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).

District Court Cases

United States ex rel. Bannon v. Edgewater Hosp., Inc., 2005 WL 991757 (N.D. Ill. Apr. 14, 2005) (Rule 9(b) does not require that relator’s averments as to public disclosure be stated with particularity since information indicating the original source of fraudulent claims is not an averment of fraud. However, court dismisses complaint, with leave to amend, under Rule 9(b) because relator failed to state with particularity the underlying fraudulent conduct to support the claim, such as when misrepresentations were made and which defendant submitted fraudulent claims.)

United States ex rel. Englund v. L.A. County, 2005 WL 2089216 (E.D. Cal. Aug. 30, 2005) (Relator files FCA complaint alleging Los Angeles County made false claims to receive unwarranted Federal Medicaid funds via intergovernmental transfers, court becomes irritated with defendant’s counsel failure to cite to specific instances of the alleged disclosure in numerous, lengthy exhibits - “Judges are not like pigs, hunting for truffles buried in briefs.” Court denies defendant’s motion to dismiss finding no public disclosure of relator’s claims.)

United States ex rel. Ernst v. Tenet Healthcare Corp., 2005 WL 474244 (N.D. Cal. Mar. 1, 2005) (Relator files FCA complaint regarding fraudulent payments for certain medical claims. After granting defendant’s motion to dismiss because of a public disclosure, court permits relator to amend complaint where relator claims that he is an original source, but failed to plead allegations to support the claim in the amended complaint.)

United States ex rel. Ervin v. Hamilton Sec. Group, Inc., 370 F. Supp. 2d 18 (D.D.C. 2005) (Relator files complaint alleging reverse false claim relating to HUD receiving less for a mortgage note sale. Court analyzed whether relator was an original source following the public disclosure of allegations and found that relator was an original source because he had direct and independent knowledge of the fraud alleged and provided the information voluntarily to the Government.)

United States ex rel. Farmer v. Houston, 2005 WL 1155111 (S.D. Tex. May 5, 2005) (Relator brings FCA complaint alleging over billing for repairs to roof after tropical storm Allison. Court finds that while relator relied heavily upon public information, she was an original source because of the knowledge gleaned from similar repair to roof made years earlier.)

United States ex rel. Gear v. Emergency Med. Assoc. of Ill. Inc., 2005 WL 991789 (N.D. Ill. Apr. 13, 2005) (Relator, a senior resident who worked as an attending physician during residency hours, alleges  double billing and upcoding. Court held relator’s allegations were publicly disclosed and relator was not an original source where, among other things, relator was the editor of publication noting billing irregularities and admitted to never speaking to the Government prior to filing suit.)

United States ex rel. Smith v. Yale-New Haven Hospital, Inc., 2005 WL 2072514 (D.Conn. Aug. 25, 2005) (Relator files FCA complaint alleging false billing for radiological procedures. Defendant files a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) arguing that relator’s allegations were publicly disclosed. Court recognizes: (1) that it is possible, in principle, to resolve public disclosure issue pursuant to Fed. R. Civ. P. 12(b)(1), however the factual record in the case precluded such a determination; and (2) it is within a court’s discretion to order discovery on the issue of disclosure however, relator’s complaint is dismissed because relator was not the first to file.)