Procedural Barriers to Court

By Reuben Guttman.  Mr. Guttman, a partner at the law firm of Grant & Eisenhofer, heads the firm's whistleblower practice and is founder of the website Whistleblowerlaws, which helps individuals using the False Claims Act to seek compliance with environmental, affirmative action, wage and hour, and "Buy American" requirements. It was cited as an authority by the Chamber of Commerce in its brief in Schindler Elevator Corp. v. U.S. ex rel. Kirk, which the U.S. Supreme Court today issued an opinion. Mr. Guttman is also a Senior Fellow and Adjunct Professor at the Emory Law School Center for Advocacy and Dispute Resolution.

With the heightened pleading standard established by the Supreme Court in Twombly and Iqbal, it must follow that Plaintiffs are entitled to some accommodation in the manner and methods used to muster the facts now required to properly plead a case. Apparently this is not so.

In issuing its 5-3 decision (Justice Kagan did not take part in the decision) in Schindler Elevator Corp. v United States, No. 10-188 (May 16, 2011), the Court held that a whistleblower litigating under the Federal False Claims Act (FCA) does not have standing if his or her claims are based on information secured from a Freedom of Information Act (FOIA) request. The FCA precludes whistleblowers from basing claims on government "reports" and in Schindler, the Court had to decide whether the Government’s response to a FOIA request constituted a government report. Justice Thomas opined that because a response to a FOIA request provides information, it must therefore be a "report" within the meaning of the statute. While this may be good news for college students seeking support for the proposition that a one page document suffices as a term paper or report, it is indeed a blow to whistleblowers seeking redress from private contractors that cheat the government.    

The whistleblower in Schindler, Daniel Kirk, a Vietnam Veteran, claimed that his employer, a government contractor, failed to honor a veterans job preference, which in turn violated a government contract.  In support of efforts to prove his claims, Schindler's wife secured information from the Department of Labor (DOL) through a FOIA request. Mrs. Kirk’s efforts, according to the Court's opinion, proved fatal to the complaint.

The False Claims Act's public disclosure bar is designed to preclude the filing of parasitic lawsuits or lawsuits based on public information readily known to the government. Specifically, the statute bars suits based on government audits and reports. If a government agency issues a report documenting fraudulent conduct by a contractor, it would make sense that a private citizen should not be able to use that report, file a lawsuit, and claim a bounty for bringing attention to that which is already known. But a response to a FOIA request is different. First, as a document generated at the behest of a private citizen, it would never be revealed if the private citizen did not know to ask for it. Second, the document may only provide raw data or information absent any analysis and its relevance may only be understood by the individual seeking the information. As Justice Ginsburg noted in her dissent, quoting the Opinion of the Second Circuit which was reversed, the Department of Labor's responses "did not synthesize the documents or their contents with the aim of itself gleaning any insight or information, as . . . It necessarily would in conducting a 'hearing" or 'audit.' "

The truth is that Daniel Kirk, the relator in Schindler, was doing exactly what the Court in Iqbal and Twombly required of him; he was mustering very precise facts in order to plead a case. And though he may have filled his complaint with some facts secured from the government itself, there is no evidence that the government was able to put the pieces together absent his aide. 

With so much public money being injected into the private sector these days and with insufficient oversight of contractors, does this case -- like other recent Supreme Court decisions -- merit corrective legislation? As Justice Ginsburg noted in her dissent: "[a]fter today's decision, which severely limits whistleblower's ability to substantiate their allegations before commencing suit, that question is worthy of Congress' attention."

EDITOR'S NOTE: This is part of a series of posts about the proposed Sunshine in Litigation Act of 2011. Read guest posts debating the bill here.

Tomorrow the Senate Judiciary Committee will consider the “Sunshine in Litigation Act of 2011,” relating to the disclosure of information relevant to public health or safety that surfaces in civil actions. The bill’s merits have been discussed at length in an ACSblog guest blog post from the American Bar Association (ABA) President Stephen N. Zack and two guest posts from Richard Zitrin, lecturer in law at the University of California, Hastings College of the Law.

In his guest post, Zack faulted the bill, S. 623, as poorly thought out, and one that would, if enacted, greatly hinder the ability of Americans to access the courts. “The ABA is deeply concerned that seeking a day in court will become a luxury item if courts and cases can’t operate with greater efficiency and speed. Problems with federal judicial vacancies and court underfunding already wreak havoc with case schedules and the resulting time it takes to resolve a dispute. These expensive new rules would cost everyone, and make access justice even more of a luxury item.”

Zitrin in his initial guest post lauded the bill as a long overdue measure to ensure that information about defective products and drugs discovered during civil cases becomes quickly available to the public. In a response to Zack’s criticism of the measure, Zitrin followed up with this guest post, faulting the criticism for missing the point and for not addressing the substantive issue the measure is intended to address.

Thomas M. Susman, director of the ABA’s Governmental Affairs Office told ACSblog, “Professor Zitrin recently mistakenly wrote that the ABA does not have substantial objections to S. 623, the Sunshine in Litigation Act. In fact, today the ABA sent a detailed letter outlining its serious concerns regarding the impact of this bill.”

The ABA’s letter to the Senate Judiciary Committee is available here.

The 12-page letter to the Senate Judiciary Committee Chairman Patrick Leahy and Ranking Member Charles Grassley builds the case that the Sunshine in Litigation Act, like similar efforts before it, would amend current civil procedural rules to the detriment of litigants and cases.

The letter reads, in part:

Bills that would amend the Civil Rules to regulate the issuance of protective orders in discovery, similar to S. 623, have been introduced regularly since 1991. Like S. 623, these proposed bills would require courts to make particularized findings of fact that a discovery protective order would not restrict the disclosure of information relevant to the protection of public health and safety.