SOTOMAYOR, J., DISSENTING
GRAHAM COUNTY SOIL AND WATER CONSERVATIONDIST. V. UNITED STATES EX
REL. WILSON
559 U. S. ____ (2010)
SUPREME COURT OF THE UNITED STATES
NO. 08-304
GRAHAM COUNTY SOIL AND WATER CONSERVA- TION
DISTRICT, et al., PETITIONERS
v. UNITED STATES ex
rel. KAREN T. WILSON
on writ of certiorari to the united states court of
appeals for the fourth circuit
[March 30, 2010]
Justice Sotomayor, with whom
Justice Breyer joins, dissenting.
The False Claims Act (FCA)
divests federal courts of jurisdiction to hear
qui tam
lawsuits based on allegations or transactions publicly disclosed in
a “congressional, administrative, or Government Accounting Office
[(GAO)] report, hearing, audit, or investigation,” unless the
qui tam relator is an “original source” of the
information. 31 U. S. C. §3730(e)(4)(A) (footnote omitted).
Today, the Court reads the phrase “administrative … report,
hearing, audit, or investigation” to encompass not only federal,
but also state and local, government sources. In my view, the Court
misreads the statutory text and gives insufficient weight to
contextual and historical evidence of Congress’ purpose in enacting
§3730. I would affirm the judgment of the Court of Appeals and hold
that “administrative” in the above-quoted provision refers only to
Federal Government sources.[
Footnote 1]
I
Section 3730(e)(4)(A) sets forth
three categories of “public disclosure[s]” that trigger the FCA’s
jurisdictional bar: “allegations or transactions [1] in a criminal,
civil, or administrative hearing, [2] in a congressional,
administrative, or [GAO] report, hearing, audit, or investigation,
or [3] from the news media.”[
Footnote 2] (Like the majority, I have inserted Arabic
numerals and refer to the three phrases as “categories.”) “It is a
‘fundamental canon of statutory construction that the words of a
statute must be read in their context and with a view to their
place in the overall statutory scheme.’ ”
FDA v.
Brown & Williamson Tobacco Corp.,
529 U. S. 120, 133
(2000) (quoting
Davis v.
Michigan Dept. of
Treasury,
489
U. S. 803, 809 (1989)). No party here disputes that
“congressional” and “[GAO]” refer only to Federal Government
sources.
Ante, at 6, and nn. 5–6. As the Court
acknowledges,
ante, at 5, the word “administrative” is
more capacious, potentially reaching not only federal, state, and
local government sources but also disclosures by private entities.
See,
e.g., Black’s Law Dictionary 42 (5th ed. 1979)
(defining “administrative” as “pertain[ing] to administration,
especially management, … [of] the execution, application or conduct
of persons or things”).
Like the Court of Appeals, I view
Congress’ choice of two “clearly federal terms [to] bookend the
not-so-clearly federal term” as a “very strong contextual cue about
the meaning of ‘administrative.’ ” 528 F. 3d 292, 302
(CA4 2008). “ ‘The maxim
noscitur a sociis, … while
not an inescapable rule, is often wisely applied where a word is
capable of many meanings in order to avoid the giving of unintended
breadth to the Acts of Congress.’ ”
Gutierrez v.
Ada,
528 U.
S. 250, 255 (2000) (quoting
Jarecki v.
G. D.
Searle & Co.,
367 U. S. 303, 307
(1961)). Here, the immediate proximity of “congressional” and
“[GAO]” suggests that “administrative” should be read, like its
neighbors, as referring to Federal Government sources. If Congress
had intended to include state or local government administrative
materials, it could have said so, for instance by referring
generically to “governmental” sources. See 528 F. 3d, at
304–305.
