SCHINDLER ELEVATOR v. U.S. EX REL KIRK

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
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No. 10–188

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SCHINDLER ELEVATOR CORPORATION, PETI-

TIONER v. UNITED STATES EX REL.

DANIEL KIRK

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[May 16, 2011]

JUSTICE THOMAS delivered the opinion of the Court.

The False Claims Act (FCA), 31 U. S. C. §§3729–3733, prohibits submitting false or fraudulent claims for payment to the United States, §3729(a), and authorizes qui tam suits, in which private parties bring civil actions in the Government’s name, §3730(b)(1). This case concerns the FCA’s public disclosure bar, which generally forecloses qui tam suits that are “based upon the public disclosure of allegations or transactions . . . in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation.” §3730(e)(4)(A) (footnote omitted).1 We must decide whether a federal agency’s written response to a request for records under the Freedom of Information Act (FOIA), 5 U. S. C. §552, constitutes a “report” within the meaning of the public disclosure bar. We hold that it does.

I

Petitioner Schindler Elevator Corporation manufactures, installs, and services elevators and escalators.2 In 1989, Schindler acquired Millar Elevator Industries, Inc., and the two companies merged in 2002.

Since 1999, Schindler and the United States have entered into hundreds of contracts that are subject to the Vietnam Era Veterans’ Readjustment Assistance Act of 1972 (VEVRAA). That Act requires contractors like Schindler to report certain information to the Secretary of Labor, including how many of its employees are “qualified

covered veterans” under the statute. 38 U. S. C. §4212(d)(1). VEVRAA regulations required Schindler to agree in each of its contracts that it would “submit VETS– 100 Reports no later than September 30 of each year.” 48 CFR §52.222–37(c) (2008); see also §22.1310(b).

Respondent Daniel Kirk, a United States Army veteran who served in Vietnam, was employed by Millar and Schindler from 1978 until 2003. In August 2003, Kirk resigned from Schindler in response to what he saw as Schindler’s efforts to force him out.3

In March 2005, Kirk filed this action against Schindler under the False Claims Act, which imposes civil penalties and treble damages on persons who submit false or fraudulent claims for payment to the United States. 31 U. S. C. §3729(a). The FCA authorizes both civil actions by the Attorney General and private qui tam actions to enforce its provisions. §3730. When, as here, the Government chooses not to intervene in a qui tam action, the private relator stands to receive between 25% and 30% of the proceeds of the action. §3730(d)(2).

In an amended complaint filed in June 2007, Kirk alleged that Schindler had submitted hundreds of false claims for payment under its Government contracts. According to Kirk, Schindler had violated VEVRAA’s reporting requirements by failing to file certain required VETS–100 reports and including false information in those it did file. The company’s claims for payment were false, Kirk alleged, because Schindler had falsely certified its compliance with VEVRAA. Kirk did not specify the amount of damages he sought on behalf of the United States, but he asserted that the value of Schindler’s VEVRAA-covered contracts exceeded $100 million.

To support his allegations, Kirk pointed to information his wife, Linda Kirk, received from the Department of Labor (DOL) in response to three FOIA requests. Mrs. Kirk had sought all VETS–100 reports filed by Schindler for the years 1998 through 2006. The DOL responded by letter or e-mail to each request with information about the records found for each year, including years for which no responsive records were located. The DOL informed Mrs. Kirk that it found no VETS–100 reports filed by Schindler in 1998, 1999, 2000, 2002, or 2003. For the other years, the DOL provided Mrs. Kirk with copies of the reports filed by Schindler, 99 in all.

Schindler moved to dismiss on a number of grounds, including that the FCA’s public disclosure bar deprived the District Court of jurisdiction. See §3730(e)(4)(A). The District Court granted the motion, concluding that most of Kirk’s allegations failed to state a claim and that the remainder were based upon the public disclosure of allegations or transactions in an administrative “report” or “investigation.” 606 F. Supp. 2d 448 (SDNY 2009).

The Court of Appeals for the Second Circuit vacated and remanded. 601 F. 3d 94 (2010). The court effectively held that an agency’s response to a FOIA request is neither a “report” nor an “investigation” within the meaning of the FCA’s public disclosure bar. See id., at 103–111 (agreeing with United States ex rel. Haight v. Catholic Healthcare West, 445 F. 3d 1147 (CA9 2006), and disagreeing with United States ex rel. Mistick PBT v. Housing Auth. of Pittsburgh, 186 F. 3d 376 (CA3 1999)). We granted certiorari, 561 U. S. ___ (2010), and now reverse and remand.

II

Schindler argues that “report” in the FCA’s public disclosure bar carries its ordinary meaning and that the DOL’s written responses to Mrs. Kirk’s FOIA requests are therefore “reports.” We agree.4

A

1

Adopted in 1986, the FCA’s public disclosure bar provides: “No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office 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. §3730(e)(4)(A) (footnote omitted).

Because the statute does not define “report,” we look first to the word’s ordinary meaning. See Gross v. FBL Financial Services, Inc., 557 U. S. ___, ___ (2009) (slip op., at 7) (“Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose” (internal quotation marks omitted)); Asgrow Seed Co. v. Winterboer, 513 U. S. 179, 187 (1995) (“When terms used in a statute are undefined, we give them their ordinary meaning”). A “report” is “something that gives information” or a “notification,” Webster’s Third New International Dictionary 1925 (1986), or “[a]n official or formal statement of facts or proceedings,” Black’s Law Dictionary 1300 (6th ed. 1990). See also 13 Oxford English Dictionary 650 (2d ed. 1989) (“[a]n account brought by one person to another”); American Heritage Dictionary 1103 (1981) (“[a]n account or announcement that is prepared, presented, or delivered, usually in formal or organized form”); Random House Dictionary 1634 (2d ed. 1987) (“an account or statement describing in detail an event, situation, or the like”).

This broad ordinary meaning of “report” is consistent with the generally broad scope of the FCA’s public disclosure bar. As we explained last Term, to determine the meaning of one word in the public disclosure bar, we must consider the provision’s “entire text,” read as an “integrated whole.” Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S. ___, ___, ___, n. 12 (2010) (slip op., at 8, 12, n. 12); see also Tyler v. Cain, 533 U. S. 656, 662 (2001) (“We do not . . . construe the meaning of statutory terms in a vacuum”). The other sources of public disclosure in §3730(e)(4)(A), especially “news media,” suggest that the public disclosure bar provides “a broa[d] sweep.” Graham County, supra, at ___ (slip op., at 8). The statute also mentions “administrative hearings” twice, reflecting intent to avoid underinclusiveness even at the risk of redundancy.

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. See, e.g., Moore v. New York Cotton Exchange, 270 U. S. 593, 610 (1926) (“ ‘Transaction’ is a word of flexible meaning”); Hamilton v. United Healthcare of La., Inc., 310 F. 3d 385, 391 (CA5 2002) (“[T]he ordinary meaning of the term ‘transaction’ is a broad reference to many different types of business dealings between parties”).

2

Nor is there any textual basis for adopting a narrower definition of “report.” The Court of Appeals, in holding that FOIA responses were not “reports,” looked to the words “hearing, audit, or investigation,” and the phrase “criminal, civil, [and] administrative hearings.” It concluded that all of these sources “connote the synthesis of information in an investigatory context” to “serve some end of the government.” 601 F. 3d, at 107; cf. Brief for Respondent 30, n. 15 (“Each is part of the government’s ongoing effort to fight fraud”). Applying the noscitur a sociis canon, the Court of Appeals then determined that these “ ‘neighboring words’ ” mandated a narrower meaning for “report” than its ordinary meaning. 601 F. 3d, at 107.

The Court of Appeals committed the very error we reversed in Graham County. Like the Fourth Circuit in that case, the Second Circuit here applied the noscitur a sociis canon only to the immediately surrounding words, to the exclusion of the rest of the statute. See 601 F. 3d, at 107, n. 6. We emphasized in Graham County that “all of the sources [of public disclosure] listed in §3730(e)(4)(A) provide interpretive guidance.” 559 U. S., at ___ (slip op., at 8). When all of the sources are considered, the reference to “news media”—which the Court of Appeals did not consider—suggests a much broader scope. Ibid.

The Government similarly errs by focusing only on the adjectives “congressional, administrative, or [GAO],”5 which precede “report.” Brief for United States as Amicus Curiae 18. It contends that these adjectives suggest that the public disclosure bar applies only to agency reports “analogous to those that Congress and the GAO would issue or conduct.” Ibid. As we explained in Graham County, however, those three adjectives tell us nothing more than that a “report” must be governmental. See 559 U. S., at ___, n. 7 (slip op., at 7, n. 7). The governmental nature of the FOIA responses at issue is not disputed.

