES EX REL MATESKI V. RAYTHEON

FCA suits identifying specific instances of fraud in that 

project or industry would deprive the Government of 

information that could lead to recovery of misspent 

Government funds and prevention of further fraud. We 

believe that adopting the Seventh Circuit’s approach 

therefore brings us closer to “the golden mean between 

adequate incentives for whistle-blowing insiders with 

genuinely valuable information and discouragement of 

opportunistic plaintiffs who have no significant information 

to contribute of their own.” Graham Cty., 559 U.S. at 294 

(quoting Springfield Terminal, 14 F.3d at 649).

3.

Raytheon argues that a subset of qui tam cases, which 

employ the phrase “quick trigger” to describe the substantial 

similarity inquiry, counsel against our adoption of the 

Seventh Circuit’s approach. Raytheon’s argument fails.

Specifically, Raytheon points to our footnote in Hagood 

v. Sonoma County Water Agency, 81 F.3d 1465 (9th Cir. 

1996), stating that “[t]he original source test is often treated 

as the focus of the jurisdictional inquiry, with courts treating 

the ‘based upon public disclosure’ step as a ‘quick trigger to 

get to the more exacting original source inquiry.’” Id. at 

1476 n.18 (quoting Cooper v. Blue Cross & Blue Shield of 

Fla., Inc., 19 F.3d 562, 568 n.10 (11th Cir. 1994)). Raytheon 

suggests that this means the public disclosure bar should turn 

on the “original source” inquiry, and that “based upon” 

should be only a superficial inquiry at a high level of 

generality. Our decision in Hagood did not, however, rely 

upon (or even analyze) this “quick trigger” notion because 

the footnote followed our conclusion that the prior public 
UNITED STATES EX REL MATESKI V. RAYTHEON 27

“filings may be enough to constitute public disclosure of 

the” fraud alleged in the qui tam complaint at issue. Id. at 

1475. Rather than analyze substantial similarity, we skipped 

directly to finding that Hagood clearly qualified as an 

original source. As such, Hagood could avoid the public 

disclosure bar even if the allegations were substantially 

similar. The “quick trigger” language Raytheon emphasizes 

was therefore not an operative concept in Hagood at all, let 

alone one that requires viewing complaints at only a high 

level of generality.

Raytheon emphasizes that other circuits also have 

incorporated the phrase “quick trigger,” but the cases that 

include this language have not used it to avoid a full 

substantial similarity analysis. In United States ex rel. 

Boothe v. Sun Healthcare Group, Inc., 496 F.3d 1169 (10th 

Cir. 2007), for example, despite including the quick trigger 

language, the court conducted “[a] side-by-side comparison 

of the first three allegations of Ms. Boothe’s complaint with 

those contained in prior qui tam actions,” to find that “the 

fraudulent schemes alleged are materially identical.” Id. at 

1174. In United States ex rel. Osheroff v. Humana Inc., 

776 F.3d 805 (11th Cir. 2015), the Eleventh Circuit also 

recently quoted the “quick trigger” language, stating, “We 

have described the [based upon] test as a ‘[] quick trigger to 

get to the more exacting original source inquiry.’” Id. at 814 

(quoting Cooper, 19 F.3d at 568 n.10). Osheroff ultimately 

held, however, that the “significant overlap between 

[relator’s] allegations and the public disclosures [wa]s 

sufficient to show that the disclosed information form[ed] 

the basis of this lawsuit and [wa]s substantially similar to the 

allegations in the complaint.” Id. Whatever work the “quick 

trigger” characterization may have done in Osheroff, nothing 
28 UNITED STATES EX REL MATESKI V. RAYTHEON

in the court’s analysis suggested that the “quick trigger” 

concept overrides the need to analyze with some specificity 

the similarity between the allegations in a qui tam complaint 

and prior public disclosures. Raytheon’s reliance on this 

language is thus to no avail.

IV.

Heeding the Seventh Circuit’s warning against reading 

qui tam complaints at only the “highest level of generality,” 

Leveski v. ITT Educ. Servs., Inc., 719 F.3d 818, 831 (7th Cir. 

2013), we now reverse the district court’s dismissal of this 

case because Mateski’s Complaint alleges fraud that is 

different in kind and in degree from the previously disclosed 

information about VIIRS. See Hagood v. Sonoma Cty. 

Water Agency, 81 F.3d 1465, 1475 (9th Cir. 1996) 

(examining whether, “fairly characterized,” the allegations 

in a relator’s complaint “repeat[] what the public already 

knows”) (quoting Wang v. FMC Corp., 975 F.2d 1412, 1417 

(9th Cir. 1992), overruled on other grounds by United States 

ex rel. Hartpence v. Kinetic Concepts, Inc., 792 F.3d 1121 

(9th Cir. 2015) (en banc)). Although prior public reports had 

described general problems with Raytheon’s work on 

VIIRS, none provided specific examples or the level of detail 

offered by Mateski.

A few examples from Mateski’s lengthy Complaint 

suffice to demonstrate that his allegations are vastly more 

precise than the prior public reports about the problems with 

VIIRS. For instance, Mateski alleges numerous particular 

false waivers of VIIRS specifications and requirements. He 

also describes false and inappropriate signoffs and 

certifications in violation of the Program Quality 
UNITED STATES EX REL MATESKI V. RAYTHEON 29

Requirements, including “obvious forged signoffs” by 

Raytheon VIIRS operators. Mateski further details 

Raytheon’s alleged substitution of “reduced Special Test 

Requirements . . . in lieu of specified testing,” which he 

claims “compromise[d] the NPOESS/VIIRS Unit/System 

integrity and mission assurance.”

