US Ex Rel. Wilson v. GRAHAM COUNTY SOIL & WATER

Reversed by Supreme Court, March 30, 2010

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA ex rel. 

KAREN T. WILSON,

Plaintiff-Appellant,

v.

GRAHAM COUNTY SOIL & WATER

CONSERVATION DISTRICT; CHEROKEE

COUNTY SOIL & WATER

CONSERVATION DISTRICT; RICHARD

GREENE, in his individual capacity;

WILLIAM TIMPSON, in his individual

capacity; KEITH ORR, in his

individual and official capacities;

RAYMOND WILLIAMS, in his

individual capacity; DALE WIGGINS,

in his individual capacity; GERALD

 No. 07-1322

PHILLIPS, in his individual capacity;

ALLEN DEHART, in his individual

capacity; LLOYD MILLSAPS; JERRY

WILLIAMS, in his individual capacity;

BILLY BROWN, in his individual

capacity; LYNN CODY, in his

individual capacity; BILL TIPTON; C.

B. NEWTON, in his individual

capacity; EDDIE WOOD, in his

individual capacity; GRAHAM

COUNTY,

Defendants-Appellees,

and



2 UNITED STATES v. GRAHAM COUNTY SOIL

GRAHAM COUNTY BOARD OF COUNTY 

COMMISSIONERS; CHEROKEE COUNTY

BOARD OF COUNTY COMMISSIONERS;

CHERIE GREENE; RICKY STILES; BETTY

JEAN ORR; JOYCE LANE; JIMMY ORR;

EUGENE MORROW; CHARLES LANE;

CHARLES LANEY; GEORGE POSTELL; 

LLOYD KISSLEBURG; TED ORR;

BERNICE ORR; JOHN DOE, JR.; JOHN

DOE CORPORATION; GOVERNMENTAL

ENTITIES, 1-99,

Defendants.



UNITED STATES OF AMERICA ex rel. 

KAREN T. WILSON,

Plaintiff-Appellee,

v.

KEITH ORR, in his individual and

official capacities; JERRY WILLIAMS,

in his individual capacity,

Defendants-Appellants,

and

GRAHAM COUNTY SOIL & WATER  No. 07-1910

CONSERVATION DISTRICT; GRAHAM

COUNTY BOARD OF COUNTY

COMMISSIONERS; CHEROKEE COUNTY

SOIL & WATER CONSERVATION

DISTRICT; CHEROKEE COUNTY

BOARD OF COUNTY COMMISSIONERS;

RICHARD GREENE, in his individual

capacity; CHERIE GREENE; WILLIAM

TIMPSON, in his individual capacity;

RICKY STILES; BETTY JEAN ORR;



UNITED STATES v. GRAHAM COUNTY SOIL 3

RAYMOND WILLIAMS, in his 

individual capacity; DALE WIGGINS,

in his individual capacity; JOYCE

LANE; GERALD PHILLIPS, in his

individual capacity; ALLEN DEHART,

in his individual capacity; JIMMY

ORR; LLOYD MILLSAPS; BILLY

BROWN, in his individual capacity;

LYNN CODY, in his individual

capacity; EUGENE MORROW; CHARLES 

LANE; CHARLES LANEY; GEORGE

POSTELL; BILL TIPTON; LLOYD

KISSLEBURG; C. B. NEWTON, in his

individual capacity; EDDIE WOOD, in

his individual capacity; TED ORR;

BERNICE ORR; JOHN DOE, JR.; JOHN

DOE CORPORATION; GOVERNMENTAL

ENTITIES, 1-99; GRAHAM COUNTY,

Defendants.



Appeals from the United States District Court

for the Western District of North Carolina, at Bryson City.

Lacy H. Thornburg, District Judge.

(2:01-cv-00019-LHT)

Argued: January 29, 2008

Decided: June 9, 2008

Before MOTZ, TRAXLER, and DUNCAN, Circuit Judges.

Vacated and remanded by published opinion. Judge Traxler wrote the

opinion, in which Judge Motz and Judge Duncan joined.

4 UNITED STATES v. GRAHAM COUNTY SOIL

COUNSEL

ARGUED: Mark Tucker Hurt, Abingdon, Virginia, for United States

of America ex rel. Karen T. Wilson. Christopher G. Browning, Jr.,

Solicitor General, NORTH CAROLINA DEPARTMENT OF JUS-

TICE, Raleigh, North Carolina; Zeyland G. McKinney, Jr., Robbins-

ville, North Carolina, for Graham County Soil & Water Conservation

District, Cherokee County Soil & Water Conservation District, Rich-

ard Greene, in his individual capacity, William Timpson, in his indi-

vidual capacity, Keith Orr, in his individual and official capacities,

Raymond Williams, in his individual capacity, Dale Wiggins, in his

individual capacity, Gerald Phillips, in his individual capacity, Allen

Dehart, in his individual capacity, Lloyd Millsaps, Jerry Williams, in

his individual capacity, Billy Brown, in his individual capacity, Lynn

Cody, in his individual capacity, Bill Tipton, C. B. Newton, in his

individual capacity, Eddie Wood, in his individual capacity, Graham

County. ON BRIEF: Roy Cooper, Attorney General, Raleigh, North

Carolina, for Graham County Soil & Water Conservation District,

Gerald Phillips, Allen Dehart, Lloyd Millsaps, Cherokee County Soil

& Water Conservation District, Bill Tipton, C. B. Newton and Eddie

Wood; Sean F. Perrin, WOMBLE, CARLYLE, SANDRIDGE &

RICE, P.L.L.C., Charlotte, North Carolina, for Graham County, Ray-

mond Williams, Dale Wiggins and Lynn Cody; Roy Patton, Canton,

North Carolina, for Richard Greene and Billy Brown.

OPINION

TRAXLER, Circuit Judge:

The central issue in this appeal is the scope of the "public disclo-

sure" jurisdictional bar contained in the False Claims Act, 31

U.S.C.A. §§ 3729-33 (West 2003 & Supp. 2007).1 Addressing an

1

A prior appeal in this case addressed the limitations period that gov-

erns retaliation claims brought under the False Claims Act. See Graham

County Soil & Water Conservation Dist. v. United States ex rel. Wilson,

545 U.S. 409 (2005), reversing United States ex rel. Wilson v. Graham

County Soil & Water Conservation Dist., 367 F.3d 245 (4th Cir. 2004).

