## Facts

- The False Claims Act (FCA) authorizes qui tam suits, but (under the pre-2010 version) bars jurisdiction over actions “based upon” public disclosures of allegations or transactions in enumerated sources, including an “administrative … report.”  
- Schindler Elevator Corporation entered into hundreds of federal contracts that required compliance with the Vietnam Era Veterans’ Readjustment Assistance Act of 1972 (VEVRAA) as a condition of receiving payment.  
- VEVRAA and implementing regulations required Schindler to file annual VETS–100 reports with the Department of Labor (DOL) stating, among other things, how many “qualified covered veterans” it employed.  
- Daniel Kirk, a Vietnam War veteran, worked for Schindler from 1978 to 2003.  
- After Kirk left the company, he sought information about Schindler’s VETS–100 reporting history by submitting FOIA requests to the DOL for Schindler’s filings from 1998 to 2006.  
- In written FOIA responses, the DOL produced numerous VETS–100 reports that Schindler had filed and also stated that Schindler had not submitted reports for certain years within the requested period.  
- Relying on the FOIA materials and his experience as a veteran employee, Kirk filed a qui tam FCA action alleging Schindler submitted false claims for payment because it falsely certified compliance with VEVRAA’s reporting requirements.  
- Schindler moved to dismiss, arguing the suit was barred because Kirk’s allegations were derived from the DOL’s FOIA responses, which Schindler contended were public disclosures in an “administrative … report.”  
- The district court dismissed for lack of jurisdiction under the FCA public disclosure bar. The Second Circuit reversed, holding a FOIA response is not a “report” (or “investigation”) under the statute. The Supreme Court granted certiorari.

## Issues

1. Whether a federal agency’s written response to a FOIA request for records (including the records produced with the response) is a “report” within the meaning of the pre-2010 FCA public disclosure bar, 31 U.S.C. § 3730(e)(4)(A).  
2. If the FOIA response is a qualifying “report,” whether the case should be sent back for the lower courts to determine whether the action was “based upon” the publicly disclosed allegations or transactions (and whether any exception applies).

## Decision

- The Supreme Court reversed the Second Circuit and remanded.  
- The Court held that a federal agency’s written FOIA response, together with the responsive records produced, qualifies as a “report” under 31 U.S.C. § 3730(e)(4)(A) (pre-2010).  
- The Court did not finally resolve whether Kirk’s suit was “based upon” those public disclosures or whether Kirk could proceed as an original source; it left those questions for further proceedings on remand.  
- Justice Ginsburg dissented (joined by Justices Breyer and Sotomayor), reasoning that a FOIA response is typically a ministerial transmission of existing documents and should not be treated as a “report” that triggers the jurisdictional bar. (Justice Kagan took no part.)

## Legal Principles

- When the FCA does not define a term in the public disclosure bar, the Court applies the term’s ordinary meaning.  
- “Report,” read in its ordinary sense, covers an agency’s written statement conveying information in response to a FOIA request, including what records were located, produced, or not found.  
- For purposes of the public disclosure bar, the agency’s FOIA cover letters and the responsive documents produced with them are treated as “reports.”  
- Once a qualifying public disclosure source is identified, courts must separately decide whether the relator’s action is “based upon” the publicly disclosed allegations or transactions and whether an exception (such as original-source status) permits the suit to proceed.  
- Policy concerns about discouraging private enforcement cannot override the statutory text Congress enacted in the pre-2010 version of § 3730(e)(4)(A).

## Conclusion

Schindler Elevator Corporation v. United States ex rel. Daniel Kirk holds that, under the pre-2010 FCA public disclosure bar, an agency’s written response to a FOIA request—including the records produced with that response—is an “administrative … report,” requiring remand to determine whether the relator’s suit was “based upon” the FOIA-disclosed allegations or transactions and whether any exception allows the action to proceed.


Schindler Elevator Corporation v. United States ex rel. Daniel Kirk, 131 S. Ct. 1885 (2011)