Petition for Writ of Certiorari — Robert V. Smith, Petitioner v. Jay A. Odom, et al.
Supreme Court briefJan 17, 2026
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No. ___________
In the Supreme Court of the United States
__________________
UNITED STATES OF AMERICA AND THE STATE
OF FLORIDA EX REL. ROBERT V. SMITH,
Petitioner,
v.
JAY A. ODOM AND OKALOOSA COUNTY, BOARD
OF COUNTY COMMISSIONERS,
Respondent.
___________________________________________
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
___________________________________________
PETITION FOR WRIT OF CERTIORARI
___________________________________________
W. Kelly Puls
Elizabeth Billhimer
Counsel of Record
MATTHEWS & MATTHEWS LLP
4475 Legendary Dr
PULS LAW, PLLC
3101 W 6th St., #472056 Destin, FL 32541
Fort Worth, TX 76147 (850) 837-3662
(817) 338-1717
ebillhimer@destinlaw.com
kelly@pulslaw.com
Attorneys for Petitioner
JANUARY MMXXVI
United States Commercial Printing Company • www.uscpc.us • (202) 866-8558
i
QUESTION PRESENTED
In 2010, Congress amended the False Claims Act’s
public-disclosure provision to expand—rather than
limit—the class of whistleblowers who may proceed
when elements of a fraud have entered the public domain. By redefining “original source” to include those
“who [have] knowledge that is independent of and materially adds to the publicly disclosed allegations or
transactions,” 31 U.S.C. § 3730(e)(4)(B), Congress ensured that meritorious actions would not be foreclosed
merely because prior disclosures permitted an inference of fraud. Preserving actions based on independent, non-public information that materially enhances
the government’s understanding of a fraud ensures
that the False Claims Act continues to serve its fundamental purpose—protecting the public fisc by uncovering and deterring fraud against the United
States.
The question presented is:
Whether the requirement in 31 U.S.C. § 3730
(e)(4)(B) that a relator have “knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions” requires a distinct
inquiry into whether the relator’s non-public information meaningfully contributes to the government’s
understanding or ability to act on the publicly disclosed information, as applied by a majority of circuits, or whether overlap with public disclosures bars
the action, as applied by other circuits?
ii
RELATED PROCEEDINGS
FAA Director’s Determination:
FAA Director’s Determination, Robert
Smith v. Okaloosa County, FAA Docket
16-24-01 (March 20, 2025).1 Docket
available at regulations.gov
United States District Court (N.D. Fl.):
United States of America ex rel Robert V.
Smith v. Jay A. Odom and Okaloosa
County, Board of County Commissioners,
No. 3:20cv3678-MCR-ZCB (Oct. 5, 2023)
(motion to amend judgment denied)
United States of America ex rel Robert V.
Smith v. Jay A. Odom and Okaloosa
County, Board of County Commissioners,
No. 3:20cv3678-MCR-ZCB (Jun. 22,
2023) (dismissal granted)
United States Court of Appeal (CA11):
United States of America ex rel Robert V.
Smith v. Jay A. Odom and Okaloosa
County, Board of County Commissioners
No. 23-13670 (Aug. 22, 2025);
United States of America ex rel Robert V.
Smith v. Jay A. Odom and Okaloosa
1 The Director’s Determination was issued after dismissal by the
district court and after oral argument at the Eleventh Circuit
Court of Appeals
iii
County, Board of County Commissioners
No. 23-13670 (Oct. 21, 2025) (rehearing
denied)
iv
TABLE OF CONTENTS
Question Presented ......................................................i
Related Proceedings ................................................... ii
Table of Contents ....................................................... iv
Table of Authorities...................................................vii
Opinions Below ............................................................ 1
Jurisdiction .................................................................. 1
Statutory Provisions Involved .................................... 1
Statement of the Case ................................................. 2
I. Legal Background .............................................2
II. Factual Background .........................................4
A. The consolidation of both fixed-base
operators ......................................................4
B. Public reporting in 2014 and the
County’s initial response.............................5
C. County ratification, ongoing
certifications, and Smith’s exclusion ..........7
D. The FAA Part 16 proceeding and
Director’s Determination ............................8
III.Procedural History .........................................10
Reasons for Granting the Petition ............................ 13
Conclusion ............................................................... 366
v
Appendix
Appendix A
Opinion, United States Court of Appeal for the
Eleventh Circuit, United States of America ex rel
Robert V. Smith v. Jay A. Odom and Okaloosa
County, Board of County Commissioners,
No. 23-13670 (Aug. 22, 2025) ......................... App-1
Appendix B
Mandate, United States Court of Appeals for the
Elevent Circuit, United States of America ex rel
Robert V. Smith v. Jay A. Odom and Okaloosa
County, Board of County Commissioners
No. 23-13670 (Oct. 31, 2025) ....................... App-15
Appendix C
Order on Petitioner for Rehearing and Rehear
En Banc, United States of America ex rel Robert
V. Smith v. Jay A. Odom and Okaloosa County,
Board of County Commissioners
No. 23-13670 (Oct. 21, 2025) ....................... App-17
Appendix D
FAA Director’s Determination, Robert Smith v.
Okaloosa County,
FAA Docket 16-24-01 (March 20, 2025) ...... App-19
vi
Appendix E
Order on Motion to Amend Judgment, United
States District Court for the Northern District
of Florida, United States of America ex rel Robert
V.Smith v. Jay A. Odom and Okaloosa County,
Board of County Commissioners,
No. 3:20-cv-3678-MCR-ZCB
(Oct. 5, 2023) ................................................ App-80
Appendix F
Order on Motion to Dismiss Amended Complaint, United States of America ex rel Robert V.
Smith v. Jay A. Odom and Okaloosa County,
Board of County Commissioners,
No. 3:20-cv-3678-MCR-ZCB
(June 22, 2023) ............................................. App-87
Appendix G
Relevant Statutory Provisions
31 U.S.C. § 3730 ......................................... App-112
49 U.S.C. § 40103 ....................................... App-113
49 U.S.C. § 47107 ....................................... App-114
vii
TABLE OF AUTHORITIES
Cases
Bellevue v. Universal Health Services of Hartgrove,
Inc.,
867 F.3d 712 (CA7 2017) ........................... 19, 20, 34
Cause of Action v. Chicago Transit Authority,
815 F.3d 267 (CA7 2016) ........................... 18, 20, 34
Graham County Soil & Water Conservation District
v. United States ex rel. Wilson,
559 U.S. 280 (2010).......................................... 14, 24
Rockwell Intern. Corp. v. United States,
549 US 457 (2007)..................................................14
Schindler Elevator Corp. v. United States ex rel.