UNITED STATES v. GRAHAM COUNTY SOIL 5

issue that has divided the circuit courts, the district court concluded

that certain audits and reports issued by state and local governmental

entities satisfied the requirements of the public disclosure bar and

therefore deprived it of subject matter jurisdiction over this action.

We conclude that the public disclosure bar applies to federal adminis-

trative audits, reports, hearings or investigations, but not to those con-

ducted or issued by a state or local governmental entity. Factual

questions remain in this case, however, about whether an investiga-

tion and report issued by a federal agency satisfy certain other

requirements of the public disclosure bar, and those factual issues

must be resolved by the district court in the first instance. Accord-

ingly, we vacate the district court’s decision rejecting Wilson’s claims

and its decision denying the defendants’ request for attorneys’ fees,

and we remand for further proceedings.

I.

A.

In February 1995, a storm hit parts of western North Carolina,

causing extensive flooding and erosion. Defendants Graham County

and Cherokee County applied for assistance under the Emergency

Watershed Protection Program (the "EWP Program"), a federal disas-

ter assistance program operated by the United States Department of

Agriculture (the "USDA") and administered through the National

Resources Conservation Service (the "NRCS") and the United States

Forest Service. See 7 C.F.R. §§ 624.1 - 624.11 (2008). The NRCS

entered into agreements with the counties (the "EWP contracts")

under which the counties would perform or hire a contractor to per-

form the necessary clean-up and repair work, with the county bearing

25% of the costs and the USDA bearing the remaining costs.

The EWP contracts permitted the counties to coordinate and per-

form the clean-up through their soil and water conservation districts.

As to the EWP contracts that are relevant to this appeal, Graham

County and Cherokee County delegated the work to their soil and

water conservation districts. Rather than using their own employees,

the conservation districts decided to hire independent contractors to

perform the remediation work.

6 UNITED STATES v. GRAHAM COUNTY SOIL

The EWP program required an NRCS employee to inspect all work

done and certify its compliance with the EWP contract before a

county could be reimbursed for the costs of the repair work. Typi-

cally, the NRCS’s government representative would fill out the reim-

bursement request based on job diaries and the like maintained by

those performing the work. The government representative would

submit the reimbursement form to the county for its approval and sig-

nature. The government inspector (also an NRCS employee) would

inspect the work and certify the claim for payment.

Defendant Richard Greene was the NRCS’s district conservationist

for the area encompassing Graham and Cherokee counties. Although

he was a federal employee, Greene worked out of the offices of the

Graham County Soil and Water Conservation District (the "Graham

Conservation District"). Greene was the government representative

for the Graham County and Cherokee County EWP contracts, and he

was also named one of the government inspectors for those contracts.

Defendant Bill Timpson, an NRCS soil conservationist, was also des-

ignated as a government inspector for the Graham County and Chero-

kee County EWP contracts.

As the government representative for the EWP contracts, Greene

was involved in the selection of a contractor to perform the work on

behalf of the counties. Greene had difficulty finding a contractor to

perform the Graham County EWP work within the time frame called

for by the EWP contract. Defendant and cross-appellant Keith Orr

was an employee of the Graham Conservation District. With the

approval of Graham County, the Graham Conservation District

awarded its EWP work to Orr. Orr was expected to perform the EWP

work on his own time, rather than during the hours he was working

for the Graham Conservation District, and the parties agreed that he

would be paid for the work as any other contractor would be paid.

Greene and other federal officials knew that Orr was a conservation

district employee and that he had been awarded the EWP work. At

Greene’s suggestion, the contract to perform Cherokee County’s

EWP work was awarded to defendant Billy Brown, a friend of

Greene’s.

Karen Wilson was a secretary for the Graham Conservation Dis-

trict. She contends that in her capacity as secretary, she learned of

UNITED STATES v. GRAHAM COUNTY SOIL 7

irregularities in the performance of the EWP contracts by the Graham

Conservation District and by the Cherokee County Soil and Water

Conservation District (the "Cherokee Conservation District"). Wilson

was troubled by the fact Orr had been hired to perform Graham Coun-

ty’s EWP work, and she became suspicious of the arrangements

between Greene, Brown, Orr, and Timpson after Orr told her that the

men were splitting the proceeds of the EWP contract. One aspect of

the Cherokee County EWP work called for downed trees from the

affected area to be used to shore up eroded creek banks. Although

Greene told Wilson that the logs had been stolen, she later learned

that Greene had sold the logs to a lumbermill and kept the proceeds

for himself.2

In the summer of 1995, Wilson raised her concerns with various

county and conservation district officials. Wilson discussed her con-

cerns with two NRCS employees in November 1995 and sent a letter

setting out her concerns to the NRCS state office in December 1995.

In November 1996, Wilson was interviewed by an agent from the

USDA’s Office of Inspector General about the EWP contracts.

After learning of the problems with the EWP contracts, Graham

County officials began an investigation of their own. County officials

eventually determined that Orr had charged them for some EWP work

that had not been performed. Although the county officials involved

with the EWP contracts did not believe that using Orr as an indepen-

dent contractor was improper, a March 1996 report following an audit

performed by an accounting firm at the request of Graham County

(the "Audit Report") raised concerns about the county’s failure to

seek bids on the work to be performed under the EWP contract and

the use of Orr as an independent contractor receiving payment under

the EWP contracts. A May 1996 report prepared by the North Caro-

lina Department of Environment, Health and Natural Resources (the

"DEHNR Report") noted the same problems identified in the Audit

Report.

2

Greene was later convicted in federal district court for misappropriat-

ing the logs and other acts of misconduct.

8 UNITED STATES v. GRAHAM COUNTY SOIL

B.

In 2001, Wilson commenced this action under the False Claims

Act, naming as defendants (among others) Graham County, Cherokee

County, Graham Conservation District, Cherokee Conservation Dis-

trict, Greene, Orr, Brown, and Timpson. Wilson alleges that a con-

spiracy existed between Greene, Orr, Timpson, and Brown.

According to Wilson, the men agreed that Greene would funnel the

Graham County and Cherokee County EWP work to Brown and Orr

and that Greene and Timpson would inspect the work and approve the

bills for payment, with the money paid under the EWP contracts to

be shared among the co-conspirators. Wilson contends that the con-

spiracy effectively tainted the execution of the EWP agreements and

rendered the claims for reimbursement false within the meaning of the

False Claims Act.

