RESPONDENT:United States ex re. Daniel Kirk
LOCATION: Schindler Elevators and Escalators in New York City
DOCKET NO.: 10-188
DECIDED BY: Roberts Court (2010-2016)
LOWER COURT: United States Court of Appeals for the Second Circuit
CITATION: 563 US 401 (2011)
GRANTED: Sep 28, 2010
ARGUED: Mar 01, 2011
DECIDED: May 16, 2011
Jonathan A. Willens – for the respondent
Melissa Arbus Sherry – Assistant to the Solicitor General, Department of Justice, for the United States as amicus curiae, supporting the respondent
Steven Alan Reiss – for the petitioner
Facts of the case
Daniel Kirk served with the U.S. Army in Vietnam from 1969 to 1971. Beginning in 1978, he worked at Millar Elevator Industries, which was later absorbed by Schindler Elevator in 2002. Although he had been promoted within the company on past occasions, in 2003, he was demoted from a managerial position to a non-managerial slot. He then resigned. Kirk filed a complaint with the Department of Labor in 2004 claiming his demotion was in violation of the Vietnam Era Veterans Readjustment Assistance Act. After his claim was denied by the department, he filed suit in the Southern District of New York in 2005 under the False Claims Act. Kirk claimed the company was shirking its obligation to take affirmative steps to employ and promote veterans, invite eligible veterans to identify themselves to employers and file annual reports detailing the hiring and placement of veterans.
Using documentation supplied by FOIA requests submitted by his wife and his own knowledge of company operations, he claimed the company failed to file reports from 1998 until late 2004 and filed false reports in 2004, 2005 and 2006, alleging that each claim for payment on the hundreds of government contracts submitted by Schindler was a violation of the False Claims Act.
The U.S. District Court for the Southern District of New York dismissed the complaint in March 2009 for failure to state a claim upon which relief can be granted and for lack of subject matter jurisdiction. In April 2010, the U.S. Court of Appeals for the Second Circuit vacated the lower court order and remanded the case for further proceedings.
May a whistleblower use information obtained through FOIA to allege violations of the federal False Claims Act by a government contractor?
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
John G. Roberts, Jr.:
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.