Finally, applying the ordinary meaning of “report” does not render superfluous the other sources of public disclosure in §3730(e)(4)(A). Kirk argues that reading “report” to mean “something that gives information” would subsume the other words in the phrase “report, hearing, audit, or investigation.” Brief for Respondent 23. But Kirk admits that hearings, audits, and investigations are processes “to obtain information.” Ibid. (emphasis added). Those processes are thus clearly different from “something that gives information.” Moreover, the statute contemplates some redundancy: An “audit,” for example, will often be a type of “investigation.”

We are not persuaded that we should adopt a “different, somewhat special meaning” of “report” over the word’s “primary meaning.” Muscarello v. United States, 524 U. S. 125, 130, 128 (1998). Indeed, we have cautioned recently against interpreting the public disclosure bar in a way inconsistent with a plain reading of its text. In Graham County, we rejected several arguments for construing the statute narrowly, twice emphasizing that the sole “touchstone” in the statutory text is “public disclosure.” 559 U. S., at ___, ___ (slip op., at 11, 19). We chose in that case simply to give the text its “most natura[l] read[ing],” id., at ___ (slip op., at 5), and we do so again here.

B

A written agency response to a FOIA request falls within the ordinary meaning of “report.” FOIA requires each agency receiving a request to “notify the person making such request of [its] determination and the reasons therefor.” 5 U. S. C. §552(a)(6)(A)(i). When an agency denies a request in whole or in part, it must additionally “set forth the names and titles or positions of each person responsible for the denial,” “make a reasonable effort to estimate the volume of any [denied] matter,” and “provide any such estimate to the person making the request.” §§552(a)(6)(C)(i), (F). The DOL has adopted more detailed regulations implementing FOIA and mandating a response in writing. See 29 CFR §70.21(a) (2009) (requiring written notice of the grant of a FOIA request and a description of the manner in which records will be disclosed); §§70.21(b)–(c) (requiring a “brief statement of the reason or reasons for [a] denial,” as well as written notification if a record “cannot be located or has been destroyed” (italics deleted)). So, too, have other federal agencies. See, e.g., 28 CFR §16.6 (2010) (Dept. of Justice); 43 CFR §2.21 (2009) (Dept. of Interior); 7 CFR §1.7 (2010) (Dept. of Agriculture). Such an agency response plainly is “something that gives information,” a “notification,” and an “official or formal statement of facts.” Any records the agency produces along with its written FOIA response are part of that response, “just as if they had been reproduced as an appendix to a printed report.” Mistick, 186 F. 3d, at 384, n. 5. Nothing in the public disclosure bar suggests that a document and its attachments must be disaggregated and evaluated individually. If an allegation or transaction is disclosed in a record attached to a FOIA response, it is disclosed “in” that FOIA response and, therefore, disclosed “in” a report for the purposes of the public disclosure bar.6

The DOL’s three written FOIA responses to Mrs. Kirk, along with their attached records, are thus reports within the meaning of the public disclosure bar. Each response was an “official or formal statement” that “[gave] information” and “notif[ied]” Mrs. Kirk of the agency’s resolution of her FOIA request.

III

A

In interpreting a statute, “[o]ur inquiry must cease if the statutory language is unambiguous,” as we have found, and “ ‘the statutory scheme is coherent and consistent.’ ” Robinson v. Shell Oil Co., 519 U. S. 337, 340 (1997) (quoting United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 240 (1989)). We are not persuaded by assertions that it would be anomalous to read the public disclosure bar to encompass written FOIA responses.

1

The drafting history of the public disclosure bar does not contradict our holding. As originally enacted in 1863, the FCA placed no restriction on the sources from which a qui tam relator could acquire information on which to base a lawsuit. See Graham County, 559 U. S., at ___ (slip op., at 12). Accordingly, this Court upheld the recovery of a relator, even though the Government claimed that he had discovered the basis for his lawsuit by reading a federal criminal indictment. See United States ex rel. Marcus v. Hess, 317 U. S. 537 (1943). In response, Congress amended the statute to preclude such “parasitic” qui tam actions based on “evidence or information in the possession of the United States . . . at the time such suit was brought.” 559 U. S., at ___ (slip op., at 12–13) (internal quotation marks omitted). Then, in 1986, Congress replaced the so-called Government knowledge bar with the narrower public disclosure bar. Id., at ___ (slip op., at 13).

The Court of Appeals concluded that it would be inconsistent with this drafting history to hold that written FOIA responses are reports. The court reasoned that doing so would “essentially resurrect, in a significant subset of cases, the government possession standard . . . repudiated in 1986.” 601 F. 3d, at 109.

We disagree with the Court of Appeals’ conclusion. As a threshold matter, “the drafting history of the public disclosure bar raises more questions than it answers.” Graham County, supra, at ___ (slip op., at 14). In any event, it is hardly inconsistent with the drafting history to read the public disclosure bar as operating similarly to the Government knowledge bar in a “subset of cases.” 601 F. 3d, at 109. As we have observed, “[r]ather than simply repeal the Government knowledge bar,” the public disclosure bar was “an effort to strike a balance between encouraging private persons to root out fraud and stifling parasitic lawsuits.” 559 U. S., at ___ (slip op., at 13) (emphasis added).

If anything, the drafting history supports our holding. The sort of case that Kirk has brought seems to us a classic example of the “opportunistic” litigation that the public disclosure bar is designed to discourage. Ibid. (internal quotation marks omitted). Although Kirk alleges that he became suspicious from his own experiences as a veteran working at Schindler, anyone could have filed the same FOIA requests and then filed the same suit. Similarly, anyone could identify a few regulatory filing and certification requirements, submit FOIA requests until he discovers a federal contractor who is out of compliance, and potentially reap a windfall in a qui tam action under the FCA. See Brief for Chamber of Commerce of the United States of America et al. as Amici Curiae 20 (“Government contractors . . . are required to submit certifications related to everything from how they dispose of hazardous materials to their affirmative action plans” (citing 40 U. S. C. §3142 and 29 U. S. C. §793)).7

2

Nor will extending the public disclosure bar to written FOIA responses necessarily lead to unusual consequences. FOIA requires agencies to release some records even absent a request. See 5 U. S. C. §§552(a)(1), (2). Kirk argues that it would be strange that two relators could obtain copies of the same document but that only the relator who got the document in response to a FOIA request would find his case barred.

This argument assumes that records released under FOIA, but not attached to a written FOIA response, do not fall within the public disclosure bar. We do not decide that question. But even assuming, as Kirk does, that such records are not covered by the public disclosure bar, we are not troubled by the different treatment. By its plain terms, the public disclosure bar applies to some methods of public disclosure and not to others. See Graham County, supra, at ___ (slip op., at 4) (“[T]he FCA’s public disclosure bar . . . deprives courts of jurisdiction over qui tam suits when the relevant information has already entered the public domain through certain channels” (emphasis added)). It would not be anomalous if some methods of FOIA disclosure fell within the scope of the public disclosure bar and some did not.

We also are not concerned that potential defendants will now insulate themselves from liability by making a FOIA request for incriminating documents. This argument assumes that the public disclosure of information in a written FOIA response forever taints that information for purposes of the public disclosure bar. But it may be that a relator who comes by that information from a different source has a legitimate argument that his lawsuit is not “based upon” the initial public disclosure. 31 U. S. C. §3730(e)(4)(A). That question has divided the Courts of Appeals, and we do not resolve it here. See Glaser v. Wound Care Consultants, Inc., 570 F. 3d 907, 915 (CA7 2009) (describing the split in authority). It may also be that such a relator qualifies for the “original source” exception.8

In any event, the notion that potential defendants will make FOIA requests to insulate themselves from liability is pure speculation. Cf. Graham County, 559 U. S., at ___ (slip op., at 19) (rejecting as “strained speculation” an argument that local governments will manipulate the public disclosure bar to escape liability). There is no suggestion that this has occurred in those Circuits that have long held that FOIA responses are “reports” within the meaning of the public disclosure bar.

B

Even if we accepted these extratextual arguments, Kirk and his amici have provided no principled way to define “report” to exclude FOIA responses without excluding other documents that are indisputably reports. The Government, for example, struggled to settle on a single definition. Compare Brief for United States as Amicus Curiae 19 (“report” must be read to “reflect a focus on situations in which the government is conducting, or has completed, some focused inquiry or analysis concerning the relevant facts”) with id., at 21 (“A FOIA response is not a ‘report’ . . . because the federal agency is not charged with uncovering the truth of any matter”), and Tr. of Oral Arg. 33 (“[T]he way to think about it is whether or not the agency . . . is engaging in a substantive inquiry into and a substantive analysis of information”). It is difficult to see how the Department of Justice’s “Annual Report” of FOIA statistics—something that is indisputably a Government report—would qualify under the latter two definitions. See Dept. of Justice, Freedom of Information Act Annual Report, Fiscal Year 2010, http://www.justice.gov/oip/ annual_report/2010/cover.htm (as visited May 12, 2011, and available in Clerk of Court’s case file); see also Tr. of Oral Arg. 19 (Kirk conceding that the DOJ annual report is a report). And even if the first definition arguably encompasses that report, it would seem also to include FOIA responses, which convey the results of a Government agency’s “focused inquiry.” Kirk also was unable to articulate a workable definition. His various proposed definitions suffer the same deficiencies as the Government’s. Compare Brief for Respondent 27 and Tr. of Oral Arg. 17–18 with Brief for Respondent 34–39 and Tr. of Oral Arg. 23. Kirk’s first suggestion would exclude “a lot of things that are labeled . . . report,” id., at 22, and the second—the definition advanced by the Court of Appeals—would seem to include written FOIA responses, id., at 28–29. In the end, it appears that the “only argument is that FOIA is a different kind of mission”—“a special case.” Id., at 31. We see no basis for that distinction and adhere to the principle that undefined statutory terms carry their ordinary meaning.