Wilson also contends that some or all of the claims submitted by

the counties to the federal government for reimbursement under the

EWP program were false within the meaning of the False Claims Act

because: (1) the counties failed to seek bids as required by state law

before awarding the EWP work to Orr and Brown; (2) using Orr as

an independent contractor created a conflict of interest in violation of

the Code of Conduct submitted to the federal government by Graham

County; (3) the Graham County work performed by Orr was of poor

quality and did not meet the requirements of the EWP contracts; and

(4) Greene stole the Cherokee County logs with the knowledge of

Cherokee County officials, who permitted Greene to keep the pro-

ceeds as a sort of retroactive bribe.

The district court concluded that the Audit Report prepared by

local accountants at the request of Graham County and the DEHNR

Report were public disclosures of the information underlying Wil-

son’s claims. Because the False Claims Act strips courts of subject

matter jurisdiction over private claims based on information that has

been publicly disclosed, see 31 U.S.C.A. § 3730(e)(4)(A) (West

2003), the district court concluded that it lacked jurisdiction over Wil-

son’s action. In the alternative, the district court concluded that for

various reasons, each of Wilson’s claims failed on the merits. The dis-

trict court therefore granted summary judgment in favor of the defen-

dants, but the court later denied the defendants’ requests for

UNITED STATES v. GRAHAM COUNTY SOIL 9

attorneys’ fees. See 31 U.S.C.A. § 3730(d)(4) (authorizing award of

attorneys’ fees to prevailing defendants in qui tam action where the

government does not intervene if the court concludes the action "was

clearly frivolous, clearly vexatious, or brought primarily for purposes

of harassment").

II.

The False Claims Act (the "FCA") was enacted "during the Civil

War in response to overcharges and other abuses by defense contrac-

tors, . . . [with the expectation that it] would help the government

uncover fraud and abuse by unleashing a posse of ad hoc deputies to

uncover and prosecute frauds against the government." Harrison v.

Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999)

(internal quotation marks omitted). The FCA imposes civil liability

(including treble damages and a fine of up to $10,000) on persons

who knowingly submit false claims to the government for payment or

conspire to use false claims to obtain payment from the government.

See 31 U.S.C.A. § 3729 (West 2003 & Supp. 2007).

FCA actions against the false claimant may be brought by the gov-

ernment itself or by a private person (known as the "relator") on

behalf of the government. See 31 U.S.C.A. § 3730. Actions brought

by a relator are known as "qui tam" actions. See Vermont Agency of

Nat. Resources v. United States ex rel. Stevens, 529 U.S. 765, 768 n.1

(2000) ("Qui tam is short for the Latin phrase qui tam pro domino

rege quam pro se ipso in hac parte sequitur, which means ‘who pur-

sues this action on our Lord the King’s behalf as well as his own.’").

The government has the right to intervene in actions brought by a

relator, see 31 U.S.C.A. § 3730, but a successful relator receives a

share of any proceeds recovered in the action whether or not the gov-

ernment intervenes. See 31 U.S.C.A. §§ 3730(d)(1)-(2). "A qui tam

relator [thus] is essentially a self-appointed private attorney general,

and his recovery is analogous to a lawyer’s contingent fee." United

States ex rel. Milam v. University of Texas M.D. Anderson Cancer

Ctr., 961 F.2d 46, 49 (4th Cir. 1992).

The FCA bars federal courts from exercising subject matter juris-

diction over certain qui tam actions. See Rockwell Int’l Corp. v.

10 UNITED STATES v. GRAHAM COUNTY SOIL

United States, 127 S. Ct. 1397, 1405-06 (2007). The only such bar

relevant to this case is the public disclosure bar, which provides that

(A) 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 Account-

ing 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.

(B) For purposes of this paragraph, "original source"

means an individual who has direct and independent knowl-

edge of the information on which the allegations are based

and has voluntarily provided the information to the Govern-

ment before filing an action under this section which is

based on the information.

31 U.S.C.A. § 3730(e)(4) (West 2003).

The structure of the public disclosure bar thus requires courts to

answer three questions: Was there a public disclosure? If there was

a public disclosure, was the qui tam action based on the public disclo-

sure? If the action was based on the public disclosure, was the qui tam

plaintiff an original source? See Grayson v. Advanced Mgmt. Tech.,

Inc., 221 F.3d 580, 582 (4th Cir. 2000); see also Minnesota Ass’n of

Nurse Anesthetists v. Allina Health Sys. Corp., 276 F.3d 1032, 1042

(8th Cir. 2002); United States v. Bank of Farmington, 166 F.3d 853,

859 (7th Cir. 1999). If either of the first two questions is answered in

the negative, the district court has subject matter jurisdiction over the

qui tam action. If the first two questions are answered in the affirma-

tive, however, subject matter jurisdiction exists only if the last ques-

tion is also answered affirmatively.

On appeal, Wilson contends that the Audit Report and DEHNR

Report do not qualify as public disclosures under the FCA and that

the district court therefore erred by concluding that these reports

deprived it of subject matter jurisdiction. Although § 3730(e)(4)(A)

provides that an administrative report, audit, or investigation can

UNITED STATES v. GRAHAM COUNTY SOIL 11

amount to a jurisdiction-stripping public disclosure, Wilson argues

that the statute applies only to federal administrative reports or audits.

Because the audit was conducted by local accountants at Graham

County’s request and the Audit Report was provided to Graham

County officials only, Wilson contends that there was no public dis-

closure within the meaning of § 3730(e)(4)(A). Wilson likewise

argues that the DEHNR Report, which summarized a state investiga-

tion and was provided only to state and local officials, was not a pub-

lic disclosure within the meaning of § 3730(e)(4)(A).

For their part, the defendants contend that the district court cor-

rectly determined that the public disclosure bar deprived it of subject

matter jurisdiction over Wilson’s claims. The defendants argue that

there is no language in § 3730(e)(4)(A) expressly limiting its reach to

federal rather than state administrative reports and audits, and they

note that the majority of the circuit courts considering the question

have rejected Wilson’s interpretation of the statute.

A.

"When interpreting a statute, the goal is always to ascertain and

implement the intent of Congress." Scott v. United States, 328 F.3d

132, 138 (4th Cir. 2003). "The first step of this process is to determine

whether the statutory language has a plain and unambiguous meaning.

If the statute is unambiguous and if the statutory scheme is coherent

and consistent, our inquiry ends there." Id.

