In March, we published an article entitled “New Questions Regarding The Jurisdictionality Of The FCA’s Public Disclosure Bar: Potential Hurdles And Increased Costs In Defending Against Parasitic Qui Tam Actions,” The Government Contractor, Vol. 55, No. 12 (Mar. 27, 2013). We explored whether, given the 2010 amendments to the civil False Claims Act (FCA) under the Patient Protection and Affordable Care Act (PPACA), the public disclosure bar1 still implicated a federal court’s subject matter jurisdiction. See P.L. 111-148, title X, § 10104(j)(2), 124 Stat. 119 (2010); 31 USCA § 3729 et seq. (2012). Surveying the few cases to have addressed the issue, we concluded that it was largely an open question. The only opinion to have substantially analyzed the question at that time had concluded that the bar was still jurisdictional. See United States ex rel. Beauchamp v. Academi Training Ctr., No. 1:11-cv-371, 2013 WL 1189707, at *9 (E.D. Va. Mar. 21, 2013).2
Since then, several courts have reached the opposite conclusion. Two have made passing reference to the point in footnotes. See United States v. Chattanooga-Hamilton Cnty. Hosp. Auth., No. 1:10-cv-322, 2013 WL 3912571, at *7 n.6 (E.D. Tenn. July 29, 2013); United States ex rel. Fox Rx, Inc. v. Omnicare, Inc., No. 1:11-cv-962, 2013 WL 2303768, at *8 n.15 (N.D. Ga. May 17, 2013). Another has been more direct, comparing the two versions of the public disclosure bar and concluding that “[a]fter the 2010 amendment, the bar does is [sic] not described as jurisdictional in nature; instead, the statute simply directs that the action or claim be dismissed . . . .” United States ex rel. Paulos v. Stryker Corp., No. 11-0041-cv, 2013 WL 2666346, at *3 (W.D. Mo. June 12, 2013).
Continue Reading The Growing Split Over Whether the FCA’s Public Disclosure Bar is Still a Jurisdictional Limitation