Kirk,
563 U.S. 401 (2011).......................................... 14, 24
United States ex rel. Ibanez v. Bristol-Myers Squibb
Co.,
874 F.3d 905 (CA6 2017) .......................................30
United States ex rel. Jacobs v. JPMorgan Chase
Bank, N.A.,
113 F.4th 1294 (CA11 2024) .... 12, 20–21, 27–30, 32
United States ex rel. Maur v. Hage-Korban,
981 F.3d 516 (CA6 2020)
..................................... 3, 16–17, 19, 21–22, 26, 29
viii
United States ex rel. Moore & Co. v. Majestic Blue
Fisheries, LLC,
812 F.3d 294 (CA3 2016)
............................... 3, 16, 18, 19, 21, 22, 24, 26, 29
United States ex rel. O’Connor v. USCC Cellular
Corp.,
153 F.4th 1272 (CADC 2025) ........ 18, 21–22, 26, 30
United States ex rel. Osheroff v. Humana Inc.,
776 F.3d 805 (CA11 2015) ............. 20, 21, 27–30, 32
United States ex rel. Reed v. KeyPoint Gov’t
Solutions,
923 F.3d 729 (CA10 2019)
..................................... 3, 17–19, 21–22, 25–26, 30
United States ex rel. Winkelman v. CVS Caremark
Corp.,
827 F.3d 201 (CA1 2016) ........... 3, 17, 19, 22, 26, 29
Universal Health Services, Inc. v. United States ex
rel. Escobar,
579 U.S. 176 (2016)................................................17
Statutes and Regulations
28 U.S.C. §1254 ...........................................................1
False Claims Act,
31 U.S.C. § 3729, et seq.
.................................... 2, 10, 13–15, 22, 30–32, 35
31 U.S.C. § 3729 ..........................................................2
ix
31 U.S.C. § 3730
......... 1, 3, 11, 13–15, 18, 20, 22–28, 31, 32–33, 35
49 U.S.C. § 47107 ........................................................2
49 U.S.C. § 47114 ........................................................9
49 U.S.C. § 47115 ........................................................9
14 C.F.R. Part 16 ....................................... 8, 19, 31, 33
Other Authorities
Joel D. Hesch, Restating the “Original Source
Exception” to the False Claims Act's “Public
Disclosure Bar” in Light of the 2010 Amendments,
51 U. OF RICH. L. REV. 991 (2017) .........................30
x
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OPINIONS BELOW
The Eleventh Circuit’s opinion is reported at 148
F.4th 1322, and is reproduced in the Appendix at
App.1-14. The Northern District of Florida’s opinion is
reproduced in the Appendix at App.87-111.
JURISDICTION
The Eleventh Circuit’s opinion was entered August
22, 2025. The Eleventh Circuit denied rehearing on
October 21, 2025. This Court has jurisdiction under 28
U.S.C. §1254(1).
STATUTORY PROVISIONS INVOLVED
Relevant statutory provisions and regulations are
reproduced in the Appendix at App.112-114. 31 U.S.C.
§ 3730(e)(4), in relevant parts:
(A) The court shall dismiss an action or
claim under this section . . . if substantially the same allegations or transactions as alleged in the action or claim
were publicly disclosed—
. . . unless . . . the person bringing the
action is an original source of the information.
(B) For purposes of this paragraph, “original source” means an individual . . . (2)
who has knowledge that is independent
of and materially adds to the publicly
disclosed allegations or transactions, and
who has voluntarily provided the
2
information to the Government before
filing an action under this section.
STATEMENT OF THE CASE
I.
Legal Background
Destin Executive Airport is a public-use airport in
Okaloosa County, Florida. The County is the airport
“sponsor” and has received millions of dollars in federal and state grants for airport improvements. App.3.
An airport sponsor that accepts federal funds under
the Airport Improvement Program must provide written “assurances” to the Federal Aviation Administration (FAA) that it will comply with various statutory
and regulatory requirements. See 49 U.S.C.
§47107(a). Among other things, the sponsor must certify that it “will not grant an ‘exclusive right to use the
airport’ to any single ‘fixed-base operator’” and that it
will make the airport available for public use on reasonable conditions and without unjust discrimination.
49 U.S.C. §47107(a)(1), (4).2 App.3; see also 49 U.S.C.
§ 40103(e). Each application for, and acceptance of,
federal airport funding is supported by certifications
that these assurances are being honored. Ibid.
The federal False Claims Act, 31 U.S.C. § 3729, et
seq., makes it unlawful to knowingly submit false or
fraudulent claims for payment to the United States,
or to make false statements material to such claims.
31 U.S.C. § 3729(a)(1)(A)–(B). App.at 7–8. The Act
2 A fixed‑base operator (FBO) is a commercial entity “providing
aeronautical services such as fueling, maintenance, storage,
ground and flight instruction, etc. to the public.” FAA Order
5190.6B § 8.9 n.25; App.3.
3
relies heavily on private qui tam relators, who may
file civil actions in the name of the United States and
share in any recovery. 31 U.S.C. § 3730(b), (d). App.8.
At the same time, Congress has long sought to deter
“parasitic” suits by opportunistic relators who add
nothing to what is already known. The public-disclosure bar therefore requires dismissal of a qui tam action if “substantially the same allegations or transactions as alleged in the action or claim were publicly
disclosed” in specified sources, including “news media,” unless the relator is an “original source” of the
information. 31 U.S.C. § 3730(e)(4)(A). App.8–9.
In 2010, Congress substantially revised this framework. It converted the public-disclosure bar from a jurisdictional rule into an affirmative defense and expanded the definition of “original source” to include an
individual whose knowledge is “independent of and
materially adds to the publicly disclosed allegations or
transactions” and who voluntarily provided the information to the government before filing suit. 31 U.S.C.
§ 3730(e)(4)(B). As the courts of appeals have recognized, the “materially adds” language was meant to
preserve meritorious cases in which some information
is already public, by allowing relators who bring genuinely useful additional facts to proceed. See, e.g.,
United States ex rel. Moore & Co. v. Majestic Blue
Fisheries, LLC, 812 F.3d 294, 306 (CA3 2016); United
States ex rel. Maur v. Hage-Korban, 981 F.3d 516,
525–27 (CA6 2020); United States ex rel. Reed v. KeyPoint Gov’t Solutions, 923 F.3d 729, 757–63 (CA10
2019); United States ex rel. Winkelman v. CVS Caremark Corp., 827 F.3d 201, 211–12 (CA1 2016). The
Eleventh Circuit decision below applied a different
4
formulation, rendering the “materially adds” language in the statute nugatory.
II. Factual Background3
A. The consolidation of both fixed-base operators
For decades, Miracle Strip Aviation was the sole
fixed-base operator at Destin, but importantly there
was space available on the airport for additional aeronautical providers. In 2009, the County added a second FBO, Destin Jet, owned by respondent Jay Odom.
App.3. The second FBO consumed all the remaining
FBO suitable land on the airport. App.6a. Petitioner
Robert Smith, a commercial pilot who had trained at
Destin in 1985, regularly used the Airport and interacted with both FBOs and their employees. App.3-4.
Those interactions gave him a detailed understanding
of how the Airport and its tenants operated.
In 2012, a company called Regal Capital acquired
Miracle Strip. App.4. On paper, Regal Capital was
owned by two individuals, Phillip Ward and Jack Simmons. Id. According to Smith, however, Odom funded
the purchase and Ward and Simmons were merely
“strawmen,” which allowed Odom to “covertly” gain
control of the second FBO while he continued to own
Destin Jet outright.4 App.4, 12-13. The County
3 The facts set forth in this Section II are drawn from the Elev-
enth Circuit’s Opinion except where other sources are specifically
cited.
4 Although not specifically addressed in the Eleventh Circuit’s
Opinion, Smith revealed that Phillp Ward was Odom’s uncle
from Gulfport, Mississippi enlisted and paid by Odom to conceal
Odom’s ownership.
5
learned of the acquisition, but not the alleged strawman scheme, in early 2013 and approved an assignment of Miracle Strip’s lease to Regal Capital. Miracle
Strip was then re-branded as Regal Air. App.4.