Section 3730(e)(4)(A) lists the sources that may give rise to a

jurisdiction-stripping public disclosure: disclosures "in a criminal,

civil, or administrative hearing, in a congressional, administrative, or

Government Accounting Office report, hearing, audit, or investiga-

tion, or from the news media."3 31 U.S.C.A. § 3730(e)(4)(A). When

3

The list of disclosure sources is exclusive; a public disclosure of fraud

operates as a jurisdictional bar against a qui tam plaintiff’s action only

if the public disclosure is through one of the specified sources. See Eber-

hardt v. Integrated Design & Constr., Inc., 167 F.3d 861, 870 (4th Cir.

1999); accord United States ex rel. Dunleavy v. County of Del., 123 F.3d

734, 744 (3d Cir. 1997); United States ex rel. Rabushka v. Crane Co., 40

F.3d 1509, 1513 n.2 (8th Cir. 1994).

12 UNITED STATES v. GRAHAM COUNTY SOIL

considering the scope of the public disclosure bar, courts often sepa-

rate the relevant language by clause, each of which addresses distinct

categories of potential disclosure sources, and then analyze the mean-

ing clause by clause. See, e.g., Eberhardt v. Integrated Design &

Constr., Inc., 167 F.3d 861, 870 (4th Cir. 1999) (grouping listed

sources into categories for purposes of statutory interpretation); see

also United States ex rel. Bly-Magee v. Premo, 470 F.3d 914, 917

(9th Cir. 2006) (same), cert. denied, 128 S. Ct. 1119 (2008). Thus, the

public disclosure bar strips federal courts of jurisdiction over qui tam

actions that are based upon the public disclosures in (1) "criminal,

civil, or administrative hearing[s]"; (2) "congressional, administrative,

or Government Accounting Office4 report[s], hearing[s], audit[s], or

investigation[s]"; and (3) "the news media." 31 U.S.C.A.

§ 3730(e)(4)(A). The only category implicated in this case is the sec-

ond one, which strips federal courts of jurisdiction over qui tam

actions that are based on public disclosures in a congressional, admin-

istrative, or GAO report, hearing, audit, or investigation.

As far as the record reveals, there has been no congressional or

GAO action involving the transactions at issue in this case. The juris-

dictional question therefore turns upon whether the state- and county-

level investigations into and reports about the handling of the EWP

contracts can be considered administrative reports, audits, or investi-

gations within the meaning of § 3730(e)(4)(A).

4

When § 3730(e)(4) was enacted, the official name for the GAO, the

familiar federal watchdog agency, was the "General Accounting Office."

While the statute speaks of the "Government Accounting Office," it is

generally understood that Congress was referring to the GAO. See 31

U.S.C.A. § 3730(e)(4)(A) n.3 (stating in footnote following the word

"Government": "So in original. Probably should be ‘General.’"); United

States ex rel. Mistick PBT v. Housing Auth. of Pittsburgh, 186 F.3d 376,

387 (3d Cir. 1999) ("[T]his section refers to the General Accounting

Office as the ‘Government Accounting Office’. . . ."); see also United

States v. Catholic Healthcare West, 445 F.3d 1147, 1151 (9th Cir. 2006);

United States ex rel. Gear v. Emergency Med. Assocs. of Ill., Inc., 436

F.3d 726, 728 (7th Cir. 2006). This statutory misnomer became some-

what less of a misnomer in 2004, when the GAO was renamed the "Gov-

ernment Accountability Office." See GAO Human Capital Reform Act

of 2004, Pub. L. 108-271, § 8(a), 118 Stat. 811, 814 (2004).

UNITED STATES v. GRAHAM COUNTY SOIL 13

The few circuits to have considered this question have come to dif-

ferent conclusions. The Third Circuit thus far is alone in concluding

that the public disclosure of state administrative actions does not

amount to a public disclosure within the meaning of § 3730(e)(4)(A),

see United States ex rel. Dunleavy v. County of Del., 123 F.3d 734,

745 (3d Cir. 1997), while the Ninth Circuit and the Eleventh Circuit

have concluded that § 3730(e)(4)(A) encompasses state as well as

federal administrative actions, see United States ex rel. Bly-Magee v.

Premo, 470 F.3d 914, 918-19 (9th Cir. 2006), cert. denied, 128 S. Ct.

1119 (2008); Battle v. Board of Regents, 468 F.3d 755, 762 (11th Cir.

2006). In Hays v. Hoffman, 325 F.3d 982 (8th Cir. 2003), the Eighth

Circuit took the middle road, not quite agreeing with the Third Circuit

or with the Ninth and Eleventh Circuits. The Hays court "reject[ed]"

the particular manner in which the Third Circuit in Dunleavy had

parsed the statute. Id. at 988. However, the Hays court ultimately con-

cluded only that the Third Circuit’s holding was broader than neces-

sary, and the court held that state reports and audits could be public

disclosures, at least where reports and audits involved a cooperative

state-federal program. See id. at 989 ("[W]hile we do not disagree

with the Third Circuit’s decision in Dunleavy, we conclude the court

ruled more broadly than necessary in stating that a state agency dis-

closure may never be an administrative report or audit for purposes

of § 3730(e)(4)(A)." (internal quotation marks and alterations omit-

ted)).

This court has not previously considered whether state or local

administrative reports, audits, or investigations can be public disclo-

sures within the meaning of § 3730(e)(4)(A). As the defendants point

out, the statute by its express terms does not limit its reach to federal

administrative reports or investigations. In our view, however, exami-

nation of the relevant language in context and consideration of the

structure of the statute leads to the conclusion that only federal

administrative reports, audits or investigations qualify as public dis-

closures under the FCA. See, e.g., FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 133 (2000) ("It is a fundamental canon

of statutory construction that the words of a statute must be read in

their context and with a view to their place in the overall statutory

scheme." (internal quotation marks omitted)); Crandon v. United

States, 494 U.S. 152, 158 (1990) ("In determining the meaning of the

14 UNITED STATES v. GRAHAM COUNTY SOIL

statute, we look not only to the particular statutory language, but to

the design of the statute as a whole and to its object and policy.").

Of the three disclosure sources listed in clause two of

§ 3730(e)(4)(A), the first and third are clearly federal sources — con-

gressional or GAO reports, hearings, investigations, and audits.

Unlike those terms, there is nothing inherently federal about the word

"administrative," and Congress did not define the term in the FCA.

The placement of the word in the statute, however, provides strong

evidence of its intended meaning.

The interpretative maxim noscitur a sociis provides that "a word is

known by the company it keeps." S.D. Warren Co. v. Maine Bd. of

Envtl. Prot., 547 U.S. 370, 378 (2006) (internal quotation marks omit-

ted). The maxim "is invoked when a string of statutory terms raises

the implication that the words grouped in a list should be given

related meaning." Id. (internal quotation marks omitted). "That sev-

eral items in a list share an attribute counsels in favor of interpreting

the other items as possessing that attribute as well." Beecham v.

