On July 7, 2015, the Court of Appeals for the Ninth Circuit agreed with the majority of its sister Circuit Courts in interpreting what constitutes an original source for the whistleblower provision found in the federal False Claims Act (FCA). The FCA permits private individuals to bring suit on behalf of the government when they are aware of the government being defrauded. However, before a whistleblower can bring suit, the individual must be considered an original source. The Ninth Circuit’s ruling in Hartpence makes it easier for a whistleblower (known as a relator) to qualify as an “original source” under the FCA.
The FCA defines “original source” as “an individual who either (i) prior to a public disclosure . . . has voluntarily disclosed to the Government the information on which allegations or transactions in a claim are based, or (2) who has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions, and who has voluntarily provided the information to the Government before filing an action under this section.”
Therefore, for a person to qualify as an original source the person must meet two criteria. The person (1) must have direct and independent knowledge of the information that gave rise to the claims and (2) must provide the information to the government before the action is filed.
Until the Hartpence decision, the Ninth and Second Circuit held that there was a third criterion that must be met. This third requirement, which was law in the Ninth Circuit for 23 years, was the relator must have had a hand in the public disclosure of the allegations.
This prong of the original source test was produced from an inference drawn from the legislative history of the FCA and was reaffirmed in Meyer, which was also overruled by the Hartpence decision. However, when the Ninth Circuit reviewed this third requirement this past July, the court looked to the statutory language, not the legislative history, and held that the relator need not have played any role in making the disclosure public in order to qualify as an original source.
After The Ninth Circuit’s ruling in Hartpence, the Second Circuit is the only circuit to apply this third prong of the original source test. Therefore, according to every circuit except the Second, the original source test only has two prongs: (1) that the relator have direct and independent knowledge of the information on which their allegations are based and (2) that they voluntarily provide that information to the Government before filing suit.
Because this interpretation makes it easier for private individuals to qualify as an original source, it is now easier for individuals to bring suit on behalf of the government when they are aware of the government being defrauded.
If you are aware of fraud being committed against the federal or state governments, you could be considered an original source and be rewarded for reporting the fraud as a relator under the FCA. If you have any questions about whether you qualify as a whistleblower, please contact an attorney at Beasley Allen for a free and confidential evaluation of your claim.
There are three ways for you to contact an attorney at Beasley Allen. Call the firm at 800-898-2034; fill out the contact form on this website; or email one of the lawyers on our whistleblower litigation team: Andrew Brashier, Archie Grubb, Larry Golston, or Lance Gould.
National Law Review
31 U.S.C. § 3730(e)(4)(B).
Wang v. FMC Corp., 975 F.2d 1412, 1418 (9th Cir. 1992).
U.S. ex rel. Meyer v. Horizon Health Corp., 565 F.3d 1195, 1201 (9th Cir. 2009).
U.S. ex rel. Hartpence v. Kinetic Concepts, Inc., 792 F.3d 1121, 1128 (9th Cir. 2015).