* * *

The DOL’s three written FOIA responses in this case, along with the accompanying records produced to Mrs. Kirk, are reports within the meaning of the public disclosure bar. Whether Kirk’s suit is “based upon . . . allegations or transactions” disclosed in those reports is a question for the Court of Appeals to resolve on remand. The judgment of the United States Court of Appeals for the Second Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

JUSTICE KAGAN took no part in the consideration or decision of this case. It is so ordered.

1 During the pendency of this case, the Patient Protection and Affordable Care Act, 124 Stat. 119, amended the public disclosure bar. Because the amendments are not applicable to pending cases, Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S. ___, ___, n. 1 (2010) (slip op., at 1, n. 1), this opinion refers to the statute as it existed when the suit was filed.

2 The facts in this Part, which we must accept as true, are taken from the amended complaint and the filings submitted in opposition to Schindler’s motion to dismiss.

3 Kirk filed a complaint with the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), claiming that he had been “improperly demoted and constructively terminated by Schindler despite his status as a Vietnam era veteran.” App. 23a. The OFCCP investigated Schindler’s compliance with VEVRAA and found insufficient evidence to support Kirk’s claim. In November 2009, the Department of Labor affirmed the OFCCP’s finding. 601 F. 3d 94, 99 (CA2 2010).

4 Because we conclude that a written response to a FOIA request qualifies as a “report” within the meaning of the public disclosure bar, we need not address whether an agency’s search in response to a FOIA request also qualifies as an “investigation.”

5 Although the statute refers to the “Government Accounting Office,” it is undisputed that Congress meant the General Accounting Office, also known as GAO and now renamed the Government Accountability Office. See Graham County, 559 U. S., at ___, n. 6 (slip op., at 6, n. 6).

6 It is irrelevant whether a particular record is itself a report. The attached records do not “becom[e]” reports, 601 F. 3d, at 109, but simply are part of a report.

7 There is no merit to the suggestion that the public disclosure bar is intended only to exclude qui tam suits that “ride the investigatory coattails of the government’s own processes.” Brief for Taxpayers Against Fraud Education Fund as Amicus Curiae 25, 26; see Graham County, 559 U. S., at ___ (slip op., at 19) (rejecting the argument that the public disclosure bar applies only to allegations or transactions that “have landed on the desk of a DOJ lawyer”).

8 An “original source” is “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.” §3730(e)(4)(B). Some Courts of Appeals have narrowly construed the exception to limit “original sources” to those who were the cause of the public disclosure, while others have been more generous. See United States ex rel. Duxbury v. Ortho Biotech Prods., L. P., 579 F. 3d 13, 22 (CA1 2009) (describing a three-way split among the Courts of Appeals). That question is not before us, and we do not decide it.

GINSBURG, J., dissenting

SUPREME COURT OF THE UNITED STATES
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No. 10–188

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SCHINDLER ELEVATOR CORPORATION, PETI-

TIONER v. UNITED STATES EX REL.

DANIEL KIRK

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[May 16, 2011]

JUSTICE GINSBURG, with whom JUSTICE BREYER and JUSTICE SOTOMAYOR join, dissenting.

The Veteran Era Veterans’ Readjustment Assistance Act of 1972 (VEVRAA) requires federal contractors to certify, each year, the number of “qualified covered veterans” they employ and related information. 38 U. S. C. §4212(d); 48 CFR §§22.1310(b) and 52.222–37(c) (2008). Respondent Daniel A. Kirk, a Vietnam War veteran and a former employee of petitioner Schindler Elevator Corporation (Schindler), had cause to believe, based on his own experience and observations, that Schindler failed to meet VEVRAA’s annual information-reporting requirements. To confirm and support his on-the-job observations, Kirk obtained, through several Freedom of Information Act (FOIA) requests to the Department of Labor (DOL), copies of Schindler’s VEVRAA filings. The DOL responses revealed that, in some years, Schindler filed no information, while in some other years, the corporation filed false information. Armed with the DOL’s confirmation of his own impressions, Kirk commenced suit against Schindler under the federal False Claims Act (FCA), 31 U. S. C. §3729 et seq.

In a carefully developed, highly persuasive opinion, the Second Circuit explained why a federal agency’s response to a FOIA request should not automatically qualify as a “report, hearing, audit, or investigation” preclusive of a whistleblower’s lawsuit under the public disclosure bar of the FCA, §3730(e)(4). I would affirm the Second Circuit’s judgment as faithful to the text, context, purpose, and history of the FCA’s public disclosure bar.

The Court finds no “textual basis” for the Second Circuit’s interpretation of the statutory language. Ante, at 6. But the Court of Appeals’ opinion considered text as well as context. Leaving aside the term “report,” the court explained: “All of the other terms in [§3730(e)(4)(A)’s] list of enumerated sources connote the synthesis of information in an investigatory context. ‘[C]riminal, civil, [and] administrative hearings,’ for instance, all entail a government inquiry into a given subject, here into an alleged case of fraud. Similarly, government ‘hearing[s and] audit[s]’ are processes by which information is compiled with the concerted aim of deepening a government entity’s knowledge of a given subject or, often, determining whether a party is in compliance with applicable law. . . .

“In this context, the term ‘report’ most readily bears a narrower meaning than simply ‘something that gives information.’ Rather, it connotes the compilation or analysis of information with the aim of synthesizing that information in order to serve some end of the government, as in a ‘hearing’ or ‘audit.’ It does not naturally extend to cover the mechanistic production of documents in response to a FOIA request made by a member of the public.” 601 F. 3d 94, 107 (2010) (citations omitted). Focusing on the FOIA requests in this case, the Court of Appeals observed that DOL’s responses did not “synthesize the documents or their contents with the aim of itself gleaning any insight or information, as . . . it necessarily would in conducting a ‘hearing’ or ‘audit.’ ” Id., at 108. Far from “compil[ing] or synthesiz[ing] information to serve its own investigative or analytic ends,” id., at 111, DOL merely assembled and duplicated records, or noted the absence of records.

Contrary to the Court’s assertion, moreover, the Second Circuit was mindful of the “error we reversed in Graham County [Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S. ___ (2010)],” ante, at 6; the Court of Appeals used the noscitur a sociis canon only “as a guide in sifting through the common understandings of ‘report’ and ‘investigation’ to discover their intended meaning within the FCA.” 601 F. 3d, at 108, n. 6. The court explained: “We . . . have not used the canon to impose commonality on terms that ‘do not share any . . . core of meaning,’ Graham County, [559 U. S., at ___, n. 7 (slip op., at 7, n. 7)]. To the contrary, the terms ‘hearing,’ ‘report,’ ‘audit,’ and ‘investigation’ all refer to processes of uncovering and analyzing information or to the products of those processes. Our interpretation focuses on their shared ‘core of meaning.’ ” Ibid.

The Court faults the Court of Appeals for not considering §3730(e)(4)(A)’s “reference to ‘news media,’ ” ante, at 7, suggesting that this omission overlooked Graham County’s observation that “all of the sources [of public disclosure] listed in §3730(e)(4)(A) provide interpretive guidance.” 559 U. S., at ___ (slip op., at 8). Schindler did not make this argument below. In any event, the point would have been unavailing. Disclosures “of allegations or transactions . . . from the news media,” §3730(e)(4)(A) (emphasis added), share a common core of meaning with disclosures in other sources that involve “processes of uncovering and analyzing information or . . . the products of those processes.” 601 F. 3d, at 108, n. 6.

The Court regards the case Kirk has brought as “a classic example of the ‘opportunistic’ litigation that the public disclosure bar is designed to discourage.” Ante, at 10. But as the Second Circuit observed: “[T]he facts of this case belie the assertion that individuals who are not original sources and who obtain information through FOIA requests will generally not be persons with firsthand knowledge of fraud but rather will be opportunistic litigators. The facts also illustrate how an overbroad reading of the jurisdictional bar would prevent an individual with independent but partial knowledge of a possible fraud would be barred from bringing a lawsuit that is neither parasitic nor frivolous.” 601 F. 3d, at 110 (citation omitted).