United States, 511 U.S. 368, 371 (1994).

In our view, the placement of "administrative" squarely in the mid-

dle of a list of obviously federal sources strongly suggests that "ad-

ministrative" should likewise be restricted to federal administrative

reports, hearings, audits, or investigations. As the Third Circuit

explained:

[Application of the noscitur a sociis] maxim leads to the

conclusion that "administrative" when read with the word

"report" refers only to those administrative reports that orig-

inate with the federal government. We take notice of the fact

that Congress and the Government Accounting Office are

entities of our federal government. We find it hard to

believe that the drafters of this provision intended the word

"administrative" to refer to both state and federal reports

when it lies sandwiched between modifiers which are

unquestionably federal in character.

Dunleavy, 123 F.3d at 745. Although courts must not apply interpre-

tative maxims "woodenly," Ali v. Federal Bureau of Prisons, 128

UNITED STATES v. GRAHAM COUNTY SOIL 15

S. Ct. 831, 840 (2008), we believe that reliance on noscitur a sociis

is appropriate in this case.

If the list in clause two were entirely disjunctive, our analysis

might be different. Unless context dictates otherwise, a completely

disjunctive formulation (i.e., "item A OR item B OR item C") "indi-

cates an intent to give the nouns their separate, normal meanings,"

Garcia v. United States, 469 U.S. 70, 73 (1984), and thus typically

makes reliance on noscitur a sociis inappropriate, see In re Continen-

tal Airlines, Inc., 932 F.2d 282, 288 (3d Cir. 1991) (explaining that

"noscitur a sociis . . . is of little help where other evidence reveals that

Congress intended to treat the disputed term differently from its

neighbors"). Section 3730(e)(4)(A), however, uses the more typical

form of statutory listing, referring to "congressional, administrative,

or Government Accounting Office" reports, audits, and investigations.

This formulation does not indicate an attempt by Congress to treat

"congressional," "administrative," and "Government Accounting

Office" separately.

Moreover, the exclusively federal nature of the terms "congressio-

nal" and "Government Accounting Office" is immediately apparent,

and these clearly federal terms bookend the not-so-clearly federal

term, thus providing a very strong contextual cue about the meaning

of "administrative." See Ali, 128 S. Ct. at 839 (refusing to rely on nos-

citur a sociis when interpreting an exception to the Federal Tort

Claims Act’s waiver of sovereign immunity where "no relevant com-

mon attribute immediately appear[red]" among the categories listed in

the statutory exception and the exception did not contain "strong[ ]

contextual cues" that the listed categories should be interpreted simi-

larly).

The defendants, however, contend that limiting clause two to fed-

eral administrative reports, audits, or investigations would be incon-

sistent with the disclosure category of clause one, which addresses

disclosures in a "criminal, civil, or administrative hearing." This court

and others have understood clause one to encompass state as well as

federal hearings. See McElmurray v. Consolidated Gov’t of Augusta-

Richmond County, 501 F.3d 1244, 1252-53 (11th Cir. 2007); United

States ex rel. Paranich v. Sorgnard, 396 F.3d 326, 332-33 (3d Cir.

2005); United States ex rel. Reagan v. East Tex. Med. Ctr. Reg’l

16 UNITED STATES v. GRAHAM COUNTY SOIL

Healthcare Sys., 384 F.3d 168, 174 (5th Cir. 2004); A-1 Ambulance

Serv., Inc. v. California, 202 F.3d 1238, 1244 (9th Cir. 2000); United

States ex rel. Siller v. Becton Dickinson & Co., 21 F.3d 1339, 1350

(4th Cir. 1994). The defendants contend that if a state hearing can sat-

isfy the requirements of § 3730(e)(4)(A), then a state audit, investiga-

tion, or report should likewise meet the requirements of the statute.

The essence of the defendants’ argument in this regard is set out in

a district court opinion upon which the defendants rely:

[L]imiting the word "administrative" to only federal admin-

istrative reports, audits and investigations is inconsistent

with the plain language of the phrase at issue as well as the

language and interpretation of the remaining portions of

§ 3730(e)(4)(A). The immediately preceding phrase in that

statutory section provides that public disclosures include

any "criminal, civil, or administrative hearing," and courts

have consistently interpreted that phrase to include both

state and federal litigation and administrative hearings.

Likewise, this section of the FCA also gives public disclo-

sure status to "the news media" regardless of whether that

media is national, state, or local. There is no reason to con-

clude that Congress intended to limit administrative reports,

audits, and investigations to federal actions, while simulta-

neously allowing all state and local civil litigation, state and

local administrative hearings, and state and local news

media to be treated as public disclosures. To interpret the

statute so narrowly would have the anomalous result of

allowing public disclosure status to the most obscure local

news report and the most obscure state and local civil law-

suit or administrative hearing, but denying public disclosure

status to a formal public report of a state government agency

....

In re Nat. Gas Royalties Qui Tam Litig., 467 F. Supp. 2d. 1117, 1143-

44 (D. Wyo. 2006) (underscored emphasis added; footnote and cita-

tions omitted); see also Bly-Magee, 470 F.3d at 918 ("[T]he statute

would seem to be inconsistent if it included state and local adminis-

trative hearings as sources of public disclosures and then, in the next

breath, excluded state administrative reports as sources.").

UNITED STATES v. GRAHAM COUNTY SOIL 17

Although we ultimately disagree with this approach to the statute,

we must admit that there is some force to the argument. The courts

have easily concluded that clause one applies to state-level hearings—

in fact, only one court thus far has explicitly addressed the possibility

that clause one should be limited to federal hearings, see A-1 Ambu-

lance Serv., 202 F.3d at 1244—and there is some logic and symmetry

to taking a similar approach to clause two.

Nonetheless, we believe that this analysis has its own shortcom-

ings. First of all, we note that both clause one and clause two refer

to administrative hearings: Clause one states that public disclosures

can occur in "criminal, civil, or administrative hearing[s]," and clause

two states that public disclosures can occur in "congressional, admin-

istrative, or Government Accounting Office report[s], hearing[s],

audit[s], or investigation[s]." 31 U.S.C.A. 3730(e)(4)(A). If clause

one and clause two both encompass state administrative hearings, as

the defendants contend, then there was no reason for Congress to

repeat the word "hearings" in clause two. See A-1 Ambulance Serv.,

202 F.3d at 1245 ("Dunleavy’s interpretation buttresses our conclu-

sion [that clause one is not limited to federal administrative hearings]

because one may presume that Congress acted intentionally in includ-

ing the modifying language in one clause, but omitting it in another.

