U.S. EX REL. WILLIAMS v. NEC CORP.

FAY, Circuit Judge:

This case presents the question of whether a government employee may file a qui tam action under the False Claims Act, 31 U.S.C. §§ 3729-3733 (1988), based upon information acquired in the course of his government employment. Appellant Arthur P. Williams worked as an attorney for the United States Air Force. During the course of his employment with the government, Williams became aware of bidrigging on the part of a corporation seeking telecommunications contracts with the United States. When Williams filed a qui tam complaint, on behalf of the United States, against the corporation allegedly engaged in bidrigging, the United States moved to dismiss the complaint with prejudice to Williams. Maintaining that Williams acquired and developed the information that formed the basis of his complaint during the course of his employment with the Air Force, the United States argued that the False Claims Act jurisdictionally bars any suit by a government employee based upon information acquired in the course of his government employment. The district court granted the government's motion to dismiss for lack of subject matter jurisdiction. For the reasons that follow, we find that nothing in the False Claims Act prohibits a government employee from filing a qui tam action based upon information acquired while working for the government. Therefore, the dismissal of Williams's complaint by the district court was in error.

I. Procedural History

Appellant Arthur P. Williams filed a qui tam complaint on March 30, 1989,1 alleging that Appellee NEC Corporation and its wholly owned subsidiary ("NEC") violated the False Claims Act, 31 U.S.C. §§ 3729-3733. More specifically, Williams's complaint alleged that NEC had engaged in bidrigging in order to obtain government contracts for telecommunications services at United States military bases in Japan. The government filed a Motion to Dismiss Williams's complaint2 for lack of subject matter jurisdiction on May 4, 1989, maintaining that the False Claims Act contained a jurisdictional bar against suits brought by government employees based upon information acquired in the course of their government employment. The district court granted the government's Motion to Dismiss on May 12, 1989.3 Williams appealed the dismissal on August 24, 1989.

II. Factual Background

Arthur Williams worked as an attorney for the United States Air Force.4 Williams was assigned as Chief of the Contracts Law Division, Fifth Air Force, with headquarters at Yokota Air Base, Japan. During the course of his employment with the government, Williams became aware of what his qui tam complaint alleged was bidrigging by NEC Corporation and its wholly owned subsidiary on telecommunications contracts submitted for bid by the United States Government. After investigating the bidding practices of NEC, Williams prepared a report analyzing bidding on telecommunications contracts and describing parallel bidding on those contracts.5 He submitted a copy of the report to his supervising officer, Colonel William R. Elliott on December 12, 1988.6

Williams filed his qui tam complaint on March 8, 1989.7 Pursuant to section 3730(d) of the False Claims Act, which allows the qui tam relator to share in a percentage of any recovery obtained in the qui tam suit, Williams seeks a personal recovery of a percentage of any damages to the United States which resulted from the alleged bidrigging.8

III. The False Claims Act

"The False Claims Act `prohibits false or fraudulent claims to government payment.'" United States ex rel. Weinberger v. Florida, 615 F.2d 1370, 1370 (5th Cir.1980) (quoting United States ex rel. Weinberger v. Equifax, Inc., 557 F.2d 456, 460 (5th Cir.1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 768, 54 L.Ed.2d 782 (1978)).9 The Act was first passed by Congress in 1863, at the request of President Lincoln, in an effort to combat profiteering by Union Army suppliers during the Civil War. Erickson ex rel. United States v. American Inst. of Biological Sciences, 716 F.Supp. 908, 915 (E.D.Va.1989) (citing Act of March 2, 1863, c. 67 12 Stat. 696). The original version of the Act authorized District Attorneys (predecessors to United States Attorneys) to bring suit. Id. In addition, private persons ("relators") were empowered to bring suit under the Act, with the promise of a share of the damages recovered serving as incentive for such private enforcers. Id. "The purpose of the qui tam provision, then as now, was to aid in the effort to root out fraud against the government." Id. (footnote omitted). It has been noted that "`[t]he purpose of the qui tam provisions of the False Claims Act is to encourage private individuals who are aware of fraud being perpetrated against the Government to bring such information forward.'" United States ex rel. Dick v. Long Island Lighting Co., 912 F.2d 13, 18 (2nd Cir.1990) (quoting H.R.Rep. No. 660, 99th Cong., 2d Sess. 22 (1986)) (citing Senate Report at 14, 1986 U.S.Code Cong. & Admin.News 5279 (quoting testimony before Senate Judiciary Committee's Subcommittee on Administrative Practice and Procedure stating that the amended False Claims Act rewards those who "bring ... wrongdoing to light.")).