By ranking DOL’s ministerial response an “administrative . . . report,” akin to a “Government Accounting Office report,” §3730(e)(4)(A) (footnote omitted), the Court weakens the force of the FCA as a weapon against fraud on the part of Government contractors. Why should a whistleblower attentive to the heightened pleading standards of Federal Rule of Civil Procedure 9(b) be barred from court if he seeks corroboration for his allegations, as Kirk did, through a FOIA request simply for copies of a contractor’s filings? After today’s decision, which severely limits whistleblowers’ ability to substantiate their allegations before commencing suit, that question is worthy of Congress’ attention.

Print this transcript Transcript: 

ORAL ARGUMENT OF STEVEN ALAN REISS ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We'll hear argument next in Case 10-188, Schindler Elevator Corporation v. United States ex rel. Daniel Kirk.

Mr. Reiss.

Mr. Reiss: Mr. Chief Justice, and may it please the Court:

The question in this case is whether a FOIA response is a report or investigation within the meaning of the False Claims Act public disclosure bar.

Our position that it is allows the Court to reach the critical question whether a relator has contributed genuinely valuable information.

The position taken by Mr. Kirk and the Government would disallow the public disclosure bar before reaching that critical issue, and it would therefore lead to a host of lawsuits by relators with no meaningful information to contribute, and that is precisely the result that the public -- the public disclosure bar is intended to prohibit.

Now--

Justice Ruth Bader Ginsburg: But suppose the FOIA information is just to confirm, to back up, to fill out; that the -- the relator suspects there's a fraud going on, and he thinks that the -- the fraud will be documented by filings that the alleged fraudulent party has made in the government.

Mr. Reiss: --Justice--

Justice Ruth Bader Ginsburg: Yes.

Mr. Reiss: --Justice Ginsburg, that may well be a legitimate use of a FOIA request, and the question then becomes whether the information disclosed in the FOIA response reveals the allegations and transactions upon which the qui tam suit is based.

But that question, that use by a relator of the FOIA process, doesn't go to whether or not a FOIA response is itself a report or investigation within the statute.

A relator can still escape the public disclosure bar if the relator can demonstrate that his complaint is not based upon the allegations and transactions that are disclosed in the FOIA response.

Justice Ruth Bader Ginsburg: So in each case, we'd have to tell what was the -- the false claims claim; was it so heavily dependent on FOIA disclosures, or was the FOIA disclosures -- say they were a minimal part of the--

Mr. Reiss: Precisely, Justice Ginsburg.

In fact, what a court should do is precisely what the district court did in this very case in a very thorough opinion.

Judge Stein went through every element required for the public disclosure bar to be invoked, including whether the FOIA response was a report or investigation, including whether Mr. Kirk's complaint was based on allegations and transactions disclosed in that FOIA response, and concluded that every prong of the disclosure -- public disclosure bar was met, and, therefore, the public disclosure bar prevented Mr. Kirk's claims.

And that is precisely the analysis that we contend ought to happen.

Under the Government's position and Mr. Kirk's position, you never get to the critical inquiries about whether the allegations in a relator's complaint were publicly disclosed in a report or investigation, because under their view, a FOIA response itself is rarely going to qualify as a -- as an administrative report or as an administrative investigation.

We think that view is plainly incorrect under the ordinary uses of the words "report or investigation", a position that was obviously found to be the case by the First, Fifth, and Third Circuits.

Justice Ruth Bader Ginsburg: --If I -- if I submitted, as we -- all Federal judges do, financial disclosure statements to an administrative office, and then someone from the press has a Freedom of Information Act request to see that financial disclosure statement, does it then become -- does it become the report of the administrative office, rather than my report to the administrative office?

Mr. Reiss: Well, Justice Ginsburg, that's an interesting question, and whether -- and some lower courts have held that if the Federal -- if the -- if the report -- even though the report is filled out by a nongovernmental person, such as yourself in this instance, it might still qualify as an administrative report because the information being sought is dictated by a Federal administrative agency.

Now, we don't think you have to reach that position for -- for Schindler to prevail here, because the one thing that is clear is that a FOIA response by the Department of Labor is itself an administrative report or investigation.

It is a Federal--

Justice Anthony Kennedy: Suppose that in this case, the agency has said: Well, we have 10 files where these documents are, and we'll make them available you to in the reading room.

Go to the reading room.

Is that a report?

Mr. Reiss: --Justice Kennedy, if the agency has exercised some selectivity in terms of what it's put in that reading room, we would argue that it is a report.

That's a far cry from what we have here, but that's a much closer case.

But with respect to FOIA responses, the third way in which information is disclosed by an agency under FOIA, it is always in response to a specific FOIA request.

The FOIA response constitutes the agency's official response to that request.

It's subject to appeal, appeals -- even subject to appeal in the Federal courts, and this Court itself has had--

Justice Anthony Kennedy: Well, I don't know if the files are digitized or not, but if they want this particular veteran's report, suppose you could just push a button, and they all come out.

Is -- is that a report when those veteran's documents are just put together in a rubber band and shipped off?

Mr. Reiss: --It certainly is a report.

A report is any officially sanctioned notification.

Common understanding.

Chief Justice John G. Roberts: It doesn't sound like in normal parlance if you come to an agency and say I want these documents, and the person comes down and says here they are, he's not going to say here's my report.

He's going to say here are the documents you asked for; this is our response.

Mr. Reiss: Mr. Chief Justice, it is a report in the following sense: The agency is saying, one, we have these documents; two, these documents are the very documents you're asking for.

That is--

Chief Justice John G. Roberts: There's information, facts, that you can glean from their action, but that doesn't make what they've done a report.

Mr. Reiss: --Well, with all due respect, Mr. Chief Justice, I think their response in handing over the documents, saying these are the documents, is a report that we have these documents; here are the documents you've requested.

Now, of course--

Justice Sonia Sotomayor: So that means that if they tell you go look for it on the Web site of X agency, then they are incorporating everything that that other agency has as part of their report?

Mr. Reiss: --Well, they are--

Justice Sonia Sotomayor: That it's not a response in telling you you've got to find what you're looking for?

Mr. Reiss: --It is a report in the sense they're reporting where to look for it.

It is a far cry from the FOIA responses at issue in this case and most FOIA responses.

In this case, there are three different FOIA responses at issue.

The first two FOIA responses have two important pieces to them.

They say, one, for certain years we couldn't find any of these VETS-100 reports, we don't have them.

We do have them for other years.

Those responses communicated key facts upon which Mr. Kirk based his qui tam complaint.

He alleged that in 6 of the years -- 6 of the 9 years at issue here, his allegation is Schindler never filed these required VETS-100 reports.

The communication by the Department of Labor, we don't have those reports in those years, was the sole basis on which those allegations are made and is clearly a report.

The report is: We don't have those reports.

Chief Justice John G. Roberts: Is your position that sometimes it can't -- a FOIA response can be a report and other times it's not?

Mr. Reiss: No, Mr. Chief Justice.

Our position is that every FOIA response is itself a report -- many will require an investigation -- but every FOIA response is itself a report within the ordinary meaning of the word "report", which is a notification.

There are news reports, there are weather reports, there are traffic reports.

There are, as in this case, VETS-100 reports.

They are all reports.

Justice Ruth Bader Ginsburg: So there's no difference between a report -- the government has an investigating commission and it works up a report -- as opposed to the many government agencies that are just repositories?

They accept pieces of paper, reports, filed by other people, like a tax return, like a financial disclosure.

The agency does nothing, has no input.

I mean, there's surely different between those two kinds -- one, I would say, the natural understanding would be it's a report by the person who's filing it to the agency; and the other, where the agency puts personnel to investigate an issue, is a report of the agency.

And you seem to say, no, they're all reports of the agency.

Mr. Reiss: Justice Ginsburg, let me be clear.

If -- if the agency simply had an open-door policy, just filed everything in a room and said in response to a FOIA request those documents are publicly available, you can go in and search our files, figure out if those reports are there or not -- that agency response would not be a -- a report or investigation.

A response that simply says do the search yourself--

Justice Ruth Bader Ginsburg: Let's take this very case--

Mr. Reiss: --We may or may not have the document.

Justice Ruth Bader Ginsburg: --I'm asking you isn't there a difference between saying we want the raw filings, we want what Schindler filed, we don't want the government to do any investigations, we want them to do just the mechanical thing that they do under FOIA, and an agency saying we're going to investigate and make a report, we're going to put our people under the investigators, and we're going to interview witnesses, they're going to examine documents, and -- and we'll make a report?

That's how I understand a government report.

But it's very hard for me to understand how a report by Schindler becomes a government report simply because it is filed with the agency.

Mr. Reiss: Justice Ginsburg, we think that reports and investigations can certainly vary drastically in degree and kind.

An antitrust investigation may require millions and millions of documents and take the Justice Department 4 years.