It is unlikely that Congress would have referenced administrative

hearings twice in the same sentence, unless it intended to allude to

different contexts." (citation omitted)).5

5

Because courts have interpreted clause one to encompass state and

federal hearings, either interpretation of clause two yields some amount

of redundancy. Under the Dunleavy approach, the statute as interpreted

by the courts is redundant because federal administrative hearings would

qualify as sources of public disclosures under clause one or clause two.

Under the interpretation urged by the defendants, the statute unnecessar-

ily refers to administrative hearings in both clause one and clause two.

While we would of course prefer to avoid all redundancies, the redun-

dancy that exists under the Dunleavy approach is a latent one—that is,

the redundancy is a function of the interplay between the judicial inter-

pretations of clause one and clause two. The defendants’ approach to the

statute, however, creates a patent redundancy in the language affirma-

tively chosen by Congress. Given the choice between tolerating a

judicially-created redundancy or rendering redundant language chosen

by Congress, the former seems more consistent with traditional princi-

ples of statutory construction.

18 UNITED STATES v. GRAHAM COUNTY SOIL

More importantly, however, to adopt the interpretative approach

urged by the defendants would require us to all but ignore the signifi-

cance of the inherently federal language chosen by Congress in clause

two. As reflected in the analysis of district court quoted above, the

defendants’ approach to the statute suggests that because neither

clause one nor clause two limit their reach to federal sources, we

therefore should not view clause two’s references to Congress and the

GAO as limiting the reach of clause two. We find this argument

unpersuasive.

Preliminarily, we note that in this country there is no "federal"

news media, nor for that matter is there any "state" news media from

which "federal" news media could be distinguished. Of course, some

news media are national in scope and reach while others are local, but

"national" in this context cannot be equated with "federal." It thus

seems inappropriate to draw significance from the statute’s failure to

attach any qualification or limitation to public disclosures that are

made by the news media.

More generally, however, we believe the defendants’ interpretation

of clause two is contrary to the basic principle that, where possible,

courts should give effect to every word in a statute. See, e.g., Clinch-

field Coal Co. v. Harris, 149 F.3d 307, 313 (4th Cir. 1998). If Con-

gress had intended clause two to encompass state audits, reports, or

investigations, it could have saved a few words by referring to disclo-

sures in governmental audits, reports, or investigations, a phrasing

that avoids the use of words that are inherently and exclusively fed-

eral in nature. Congress instead provided that the jurisdictional bar

applies to disclosures in a "congressional, administrative, or Govern-

ment Accounting Office report, hearing, audit, or investigation." We

believe this use of inherently federal modifiers was deliberate and sig-

nificant, and that it would be improper to discount its significance

simply because there is no similar limiting language in clause one or

clause three. Cf., e.g., Russello v. United States, 464 U.S. 16, 23

(1983) ("Where Congress includes particular language in one section

of a statute but omits it in another section of the same Act, it is gener-

ally presumed that Congress acts intentionally and purposely in the

disparate inclusion or exclusion." (internal quotation marks and alter-

ation omitted)).

UNITED STATES v. GRAHAM COUNTY SOIL 19

We would not be the first court to observe that the FCA’s public

disclosure bar is far from a model of careful draftsmanship. See Mist-

ick PBT, 186 F.3d at 387, 388 (stating that § 3730(e)(4)(A) "does not

reflect careful drafting or a precise use of language," and describing

it as "syntactically ambiguous"); United States ex rel. Findley v. FPC-

Boron Employees’ Club, 105 F.3d 675, 681 (D.C. Cir. 1997)

("Virtually every court of appeals that has considered the public dis-

closure bar explicitly or implicitly agrees on one thing, however: the

language of the statute is not so plain as to clearly describe which

cases Congress intended to bar."). While it may not be the strongest

of interpretative principles, we nonetheless believe that the noscitur

a sociis principle is the best tool short of a secret decoder ring with

which to gain insight into the meaning of this murky statute.

And when we consider the congressional fine-tuning of the FCA

over the years, we believe it provides further support for the under-

standing of the statute suggested by application of noscitur a sociis.

Since the enactment of the FCA, Congress twice has passed major

revisions intended to strike the proper balance "between encouraging

private citizen involvement in exposing fraud against the government

while preventing opportunistic suits by private persons who became

aware of fraud but played no part in exposing it." United States ex rel.

Barth v. Ridgedale Elec., Inc., 44 F.3d 699, 702 (8th Cir. 1995).

Perhaps the most notorious of these opportunistic (or "parasitic"

suits6) is United States ex rel. Marcus v. Hess, 317 U.S. 537 (1943).

In Hess, because there was no statutory language prohibiting it, the

Supreme Court upheld a verdict in favor of a qui tam relator who cop-

ied his information about fraud by a government contractor directly

from the allegations in a criminal indictment brought by the federal

government against that contractor. See id. at 546-48.

6

"[P]arasitic lawsuits copied from preexisting indictments or based

upon congressional investigations . . . not only diminished the govern-

ment’s ultimate recovery without contributing any new information, but

the rush to the courthouse put pressure on the government to make hasty

decisions regarding whether to prosecute civil actions." United States ex

rel. Findley v. FPC-Boron Employees’ Club, 105 F.3d 675, 679-80 (D.C.

Cir. 1997).

20 UNITED STATES v. GRAHAM COUNTY SOIL

In response to Hess, Congress in 1943 amended the FCA to deprive

courts of jurisdiction over qui tam actions that were based on evi-

dence or information in the government’s possession when the qui

tam action is filed. See Findley, 105 F.3d at 680. While the 1943

amendments did close the door to parasitic actions, the amendments

likewise closed the door to the very claims the qui tam provisions

were originally intended to encourage — claims brought by "those

whistleblowers who furnished evidence or information to the govern-

ment in the first place." Id. Congress eventually realized that by

"eliminat[ing] the financial incentive to expose frauds against the

government," the 1943 amendments "had killed the goose that laid the

golden egg" and resulted in a dramatic decrease in the use of qui tam

actions to combat fraud. Id. Congress amended the FCA in 1986,

again aiming for "the golden mean between adequate incentives for

whistle-blowing insiders with genuinely valuable information and dis-

couragement of opportunistic plaintiffs who have no significant infor-

mation to contribute of their own." United States ex rel. Springfield

Terminal Ry Co. v. Quinn, 14 F.3d 645, 649 (D.C. Cir. 1994). The

1986 amendments, among other things, eliminated the government-

knowledge jurisdictional bar that had been added to the FCA in 1943

and replaced it with the public-disclosure bar at issue in this action.

