Grady v. Advanced Mgmt. Tech. , 221 F.3d 580 ( 2000 )

Filed: August 7, 2000
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-2054
(CA-99-339-A)
Alan M. Grayson, etc., et al.,
Plaintiffs - Appellants,
versus
Advanced Management Technology, Inc.,
Defendant - Appellee.
O R D E R
The court amends its opinion filed August 3, 2000, as follows:
On page 2, section 1 -- the counsel information is deleted,
and is replaced with the following:
ARGUED: Daniel Sean Schumack, SCHUMACK RYALS, P.L.L.C.,
Fairfax City, Virginia, for Appellants. Efrem M. Grail,
REED, SMITH, SHAW & MCCLAY, L.L.P., Pittsburgh, Penn-
sylvania, for Appellee. ON BRIEF: L. James D’Agostino,
REED, SMITH, HAZEL & THOMAS, L.L.P., McLean, Virginia,
for Appellee.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ALAN M. GRAYSON, United States ex
rel.; IRA E. HOFFMAN, United States
ex rel.,
Plaintiffs-Appellants,
v.
ADVANCED MANAGEMENT
TECHNOLOGY, INCORPORATED, No. 99-2054
Defendant-Appellee,
and
UNITED STATES OF AMERICA;
GRAYSON & ASSOCIATES, P.C.;
CAMBER CORPORATION,
Parties in Interest.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-99-339-A)
Argued: June 5, 2000
Decided: August 3, 2000
Before NIEMEYER and LUTTIG, Circuit Judges, and
Robert R. BEEZER, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Senior Judge Beezer wrote the opin-
ion, in which Judge Niemeyer and Judge Luttig joined.
COUNSEL
ARGUED: Daniel Sean Schumack, SCHUMACK
RYALS, P.L.L.C., Fairfax City, Virginia, for Appellants.
Efrem M. Grail, REED, SMITH, SHAW & MCCLAY,
L.L.P., Pittsburgh, Pennsylvania, for Appellee. ON
BRIEF: L. James D’Agostino, REED, SMITH, HAZEL
& THOMAS, L.L.P., McLean, Virginia, for Appellee.
_________________________________________________________________
OPINION
BEEZER, Senior Circuit Judge:
Relators Alan Grayson and Ira Hoffman initiated this qui tam suit
on behalf of the United States against Advanced Management Tech-
nology, Inc. ("AMTI") under the False Claims Act, 31 U.S.C.
§§ 3729-3732. The district court concluded that section 3730(e)(4)'s
public disclosure bar deprived the court of subject matter jurisdiction
and dismissed the suit. We have jurisdiction pursuant to 28 U.S.C.
§ 1291. We affirm.
I
The Federal Aviation Administration ("FAA") awarded the Global
Positioning Systems Technical Assistance Contract to AMTI in May
1998. During contract negotiations, AMTI represented that its team
of "key personnel" would include technically qualified and experi-
enced employees of Overlook Systems Technologies, Inc.
("Overlook"). The inclusion of these employees in AMTI's proposal
distinguished AMTI's bid from those of the competing bidders.
AMTI, however, never secured Overlook's participation in the con-
tract's performance.
Two unsuccessful bidders, Camber Corporation and Information
Systems & Networks Corporation ("ISN") protested the contract
award before the FAA's Office of Dispute Resolution for Acquisi-
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tions, alleging among other things that AMTI had obtained the con-
tract through an improper "bait and switch" of its intended
subcontractor, Overlook. The relators in this suit, Grayson and Hoff-
man, provided legal counsel to Camber Corporation during the
administrative proceedings.
On September 3, 1998, the FAA sustained Camber Corporation's
and ISN's protests, concluding that AMTI's misrepresentations
regarding Overlook constituted an impermissible"bait and switch."
The FAA ordered the contract procurement reopened but allowed
AMTI's contract to remain in effect pending completion of the re-
competition. Because the FAA determined that AMTI did not act with
the actual intent to defraud the government, AMTI was permitted to
re-compete for the contract.
II
Grayson and Hoffman, acting in their personal capacity, filed this
qui tam suit in November 1998.* They alleged that AMTI's invoices
for work performed under a contract secured through false statements
constitute false claims for payment under the False Claims Act. See
31 U.S.C. § 3729; Harrison v. Westinghouse Savannah River Co., 176
F.3d 776, 786-88 (4th Cir. 1999). In addition, the relators noted that
AMTI certified that it was in full compliance with the contract when
it sought payment from the government. Grayson and Hoffman
asserted that such a certification represented a false claim under the
False Claims Act because AMTI materially breached the contract by
not providing Overlook employees. See Harrison, 176 F.3d at 786-87.