Less than a year later, Sterling Diversified, a company owned by Odom and two others, acquired Regal
Capital and thus Regal Air.5 Id. By March 2014, the
County knew that Odom now owned both Destin Jet
and Regal Air and therefore controlled all FBO locations at Destin. Id. Smith alleged this series of transactions, including the initial strawman acquisitions,
was never fully disclosed to the FAA and that, during
this period, the County continued to certify that it
complied with the no-exclusive-rights assurance.
B. Public reporting in 2014 and the
County’s initial response
On March 29, 2014, the Northwest Florida Daily
News reported that “a company associated with Destin Jet owner Jay Odom bought out the competition at
Destin Airport.”6 Id. The article quoted the airport director as stating that Odom’s actions “violated two
Federal Aviation Administration grant assurances,”
and reported that Odom had argued the Airport could
not support two FBOs in a declining market. Id. A second article in Aviation International News, published
5 Smith alleged that Odom’s “partners” in Sterling Diversified,
Chester Kroeger and Tim Edwards, were both in financial trouble and did not have any aviation experience and were solely involved to conceal Odom’s absolute control of Regal Air.
6 The article refers to the purchase of Regal Air by Sterling Diversified on December 31, 2013, and not the previous covert
straw buyer purchase of Miracle Strip by the entity fronted by
Odom’s uncle.
6
in May 2014, recounted “county anti-trust safeguards
and FAA grant assurance violations that resulted
when the owners of Destin Jet allegedly purchased rival provider Regal Air Destin at the end of last year”
and reported that airport officials and Destin Jet’s
owners were resolving the dispute. App.5a. Both articles stated the matter would go to the FAA for review
before the County acted.
Smith alleges that in September 2014, the County
formally reported the ownership change to the FAA
and inquired whether the acquisition would violate its
exclusive-rights assurances. Id. According to the complaint, the FAA cautioned the County about “issues
related to exclusive rights” and suggested that it obtain a legal opinion from the FAA’s Office of General
Counsel. Id. The County did not obtain a legal opinion.
Instead, it “moved forward with authorizing Destin
Jet and Regal Air to ‘operate under common ownership and brand.’” Id. The County did not report to the
FAA its decision to allow common ownership and
branding of the two separate FBOs.
The 2014 articles and informal FAA contacts focused
on tenant behavior and the prospect of curing
grant-assurance problems. The articles did not encompass all of Smith’s allegations, including Odom’s
initial strawman scheme that lasted from 2012
through December 31, 2013, the long-term implications of the County’s subsequent decisions after the
articles were published to ratify and extend the monopoly, or the later refusal by the County to disband
the monopoly and accommodate new airport providers
such as Smith.
7
C. County ratification, ongoing certifications, and Smith’s exclusion
The situation changed after the articles in 2014.
Smith alleged that by 2015 the County understood
that Odom or his successors controlled both FBO sites
under common ownership, yet the County chose to approve and ratify that arrangement instead of unwinding it. App.5-6. The County authorized Destin Jet and
Regal Air to operate as a single operation, then approved a merger and later sale of the combined enterprise, which continued to run both FBO locations. Id.
During this period, the County repeatedly sought
and received additional federal and state funding, certifying falsely each time that it remained in compliance with the conditions attached to those funds, including the exclusive-rights and nondiscrimination
assurances. App.3, 6. Smith identified more than forty
instances between 2012 and 2019 in which, he alleged,
the County made false statements in grant-related
documents, resulting in over $30 million in funding.
App.6. The later certifications, unlike the 2014 news
articles, occurred after the County, having been cautioned by the FAA, ratified in 2015 the illegal arrangement and knowingly continued to falsely certify it was
in compliance with its grant assurances.
In 2016, Odom sold the merged Destin Jet/Regal Air
operation to a new private owner, but the basic structure remained the same. App.5-6. A single FBO operator continued to control both locations, and the
County continued to certify that it was not granting
an exclusive right and was complying with its
grant-assurance obligations. Id.
8
In 2019, Smith sought to enter the provider market
at the airport. He approached the County and proposed to lease one of the two existing FBO sites, which
were being run by a single provider, or alternatively,
to lease space elsewhere on the Airport to construct a
new FBO facility. App.6. The County denied his request, citing existing leases and an asserted lack of
“available land.” Id. It did not offer Smith any meaningful opportunity to compete for space, did not propose alternative sites, and did not abrogate or revise
any existing leases to make room for competition, as
required by federal statute, FAA regulations and FAA
grant assurances. The Eleventh Circuit acknowledged
that Smith alleged he was “denied an opportunity to
lease or develop a new” operation at the Airport,
“which is a separate violation of grant assurances.”
App.12.
D. The FAA Part 16 proceeding and Director’s Determination
After the district court dismissed this qui tam action, and while the appeal was pending, Smith pursued a separate administrative remedy. In January
2024, Smith filed a complaint under 14 C.F.R. Part 16
with the FAA, attaching extensive supporting materials that also underlay his False Claims Act allegations. App.19-79. The County opposed Smith’s complaint, arguing that Smith had brought a qui tam action based on “the same facts” and “Smith’s claims in
this proceeding are simply recycled from his qui tam
case.”
After more than a year of pleadings, record supplements, and factual investigation, the FAA issued a
9
Director’s Determination on March 20, 2025.7 Id. The
FAA found that Okaloosa County had violated multiple grant assurances, including Grant Assurance 23
(exclusive rights), Grant Assurance 5 (preserving
rights and powers), and, importantly, Grant Assurance 22 (economic nondiscrimination). App.19–20, 23,
45–54, 57–59, 62–66. The FAA concluded that “effectively only one aeronautical service provider has operated the two FBO locations at [Destin] with a monopoly” since at least 2015, that the County had approved
lease assumptions, assignments, and ratifications
that kept all FBO-suitable space under control of a
single operator, and that it had unjustly denied access
to Smith and failed to offer alternative space or abrogate existing leases to accommodate competition. Id.
The Director held that the County’s conduct violated
Grant Assurance 22 by denying Smith the opportunity to lease or develop facilities for an FBO operation and ordered corrective action. Id.
The core facts that Smith brought to the attention of
the United States in his qui tam complaint, and later
presented to the FAA, led the agency to find that the
County’s certifications of compliance with federal
grant assurances were false and ruled, “[p]ending the
FAA's approval of a corrective action plan and implementation by the County, this office will recommend
to the Director, the Office of Airport Planning and Programming, to withhold approval of any applications
submitted by Okaloosa County for funding for projects
authorized under 49 U.S.C. § 47114(d) and authorized
under 49 U.S.C. § 47115” App.66. Those developments
underscore the significance of Smith’s contributions to
7 The County’s appeal of the Director’s Determination is pending.
10
the government’s understanding of the ongoing violations.
III. Procedural History
A. District court
In 2020, Smith filed this action under the False
Claims Act as a qui tam relator against Odom and
Okaloosa County. He alleged that the 2012 strawman
purchases, followed by Sterling Diversified’s acquisition of Regal Air, created an exclusive right for a single FBO provider, thereby rendering the County’s certifications false. App.6. He further alleged that the
County maintained that exclusive right by authorizing the merger of Destin Jet and Regal Air, by later
approving assignments that kept all FBO space under
the control of a single operator, and by denying his
2019 request to establish a competing FBO, all while
continuing to certify compliance and obtain federal
funds. Ibid. Smith also asserted parallel claims under
the Florida False Claims Act, which, as the Eleventh
Circuit recognized, is modeled on the federal statute
and subject to the same analysis. Id. n.1.