The Court applies the logic that underlies the
noscitur a sociis canon in concluding that
“administrative” does not refer to private entities because of the
meaning suggested by the slightly more distant neighbors “report,
hearing, audit, or investigation.” See
ante, at 5. I agree
with the majority that “administrative” in this context does not
reach private entities. But in my view, “congressional” and “[GAO]”
provide the better textual grounding for that conclusion. I see no
reason why the “administrati[on]” of a private university, for
instance, could not issue a “report,” order an “audit” or
“investigation,” or conduct a “hearing.” Nor, contrary to the
majority’s suggestion, are private entities—particularly those
receiving federal funds or participating in federal
programs—incapable of making “public disclosure[s]” of fraud on the
Federal Government.
Despite its own implicit reliance on the
canon, the Court nevertheless rejects the Court of Appeals’
application of
noscitur a sociis to interpret the three
terms in Category 2, concluding that “[a] list of three items, each
quite distinct from the other no matter how construed, is too short
to be particularly illuminating.”
Ante, at 6–7. The three
terms in Category 2, the Court concludes, are “too few and too
disparate” to justify invocation of
noscitur a sociis.
Ante, at 7. We have not previously constrained the canon
in this way, and I would not do so here.
To take just one example, in
Jarecki
we construed the statutory term “ ‘abnormal income,’ ”
which the statute defined to include income resulting from
“ ‘exploration, discovery, or prospecting.’ ” 367 U. S.,
at 304–305 (quoting §456(a) of the Internal Revenue Code of 1939).
Recognizing that the word “ ‘[d]iscovery’ ” is “usable in
many contexts and with various shades of meaning,” we observed that
it “gathers meaning from the words around it” and concluded that
“[t]he three words in conjunction … all describe income-producing
activity in the oil and gas and mining industries.”
Id.,
at 307. As a result, and in light of other contextual evidence
supporting the same conclusion, we held that sales of newly
invented drugs or camera equipment did not give rise to “abnormal
income” even if such inventions might otherwise be understood as
“discover[ies].” See
id., at 307–313. In my view, the
three terms in Category 2 are no more “distinct” or “disparate,”
ante, at 7, than the phrase at issue in
Jarecki,
particularly given the expansive plain meaning of “discovery.” Cf.
ante, at 7, n. 7. Here, application of the
noscitur a sociis principle readily yields a common
feature: The sources at issue are federal in nature, not related to
state or local governments or private entities. See
Third Nat.
Bank in Nashville v.
Impac Limited, Inc.,
432 U. S. 312, 322–323,
315 (1977) (applying principle that “words grouped in a list should
be given related meaning” where term “ ‘injunction’ ” was
“sandwiched” between two other words in the statutory phrase
“ ‘attachment, injunction, or execution’ ”).[
Footnote 3]
The Court draws additional support for its
conclusion from reference to the provision’s “larger scheme,”
ante, at 8—
i.e., the sources enumerated in
Categories 1 and 3. Although the scope of Category 1 is not before
us today (and although this Court has never addressed that
question), the Court believes that reading Category 2 as limited to
Federal Government sources would be inconsistent with decisions of
lower courts that have interpreted “criminal, civil, or
administrative hearing[s]” in Category 1 to include both state and
federal proceedings. There is no conflict, however, if both
categories are read, as respondent and the Solicitor General urge,
as exclusively federal. See Brief for Respondent 23–24; Brief for
United States as
Amicus Curiae 25–26. Even reading
Category 1 more broadly, however, does not change the exclusively
federal nature of “congressional” and “[GAO],” which undermines
whatever inference might be drawn from taking the statutory terms
in strict succession. Treating the entirety of §3730(e)(4)(A) as an
undifferentiated list of items gives short shrift to the
syntactical choices Congress made in offsetting each category with
commas and prepositions, and in providing distinct classes of
adjectives that modify different nouns.
Finally, the Court also views “news media” as
“distinctly nonfederal in nature.”