See id. at 651.

In our view, the defendants’ interpretation of the statute becomes

untenable when we recognize that the public-disclosure bar was the

product of Congress’s repeated efforts to further the "twin goals of

rejecting suits which the government is capable of pursuing itself,

while promoting those which the government is not equipped to bring

on its own." Id.; see also United States ex rel. LaCorte v. Wagner,

185 F.3d 188, 191 (4th Cir. 1999) (recognizing that with the 1986

amendments to the FCA, "Congress struck a careful balance between

encouraging citizens to report fraud and stifling parasitic lawsuits").

Information about federal investigations and audits is easily avail-

able to the members of the Department of Justice charged with

enforcing the FCA. Prohibiting qui tam actions based on public dis-

closure of these federal investigations is completely consistent with

the goal of discouraging actions that the government is capable of

pursuing itself. We cannot conclude, however, that information about

most state and local investigations, audits, or reports is particularly

UNITED STATES v. GRAHAM COUNTY SOIL 21

likely to come to the attention of the federal government. State or

local audits and investigations often involve a small number of public

employees and address issues that directly affect a very small segment

of the local population. The general public often is not aware that an

audit or investigation is being conducted, and the outcome of the audit

or investigation may receive little or no publicity. Moreover, there is

no central location (like a county courthouse with a searchable

docket) where information about such proceedings is kept and made

available to the public. The likelihood of the federal government

learning about the audit or investigation or the underlying information

is thus very small.

Because the federal government is unlikely to learn about state and

local investigations, a large number of fraudulent claims against the

government would go unremedied without the financial incentives

offered by the qui tam provisions of the FCA. If the public-disclosure

bar were to encompass investigations and reports at the state and local

level, as the defendants contend, the effect would be to discourage

private actions that the federal government is not capable of pursuing

on its own, thus frustrating rather than furthering the goals of the

FCA.

Accordingly, given the grammatical structure of § 3730(e)(4)(A),

we agree with the Third Circuit that the phrase "congressional, admin-

istrative, or [GAO] report, hearing, audit, or investigation" is properly

understood to include only federal administrative reports, hearings,

audits, or investigations.7 Because the Audit Report was prepared by

7

Although it is not dispositive, we note that the United States inter-

vened on appeal in Hays to urge the Eighth Circuit to follow the Third

Circuit’s decision in Dunleavy. See Brief for the United States of Amer-

ica as Intervenor, 2002 WL 32181440, at *38-41 (May 2002). At the

invitation of the Supreme Court, the United States also filed an amicus

brief in connection with the petition for certiorari filed after the Ninth

Circuit’s decision in Bly-Magee. The United States again expressed sup-

port for the Third Circuit’s reading of the public disclosure bar but rec-

ommended that the Supreme Court wait for further developments in the

law before reviewing the issue. See Brief for the United States as Amicus

Curiae, 2007 WL 4613626, at *7 (Dec. 21, 2007). The Supreme Court

denied the certiorari petition. See United States ex rel. Bly-Magee v.

Premo, 128 S. Ct. 1119 (2008).

22 UNITED STATES v. GRAHAM COUNTY SOIL

the county and the DEHNR Report was produced by the state, the

reports were not public disclosures within the meaning of

§ 3730(e)(4)(A). The district court therefore erred in concluding that

these reports worked to deprive it of subject matter jurisdiction over

Wilson’s qui tam action.

B.

As previously noted, Wilson in November 1996 cooperated with a

federal investigation into the Cherokee and Graham County EWP

contracts, speaking on multiple occasions to an agent from the

USDA’s Office of Inspector General. The USDA eventually issued a

report in which it concluded that while there were problems with the

administration of the Graham and Cherokee EWP contracts, there was

no conspiracy between Greene, Orr, Timpson, and Brown. Although

it is not entirely clear, it appears from the district court’s order that

the court also viewed this investigation and report as a public disclo-

sure that deprived it of jurisdiction over Wilson’s action. Neither Wil-

son nor the defendants in their briefs devote much attention to the

USDA investigation or report. Nonetheless, because the FCA’s public

disclosure bar is jurisdictional, we are obliged to consider the issue

on our own. See Rockwell, 127 S. Ct. at 1406.

Because the USDA investigation and report were conducted and

issued by a federal agency, they qualify as an administrative hearing

or report under our reading of § 3730(e)(4)(A). There are, however,

additional questions that must be resolved as part of the public disclo-

sure inquiry: whether the investigation or report were publicly dis-

closed, and if so, whether the claims asserted in Wilson’s qui tam

complaint were "based upon" the public disclosure.

(1)

The mere existence of an administrative investigation or report is

not enough to trigger the jurisdictional bar of § 3730(e)(4)(A).

Instead, the investigation or report amounts to a jurisdiction-stripping

public disclosure only if the investigation or report is in fact publicly

disclosed. See, e.g., Grayson, 221 F.3d at 582; Siller, 21 F.3d at 1350.

UNITED STATES v. GRAHAM COUNTY SOIL 23

The district court did not expressly find that either the USDA

investigation or report were publicly disclosed, and the record does

not contain sufficient evidence on this point that would permit this

court to determine as a matter of law whether the investigation or

report were publicly disclosed. We must therefore remand to permit

the district court to make the necessary factual finding.

(2)

A federal administrative investigation or report will operate as a

bar to the exercise of subject matter jurisdiction over a qui tam action

only if the qui tam claims are "based upon the public disclosure" of

the allegations in the report. 31 U.S.C.A. § 3730(e)(4)(A) (emphasis

added).

Most circuits have held that "a qui tam suit is ‘based upon’ a public

disclosure whenever the allegations in the suit and in the disclosure

are the same, ‘regardless of where the relator obtained his informa-

tion.’" Minnesota Ass’n of Nurse Anesthetists v. Allina Health Sys.

Corp., 276 F.3d 1032, 1044-47 (8th Cir. 2002) (adopting majority

rule and collecting cases). In this circuit, however, a qui tam action

is based upon publicly disclosed allegations only if the qui tam plain-

tiff’s allegations were actually derived from the public disclosure

itself:

To "base upon" means to "use as a basis for." Rather plainly,

therefore, a relator’s action is "based upon" a public disclo-

sure of allegations only where the relator has actually

derived from that disclosure the allegations upon which his

qui tam action is based.

