In Re Natural Gas Royalties Qui Tam Litigation

ORDER ON REPORT AND RECOMMENDATIONS OF SPECIAL MASTER

DOWNES, District Judge.

This matter comes before the Court on the Report and Recommendations of Special Master on: (A) Coordinated Defendants’ Motion to Dismiss for Lack of Subject Matter Jurisdiction; (B) Arco’s, Unocal’s and Dauphin’s Motion and Brief on Jurisdiction; (C) Moving 1997 Defendants’ Memorandum to Dismiss Relator’s Complaints for Lack of Subject Matter

*1127

Jurisdiction; and (D) Relator’s Cross Motion for Summary Judgment with Authority Pursuant to Fed.R.Civ.P. 56, on Issue of Public Disclosure Under 31 U.S.C. § 3729 et seq. The Court, having considered the briefs and materials in support of the Special Master’s recommendations and the objections thereto, having heard oral argument of counsel, and being otherwise fully advised, FINDS and ORDERS as follows:

BaCkground

As set forth in the Special Master’s Report, the subject motions are directed at 73 cases filed under the

qui tarn

provisions of the False Claims Act by Relator Jack J. Grynberg, in which he accuses over 300 gas pipelines and other gas measurers of mismeasuring gas produced from federal and/or Indian lands (“the 1997

qui tarn

cases”). Beginning in June of 1997, Relator commenced filing the instant

qui tarn

suits in Federal District Courts in Colorado, Wyoming, Oklahoma, Louisiana, Texas, Michigan, California, and New Mexico. In October of 1999, the Judicial Panel on Multidistrict Litigation transferred 66 cases to this Court for coordinated or consolidated pretrial proceedings. Subsequently, additional cases were transferred, bringing the total now pending to 73. The complaints in each of these cases asserts that all of the Defendants named therein employ a series of mismeasurement techniques that allows them to knowingly un-derreport or cause others to underreport the heating content and volume of gas, and that this conduct has resulted in an underpayment of federal royalties over a 10-year period. Relator’s complaints are brought under the “reverse false claim” provision contained in 31 U.S.C. § 3729 (a)(7).

In April of 1995, Relator filed a

qui tarn

action in the United States District Court for the District of Columbia against forty-four defendants, alleging that they had defrauded the federal government by underpaying royalties on gas purchased from federally owned or Indian lands. Relator asserted that the underpayments were the result of mismeasurement of gas volume and improper analysis of gas heating content. The 1995

Qui Tam

Complaint identified a number of mismeasurement techniques, and asserted that each of the defendants employed one or more of them.

Relator amended the 1995

Qui Tam

Complaint to add defendants and mismeas-urement techniques. An Amended Complaint filed on December 7, 1995, and a Second Amended Complaint, filed on May 13, 1996, each named several new defendants, ultimately bringing the total number of defendants sued in the 1995 action to 70. On March 27, 1997, United States District Judge Thomas F. Hogan dismissed the 1995

qui tarn

action without prejudice for failure to plead fraud with particularity and for improper joinder of parties. There were 63 defendants in the 1995

qui tarn

action at the time the order of dismissal was entered.

The bulk of the allegations in the

qui tarn

actions currently pending before this Court accuse the named Defendants in each case of knowingly utilizing specifically identified techniques to measure gas volume and analyze gas heating content in a manner that produces an artificially low wellhead price. Because federal royalties are based on the wellhead price, the use of these mismeasurement techniques also allegedly results in an underpayment of royalties to the United States. The Special Master found that twenty of the alleged mismeasurement techniques are common to all 73 cases, while other mismeasurement practices are case specific. Each Complaint asserts that each of the named Defendants utilized each of the mismeas-

*1128

urement techniques identified therein. A few of the cases name only one Defendant. The rest identify multiple Defendants that are alleged to be affiliated companies acting in concert through the same employees and personnel.

Following a massive and complex discovery process limited to jurisdictional issues, the parties filed the instant motions, accompanied by hundreds of pages of briefs and thousands of pages of exhibits. The Special Master heard two full days of oral argument. The Defendants’ motions to dismiss contend that Relator has failed to comply with the

qui tam

jurisdictional provisions contained in 31 U.S.C. § 3730 (e)(4). Specifically, Defendants argue that Relator’s 1997

Qui Tam

Complaints are based upon public disclosures of allegations or transactions from one of the sources listed in § 3730(e)(4)(A), and that he is not an original source, as that term is defined in 31 U.S.C. § 3730 (e)(4)(B). Additionally, the Defendants assert that Relator has failed to comply with and/or violated the disclosure and seal provisions of 31 U.S.C. § 3730 (b)(2). Relator’s cross-motion contends that there are no material issues of fact in dispute and that Relator has met the requirements of § 3730(e)(4) as a matter of law.

Section 3730(e)(4) of the False Claims Act provides:

(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 Accounting 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 knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information.

Special Master’s Findings Regarding Public Disclosure

The Special Master reviewed the various categories of documents proffered by Defendants as constituting public disclosures. He first determined that numerous documents from the technical literature on gas measurement were not public disclosures within the statute’s meaning. Though the articles did indicate that commonly employed methods of measurement were not the most accurate, the Special Master rejected them as qualifying public disclosures because the documents did not place anyone’s conduct “in a questioning light” and/or did not “disclose any transaction in which the representations of any particular gas measurer were different than the true facts.” (Report at 1156.) Similarly, he declined to accept as public disclosures the documents related to a 1988-89 investigation by the United States Senate into gas mismeasurement on federal and Indian lands because they named only “Koch Oil” (Report at 1157), a company already dismissed from these proceedings. “The fact that these documents, while noting widespread fraud, specifically identify only one company” was “central” to his conclusion.

Id.

After reviewing case law from various circuits, the Special Master determined that, “generally speaking, public disclosure of widespread wrongdoing in an industry does not trigger the statutory public disclosure bar as to every industry member.” (Report at 1162.)

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The Special Master then turned to whether documents from Relator’s 1995

qui tarn

litigation (“1995

Qui Tam

Action Documents”)

1

met the statutory requirements for public disclosures. He determined that these documents do qualify as public disclosures from one of the listed sources, rejecting Relator’s assertion that such a finding would undermine the policies underlying the FCA. The Special Master further found that the nature of the dismissal of Relator’s 1995

qui tarn

case has no bearing upon the question of whether the pleadings and orders entered therein constitute public disclosures of allegations or transactions under § 3730(e)(4)(A).

Having determined that the 1995

Qui Tam

Action Documents are public disclosures of allegations or transactions from one of the sources listed in the FCA, the Special Master next addressed the question of whether and to what extent Relator’s 1997

qui tarn

cases are based upon those public disclosures. He found that “if the gist of the fraudulent scheme has been publicly disclosed in a source listed in § 3730(e)(4)(A), a subsequent

qui tarn

action alleging a substantially identical fraudulent scheme against the same or related defendants is barred unless the relator qualifies as an original source.” (Report at 1166.) The Special Master concluded that, at least as to the 56 “Overlapping Defendants,” the 1997

qui tarn

cases are based upon the 1995

Qui Tam

Action Documents.

The more difficult question for the Special Master relates to the impact of the 1995

Qui Tam

Action Documents on the Defendants in the 1997

qui tarn

cases which were not expressly named in the 1995 action (“Unnamed Defendants”). The Special Master determined that the publicly disclosed allegations against the defendants in the 1995

Qui Tam

Action Documents also constitute public disclosures of allegations as to affiliated corporations named as Defendants in the 1997

qui tarn

cases. His finding is based on Relator Grynberg’s having specifically asserted in his 1995

Qui Tam

Complaint that the defendants’ affiliates were participants in the fraud; accordingly, the prior public disclosure undoubtedly placed the government on the trail of the alleged fraud. (Report at 1168-70.)

Defendants argued that these materials trigger the public disclosure bar not only with regard to the defendants named in the 1995

qui tarn

action and their affiliated companies, but also with regard to all companies sued in the 1997

qui tarn

cases. The Special Master disagreed, rejecting Defendants’ assertion that Relator’s 1995

Qui Tam

Action Documents clearly alleged

universal

fraud by all purchasers of gas from federal and Indian properties. Even so, the Special Master found no case in which allegations against specifically identified wrongdoers, accompanied by averments of universal fraud directed at such a large and multifaceted group as “gas purchasers,” have been held to trigger the public disclosure bar against all group members. (Report at 1172.) He determined that cases dealing with similar, but not identical, generalized allegations of fraud against large industry groups have concluded that such allegations constitute public disclosures

only

as to those industry members specifically identified in the allegations. (Report at 1172-73) (citing,

e.g., Cooper v. Blue Cross and Blue Shield of Florida, Inc.,

19 F.3d 562 (11th Cir.1994);

United States ex rel. Aflatooni v. Kitsap

*1130

Physicians Servs.,

163 F.3d 516 (9th Cir. 1999); and

Friedman v. Rite Aid Corp.,

152 F.Supp.2d 766 (E.D.Pa.2001)). The Special Master determined that “[tjhose few cases that extend the public disclosure bar to companies not expressly identified in the public disclosure itself involve very small groups of alleged wrongdoers and/or entities performing services at government owned and controlled facilities.” (Report at 1172) (citing,

e.g., United States ex rel. Fine v. Sandia Corp.,

70 F.3d 568 (10th Cir.1995);

United States ex rel. Findley v. FPC-Boron Employees’ Club,

105 F.3d 675 (D.C.Cir.1997); and

United States ex rel. Harshman v. Alcan Elec. and Eng’g, Inc.,

197 F.3d 1014 (9th Cir.1999)). The Special Master ultimately concluded that although the allegations in Relator’s 1995

Qui Tam

Action Documents trigger the public disclosure bar of 31 U.S.C. § 3730 (e)(4)(A) as to all Defendants named therein, as well as affiliated companies acting in concert with them, its reach does not extend to all unnamed purchasers of gas from federal and Indian lands throughout the United States. (Report at 1173.)

Finally, the Special Master turned to other categories of public disclosure. In the main, he found that many of these categories qualified as public disclosures of allegations or transactions, but only named defendants already identified through Relator’s 1995

qui tarn

litigation. Others qualified, but identified companies not sued by Grynberg and were deemed by the Special Master to be irrelevant. Some public disclosures did raise the bar as to some companies not also identified by the 1995 litigation. The remainder of the documents, nearly all of which identified particular companies, were rejected by the Special Master on one or more grounds: (1) insufficient proof that the documents had been disclosed to the public; (2) Gryn-berg’s allegations were different than what the documents alleged; (3) no evidence that various litigation documents had actually been filed in court; (4) the given document did not put a defendant’s conduct in a questioning light; and (5) the disclosure did not come from a source listed in § 3730(e)(4), particularly a report on Gryn-berg’s allegations by an agency of the State of Alabama.

Special Master’s Findings Regarding Original Source Status

Having found the public disclosure bar triggered as to some of the 1997

qui tam

cases before this Court, Relator can survive Defendants’ § 3730(e)(4) motions as to those cases only if he demonstrates that he is an original source of the information underlying his allegations or there are at least triable issues of material fact regarding his status as an original source. The Special Master found two primary factors controlling the “direct and independent knowledge” requirement for original source status. The first of these factors is the source of the Relator’s knowledge regarding the information supporting his allegations. Application of this factor is more difficult where, as here, a relator claims original source status based upon information derived from an independent investigation, rather than from information obtained as a whistle-blowing insider. The second factor is the extent to which the information supporting Relator’s allegations was already in the public domain. “In the context of an independent investigation, the public information factor assures that the relator brings something of real value to the table.” (Report at 1199.)

In sum, the Special Master determined that “in order to demonstrate original source status based upon an independent investigation, a relator must show that: (a) a substantial amount of the knowledge of the key information underlying the allega

*1131

tions in the complaint is first-hand, and not derived from the knowledge or labors of others; and (b) he or she was the first to uncover a material element of the fraud

(ie.,

either the true state of facts or the misrepresented facts) that had not previously been in the public domain.” (Report at 1201.) The Special Master further found a relationship between the direct and independent knowledge and the voluntary disclosure requirements of § 3730(e)(4)(B). “[I]n assessing whether a relator has ‘direct and independent knowledge of the information’ on which his allegations are based, the ‘information’ to be considered is that which was voluntarily provided to the government prior to the filing of the

qui tam

case.” (Report at 1202.)

The Special Master found that “from a quantitative standpoint, a majority of Relator’s knowledge of the information on which he relies to support the allegations in his 1997

Qui Tam

Complaints is secondhand or comes from publicly available sources.” (Report at 1214.) However, he agreed with Relator that the quality of his discovery and investigation is more significant, ie., “the extent to which a relator’s first-hand knowledge, possibly aided to some degree by deductions drawn from innocuous public information, was instrumental in allowing him or her to uncover the material elements of the alleged fraud and to complete the fraud equation.”

Id.

After a thorough analysis of the components of the alleged “fraud equation,” the Special Master concluded that the combination of speculation, information derived from publicly available materials, and second-hand knowledge compiled from third party interviews is not sufficiently “direct and independent” under the Tenth Circuit case law to qualify Relator as an original source. (Report at 1218.)

The Special Master separately analyzed Relator’s original source status with respect to the

qui tam

cases against the Transwestern, Questar, and KN groups, finding Relator’s claim of such status to be stronger against these Defendants. (Report at 1220.) “The key question is whether Relator’s direct and independent knowledge of how these Defendant groups measure gas [is] sufficient to complete, or at least significantly assist in completing the equation of fraud that Relator has posited in his Complaints against them.”

Id.

The Special Master recognized that Relator’s allegations against these Defendant groups are based, at least in part, upon Relator’s own testing and analysis and/or personal business records. With little guidance from case law, the Special Master determined that if Relator’s contribution in terms of direct and independent knowledge was substantial, then portions of the fraud equation may be completed with information derived from innocuous public sources. (Report at 1223.) Ultimately, he concluded that Relator has not met his burden of demonstrating that he is an original source of the allegations in his Complaints against these Defendant groups.

Special Master’s Findings Regarding Disclosure and Seal Requirements

Section 3730(b)(2) of the False Claims Act states:

A copy of the complaint and written disclosure of substantially all material evidence and information the person possesses shall be served on the Government pursuant to Rule 4(d)(4) of the Federal Rules of Civil Procedure. The complaint shall be filed in camera, shall remain under seal for at least 60 days, and shall not be served on the defendant until the court so orders. The Government may elect to intervene and proceed with the action within 60 days after it

*1132

receives both the complaint and the material evidence and information.

The Special Master first addressed the parties’ dispute as to whether these written disclosure and seal requirements are “jurisdictional” or “procedural.” (Report at 1226.) Having determined that there is no controlling Tenth Circuit precedent on the issue, the Special Master concurred with “a substantial body of federal case law from other Circuits” which has “uniformly rejected attempts to read § 3730(b)(2) as implicating a court’s subject matter jurisdiction,” the import being that violation of those requirements does not mandate dismissal. (Report at 1227-28.) The Special Master further found that the criteria qualifying a disclosure for consideration in assessing compliance with 31 U.S.C. § 3730 (b)(2) are two-fold: (a) the disclosure must be in writing; and (b) it must be served in accordance with Fed. R.Civ.P. 4. (Report at 1230.) He concluded that only certain documents offered by Relator meet this two-fold test (“the A series of exhibits”).

Id.

Having identified the types of materials properly considered under § 3730(b)(2), the Special Master addressed whether there was a violation of the disclosure requirement in this case. He determined that while a relator’s § 3730(b)(2) disclosure should include much of what he will rely upon to support his contentions and allegations, the plain language of the statute does not contemplate an evaluation of the evidentiary quality of a relator’s disclosure. (Report at 1232.) Noting an apparent lack of precedent, the Special Master rejected the assertion that the disclosure requirement is a mechanism for Defendants to challenge a relator’s disclosure on qualitative grounds. The Special Master analyzed the plain language of the statute and the purpose sought to be achieved by Congress in requiring such disclosure. He concluded,

At least where the government itself is not seeking dismissal under 31 U.S.C. § 3730 (c)(2)(A), ... a relator complies with his duty to provide a copy of the complaint and written disclosure of “substantially all of the material evidence and information in his possession” if: (a) the complaint and written disclosures contains substantially all of the evidence and information that the relator relies upon to support the

qui tarn

claim; and (b) the government is able effectively to exercise its right of intervention.

(Report at 1235.) Applying this standard to the cases at issue here, the Special Master found that no prejudice to the government has been demonstrated and that Relator made a meaningful effort to disclose a substantial portion of the evidence and information on which he was relying. (Report at 1236.)

Finally, the Special Master addressed whether Relator Grynberg violated the seal requirement and, if so, whether dismissal is an appropriate remedy. The Defendants argue that Relator violated the seal requirement by discussing the existence and substance of his 1997

Qui Tam

Complaints with various potential victims and attorneys during the seal period. The Special Master found evidence in the record to support the Defendants’ allegations, but agreed with Relator that the sanction of dismissal is unwarranted. Because the Defendants had been “tipped off’ by Relator’s 1995

Qui Tam

Complaint, he concluded that Relator Grynberg’s various efforts to “shop” his claims to other alleged victims did not frustrate the purpose of the seal provision or impede the government’s investigation.