On the other hand, if the Department of Labor itself had decided to determine or to investigate whether Schindler itself had filed these VETS-100 reports, it would have done exactly what it did in response to Mr. Kirk's FOIA request.

It would have -- it went to -- his request started out with the Department of Labor Office of Information.

It was sent to the Division on Investigation and Compliance, located in a completely separate building.

The response to his request was delivered by Mr. Robert Wilson, who is the chief of the Investigations and Compliance Division.

His activity clearly constitutes an investigation, and the results that he gives to Mr. Kirk is clearly a report.

There may be many other agency activities that are far more detailed, far more complex, but it doesn't make what is done in response to a FOIA request not a report or investigation.

They are still reports and investigations within the ordinary meaning of those words.

Justice Samuel Alito: But is the question whether the documents that are turned over themselves reports or whether they are included in a report?

I thought what (e)(4) said was that you -- you determine whether it is in a congressional administrative or accounting office report.

So that, suppose the Department of Labor issued what everybody would concede is a report and appended to that certain documents, wouldn't those documents be in the report, even though they are not the report themselves?

Mr. Reiss: Absolutely, Justice Alito.

When -- when a FOIA response says, as it did in this case, we didn't -- say it says we didn't find certain documents; we did find certain documents.

Here are the documents we found.

The attachment of the documents that's found is part of the report, but the report is -- is a complete report.

We didn't find some things; we found these things, here are the things we found; they meet the description of what you asked for.

The documents being attached are clearly part of the report.

Now, we think that the position taken by the Government and the Respondent also creates fairly serious dislocations.

Under the definition of Mr. Kirk and the Government, many things that are actually called reports by statute are not reports.

The Department of Labor's -- Department of Labor reports that it is required to file detailing its oversight and compliance of VEVRRA, the statute at issue here, is called a report under section 1354.

The -- the report that every agency must file under the Freedom of Information Act detailing their activities and their compliance with FOIA, itself called a report under the Freedom of Information Act, that is not a report under the definition advanced by the Government and Kirk, because they require some element that appears nowhere in the public disclosure bar.

They require an element of some kind of search for wrongdoing or fraud.

That definition appears nowhere in the public disclosure bar.

Justice Ruth Bader Ginsburg: We'll find out from them if that is what they have set their position.

I had not read them to say that.

I read them to say only -- to challenge your position that every FOIA response is necessarily a report for purposes of the False Claims Act.

Mr. Reiss: Yes, Justice Ginsburg, but their response is that certain FOIA responses will constitute a report or investigation, depending on the underlying documents that are disclosed.

Justice Ruth Bader Ginsburg: If you request a report, then you get a report.

Mr. Reiss: But -- but their -- their test for the underlying documents is effectively the resurrection of their on-the-trail notion that this Court rejected only last term in the Graham County case.

They infused that requirement, the report requirement, with this notion that the government has to be looking for something wrong.

And if the report that is disclosed along with, as Justice Alito points out, the FOIA response is a report that indicates the government was looking for something wrong, well, that's a report.

If it doesn't indicate that, it doesn't qualify as a report.

We think that crabbed definition of report is not the ordinary definition of report, and this Court has said innumerable times, including I've heard even today that the Court looks to the ordinary, regular meaning of terms.

The ordinary meaning of FOIA response.

If there are no further questions, Mr. Chief Justice, I would reserve my time.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Willens.

ORAL ARGUMENT OF JONATHAN A. WILLENS ON BEHALF OF THE RESPONDENT

Mr. Willens: Mr. Chief Justice, and may it please the Court:

Schindler is asking the Court to construe "administrative report" far too broadly.

In its view, the public disclosure bar would apply to all FOIA documents, regardless of their content.

It would also apply to nearly all other documents created or disclosed by the government.

This construction of the bar would seriously undermine the operation of the False Claims Act.

Congress amended the Act in 1986 to encourage whistleblowers specifically to use government records in their investigations.

This Court recognized that objective in the Hughes Aircraft case.

Chief Justice John G. Roberts: Most of the -- maybe I'm -- maybe this isn't correct, but many FOIA responses include more than just turning over the documents.

They've got a privilege log or other things, this exemption applies, here's a document, but these things are blacked out, and they tell you why.

Is that a report?

Mr. Willens: No, Your Honor.

If it's a FOIA response, it's not a report.

The -- the documents here are very, very typical of a low-level FOIA response, and the -- this Court, of course, gets more complicated FOIA cases with our First Amendment issues and national security issues, but this is a very, very standard FOIA response.

And the letter, which is in the record, is a very typical FOIA response.

It's a form letter with three paragraphs: We got your request; here's what we found, you can appeal if you want to.

They're all the same.

So for this purpose, it's useful just to look at this one.

That -- there's always a possibility that a FOIA officer will uncover something else, a sign of wrongdoing, for example; but that -- at that point, it becomes not a FOIA case anymore, not a FOIA process anymore.

FOIA is very limited to just the finding and releasing of documents.

And for that reason, we--

Chief Justice John G. Roberts: Well, but it's not really because it does get into the assertion of exemptions and privileges, and--

Mr. Willens: --That's true.

Chief Justice John G. Roberts: --things of that sort.

And why isn't that a report of somebody's evaluation of the particular documents that are being released?

Mr. Willens: The -- all the work that Your Honor described goes into whether or not that document should be released; and under the False Claims Act test the release of documents is only the first test in the five-part public disclosure bar test.

It -- FOIA just moves the -- the document from the government files into the public and satisfies the first prong of the test.

But the Second Circuit said that the second part of the test requires an examination of the individual documents that are being released.

Justice Samuel Alito: Well, could we talk about the test that you propose?

You say that a report is a usually formal account of the results of an investigation given by a group or person authorized to make it, right?

Mr. Willens: That's right.

Justice Samuel Alito: And then an investigation is most reasonably understood as an official probe into fraudulent conduct.

Mr. Willens: That's correct, Your Honor.

That--

Justice Samuel Alito: So if the report does not investigate fraudulent conduct, then it isn't -- if something does not involve information about fraudulent conduct, it's not a report?

Mr. Willens: --We -- we wouldn't take that hard a line, Your Honor.

The -- the material you're quoting comes out of the dictionary, and we were looking for a good -- it's based on dictionary definitions, I mean.

We were looking for a good, reasonable definition to come out of Webster's Dictionary.

We're asking the Court to adopt the Second Circuit's definition, which is broader and doesn't have an explicit requirement of investigation into fraud.

And we certainly aren't asking the Court to rule that all the standard administrative reports that agencies issue all the time are not reports.

But it's very useful in a close case where the document doesn't say this is the administrative report or the report of staff on a particular issue -- it's very helpful in a close case to look at the context of the statute.

Justice Samuel Alito: Well, could I ask you about a document to which your adversary referred?

The Department of Justice and all of the other departments are required annually to issue what are termed Freedom of Information Act reports.

Now, is that a report--

Mr. Willens: Yes.

Justice Samuel Alito: --under the False Claims Act?

Mr. Willens: Yes, it is, Your Honor, and we've argued that because the FOIA uses the word "response" for the documents we're talking about today and uses the word "report" for that document that goes to Congress, it must have understood those words to mean different things.

Justice Samuel Alito: But this report is -- doesn't seem to involve a process that's any less mechanical than responding to a FOIA report.

It's basically a compilation of statistics: how many requests were filed, how long it took to process them, exemptions that were claimed, and so forth.

So what's the difference?

Mr. Willens: Well, FOIA is a special case, Your Honor; that's the first difference.

It only looks into whether or not documents should move from government files into the public, and we're suggesting that because there's such a strong government purpose in encouraging whistleblowers to bring those documents out, that in order to give meaning to the list of enumerated sources here you have to look at what the documents are there, that are coming out.

You can look at this FOIA cover letter, and I think you'll see that it doesn't have any substantive content to it.

It just refers to the investigation, or it refers to the FOIA search that was -- that took place here.

Justice Antonin Scalia: Well--

Mr. Willens: In a lot of ways -- sorry.

Justice Antonin Scalia: --Give us -- give us your definition.

You say you're not standing by the dictionary definition--

Mr. Willens: Right.

Justice Antonin Scalia: --that was read.

You're -- what is your definition?

It's not just reports of investigations into fraud.

What else is it?

Mr. Willens: On the investigation side, it's a definition -- the definition is a focused and sustained inquiry toward a government end, a substantive government end that would have to do with the policies and practices of the -- of the agency; that is, uncovering noncompliance or assembling information about a policy program or something like that.

We're trying to distinguish that from--

Justice Antonin Scalia: Do you know any -- any dictionary that gives that definition?

I mean, the advantage of -- of the Petitioners' is they use a -- a dictionary definition.

It may be a very broad one and you don't like it for that reason, but it is the way the word is sometimes used.

Mr. Willens: --It is, Your Honor.