After Smith amended his complaint, both defendants moved to dismiss. The district court granted the
motions and dismissed the amended complaint with
prejudice. App.7. It held that the FCA’s public-disclosure provision barred Smith’s suit because the allegations in his complaint had been publicly disclosed in
the 2014 news articles and that the complaint failed
to satisfy Rule 9(b)’s heightened pleading standard for
fraud claims. Id. Smith moved to amend the judgment
under Rule 59(e) arguing the court had not adequately
addressed the particular information he alleged materially added to the public disclosures and that the
11
district court as a matter of law incorrectly interpreted the exclusive rights prohibition in the grant assurances and the relevant FAA guidance documents
and disregarded the relevant portion of 49 U.S.C. §
40103(e). In its subsequent order, the district court denied the relief requested, explaining, “[i]n any event,
even assuming error in this conclusion or in the determination that the Amended Complaint lacked sufficient particularity under Rule 9(b), the pleading deficiencies were noted in the alternative to the decision
on the public disclosure bar.” App.84–85.
B. The Eleventh Circuit
The Eleventh Circuit affirmed. The court framed the
public-disclosure inquiry as involving three questions:
whether the same general allegations had been publicly disclosed; whether those allegations were “substantially the same” as those in the complaint; and, if
so, whether Smith qualified as an original source
whose knowledge was “independent of and materially
adds to the publicly disclosed allegations.” (quoting 31
U.S.C. § 3730(e)(4)(B)). App.8–9.
On the first two questions, the court held that the
news articles were public disclosures within the
meaning of the statute and that they “outlined the
same scheme that Smith raises in his complaint.”
App.10–12. The articles, the court explained, reported
that “a company associated with Destin Jet owner Jay
Odom bought out the competition at Destin Airport”
and quoted the airport director as stating that Odom’s
actions “violated two Federal Aviation Administration
grant assurances.” App.4, 11. The Aviation International News article likewise spoke of “FAA grant assurance violations that resulted when the owners of
12
Destin Jet allegedly purchased rival provider Regal
Air Destin.” App.5, 11.
Although Smith argued that his complaint was
broader, because it alleged an earlier, undisclosed
strawman scheme and focused on the County’s conduct after 2014, the panel rejected that distinction. It
acknowledged that the articles “do not discuss any of
the County’s actions after their publication” and that
Smith emphasized two later developments, the
County’s failure to obtain FAA approval for the consolidated arrangement and its denial of his request to
open a competing FBO. App.12. But the court held
that those actions “did not change or expand the
scheme,” because “[Smith’s] complaint and the news
articles center on the same issue: the lack of competition between the fixed-base operators.” Id. It therefore
concluded that there was “significant overlap” between the complaint and the articles and that the public-disclosure bar was triggered. Id. (quoting United
States ex rel. Jacobs v. JPMorgan Chase Bank, N.A.,
113 F.4th 1294, 1302 (CA11 2024)).
Turning to the original-source question, the court recited its prior holdings that if public disclosures “are
already sufficient to give rise to an inference of fraud,”
then “cumulative allegations do not materially add,”
and that “[b]ackground information and details that
help one understand or contextualize a public disclosure” are likewise insufficient. App.12. (quoting Jacobs, 113 F.4th at 1303).
The panel then summarized Smith’s asserted additions. It noted that he alleged Odom had engaged in a
strawman scheme to “covertly” gain control of Regal
Air before Sterling Diversified formally acquired it,
13
that “actual economic conditions at [the Airport] did
not justify a merger” of the two FBOs, and that he was
“denied an opportunity to lease or develop a new” operation at the Airport, which he claimed was “a separate violation of grant assurances.” App.12–13. Having recited those allegations, the court concluded that
“[t]hese are details, not material additions.” App.13.
In the panel’s view, “[t]he articles established that one
entity controlled both fixed-base operators at the airport and that this was a violation of the County’s FAA
grant assurances. Smith’s new filings provide background information and additional details—but that’s
it. . . . The heart of Smith’s complaint and the articles
is the same.” Id.
On that reasoning, the Eleventh Circuit held that
Smith was not an original source because, although
his knowledge may have been independent, his allegations did not materially add to the public disclosures, because “[t]he heart of Smith’s complaint and
the articles is the same.” App.13–14a. The court therefore affirmed dismissal of his federal and state False
Claims Act claims on public-disclosure grounds and,
having done so, found it unnecessary to address Rule
9(b) or the district court’s denial of leave to amend on
the merits. App.7, 13 n.2, 13–14. The Eleventh Circuit
denied Smith’s petition for rehearing and rehearing
en banc.
REASONS FOR GRANTING THE PETITION
Each point that follows goes to the same question:
whether section 3730(e)(4)(B) requires courts to undertake a distinct original-source inquiry that gives
independent force to Congress’s ‘materially adds’
14
language, or whether, as here, that inquiry may be
collapsed into the public-disclosure bar.
I.
The Question Presented Is Important and
Recurring.
Congress has repeatedly relied on the False Claims
Act as a central protection of the federal fisc, and this
Court has frequently intervened to clarify the statute’s structure and limits. Since 2010 this Court has
twice granted certiorari in cases that addressed the
public-disclosure bar, but both of those cases addressed the bar under the pre-amended statute. See
Graham County Soil & Water Conservation District v.
United States ex rel. Wilson, 559 U.S. 280 (2010), and
Schindler Elevator Corp. v. United States ex rel. Kirk,
563 U.S. 401 (2011), interpreting what counted as a
“public disclosure” under subsection (A) of the preamended statute. The Court last addressed the original source prong of § 3730(e)(4)(B) in Rockwell Intern.
Corp. v. US, 549 US 457 (2007) under the preamended statute. Since 2010, the Court has considered the first-to-file bar, the implied false-certification
theory, the seal requirement, the statute of limitations, government dismissal authority, and the scienter standard, but it has not yet addressed the revised
original-source exception to the public disclosure bar.
The 2010 amendments broadened the definition of
“original source” to include individuals who have
“knowledge that is independent of and materially
adds to the publicly disclosed allegations or transactions.” 31 U.S.C. § 3730(e)(4)(B). Congress deliberately ensured that meritorious suits would not be
barred simply because some elements of a fraud had
entered the public domain, so long as the relator’s
15
independent information materially improved the
government’s understanding or revealed additional,
related misconduct. The practical question in many
declined cases is whether the relator’s nonpublic information “materially adds” in the sense Congress intended.
The Eleventh Circuit’s approach, under which any
allegations that follow public disclosures sufficient to
support an “inference of fraud” are categorically relegated to “background information and additional details,” cannot be reconciled with congressional intent.
The question as to whether § 3730(e)(4)(B)’s “materially adds” requirement establishes a distinct and substantive inquiry into how the facts provided by the relator might add to public disclosures to bring actionable fraud to light—apart from the “substantially the
same” test—recurs frequently, produces inconsistent
results across circuits, and goes to the heart Congress’
2010 amendments to the text of the original-source exception.
II. The Decision Deepens a Square and Outcome-Determinative Conflict Over the
Meaning of “Materially Adds.”
