FCA Alert

On June 21, 2010, the U.S. Supreme Court denied certiorari in Ortho Biotech Products, L.P. v. United States ex rel. Duxbury, No. 09-654, 2010 U.S. LEXIS 5091, thereby  allowing a circuit split to continue on a question relating to the jurisdiction over a relator’s action. The Government did not intervene in this action, so this action was litigated solely by the relator. Under the FCA, where there has been a public disclosure of the allegations, the court only has jurisdiction over a relator’s action if the relator is an “original source” of the information and voluntarily provided the information to the Government. 

The circuits have been split on whether this requirement means that the relator was required to provide the information to the Government before the “public disclosure” or simply before filing the lawsuit. In United States ex rel. Duxbury v. Ortho Biotech Products, L.P., 579 F.3d 13 (1st Cir. 2009), the First Circuit joined the Fourth and Eighth Circuits in holding that a relator need only provide information to the Government before filing suit, and not before the public disclosure. By contrast, the Sixth and DC Circuits have held that an “original source” must provide the Government with the information prior to any public disclosure. The Second and Ninth Circuits have adopted an even stricter requirement, holding that a relator must actually be the source of the public disclosure.

Congress recently amended the FCA’s “original source” provision in the Patient Protection and Affordable Care Act (PPACA), Pub. L. No. 111-148, 124 Stat. 119 (Mar. 23, 2010). The PPACA provides that a person qualifies as an “original source” if the person either: (a) voluntarily discloses the information to the Government “prior to a public disclosure,” or (b) voluntarily discloses the information to the Government before filing an action and “has knowledge that is independent of and materially adds to the publicly disclosed allegations.” However, this provision of the PPACA is not retroactive, see Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 130 S. Ct. 1396, 1400 n. 1 (2010), and thus, the Duxbury question and the circuit split will continue to have practical significance for cases that will be decided under the prior version of the FCA.