Ante, at 8–9. But “news
media” does not seem particularly illuminating in this context. As
the Court of Appeals observed, although media sources may be
national or local in scope, that distinction is not analogous to
the difference between federal and state government sources. 528
F. 3d, at 304.
II
In my view, the statutory context
and legislative history are also less “opaque,” cf.
ante,
at 17, and more supportive of the reading adopted by the Court of
Appeals, than the majority today acknowledges. While the
legislative record is concededly incomplete, it does provide reason
to exercise caution before giving the statutory text its broadest
possible meaning—
i.e., to encompass not only federal, but
also state and local, government sources.
Three points are particularly
salient. First, prior to the 1986 amendments, the “Government
knowledge” bar unquestionably referred only to information in the
possession of the Federal Government.[
Footnote 4] Even still, the bar was criticized as overly
restrictive. A Senate Report on an initial version of the 1986
legislation, for instance, described the FCA’s history and need for
legislative reform, noting “several restrictive court
interpretations of the act … which tend to thwart the effectiveness
of the statute.” S. Rep. No. 99–345, p. 4 (1986)
(hereinafter S. Rep.). For instance, courts had applied the
Government knowledge bar “even if the Government makes no effort to
investigate or take action after … original allegations [a]re
received.”
Id., at 12 (citing
United States ex rel.
Lapin v.
International Business Machines Corp., 490
F. Supp. 244 (Haw. 1980)).[
Footnote 5]
Second, there is more support than the Court
recognizes for the proposition that Congress sought in the 1986
amendments to broaden the availability of
qui tam relief.
The Senate Report characterized the reform effort as intended to
“enhance the Government’s ability to recover losses sustained as a
result of fraud against the Government” and dwelt at length on the
“severe” and “growing” problem of “fraud in Federal programs.”
S. Rep., at 1–2; accord, H. R. Rep. No. 99–660,
p. 18 (1986) (“Evidence of fraud in Government programs and
procurement is on a steady rise”). The Senate Report also
articulated a desire to “encourage any individual knowing of
Government fraud to bring that information forward,” and it
identified as “perhaps the most serious problem plaguing effective
enforcement [of antifraud laws] a lack of resources on the part of
Federal enforcement agencies.” S. Rep., at 2, 7.[
Footnote 6]
Consistent with these expressed views, the
enacted legislation was replete with provisions encouraging
qui
tam actions. By replacing the Government knowledge bar with
the current text of §3730(e)(4)(A) and including an exception for
“original source[s],” Congress “allowed private parties to sue even
based on information already in the Government’s possession.”
Cook County v.
United States ex rel. Chandler,
538 U. S. 119,
133 (2003). The 1986 amendments also established the right of
qui tam relators to continue as a party to a suit after
the Government intervenes, 31 U. S. C. §3730(c)(1) (1988 ed.);
increased the percentage of recovery available as an incentive for
private suits, §3730(d)(1); and created a cause of action against
employers who retaliate against
qui tam relators,
§3730(h).[
Footnote 7]
To be sure, Congress was also concerned in
1986, as in 1943, with guarding against purely opportunistic,
“parasitic”
qui tam relators. See S. Rep., at 10–11
(describing history of parasitic suits and the 1943 amendments);
ante, at 12–13. Lower courts have viewed the 1986
amendments as striking a balance between the “twin goals of
rejecting suits which the government is capable of pursuing itself,
while promoting those which the government is not equipped to bring
on its own.”
United States ex rel. Springfield Terminal R.
Co. v.
Quinn, 14 F. 3d 645, 651 (CADC 1994). But
evidence that Congress sought to balance two competing goals
supports moderation in interpreting an arguably ambiguous statutory
text, rather than woodenly reading the statutory language to its
fullest possible extent.
Third, the legislative record “ ‘contains
no hint of any intention’ ” to bar suits based on disclosures
from state or local government sources. Brief for United States as
Amicus Curiae 20 (quoting
United States ex rel.
Anti-Discrimination Center of Metro N. Y., Inc. v.
