10-188 Schindler Elevator Corp. v. U.S. ex rel. Kirk

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False Claims Act
FOIA requests

A federal agency’s written response to a FOIA request for records constitutes a “report” within the meaning of the FCA’s public disclosure bar.

The Court’s holding is not inconsistent with the public disclosure bar’s drafting history. If anything, the drafting history supports this Court’s holding. Kirk’s case seems a classic example of the “opportunistic” litigation that the public disclosure bar is designed to discourage. Id., at ___. 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.
Nor will extending the public disclosure bar to written FOIA responses necessarily lead to unusual consequences. Kirk argues that the Court’s ruling would allow a suit by a qui tam relator possessing records whose release was required by FOIA even absent a request, but bar an action by a relator who got the same documents by way of a FOIA request. Even assuming, as Kirk does, that unrequested records are not covered by the public disclosure bar, the Court is not troubled by the different treatment. By its plain terms, the bar applies to some methods of public disclosure and not to others. See Graham County, 559 U. S., at ___. It would not be anomalous if some methods of FOIA disclosure fell within the bar’s scope and some did not. Moreover, Kirk’s assertion that potential defendants will now insulate themselves from liability by making a FOIA request for incriminating documents is pure speculation. Cf. id., at ___. There is no suggestion that this has occurred in those Circuits that have long held that FOIA responses are “reports” within the public disclosure bar’s meaning.

601 F. 3d 94, reversed and remanded.

10-188 Schindler Elevator Corp. v. U.S. ex rel. Kirk

Thomas, J.; Ginsburg, J., dissenting.

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