With respect to materials used in the VIIRS project, 

Mateski alleges the “use of Prohibited Materials (pure Tin), 

use of Prohibited Metallic materials known to cause 

corrosion . . . when used together, use of Debris shedding 

locking fasteners (locking Heli-Coils), [and] use of 

Prohibited Materials and processes selected (Electrodeposited Nickel plating).” Mateski draws particular 

attention to problems with the J7 Power Connector, which 

he claims “[wa]s wired with forbidden (‘D & E’) materials 

of pure Tin plated wire.” He further alleges that “Raytheon 

. . . falsely stated . . . that the pure Tin plated wire would be 

acceptable for flight use despite the failure to pot the J7 

Power Connector.”

Mateski also alleges numerous problems related to 

electrostatic discharge (“ESD”), asserting, for example, that 

Raytheon failed to maintain ESD protection of VIIRS flight 

hardware; and that certain cables were constructed using 

“hot plastics,” which are “ESD unapproved materials . . . 

capable of building and storing excessive electrical charges.”

In contrast to these specific allegations, the prior public 

reports presented by Raytheon merely allege general 

problems involving mismanagement, technical difficulties, 

and noncompliance with contract and policy directives. 

Indeed, Raytheon’s own description of how these 
30 UNITED STATES EX REL MATESKI V. RAYTHEON

disclosures characterized the “problems” in general terms—

“numerous, major, profound, serious, severe, significant, 

systemic, worsening, costing billions of dollars, and 

resulting in decreased functionality”—supports reading the 

prior disclosures as revealing only very generalized 

problems with VIIRS.

Even if, as Raytheon argues, the prior public reports 

provided “enough information to . . . pursue an 

investigation” into some fraud, and even though the 

Government did in fact undertake some investigation of 

VIIRS, the prior reports could not have alerted the 

Government to the specific areas of fraud alleged by 

Mateski. The practical consequence of adopting the Seventh 

Circuit’s approach to defining substantial similarity is to 

allow relators who provide the Government with genuinely 

new and material information of fraud to move forward with 

their qui tam suits. Mateski is such a relator.

V.

Finally, Raytheon suggests that even if Mateski’s 

Complaint contains some new allegations, the public 

disclosure bar applies because the Complaint is at least 

“partly based upon” the prior public reports about VIIRS. 

We disagree.

It is true that numerous cases from other circuits have 

indicated that, if a qui tam action is even “partly based upon” 

publicly disclosed allegations or transactions, it is “based 

upon”’ those allegations or transactions for purposes of the 

public disclosure bar. See, e.g., United States ex rel. Heath 

v. Wis. Bell, Inc., 760 F.3d 688, 691 (7th Cir. 2014); Glaser 
UNITED STATES EX REL MATESKI V. RAYTHEON 31

v. Wound Care Consultants, Inc., 570 F.3d 907, 920–21 (7th 

Cir. 2009); United States ex rel. Poteet v. Medtronic, Inc., 

552 F.3d 503, 514 (6th Cir. 2009).

Even were we to adopt this “partly based upon” concept, 

it would not help Raytheon. To the extent these cases utilize 

this “partly based upon” concept to reach their holdings at 

all,16 we understand them to still require that some of the 

relator’s allegations be substantially similar to prior public 

disclosures. In Poteet, for example, the Sixth Circuit 

explained that “[d]espite the presence of one major 

allegation that was not made in the [earlier] complaint . . . 

the primary focus of Poteet’s complaint is the same . . . 

illegal kickback scheme [that was] described in [the earlier] 

complaint.” 552 F.3d at 514. There was no question in 

Poteet that some of the allegations in the complaint that the 

Sixth Circuit held were precluded by the public disclosure 

bar were substantially similar to those already disclosed. 

552 F.3d at 515 n.7 (“[A]t least some parts of Poteet’s 

complaint are clearly ‘based upon’ the [earlier] complaint.”).

Likewise, in Glaser, the Seventh Circuit held that it was 

“true that Glaser’s complaint add[ed] a few allegations” 

previously public, but that was not enough to avoid the 

 

 16 Some cases quote the “partly based upon” language but then do not 

rely upon that concept in their analysis. For example, in United States

ex rel. Heath v. Wisconsin Bell, Inc., 760 F.3d 688 (7th Cir. 2014), the 

court quoted “partly based upon,” but then held that the public disclosure 

bar did not apply because the earlier public statements had not revealed

any of the key components of the fraud alleged in the subsequent qui tam

complaint. Id. at 691–92. Thus, its ultimate conclusion does not appear 

to have depended at all on the “partly based upon” concept.
32 UNITED STATES EX REL MATESKI V. RAYTHEON

public disclosure bar “because the allegations in Glaser’s 

complaint (or most of them) were substantially similar to 

publicly disclosed allegations.” 570 F.3d at 920–21 

(emphasis added).

Because, as we have explained above, none of Mateski’s 

allegations are “substantially similar” to the prior public 

reports when viewed at the appropriate level of generality, 

the “partly based upon” cases are of no assistance to 

Raytheon.

VI.

Mateski’s allegations differ in both degree and kind from 

the very general previously disclosed information about 

problems with VIIRS. As such, if his allegations prove to be 

true, Mateski will undoubtedly have been one of those 

“whistle-blowing insiders with genuinely valuable 

information,” rather than an “opportunistic plaintiff[] who 

ha[s] no significant information to contribute.” Graham Cty. 

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

Wilson, 559 U.S. 280, 294 (2010) (quoting United States ex 

rel. Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645, 649 

(D.C. Cir. 1994)).

For the foregoing reasons, we REVERSE and 

REMAND.