The Special Master’s findings and conclusions resulted in the recommendation

*1133

for dismissal of just over half of the cases pending before the Court in this multi-district litigation.

Standard of Review

Rule 53 of the Federal Rules of Civil Procedure governs this Court’s review of the Special Master’s Report and Recommendations. The Court must afford the parties an opportunity to be heard and may adopt or affirm, modify, or wholly or partly reject the Master’s Report and Recommendations, or may resubmit the matter to the Master with instructions. Fed. R. Crv. P. 53(g)(1). The Court must decide

de novo

all objections to the Master’s findings of fact and conclusions of law. Fed. R. Civ. P. 53(g)(3)

&

(4).

Discussion

With respect to the Report and Recommendations related to the requirements of § 3730(e)(4), the Coordinated Defendants assert three reasons for the Court to modify the Special Master’s determination that the public disclosure bar had not been raised as to ninety-nine of the Defendants: (1) the Report did not consider that gas measurement facilities are extensively regulated by the federal government, and that both producers and pipelines have direct contractual relationships with the Department of the Interior; (2) allegations of gas mismeasurement were so widespread and identified so many companies that the government was taken to the trailhead of the alleged fraud; and (3) the Report overlooked that Grynberg’s complaints could be “based upon” public disclosures through reports of “transactions,” even if those reports do not place a defendant’s conduct in a questioning light.

Relator contends that the Special Master erred in the following respects: (1) in concluding that private litigation involving common law claims as to a very small number of natural gas mismeasurement techniques and a limited number of companies constitutes a public disclosure of all Relator’s numerous

qui tam

claims against all of those companies and all of their affiliates; (2) in concluding the “1995

Qui Tam

Action Documents” constitute a public disclosure as to all of the Defendants named in that 1995 case and all of those Defendants’ affiliates; (3) by inappropriately making factual determinations on the issue of original source in the course of resolving the pending motions for summary judgment; and (4) in establishing a new legal standard for determining whether a relator qualifies as an original source, contrary to

Kennard v. Comstock Resources, Inc.,

363 F.3d 1039 (10th Cir.2004) and other prevailing False Claims Act authority.

Public Disclosure

Relator Grynberg contends that the Special Master erred in finding that certain documents from private litigation constitute public disclosure of his current

qui tam

claims against those certain Defendants. Specifically, Relator argues that a

qui tam

action is not based upon an earlier public dissemination unless the public disclosure identified the same facts that give rise to the clear inference of fraud, identified the same defendants, and expressly alleged that the fraud was perpetrated upon the Federal Government. However, the Court finds that Tenth Circuit authority does not support Relator’s position.

“Based upon,” in 31 U.S.C. § 3730 (e)(4)(A), means “supported by.”

United States ex rel. Fine v. MK-Ferguson Co.,

99 F.3d 1538, 1545 (10th Cir.1996). “It refers to the degree of similarity between the allegations or transactions that are set out in the

qui tam

complaint and the allegations or transactions that have been publicly disclosed.” (Report at 1166.) The nexus necessary to fulfill the “based upon” requirement is “substantial identity”

*1134

between a relator’s allegations and a public disclosure.

United States ex rel. King v. Hillcrest Health Center, Inc.,

264 F.3d 1271, 1279 (10th Cir.2001). Under this test, even

qui tam

actions only partially based upon publicly disclosed allegations or transactions may be barred.

United States ex rel. Grynberg v. Praxair, Inc.,

389 F.3d 1038, 1051 (10th Cir.2004). Furthermore, the fact that a relator’s

qui tam

complaint incorporates additional or somewhat different details does not defeat the public disclosure bar.

See, e.g., MK-Ferguson,

99 F.3d at 1546-47 . The Tenth Circuit has explained that this “based upon” test is designed to operate as a “quick trigger” for the more exacting original source inquiry.

Id.

at 1545 . The Court agrees with the Special Master that Relator’s suggested approach is inconsistent with the “quick trigger” concept.

A

qui tam

action is based upon a public disclosure if the allegations in the disclosure have already set the government squarely on the trail of the alleged fraud.

See United States ex rel. Fine v. Sandia Corp.,

70 F.3d 568, 571 (10th Cir. 1995). The Court agrees that “[a]n allegation that a named purchaser of gas at the wellhead is underpaying because it intentionally mismeasures volume and heating content is sufficient to alert anyone with a financial stake in gas acquired by the same purchaser that their interests are in jeopardy.” (Report at 1176-77.) As this Court has previously determined, it is the alleged filing of reports of undermeasured gas that is the gravamen of Relator’s present allegations, not the use of any particular measurement technique. Admittedly, there are differences between the allegations in Grynberg’s private litigation and the averments in the 1997

Qui Tam

Complaints. However, these private lawsuits also accused the opposing parties of stealing gas by mismeasuring volume and/or heating content through use of one or more of the same mismeasurement techniques at issue in the 1997

qui tam

cases now before this Court. Accordingly, the Special Master correctly concluded that to the extent that the Grynberg Private Litigation Documents constitute public disclosures of allegations or transactions from a statutory listed source, they trigger the original source inquiry only as to those specific companies.

2

Likewise, because the testimony found in Document 133

3

questioned the propriety of Exxon’s gas measurement practices, and pointed out that Exxon’s practices could result in an under-measurement of gas volume, it would place the government on the trail of • the similar, but expanded allegations of gas mismeasurement against Exxon in 99 MD 1621. Therefore, the Special Master correctly concluded that 99 MD 1621 is at least based in part upon the publicly disclosed allegations and transactions in Document 133 and thus triggers the public disclosure bar.

*1135

Relator further disputes that his 1995

Qui Tam

Action Documents constitute public disclosures of any of the allegations or transactions on which his 1997

qui tarn

cases are based. First, Relator argues that the judge presiding over his 1995

qui tarn

action made a binding determination that the contents of the 1995

Qui Tam

Complaint and amendments thereto were too vague and imprecise to be deemed disclosures of “allegations or transactions” of fraud, within the meaning of § 3730(e)(4)(A). Thus, Relator contends, the principle of issue preclusion prevents this Court from finding otherwise. Second, Relator argues that the 1995

Qui Tam

Action Documents do not constitute a public disclosure because they fail to link any of the defendants with a particular mismeasurement technique.

The Court disagrees with both contentions. Relator cites no authority which equates Fed.R.Civ.P. 9(b)’s technical requirements for pleading fraud with particularity to that which constitutes an “allegation or transaction” under § 3730(e)(4)(A). Relator’s assumption is at odds with the different purposes underlying Rule 9(b) and the public disclosure bar of the FCA. “The primary purpose of Rule 9(b) is to afford defendant fair notice of the plaintiffs claim and the factual ground upon which it is based.”

Farlow v. Peat, Marwick, Mitchell & Co.,

956 F.2d 982, 987 (10th Cir.1992) (citation omitted). In contrast, the purpose of the public disclosure bar is to prevent parasitic suits when information in the public domain is sufficient to set the government on the trail of fraud. More importantly, as stated previously, it is not the identification of each specific technique of mismeasurement, but rather the allegation that Defendants underpay royalties to the federal government by intentionally mismeasuring gas volume and heating content which operates as a “quick trigger” of the public disclosure bar.

4

Relator Grynberg also objects to the Special Master’s ruling that the public disclosure bar was raised as to defendants not specifically named in the 1995

qui tarn

action. In

Sandia, supra,

the Tenth Circuit Court of Appeals rejected the relator’s argument that his complaint was not based upon the public disclosures at issue because the disclosures did not specifically identify defendant Sandia as a wrongdoer. The appellate court pointed out that the disclosures in the General Accounting Office report and Congressional hearing detailed the mechanics of the allegedly wrongful practice, revealed that at least two of Sandia’s eight sister laboratories were employing it, and indicated the United States Department of Energy’s acquiescence. Under these circumstances, concluded the court, the public disclosures sufficiently alerted the government to the likelihood that Sandia would also engage in the alleged fraud.

Sandia,

70 F.3d at 571 .

Sandia

demonstrates that there is no

per se

rule in the Tenth Circuit that the public disclosure must name the later

qui tarn

defendant.

Nevertheless, after reviewing case law from various circuits, the Special Master determined that

Sandia

established an exception to the general rule that public

*1136

disclosure of widespread wrongdoing in an industry does not trigger the statutory public disclosure bar as to every industry member. (Report at 1158-62.) Similarly, the identification of one or a few defrauders in an industry does not operate as a public disclosure of unlawful conduct by other, unrelated companies. Exceptions to this general rule appear to be limited to situations where the proposed public disclosure asserts fraud by a small group of businesses who are easily identifiable through information in the public domain and/or widespread fraud by a narrow or discrete group of companies having unique contractual relationships with the federal government that allow for substantial government oversight. As the

Sandia

court observed in distinguishing

Cooper v. Blue Cross & Blue Shield of Florida, Inc.,

19 F.3d 562 (11th Cir.1994), a case relied on by Relator Grynberg: “When attempting to identify individual actors, little similarity exists between combing through the private insurance industry in search of fraud and examining the operating procedures of nine, easily identifiable, DOE-controlled, and government-owned laboratories.”

Sandia,

70 F.3d at 572 .

Thus, the Special Master recognized authority for the principle that the public disclosure bar can be raised as to defendants not named in a prior public disclosure where the allegations in the publicly disclosed documents allow for easy identification of unnamed wrongdoers by the federal government. This principle is consistent with the axiom that a

qui tam

action is based upon the allegations in a prior public disclosure if the disclosure squarely places the government on the trail of the alleged fraud. (Report at 1168.) The Special Master concluded that, because Relator Grynberg’s 1995

qui tam

action and 1997

qui tam

cases both specifically allege concerted action among affiliated companies, and because the affiliates of the defendants named in the 1995

qui tam

action represent a relatively small group of companies readily identifiable from easily accessible information, the publicly disclosed allegations against the defendants in the 1995

Qui Tam

Action Documents also constitute public disclosures of allegations as to affiliated corporations named as Defendants in the 1997

qui tam

cases. The Special Master declined to extend the public disclosure bar to all unnamed purchasers of gas from federal and Indian lands throughout the United States, however, finding that the purpose of the FCA is best served by applying the public disclosure bar only to those wrongdoers expressly identified in the publicly disclosed allegations, affiliates acting in concert with expressly identified wrongdoers, and groups of alleged wrongdoers who, although not individually named in the public disclosure, are quickly and easily identified because of the group’s small size and/or the group’s close connection to government owned and controlled facilities.

Contrary to Relator’s argument, Defendants contend that the public disclosure bar has been raised as to

all

Defendants in Grynberg’s 1997

qui tam

cases. Defendants argue, first, that all of Relator’s cases fall within the exception to the general rule recognized by the Special Master. In support, Defendants assert the following: the ninety-nine remaining Defendants have been sued for mismeasuring natural gas from federal and Indian lands, that the measurements occur at government controlled and approved facilities called “facility measurement points” or “points of royalty settlement,” and that these points are located on federally or tribally owned lands; at these measurement facilities, “Gas Measurers” have direct contractual relationships with the federal government (they are either federal or Indian lessees or pipelines holding federally-issued

*1137

rights-of-way); and both legislative branch and executive branch inspectors had actually inspected, as a part of an investigation or required routine regulatory inspections, the measurement equipment at the very meters which are the subject of Gryn-berg’s allegations.

Under these circumstances, the Court agrees with Defendants that the public disclosures would apply to all of the 1997

qui tam

Defendants because the allegations concerned “widespread fraud by a group of companies having unique and direct contractual relationships with the federal government that allow for substantial government oversight.” (Report at 1162.) The activities of Relator’s “Gas Measur-ers” have long been subject to close oversight by the Interior Department. Although this group potentially involved hundreds, if not thousands of companies, all potential wrong-doers were readily identifiable by the government without the assistance of Mr. Grynberg. Mr. Gryn-berg has not assisted the government in narrowing this large group by providing “significant independent information that is not already in the public domain.”

See United States ex rel. Findley v. FPC-Boron Employees’ Club,

105 F.3d 675, 682 (D.C.Cir.1997). Rather, Relator Grynberg has simply sued nearly all “Gas Measur-ers” in the industry, speculating that the fraud is widespread, if not universal. Relator adds no value to the government by researching the publicly available names of the industry’s members.

As set forth previously, the Tenth Circuit test for determining whether a relator’s complaint is “based upon” publicly disclosed “allegations or transactions” is whether “substantial identity” exists between the publicly disclosed allegations and the

qui tam

complaint.

MK-Ferguson,

99 F.3d at 1545 . “The False Claims Act can thus bar a

qui tam

action that is only partly based upon publicly disclosed allegations or transactions. Moreover, this ‘based upon’ analysis is a threshold inquiry ‘intended as a quick trigger’ to reach the ‘original source’ analysis.”

Id.

(citing

Precision,

971 F.2d at 552). The Court disagrees with the Special Master’s application of this test to the ninety-nine remaining Defendants which were not named in the 1995

Qui Tam

Action Documents or the Senate Committee Documents, or affiliated with a named Defendant. Instead, the Court finds that the principles set forth in

United States ex rel. Fine v. Sandia Corp.

lead to the conclusion that Relator’s 1997

Qui Tam

Complaints are based upon these prior public disclosures as to

all

Defendants named therein.

In

Sandia,

the United States General Accounting Office (GAO) issued a report examining the research and development (R

&

D) activities at three out of nine multiprogram laboratories, including San-dia National Laboratory, owned by the United States government and operated by private or university contractors under the Department of Energy’s (DOE) administrative oversight. 70 F.3d at 569 . The report included a section which focused on the “taxing” of nuclear waste funds by two of the laboratories during fiscal years 1988 and 1989. Concluding that those funds should be used only for research involving the storage and disposal of radioactive waste, the report noted that the Los Ala-mos and Lawrence Livermore Laboratories had taxed the waste fund for their discretionary R & D projects in 1989. The report further indicated that the DOE knew some of its laboratories were “taxing” nuclear waste funds for use in discretionary research and did not condemn the practice.

Id.

A subsequent congressional hearing “shed further light on the national laboratories’ practice,” although the hear

*1138

ing did not specify that Sandia was “taxing” nuclear waste funds.

Id.

at 570 .

At the time of the GAO report and congressional hearing, Mr. Fine was employed by the DOE’s Office of Inspector General, where his duties included auditing Sandia. He continued to investigate the activities of Sandia and other government contractors following his retirement in 1991. In 1992, Mr. Fine filed a

qui tarn

action alleging that Sandia improperly taxed the nuclear waste funds during fiscal years 1991 and 1992 and used the diverted funds in generic, discretionary R & D activities. The district court concluded that it lacked jurisdiction over Mr. Fine’s complaint, holding that “the general allegations regarding the laboratories’ ‘taxing’ of nuclear waste funds contained in the 1990 GAO report and the 1991 congressional hearing were sufficient to constitute ‘public disclosures’ of the practice.”

Id.

On appeal, the relator insisted that his complaint was not based upon the public disclosures at issue because the disclosures merely described the Energy Department’s nine national laboratories’ general practice of improperly using money from a “nuclear waste fund,” whereas his complaint specifically identified Sandia as engaging in the practice.

Id.

at 571 .

The Tenth Circuit disagreed. “Because these disclosures detailed the mechanics of the practice, revealed that at least two of Sandia’s eight sister laboratories were engaged in it, and indicated the DOE’s acquiescence, we conclude that they sufficiently alerted the government to the likelihood that Sandia would also ‘tax’ nuclear waste funds in the future.”

Id.

In reaching this conclusion, the Court of Appeals considered the goal of the FCA’s jurisdictional scheme to find “the golden mean between adequate incentives for whistle-blowing insiders with genuinely valuable information and discouragement of opportunistic plaintiffs who have no significant information to contribute of their own.”

Id.

(quoting

United States ex rel. Springfield Terminal Ry. v. Quinn,

14 F.3d 645, 649 (D.C.Cir. 1994)).

We analyze Mr. Fine’s claim in the context of Congress’ 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.... Because the GAO report and the congressional hearing

set the government squarely on the trail of the alleged fraud

without Mr. Fine’s assistance, we believe it would be contrary to the purposes of the FCA to exercise jurisdiction over his claim.

Id.

(internal quotations and citations omitted) (emphasis added).

Thus, in determining whether the government has been set on the trail of fraud in the face of detailed allegations of widespread fraud in an industry, the issue is not whether a public disclosure names names; instead, the issue is whether, once alerted by the public disclosure to the nature of the wrongdoing, the federal government can identify the wrongdoers through whatever means are at its disposal.

United States ex rel. Gear v. Emergency Med. Assoc. of Illinois, Inc.,

436 F.3d 726 , 729 (7th Cir.2006) (“Industry-wide public disclosures bar

qui tarn

actions against any defendant who is directly identifiable from the public disclosures.”).