Westchester Cty., 495 F. Supp. 2d 375, 383 (SDNY
2007)). Inclusion of state or local government sources would have
constituted a significant departure from the Federal Government
knowledge bar that had existed for four decades by 1986. But
neither the initial bills reported by the Senate and House
Committees nor statements by individual Members of Congress about
subsequent versions of the legislation suggest any consideration or
debate about expanding the pre-1986 bar to apply to state or local
government sources.[
Footnote
8]
Although these points do not definitively
resolve the question presented today, to my mind they counsel
against reading §3730(e)(4)(A) (2006 ed.) so broadly as to disturb
the balance Congress evidently sought to achieve through the 1986
amendments. Today’s decision risks such a result. The Court imposes
a jurisdictional bar that is by all appearances
more
restrictive of
qui tam suits than the pre-1986 regime.
Construing §3730(e)(4)(A) to encompass the thousands of state and
local government administrative reports produced each year
effectively imputes to the Federal Government knowledge of such
sources, whether or not the Government is aware of the information
or in a position to act on it.[
Footnote 9] The Solicitor General specifically warns that
while information in federal administrative audits or
investigations is “readily available” to attorneys at the
Department of Justice, “many state and local reports and
investigations never come to the attention of federal authorities.”
Brief for United States as
Amicus Curiae 22. The Court
dismisses this concern as “sheer conjecture,” postulating that
Government lawyers “may” in fact learn about “quite a few” state or
local reports and investigations, particularly in joint
state-federal programs.[
Footnote
10]
Ante, at 18. Perhaps so. But absent any concrete
reason to believe otherwise, I would not so readily dismiss the
formal representation of the Executive Branch entity with
responsibility for, and practical experience in, litigating FCA
claims on behalf of the United States.
In sum, the statute’s plain text, evidence of
Congress’ intent to expand
qui tam actions, and practical
consequences of a more expansive interpretation together suggest
Category 2 is most reasonably read to encompass federal, but not
state or local, government sources.[
Footnote 11]
* * *
For the reasons given above, I
would affirm the judgment of the Court of Appeals, and respectfully
dissent.
Footnote 1
As the Court notes, recent legislation
amended the language of 31 U. S. C. §3730(e)(4). See
ante, at 1–2, n. 1 (citing Pub. L. 111–148,
§10104(j)(2), 124 Stat. 119). Like the Court, I use the present
tense throughout this opinion in discussing the statute as it
existed at the time this case was argued before this Court.
Footnote 2
As the Court observes, in enacting
§3730(e)(4)(A) Congress erroneously referred to the General
Accounting Office—now renamed the Government Accountability
Office—as the “Government Accounting Office.”
Ante, at 6,
n. 6.
Footnote 3
The Court relies on
Reiter v.
Sonotone Corp.,
442 U. S. 330, 338–339
(1979), for the proposition that we should not “ ‘rob’ ”
any of the three terms in Category 2 of 31 U. S. C.
§3730(e)(4)(A) of “ ‘its independent and ordinary
significance.’ ”
Ante, at 7. But
Reiter
involved the statutory term “business or property.” Those two words
less readily suggest a shared limiting principle than do
“congressional, administrative, or [GAO].” Moreover, our concern
about “rob[bing]” the word “ ‘property’ ” of its broader
meaning rested on a desire not to “ignore the disjunctive
‘or’ ” in the statutory pairing. 442 U. S., at 338–339; see
also
id., at 339 (“Canons of construction ordinarily
suggest that terms connected by a disjunctive be given separate
meanings”). Because Congress did not employ a completely
disjunctive list in §3730(e)(4)(A)—
i.e., “congressional
or administrative
or [GAO]”—the
Reiter
principle applies with less force. Cf.
Garcia v.
United States,
469 U. S. 70, 73 (1984)
(applying disjunctive principle in construing statutory prohibition
on assault and robbery of any custodian of “ ‘mail matter
or of any money
or other property of the United
States,’ ” and observing that “[t]he three classes of property
… are each separated by the conjunction ‘or’ ” (quoting 18 U.