Justice Antonin Scalia: I don't know any dictionary that would define the word the way you say it.

Mr. Willens: That's the Second Circuit's holding, Your Honor.

That's exactly why we spent a large part of our brief explaining why there's a better dictionary definition than the one that Petitioner uses.

One important difference--

Justice Ruth Bader Ginsburg: Which is -- can you point us to the page so we can see the Second Circuit's definition of report and the Second Circuit's definition of an FCA investigation?

Mr. Willens: --I'm not sure that I can do that, Your Honor.

Justice Ruth Bader Ginsburg: Well, I don't -- I don't want to eat into your time.

Justice Samuel Alito: Well, I -- I understood the definition that I read to be the position that you are advocating, not simply some dictionary -- some definition that happens to appear in the dictionary.

I understood that to be the test that you were saying we should adopt.

Am I wrong?

Did I misread your brief?

Mr. Willens: We -- we believe that that's a good definition that could be used, Your Honor, but the trouble is that there's not going to be any dictionary definition that covers all the innumerable ways that "administrative report" can be used.

And I wanted to just -- to answer your earlier question to say that, of course, there are standard administrative reports that agencies issue.

The -- the courts below have been resolving this kind of issue outside the FOIA context for 25 years since this statute was passed without any serious trouble.

Justice Samuel Alito: But if we adopt your definition, isn't it true that a lot of things that are labeled Department of Labor report, Justice Department Freedom of Information Act report, are not reports?

Mr. Willens: Yes, Your Honor, and that's why I told you that the Second Circuit's definition, if you're looking for an overarching definition, is a better one.

The trouble there--

Justice Samuel Alito: So you're withdrawing from the definition that you proposed in your brief?

Mr. Willens: --I -- I believe they are both helpful, Your Honor, and I also believe that the -- the Second Circuit's definition covers all of these kinds of reports, but there's no need for this Court to issue its own definition.

There's another way of resolving this case, which is simply to answer the question of whether FOIA responses, which are unique in many respects, and have their own statutory and regulatory structure, are administrative reports or investigations on their own terms.

And--

Justice Antonin Scalia: Don't we have to say why?

Don't we have to say why they are they are that?

Mr. Willens: --Of course, you have--

Justice Antonin Scalia: And once we have to say why, we're -- we're getting into the need for defining what a report is.

Mr. Willens: --Well, I -- it would be possible--

Justice Antonin Scalia: We don't usually just say yes, no; you know, we usually give reasons.

Mr. Willens: --I agree with that, Your Honor, but point two of our brief is an explanation of why it makes sense not to have a categorical rule that every FOIA response and all of its attachments are always administrative reports and investigations.

And I submit you don't have to, to find administrative report an investigation for all purposes in order just to answer that narrow question.

For example, the word "investigation" is used in the False Claims Act for a very specific kind of investigation: a law enforcement investigation.

And a FOIA search, which is defined in that statute as a review, is not an investigation.

Justice Antonin Scalia: Let's talk about the purpose of the statute.

Surely, that should bear upon how you read the -- what you read the words to mean.

I had thought that the purpose was as -- as Petitioner's counsel said, the purpose was to allow people to bring qui tam actions who have their own information and who are not just relying on information that they -- that is not personal to them.

Is that accurate or not?

Mr. Willens: No, Your Honor.

The -- the statute has always encouraged both insiders and people who are dealing with secondhand information, what we used to call private attorney generals, to go out and do their own investigation.

And Congress amended the statute in 1986 to encourage those people and insiders like Mr. Kirk to get documents out of the government files that they need as evidence to support their case.

The case doesn't lack merit simply because the whistleblower needs additional evidence to prove his case in court, and FOIA is a critical aspect of that because relators frequently don't have one piece of information, which is what their corporation said to government contracting officers.

That is, Mr. Kirk, for example, knows operationally -- he knows that every contract Schindler had for 15 years was breached because they were not following the key contractual provision to abide by the--

Justice Antonin Scalia: He only knows that because of the FOIA response.

Mr. Willens: --No, Your Honor.

Justice Antonin Scalia: Because -- because the agency said we don't have any reports for those 5 years.

Why isn't that information from the agency a report by the agency that we don't have any documents from those 5 years, and, therefore, your client says they didn't file documents for those 5 years?

Mr. Willens: There were a few statements wrapped up in that -- in that question, Your Honor.

But the point I'm trying to make is that Mr. Kirk has a vast amount of inside knowledge about this breach of contract that was going on for so many years, and it's different from the notification requirement.

That's what triggers the False Claims Act liability.

But it's different from saying that there was a fraudulent scheme going on for 10 or 15 years that damaged the government, damaged the veterans employed by the company, and -- and undermined the whole purpose of VEVRRA that requires it to be in these contracts.

Justice Sonia Sotomayor: Counsel, the -- I think you've just divided up two issues.

The first is, the FOIA letter does tell you that there weren't reports for certain years.

Mr. Willens: It said -- the word is that reports were not found.

Justice Sonia Sotomayor: Found.

Now, the issue is different from whether the ones that were found were false or not; is that correct?

Mr. Willens: That's true, and I would say it's also different from the issue of whether they were filed, because the fact that the agency didn't find them during a cursory review of its records, which is -- a reasonable review of the records is all it's required to do.

In a compliance investigation, of course, they would go on much further.

They would look to see if the documents were filed somewhere else.

If they--

Justice Antonin Scalia: But your client would search if they weren't filed, and on the basis of no other information except this FOIA response.

Mr. Willens: --It's not no other information, Your Honor.

It's a pattern of--

Justice Antonin Scalia: How else does your client know that there were no reports filed for these years, which is part of the -- part of the claim here?

Mr. Willens: --He knows that Schindler did not collect the information that it would have needed in order to file accurate reports.

Justice Antonin Scalia: He wasn't there during those years, was he?

Mr. Willens: He was only not there during the very tail end of our period, which runs from 1999 to 2005.

He was there and he was fired or let go in the middle of 2003, so he has personal knowledge of all of that failure to collect the information.

The question, then, is whether Schindler filed false reports or failed to file them at all, and he alleged, without reference to the FOIA response, that it had to be one or the other.

And either way, it's going to be a violation, and that's sufficient at this stage of the case.

We're the 12(b)(1) motion, Your Honor.

I haven't had an opportunity for discovery and we don't know anything else about Schindler's conduct, but it's -- it's not correct to say that -- well, I think I've answered the question.

Justice Samuel Alito: Well, may I ask you why a FOIA response doesn't satisfy the Second Circuit's test?

An investigation, the Court says, quote,

"implies a more focused and sustained inquiry toward a government end. "

Now, the government end in responding to a FOIA request is compliance with FOIA, and somebody has to search for these records and determine whether any exemptions apply, and that would seem to be focused and sustained.

So what element is missing?

Mr. Willens: The -- there's a missing government end here because all that's happening is the transmission of documents from inside the agency to the outside the agency.

Justice Anthony Kennedy: But that's the way the Second Circuit defined its own, or limited its own definition.

But why isn't it -- why isn't the Ninth Circuit incorrect -- pardon me, the Second Circuit incorrect when it says that this is not a governmental end?

It is a governmental end.

Mr. Willens: Obviously, satisfying the requirements of FOIA and its regulations is a government end to that extent, but the Second Circuit was trying to distinguish between the substantive work of an agency and the more ministerial but still important act of taking documents out of files and sending them out to the public.

A FOIA officer is -- is separate and apart in most cases from other programmatic officers in an agency, because we want to keep that act of taking documents out of the files and making them public separate from people who might not want those documents to go out into the files into the public.

Chief Justice John G. Roberts: The person is -- the person is separate but is often dealing on a regular basis with people who have line responsibilities and something else.

Mr. Willens: Of course.

Chief Justice John G. Roberts: He sees something -- well, that looks like it might be a problem -- he gets on the phone or goes down there and says: Is this covered by the exemption or not?

Mr. Willens: Of course.

I didn't mean to say that they don't speak to them.

It's just that there's a different line of authority in most cases, and it's a different kind of mission.

So I -- I hear the question, and I understand the problem, but at some point you need to distinguish between what FOIA's trying to do, which is to make documents public, and what the government agency's work is, which is to implement its policies, procedures, sign contracts, build roads and whatever else it does.

There's such a strong government purpose in getting these documents out to the public, and specifically in this case to relators and whistleblowers that this Court has held, 15 -- has held, almost 15 years ago, that that is why Congress amended the statute in 1986, and to tell the Congress now 25 years later that they made a mistake when they used the word FOIA to cover everything.

But instead, Congress chose a very narrow set of enumerated sources, specifically so that other documents would be available to relators.

As I tried to say before, getting those FOIA documents out to a relator is particularly important, because it has the correspondence between Schindler or other contractor and the government.

Justice Samuel Alito: How do you determine which government ends count and which government ends don't count?

Mr. Willens: My only argument is that FOIA is a different kind of mission.