5

*1139

Like the GAO report in

Sandia,

the Senate investigation, hearing, and report,

6

and certainly Relator’s 1995

Qui Tam

Action Documents, put the government on notice of “widespread theft through mis-measurement of oil and gas by purchasers of gas” from wells on federal and Indian lands. (Report at 1157.) These public disclosures “identified various mismeasurement practices” and a “vast opportunity for theft.”

Id.

Because the Senate disclosures indicated that information concerning other unnamed companies had been turned over to the Department of Justice, the Court can presume that any further investigation would have looked at any company measuring gas from federal or Indian lands. While, admittedly, this group of “Gas Measurers” is much larger than the group of laboratories at issue in

Sandia,

these companies are readily identifiable by the government. The Court finds that Relator Grynberg is an “opportunistic plaintiff’ who has little or no significant information to contribute of his own. Rather, Mr. Grynberg merely speculates that the fraud is occurring industry-wide, naming nearly the entire industry in this action and hoping that discovery will

*1140

reveal the necessary evidence to support his vast claims. His present

qui tam

complaints are clearly “based upon” the prior public disclosures of widespread fraud.

The holding in

United States ex rel. Findley v. FPC-Boron Employees’ Club, supra,

further supports this Court’s findings. In

Findley,

the relator sued “all employees’ clubs of the [Bureau of Prisons] and the United States Department of Justice that earn revenue from the provision of vending services on federal property.” 105 F.3d at 678 . The relator specifically named one club of employees who worked at the prison camp in Boron, California, alleging that its members were unlawfully retaining money from vending machines in employee and visitor rooms at the prison, money he alleged should have been paid into the Treasury. The court found that the relator’s complaint was based upon three public disclosures. The first was a forty-year-old government report disclosing that it was doubtful that federal employees clubs could lawfully retain the profits received from vending machines on government premises. The report mentioned only the clubs of the United States Postal Service and the Federal Bureau of Investigation.

Id.

at 685 . The second was a 1974 Senate report regarding amendments to the Randolph-Sheppard Act which noted that federal employee welfare and recreation groups had long retained money from vending machines on federal property, despite suggestions that the practice was unlawful. The third was a decision of the Court of Appeals for the Federal Circuit which referenced these two documents.

Id.

at 686 . None of these disclosures specifically mentioned either the club at FPC-Boron or even the more general class of clubs at Bureau of Prisons facilities.

To determine the meaning of “based upon,” the

Findley

court took guidance from the Tenth Circuit’s opinion in

United States ex rel. Precision Co. v. Koch Indus., Inc.

wherein the court explained that “[a]s a matter of common usage, the phrase ‘based upon’ is properly understood to mean ‘supported by.’ ”

Findley,

105 F.3d at 682 (quoting

Precision,

971 F.2d at 552). The D.C. Circuit further noted, “[T]he Tenth Circuit reasoned that its limited interpretation of who could sue under the statute protected the incentive for private citizens with first-hand knowledge to expose fraud, but also prohibited civil actions brought by opportunists who do not contribute anything significant to the exposure of the fraud.”

Id.

Upon review of the language, structure, history and purpose of the FCA, the

Findley

court concluded that “Congress sought to limit

qui tam

actions ‘to those in which the relator has contributed significant independent information [that is not already in the public domain].’ ”

Id.

(quoting

Springfield Terminal Ry.,

14 F.3d at 653 ).

The relator in

Findley

argued that allowing the public disclosure bar to be raised by generic allegations of wrongdoing by employees’ clubs would “frustrate the purpose of the

qui tam

provisions by foreclosing suits by whistleblowers who have identified specific instances of fraudulent conduct.”

Id.

at 686 . The D.C. Circuit, however, found this concern untenable. “When the publicly disclosed transaction is sufficient to raise the inference of fraud ...., there is little need for

qui tam

actions, which tend to be suits that the government presumably has chosen not to pursue or which might decrease the government’s recovery in suits it has chosen to pursue.”

Id.

at 687 . “The disclosures recognize that the practice occurs throughout the federal government, thus their relevance cannot be confined to specific agencies.”

Id.

Those disclosures “specifically identify the nature of the fraud — illegal retention of mo

*1141

nies owed to the government and unauthorized administrative approval of the practice — as well as the federal employee actors engaged in the allegedly fraudulent activity.”

Id.

The court found that Findley’s complaint substantially repeated what the public already knew and “add[ed] only the identity of particular employees’ clubs engaged in the questionable and previously documented generic practice” from the universe of “easily identifiable federal employee organizations that provide vending services on federal property.”

Id.

The Court finds that the consolidated cases before it are more closely akin to

Findley

than to

Cooper ,

a ease on which the Special Master relied in concluding that the public disclosure bar had not been raised as to previously unnamed Defendants. Like

Findley,

with its disclosures regarding generically labeled “federal employee welfare and recreation groups” on federal property — a class numbering in the hundreds — -these cases are presaged by public disclosures alleging gas mismeas-urement on federal and Indian lands, both by many identified companies and by more generically described groups such as “gas measurers,” “gas pipelines,” or the “natural gas industry.” Like

Findley,

the complaints here alleged that a class of defendants engaged in identical fraud. And the Defendants here are “easily identifiable” actors in gas measurement on federal and Indian lands because of their contracts with and/or oversight by the Department of the Interior. The Court concludes, therefore, that because Relator Grynberg’s 1997

Qui Tam

Complaints merely echo publicly disclosed, allegedly fraudulent conduct that “already enables the government to adequately investigate the case and to make a decision whether to prosecute,” the public disclosure bar applies to all Defendants.

Id.

at 688 .

Cooper

stands in contrast. There the relator had repeatedly seen his claims for insurance reimbursement denied by Blue Cross Blue Shield of Florida (“BCBSF”), which always asserted it was an insurer secondary to Medicare.

Cooper,

19 F.3d at 564 . After researching his benefits and the law governing payment of his claims, he learned that this conduct might be occurring at other insurance companies. Other public disclosures discussed widespread Medicare Secondary Payer (“MSP”) fraud and named certain insurance companies, but none named BCBSF. The court ruled that the public disclosure bar had not been raised by these disclosures, reasoning that to require “allegations specific to a particular defendant be publically disclosed before finding the action potentially barred encourages private citizen involvement and increases the chances that every instance of fraud will be revealed.”

Id.

at 566 .

Unlike Mr. Grynberg and the relators in

Findley,

Mr. Cooper did not begin with an assertion of widespread fraud, then go in search of defendants. Cooper sued only one defendant with allegations arising out of years of direct dealings with the company. Unlike

Findley

and the present cases, BCBSF was not operating on federal property, subject to routine government inspections, and in a direct contractual relationship with the government. No evidence in

Cooper

showed the government could know (without the help of a public disclosure) which entity was supposed to be acting as Cooper’s primary insurer; the evidence in the present cases shows that the government knew exactly who was measuring gas produced from federal and Indian lands. Relator Grynberg’s 1997

qui torn

cases against hundreds of “Gas Measurers” on federal and Indian lands are clearly based upon the public disclosures of widespread fraud, not on signifi

*1142

cant independent information regarding specific companies.

Having determined that the 1995

Qui Tam

Action Documents and the Senate Select Committee Documents raise the public disclosure bar as to all Defendants named in Relator’s 1997

qui tam

cases, the Court need not address whether other documents the Special Master rejected as qualifying public disclosures also raise the bar. However, it should be noted that the Court agrees with Defendants’ argument that a particular disclosure on its own does not have to place a defendant’s conduct in a questioning light. “[T]he public disclosure of the material elements of the fraudulent transaction bars

qui tam

actions even if the disclosure itself does not allege any wrongdoing.”

Sandia,

70 F.3d at 572 . More recently, the Tenth Circuit has held that the public disclosure bar is raised where “[a]ll of the material elements of the fraudulent

transaction

were already in the public domain.”

United States ex rel. Grynberg v. Praxair, Inc.,

389 F.3d 1038, 1051 (10th Cir.2004) (emphasis added).

The relator must possess substantive information about the particular fraud, rather than merely background information which enables a putative relator to understand the significance of a publicly disclosed transaction or allegation. If a relator merely uses his or her unique expertise or training to conclude that the material elements already in the public domain constitute a false claim, then a

qui tam

action cannot proceed.

Findley,

105 F.3d at 688 (internal quotations and citations omitted).

The Court also notes its disagreement with the Special Master’s rejection as a public disclosure of an administrative report of an audit and investigation by the State of Alabama (“the Evaluation Report”) naming certain companies, including Mobil Oil Exploration

&

Producing Southeast, Inc., Shell, Exxon, Offshore Group, Inc., Callon Petroleum, Legacy Resources Co., Scana Petroleum Resources, Mobile Gas Company, and Transcontinental Gas Pipeline. The Special Master found that the Evaluation Report, in addition to an explanation of the measurement techniques employed by these companies, also discusses many of the gas measurement issues raised in Relator’s 1997

Qui Tam

Complaints. (Report at 1190.) The Special Master further found that, although the Report does not contain allegations of wrongdoing, it arguably discloses “transactions” from which wrongdoing can be inferred, particularly when combined with other public disclosures. Nevertheless, the Special Master concluded that the Evaluation Report did not qualify as a statutory source under § 3730(e)(4)(A) because it had not been issued by an agency of the federal government. (Report at 1191.)

The Special Master was persuaded by the reasoning of

United States ex rel. Dunleavy v. County of Delaware,

123 F.3d 734 (3rd Cir.1997), which held that state administrative reports and investigations do not qualify as public disclosures from any of the statutory listed sources.

Id.

at 745 . Focusing on the statutory phrase “congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation,” the Special Master concluded that because the word “administrative” appeared in between two entities that are clearly federal — Congress and the GAO — the term must be understood to refer to only

federal

administrative investigations and reports, and not state reports. He added that his conclusion was supported by policy. Seeing the goal of public disclosure as one of putting the federal government on notice of fraud, the Special Master determined that “[rjeports generated by the myriad of state, county, and

*1143

local administrative agencies

that do not relate to joint state-federal programs

are unlikely candidates to fulfill the notice function.” (Report at 80) (emphasis added).

The Shell, Exson and Mobil Defendants separately objected to the Special Master’s findings on this issue, arguing that the Evaluation Report constitutes a public disclosure even under the Special Master’s reading of the limited precedent, and that the Special Master’s reading of the statute was overly restrictive. In

United States ex rel. Hays v. Hoffman,

325 F.3d 982 (8th Cir.2003), the Eighth Circuit concluded that the

Dunleavy

court ruled more broadly than necessary in stating that a state agency disclosure may never qualify as an “administrative ... report, hearing, audit, or investigation” for purposes of § 3730(e)(4)(A).

Id.

at 989. Rather, the

Hays

court rejected the Third Circuit’s textual approach and concluded “that Medicaid compliance audits and audit reports conducted and prepared by the state agency authorized to administer this cooperative federal/state program are public disclosures within the meaning of § 3730(e)(4)(A).”

Id.

at 988.

These Defendants contend that, because the Alabama Evaluation Report related to a joint state/federal program, it should likewise qualify as a public disclosure. Defendants argue that the Special Master failed to consider applicable federal regulations and certain relevant facts contained in the Evaluation Report which indicate the Report was the product of a cooperative program. The Report clearly addresses the measurement of gas production in an area of cooperative federal and state offshore development. The Report’s Introduction states, “[I]t is imperative that all the hydrocarbon production from offshore state waters and certain federal blocks are accurately measured and that payments are received in full for all such production.” The Court finds that this state-generated report that investigates gas measurement of gas streams, including those from federal leases, would likely place the federal government on notice of fraudulent activities impacting the federal fisc.

Furthermore, the Court finds that limiting the word “administrative” to only federal administrative 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).

7

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.

A-1 Ambulance Service, Inc. v. California,

202 F.3d 1238 , 1244 (9th Cir.2000);

United States ex rel. Reagan v. East Tex. Med. Ctr. Reg’l Healthcare Sys.,

384 F.3d 168 (5th Cir. 2004);

United States ex rel. O’Keeffe v. Sverdup Corp.,

131 F.Supp.2d 87, 91-92 (D.Mass.2001). Likewise, this section of the FCA also gives public disclosure status to “the news media” regardless of whether that media is national, state, or local. There is no reason to conclude that Congress intended to limit administrative reports, audits, and investigations to

federal

actions, while simultaneously allowing

*1144

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 lawsuit or administrative hearing, but denying public disclosure status to a formal public report of a state government agency, such as the Alabama Evaluation Report.

The public disclosure bar is designed to limit

qui tam

jurisdiction “to those cases in which the relator played a role in exposing a fraud of which the public was previously unaware.”

Findley,

105 F.3d at 678 . If all state administrative reports, audits, or investigations were automatically excluded as public disclosures because they do not originate from the federal government, a primary purpose of the statute would be undermined in that relators would be empowered to copy the results of widely disseminated audits or investigations regarding fraud and nonetheless be permitted to proceed with their parasitic

qui tam

action merely because the federal government had not issued the report. Therefore, this Court rejects the Special Master’s findings with respect to the Alabama Evaluation Report.

Finally, Relator Grynberg contends that he is being denied equal protection because he now must meet the “more exacting” original source standard in this re-filed

qui tam

action than he would have needed to satisfy in his 1995

qui tam

case. “If a law neither burdens a fundamental right nor targets a suspect class, [a court] will uphold the legislative classification so long as it bears a rational relation to some legitimate end.”

Romer v. Evans,

517 U.S. 620, 631 , 116 S.Ct. 1620 , 134 L.Ed.2d 855 (1996).

“Qui tam

relators” are not a suspect class, and no one has a fundamental right to sue on the government’s behalf. Thus, the rational basis test applies.

“Under the rational basis test, the court upholds the policy if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.”

Copelin Brown v. New Mexico State Personnel Office,

399 F.3d 1248, 1255 (10th Cir.2005) (internal quotations and citation omitted). The policy behind the public disclosure bar provides the rational basis. “[Wjhere public disclosure of the fraud has already occurred, no incentive for a private

qui tam

suit is needed.”

United States ex rel. Fine v. MK-Ferguson Co.,

99 F.3d 1538, 1546 (10th Cir.1996). The public disclosure bar, as construed by the Special Master and this Court, is rationally related to Congress’ purpose in limiting

qui tam

actions.

Original Source

In objecting to the Special Master’s findings on the original source issue, Relator first contends that the Special Master improperly resolved disputed material facts regarding his lack of direct knowledge of the information upon which he based his complaints. The Court finds that the Special Master viewed the record in the light most favorable to Relator. (Report at 1144.) Accepting Relator Grynberg’s portrayal of his investigation as true, the Special Master categorized Relator’s knowledge of the information on which his allegations are based as either “direct and independent” or “secondhand.”

Id.

at 1213. Knowledge that the Special Master determined to be “secondhand,” or from publicly available sources, was rejected as legally insufficient to meet the original source standard. The Special Master then determined whether Gryn-berg possessed sufficient direct and independent knowledge to qualify as an original source.

*1145

Summary judgment may be entered “against a party who fails to make a sufficient showing to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof.”

Celotex Corp. v. Catrett,

477 U.S. 317, 322 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). The statutory provisions of 31 U.S.C. § 3730 (e)(4) implicate this Court’s subject matter jurisdiction. Since federal courts are courts of limited jurisdiction, the Court presumes no jurisdiction exists absent an adequate showing by the party invoking federal jurisdiction.

United States ex rel. Hafter v. Spectrum Emergency Care, Inc.,

190 F.3d 1156, 1160 (10th Cir.1999). Since Defendants have challenged the Court’s jurisdiction, the burden is on Relator to show that jurisdiction exists.

United States ex rel. Stone v. Rockwell Intern. Corp.,

282 F.3d 787 , 797 (10th Cir.2002). “[Relator] must therefore sustain the burden of alleging the facts essential to show jurisdiction and supporting those facts with competent proof. Mere conclusory allegations of jurisdiction are not enough.”

Id.

(internal quotations and citations omitted). The Special Master did not improperly weigh the evidence; rather, he concluded that Relator’s knowledge of the information on which his allegations are based is not sufficiently “direct and independent” as a matter of law to qualify Relator as an original source.

Part and parcel of the original source analysis is the statutory mandate that prior to filing suit, a

qui tam

relator must have voluntarily provided the information on which the allegations are based to the government.

United States ex rel. King v. Hillcrest Health Center, Inc.,

264 F.3d 1271, 1280 (10th Cir.2001). Thus, to avoid the jurisdictional bar, “a relator must have direct and independent knowledge of the information on which the

qui tam

allegations are based and must have provided the

same

information to the government prior to filing the

qui tam

action.”

Id.

(emphasis added). As with other statutes conferring jurisdiction on federal courts, § 3730(e)(4)(B) must be strictly construed, with doubts resolved against federal jurisdiction.

Id.