The language of the original False Claims Act permitted a private relator to initiate suit even though that private individual contributed nothing to the exposure of the fraud alleged. See United States ex rel. Stinson v. Provident Life & Accident Ins., 721 F.Supp. 1247, 1249 (S.D.Fla.1989). In the late 1930's, however, numerous "parasitical suits" were filed in which the relator sued upon information copied from government files and indictments. Id. (citation omitted). Following a ruling by the Supreme Court that the False Claims Act did not specifically prohibit suits brought by relators who obtained their information from government indictments and contributed nothing to the discovery of the fraud alleged, see United States ex rel. Marcus v. Hess, 317 U.S. 537, 545-48, 63 S.Ct. 379, 384-86, 87 L.Ed. 443 (1943), Congress amended the Act in 1943.

Following the Supreme Court's decision in Hess, "[t]he immediate concern of Congress was to do away with these so-called `parasitical suits.'" Pettis ex rel. United States v. Morrisson-Knudsen Co., 577 F.2d 668, 671 (9th Cir.1978) (citing United States v. Pittman, 151 F.2d 851, 854 (5th Cir.1945), cert. denied, 328 U.S. 843, 66 S.Ct. 1022, 90 L.Ed. 1617 (1946); United States v. Rippetoe, 178 F.2d 735, 736 (4th Cir.1949)). As a result, the 1943 Act contained a broad jurisdictional bar against qui tam suits "whenever it shall be made to appear that such suit was based upon evidence or information in the possession of the United States, or any agency, officer or employee thereof, at the time such suit was brought." 31 U.S.C. § 232(C) (Supp. III 1943), 57 Stat. 608 (1943). "Although Congress's immediate concern in enacting the 1943 amendment was to do away with the `parasitical suits' allowed by Hess, the language and effect of the 1943 amendment in fact is much broader." United States ex rel. Wisconsin v. Dean, 729 F.2d 1100, 1104 (7th Cir.1984). After 1943, therefore, government employees were effectively prohibited from bringing suit under the False Claims Act. United States v. CAC-Ramsay, Inc., 744 F.Supp. 1158, 1161 (S.D.Fla.1990); Erickson, 716 F.Supp. at 916.

In 1986, Congress once again amended the False Claims Act. "[F]ollowing a decline in the use of qui tam suits as a weapon in fighting fraud against the government, the 1986 amendments sought to expand the qui tam provisions to `encourage more private enforcement suits.'" CAC-Ramsay, Inc., 744 F.Supp. at 1161 (quoting S.Rep. at 23, U.S.Code Cong. & Admin.News 1986, at 5288); see also United States ex rel. LaValley v. First Nat'l Bank, 707 F.Supp. 1351, 1355 (D.Mass.1988) ("The legislative history in both houses of Congress reveals a sense that fraud against the Government was apparently so rampant and difficult to identify that the Government could use all the help it could get from private citizens with knowledge of fraud."). Eliminating the language of the 1943 Act prohibiting any suit based upon information in possession of the government at the time suit was brought, the 1986 amendments instead grant any private "person" the right to bring a civil action under the Act, subject to four specific exceptions.10

IV. Discussion

It is the jurisdictional requirements of the False Claims Act that are at issue here. We must determine whether the district court was correct in dismissing for lack of subject matter jurisdiction the qui tam suit filed by Williams which was based upon information that he developed while employed as an attorney for the United States Air Force. In so doing, we must also decide the broader question of whether the False Claims Act prohibits government employees from filing qui tam suits based upon information acquired in the course of their government employment. Because we are called upon to review the district court's interpretation of a statute, our review is de novo. Frio Ice, S.A. v. Sunfruit, Inc., 918 F.2d 154, 157 (11th Cir.1990); Keys Jet Ski, Inc. v. Kays, 893 F.2d 1225, 1227 (11th Cir.1990).