Justice Samuel Alito: That's the only government -- compliance with FOIA is the only government end that doesn't count?

Mr. Willens: I believe FOIA is a special case, Your Honor, and there are many reasons why that -- that would be the case.

We've argued that the -- the plain language of FOIA indicates that a response is not a report; a search is not an investigation.

Justice Samuel Alito: So a report that goes to a department or agency's compliance with some law that is not directly related to the mission of that department, that would qualify as a -- as a government end for these purposes, but FOIA's the only thing that doesn't count?

Mr. Willens: FOIA is the only thing that -- that doesn't count.

It's like a publishing house or a little clearing house inside each agency whose job is to take manuscripts, or in this case, reports or audits or hearings or whatever, and take them out into the public.

I think it's fair to distinguish between that function, the publication function, and the substantive work of the agency.

If you don't do that, then you're heading down a slippery slope which Schindler eloquently articulated in its reply brief.

You end up at a point where not only FOIA documents are covered, but non-FOIA documents, in one case, even SEC filings, private SEC filings that are automatically posted to the commission's computer, Schindler seems to think that those are administrative reports.

And you've, of course, transformed every private document, like these VETS-100 reports, into public documents simply by the process of corporate filing and then release by the government.

There's simply no basis for that in the statute, and it would cause enormous harm to the operation of the statute.

Thank you.

Chief Justice John G. Roberts: Thank you, Counsel.

Ms. Sherry.

ORAL ARGUMENT OF MELISSA ARBUS SHERRY, ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING RESPONDENT

Ms Sherry: Mr. Chief Justice, and may it please the Court:

I want to start with one thing that hasn't yet been brought up this morning, and that is the context.

We are not talking about words in isolation.

We're not talking about the abstract meaning of the word "report".

What we're talking about is public disclosures of allegations or transactions in a congressional, administrative, or GAO report hearing, audit or investigation.

And in that context, the word, the phrase "administrative report", the phrase "administrative investigation", has some meaning.

When you speak of a congressional investigation, when you speak of a GAO report, and when you speak of an administrative audit, that conjures up a certain image that goes beyond the simple search for responsive records in response to a--

Justice Samuel Alito: Your test, am I right -- this is page 21 of your brief -- that it has to go to the uncovering of the truth of the matter or inquiring into wrongdoing.

Is that your test?

Ms Sherry: --I don't think it has to go just to the inquiring into wrongdoing.

I think the way to think about it is whether or not the agency or the governmental entity is engaging in a substantive inquiry into and a substantive analysis of information of data, of facts, and that's the distinction between what an agency does in response to FOIA.

FOIA is a means of public disclosure.

It's a method by which an agency grants the public access to preexisting records that are in its possession.

It is essentially the public disclosure component of the public disclosure bar--

Justice Samuel Alito: Isn't the test whether -- the test is whether there's a substantive analysis of facts?

Ms Sherry: --There's a substantive analysis of the facts.

For example, in the FOIA context, while the agency is certainly pulling responsive records and is engaging in some sort of inquiry into whether exemptions apply and whether the information can be released or should be released, it's not looking at the data.

It's not looking at the information that's in that document for its substantive content.

Justice Samuel Alito: So -- but when the -- when the DOJ pulls together at the end of the fiscal year the number of FOIA requests that it received and calculates the length of time they were pending and discloses that in the annual freedom of act -- Freedom of Information Act report, that is a report?

Ms Sherry: I think that would be a report under our definition because the Department of Justice is actually engaging with the data, engaging in the analysis.

And if I'm remembering correctly, I think it also requires, for example, the Attorney General to report on how it's encouraging compliance with FOIA by the different agencies.

And so I think in most of the circumstances that it would still qualify as a report, and I think FOIA is quite distinct from that.

And if you look at the facts of this case in particular, it demonstrates what the substance of the agency's action is in a FOIA case.

It's -- again, it's a means of public disclosure.

Congress could have enacted a very different public disclosure bar.

In 1943 to 1986, there was what was called the government knowledge bar.

Justice Samuel Alito: Every report is a mean -- means of public disclosure.

Does -- the Freedom of Information Act report is a means of public disclosure, that's the reason that Congress required it.

Ms Sherry: That's -- that's certainly true, but the public disclosure bar requires more than just the public disclosure.

Congress made the extra effort and included only particular enumerated governmental sources.

Whatever the line is, we know that it cannot be any dissemination of information from a governmental entity.

Justice Samuel Alito: But I'm -- I'm still struggling to find out what the definition is of -- of a report or an investigation.

You say it's a substantive analysis of facts.

Does not the person who processes a FOIA request have to engage in a substantive analysis of facts to determine whether particular documents fall within the scope of the request, whether certain materials are covered by exemptions?

Ms Sherry: I don't think the -- two answers to that question.

One is I don't think the officer engaging in any substantive analysis of the facts that are in the records that it's disclosing, but the second answer to that question is if that's all that's required, then I think we're back to a position where every disclosure of information by the government would qualify as a public disclosure.

And we not -- we know that's not the choice that Congress made.

It included only specifically enumerated sources, and it chose particular words.

It chose report, hearing, audit or investigation.

It is hard to think of what other words Congress could have used to describe the type of report we are talking about or the type of investigation besides those words.

If Congress had wanted to have a broader meaning, it had a number of other types of words at its disposal.

It could have said document, it could have said communication, it could have said record, and then it would map quite well on to what FOIA is, which is the public disclosure of agency records.

It didn't do any of that, and so I think we have to give some credence to the choice of words and to the fact that Congress--

Justice Stephen G. Breyer: So what -- why -- imagine everything here is the same.

That is, what I imagine happened here is that an individual wrote and asked for a FOIA request.

Did Schindler Elevator file a certain kind of statement.

And you say that's not a report.

Now, imagine everything the same except the person who asks is called Joe Smith, fraud officer for the agency.

Everything else is the same.

Now is it a report?

Ms Sherry: --No, and -- I'm sorry.

The second circumstance it is, but let me -- I answered that incorrectly.

The second circumstance it would be, but let me explain the distinction.

Justice Stephen G. Breyer: All right.

Justice Antonin Scalia: You don't understand the circumstance.

Justice Stephen G. Breyer: That is exactly what happened here.

Ms Sherry: Let me -- that is not -- that's what I want to explain, that's not -- that's not what happened here.

If I submitted a FOIA request and said did so-and-so company file a report, I wouldn't get a response, that's not a proper FOIA request.

Justice Stephen G. Breyer: No, no, it says, please tell me any documents that they filed that says da, da, da, something like that, okay?

Now, we have the same thing, word for word, except the person who makes the request is not Mrs. Mary Jones from the public, the person who makes the request is the fraud officer for the agency that's worried about being defrauded.

And all I'm interested in is, are they both not reports?

Is one a report and not the other?

Or are they both reports?

Ms Sherry: The second one would be a report if there was an investigation going on.

Justice Stephen G. Breyer: I'm just telling you the facts.

The facts are just what I said.

Ms Sherry: If -- if--

Justice Stephen G. Breyer: Everything the same except he signs his name, "fraud officer".

Ms Sherry: --Then -- then I misunderstood the hypothetical.

No, it doesn't matter who signing the piece of paper.

What matters is the substance of the--

Justice Stephen G. Breyer: All right.

So, then, if a person who is an outside person gets a hold of two documents, one, the request, and two the response, which is to say, yes, I found 15 reports, they're all signed by Mickey Mouse, okay?

And he bases a complaint, there is no such person as Mickey Mouse, it's a fraud, okay?

Then you go right ahead and bring the qui tam because it wasn't falling within the exception.

Is that right, in the Government's view?

Ms Sherry: --In the Government's view the fact that the information was obtained through a FOIA request doesn't answer the question as to the underlying document is an administrative report or an administrative audit or anything else of the sort.

The FOIA -- the agency's response to a FOIA request, again, is nothing more than the first--

Justice Stephen G. Breyer: No, no, you're repeating -- I'm trying to show you what the problem is in my mind.

I -- I can't quite work out the right definition, and that's what I'm trying to get enlightened on.

Ms Sherry: --And -- and the definition -- and -- and I would be the first to acknowledge that there may be difficult questions at the margin.

Justice Stephen G. Breyer: I'm not trying to make a difficult question.

All I want is your enlightenment about how when I write these two cases down, should I distinguish them?

Should I say they're both the same or what?

Ms Sherry: I think based on your hypothetical in both circumstances, all that is done is the agency has looked in its files to see if it has responsive records and disclose them, then in both circumstances that's not a report and there was no--

Justice Stephen G. Breyer: You say in most.

In my circumstance--

Ms Sherry: --Oh, sorry.

In both circumstances.

Justice Stephen G. Breyer: --In both circumstances.

Ms Sherry: Then it's not -- it's not a report and there's been no investigation.

