History of the Public Disclosure Bar in the Eleventh Circuit and Determining a Proper Burden-Shifting Framework

In 1986, Congress amended the False Claims Act (the “Act”) by adding the public disclosure bar.[1] Congress enacted this bar with the goal of balancing the prevention of parasitic actions based on publicly available information and the encouragement of individuals bringing qui tam actions.[2] The original version of the public disclosure stated:

(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 [General] 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.[3]

In Cooper v. Blue Cross and Blue Shield of Florida, Inc.,[4] the Eleventh Circuit enumerated its framework for determining whether the public disclosure bar applied.[5] This framework is composed of three steps: (1) have relator’s allegations been publicly disclosed, (2) if so, is the public information the basis of the relator’s suit, and (3) if yes, is the relator the original source of the public information.[6] Furthermore, given the “[n]o court shall have jurisdiction” language in the public disclosure bar, the Eleventh Circuit found the bar operated as a jurisdictional bar in its original version.[7] Therefore, when a defendant made a motion to dismiss pursuant to the public disclosure bar, it was considered under Federal Rule of Civil Procedure (“FRCP”) Rule 12(b)(1). Thus, the relator bore the burden of proving the public disclosure bar did not apply or, if it did, he qualified as an original source of the information.[8]

In 2010, Congress amended the public disclosure bar when it passed the Patient Protection and Affordable Care Act.[9] Among the amendments made to the bar was the removal of the unequivocal jurisdictional language found at the beginning of the original version of the bar.[10] Following amendment, the public disclosure bar stated:

(4)(A) The court shall dismiss an action or claim under this section, unless opposed by the Government, if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed–

(i) in a Federal criminal, civil, or administrative hearing in which the Government or its agent is a party;

(ii) in a congressional, Government Accountability Office, or other Federal report, hearing, audit, or investigation; or

(iii) 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.[11]

Thus, under the amended version of the public disclosure bar, a court is compelled to dismiss an action if it falls within the public disclosure bar unless such dismissal is either opposed by the Department of Justice or the relator qualified as an original source of the information.

Following this amendment, courts within the Eleventh Circuit questioned whether the public disclosure bar was still a jurisdictional bar.[12] In U.S. ex rel. Osheroff v. Humana Inc.,[13] the Eleventh Circuit put this question to rest as it interpreted the amended public disclosure bar to create grounds for a court to dismiss an action for failure to state a claim, rather than for lack of jurisdiction.[14] In making this finding, the Eleventh Circuit emphasized, “The plain language of the [amended public disclosure bar] commands this interpretation: it instructs courts to dismiss an action when the public disclosure provision applies.”[15] The Eleventh Circuit also noted Congress removed the jurisdictional language from the public disclosure bar while leaving such language intact in surrounding sections of the Act.[16] Thus, in the Eleventh Circuit, when a defendant makes a motion to dismiss pursuant to the public disclosure bar, it is considered under FRCP Rule 12(b)(6).[17]

While the Eleventh Circuit has enumerated what rule the public disclosure bar should be evaluated under, it has failed to specify which party bears the burden of proving whether the public disclosure bar applies. In prior cases analyzing which party bears the burden under a Rule 12(b)(6) motion, the Eleventh Circuit has stated the defendant “bears the ‘very high burden’ of showing that the plaintiff cannot conceivably prove any set of facts that would entitle him to relief.”[18] Thus, it appears the defendant would bear the burden to prove the applicability of the public disclosure bar. This general rule, however, provides difficulties when it is considered in the context of the Cooper framework.

Specifically, the Cooper framework’s third step requires a determination of whether the relator qualifies as an original source. This qualification hinges on the relator either: (1) voluntarily disclosing the information that underlies his claim to the government prior to such information becoming public or (2) providing the government with information that is independent of and materially adds to the publicly disclosed information.[19] If a relator qualifies as an original source, then the court is barred from dismissing the action even if the first two steps of the public disclosure bar are met. Thus, as this step operates as an exception to the public disclosure bar and is contingent upon information that is best known by the relator, it is appropriate to place the burden on the relator to prove he qualifies as an original source. Given this, when courts are analyzing the applicability of the public disclosure bar under the Cooper framework, they should place the burden on the defendant to prove the applicability of the bar under steps one and two, then shift the burden to the relator to prove he qualifies as an original source under step three.

In conclusion, following the amendment to the public disclosure bar in 2010, the Eleventh Circuit determined the amended public disclosure bar created grounds for a court to dismiss a case pursuant to FRCP Rule 12(b)(6). The Eleventh Circuit, however, has not specifically enumerated the burden shifting framework courts should use when analyzing the public disclosure bar within the Cooper framework. Considering Eleventh Circuit precedent regarding Rule 12(b)(6) motions and complexities surrounding the Cooper framework’s third step, the defendant should bear the burden of proving the Cooper framework’s first two steps, thus proving the applicability of the public disclosure bar. Once the defendant makes this showing, the burden should shift to the relator to prove he qualifies as an original source under the Cooper framework’s third step.

If you have questions regarding the Eleventh Circuit’s burden shifting framework under the amended public disclosure bar, contact the attorneys at Rabin Kammerer Johnson at (561) 659-7878.

[1] Jeremy Friedman et al., Revisiting the Public Disclosure Bar & Its Original Source Exception, 43 False Cl. Act and Qui Tam Q. Rev. 15 (November 2006).

[2] Id.

[3] Id.

[4] 19 F.3d 562 (11th Cir. 1994).

[5] Id. at 565.

[6] Id.

[7] U.S. ex rel. Osheroff v. Humana Inc., 776 F.3d 805, 810 (11th Cir. 2015) (citing Rockwell Int’l Corp. v. United States, 549 U.S. 457 (2007)).

[8] United States ex rel. Brown v. BankUnited Tr. 2005-1, 235 F. Supp. 3d 1343, 1354 (S.D. Fla. 2017).

[9] Ryon M. McCabe & Robert C. Glass, Florida Updates Qui Tam Whistleblower Statute, 88 Fla. B.J. 35, 37 (2014).

[10] Osheroff, 776 F.3d at 809–10.

[11] 31 U.S.C. § 3730.

[12] Osheroff, 776 F.3d at 809–10.

[13] 776 F.3d 805 (11th Cir. 2015).

[14] Id. at 810.

[15] Id.

[16] Id. at 810–11.

[17] Id. at 811.

[18] Beck v. Deloitte & Touche, Deloitte, Haskins & Sells, Ernest & Young, L.L.P., 144 F.3d 732, 736 (11th Cir. 1998).

[19] Smith v. Athena Constr. Grp., Inc., No. 18-CV-2080 (APM), 2022 WL 888188, at *10 (D.D.C. Mar. 25, 2022).