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Supreme Court rules on exception to whistleblower law

The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] 5-3 in Schindler Elevator Corp. v. US ex rel. Kirk [Cornell LII backgrounder, JURIST report] that a written response to a Freedom of Information Act [text; JURIST news archive] request is a "report" within the exception to a federal whistleblower law. Daniel Kirk brought a qui tam suit under the False Claims Act (FCA) alleging that his former employer Schindler Elevator had submitted hundreds of false claims under its federal contracts after he learned of the false claims from documents his wife received from a FOIA request. The Civil War-era FCA authorizes private citizens, dubbed qui tam relators, to sue on behalf of the US accusing federal contractors of fraudulent claims against the government. However, the FCA public disclosure bar [31 USC § 3730(e)(4)] forecloses qui tam suits "based upon the public disclosure of allegations or transactions ... in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation." The five-justice majority opinion by Clarence Thomas held that the written response to the FOIA request met the definition of report, thus precluding Kirk from bringing his qui tam suit. The court found that the ordinary meaning of the term "report" supported including the FOIA response. Furthermore, Thomas noted that precluding a qui tam suit in this case was supported by the public disclosure bar's rationale to prevent windfalls to qui tam relators. Three justices dissented arguing that the FOIA documents only reinforced Kirk's own impressions from his experience working for Schindler Elevator and that FOIA documents should not automatically fall under the public disclosure bar. Justice Elena Kagan recused herself.

The ruling overturned the decision by the US Court of Appeals for the Second Circuit [official website], which held [opinion, PDF] that the FOIA information was not a report or investigation under the statute and was not barred from litigation. The Supreme Court specifically rejected the circuit court's argument applying the noscitur a sociis canon to find that the meaning of report was narrower than the ordinary meaning based on the words immediately neighboring it. At oral arguments, counsel for Schindler Elevator argued that the circuit court decision opens the door to "a host of lawsuits by relators with no meaningful information to contribute," which is a situation that the public disclosure bar was created to prevent. In response, counsel for the government and Kirk argued that Schindler's overly broad application of the public disclosure bar harms the policy goal of "encourag[ing] whistleblowers specifically to use government records in their investigations" under the False Claims Act.

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