Relator Grynberg contends that the Special Master erred in limiting the “information” that may be considered in assessing whether a relator has “direct and independent knowledge of the information” on which his allegations are based to only that “information” which Relator voluntarily provided to the government prior to filing the

qui tam

action. Relator argues that in doing so, the Special Master failed to consider “very significant portions of Relator’s evidence.” (Relator’s App. of Objections ¶ 16.) The Court disagrees.

The Tenth Circuit has clearly stated that “before filing the

qui tam

action, a relator must voluntarily provide the Government with the essential elements or information on which the

qui tam

allegations are based.”

King,

264 F.3d at 1280 . A relator may utilize all information voluntarily disclosed to the government before filing suit in order to demonstrate direct and independent knowledge of the information on which the allegations in the

qui tam

complaint are based.

8

See United

*1146

States ex rel. Detrick v. Daniel F. Young, Inc.,

909 F.Supp. 1010, 1017 (E.D.Va.1995). Conversely, however, a relator is precluded from attempting to establish that he or she is an original source by proffering information that was not submitted to the government in accordance with § 3730(e)(4)(B). The withholding of significant portions of evidence “deprives the government of key facts necessary in its efforts to confirm, substantiate or evaluate the fraud allegations.”

King,

264 F.3d at 1281 . If Relator Grynberg had significant information on which his

qui tam

allegations are based that he did not voluntarily provide to the government, then Grynberg failed to meet the jurisdictional requirements of an original source.

Id.

Relator Grynberg further faults the Special Master for failing to consider the 1995

Qui Tam

Complaint and “significant supporting documentation” in the original source analysis as information Relator voluntarily provided to the government. (Relator’s App. of Objections ¶ 30.) However, the 1995 Complaint merely contains “allegations” not “information” upon which his 1997 allegations are based. As for the “significant supporting documentation” Grynberg references, it is apparent that the Special Master did consider such information in detail, despite some uncertainty as to whether all of the proffered documents were actually given to the government before filing suit. (Report at 1208.)

Relator also contends that the Special Master incorrectly employed a “substantial first-hand knowledge” test in determining whether Relator qualifies as an original source. Relator argues that such a test is inconsistent with Tenth Circuit and other leading authorities. Relying on

United States ex rel. Springfield Terminal Ry. Co. v. Quinn,

14 F.3d 645 (D.C.Cir.1994), Relator maintains that he merely needs direct and independent knowledge of

“any

essential element” of the alleged fraud without regard to the

quantity

of information he has added to the equation. The Special Master recognized that Relator Grynberg has direct and independent knowledge of some of the information upon which some of his allegations are based. However, the Master found that “from a quantitative standpoint, a majority of Relator’s knowledge of the information on which he relies to support the allegations in his 1997

Qui Tam

Complaints is secondhand or comes from publicly available sources.” (Report at 1214.) Ultimately, the Special Master concluded that Relator’s “combination of speculation, information derived from publicly available materials, and second-hand knowledge compiled from third party interviews is not sufficiently ‘direct and independent’ under the Tenth Circuit case law to qualify Relator as an original source.”

9

Id.

at 1218.

The FCA defines “original source” as “an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information.” 31 U.S.C. § 3730 (e)(4)(B). Under

*1147

Tenth Circuit authority, knowledge is “direct and independent” if it is “marked by the absence of an intervening agency,” and “unmediated by anything but the relator’s own labor.”

United States ex rel. Fine v. MK-Ferguson Co.,

99 F.3d 1538, 1547 (10th Cir.1996). Independent knowledge is knowledge which is not secondhand; rather, a relator must demonstrate that he discovered the information on which the allegations are based through his own efforts and not by the labors of others, and that the information was not derivative of the information of others.

United States ex rel. Hafter v. Spectrum Emergency Care, Inc.,

190 F.3d 1156, 1162 (10th Cir. 1999). “To establish original source status knowledge, a

qui tarn

plaintiff must allege specific facts — as opposed to mere conclusions — showing exactly how and when he or she obtained direct and independent knowledge of the fraudulent acts alleged in the complaint and support those allegations with competent proof.”

Id.

Secondhand information, speculation, background information or collateral research do not satisfy a relator’s burden of establishing the requisite knowledge.

Id.

at 1162-63 ;

see also United States ex rel. Stinson, Lyons, Gerlin & Bustamante, P.A. v. Prudential Ins. Co.,

944 F.2d 1149, 1160 (3d Cir.1991) (a relator’s background information or unique expertise allowing him to understand the significance of publicly disclosed allegations and transactions is insufficient to establish original source).

Relator Grynberg insists that, when comparing the “character of the discovery and investigation” undertaken by the rela-tors in

Kennard v. Comstock Res.,

363 F.3d 1039 (10th Cir.2004), who were found to be original sources, with the “character of the discovery and investigation” by Grynberg, he clearly qualifies as an original source.

Id.

at 1045-46 . Relators Ken-nard and Wright conducted their own research and investigation into the alleged fraud on the Government, part of which included a review of public records. The Tenth Circuit declined to adopt any bright-line rule disqualifying a relator as an original source when he examines public records as part of an independent investigation. Instead, the

Kennard

court gave consideration to the availability of the information and the amount of labor and deduction required to construct the claim.

Id.

at 1046 . Because Relators Kennard and Wright relied on personal royalty records and “relatively obscure public documents” in “ferreting out” the alleged fraud, the Court of Appeals found that they qualified as an original source.

Id.

Nevertheless, a relator’s knowledge must still be direct, not secondhand, and a

qui tarn

action cannot be sustained where all of the material elements of the fraudulent transaction are already in the public domain and the

qui tarn

relator simply comes forward with additional evidence.

United States ex rel. Grynberg v. Praxair, Inc.,

389 F.3d 1038, 1054 (10th Cir.2004);

United States ex rel. Springfield Terminal Ry. Co. v. Quinn,

14 F.3d 645, 655 (D.C.Cir.1994). To be an original source, a relator must do more than assemble information. The Tenth Circuit has consistently recognized that “[a] relator’s ability to recognize the legal consequences of a publicly disclosed fraudulent transaction does not alter the fact that the material elements of the violation already have been publicly disclosed.”

Praxair,

389 F.3d at 1053 (quoting

Findley,

105 F.3d at 688 );

Kennard,

363 F.3d at 1045 (same).

In

Hafter,

the court compared the detail and scope of the allegations with the relator’s direct knowledge and determined that the information provided by relator was “relatively minor and insignificant,” the “core information” having come from a

*1148

third party’s independent research and investigation. 190 F.3d at 1163-64 . In

United States ex rel. Precision Co. v. Koch Industries, Inc.,

971 F.2d 548 (10th Cir. 1992), the relator’s “independent information” was “weak, informal and strikingly redundant” when compared to the information obtained secondhand.

Id.

at 554 . In

MK-Ferguson,

where the information was derived from a publicly disclosed audit report, the court determined the relator contributed “no significant information of his own.” 99 F.3d at 1548 . And in

Prax-air,

the court compared Grynberg’s purported “independent” knowledge with information already in the public domain, and concluded that the character of Gryn-berg’s discovery and investigation was insufficient to qualify him as an original source. 389 F.3d at 1054 .

Grynberg contends that through his independent investigation and research he obtained direct and independent knowledge of information which provides an essential element of his claims. However, the Special Master determined that any direct knowledge Grynberg possessed did not make a significant contribution given the nature and scope of his allegations, the amount of information in the public domain, and Grynberg’s heavy rebanee on second-hand information and speculation. This Court agrees. A review of the character of Grynberg’s discovery and investigation in this case reveals that most of Grynberg’s knowledge was secondhand, public, or based on speculation, and that what bttle he knew about a few practices of a few Defendants was insubstantial when compared to the breadth and scope of the allegations in his complaints. Reía-tor Grynberg complains of the irony that had he focused his

qui tam

suit on those few defendants for which he had some direct and independent knowledge as to a few of the alleged mismeasurement techniques, then he might have faired better in the original source analysis. However, as the Court sees it, this “ironic twist” results not from an incorrect interpretation of the law, but from Relator’s own overreaching. Grynberg deliberately chose to make sweeping allegations of fraud against nearly the entire industry, based in large part on rank speculation. By employing such odious tactics he now becomes the instrument of his own undoing.

Conclusion

Relator Grynberg’s

qui tam

cases before the Court are based upon the public disclosures of industry-wide natural gas measurement abuses on federal and/or Indian land. Furthermore, Relator Grynberg has not satisfied his burden of showing he qualifies as an original source. Accordingly, pursuant to the provisions of 31 U.S.C. § 3730 (e)(4), the Court lacks subject matter jurisdiction over Relator’s 1997

qui tam

cases.

The Court finds that the Special Master’s Report and Recommendations should be MODIFIED to the extent set forth above, and adopted in all other respects not specifically addressed herein.

10

THEREFORE, it is hereby

ORDERED that the Coordinated Defendants’ Motion to Dismiss for Lack of Subject Matter Jurisdiction, Arco’s, Unocal’s and Dauphin’s Motion and Brief on Jurisdiction, and Moving 1997 Defendants’ Motion to Dismiss for Lack of Subject

*1149

Matter Jurisdiction are GRANTED; it is further

ORDERED that Relator’s Cross Motion for Summary Judgment on Issue of Public Disclosure is DENIED; it is further

ORDERED that the following cases are DISMISSED for lack of subject matter jurisdiction: 99-MD-1601; 99-MD-1602; 99-MD-1603; 99-MD-1604; 99-MD-1605; 99-MD-1607; 99-MD-1608; 99-MD-1609; 99-MD-1610; 99-MD-1611; 99-MD-1612; 99-MD-1613; 99-MD-1614; 99-MD-1615; 99-MD-1616; 99-MD-1617; 99-MD-1618 (except as to claims pertaining to the royalty value of carbon dioxide (C02) against Defendant Mobil Exploration & Producing U.S., Inc.);

11

99-MD-1619; 99-MD-1621 (except as to claims pertaining to the royalty value of carbon dioxide (C02) against Defendant Exxon Co., U.S.A.); 99-MD-1622; 99-MD-1623; 99-MD-1624; 99-MD-1625; 99-MD-1626; 99-MD-1627; 99-MD-1628; 99-MD-1629 (except as to claims pertaining to the royalty value of carbon dioxide (C02) against Defendants Shell Land and Energy Co. and Shell Western E & P, Inc.); 99-MD-1630; 99-MD-1631; 99-MD-1637; 99-MD-1638; 99-MD-1639; 99-MD-1640; 99-MD-1641; 99-MD-1642; 99-MD-1643; 99-MD-1644; 99-MD-1645; 99-MD-1646; 99-MD-1647; 99-MD-1648; 99-MD-1649; 99-MD-1650; 99-MD-1651; 99-MD-1652; 99-MD-1653; 99-MD-1654; 99-MD-1655; 99-MD-1656; 99-MD-1657; 99-MD-1658; 99-MD-1659; 99-MD-1660 (except as to claims pertaining to the royalty value of carbon dioxide (C02) against Defendant Amerada Hess Corp.); 99-MD-1661; 99-MD-1662; 99-MD-1663; 99-MD-1664; 99-MD-1665 (except as to claims pertaining to the royalty value of carbon dioxide (C02) against Defendants ARCO Oil & Gas Co. and ARCO Permian, d/b/a Atlantic Richfield Co.); 99-MD-1666; 99-MD-1667; 99-MD-1668 (except as to claims pertaining to the royalty value of carbon dioxide (C02) against Defendants Oxy-USA); 99-MD-1669; 99-MD-1670; 99-MD-1671; 99-MD-1672 (except as to claims pertaining to the royalty value of carbon dioxide (C02) against Defendant Cross Timbers Operating Company); 99-MD-1673; 00-MD-1632; 00-MD-1633; 00-MD-1634; 00-MD-1635; 00-MD-1636; 02-MD-1682; 04-MD-1684.

REPORT AND RECOMMENDATIONS OF SPECIAL MASTER ON: (A) COORDINATED DEFENDANTS’ MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION; (B) ARCO’S, UNOCAL’S AND DAUPHIN’S MOTION AND BRIEF ON JURISDICTION; (C) MOVING 1997 DEFENDANTS’ MEMORANDUM TO DISMISS RELATOR’S COMPLAINTS FOR LACK OF SUBJECT MATTER JURISDICTION; AND (D) RELATOR’S CROSS MOTION FOR SUMMARY JUDGMENT WITH AUTHORITY PURSUANT TO FED. R. CIV. P. 56, ON ISSUE OF PUBLIC DISCLOSURE UNDER 31 U.S.C. § 3729 ET SEQ.

PRINGLE, Special Master.

' This matter comes before the Special Master on the following dispositive motions: (a) Coordinated Defendants’ Motion to Dismiss for Lack of Subject Matter Jurisdiction (hereinafter the “Coordinated Defendants’ Motion to Dismiss”); (b)

*1150

Arco’s, Unocal’s and Dauphin’s Motion and Brief on Jurisdiction (hereinafter “Arco’s Motion to Dismiss”); (c) Moving 1997 Defendants’ Memorandum to Dismiss Relator’s Complaints for Lack of Subject Matter Jurisdiction (hereinafter “the 1997 Defendants’ Motion to Dismiss”); and (d) Relator’s Cross Motion for Summary Judgment with Authority Pursuant to Fed.R.Civ.P. 56, on Issue of Public Disclosure Under 31 U.S.C. § 3729 et seq. (hereinafter “Relator’s Cross Motion”). On August 19, 2003, the United States District Court for the District of Wyoming entered a Second Order Appointing Special Master (Second Order). Among the matters referred to the Special Master in the Second Order was the authority to issue Recommendations as to the appropriate resolution of dispositive motions. The above captioned motions have been fully briefed and argued. The Special Master now issues this Report and Recommendation:

I. BACKGROUND

A.General Nature of the Cases

The Coordinated Defendants’ Motion to Dismiss, Arco’s Motion to Dismiss, and the 1997 Defendants’ Motion to Dismiss are directed at 73 cases filed under the

qui tam

provisions of the False Claims Act by Relator Jack J. Grynberg (hereinafter “Relator”), in which he accuses over 300 gas pipelines and other gas measurers of mismeasuring gas produced from federal and/or Indian lands (hereinafter “the 1997

qui tam

cases”).

1

The Complaint in each of these 73 cases asserts that all of the Defendants named therein employ a series of mismeasurement techniques that allows them to knowingly underreport or cause others to underreport the heating content and volume of gas, and that this conduct has resulted in an underpayment of federal royalties over a 10-year period in excess of 20%.

2

B. Relator Grynberg

Relator Jack Grynberg (hereinafter “Relator”) received undergraduate and graduate degrees from the Colorado School of Mines and, for approximately the past 40 years, has operated a privately owned oil and natural gas production firm. During the course of operating this company, he has had business dealings with many of the Defendants named in the 1997

Qui Tam

Complaints. These business dealings led to a substantial amount of private litigation between Grynberg, his business entities, and family members on the one hand, and various pipelines and operators on the other hand. Grynberg’s private litigation, which continued unabated for more than 20 years, involved a variety of issues, including disputes over gas volume measurement and gas heating content analysis.

C. The 1995 Qui Tam Suit

On April 17, 1995, Relator filed a

qui tam

action in the United States District Court for the District of Columbia against forty-four defendants, alleging that they had defrauded the federal government by underpaying royalties on gas purchased from federally owned or Indian lands. Re

*1151

lator asserted that the underpayments were the result of mismeasurement of gas volume and improper analysis of gas heating content. The Complaint (hereinafter the “1995

Qui Tam

Complaint”) identified a number of mismeasurement techniques, and asserted that each of the defendants employed one or more of them.

Relator amended the 1995

Qui Tam

Complaint to add defendants and mismeas-urement techniques. An Amended Complaint filed on December 7, 1995, and a Second Amended Complaint, filed on May 13, 1996, each named several new defendants, ultimately bringing the total number of defendants sued in the 1995

qui tarn

action to 70.

On March 27, 1997, United States District Judge Thomas F. Hogan dismissed the 1995

qui tarn

action without prejudice for failure to plead fraud with particularity and for improper joinder of parties. There were 63 defendants in 1995

qui tarn

case at the time the order of dismissal was entered.

D. The 1997 Qui Tam Cases

Beginning in June of 1997, Relator commenced filing the instant

qui tarn

suits in Federal District Courts in Colorado, Wyoming, Oklahoma, Louisiana, Texas, Michigan, California, and New Mexico (hereinafter the “1997

qui tarn

cases”). On October 20, 1999, the Judicial Panel on Multidis-trict Litigation issued a Transfer Order, transferring 66 cases to the United States District Court for the District of Wyoming, and assigning them to the Honorable William F. Downes for coordinated or consolidated pretrial proceedings. Subsequently, additional cases were transferred, bringing the total now pending in the District of Wyoming to 73.