The courts of appeals are now openly divided over
what it means for a relator’s information to “materially add[] to the publicly disclosed allegations or
transactions” for purposes of the original-source exception to the False Claims Act’s public-disclosure
bar. 31 U.S.C. § 3730(e)(4)(B). In one group of circuits,
“materially adds” is a distinct, second-order inquiry
that asks whether a relator’s independent, nonpublic
information significantly improves the government’s
understanding of a fraud that has been partially
16
disclosed. In another group, including the Eleventh
Circuit, “materially adds” is effectively satisfied or defeated by the same high-level comparison that triggers the public-disclosure bar in the first place.
In the Third Circuit, the leading decision is Moore,
which adopts perhaps the broadest reading of the original-source exception among the courts of appeals. 812
F.3d 294. Moore holds that a relator materially adds
when he “contribute[s] significant additional information to that which has been publicly disclosed so as
to improve its quality,” focusing on whether the relator’s nonpublic information significantly enriches the
“essential factual background”—the “who, what,
when, where and how of the events at issue”—rather
than merely echoing public allegations. In Moore, public sources already outlined Korean companies’ use of
nominally American entities to obtain fishing licenses, but the relator still qualified as an original
source because his independent information about
who specifically owned and controlled the sham American entities, how they were structured, and how the
scheme operated in practice materially added to those
disclosures by supplying nonpublic answers to the
“who, what, when, where and how” questions at the
core of the fraud.
The Sixth Circuit has adopted a similar “adds value”
formulation. In Maur, the court asked whether the relator’s information “might actually affect the government’s decision-making,” and stated, “[i]n other
words, the relator must bring something to the table
that would add value for the government.” 981 F.3d at
525, 527. The court emphasized that even “allegations
that a substantially similar scheme has continued or
restarted could provide the government with
17
‘knowledge that is independent of and materially
adds’ to the public disclosures” pointing out “what was
once a hot trail of fraud must cool at some point." Id.
at 525, 529.
The Tenth Circuit’s analysis in Reed is to the same
effect. 923 F.3d 729. Reed recognized that news reports and government audits had disclosed fraud allegations in the background-investigation industry that
were “substantially the same” as those in the relator’s
complaint, so the public-disclosure bar was triggered.
Id. at 747–53. The court still held that Reed could proceed, because her allegations about fraud in KeyPoint’s “Telephone Testimony Program,” coupled with
evidence that management had concealed problems
from the government, “added material information” to
what was already public and were “capable of influencing the behavior of the recipient,” namely, the
United States. Id. at 757, 761–63 (cleaned up). Reed
explicitly criticized the Seventh Circuit’s narrower approach because it “has the effect of collapsing the materially-adds inquiry into the substantially-the-same
inquiry,” which “renders nugatory” Congress’s decision to create a separate original-source path for relators with valuable additional information. Id. at 757
(quoting Winkelman, 827 F.3d at 211–12).
The First Circuit has articulated essentially the
same standard. In Winkelman, the court explained
that information “materially adds” if it is “sufficiently
significant or essential” so as “to influence the behavior of the recipient,” and it relied on this Court’s observation in Universal Health Services, Inc. v. United
States ex rel. Escobar that materiality turns on
whether the information is likely to affect the government’s decisions. 579 U.S. 176, 195-96 (2016); see
18
Winkelman, 827 F.3d at 211. Finding, “information
that a particular defendant is acting ‘knowingly’ (as
opposed to negligently) sometimes may suffice as material addition.” Id. at 213. Although the relators in
Winkelman ultimately failed to satisfy the standard
on the facts, the court’s articulation of “materially
adds” is firmly aligned with Moore and Reed: it treats
the original-source exception as a distinct, second inquiry, and looks to whether the relator’s non-public
information meaningfully improves the government’s
understanding of the fraud or its incentives to act. See
Winkelman, 827 F.3d at 211–12.
The D.C. Circuit has now joined this “majority” in a
case decided after the Eleventh Circuit’s decision
here. In United States ex rel. O’Connor v. USCC Cellular Corp., the court held that the “substantially the
same” question under section 3730(e)(4)(A) and the
“materially adds” question under section 3730(e)(4)(B)
are distinct. 153 F.4th 1272 (CADC 2025) Even when
public disclosures are sufficient to support an inference of fraud, the court explained, later information
can still materially add if it contributes independent
facts that are significant to the government’s evaluation, that is, information “likely to influence a reasonable person’s behavior.” Id. at 1281. The D.C. Circuit
rejected the Seventh Circuit’s reasoning in Cause of
Action v. Chicago Transit Authority, 815 F.3d 267, 283
(CA7 2016) that satisfaction of the public-disclosure
prong automatically forecloses original-source status,
and it recognized that collapsing the two inquiries
would impermissibly strip “materially adds” of its independent force and “reducing the second prong to
surplusage cannot be right.” O’Connor, 153 F.4th at
1281.
19
Under these standards, Smith qualifies as an original source. The Eleventh Circuit itself recognized that
Smith alleged a concealed 2012 strawman scheme
through which Odom secretly obtained control of both
FBOs, followed by new rounds of County certifications
after 2015 when the County knew it had sanctioned
an illegal exclusive right, thereby pleading ongoing
fraud and scienter that was not present in the public
disclosures. App.12–13. Those allegations include who
orchestrated the consolidation, how the ownership
structure was hidden, and when the County continued
certifying compliance despite that knowledge, supplying the “significant additional information” Moore demands, 812 F.3d at 306, the “sufficiently significant or
essential” information described in Winkelman, 827
F.3d at 211, and Maur, 981 F.3d at 525–27, and the
value-adding scienter allegations Reed presumes to
materially add value, 923 F.3d at 760–761. By detailing the County’s knowing ratification of the illegal exclusive right and the 2019 denial of Smith’s FBO proposal which occurred 5 years after the 2014 news articles, Smith’s submissions enabled the FAA in its
subsequent Part 16 enforcement decision, which for
the first time gave the agency a full understanding of
who was committing fraud, when, and how—an understanding that was not supplied by the bare 2014
public disclosures in the two news articles.
The Seventh Circuit, however, takes a distinct approach that effectively eliminates the “materially
adds” provision. In Bellevue v. Universal Health Services of Hartgrove, Inc., the Seventh Circuit held that
if allegations are “substantially similar to” public disclosures such that the public-disclosure bar is triggered, then they cannot materially add to what the
20
public already knows. 867 F.3d 712, 721 (CA7 2017)
(citing Cause of Action, 815 F.3d at 283) Under that
interpretation, the two statutory inquiries collapse
into one: once a court finds that the allegations are
“substantially the same” as public disclosures, section
3730(e)(4)(A), it necessarily follows that the relator’s
information does not “materially add[],̓” §
3730(e)(4)(B), and the original-source exception is unavailable in the only cases where it matters. Bellevue
reached that result by focusing on the word “allegations” in both phrases, reasoning that because both
provisions refer to “allegations or transactions,” they
must be “measuring the same thing.” 867 F.3d at 717,
721.