The district court dismissed the suit, concluding that the public dis-
closure bar, 31 U.S.C. § 3730(e)(4), deprived the court of subject mat-
ter jurisdiction. We review the court's decision de novo. See Folio v.
City of Clarksburg, West Virginia, 134 F.3d 1211, 1214 (4th Cir.
1998).
Section 3730(e)(4)(A) states:
_________________________________________________________________
* The Government declined to intervene. See 31 U.S.C. § 3730(b)(2).
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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.
Dismissal of this suit was proper if the qui tam complaint was 1)
"based upon" information 2) that was "publicly disclosed" and 3)
Grayson and Hoffman were not the "original source" of this informa-
tion. See United States ex rel. Siller v. Becton Dickinson & Co., 21
F.3d 1339, 1346-47 (4th Cir. 1994).
We have interpreted "based upon" to be synonymous with "derived
from." See Siller, 21 F.3d at 1349. The district court determined that
Grayson and Hoffman derived the allegations underlying their qui
tam suit from ISN's administrative complaint lodged on June 22,
1998. As counsel for Camber Corporation, Grayson and Hoffman
filed a supplemental protest with the FAA on July 2, 1998, reciting
the "bait and switch" theory. In the protest on behalf of their clients,
Grayson and Hoffman explicitly stated that they"first learned about
the bases for [their] supplemental protest on June 29, 1998. On that
date Camber first received a copy of the protest filed by Information
Systems & Networks Corp." The allegations in Grayson and Hoff-
man's False Claims Act suit were based upon ISN's protest to the
FAA.
The question remains whether ISN's complaint filed with the FAA
constitutes a "public disclosure." To be publicly disclosed, the infor-
mation must be conveyed "in a criminal, civil, or administrative hear-
ing, in a congressional, administrative, or Government Accounting
Office report, hearing, audit, or investigation, or from the news
media." 31 U.S.C. § 3730(e)(4)(A). We have previously held that a
"civil hearing" encompasses the filing of a civil complaint and that
allegations contained in such a complaint are "publicly disclosed" for
purposes of section 3730(e)(4)(A). See Siller , 21 F.3d at 1350. We
also construe "administrative hearing" to include the filing of an
administrative complaint. Where, as in this case, the filing was not
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under seal and the document was available upon request to the FAA,
the allegations contained in ISN's agency protest were publicly dis-
closed.
Grayson and Hoffman may still bring a False Claims Act suit based
upon publicly disclosed information provided that they are an "origi-
nal source" of this material. They are an "original source" if they have
"direct and independent knowledge of the information on which the
allegations are based and ha[ve] voluntarily provided the information
to the Government before filing [suit]." 31 U.S.C. § 3730(e)(4)(B). "A
putative relator's knowledge is `direct' if he acquired it through his
own efforts, without an intervening agency, and it is `independent' if
the knowledge is not dependent on public disclosure." United States
ex rel. Detrick v. Daniel F. Young, Inc., 909 F. Supp. 1010, 1016
(E.D. Va. 1995) (citing United States ex rel. Springfield Terminal Ry.
Co. v. Quinn, 14 F.3d 645, 656 (D.C. Cir. 1994)).
Grayson and Hoffman have not demonstrated that they had inde-
pendent and direct knowledge of the "bait and switch" allegations
contained in ISN's administrative protest. Grayson and Hoffman, act-
ing as attorneys for Camber Corporation, at best verified ISN's infor-
mation. Such conduct is insufficient to render Grayson and Hoffman
original sources. See United States ex rel. Devlin v. California, 84
F.3d 358, 361 (9th Cir. 1996) (concluding that relators were not origi-
nal source even though they conducted independent investigation to
verify knowledge). Grayson and Hoffman do not become"original
sources" due to their "specialized" experience as government contract
lawyers. See Quinn, 14 F.3d at 655.
Grayson and Hoffman based their qui tam suit on publicly dis-
closed information contained in ISN's administrative complaint.
Because the two relators were not original sources of this information,
section 3730(e)(4)'s public disclosure bar applies. The district court
properly dismissed the suit for lack of subject matter jurisdiction.
AFFIRMED
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