S. C. §2114; some emphasis deleted)).
Footnote 4
As originally enacted in 1943, the bar
applied to suits “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.” 57 Stat. 609. In 1982,
Congress recodified the provision to apply to suits “based on
evidence or information the Government had when the action was
brought.” 96 Stat. 979.
Footnote 5
The Senate Report also discussed
United
States ex rel. Wisconsin v.
Dean, 729 F. 2d 1100
(CA7 1984), in which the court barred Wisconsin from bringing a
qui tam suit for Medicaid fraud because the State had
previously disclosed the information to the Federal Government,
even when the State’s own investigation had discovered the fraud.
S. Rep., at 12–13. Lower courts have observed that the
Dean decision was controversial and appears to have
motivated the inclusion of the “original source” exception in the
1986 jurisdictional bar. See,
e.g., Wang v.
FMC Corp., 975 F. 2d 1412, 1419 (CA9 1992); see also
S. Rep., at 13 (noting resolution by the National Association
of Attorneys General criticizing
Dean and urging Congress
to address the problem).
Footnote 6
In introducing a later and near-final version
of the bill, Senator Grassley described the reform effort as
stemming “from a realization that the Government needs help—lots of
help—to adequately protect taxpayer funds from growing and
increasingly sophisticated fraud.” 132 Cong. Rec. 28580 (1986); see
also
United States ex rel. Siller v.
Becton Dickinson
& Co., 21 F. 3d 1339, 1347 (CA4 1994) (“By 1986, when
section 3730(e)(4) was enacted, Congress had come to the conclusion
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” (internal
quotation marks omitted)).
Footnote 7
See also 1 J. Boese, Civil False Claims and
Qui Tam Actions §1.04[G], p. 1–22 (Supp. 2007)
(“[V]irtually all the changes introduced in th[e] section [of the
1986 amendments addressing
qui tam actions] expanded the
rights of
qui tam relators”). The amendments also
contained a number of provisions facilitating enforcement
generally,
e.g., lowering the requisite showing of intent
by making clear that “knowing” violations require “no proof of
specific intent to defraud,” 31 U. S. C. §3729(b)(1) (1988
ed.); lengthening the statute of limitations, §3731(b); and
authorizing treble damages, §3729(a).
The Court fairly observes that the addition of “news media” to
the jurisdictional bar undercuts attributing to Congress a
“single-minded” intent to expand the availability of
qui
tam relief.
Ante, at 19. But neither does that
provision support reading Category 2 to its broadest possible
extent. Moreover, barring suits based on “news media” disclosures
may not have constituted a particularly significant expansion of
existing law. Courts had applied the pre-1986 Government knowledge
bar to dismiss actions based on information reported in the news
media. In
United States ex rel. Thompson v.
Hays,
432 F. Supp. 253, 256, 255 (DC 1976), the court dismissed a
suit based on evidence “gleaned from sources in the news media
which received widespread public attention [alleging fraud by a
Member of Congress],” when the Department of Justice “first
obtained information regarding the claims … as a result of [a]
Washington Post article.” Similarly, the court in
United States v.
Burmah Oil Co., 558 F. 2d
43, 46, n. 1 (CA2 1977)
(per curiam) characterized
the Government knowledge bar as “discourag[ing] the filing of
actions by parties having no information of their own to
contribute, but who merely plagiarized information in indictments
returned in the courts, newspaper stories or congressional
investigations.” Congress could have reasonably assumed in 1986
that news media would report on the kinds of high-profile frauds
that would naturally—perhaps as a result of the reporting—come to
the Government’s attention, and thus would already have been
covered under existing law.
Footnote 8
In June 1986, the House Committee on the
Judiciary reported a bill that would have barred
qui tam
actions based on information “which the Government disclosed as a
basis for allegations made in a prior administrative, civil, or
criminal proceeding,” “disclosed during the course of a
congressional investigation,” or “disseminated by any news media.”