The Eleventh Circuit has now embraced that same
logic and extended it to the post-2010 amendments. In
earlier cases, the court held that when public disclosures already provide enough information “to infer
fraud,” a relator’s allegations are not materially additive if they consist of “background information and details that help one understand or contextualize a public disclosure,” and it labeled such allegations “cumulative.” United States ex rel. Osheroff v. Humana Inc.,
776 F.3d 805, 814–815 (CA11 2015); Jacobs, 113 F.4th
at 1303. Here, it applied that inference-of-fraud rule
to Smith’s allegations. The court first held that two
2014 newspaper articles “outlined the same scheme
that Smith raises in his complaint,” namely, the conflict created by Odom’s acquisition of the competing
FBO and the resulting violation of the County’s grant
assurances, and that there was “significant overlap”
between those articles and the complaint. App.10–12.
It then turned to the original-source inquiry and,
while expressly acknowledging that Smith alleged a
21
strawman scheme to “covertly” gain control of Regal
Air, that “actual economic conditions at [the Airport]
did not justify a merger,” and that he was “denied an
opportunity to lease or develop a new” operation at the
Airport “which is a separate violation of grant assurances,” the court dismissed all of those facts as “details, not material additions.” Id. at 12a–13a. Because
the court understood the “heart” of the complaint and
the articles to be the same, it held that Smith could
not, as a matter of law, materially add to the public
disclosures. Id.
In reaching that conclusion, the Eleventh Circuit did
not treat the original-source exception as a distinct,
second inquiry, and it did not analyze whether the
specific elements Smith alleged—the 2012 strawman
acquisitions, the County’s post–2015 scienter and ongoing false certifications, the 2019 denial of access and
the separate Grant Assurance 22 violation sustained
by the FAA—satisfied the materially-adds requirement under the majority standards. The panel cited
none of the decisions in which other courts of appeals
have held that new information about continuing or
renewed fraud, new episodes of misconduct, or new
scienter can materially add even when a general
scheme has been publicly aired. See, e.g., Maur, 981
F.3d at 525; Reed, 923 F.3d at 761-63; Moore, 812 F.3d
at 306-08; O’Connor, 153 F.4th at 1280-83. Instead,
relying on its Osheroff/Jacobs standard, it treated the
existence of an “inference of fraud” based on the 2014
articles as dispositive of both the public-disclosure
and original-source inquiries. It is not simply that the
Eleventh Circuit undervalued the facts, but that it
never asked whether those facts “materially add[] to
the publicly disclosed allegations or transactions.”
22
The practical effect is to produce divergent outcomes
for functionally identical cases. Under Moore, Reed,
Winkelman, Maur, and O’Connor, Smith’s independent information about previously undisclosed ownership structures, new rounds of false certifications
years after the initial disclosures, and a distinct, later
denial-of-access violation that prompted a formal FAA
enforcement action would be more than enough to
qualify him as an original source. Relators who bring
precisely the type of valuable, later-arising information Congress sought to protect—information that
changes the government’s understanding of ongoing
fraud—may proceed in the First, Third, Sixth, Tenth,
and D.C. Circuits, yet are barred at the threshold in
the Seventh and Eleventh. That is an intolerable result for a federal statute that Congress has repeatedly
amended to encourage whistleblowers, and it is one
that only this Court can resolve by restoring independent meaning to the “materially adds” requirement and ensuring uniform application of the False
Claims Act nationwide.
The sharp divergence between the standards applied by the D.C. Circuit and the Eleventh Circuit in
2025 decisions, after fifteen years of post-amendment
percolation, underscores the need for this Court to decide which standard Congress intended.
III. The Statutory Text Requires a Distinct
Original-Source Inquiry That Gives Full
Effect to: “Materially Adds to the Publicly
Disclosed Allegations or Transactions.”
Section 3730(e)(4) establishes a two-step framework. Subsection A directs dismissal of a qui tam action if “substantially the same allegations or
23
transactions as alleged in the action or claim were
publicly disclosed” in specified sources, “unless” the
relator is an “original source of the information.” 31
U.S.C. § 3730(e)(4)(A). Subsection (B) then defines
“original source” to include a relator whose
“knowledge is independent of and materially adds to
the publicly disclosed allegations or transactions” and
who voluntarily provided that information to the government before filing. 31 U.S.C. § 3730(e)(4)(B).
These provisions describe a two-step framework, not
a single blended test. First, under subsection (A), a
court asks whether “substantially the same allegations or transactions” underlying the relator’s suit
have been publicly disclosed. If not, the bar never
comes into play. If so, the statute then poses a distinct
question under subsection (B): whether, despite that
overlap, the relator’s “knowledge” is both independent
and materially adds to the publicly disclosed allegations or transactions. Congress thus used the public-disclosure provision to define when defendants
may invoke an affirmative defense, and the original-source exception to define when that defense must
yield to a relator who brings genuinely valuable additional information.
The text confirms this division of labor. Subsection
A speaks of “allegations or transactions as alleged in
the action or claim” and compares them to “allegations
or transactions” that have been publicly disclosed. 31
U.S.C. § 3730(e)(4)(A). Subsection (B) refers to “the
publicly disclosed allegations or transactions” as the
object of the relator’s materially additive knowledge.
31 U.S.C. § 3730(e)(4)(B). In the first step, the complaint is the reference point; in the second, the public
record is. The use of the same “allegations or
24
transactions” phrase in both subsections, and the shift
in what those words refer to, underscores that “materially adds” is a distinct, second-order inquiry.
The 2010 amendments reinforce this understanding. Before 2010, the statute defined “original source”
more narrowly, as someone with “direct and independent knowledge of the information on which the
allegations are based.” This Court’s decisions in Wilson, 559 U.S. 280 and Kirk, 563 U.S. 401, interpreted
that earlier regime. In Schindler, the Court observed
that the phrase “allegations or transactions” in §
3730(e)(4)(A) “suggests a wide-reaching public disclosure bar,” because Congress covered not only “allegations” but also “transactions,” a term with a broad
meaning. When Congress amended § 3730(e)(4), it rewrote the original-source definition to include individuals whose knowledge, although not first in time, “is
independent of and materially adds to the publicly
disclosed allegations or transactions.” 31 U.S.C. §
3730(e)(4)(B). By repeating the same “allegations or
transactions” formulation from subsection (A), Congress confirmed that the broad universe of publicly
disclosed allegations or transactions described in
Schindler is also the realm to which a relator may contribute materially additive information.
If any overlap between the complaint and the public
record automatically prevented a relator’s knowledge
from materially adding to what is public, the “materially adds” clause would never operate in the setting
in which Congress placed it. As the Third Circuit explained in Moore, that “cannot be right,” because it
“would read out of the statute the original source exception,” which “comes into play only when some facts
regarding the allegation or transaction have been
25
publicly disclosed.” 812 F.3d at 306. The Tenth Circuit
in Reed likewise rejected an approach that “has the
effect of collapsing the materially-adds inquiry into
the substantially-the-same inquiry” and would thus
render nugatory Congress’s decision to create a separate path for relators with valuable additional information. 923 F.3d at 757.
The plurality of “allegations” and “transactions” in
both subsections of the revised text reinforces that understanding. Congress did not speak of “the allegation” or “the transaction.” It referred to sets of allegations and sets of transactions and used “or” to indicate
that either can suffice. In subsection (A), the question
is whether “substantially the same allegations or
transactions” as those “alleged in the action” have
been publicly disclosed, a formulation that anticipates
multiple misrepresentations and underlying dealings.