"[T]he starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumer Prod. Safety Comm'n v. GTE Sylvania, 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980); see also United States v. Rush, 874 F.2d 1513, 1514 (11th Cir.1989) (citations omitted). Unless the statutory language is ambiguous or would lead to absurd results, the plain meaning of the statute must control. Blue Cross & Blue Shield v. Weitz, 913 F.2d 1544, 1548 (11th Cir.1990); United States v. Kattan-Kassin, 696 F.2d 893, 895 (11th Cir.1983). Thus, "[u]nless exceptional circumstances dictate otherwise, `[w]hen we find the terms of a statute unambiguous, judicial inquiry is complete.'" Burlington N.R.R. v. Oklahoma Tax Comm'n, 481 U.S. 454, 461, 107 S.Ct. 1855, 1860, 95 L.Ed.2d 404 (1987) (quoting Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701-02, 66 L.Ed.2d 633 (1981)).

Where the statutory language is ambiguous, or application of the plain meaning of the statute would lead to absurd results, then a court may look to legislative history in an effort to determine the intent of Congress. Kattan-Kassin, 696 F.2d at 895. The plainer the statutory language, however, the more convincing contrary legislative history must be in order to support a reading of the statute which departs from its plain language. See Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 482-83, 83 L.Ed.2d 472 (1984) ("only the most extraordinary showing of contrary intentions ... would justify a limitation on the `plain meaning' of the statutory language."); United States v. United States Steel Corp., 482 F.2d 439, 444 (7th Cir.), cert. denied, 414 U.S. 909, 94 S.Ct. 229, 38 L.Ed.2d 147 (1973). Thus, the party who seeks to convince a court to adopt a reading of a statute that is at odds with its plain meaning, labors under a heavy burden.

The United States maintains that the qui tam action brought by Williams was properly dismissed because a government employee is barred by section 3730(e)(4)(A) of the False Claims Act from bringing such an action. Section 3730(e)(4)(A) states,

31 U.S.C. § 3730(e)(4)(A) (1988). The United States argues first, that Williams's qui tam action was based on information that was "publicly disclosed" within the meaning of section 3730(e)(4)(A). Secondly, the United States asserts that Williams was not an "original source" of the publicly disclosed information forming the basis of his suit, as that term is defined in section 3730(e)(4)(B) of the Act. In addition, the United States advances the more general proposition that the comprehensive bar against qui tam suits by government employees in the 1943 version of the False Claims Act was never repealed by the 1986 amendments to the Act. And finally, the United States offers several public policy reasons for finding that Congress intended to bar government employees from initiating qui tam suits based upon information acquired in the course of their government employment. For the reasons that follow, we disagree on all counts.

A. Public Disclosure

The United States' argument that Williams's qui tam suit was based on the "public disclosure" of information under section 3730(e)(4)(A), relies on a characterization of government employees as occupying a dual status. According to the United States, as long as the government employee uses official information in his official capacity only, no public disclosure occurs. Brief for United States at 23-24. Once the government employee uses official information outside the scope of his employment, however, he "reverts to a status as a private member of the public." Id. at 24. Under the dual status theory, therefore, when the government employee uses official information as a private citizen, he has disclosed the information to himself so that a "public disclosure" occurs.

Notwithstanding the dubious logic of this dual status argument, it ignores the plain language of section 3730(e)(4)(A), which bars actions based upon information that is publicly disclosed only in certain enumerated instances. Under this section of the Act, actions are prohibited if "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." 31 U.S.C. § 3730(e)(4)(A). As a preliminary matter, we find that the methods of "public disclosure" set forth in section 3730(e)(4)(A) are exclusive of the types of public disclosure that would defeat jurisdiction under that section. The list of methods of "public disclosure" is specific and is not qualified by words that would indicate that they are only examples of the types of "public disclosure" to which the jurisdictional bar would apply. Congress could easily have used "such as" or "for example" to indicate that its list was not exhaustive. Because it did not, however, we will not give the statute a broader effect than that which appears in its plain language.