And I think words have meaning, and it's significant that FOIA does not refer to what an agency does as an investigation.

It refers to it as a reasonable search for responsive records, and this Court has never referred to it as an investigation, no court ever has.

And that's because there's a substantive distinction between an investigation, certainly between a GAO investigation, between a congressional investigation and what an agency does in response to a FOIA request.

To give an example, the GAO is not subject to FOIA, but it does in its regulation respond to requests from the public much the same way that an agency does in response to a FOIA request.

I think it would be a rather strange use of the language to think of that as a GAO investigation and to think of the response as a GAO report.

Another example, and again, we're talking about ordinary usage, not any possible usage.

Justice Antonin Scalia: I don't -- I don't want to have to play these games every time there's -- there's -- there's one of these qui tam actions.

I mean, the advantage of Petitioner's solution is that it -- it's easy -- it's easy to apply.

I don't find yours easy to apply at all.

Ms Sherry: It may be easy to apply, but it's easy to apply and it reads out an entire subset of enumerated sources that Congress thought important to include.

Justice Ruth Bader Ginsburg: Did the FCA, the amendments in 2009, which are not retroactive, do they have any bearing on this problem prospectively?

Ms Sherry: On a prospective -- not -- not directly in that the words "report", "hearing", "audit" or "investigation" are still included, but it did narrowly and further define what that means.

It added a Federal context, and so this Court had decided in Graham County that there was no Federal nexus required for the second category of documents and going forward with the 2010 amendments there now is.

And so, on a prospective basis -- may I finish?

On a prospective basis, State audits, State reports would not be subject -- would not bar a qui tam case, unless if this Court holds otherwise they're produced in response to a FOIA request.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Reiss, you have 14 minutes remaining.

REBUTTAL ARGUMENT OF STEVEN ALAN REISS ON BEHALF OF THE PETITIONER

Mr. Reiss: I don't think I'll use it all, Mr. Chief Justice.

Justice Ginsburg, in response to your request, the new version of the False Claims Act lets the government disclaim the public disclosure bar.

It now says the bar can apply unless opposed by the government.

So the government has an automatic ability to stop the imposition of the public disclosure bar simply by opposing it.

So that is a material change in the government's favor that the new False Claims Act has made.

Let me just address an underlying premise that we've heard, I think, somewhat repeatedly from the Government and Mr. Kirk, and that is this notion that FOIA is simply an automatic process, that agencies are a publishing house or clearinghouses.

That notion is utterly belied by the statute and the process itself, and it's utterly belied by the statistics from the Department of Labor in terms of what their responses are and how they do them.

In 2008, which was the last year we were able to find statistics for, the Department of Labor, the department at issue here, processed 17,000 FOIA responses.

Only 28 percent were granted in full.

Thirty-two percent were denied in full, 10 percent, based on the statutory exemptions, and 22 percent based on other statutes like the Privacy Act, and 40 percent of those 17,000 responses were partial responses.

So we can give you some but not all; and in fact the FOIA responses in this very case not only reported that we found some of the VETS-100 reports in some years, we didn't find them in others; but with respect to the VETS-100 reports that were attached, they actually made redactions, because those redactions were compelled according to the Chief of Compliance and Investigations by the Privacy Act.

Justice Sonia Sotomayor: Mr. Reiss, assuming that the government did all of the steps you took, how does it promote the purposes of FOIA--

Mr. Reiss: Very--

Justice Sonia Sotomayor: --to find a document created by a third party, under duty or not, that is submitted and contains false statements.

How does it promote the government's interests to bar an individual who has personal knowledge about the falsity from being a qui tam action?

Mr. Reiss: --Well--

Justice Sonia Sotomayor: Doesn't that seem illogical, meaning the -- the report filed by the employer is not screaming out, "I filed a false report".

You need some outside knowledge from that statement by the employer to prove the falsity.

So how is your rule promoting FOIA's purposes?

Mr. Reiss: --Well, Justice Sotomayor, in that hypothetical the relator actually is bringing independent information, and the public disclosure bar would not be invoked -- not because the FOIA response isn't a report; it wouldn't be invoked because the allegations and transactions in the qui tam complaint were not based on; they were not disclosed in the FOIA response.

It furthers the purpose of the statute, our interpretation furthers the purpose of the statute because the purpose of the public disclosure bar was to stop qui tam suits from being brought by members of the public based on information equally accessible to anyone in the public.

Justice Sonia Sotomayor: I'm still not sure I understand.

Here the relator is saying, the statement says we complied with the military act, and he says they didn't.

I have personal information they didn't because I know they didn't do X, Y, and Z.

Why did we even reach the questions we did if what he's claiming is that he was an original -- that he has original knowledge not -- not reflected in the reports?

Mr. Reiss: And what I'm saying, Justice Sotomayor is if that's the case, a court can evaluate -- certainly can evaluate whether he is in fact the original source, which would take him out from under the public disclosure bar.

The court below, the district court did that, and found that he wasn't.

Or even before reaching that inquiry, if a relator can say my qui tam complaint is not based upon the public disclosure of allegations and transactions and reports, the bar doesn't drop.

Our position is the appropriate place for the inquiry that you're worried about is in determining whether there is a disclosure of the relator's allegations or transactions.

Whether--

Justice Sonia Sotomayor: I still don't understand how it promotes the purposes of a qui tam action--

Mr. Reiss: --Because of--

Justice Sonia Sotomayor: --to put any kind of bar on a relator who is challenging the creation of a document that's submitted by an independent party to the government.

Mr. Reiss: --Well, one of the purposes of the public disclosure bar was to stop -- and this Court recognized it in Graham County -- parasitic lawsuits by relators with no real significant independent or valuable information to contribute.

What we're suggesting, as I understand the question--

Justice Sonia Sotomayor: In fact that's not true.

We have -- that -- because the Government's right; Congress changed the -- the law from anything that was in the government's possession and narrowed the scope of the bar.

Mr. Reiss: --Exactly, Justice Sotomayor, but our position does not resurrect the government knowledge standard that Congress changed in 1986, and it doesn't do so for some very good reasons.

First of all, the government -- the government knowledge standard that the Court -- that the Congress changed in 1986 didn't allow a relator who is actually the original source of the information to bring suit.

That was one of the major things that prompted the congressional change in 1986.

Secondly, and it's clear from the legislative history in the Senate report, one of the primary concerns of Congress in enacting the statute in 1986 was the fact that there was a sense that government employees themselves who were knowledgeable about potential contracting fraud were not coming forward.

In fact, the Senate report cites a 1983 survey in which 73 percent of 5,000 government employees responded they would not come forward with evidence of contractor fraud.

That was a major concern with Congress under the old government knowledge standard, the pre-1986 government knowledge standard.

Those -- if those employees came forward, the suit would still be barred because the government by definition would have known about the fraud.

Under the new statute, not only do you have the original source exception, but if government employees come forward, they are not barred from bringing those qui tam suits.

It's a major change and it's not the resurrection, Justice Sotomayor, of the government knowledge standard.

If there are no further questions.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Print this transcript Transcript: 

Justice Clarence Thomas: And Justice Thomas has our opinion this morning in Case 10-188, Schindler Elevator Corporation versus the United States ex rel. Kirk and he's asked me to announce that for him.

The case comes to us on a writ of certiorari to the United States Court of Appeals for the Second Circuit.

The False Claims Act prohibits submitting false or fraudulent claims for payment to the United States and authorizes what are known as qui tam suits in which private parties brings civil actions in the government's name.

The Act's public disclosure bar however generally forecloses this qui tam suits that are, “Based upon the public disclosure of allegations or transactions in among other things an administrative report hearing, audit or investigation.”

Respondent Daniel Kirk brought one of this qui tam suits against his former employer, petitioner Schindler Elevator Corporation.

He alleged that Schindler had submitted hundreds of false claims for payments under its federal contracts.

Kirk supported his allegations with information his wife had received from the Department of Labor in response to three requests for records she had filed under the Freedom of Information Act or FOIA for short.

The District Court granted Schindler's motion to dismiss concluding that the public disclosure bar foreclosed those aspects of Kirk's lawsuit that were based on information disclosed in the FOIA responses.

The Second Circuit vacated and remanded allowing Kirk's lawsuit to proceed.

In its view the Department of Labor's responses to the FOIA requests were neither administrative reports nor investigations for purposes of the public disclosure bar.

In an opinion filed with the clerk today, we reverse the judgment of the Court of Appeals.

The Department of Labor's three written FOIA responses in this case along with the accompanying records are reports within the ordinary meaning of the word, a report is something that gives information or a notification or an official or formal statement of facts or proceedings.

A written FOIA response falls within that ordinary meaning and any records produced with such responses are part of the responses just as if they've been produced as an appendix to a printed report.

Justice Ginsburg has filed the dissenting opinion in which Justices Breyer and Sotomayor joined.

Justice Kagan took no part in the consideration or decision in this case.