31 U.S.C. § 3730(e)(4)(A). In subsection (B), Congress
then asks whether the relator’s knowledge materially
adds “to the publicly disclosed allegations or transactions,” again in the plural and disjunctive. Id. That
language comfortably covers situations in which some
publicly disclosed allegations or transactions are already known, but the relator’s independent
knowledge materially adds to others—for example, by
adding new actors, extended time periods, different legal theories, or new evidence of scienter. Nothing in
the text limits “materially adds” to allegations or
transactions wholly outside the public record.
Courts that have focused on the statutory text have
treated the public-disclosure and original-source inquiries as analytically separate and, once “substantially the same” is satisfied, have asked whether the
relator’s knowledge nonetheless materially adds
26
something of significance to what is already known.
See Moore, 812 F.3d at 306–08; Reed, 923 F.3d at 757–
63; Winkelman, 827 F.3d at 211–12; United States ex
rel. Maur v. Hage-Korban, 981 F.3d 516, 525–27 (CA6
2020); United States ex rel. O’Connor v. USCC Cellular Corp., No. 23-7041, slip op. 12-14 (CADC Sept. 26,
2025).
The inference-of-fraud rule applied by the Eleventh
Circuit does not give independent content to §
3730(e)(4)(B) and cannot be reconciled with that
structure.
IV. The Eleventh Circuit Erred.
The Eleventh Circuit’s first interpretation of the
2010 amendment to the original-source exception,
which is now binding in the Circuit unless overturned
en banc or by this Court, rests on case law interpreting the pre-amendment statute and does not properly
apply the 2010 changes. The pre–2010 version of §
3730(e)(4) defined “original source” more narrowly.
Congress deliberately revised that framework in 2010
and broadened the original-source definition to include any relator “who has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions” and who has voluntarily provided that information to the government
before filing. 31 U.S.C. § 3730(e)(4)(B). Under the
amended statute, once the public-disclosure bar is
triggered, the statute asks not whether the “heart” of
the scheme was already public, but whether the relator’s independent knowledge materially adds to what
those public disclosures revealed.
27
The Eleventh Circuit’s first post–2010 construction
of the original-source exception, in Osheroff, never
grappled with the language Congress actually added
in the 2010 amendments and instead relied on
pre-amendment authority that interpreted a materially different statute. 776 F.3d 805. Osheroff framed
the question under section 3730(e)(4)(B) almost entirely in terms of whether public disclosures already
provided enough information “to infer fraud,” and
held that Osheroff’s information did not “materially
add” when he offered “background information and
details,” reasoning that this conclusion was similar to
its prior holdings that, “background information that
helps one understand or contextualize a public disclosure is insufficient to grant original source status under the previous version of the statute.” Id. at 814–
815. In reaching that conclusion, the Eleventh Circuit
cited and borrowed its analytical framework from
older cases decided under the superseded version of §
3730(e)(4), which defined “original source” as someone
with “direct and independent knowledge of the information on which the allegations are based,” without
the “materially adds” formulation that Congress later
enacted. Osheroff thus imported the pre-amendment
standard into the revised statutory framework, in
which Congress had broadened the original-source
category.
This approach was reaffirmed and extended in Jacobs,113 F.4th 1294 (CA11 2024). Jacobs described
the public-disclosure analysis as involving three questions: whether public disclosures occurred, whether
they were “substantially the same” as the relator’s allegations, and, if so, whether the relator was an original source. But when the court turned to the third
28
question, it largely collapsed it into the second. Citing
Osheroff, the panel held that if public disclosures are
already “sufficient to give rise to an inference of
fraud,” then “cumulative allegations do not materially
add,” and that “[b]ackground information and details
that help one understand or contextualize a public disclosure” are categorically insufficient to satisfy section
3730(e)(4)(B). This formulation is not grounded in the
amended text of the statute. It does not ask, as the
statute does, whether the relator’s independent
knowledge materially adds “to the publicly disclosed
allegations or transactions,” 31 U.S.C. § 3730(e)(4)(B),
in the sense of contributing significant, value-adding
facts.
The Eleventh Circuit has not meaningfully addressed the 2010 amendments related to the “materially adds” prong. It has not explained how its inference-of-fraud rule can be reconciled with Congress’s
decision to expand the original-source definition or
with the statutory structure that makes “materially
adds” a separate, second-order inquiry. The Eleventh
Circuit’s retained reliance on its earlier, pre-amendment logic in Osheroff and Jacobs cannot be squared
with the text, structure, or purpose of the amended
statute. Even if the outcomes in Osheroff and Jacobs
might have been defensible in those cases, the interpretive framework they carried forward is not the test
Congress enacted when amending 31 U.S.C. §
3730(e)(4)(B) in 2010. Neither decision asks whether
the relator’s independent knowledge “materially adds
to the publicly disclosed allegations or transactions,”
as the text now requires; both ask whether public disclosures already support an inference of fraud and relabel any overlapping facts as “details.”
29
This case illustrates, in concrete terms, how the
Eleventh Circuit’s Osheroff/Jacobs standard fails to
implement the amended statute. The court of appeals
did not question that Smith’s allegations were independent of the 2014 articles or that he voluntarily disclosed his information to the government. The court
acknowledged that Smith alleged a covert 2012
straw-buyer scheme through which Odom secretly obtained control of the second FBO, that Okaloosa
County, after being cautioned by FAA staff, knowingly
ratified and extended that illegal monopoly while continuing to certify compliance and obtain federal funds,
that in 2019 the County denied his request to lease or
develop FBO facilities, and that this denial constituted a separate economic-nondiscrimination violation under Grant Assurance 22. Under the standards
applied by the Third, First, Sixth, Tenth, and D.C.
Circuits, Smith’s allegations readily qualify as materially adding to the publicly disclosed allegations or
transactions.
In Moore, nonpublic details about who owned and
controlled the sham entities and how the scheme actually operated in practice were held sufficient to materially improve the quality of the public disclosures.
812 F.3d at 306–08. In Winkelman, information “sufficiently significant or essential” so as “to influence
the behavior of the recipient” satisfied the materially-adds requirement. 827 F.3d at 211–12. In Maur,
the court explained that allegations showing that a
substantially similar scheme had continued or restarted, or that the defendant’s conduct post-dated the
public disclosures, could “add value for the government” or “affect the government’s decision-making,”
pointing out, “what was once a hot trail of fraud must
30
cool at some point.” 981 F.3d at 525–29. See also
United States ex rel. Ibanez v. Bristol-Myers Squibb
Co., 874 F.3d 905, 919 (CA6 2017) (“It cannot be assumed that the government is aware a fraudulent
scheme continues (or was restarted) simply because it
had uncovered, and then resolved, a similar scheme
before.”). Reed treated particularized allegations
about a discrete program and management cover-ups,
beyond general industry-wide reports, as materially
additive. 923 F.3d at 757–63. The court there held,
“Reed’s allegations of scienter make us especially confident that her allegations . . . satisfy the materially
adds standard.” Id. at 760–761, quoting Joel D. Hesch,
Restating the “Original Source Exception” to the False
Claims Act's “Public Disclosure Bar” in Light of the
2010 Amendments, 51 U. OF RICH. L. REV. 991, 1027
(2017) (“[R]egardless of how well defined the fraud allegations are in a qualifying public disclosure, when a
relator brings forth knowledge of scienter that is not
specifically contained in a qualifying public disclosure
it should be presumed to materially add value.”).
Moreover, O’Connor held that even when public disclosures already revealed enough to infer fraud, later
allegations materially added where they supplied independent facts likely to affect the government’s response 153 F.4th at 1281-82.