The United States argues that even if the narrower reading of what constitutes "public disclosure" is adopted, Williams's qui tam action must still be barred because it was based upon information "publicly disclosed" in a government "investigation." Brief for United States at 24 n. 19. Once again, this argument ignores the plain language of the statute. Under section 3730(e)(4)(A), a qui tam action is barred only if based upon information disclosed in "a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation...." 31 U.S.C. § 3730(e)(4)(A). A plain reading of this language reveals that "congressional, administrative, or Government Accounting Office" modifies "report, hearing, audit, or investigation." Any other reading of that phrase would be illogical. Because Williams's report on bidding practices was not issued by Congress, an administrative agency, or out of the Government Accounting Office, therefore, it is not a "public disclosure" within the meaning of section 3730(e)(4)(A).11

Because we find no "public disclosure" under section 3730(e)(4)(A), Williams's qui tam action is not jurisdictionally barred under that section. Therefore, we need not reach the question of whether Williams was an "original source" of the information that formed the basis of his suit. The "original source" inquiry only becomes necessary once a court makes a factual determination that the particular qui tam suit before it was based upon information that was publicly disclosed. See LaValley, 707 F.Supp. at 1366 (court declined to reach original source issue in light of its holding that the complaint before it was not "`based upon a public disclosure'") (quoting 31 U.S.C. § 3730); see also United States ex rel. Stinson v. Blue Cross Blue Shield, 755 F.Supp. 1040, 1050 (S.D.Ga.1990) (where the court found that the suit was not based upon information publicly disclosed, it found it unnecessary to reach the question of whether the relator was an "original source").12 In other words, "[s]ection 3730(e)(4)(A) only requires that the relator be an original source of the information in a public disclosure if the court finds that the relator's action was based upon that public disclosure." LaValley, 707 F.Supp. at 1367.13

In finding that Williams's qui tam action is not jurisdictionally barred by section 3730(e)(4)(A), we also hold that nothing in that section operates to preclude every government employee from bringing a qui tam action based upon information acquired in the course of his government employment. To be sure, a government employee, like any other relator, can be barred from bringing a qui tam action if that action is based upon "publicly disclosed" information and the employee is not an "original source" of that information. But section 3730(e)(4)(A) cannot be used to prohibit all government employees from bringing qui tam actions simply because those actions are based upon information acquired by the government employee in the course of his government employment.14

B. General Prohibition Against Government Employees

The United States also argues that the comprehensive bar against qui tam suits by government employees in the 1943 version of the False Claims Act was never repealed by the 1986 amendments to the Act. We do not agree. We can read no general prohibition against government employees as qui tam plaintiffs into the 1986 False Claims Act, as the United States would apparently have us do. The structure of the 1986 version of the Act and several basic canons of statutory interpretation make it clear that no such general prohibition any longer exists.

A straightforward reading of the 1986 False Claims Act reveals that Congress did not explicitly exclude government employees from the class of proper qui tam plaintiffs. See CAC-Ramsay, 744 F.Supp. at 1160 ("Congress could have chosen to specifically exclude present and/or former government employees from bringing a qui tam action, but Congress did not."); see also Erickson, 716 F.Supp. at 910 ("Congress chose to exclude from the class of permissible qui tam relators only limited groups of persons in certain, defined circumstances"). Furthermore, the structure of the False Claims Act is revealing in that it sets forth a right of any person to bring a qui tam action, and then specifically enumerates certain actions which are barred in section 3730(e). One district court has noted:

Erickson, 716 F.Supp. at 912, 913 (footnote omitted).

Furthermore, this circuit has noted that "[w]hen the legislature deletes certain language as it amends a statute, it generally indicates an intent to change the meaning of the statute." In re Request for Assistance, 848 F.2d 1151, 1154 (11th Cir.1988) (citations omitted), cert. denied sub nom. Azar v. Minister of Legal Affairs, 488 U.S. 1005, 109 S.Ct. 784, 102 L.Ed.2d 776 (1989). Where, as here, the legislature deletes language that contained a general prohibition and replaces it with a grant of jurisdiction followed by certain enumerated exceptions, it is logical for a court to conclude that Congress intended to do away with the general prohibition.