On November 19, 1999, the Defendants moved to dismiss the actions pursuant to Fed.R.Civ.P. 8(a), 9(b), and 12(b). The motion was denied by the Court. A subsequent motion to dismiss, attacking certain valuation claims (as opposed to mismeas-urement claims) contained in the 1997

Qui Tam

Complaints, was granted by the Court on October 9, 2002. Additionally, Defendants moved to dismiss other claims asserted in the 1997 Complaints involving carbon dioxide under the “first-to-fíle” rule, 31 U.S.C. § 3730 (b)(5). The Special Master has issued a Recommendation that the motion be granted. The Recommendation is pending before Chief Judge Downes.

The bulk of the allegations in the 73

Qui Tam

Complaints initiated by Relator and currently pending in the District of Wyoming are unaffected by either the “first-to-file” Order or the carbon dioxide Recommendation. These remaining allegations accuse the named Defendants in each case of knowingly utilizing specifically identified techniques to measure gas volume and analyze gas heating content in a manner that produces an artificially low wellhead price. Because federal royalties are based on the wellhead price, the use of these mismeas-urement techniques also allegedly results in an underpayment of royalties to the United States. Twenty of the alleged mis-measurement techniques are common to all 73 cases. Additionally, there are other mismeasurement practices that are case specific. Each Complaint asserts that each of the named Defendants utilized each of the mismeasurement techniques identified therein.

3

A few of the cases

*1152

name only one Defendant. The rest identify multiple Defendants that are alleged to be affiliated companies acting in concert through the same employees and personnel.

E. The Instant Motions to Dismiss and the Cross Motion

In 2002, Chief Judge Downes authorized limited discovery relating to jurisdictional issues. A massive and complex discovery process ensued, including but not limited to a deposition of the Relator that consumed approximately 30 days; voluminous document production; and the filing of a plethora of discovery motions. Pursuant to an order entered by Chief Judge Downes on August 19, 2003, a Special Master was appointed effective September 15, 2003, to oversee the discovery proceedings; to resolve nondispositive motions; and to issue Recommendations on dispositive motions.

In the summer of 2004, Defendants filed their jurisdictional motions, accompanied by hundreds of pages of briefs and thousands of pages of exhibits. Relator not only responded to Defendants’ motions in kind, but also filed his own Cross Motion. Reply and sur-reply briefs added to the already overwhelming amount of documentation submitted in support of and in opposition to the jurisdictional motions. On March 17 and 18, 2005, the Special Master heard two full days of oral argument.

The Coordinated Defendants’ Motion to Dismiss, Arco’s Motion to Dismiss, and the Moving 1997 Defendants’ Motion to. Dismiss each contend that Relator has failed to comply with the

qui tarn

jurisdictional provisions contained in 31 U.S.C. § 3730 (e)(4). Specifically, Defendants argue that Relator’s

Qui Tam

Complaints are based upon public disclosures of allegations or transactions from one of the sources listed in § 3730(e)(4)(A), and that he is not an original source, as that term is defined in 31 U.S.C. § 3730 (e)(4)(B). Additionally, the Defendants assert that Relator has failed to comply and/or violated the disclosure and seal provisions of 31 U.S.C. § 3730 (b)(2). Relator’s cross motion asseverates that there are no material issues of fact in dispute and that Relator has met the requirements of § 3730(e)(4) as a matter of law.

II. THE DEFENDANTS’ MOTIONS TO DISMISS BASED UPON THE PUBLIC DISCLOSURE/ORIGINAL SOURCE BAR OF THE FALSE CLAIMS ACT ( 31 U.S.C. § 3730 (e)(4)) AND RELATOR’S CROSS MOTION FOR SUMMARY JUDGMENT

Defendants have moved to dismiss all of Relator’s 1997

qui tarn

eases on the ground that they are based upon public disclosures of allegations and transactions, and that Relator is not an original source. The argument is premised on an amendment to the federal False Claims Act (hereinafter the “FCA”) enacted in 1986 as 31 U.S.C. § 3730 (e)(4). The 1986 amendment represents Congress’ latest attempt to craft

qui tarn

provisions that achieve “the golden mean between adequate incentives for whistle-blowing insiders with genuinely valuable information and discouragement of opportunistic plaintiffs who have no significant information to contribute of their own.”

United States ex rel. Ramseyer v. Century Healthcare Corp.,

90

*1153

F.3d 1514, 1517 (10th Cir.1996).

4

Section 3730(e)(4) provides:

(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 Accounting 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 knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information.

Relator’s Cross Motion contends that, as a matter of law, his 1997

Qui Tam

Complaints are not based upon any public disclosures meeting the requirements of § 3730(e)(4)(A).

The United States Court of Appeals for the Tenth Circuit has enunciated a four-part inquiry for determining whether the jurisdictional requirements of § 3730(e)(4) have been met:

Generally speaking, the jurisdictional inquiry under 31 U.S.C. § 3730 (e)(4)(A) involves four questions: (1) whether the alleged ‘public disclosure’ contains allegations or transactions from one of the listed sources; (2) whether the alleged disclosure has been made ‘public’ within the meaning of the FCA; (3) whether the relator’s complaint is ‘based upon’ this ‘public disclosure’; and, if so, (4) whether the relator qualifies an ‘original source’ under § 3730(e)(4)(B).

United States ex rel. Holmes v. Consumer Ins. Group,

318 F.3d 1199, 1203 (10th Cir.2003).

If any of the first three questions are answered in the negative, the subject matter jurisdiction requirements of § 3730(e)(4) are met, and there is no need to address the fourth question relating to original source. However, if each of the first three queries is answered in the affirmative, relator must qualify as an “original source,” as that term is defined in 31 U.S.C. § 3730 (e)(4)(B).

Id.

It is clear that with respect to

qui tam

claims under the FCA, the public disclosure/original source jurisdictional inquiry arises out of the same statute that creates the substantive claim. In such situations, Tenth Circuit law considers the jurisdictional inquiry to be intertwined with the merits. As a result, Defendants’ public disclosure/original source motions and Relator’s Cross Motion must be resolved under Fed.R.Civ.P. 12(b), or, after proper conversion into a motion for summary judgment, under Rule 56.

United States ex rel. Fine v. MK-Ferguson Co.,

99 F.3d 1538, 1543 (10th Cir.1996). Because voluminous amounts of documentation outside of the pleadings have been submitted by the parties, and because all parties have been given reasonable opportunity to present pertinent evidentiary materials, the motions will be resolved pursuant to Rule 56 procedures.

*1154

On the one hand, the traditional Rule 56 principles apply. Consequently, the moving party must demonstrate that there is no genuine material issue of fact in dispute. The evidentiary record must be viewed in the light most favorable to the non-moving party. On the other hand, because the motions are directed at the Court’s subject matter jurisdiction, there remains a presumption that no jurisdiction exists absent a showing of proof by the party asserting federal jurisdiction.

United States ex rel. Precision Co. v. Koch Indus. Inc.,

971 F.2d 548, 551 (10th Cir. 1992) (hereinafter

“Precision I"), cert. denied,

507 U.S. 951 , 113 S.Ct. 1364 , 122 L.Ed.2d 742 (1993).

5

As a result, despite the application of Rule 56 procedures, the party invoking the Court’s subject matter jurisdiction bears the ultimate burden of demonstrating by competent evidence that jurisdiction exists under the FCA.

Holmes,

318 F.3d at 1203 . In the context of the instant motions, although Relator is entitled to have the evidentiary record viewed in the light most favorable to him, he must still show that, when so viewed, there is competent proof establishing that he meets the FCA’s jurisdictional requirements.

6

A. Public Disclosure

As indicated above, the public disclosure prong of § 3730(e)(4)(A) involves three questions. The first query, which consists of two subparts, is whether the alleged disclosure contains (a) allegations or transactions; (b) from one of the sources listed in the statute. The second question is whether the alleged disclosure has been made public. The third question is whether the allegations in Relator’s 1997

Qui Tam

Complaints are based upon the alleged disclosure. If any of these are answered in the negative, the provisions of § 3730(e)(4) pose no impediment to the Court’s subject matter jurisdiction.

Exhibit 2 to the Coordinated Defendants’ Public Disclosure/Original Source Memorandum consists of over 600 documents that Defendants contend meet all of the public disclosure criteria of 31 U.S.C. § 3730 (e)(4)(A). The Special Master has reviewed all of the Exhibit 2 documents, and has separated them into 17 categories for ease of analysis. The Special Master now makes the following Findings of Fact and Conclusions of Law regarding the application of § 3730(e)(4)(A)’s public disclosure bar to each such category and the documents contained therein.

1.

Documents Without Highlighting

The Special Master granted Relator leave to serve an Interrogatory and Request for Production of Documents, requiring the Defendants to identify each document that they relied upon as meeting the statutory requirements for a public disclosure of the allegations or transactions on which Relator’s 1997 Complaints were based. In their initial response and several supplemental responses, Defendants identified over 600 items consisting of some 19,000 pages. Some of the individual items were several hundred pages in length. Exhibit 2 is comprised of these materials produced in response to Relator’s discovery request.

*1155

Thereafter, Relator filed a Motion to Compel Sufficient Answers to Interrogatories 1(c) and 1(g). One of the issues raised in the motion was the difficulty in determining what portions of the over 600 documents actually constituted the alleged public disclosures. Relator asserted that the responses to his interrogatory and request for production were unusable unless Defendants provided an additional road map of exactly what language in each document allegedly qualified as a public disclosure meeting the requirements of § 3730(e)(4)(A).

The Special Master agreed with Relator that further information was necessary in order to adequately understand Defendants’ responses. Accordingly, the Special Master entered an oral order during a telephonic conference on March 10, 2004, followed by a written order on March 30, 2004. Among other things, these orders required Defendants physically to highlight those portions of each document that Defendants were relying upon as public disclosures within the meaning of § 3730(e)(4)(A). The Special Master informed Defendants that he would not consider any un-highlighted documents or un-highlighted portions of documents in determining whether Relator’s Complaints were based upon public disclosures of allegations or transactions from one of the statutory sources.

Of the documents comprising Exhibit 2, 199 are not highlighted.

See

Appendix A, attached hereto. Pursuant to the Special Master’s orders of March 10, 2004 and March 30, 2004, Defendants are precluded as a matter of law from asserting that any of these materials meet the public disclosure prong of 31 U.S.C. § 3730 (e)(4)(A). As a result, no further consideration of them is required in the analysis of the parties’ contentions regarding public disclosure.

2.

The Gas Measurement Articles

The largest category of documents in Exhibit 2 to the Defendants’ § 3730(e)(4) briefs consists of 291 trade journal essays, educational materials, seminar papers, instruction manuals, and newspaper articles discussing the technical aspects of gas measurement and the factors that can cause mismeasurement to occur (hereinafter the “Educational and Instructional Materials”).

7

See

Appendix B, attached hereto. We may assume for purposes of discussion that each of the 291 Educational and Instructional Materials constitutes a public disclosure from one of the listed sources, since the term “news media” in 31 U.S.C. § 3730 (e)(4)(A) includes published articles and scholarly or scientific periodicals.

United States ex rel. Alcohol Found., Inc. v. Kalmanovitz Charitable Found., Inc.,

186 F.Supp.2d 458, 461 (S.D.N.Y.2002),

aff'd,

53 Fed.Appx. 153 (2d Cir.2002),

cert. denied,

540 U.S. 949 , 124 S.Ct. 413 , 157 L.Ed.2d 281 (2003). Nevertheless, as Relator correctly observes, none of the materials in this category contain “allegations or transactions,” and thus, do not trigger the original source inquiry.

Under § 3730(e)(4)(A), a public disclosure must be of “allegations or transactions.” A public disclosure of informa

*1156

tion that is innocuous and non-accusatory does not operate to trigger the inquiry into whether a relator is an original source. As stated in

United States v. AD. Roe Co., Inc.,

186 F.3d 717, 724 (6th Cir.1999):

‘[A]llegations or transactions’ must consist of more than simply innocuous information. ... Before the 1986 amendments to the FCA, the FCA precluded suits based on ‘evidence or information’ already in the government’s possession. 31 U.S.C. § 3730 (b)(4) (superseded). By changing the phrase to read ‘allegations or transactions,’ Congress clearly intended that the public disclosures at issue be of something more than simple information from which no one could deduce that fraud had occurred.

See also Springfield,

14 F.3d at 653 (“We too find a distinction between ‘allegations and transactions’ and ordinary ‘information’ as a matter of common usage and sound interpretation of the FCA.”).

Cases from the Tenth Circuit have taken a similar approach, indicating that a disclosure constitutes an “allegation” or “transaction” sufficient to trigger the public disclosure bar when it discusses conduct “in a questioning light.”

United States ex rel. Fine v. Advanced Sciences, Inc.,

99 F.3d 1000, 1005 (10th Cir.1996);

United States ex rel. Grynberg v. Praxair, Inc.,

207 F.Supp.2d 1163, 1184 (D.Colo.2001),

aff'd in part and rev’d and remanded in part on other grounds,

389 F.3d 1038 (10th Cir.2004),

petition for cert. denied,

545 U.S. 1139 , 125 S.Ct. 2964 , 162 L.Ed.2d 888 (2005).

Most of the Educational and Instructional Materials do not identify any companies, do not contain allegations of wrongdoing, and do not disclose any transaction in which the representations of any particular gas measurer were different than the true facts. Nevertheless, Defendants suggest that a few of the Educational and Instructional Materials go further and can be read as allegations of wrongdoing by specific Defendants named in the 1997

qui tarn

cases. For example, they reference Exhibit 2, document 85, an article in the American Oil & Gas Reporter, discussing Oryx Energy’s decision in 1990 to purchase and utilize gas flow computers, thereby eliminating the need for chart integration. The article indicates that the gas flow computers are generally more accurate than measurement by means of circular chart recorders and manual integration. Defendants assert that the article as a whole can be read as disclosing that prior to 1990, Oryx mismeasured gas because it used the less accurate chart recorder system. Contrary to Defendants’ contentions, the article is simply informational. It contains no allegations of fraud and no language painting Oryx’s pre-1990 measurement practices in a questioning light. Defendants also point to Exhibit 2, document 112, an article discussing in a factual manner the procedures actually used by Colorado Interstate Gas to analyze gas heating content. Nothing in the text, however, intimates that CIG is guilty of wrongdoing, or that the criteria it employs for gas analysis result in an improper Btu calculation.

In short, the materials in this category may have some bearing on Relator’s status as an original source, if other documents in Exhibit 2 are sufficient to trigger the original source inquiry. However, the Special Master finds and concludes that the Educational and Instructional Materials do not constitute public disclosures of allegations and transactions, within the meaning of § 3730(e)(4)(A).

3.

Materials Concerning the Senate Investigation and Report

In the 1980s, the United States Senate Select Committee on Indian Affairs was

*1157

charged with conducting “a comprehensive and intensive investigation of the entire spectrum of the federal government’s relationship with American Indians.” Exhibit 2, doc. 4, at JDPD 142. The Committee undertook an extensive investigation into all aspects of federal-Indian relations, including but not limited to health, housing, child sexual abuse in federal schools, corruption among local tribal officials, economic development, and Indian preference contracting. As part of the Committee’s work, it hired a team of investigators, secured depositions and interviews from individuals with relevant information, and heard live testimony. It compiled and reviewed in excess of 488,000 documents. Exhibit 2, doc. 4, at JDPD 144-45.

A portion of the Committee’s investigation related to allegations that the Department of Interior had failed to insure payment of the required royalties on oil and gas produced from Indian lands. Testimony was presented before the Committee indicating widespread theft through mis-measurement of oil and gas by purchasers of gas from wells on Indian lands. This testimony also identified various mismeas-urement practices, such as the use of improperly sized orifice plates,' incorrectly calibrated orifice meters, worn orifice plates, and improper integration of meter charts. Exhibit 2, doc. 5, at JDPD 166. Although the testimony before the Committee, the Senate Committee Reports, and the news media articles discussing the Committee’s work referenced mismeasurement on a large scale and a vast opportunity for theft,

see

Exhibit 2, doc. 5, at JDPD 174, only one company, Koch Oil Company, was specifically named as engaging in a sophisticated scheme to steal crude oil from Indians through fraudulent mismeas-uring and reporting, Exhibit 2, doc. 6, at JDPD 204. The Committee’s Final Report noted that information concerning other unnamed companies had been turned over to the Department of Justice. Exhibit 2, doc. 6, at JDPD 336.

Defendants tender 17 documents consisting of transcriptions of the hearings before the Senate Committee, the Senate Committee Reports, and news media articles concerning the Senate Committee’s investigation and Reports (hereinafter referred to as the “Senate Committee Documents”) as public disclosures of the allegations or transactions in Relator’s 1997

Qui Tam

Complaints.

See

Appendix C, attached hereto. They acknowledge that the only company actually identified by name and accused of wrongdoing in the Senate Committee Documents is Koch Oil, and that neither Koch nor any affiliate of Koch is presently a Defendant in Relator’s 1997

qui tam

cases.

8

Nevertheless, Defendants argue that because the Senate Committee Documents allege widespread fraudulent mismeasurement that could taint the entire gas transmission industry, they are sufficient to meet the public disclosure prong of § 3730(e)(4)(A) as to all Defendants sued in Relator’s 1997

qui tam

actions. They also asseverate that because the Senate Committee Documents reference certain specific Indian tribes, the particular leases involving those tribes and the companies measuring gas from the leases can be readily identified.

