Schindler Elevator Corp. v. United States ex rel. Kirk - Oral Argument - March 01, 2011

Schindler Elevator Corp. v. United States ex rel. Kirk

Media for Schindler Elevator Corp. v. United States ex rel. Kirk

Audio Transcription for Opinion Announcement - May 16, 2011 in Schindler Elevator Corp. v. United States ex rel. Kirk

Audio Transcription for Oral Argument - March 01, 2011 in Schindler Elevator Corp. v. United States ex rel. Kirk

John G. Roberts, Jr.:

We'll hear argument next in Case 10-188, Schindler Elevator Corporation v. United States ex rel. Daniel Kirk.

Mr. Reiss.

Steven Alan 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--

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.

Steven Alan Reiss:

--Justice--

Ruth Bader Ginsburg:

Yes.

Steven Alan 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.

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--

Steven Alan 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.

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?

Steven Alan 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--

Anthony M. 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?

Steven Alan 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.