Siller, 21 F.3d at 1348; accord United States ex rel. Fowler v. Care-

mark RX, LLC, 496 F.3d 730, 737-38 (7th Cir. 2007). Under Siller,

a qui tam action will not be barred if the plaintiff’s claims are similar

or even identical to the publicly disclosed allegations, so long as the

plaintiff had independent knowledge of the facts and did not derive

his allegations from the public disclosure itself.

Whether a qui tam plaintiff’s FCA claims were derived from a pub-

lic disclosure as defined in § 3730(e)(4)(A) is a question of fact, see

24 UNITED STATES v. GRAHAM COUNTY SOIL

Siller, 21 F.3d at 1349, but it is not clear from the district court’s

order that the court made the required factual finding. Although the

district court in its order recited the "derived from" standard, the dis-

trict court never explicitly held that Wilson’s claims were derived

from any of the documents that the district court viewed as public dis-

closures, much less that her claims were derived from the USDA

investigation or report. If anything, the district court’s abbreviated

analysis seems to suggest that the court in fact applied the broader

"based on" standard used in other circuits rather than Siller’s more

stringent "derived from" standard.

In a portion of the opinion focusing on the effect of the county-

issued Audit Report, the district court stated that, "to the extent that

any allegations of the complaint overlap this information, the jurisdic-

tional bar would apply unless Wilson shows by a preponderance of

the evidence that she was an original source of the information upon

which these statements were based." J.A. 1750. As noted above, we

held in Siller that the mere similarity of the plaintiff’s allegations to

the public allegations is irrelevant; what matters is whether the plain-

tiff actually derived her claims from the public disclosure itself. By

focusing on whether Wilson’s allegations merely overlapped the alle-

gations of the Audit Report, it appears that the district court applied

the wrong standard when determining whether the public-disclosure

bar applied.

Because the district court made no findings as to whether the

USDA investigation or report was publicly disclosed or whether Wil-

son’s claims were derived from the USDA investigation or report, we

cannot at this juncture determine whether the public-disclosure bar

applies. Accordingly, we must vacate the district court’s decision and

remand to give the district court the opportunity to make the neces-

sary factual determinations. See Siller, 21 F.3d at 1349 ("[B]ecause

the district court made no finding on whether Siller actually derived

his allegations from the SSI suit, a finding necessary to the conclusion

that Siller’s action was ‘based upon’ that suit, we . . . vacate the por-

tion of the district court’s order dismissing Siller’s action so as to

enable the court to address this factual question on remand."); see

also United States ex rel. Boothe v. Sun Healthcare Group, Inc., 496

F.3d 1169, 1177 (10th Cir. 2007) ("Because the application of the

‘based upon’ and ‘original source’ tests turn on important factual

UNITED STATES v. GRAHAM COUNTY SOIL 25

questions, ones on which we have no record before us, we think the

appropriate course is to remand the matter for the district court’s con-

sideration in the first instance."); United States v. A.D. Roe Co., 186

F.3d 717, 726 (6th Cir. 1999) (vacating and remanding so that district

court could make necessary factual findings as to whether qui tam

plaintiff’s claims were based on publicly disclosed information).

On remand, the district court shall permit the parties to submit

additional evidence as may be necessary for the court to make the fac-

tual determinations upon which the jurisdictional questions turn. If the

district court determines that the USDA investigation or report was

publicly disclosed and that Wilson’s claims were derived from those

public disclosures, the court must then determine whether Wilson is

an original source as to any of her claims. When considering these

jurisdictional questions, the district court should keep in mind that, as

the Supreme Court made clear in Rockwell, it is not enough for a qui

tam plaintiff to show that jurisdiction exists over one of her claims.

Instead, a qui tam plaintiff must establish that jurisdiction exists over

each individual claim. See Rockwell, 127 S. Ct. at 1410 ("Section

3730(e)(4) does not permit jurisdiction in gross just because a relator

is an original source with respect to some claim. . . . [A] plaintiff’s

decision to join all of his or her claims in a single lawsuit should not

rescue claims that would have been doomed by section (e)(4) if they

had been asserted in a separate action. And likewise, this joinder

should not result in the dismissal of claims that would have otherwise

survived." (internal quotation marks omitted)). The district court’s

analysis should thus proceed on a claim-by-claim basis, individually

addressing "each reasonably discrete claim of fraud" and explaining

whether the court has jurisdiction over that claim. Boothe, 496 F.3d

at 1177.

III.

As mentioned previously, the district court, in an alternative ruling,

addressed and rejected Wilson’s claims on the merits. While we

appreciate the district court’s concern for judicial economy, it was

error for the court to address the merits of Wilson’s claims after con-

cluding that it lacked subject matter jurisdiction over the action. See

Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 127 S. Ct.

1184, 1191 (2007) ("Without jurisdiction the court cannot proceed at

26 UNITED STATES v. GRAHAM COUNTY SOIL

all in any cause; it may not assume jurisdiction for the purpose of

deciding the merits of the case." (internal quotation marks omitted));

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) ("Article

III generally requires a federal court to satisfy itself of its jurisdiction

over the subject matter before it considers the merits of a case."). And

because we cannot yet determine whether subject matter jurisdiction

exists, we similarly are unable to consider the merits of the appeal or

cross-appeal. Accordingly, we vacate the district court’s decisions

granting judgment to the defendants and denying attorneys’ fees to

the cross-appellants, and we remand for further proceedings consis-

tent with this opinion.

If on remand the district court again concludes that the public dis-

closure bar applies and deprives the court of subject matter jurisdic-

tion, then the court should not consider the merits of Wilson’s claims.

If, however, the court concludes that it has jurisdiction over some or

all of Wilson’s claims, the district court may then proceed to consider

the merits of those claims. If the court believes that its prior opinion

rejecting Wilson’s claims on the merits sufficiently addresses all rele-

vant issues, the court may issue an opinion adopting the relevant por-

tions of the prior opinion. And if the district court rejects Wilson’s

claims on jurisdictional grounds or on the merits, it should again con-

sider the defendants’ requests for attorneys’ fees, and the court may

adopt its prior analysis of the fee request or address the issue anew.

We emphasize, however, that nothing in our mandate should be read

to preclude the district court from considering the merits of the qui

tam claims anew or, if the court deems it appropriate, permitting the

parties to submit additional evidence or argument supporting their

claims.

VACATED AND REMANDED