It is beyond peradventure that the Senate Committee Documents were publicly disclosed, and that they were from sources listed in § 3730(e)(4)(A). The key question, however, is whether they contain allegations or transactions upon which Relator’s 1997

qui tam

cases are based. The fact that these documents, while noting widespread fraud, specifically identify only

*1158

one company is central to answering this query. The issue has been succinctly framed by the United States Court of Appeals for the Eleventh Circuit as follows: “[W]hen general allegations of widespread fraud in an industry are publicly disclosed, does the jurisdictional bar of the False Claims Act preclude a

qui tam

plaintiff from bringing suit for the same kind of fraud against a defendant who has not been specifically identified in the public disclosures?”

Cooper v. Blue Cross & Blue Shield of Florida, Inc.,

19 F.3d 562, 564 (11th Cir.1994).

There are several reported federal decisions that instruct on the question of how wrongdoer-specific an allegation of fraud must be in order to meet the public disclosure prong of § 3730(e)(4)(A). One of these comes from our own Circuit. In

United States ex rel. Fine v. Sandia Corp.,

70 F.3d 568 (10th Cir.1995), Harold Fine brought a

qui tam

action in 1992 against Sandia Corporation, alleging that Sandia misappropriated nuclear waste funds in violation of the Nuclear Waste Policy Act (NWPA). Sandia was one of nine multi-program laboratories owned by the United States government and operated by private or university contractors under the administrative oversight of the Department of Energy. A 1990 General Accounting Office Report and a 1991 Congressional hearing disclosed that contractors operating the government’s major multi-program laboratories were taxing nuclear waste funds for use in discretionary research in violation of the NWPA. The GAO Report actually identified two contractors who had allegedly engaged in this practice. Sandia was not specifically named as a wrongdoer in either the GAO report or the Congressional hearing.

The district court dismissed Fine’s suit for lack of subject matter jurisdiction, concluding that the allegations in his 1992

Qui Tam

Complaint had been publicly disclosed and that he was not an original source. The United States Court of Appeals for the Tenth Circuit affirmed. The appellate court rejected Fine’s argument that no public disclosure had occurred because neither the GAO report nor the Congressional hearing materials specifically identified Sandia as a wrongdoer. The court pointed out that the disclosures in the GAO report and Congressional hearing detailed the mechanics of the allegedly wrongful practice, revealed that at least two of Sandia’s eight sister laboratories were employing it, and indicated the DOE’s acquiescence. Under these circumstances, concluded the court, the GAO report and Congressional hearing materials sufficiently alerted the government of the likelihood that Sandia was also taxing nuclear waste funds for use in discretionary research.

The second appellate decision providing insight on this issue is the District of Columbia Circuits’ opinion in

United States ex rel. Findley v. FPC-Boron Employees’ Club,

105 F.3d 675 (D.C.Cir.1997),

cert. denied,

522 U.S. 865 , 118 S.Ct. 172 , 139 L.Ed.2d 114 (1997). Two relators brought a

qui tam

action alleging that government employees’ clubs which earn revenue from vending services on federal property were violating the FCA by retaining moneys owed to the government. They learned of the circumstances underlying the suit while attending a conference to discuss a Bureau of Prisons request for proposals to service vending machines at the Federal Prison Camp-Boron. At the conclusion of the conference, the relators were handed a solicitation for services by the FPC-Boron Employees’ Club regarding additional vending machines at FPC-Boron operated by the Club rather than the BOP. While the BOP paid for the utilities used to operate the machines, the Club retained 85% to 100% of the profits.

*1159

The relators submitted a bid for the contract to service the Club’s vending machines, but were unsuccessful. Thereafter, relators filed their

qui tarn

suit against all employees’ clubs of the BOP that earn revenue from vending services. The employees’ club at FPC-Boron was named as the representative defendant.

The district court dismissed the suit for lack of subject matter jurisdiction. It found that there were three public disclosures of relator’s allegations. The first was a 1952 Comptroller General Opinion issued in connection with a GOA hearing concerning the propriety of post office employees’ clubs retaining profits from vending machines on government premises. The Comptroller General determined that even though the legality of the arrangement was doubtful, there was no need to take steps to stop it. The issue again came up during the process of amending the Randolph-Sheppard Act, a statute giving blind vendors certain preferences. A Senate Report on the amendments recognized that federal employee welfare and recreation groups received income from vending machines on federal property and, thus, competed with blind vendors. Finally, a Federal Circuit decision in 1986 also discussed the tension between blind vendors in federal buildings and the practice of allowing federal employee organizations to utilize federal property free of charge for similar purposes and to retain the funds. The decision pointed out that despite their awareness of the dubious legality of the practice, neither the GAO nor Congress took any action. After determining that these met the criteria for the public disclosure prong of § 3730(e)(4)(A), the district court found that the relators were not original sources.

The United States Court of Appeals for the District of Columbia Circuit affirmed, rejecting the argument that none of the so-called public disclosures specifically named any particular government employee clubs. The appellate court noted that the disclosures: (a) stated that the allegedly wrongful practice occurred throughout the federal government; and (b) specifically identified the nature of the fraud as well as the nature of the federal employee clubs engaged in the activity. The court also rejected the relator’s analogy to generic public allegations of government contractor fraud. Citing

Sandia,

the court stated: “Little similarity exists between combing through the myriad of transactions performed by the various defense contractors in search of fraud and finding easily identifiable federal employee organizations that provide vending services on federal property.”

FPC-Boron,

105 F.3d at 687 .

The United States Court of Appeals for the Eleventh Circuit has also weighed in on the issue.

See Cooper,

19 F.3d at 562 . Cooper, an employee of the United States Census Bureau over the age of 65, was classified as a “working aged.” As a result, he qualified for both Medicare and the Federal Employees Health Benefits Program administered by Blue Cross Blue Shield of Florida (BCBSF). In 1988, Cooper submitted medical bills to BCBSF for payment, but BCBSF either returned the claim with instructions that Medicare had to pay first, or paid a secondary amount after deducting what, it said Medicare would be required to pay first. Cooper began researching his benefits and the law governing payment of his claims. He also contacted Congress and the Health Care Financing Administration to express his frustration. He learned that BCBSF should be his primary insurer. Although Cooper informed BCBSF several times of his status as a “working aged” and of BCBSF’s obligation to act as his primary insurer, BCBSF continued to send claims back indicating that Medicare should pay

*1160

first. Medicare paid these claims, unaware that Cooper had primary insurance.

On August 17, 1990, Cooper instituted a

qui tam

action against BCBSF. BCBSF filed a motion to dismiss for lack of subject matter jurisdiction, asserting,

inter alia,

that Cooper’s allegations had been publicly disclosed and that he was not an original source. The district court dismissed the Complaint. The United States Court of Appeals for the Eleventh Circuit vacated the order of dismissal and remanded. Addressing the question of public disclosure, the appellate court rejected BCBSF’s argument that allegations of widespread MSP fraud in a 1988 GAO report, allegations of MSP fraud in OIG reports, newspaper articles, and a similar prior suit against Blue Cross Blue Shield of Georgia constituted public disclosures of Cooper’s allegations. The court noted that, while the GAO report, the OIG reports, the newspaper articles, and the prior case named other insurance companies, none of them named or identified BCBSF. These materials, held the Court, were insufficient to constitute public disclosures of allegations against BCBSF: “Requiring that allegations specific to a particular defendant be publicly disclosed before finding the action potentially barred encourages private citizen involvement and increases the chances that every instance of specific fraud will be revealed.”

Cooper,

19 F.3d at 566 . As for BCBSF’s contention that such a rule would enable every insured to sue his insurance company after hearing that many insurance companies were committing fraud, the court pointed out that other legal principles, such as Fed.R.Civ.P. 9(b), provided relief to innocent actors against speculative fraud suits.

The Ninth Circuit has also considered the public disclosure issue in the context of disclosures that identify some, but not all of the parties later named in a

qui tam

action. In

United States ex rel. Aflatooni v. Kitsap Physicians Servs.,

163 F.3d 516 (9th Cir.1999), Kitsap Physicians Services (KSP), with approval of the Health Care Financing Administration, received a subcontract to administer Part B of the Medicare Program in certain areas of Washington state. Northwest Diagnostic Imaging (NDI) provided medical imaging services and Pathology Associates of Kitsap County (PAKC) provided pathology services. Dr. Alfred Aflatooni, a physician providing medical services to KPS brought a

qui tam

action against Kitsap, NDI, and PAKC, claiming that NDI and PAKC had engaged in fraudulent billing practices with respect to Medicare patients, and that KPS had facilitated and covered up the fraud. The district court dismissed the case under the public disclosure bar based on disclosures regarding the NDI defendants made by Aflatooni to the news media prior to the filing of his

qui tam

case. The disclosures in the news media did not refer to or name the PAKC defendants, but did refer to an overarching conspiracy.

The United States Court of Appeals for the Ninth Circuit framed the question as follows: “[T]he only question is whether the disclosure of the allegations against the NDI Defendants should trigger the public disclosure bar with respect to the PAKC Defendants.”

Aflatooni,

163 F.3d at 522 . The appellate court answered the query in the negative, observing that “none of the articles published about NDI discussed PAKC’s alleged involvement in a conspiracy to submit fraudulent Medicare claims. In fact, there is no mention of PAKC at all in the articles.”

Id.

at 523 .

In

United States ex rel. Harshman v. Alcan Elec. and Eng’g, Inc.,

197 F.3d 1014 (9th Cir.1999), the Ninth Circuit again addressed the issue of public disclosures that identified some, but not all defendants in a

qui tam

action. , Randy Harshman, a

*1161

member of Local 1547 of the International Brotherhood of Electrical Workers, filed a

qui tam

suit against 22 electrical contractors doing business in Alaska, alleging that they had conspired with the local union to violate the Davis-Bacon Act. Specifically, Harshman asserted that the local was deducting funds from members’ wages and kicking them back to the contractors, despite the contractors’ certification of wages paid pursuant to Davis-Bacon. Prior to filing his

qui tam

action, Harshman had filed a private suit for retaliation alleging the kickback scheme. The private suit named only one of the 22 defendants in the later filed

qui tam

suit, but did allege that the union had conspired with “local contractors.” The district court dismissed the case for lack of jurisdiction, and Harshman appealed.

The United States Court of Appeals for the Ninth Circuit affirmed, holding that Harshman’s prior Complaint in the private retaliation suit constituted a public disclosure as to all 22 defendants. Distinguishing

Aflatooni,

the court stated that Harshman’s allegations against both the identified and non-identified defendants were the same, whereas in

Aflatooni,

the allegations against NDI and PARC were distinct. The court also noted that the group of 22 defendants involved a narrow class of suspected wrongdoers working on federal projects over a 4-year period and filing certified payrolls with the government on a weekly basis. According to the court, they were readily identifiable by the government. In this regard, observed the appellate court, the circumstances of the public disclosure were quite similar to those in

Sandia.

A footnote in a later Ninth Circuit case also bears mentioning. In

United States ex rel. Foundation Aiding the Elderly v. Horizon West, Inc.,

265 F.3d 1011 (9th Cir.2001),

amended by,

275 F.3d 1189 ,

cert. denied,

535 U.S. 1096 , 122 S.Ct. 2292 , 152 L.Ed.2d 1050 (2002), relator brought a

qui tam

action against numerous health care providers alleging that they defrauded Medicare by charging for services that were not rendered. The district court dismissed the case, relying on the public disclosure bar. The court of appeals reversed. Some of the public disclosures cited by defendants were newspaper articles that discussed general allegations of fraud against the nursing home industry. None of the defendants in the

qui tam

action were named in the articles. Citing

Cooper ,

the appellate court concluded that a general allegation of widespread fraud in an industry is insufficient to constitute a public disclosure as to unidentified persons or entities.

Id.

at 1016 n. 5.

One reported district court decision is also of interest. In

Friedman v. Rite Aid Corp.,

152 F.Supp.2d 766 (E.D.Pa.2001), Friedman filed a

qui tam

action against Rite Aid, claiming that it had submitted false statements to the government for the sale of prescription drugs to beneficiaries of federal health care programs. Rite Aid moved to dismiss pursuant to 31 U.S.C. § 3730 (e)(4), asserting that Friedman’s allegations had been publicly disclosed in numerous newspaper articles. The articles in question discussed nationwide unscrupulous activities by large pharmacy chains, specifically asserting that certain chains were billing the government for prescriptions that were ordered but never picked up. None of the articles mentioned Rite Aid or any wrongdoing on its part. In denying the motion, the district court distinguished

Sandia, FPC-Boron,

and

Harshman,

stating that these either dealt with fraud by government contractors or employees’ clubs at government controlled and government owned installations

(Sandia

and FPC-Boron), or fraud by a narrow class of wrongdoers who were required to file documents with the gov-

*1162

eminent on a weekly basis, making it easy for the government to identify them

(Harshman).

The court also noted that in

Harshman,

the disclosure specifically referenced a conspiracy among local contractors and a particular union in a specific locality. The court concluded that the case before it was more akin to

Cooper ,

pointing out that any fraudulent acts committed by Rite Aid were not of the type that were easily discoverable from the alleged public disclosures.

Cooper, Aflatooni, Horizon,

and

Friedman

teach that, generally speaking, public disclosure of widespread wrongdoing in an industry does not trigger the statutory public disclosure bar as to every industry member. Nor does the identification

of

one or a few defrauders in an industry operate as a public disclosure of unlawful conduct by other, unrelated companies. As the Eleventh Circuit noted in

Cooper ,

such an approach encourages private citizen involvement. It is also consistent with the Tenth Circuit’s view that the public disclosure prong of 31 U.S.C. § 3730 (e)(4)(A) is intended to be a “quick trigger,”

see, e.g., MK-Ferguson Co.,

99 F.3d at 1545 , for it eliminates the need to engage in speculation and surmise as to whether a

qui tarn

defendant who is not named in the proffered public disclosure in fact can be identified from vague clues in the text of the document. Exceptions to this general rule, as recognized in

San-dia, FPC-Boron,

and

Harshman,

are limited to situations where the proposed public disclosure asserts fraud by a small group of businesses who are easily identifiable through information in the public domain and/or widespread fraud by a group of companies having unique and direct contractual relationships with the federal government that allow for substantial government oversight. As the

Sandia

court observed in distinguishing

Cooper :

“When attempting to identify individual actors, little similarity exists between combing through the private insurance industry in search of fraud and examining the operating procedures of nine, easily identifiable, DOE-controlled, and government-owned laboratories.”

Sandia,

70 F.3d at 572 .

The Senate Committee Documents alleged widespread, but not universal fraud, in a large multi-faceted industry involving hundreds, if not thousands of companies. By and large, the purchasers of gas from federal and Indian lands who measure volume and heating content have no contractual relationship with the federal government. While the measurement process is governed to some extent by federal laws and regulations, and is subject to some government monitoring, the companies who conduct such measurements are not subject to the strict oversight applicable to government contractors operating at government owned facilities. Consequently, the Special Master finds and concludes that the status of the Senate Committee Documents as public disclosures of allegations or transactions upon which Relator’s 1997

qui tarn

cases are based must be judged by the general rule enunciated in

Cooper, Aflatooni, Horizon,

and

Friedman ,

and that the

Sandia

exception is inapplicable. The Senate Committee Documents operate as a public disclosure as to Koch Oil Company and perhaps Koch affiliates. However, the Special Master finds and concludes that the Senate Committee documents do not trigger the public disclosure bar against any of the current Defendants in Relator’s 1997

qui tarn

cases.

4.

Relator’s 1995

Qui Tam

Case

Defendants rely upon Relator’s Complaints and various pleadings in his 1995

qui tarn

action, Judge Hogan’s Order dismissing the case, and several newspaper and media accounts of the litigation

*1163

(comprising 35 documents, and hereinafter referred to as the “1995

Qui Tam

Action Documents”) as public disclosures meeting the statutory requirements of 31 U.S.C. § 3730 (e)(4)(A).

9

See

Appendix D, attached hereto. They argue that the 1995

Qui Tam

Action Documents trigger the original source inquiry as to all Defendants and all allegations in Relator’s 1997

Qui Tam

Complaints.

Relator disputes that the 1995

Qui Tam

Action Documents constitute public disclosures of any of the allegations or transactions on which his 1997

qui tam

cases are based. First, he asserts that the purposes underlying the FCA would be undermined by forcing a relator to meet the original source standard merely because he filed a previous

qui tam

case which was dismissed without prejudice. Next, Relator argues that the contents of 1995

Qui Tam

Complaint and amendments thereto were too vague and imprecise to be deemed disclosures of “allegations or transactions,” within the meaning of § 3730(e)(4)(A). Relator also invokes the doctrine of judicial estop-pel, pointing out that many of the Defendants in the 1997

qui tam

suits, who were also parties to the 1995 action, filed pleadings before Judge Hogan arguing that the lack of precision in the 1995 Complaints rendered them legally ineffective. The Special Master disagrees with each of these arguments.