The Eleventh Circuit reached the opposite conclusion not because Smith’s allegations were trivial, but
because its Osheroff/Jacobs framework left no room
for them to matter once the court determined that the
2014 articles already supported an inference of fraud.
After holding that those articles disclosed “substantially the same” scheme—Odom-associated entities
acquiring the competing FBO, one operator
31
controlling both locations, county officials acknowledging tenant created grant-assurance problems—the
court concluded that Smith’s additional allegations
were “details, not material additions,” because, in its
view, the “heart” of his complaint and the articles was
the same. The court in effect treated satisfaction of
subsection (e)(4)(A) of section 3730 as foreclosing satisfaction of subsection (e)(4)(B).
The subsequent FAA Part 16 Director’s Determination underscores the Eleventh Circuit’s misstep. After
the district court dismissed this qui tam action, Smith
filed a Part 16 complaint based on the same core factual record, and the FAA Director determined that
Okaloosa County had violated multiple grant assurances, including the exclusive-rights and economic-nondiscrimination requirements, in part by allowing a single operator to control all FBO-suitable
space and by denying Smith an opportunity to establish a competing FBO in 2019, five years after the public disclosures. The FAA Director’s Determination was
submitted to the Eleventh Circuit as supplemental
authority. The point is not that the FAA’s view controls the False Claims Act analysis, but that the same
factual record that the Eleventh Circuit dismissed as
merely “background information and additional details,” were sufficiently significant to prompt a formal
enforcement action and to require corrective
measures by the airport sponsor.
The Part 16 process does not incorporate a public-disclosure bar. But when the agency charged with
administering the underlying grant-assurance regime
treats a relator’s information as material to its enforcement decisions, it is difficult to reconcile a judicial conclusion that the same information, for
32
purposes of the False Claims Act’s original-source exception, cannot as a matter of law materially add to
publicly disclosed allegations, where the FAA already
possessed the information in the public disclosures,
but that information alone was not enough to raise
suspicions of fraud by different actors that would continue for years after the public disclosures. The dissonance arises not from any factual dispute but from the
Eleventh Circuit’s adherence to Osheroff and Jacobs,
which rest on pre–2010 rationale.
By applying a rule that treats any overlapping allegations as “details” once public disclosures support an
inference of fraud, the Eleventh Circuit deprived §
3730(e)(4)(B) of the independent force Congress gave
in its 2010 amendment and barred a relator who
would have proceeded in the First, Third, Sixth,
Tenth, and D.C. Circuits. Correcting that misinterpretation would reverse the judgment here and restore
the original-source exception Congress intended and
enacted.
V. This Case Presents a Clean and Focused Vehicle for Resolving the Meaning of “Materially Adds” in the Post-2010 Original-Source
Provision.
The only ground on which the court of appeals affirmed dismissal of petitioner’s federal False Claims
Act claims was the public-disclosure defense and its
conclusion that petitioner is not an original source because his allegations “do not materially add” to the
2014 news articles. The Eleventh Circuit held that
those articles publicly disclosed “substantially the
same” scheme, then applied its Osheroff/Jacobs standard to reject original-source status on the view that
33
petitioner’s independent facts were merely “background information and additional details,” rather
than material additions. The court did not rest its
judgment on Rule 9(b), on any alternative statutory
ground, or on any case-specific defect unrelated to the
interpretation of section 3730(e)(4).
The factual record is straightforward and well developed. The court of appeals described the 2012 acquisition, the subsequent consolidation of the two FBOs,
the County’s continuing grant-assurance certifications, and petitioner’s unsuccessful 2019 effort to enter the market, and it acknowledged that petitioner
alleged nonpublic facts about a strawman ownership
scheme, post–2015 scienter and certifications, a denial of access to lease or develop FBO facilities a separate economic-nondiscrimination violation. The public disclosures themselves consist of two news articles
published in 2014 whose content is undisputed, and
there is no disagreement about what those articles reported. The case therefore squarely presents, without
factual complications, the legal question—whether a
relator whose independent allegations extend a
scheme in time, identify concealed ownership and scienter, and add a distinct theory of liability—an economic nondiscrimination violation occurring five
years later—can “materially add” to public disclosures
that already support an inference of related fraud.
Subsequent developments further confirm the suitability of this case as a vehicle to resolve the proper
application of “materially adds.” After the district
court’s dismissal and while the appeal was pending,
the FAA issued a Director’s Determination in a Part
16 enforcement proceeding based on the same core
factual allegations and record materials Smith
34
marshaled in this case. The FAA held that the County
violated multiple grant assurances, including the exclusive-rights and economic-nondiscrimination requirements, in part by allowing a single FBO operator
to control all suitable space and by denying Smith an
opportunity to establish a competing operation in
2019. The FAA Director’s Determination, submitted
to the court of appeals as supplemental authority,
demonstrates that petitioner’s information was not
merely cumulative color, but was sufficiently significant to affect the federal government’s actual enforcement response. There is no vehicle problem arising
from that administrative proceeding: the FAA’s action
does not inject a new legal issue. The Part 16 process
has no public-disclosure bar, but it confirms that, as a
matter of real-world enforcement, the facts Smith
brought forward “materially add” to what was publicly known through the news articles in the ordinary
sense of that term.
This Court previously declined to grant Certiorari
on a similar question in Bellevue, 867 F.3d 712 (CA7
2017). In Bellevue, the Seventh Circuit affirmed its
ruling in Cause of Action “that because the plaintiff's
allegations were ‘substantially similar to’ the publicly
disclosed allegations, the plaintiff did not ‘materially
add’ to the public disclosure and could not be an original source.” Bellevue alleged continuing, knowing
fraud beyond the timeframe of the public disclosures.
But in Bellevue, the Seventh Circuit found “Bellevue's
allegations pertain to the same entity and describe the
same contested conduct as the publicly disclosed information” and that although the relator argued “that
his allegation that Hartgrove knowingly” committed
fraud constituted new information, the court found
35
that “scienter can be inferred from” the public disclosures. That is not the case here. It is undisputed that
no allegations of fraud had been made against the
County before Smith’s complaint.
This case turns on the law, not a dispute over the
record. Smith does not ask this Court to reweigh the
facts. Smith requests that the Court to require that,
once the public-disclosure bar is triggered, the original-source inquiry be conducted at a finer level of
specificity than the broad level of generality that determines whether the allegations or transactions are
“substantially the same.”
Because the Eleventh Circuit resolved the appeal exclusively on the interpretation and application of section 3730(e)(4)’s public-disclosure and original-source
provisions, and because the record cleanly frames how
“materially adds” operates when some aspects of a
scheme have been publicly reported but critical elements remain nonpublic, this case is an ideal vehicle
for the Court to clarify the meaning of the 2010
amendment and to restore uniformity to an area of the
False Claims Act that recurs with frequency in declined cases nationwide.
36
CONCLUSION
For these reasons, the petition for writ of certiorari
should be granted.
W. Kelly Puls
Elizabeth Billhimer
Counsel of Record
MATTHEWS & MATTHEWS LLP
PULS LAW, PLLC
4475 Legendary Dr
3101 W 6th St.,
Destin, FL 32541
#472056
(850) 837-3662
Fort Worth, TX 76147 ebillhimer@destinlaw.com
(817) 338-1717
kelly@pulslaw.com
JANUARY 2026
Attorneys for Petitioner
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.