H. R. Rep. No. 99–660, pp. 2, 3 (internal quotation marks
omitted). The references to information disclosed by the Government
itself (with a capital “G”) and to “congressional investigation[s]”
connote federal, not state or local, government sources. In July,
the Senate Committee on the Judiciary reported its own version of
the bill, barring actions “based upon allegations or transactions
which are the subject of a civil suit in which the Government is
already a party, or within six months of the disclosure of specific
information relating to such allegations or transactions in a
criminal, civil, or administrative hearing, a congressional or
Government Accounting Office report or hearing, or from the news
media.” S. Rep., at 43. The reference to suits in which the Federal
Government is a party and absence of the ambiguous term
“administrative” in the bill’s reference to “congressional or
[GAO]” reports or hearings, similarly tend to exclude disclosures
from state or local government reports. The enacted legislation did
differ in several respects from the reported bills, but the
subsequent legislative record contains no reference to the
inclusion of state or local government sources. See,
e.g.,
132 Cong. Rec. 20535–20537 (statement of Sen. Grassley);
id., at 29321–29322 (statements of Reps. Glickman and
Berman).
Footnote 9
Of course, 31 U. S. C. §3730(e)(4)(A)
(2006 ed.) speaks of “public disclosure,” not notice to the
Government. But the requirement of a “public” disclosure
countenances notice, both to the public and otherwise. Indeed, a
number of lower courts look to whether the Federal Government is
“on notice” of alleged fraud before concluding that a particular
source is a “public disclosure of allegations or transactions”
under §3730(e)(4)(A). See,
e.g., United States ex rel.
Poteet v.
Medtronic, Inc., 552 F. 3d 503, 512 (CA6
2009) (“[A] public disclosure reveals fraud if the information is
sufficient to put the government on notice of the likelihood of
related fraudulent activity” (internal quotation marks omitted));
United States v.
Alcan Elec. & Eng., Inc.,
197 F. 3d 1014, 1020 (CA9 1999) (similar);
United States ex
rel. Fine v.
Sandia Corp., 70 F. 3d 568, 572 (CA10
1995) (similar).
Footnote 10
The Court observes that federal law requires
some recipients of federal funds to conduct audits,
ante,
at 18, n. 18, and
amici States point to the auditing
and reporting requirements of the Single Audit Act of 1984, Brief
for State of Pennsylvania et al. as
Amici Curiae 7–10
(hereinafter States Brief). But neither the Court nor the
amici rebut the Solicitor General’s pragmatic observation
that “the vague and summary nature of many of those reports … does
not … alert the federal government of fraud.” Brief for United
States as
Amicus Curiae 31.
Footnote 11
The majority notes in passing several policy
arguments advanced by petitioners and their
amici.
Ante, at 20, n. 19. None merits much weight.
Petitioners are concerned about a race to the courthouse, in which
parasitic relators will capitalize on information released in a
state or local government report to the disadvantage of a
slow-moving insider. Brief for Petitioners 31. But the FCA’s
first-to-file provision, 31 U. S. C. §3730(b)(5), reflects
Congress’ explicit policy choice to encourage prompt filing and, in
turn, prompt recovery of defrauded funds by the United States.
Amici States are concerned that relators may interfere
with ongoing state and local government investigations by “trolling
state records and reports” for evidence of fraud. States Brief 11.
But some state freedom-of-information laws exempt materials related
to ongoing civil investigations. See,
e.g., Kan. Stat.
Ann. §45–221(a)(11) (2008 Cum. Supp.); Pa. Stat. Ann., Tit. 65,
§67.708(b)(17) (Purdon Supp. 2009). In any event, the FCA contains
no provision giving state or local governments a privileged
position as
qui tam relators or, with respect to local
governments, defendants.
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