There can be no doubt that Relator’s 1995

Qui Tam

Complaint, the Amended Complaint, and the Second Amended Complaint, as well as the various pleadings and orders entered in the 1995

qui tam

action constitute “public disclosure^] in a ... civil ... hearing,” within the meaning of 31 U.S.C. § 3730 (e)(4)(A). Indeed, every court of appeal to have addressed the question has held that any information disclosed through civil litigation and on file with the clerk’s office should be considered a public disclosure for purposes of § 3730(3)(4)(A).

Ramseyer,

90 F.3d at 1519 n. 3;

United States v. Northrop Corp.,

59 F.3d 953, 966 (9th Cir.1995),

cert. denied,

518 U.S. 1018 , 116 S.Ct. 2550 , 135 L.Ed.2d 1069 (1996);

United States ex rel. Siller v. Becton Dickinson & Co.,

21 F.3d 1339 , 1350 (4th Cir.1994),

cert. denied,

513 U.S. 928 , 115 S.Ct. 316 , 130 L.Ed.2d 278 (1994). The newspaper and media articles discussing the 1995

qui tam

case also qualify as public disclosures from one of the listed sources. It is clear that the 1995

Qui Tam

Action Documents contain con-clusory statements implying the existence of provable supporting facts, to the effect that the named defendants were intentionally mismeasuring the volume and heating content of gas and, therefore, were underpaying royalties to the federal government or were causing such an underpayment to occur. As a result, the 1995

Qui Tam

Action Documents contain “allegations,” within the meaning of § 3730(e)(4)(A).

See, e.g., Springfield,

14 F.3d at 653-54 .

Relator asserts that treating the 1995

qui tam

suit as a public disclosure of his present allegations would undermine the policies underlying the FCA. The Special Master disagrees. The fact that the 1995

qui tam

suit and the 1997

qui tam

actions were filed by the same individual does not alter the analysis. The United States Court of Appeals for the Tenth Circuit has held that a prior private suit by

*1164

the relator himself qualifies as a public disclosure from one of the statutorily identified sources.

United States ex rel. King v. Hillcrest Health Ctr., Inc.,

264 F.3d 1271 (10th Cir.2001),

cert. denied,

535 U.S. 905 , 122 S.Ct. 1205 , 152 L.Ed.2d 143 (2002). Just as the public disclosure language of § 3730(e)(4)(A) affords no exception for prior private suits brought by the relator himself, it does not exclude public disclosures in the form of prior

qui tam

cases initiated by the same relator. •

Likewise, the Special Master finds and concludes that the nature of the dismissal entered by Judge Hogan in the 1995

qui tam

case has no bearing upon the question of whether the pleadings and orders entered therein constitute public disclosures of allegations or transactions under § 3730(e)(4)(A). There is nothing in § 3730(e)(4)(A) or in the case law construing it that would warrant exempting a relator from the original source inquiry simply because a prior

qui tam

action brought by the relator himself, which would otherwise clearly constitute a public disclosure, was dismissed without prejudice.

10

In short, Relator’s public policy arguments are misplaced. Congress is empowered to define the criteria qualifying a relator to sue on behalf of the United States. It would be entirely inappropriate to exempt by judicial fiat various documents that would otherwise fall within the express statutory criteria for a public disclosure simply because a court might view such an exemption as better serving the purposes of the FCA. Invitations to create such exceptions by judicial construction have been routinely declined by the courts.

E.g., Kennard v. Comstock Res., Inc.,

363 F.3d 1039 (10th Cir.2004) (previously filed Complaint treated as a public disclosure even though it was based on information obtained unethically),

petition for cert. denied,

545 U.S. 1139 , 125 S.Ct. 2957 , 162 L.Ed.2d 887 (2005) (No. 04-165);

United States ex rel. Wisconsin v. Dean,

729 F.2d 1100 (7th Cir.1984) (refusing to create an original source exception to the “information in the government’s possession” bar in the pre-1986 version of FCA).

The Special Master rejects Relator’s assertion that the 1995

Qui Tam

Action Documents cannot be deemed public disclosures of allegations or transactions because they fail to link any of the defendants named in the 1995

Qui Tam

Complaints with any particular mismeas-urement technique. Relator’s 1995 Complaints averred that each of the named defendants engaged in at least one of the 13 identified mismeasurement techniques. Judge Hogan’s March 27, 1997 dismissal order concluded,

inter alia,

that the Complaints failed to meet the particularity requirement of Fed.R.Civ.P. 9(b) because a defendant could not determine from Relator’s Complaint which of the 13 mismeasurement techniques it was accused of employing. Relator contends that this lack of specificity in his 1995

Qui Tam

Complaints also defeats their status as public disclosures of allegations or transactions under 31 U.S.C. § 3730 (e)(4)(A).

Relator incorrectly assumes that Fed. R.Civ.P. 9(b)’s technical requirements for

*1165

pleading fraud with particularity also set the standard for what constitutes an “allegation or transaction” under § 3730(e)(4)(A). This assumption is unsupported by the case law and is at odds with the different purposes underlying Rule 9(b) and the public disclosure bar of the FCA. More importantly, as more fully discussed below, it is not the identification of each specific technique of mismeasurement, but rather the allegation that Defendants underpay royalties to the federal government by intentionally mismeasuring gas volume and heating content which operates as a “quick trigger” of § 3730(e)(4)(A)’s public disclosure bar.

Relator’s judicial estoppel argument fails for the same reasons. Judicial estoppel bars a party from adopting inconsistent positions in the same or related litigation. Given the differing purposes and standards underlying Rule 9(b) and § 3730(e)(4)(A), the arguments advanced in the 1995

qui tam

suit regarding the sufficiency of Relator’s Complaints under Rule 9(b) are not inconsistent with Defendants’ contention that the 1995

Qui Tam

Action Documents constitute public disclosures of allegations or transactions under § 3730(e)(4)(A).

11

Having determined that the 1995

Qui Tam

Action Documents are public disclosures of allegations or transactions from one of the sources listed in the FCA, we now turn to the question of whether and to what extent Relator’s 1997

qui tam

suits are based upon those public disclosures. Defendants’ position is simple — all of the allegations against all of the Defendants named in all of the 1997

qui tam

suits are based upon the allegations in 1995

Qui Tam

Complaints and pleadings, and the media articles discussing them.

Relator’s argument is more complicated. He parses his 1997

qui tam

suits into approximately 30 methods utilized to mis-measure gas and four distinct conclusions regarding Defendants’ conduct: (a) at the point of purchase, Defendants routinely understate volume and heating content in more than 30 ways that are not allowed by federal law, federal regulations, and industry standards; (b) since federal royalties are based on point of purchase measurements, the 30 mismeasurement practices injure the government; (c) Defendants often measure gas differently at the point of sale than they do at the point of purchase; and (d) the use of different measurement practices at the point of purchase and the point of sale results in an understatement of federal royalties by over 20%.

12

At best, argues Relator, if the 1995

qui tam

suit triggers the original source inquiry at all, it is only with respect to the 13 mis-measurement techniques and the 56 defendants common to both the 1995 and 1997

qui tam

actions (hereinafter the “Overlapping Defendants”).

Relator’s contention that the 1995

Qui Tam

Action Documents only constitute a public disclosure of the 13 mis-measurement methods expressly identified therein cannot be squared with the

*1166

law in this Circuit. The United States Court of Appeals for the Tenth Circuit has adopted a restrictive interpretation of the “based upon” test, consistent with the FCA’s dual purpose of: (a) encouraging private citizens with first-hand knowledge to expose fraud; and (b) avoiding civil suits by opportunists attempting to capitalize on public information without seriously contributing to the disclosure of the fraud.

Precision I,

971 F.2d at 552-53 . The term “based upon,” as used in 31 U.S.C. § 3730 (e)(4)(A), means “supported by.”

MK-Ferguson Co.,

99 F.3d at 1545 . It refers to the degree

of

similarity between the allegations or transactions that are set out in the

qui tam

Complaint and the allegations or transactions that have been publicly disclosed. In the Tenth Circuit, as in most other Circuits, the nexus necessary to fulfill the “based upon” requirement is “substantial identity” between a relator’s Complaint and a public disclosure.

Hillcrest Health,

264 F.3d at 1279 . Under this test, even

qui tam

actions only partially based upon publicly disclosed allegations or transactions may be barred.

Praxair,

389 F.3d at 1051 . The Tenth Circuit has explained that the substantial identity test is designed to operate as a “quick trigger” for the more exacting original source inquiry.

Kennard,

363 F.3d at 1042 .

Relator’s approach would require us to apply the substantial identity test by analyzing and comparing the 1995

Qui Tam

Complaints and the 1997

Qui Tam

Complaints paragraph by paragraph. Such a process is entirely inconsistent with the “quick trigger” concept employed by the Tenth Circuit. Additionally, Relator’s position is inconsistent with the principle that a

qui tam

relator must meet the original source test if his or her Complaint is even partially based upon publicly disclosed allegations.

Finally, and most important, relator’s argument is contrary to the Tenth Circuit’s position that a

qui tam

suit is based upon a public disclosure if the allegations in the disclosure have already set the government squarely on the trail of the alleged fraud.

See Sandia,

70 F.3d at 571 . Under Relator’s suggested approach, it is not sufficient if the allegations in the publicly disclosed document merely take the government to the right trailhead and point it in the correct direction. Rather, the publicly disclosed allegations must disclose precisely what the government will find at the trail’s end.

The Special Master finds and concludes that if the gist of the fraudulent scheme has been publicly disclosed in a source listed in § 3730(e)(4)(A), a subsequent

qui tam

action alleging a substantially identical fraudulent scheme against the same or related defendants is barred unless the relator qualifies as an original source. This standard is consistent with the view taken by most other Circuits that a public disclosure exists when the critical elements exposing conduct as fraudulent are placed in the public domain through one of the statutory listed sources.

E.g., United States ex rel. Feingold v. AdminaStar Fed., Inc.,

324 F.3d 492, 495 (7th Cir.2003);

United States ex rel. Rabushka v. Crane Co.,

40 F.3d 1509, 1512 (8th Cir.1994),

cert. denied,

515 U.S. 1142 , 115 S.Ct. 2579 , 132 L.Ed.2d 829 (1995);

Springfield,

14 F.3d at 654 . Furthermore, the Special Master finds and concludes that the fact that a relator’s

qui tam

Complaint incorporates additional or somewhat different details does not defeat the public disclosure bar.

See, e.g., MK-Ferguson Co.,

99 F.3d at 1546-47

(qui tam

Complaint is based upon public disclosure even if it references specific transactions not mentioned in the publicly disclosed document).

*1167

Judged by these standards, the Special Master finds and concludes that, at least as to the 56 Overlapping Defendants, the 1997

qui tarn

cases are “based upon the 1995

Qui Tam

Action Documents”. A comparison of the allegations in the 1995

Qui Tam

Complaints with those in the 1997

Qui Tam

Complaints discloses differences in wording, modifications in the order of various sentences and paragraphs, and some additions and deletions. Nevertheless, as the following examples amply demonstrate, the substantive similarities are patent and striking:

The introductory paragraph to the 1995

Qui Tam

Second Amended Complaint states that the purpose of the suit is to challenge “[defendants’ ways of measuring the heating content and volume of natural gas, which have caused widespread underpayments of appropriate royalties to the United States.” Exhibit 2, doc. 167 at JDPD 003344, ¶ 1. Likewise the Complaints in the 1997

qui tarn

cases define a substantially identical purpose: “This lawsuit challenges Defendants’ mismeasurement of the volume and wrongful analysis of the heating content of natural gas, causing substantial underpayments of royalties to the United States.”

See, e.g.,

Corrected Third Amended Complaint in

United States ex rel. Grynberg v. Questar Pipeline Co. et al.

(hereinafter

“Questar

Complaint”), Exhibit 18 at 2, ¶ 1.

Relator’s 1995

Qui Tam

Complaints and his 1997

Qui Tam

Complaints use substantially identical language to describe the essential elements of his FCA claim. The 1995

Qui Tam

Second Amended Complaint alleges that “[defendants have knowingly made, used, or caused to be made or used false records or statements to conceal, avoid, or decrease an obligation to pay or transmit money in the form of full and appropriate royalties to the United States Government.” Exhibit 2, doc. 167 at JDPD 03373, ¶ 96. In paragraph 54 of the 1997

Questar

Complaint, Relator makes the virtually the same allegation: “Defendants have knowingly made, used, or caused to be made or used false records or statements to convert, conceal, avoid, or decrease an obligation to pay or transmit money for payment of royalties to the United States Government.”

Questar

Complaint, Exhibit 18 at 33, ¶ 54.

Without further belaboring the point, the allegations in the publicly disclosed 1995

Qui Tam

Second Amended Complaint track the allegations of the 1997

Qui Tam

Complaints in numerous respects, including but not limited to

(a) the nature of the alleged fraud (knowingly employing various techniques that result in the mismeasurement of the volume and heating content of gas which, in turn, causes an undervaluation of the gas at the point of purchase);

(b) the motivation for engaging in the fraud (to purchase gas and assign it a certain volume and/or heating content at the point of purchase and then resell the same quantity of gas at a higher assigned volume and/or MMBTU);

(c) the circumstances providing the opportunity to commit the alleged fraud (contracts commonly used in the gas industry that give transmission companies and other purchasers of natural gas the responsibility for measuring the volume and MMBTU content of the natural gas which they buy);

(d) the proximate effect of the fraud on the federal government (the government has not been paid full and appropriate royalties due and owing for the production of natural gas from royalty properties);

(e) the nature of Relator’s investigation of the alleged fraud; and

(f) the relief sought.

*1168

Judge Hogan’s Order dismissing the 1995

qui tam

action also constitutes a public disclosure of allegations from a civil hearing and, thus, meets the requirements of § 3730(e)(4)(A). In the Order, Judge Hogan describes the allegations in Relator’s twice amended 1995 Qui

Tam

Complaints as follows: “Plaintiffs complaint accuses defendants of underrepresenting the volume and British thermal unit (Btu) content of natural gas that they harvested and carried from federal and Indian lands, and therefore of underpaying royalties due for that gas, in violation of a provision in the False Claims Act, 31 U.S.C. § 3729 (a)(7).” Exhibit 2, doc. 349 at JDPD 008728. This statement also encapsulates the gist or essential elements of the fraudulent scheme alleged in each of Relator’s 1997

Qui Tam

Complaints.

The media accounts of the 1995

qui tam

suit discuss Relator’s allegations in language that would appropriately disclose the general nature of his 1997

qui tam

actions as well. For example, a McGraw-Hill publication entitled “Inside F.E.R.C.,” dated November 18, 1996, succinctly summarizes Relator’s 1995

qui tam

suit as “alleging that the defendants have purposely understated the heating value and/or volume of gas purchased from suppliers operating on federal and Indian lands. Pipelines have knowingly and intentionally mismeasured gas in many different ways, causing producers to underpay royalties they owe to the leaseholders.” Exhibit 2, doc. 257 at JDPD 005996.

We now turn to the more difficult question of the impact of the 1995

Qui Tam

Action Documents on Defendants in the 1997

qui tam

cases who were not expressly named in the 1995 suit (hereinafter the “Unnamed Defendants”). Relator’s answer to this query is that his 1997 claims against Unnamed Defendants are not affected by the 1995

Qui Tam

Action Documents. Defendants take a diametrically opposite position. They assert that the 1995

qui tam

case constitutes a public disclosure of allegations against all of the Unnamed Defendants. Neither Relator nor Defendants are entirely correct. The Special Master finds and concludes that the 1997

qui tam

cases are based upon the publicly disclosed allegations in the 1995

Qui Tam

Complaints with respect to some, but not all of the Unnamed Defendants.

The analysis of this issue begins with the same case law discussed in some detail in Section 11(A)(3) above: the

Sandia

case from the Tenth Circuit, as well as

Harsh-man, Aflatooni, FPC-Boron, Cooper, Horizon,

and

Friedman .

These cases instruct that, generally, public disclosure of widespread wrongdoing in an industry is insufficient to trigger the original source inquiry as to every industry member, and that the identification of one or a few alleged defrauders in an industry does not operate as a public disclosure of unlawful conduct by other companies. An exception to the general rule exists where the allegations in the publicly disclosed documents allow for easy identification of unnamed wrongdoers by the federal government from information in the public domain. The exception is simply a corollary to the axiom that a

qui tam

action is based upon the allegations in a prior public disclosure if the disclosure squarely places the government on the trail of the alleged fraud.