It is also a generally recognized rule of statutory interpretation that a court should interpret a statute so as to give effect to each of its provisions. United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 519-20, 99 L.Ed. 615 (1955); United States v. Rawlings, 821 F.2d 1543, 1545 (11th Cir.), cert. denied, 484 U.S. 979, 108 S.Ct. 494, 98 L.Ed.2d 492 (1987). "[A]ny interpretation which renders parts or words in a statute inoperative or superfluous is to be avoided." Rawlings, 821 F.2d at 1545. To read the False Claims Act to prohibit government employees from initiating qui tam actions based upon information acquired in the course of their government employment, would render superfluous one of the four limits on jurisdiction in section 3730(e) of the Act. The first limit on jurisdiction states that "[n]o court shall have jurisdiction over an action brought by a former or present member of the armed forces under subsection (b) of this section against a member of the armed forces arising out of such person's service in the armed forces." 31 U.S.C. § 3730(e)(1). This exclusion would clearly be unnecessary if, as the government contends, the Act contained a general exclusion against all government employees as qui tam plaintiffs.

In addition, where a statute explicitly enumerates certain exceptions to a general grant of power, courts should be reluctant to imply additional exceptions in the absence of a clear legislative intent to the contrary. See Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17, 100 S.Ct. 1905, 1910-11, 64 L.Ed.2d 548 (1980). As the structure of the False Claims Act makes clear, Congress conferred jurisdiction over suits initiated by any "person" as a qui tam plaintiff, subject to four specific exceptions. We cannot infer an additional exception absent a clear indication by Congress that, notwithstanding the specificity with which it excluded certain classes of potential qui tam plaintiffs, it also meant to bar all government employees as relators. The United States has not presented evidence of such clear congressional intent.15

C. Public Policy Arguments

The United States has offered several public policy reasons for finding that Congress intended to bar government employees from initiating qui tam suits based upon information acquired in the course of their government employment. The essence of the government's public policy arguments is that the False Claims Act should not allow a personal reward to government employees for the "parasitical" use of information obtained and developed in the course of government employment. More specifically, the United States maintains that a "parasitical" suit brought by a government employee based upon government information while a government investigation is under way will prematurely disclose the information in the possession of the government to the defendant, and thereby prejudice the government's case. In addition, the government warns of races to the courthouse in which government employees seek to file suit as private qui tam relators before the Attorney General can file suit on behalf of the United States. Such races, it asserts, would force the Attorney General "to file suits based on facts that are only in a preliminary stage of investigation, with corresponding disclosure to the potential defendant of the existence of the inquiry and undermining of the government's case." Brief for United States at 25. And finally, the United States asserts that government employees should not receive compensation via the False Claims Act for reporting fraud against the government when it is part of their duties as government employees to report such fraud notwithstanding the Act.

We recognize that the concerns articulated by the United States may be legitimate ones, and that the application of the False Claims Act since its 1986 amendment may have revealed difficulties in the administration of qui tam suits, particularly those brought by government employees.16 Notwithstanding this recognition, however, we are charged only with interpreting the statute before us and not with amending it to eliminate administrative difficulties. The limits upon the judicial prerogative in interpreting statutory language were well articulated by the Supreme Court when it cautioned:

Addison v. Holly Hill Fruit Prods., 322 U.S. 607, 617-18, 64 S.Ct. 1215, 1221, 88 L.Ed. 1488 (1944). Congress could have certainly indicated its desire to prevent government employees from filing qui tam suits based upon information acquired in the course of their government employment.17 See In re Davis, 911 F.2d 560, 562 (11th Cir.1990) (Observing that Congress was clearly "capable of drafting a statute which would [state explicitly what appellant argued was implied by legislative history], but it did not. We are a court and not a legislative body; therefore, we are not free to create by interpretation an exception in a statute which is plain on its face."); see also Rawlings, 821 F.2d at 1546 ("Congress, if it wished to do so, could have limited the statute in the manner suggested by appellant.... Congress was not so specific when drafting this statute. We must interpret the statute as it is written, not how appellant wishes Congress had drafted it."). The False Claims Act is devoid of any statutory language that indicates a jurisdictional bar against government employees as qui tam plaintiffs. We also note an absence of any clear indication that Congress intended such a bar to be implied in spite of the plain language of the statute. Therefore, we decline to judicially create an exception where none exists.

V. Conclusion

For the reasons articulated above, we REVERSE the district court's dismissal for lack of subject matter jurisdiction with prejudice against Arthur P. Williams and REMAND for proceedings consistent with this opinion.