United States of America, Ex Rel. Maxine Jones v. Horizon Healthcare Corporation

GILMAN, Circuit Judge,

concurring.

I concur in the result reached by the majority, both because Maxine Jones failed to report her allegations of fraud to the federal government before filing her False Claims Act (FCA) complaint (an explicit requirement of 31 U.S.C. § 3730 (e)(4)(B)), and because we are bound by the earlier decision of this court in United States ex rel. McKenzie v. Bellsouth Telecomms., Inc., 123 F.3d 935 (6th Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 855 , 139 L.Ed.2d 755 (1998). I write separately, however, because I believe that two of the key rulings in McKenzie were wrongly decided.

The first ruling I question is the court’s construction of the phrase “based upon” in 31 U.S.C. § 3730 (e)(4)(A) as meaning “supported by.” Id. at 940 . The other ruling I question is the judicial addition to 31 U.S.C. § 3730 (e)(4)(B) of a requirement “that, to be an original source, a relator must inform the government of the alleged fraud before the information has been publicly disclosed.” Id. at 942 .

For ease of reference, I have repeated below the operative language from the FCA:

(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.

31 U.S.C. § 3730 (e)(4)(A) and (B)(1994). (Henceforth these subsections will simply be referred to as (A) and (B).)

To say the least, the above statutory language has not been found to be a model of clarity. The District of Columbia Circuit had this to say about (A) (the “public disclosure” prong of the statute):

*336 Virtually every court of appeals that has considered the public disclosure bar explicitly or implicitly agrees on one thing, however: the language of the statute is not so plain as to clearly describe which cases Congress intended to bar.

United States ex rel. Findley v. FPC-Boron Employees’ Club, 105 F.3d 675, 681 (D.C.Cir.1997). The court made a similar comment as to (B) (the “original source” prong of the statute):

As with the “public disclosure” prong, courts addressing the “original source” prong of the jurisdictional bar have interpreted it in varying ways.

Id. at 689 .

Interpreting ambiguous statutory language, of course, is the bread-and-butter work of the federal courts. In doing so, the courts should adopt a reasonable interpretation that furthers the purpose that Congress intended. United States v. American Trucking Ass’ns Inc., 310 U.S. 534, 542 , 60 S.Ct. 1059 , 84 L.Ed. 1345 (1940). But Congress’s “general intention ... must be carried into language which can be reasonably construed to effect it. Otherwise the intention can not be enforced by the courts. The provisions of such acts are not to be extended by implication.” Smietanka v. First Trust & Sav. Bank, 257 U.S. 602, 606 , 42 S.Ct. 223 , 66 L.Ed. 391 (1922) (interpreting a provision of the Income Tax Law of 1913 relating to the taxation of income held and accumulated by a trustee for the benefit of unborn and unas-certained persons).

Which brings me to the first McKenzie ruling I question: the interpretation of “based upon” in (A) to mean “supported by.” I believe that the Fourth Circuit got it right when it found that “based upon” means “derived from.” United States ex rel. Siller v. Becton Dickinson & Co., 21 F.3d 1339 , 1348 (4th Cir.1994). This interpretation strikes me as both linguistically correct and fully consistent with Congress’s objective of preventing parasitic lawsuits.- Id. (“Such an understanding of the term ‘based upon,’ apart from giving effect to the language chosen by Congress, is fully consistent with section 3730(e)(4)’s indisputed [sic] objective of preventing ‘parasitic’ actions ... ”) I find that the interpretation rendered by McKenzie and the other circuits cited in the majority opinion, to the effect that “based upon” means “supported by,” to be an unnatural contortion of the language to reach a result that is not fairly supported by the statute itself. See Id. at 1349 (“We are unfamiliar with any usage, let alone a common one or a dictionary definition, that suggests that ‘based upon’ can mean ‘supported by.’ ”) (emphasis in original).

This brings me to the second McKenzie ruling that I question: the judicial addition to (B) of a requirement “that, to be an original source, a relator must inform the government of the alleged fraud before the information has been publicly disclosed.” McKenzie, 123 F.3d at 942. Although the first ruling interpreting “based upon” is at least arguable (albeit in my opinion an impermissible stretch), this wholesale addition to (B) seems to me. completely unjustified.

The majority opinion correctly states that the statutory requirements to be an “original source” are as follows:

“Original source” is defined as an individual: (1) with direct and independent knowledge of the information on which the allegations are based; and (2) who has voluntarily provided the information to the government before filing an action under the FCA which is based upon the information. See § 3730(e)(4)(B).

But then, based on McKenzie, the majority adds the additional requirement that “a relator must also provide the government with the information upon which the allegations are based prior to any public disclosure.” See McKenzie, 123 F.3d at 942.

Although there may well be good policy reasons to support this new requirement (as explained in both McKenzie (123 F.3d at 942-43) and Findley ( 105 F.3d at 685 )), the judicial addition in fact runs flat into the face of the statutory language in (A). This is because (A) allows an “original source” relator to proceed despite prior public disclosure, which directly conflicts with the new requirement that a, relator is barred if the alleged fraud is not disclosed to the government before the knowledge becomes public. Fur *337 thermore, it is simply not the proper role of the courts to add additional terms by judicial fiat. Brogan v. United States, - U.S. -, -, 118 S.Ct. 805, 811-12 , 139 L.Ed.2d 830 (1998) (“Courts may not create their own limitations on legislation, no matter how alluring the policy arguments for doing so ...”); Nat’l Life and Accident Ins. Co. v. United States, 524 F.2d 559, 560 (6th Cir.1975) (“The Courts ... do not have the power to repeal or amend the enactments of the legislature even though they may disagree with the result; rather it is their function to give the natural and plain meaning effect to statutes as passed by Congress.”). This is the job of Congress. Neal v. United States, 516 U.S. 284, 296 , 116 S.Ct. 763 , 133 L.Ed.2d 709 (1996) (“Congress, not this Court, has the responsibility for revising its statutes”).

Despite my misgivings as set forth above, the law of this circuit is clear that one panel of this court cannot overrule a decision by a prior panel. Salmi v. Secretary of Health and Human Servs., 774 F.2d 685, 689 (6th Cir.1985). I therefore concur in the result reached by the majority.