See Sandia,

70 F.3d at 571 ;

see also United States ex rel. Ervin & Assocs. v. The Hamilton Sec. Group, Inc.,

332 F.Supp.2d 1, 7 (D.D.C.2003);

United States ex rel. Johnson v. Shell Oil Co.,

33 F.Supp.2d 528, 540 (E.D.Tex.1999).

In each 1997

Qui Tam

Complaint naming more than one Defendant, Relator alleges that “Defendants are affiliated corporations whose business is conducted

*1169

through the same personnel. Defendants’ inappropriate measurement techniques particularized below are undertaken in the same ways by the same employees. Accordingly, Defendants have acted in concert in the course of violating the False Claims Act as alleged below.”

Questar

Complaint, Exhibit 18 at 5, ¶ 7. This averment frames the public disclosure issue as to all 1997

qui tam

cases in which: (a) at least one of the Defendants was also a named defendant in the 1995

qui tam

action; or (b) at least one of the Defendants is an affiliate of a named defendant in the 1995

qui tam

action. Do the publicly disclosed allegations against the defendants in the 1995

Qui Tam

Action Documents also constitute public disclosures of allegations as to affiliated corporations named as Defendants in the 1997

qui tam

cases? Contrary to Relator’s position, the Special Master finds and concludes that this query must be answered in the affirmative.

There is a dearth of case authority on the subject of whether a public disclosure of allegations against a named defendant also encompasses affiliated companies. However, a similar issue was considered by the United States Court of Appeals for the District of Columbia Circuit in the context of the FCA’s “first-to-file” provision in 31 U.S.C. § 3730 (b)(5). In

United States ex rel. Hampton v. Columbia/HCA Healthcare, Corp.,

318 F.3d 214 (D.C.Cir. 2003), Randal Boston filed a

qui tam

action against Columbia/HCA Healthcare Corporation (HCA) in the Northern District of Texas, alleging that it had improperly billed the government under the Medicare program for home health services. Thereafter, Mary Hampton filed a

qui tam

suit in Georgia against HCA, Clinical Arts Comprehensive Services (Clinical Arts), several Clinical Arts employees, and others, asserting that they had engaged in improper billing of Medicare for home health care. Clinical Arts was a subsidiary of HCA. Hampton argued that her

qui tam

suit was not barred by the “first-to-file” rule because Boston only sued HCA, while Hampton not only sued HCA, but also Clinical Arts and employees of Clinical Arts. The District of Columbia Circuit rejected this argument, observing that “Hampton’s naming Clinical Arts-a specific HCA subsidiary-and naming individual employees of Clinical Arts were merely variations on the fraud Boston’s complaint described.”

Id.

at 218 .

Of course, as noted above,

Hampton

dealt with the “first-to-file” bar rather than the public disclosure bar. Nevertheless, the

Hampton

court itself pointed out that the purposes underlying § 3730(e)(4) and § 3730(b)(5) are quite similar. The fact that these statutory provisions serve similar objectives was also recognized by the United States District Court for the Eastern District of Pennsylvania in

United States ex rel. Merena v. Smithkline Beecham Corp.,

114 F.Supp.2d 352, 364 (E.D.Pa.2000).

The rationale employed by the Court of Appeals for the District of Columbia Circuit in

Hampton

applies with equal or greater force to the circumstances presented here. The circumstances also closely track those which led the Tenth Circuit in

Sandia,

the District of Columbia Circuit in

FPC-Boron,

and the Ninth Circuit in

Harshman

to apply the public disclosure bar to companies not expressly named in the publicly disclosed documents. Here, the 1995

Qui Tam

Complaint and amendments thereto not only detailed the alleged fraudulent conduct and named specific alleged wrongdoers, but also indicated that others might well be involved in similar conduct.

See

Exhibit 2, doc. 167 at JDPD 003356-57, ¶ 80. It further noted that affiliates of the named wrongdoers might also be playing a part in executing the fraudulent scheme.

Id.

at JDPD

*1170

003347-48, at ¶¶ 7-8. In those 1997

qui tam

cases naming one or more Overlapping Defendants, Relator has simply added the affiliates allegedly acting in concert through the same personnel. In a few additional 1997

qui tam

cases, Relator has not named an Overlapping Defendant, but has sued affiliates of one of the defendants named in the 1995 action. As Relator repeatedly acknowledged during his deposition, he determined that the affiliated companies might be involved in gas measurement by searching through public documents in the form of annual reports and 10-Ks. In short, as in

Sandia

and

FPC-Boron,

the affiliates of the defendants named in the 1995

qui tam

case represent a small group (at most, a dozen as to each defendant named in the 1995

qui tam

suit) of companies readily identifiable from easily accessible information. Given the suggestion in the 1995

Qui Tam

Complaints that these affiliates might be implicated in the mismeasurement scheme, the trail revealed by the publicly disclosed allegations of fraud in the 1995

Qui Tam

Action Documents undoubtedly would have led the government not only to each named defendant, but also to any parent, subsidiary, sister, or other member of the defendant’s corporate family.

Thirty-seven of the MDL cases involve situations where: (a) an Overlapping Defendant is sued, along with affiliates allegedly acting in concert; or (b) at least one of the Defendants is an affiliate of a company named in the 1995

qui tam

suit: 99 MD 1601;

13

99 MD 1602, 99 MD 1603, 99 MD 1604, 99 MD 1605, 99 MD 1608, 99 MD 1609; 99 MD 1610, 99 MD 1611;

14

99 MD 1612, 99 MD 1613, 99 MD 1614, 99 1624;

15

99 MD 1625, 99 MD 1628, 99 MD 1630;

16

99 MD 1632, 99 MD 1633, 99 MD 1634, 99 MD 1636, 99 MD 1637, 99 MD 1639;

17

99 MD 1641, 99 MD 1643, 99 MD 1644, 99 MD 1645, 99 MD 1649;

18

99 MD 1650, 99 MD 1651, 99 MD 1652, 99 MD 1653, 99 MD 1654, 99 MD 1655; 99 MD 1656;

19

99 MD 1668, 99 MD 1671, and 99 MD 1682.

The Special Master finds and concludes that these eases are based upon the public

*1171

ly disclosed allegations in the 1995

Qui Tam

Action Documents, and that in order to establish subject matter jurisdiction, Relator must demonstrate that he is an original source of the information as to each Defendant named therein.

20

Defendants contend that 99 MD 1626, 99 MD 1627, 99 MD 1631, and 99 MD 1640 should be included in the list, because they also involve companies who are affiliated with one of the named defendants in the 1995

qui tam

suits. The Special Master disagrees, because the record either affirmatively indicates that the affiliation postdated the allegations of misconduct contained in the 1995

Qui Tam

Complaint (99 MD 1627, 99 MD 1631), or does not provide sufficient information to determine that an affiliation in fact exists (99 MD 1626, 99 MD 1640). The timing issue is important because the 1995

Qui Tam

Complaint seeks damages in the amount of past royalties owed to the United States as a result of the wrongful conduct of the defendants named therein. The Special Master finds and concludes that the public disclosures relating to the 1995

Qui Tam

Complaint would only put the government on the trail of affiliates who might have been responsible for part or all of these damages.

The final and perhaps the thorniest issue presented by the 1995

Qui Tam

Action Documents concerns Defendants’ argument that these materials trigger the public disclosure bar not only with regard to the defendants named in the 1995 case and their affiliated companies, but also with regard to all companies sued in the 1997

Qtd Tam

Complaints. In support of their position, Defendants assert that the 1995

Qui Tam

Complaints alleged not merely widespread fraud, but rather universal fraud by all pipelines and other purchasers of gas from federal and Indian lands. Additionally, Defendants note that the media reports of the 1995

qui tam

suit indicate that it is directed at the entire gas pipeline industry. Defendants contend that the potential difficulty faced by the government in identifying all of the individual actors engaged in widespread, but not industry-wide fraud,

see Cooper,

19 F.3d at 566 , does not present itself where the public disclosure alleges a universal fraudulent scheme encompassing everyone in a given industry. They argue that, faced with such an allegation, the government is in as good a position as the Relator to compile a comprehensive list of industry members and take appropriate action to bring the lot of them to justice.

The Special Master does not concur with Defendants’ assertion that Relator’s 1995

Qui Tam

Complaints clearly allege universal fraud by all purchasers of gas from federal and Indian properties. The Complaints do not name all such purchasers as Defendants, nor does the actual claim for relief itself allege an industry-wide fraud. As Defendants accurately point out, Relator indicates that he “may later join as parties to this suit any other entities which have purchased natural gas produced from Royalty Properties and underreported the heating content and volume of the gas so purchased by means of one or more of the Practices described below....” Exhibit 2, doc. 167 at JDPD003356, ¶ 80. This threat of joinder, however, is limited to those purchasers who have underreported heating content and volume. Similarly, Defendants place unwarranted emphasis upon Relator’s observation that all gas buyers have a motivation to understate the MMBTU content of gas when they purchase.

See id.

at 003361, ¶ 91. Such a generalized statement of motivation could

*1172

be applied with equal force to every type of business transaction between a buyer and seller. More importantly, the universality of the alleged motivation cannot reasonably be equated with a universality of improper conduct, nor does Relator suggest such a connection in his 1995

Qui Tam

Complaint or the amendments thereto. Finally, Defendants’ reliance on paragraph 7 of Relator’s Second Amended Complaint in the 1995

qui tarn

action is misplaced. Paragraph 7 states that “[pipelines ... and other purchasers of natural gas ... have devised various techniques for selectively measuring the gas being purchased, resulting in widespread underreporting of that gas.... ”

Id.

at 003347, ¶ 7. The generic reference to “[pipelines and other purchasers” cannot fairly be construed as an allegation of a universal fraud committed by every pipeline or purchaser, any more than a generalized statement that “government contractors” engage in a particular fraudulent practice can be interpreted as a condemnation of every government contractor.

Some of media reports included within the 1995

Qui Tam

Action Document can be read as characterizing Relator’s 1995

qui tarn

suit as an attack on the entire gas pipeline industry.

See, e.g.,

Exhibit 2, doc. 257 at JDPD 005996 (“Gas producer Jack Grynberg doesn’t have a leg to stand on in his sweeping lawsuit charging essentially the entire pipeline industry with fraud in the way it measures gas produced and sold from federal and Indian lands, according to defendants.”). Nevertheless, the media reports also point out that the 1995

qui tam

case only names between 53 and 70 companies as defendants.

Even assuming, however, that Defendants have accurately construed the allegations in Relator’s 1995

Qui Tam

Complaints and the media descriptions of them as a condemnation of the entire universe of gas pipelines and purchasers, the Special Master finds and concludes that Defendants’ legal conclusion is erroneous. Neither the case law nor the purposes underlying the public disclosure bar provide substantial assistance in resolving the issue. The Special Master has found no case in which allegations against specifically identified wrongdoers, accompanied by averments of universal fraud directed at such a large and multifaceted group as “gas purchasers,” have been held to trigger the public disclosure bar against all group members. Cases dealing with similar, but not identical, generalized allegations of fraud against large industry groups have concluded that such allegations constitute public disclosures only as to those industry members specifically identified in the allegations.

E.g., Cooper,

19 F.3d at 562 (health insurance companies);

Aflatooni,

163 F.3d at 516 (Medicare providers);

Horizon,

265 F.3d at 1011 (health care providers);

Friedman,

152 F.Supp.2d at 766 (prescription drug retailers selling to beneficiaries of federal health care programs). Those few cases that extend the public disclosure bar to companies not expressly identified in the public disclosure itself involve very small groups of alleged wrongdoers and/or entities performing services at government owned and controlled facilities.

E.g., San-dia,

70 F.3d at 568 (bar applied to seven companies not named in the public disclosure, all of whom performed services at government owned and controlled facilities);

FPC-Boron,

105 F.3d at 675 (group of unnamed defendants were government employee clubs operating at government owned and controlled facilities);

Harsh-man,

197 F.3d at 1014 (22 government contractors all located in one state).

One of the primary purposes for enacting the 1986 amendments to the FCA was to increase private citizen involvement in exposing specific instances of individual

*1173

fraud.

See False Claims Act Implementation: Hearing Before the Subcomm. on Admin. Law and Gov’t Relations of the House Comm, on the Judiciary,

101st Cong. 6 (1990) (statements of Sen. Grass-ley). This purpose is best served by applying the public disclosure bar only to those wrongdoers expressly identified in the publicly disclosed allegations, affiliates acting in concert with expressly identified wrongdoers, and groups of alleged wrongdoers who, although not individually named in the public disclosure, are quickly and easily identified because of the group’s small size and/or the group’s close connection to government owned and controlled facilities. This approach is also consistent with the Tenth Circuit’s “quick trigger” test, for it obviates the need to analyze the nuances of a public disclosure to determine whether it alleges “universal” or merely “widespread” wrongdoing. It also eliminates the need to consider the ease and extent to which the allegations in the publicly disclosed document allow for identification of each unnamed member of a large expansive industry group.

Alternatively, Defendants argue that the 1995

Qui Tam

Action Documents, in combination with a FOIA response in which the government produced to Relator disks containing lists of gas purchasers from federal and Indian leases, identify both the mismeasurement practices and those who measure gas from federal and Indian lands.

21

They contend that when viewed together, these two sets of documents publicly disclose allegations and/or transactions substantially identical to those in Relator’s 1997

Qui Tam

Complaints. The problem with Defendants’ contention is two-fold. First, it is again premised on the assumption that the 1995

Qui Tam

Action Documents allege a universal fraud engaged in by every company that measures gas produced from federal and Indian lands. As the Special Master has previously determined, the 1995

Qui Tam

Action documents cannot be read so broadly. Second, as discussed more fully above, except in limited situations where the

Sandia

exception applies, the fact that the government is able to identify all of the members of a very large multifaceted industry group does not place it on the trail of fraud allegedly committed by any specific member. This is true regardless of whether the publicly disclosed allegation references “industry-wide” fraud or simply “widespread” fraud within such an industry.

Like many of the questions posed by the public disclosure/original source bar of § 3730(e)(4), the issues raised by Defendants are very difficult and the answer certainly is not free from doubt. Persuasive arguments for and against Defendants’ position can and have been made by the parties. Nevertheless, based on the limited case law touching the subject and the purposes underlying the 1986 amendments to the FCA, the Special Master finds and concludes that although the allegations in Relator’s 1995

Qui Tam

Complaints trigger the public disclosure bar of 31 U.S.C. § 3730 (e)(4)(A) as to all Defendants named therein, as well as affiliated companies acting in concert with them, its reach does not extend to all unnamed purchasers of gas from federal and Indian lands throughout the United States.

5.

Relator’s Private Litigation

Defendants assert that numerous private lawsuits, arbitration proceedings, and administrative proceedings initiated by Relator prior to 1997 operate as public disclo

*1174

sures of the allegations upon which his 1997

qui tam

cases are based. The documents tendered in support of this contention consist of various pleadings, expert reports, discovery materials, exhibits, orders, and opinions from the following cases and arbitrations:

Grynberg et al. v. Rocky Mountain Natural Gas Co., Inc.,

82-CV-117 (Moffat County, Colo.1982);

Questar Pipeline Co. v. Grynberg et al.,

93-CV-0265 (D.Wyo.1993);

JJ-CC Limited v. Transwestern Pipeline and Amgas, Inc.

(Texas suit, arbitration, and proceedings in Texas Court of Appeals);

Pacific Enterprises Oil Co. (USA)(PEOC), Texcon Oil and Gas Company v. Grynberg et al.,

C-91-228 (Sweetwater County, Wyo.1991);

Grynberg et al. v. Texas Utilities Fuel Co. (TUFCO),

Case 40623 (Parker County, Texas 1994);

Grynberg v. Rocky Mountain Natural Gas and KN Energy, Inc.,

87 CV 165 (Moffat County, Colo.1987);

Grynberg v. Rocky Mountain Natural Gas Company, KN Energy, Inc., and John Does 1 through 20,

90 CV 3868 (Jefferson County, Colo.1990);

Grynberg v. KN Energy, Inc., Rocky Mountain Natural Gas Co., and GASCO, Inc.,

92 N 2000 (D.Colo. 1992);

Grynberg v. El Paso Natural Gas Co.,

94-CV-3312 (Denver District Court 1994);

Grynberg v. Rocky Mountain Natural Gas Company,

GP91-8-001 (F.E.R.C. 1992); and

Rocky Mountain Natural Gas Co. v. Grynberg,

96-CV-49 (Moffat County, Colo.1996) (hereinafter the “Grynberg Private Litigation Documents”).

22

The Grynberg Private Litigation Documents are listed in Appendix F.

The Grynberg Private Litigation Documents present numerous issues regarding the scope and operation of the public disclosure bar. Several of the Grynberg Private Litigation Documents consist of transcripts of discovery depositions, deposition exhibits, expert reports, letters, and draft pleadings. There is nothing in the eviden-tiary record indicating that these materials were actually filed with the court in which the action was pending.

23

Although there is a split in the Circuits regarding the matter, the Tenth Circuit appears to have aligned itself with the view espoused by the District of Columbia Circuit and the Seventh Circuit that only discovery materials actually filed with the court clerk may qualify as public disclosures within the meaning of § 3730(e)(4)(A).

See Ramseyer,

90 F.3d at 1519;

compare United States v. Bank of Farmington,

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