Based upon: deriving plain meaning from the False Claims Act's jurisdictional bar.

• Author: Ursprung, Jonathan Peirce

INTRODUCTION I. DEFINING THE PROBLEM II. THE PLAIN LANGUAGE OF THE STATUTE A. Why Linguistic Analysis of the PDJB B. The Model C. Application of the Model to the PDJB 1. Determining the Semantic Content of "Based Upon" 2. Building the Syntactic Structure a. The Right-Hand Argument of "Based Upon" i. "Allegations or Transactions" ii. "The Public Disclosure of Allegations or Transactions" iii. "Based Upon the Public Disclosure of Allegations or Transactions". b. The Left-Hand Argument of "Based Upon" c. Resolving the Meaning of the PDJB III. THE NONTEXTUAL RATIONALE FOR ADOPTING THE MINORITY RULE A. The Majority Case B. The Minority Case C. Putting It Together CONCLUSION INTRODUCTION

The "public disclosure" jurisdictional bar (PDJB) to the False Claims Act (FCA) (1) limits federal jurisdiction over qui tam actions. The PDJB states in part that "[n]o court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions." (2) The purpose of this section is to prevent "parasitic" lawsuits (3)--suits brought by individuals who have no real connection to the underlying dispute between the government and a private contractor that are filed in hopes of reaping a large reward under the damage-sharing provision of the FCA. (4) However, in giving effect to the PDJB, the courts of appeals have split over precisely when an action should be considered "based upon" a public disclosure.

There are two competing interpretations of the PDJB: The majority of circuits interpret the provision to bar any action supported by the same information that has been publicly disclosed. (5) The minority view gives weight to the source of the information--it requires that the action "both depend[] essentially upon publicly disclosed information and [be] actually derived from such information." (6) Through careful and rigorous analysis of both the statutory language and the purpose that it serves, this Comment argues that the minority rule is both the only natural reading of the statute and the most effective implementation of congressional intent.

This Comment first defines the problem clearly. Part II then considers the statutory text within a rigorous analytic framework adopted from the field of linguistics. As linguistic analysis may be unfamiliar to many readers, this Part is accompanied by a discussion of the value of linguistics to statutory interpretation and a description of the analytical model. Following the textual analysis, the Comment, in Part III, examines other, nontextual considerations in interpreting the PDJB. The analysis concludes that the minority rule represents both the best statutory interpretation and the most sound policy implementation.

1. DEFINING THE PROBLEM

   This Comment considers actions brought under the FCA by individuals who have direct, independent knowledge of transactions that have been publicly released by another source. The structure of the PDJB is twofold: first, it establishes those actions over which federal jurisdiction is denied, (7) and second, it creates exceptions to this denial for actions brought by the Attorney General or an "original source" of the publicly released information underlying the action. (8) At first blush, the "original source" exception appears to cover the case of an individual who sues on information obtained independently of a public release. (9) Indeed, the language defining an "original source" provides further support for this reading: "'[O]riginal source' means an individual who has direct and independent knowledge of the information on which the allegations are based...." (10)

   Despite the above discussion, there are several reasons to prefer treating this Comment's hypothetical whistleblowers as entirely outside the reach of the PDJB, rather than as original source exceptions:

   1. The statutory language states that the PDJB does not reach these actions. While in many instances the phrasing of the jurisdictional bar is quite unclear and ambiguous, (11) on this particular point it is clear. And although the definition of an "original source" may include all individuals with independent knowledge of facts supporting the action, the analysis need not reach that question if the action is not barred by the PDJB in the first place.

   2. The statutory purpose of encouraging whistleblowers to come forward is served only when those whistleblowers are actually able to recover. By subjecting these actions to "original source" jurisprudence, the likelihood of recovery--and therefore of whistleblowing--is decreased because whistleblowers must meet a heightened requirement at all stages of litigation. (12)

   3. Exempting these actions from the PDJB reduces a contractor's incentive to strategically disclose damaging information in a convoluted form, in order to prevent potentially whistleblowing employees from filing suit. (13)

   This Comment therefore proceeds under the assumption that the "original source" exception is not the appropriate solution to the problem and argues that the PDJB simply does not apply to cases where the plaintiff has obtained information independently of the public disclosure. (14)

2. THE PLAIN LANGUAGE OF THE STATUTE

   It is perhaps tautological to state that, when one considers the legislative acts of Congress, "the plain language of the enacted text is the best indicator of intent." (15) Indeed, whenever an individual speaks, the listener's natural response is to determine the meaning of the speech and attribute that meaning to the speaker as her "intent." Without such a system of assigning meaning and intent, communication would be impossible, regardless of whether the speech at issue is spoken in conversation or written in the United States Code. Speech in any form is, however, rarely precise enough to yield only one interpretation, which can make intent quite difficult to find. On this point, the field of linguistics can provide very useful tools to determine when language is--or is not--ambiguous. Employing these tools, one can see that, despite the disagreement over its proper interpretation, the linguistic interpretation of the PDJB is unambiguously clear.

   This Part considers the so-called plain meaning of the PDJB in a novel, systematic way. Rather than comparing dictionary definitions, this approach relies on a model for the technical linguistic analysis of statutory language. (16) The first section provides a background argument for why linguistic analysis bears on plain-language statutory interpretation. The second section lays the foundation for the model, which is built on relatively simplified linguistic principles. The final section applies the model to the PDJB's statutory text, demonstrating that the minority rule truly "holds the trump card, the plain-language interpretation." (17)

   1. Why Linguistic Analysis of the PDJB

      Given the current proclivity of the Court towards "plain meaning" interpretation of statutory law, (18) and the disarming proposition that plain meaning is derived from "common sense," (19) it is perhaps unsurprising that opinions relying heavily on plain meaning are also heavy on intuition and Webster's Third, (20) but light on analytical rigor. (21) A more rigorous analysis is, however, possible. Human linguistic intuition is not only susceptible to technical study, but it is actually understood quite well. (22) Further, the emphasis on "plain meaning" in the context of statutes is misplaced. Human language is a complex system capable of infinite meaning (23) and riddled with ambiguity--yet, despite this complexity, the speaker's intended meaning is usually discerned by her audience. (24) As the context shifts from that of a single speaker orating to an audience toward the speech-by-committee model of the legislature--where words are written rather than spoken--the ability of the audience to discern intent is notably diminished. (25) Thus, the courts' ability to intuit "plain meaning" from legislation is strained. And if achieving the "correct" reading of complicated language is a goal of the legal system, the judiciary ought to consider the technical nature of that work and adopt the appropriate tools. This consideration is no more than is asked of courts in other areas. For example, any court could reasonably intuit how much compensation would be appropriate for lost future wages, yet the public--practitioners, juries, and observers--insists upon actuarial calculus in reaching enforceable judgments. (26)

      The PDJB has been subject to much intuitive linguistic scrutiny by the federal courts. The meanings of many words and phrases--notably "information," "allegations," and "transactions"--have been questioned and challenged in the Supreme Court, (27) and at least one court of appeals has considered the meanings of these terms separately. (28) This scrutiny, however, has been conducted with no indication of which analytical method was being imposed. The existing circuit split over the interpretation of "based upon" makes the PDJB a timely subject for consideration under a linguistic model.

      In the past, academics with formal training in law and linguistics have often shied away from the use of linguistics as a decision rule in the judicial process. (29) Perhaps more to the point, there has been (and remains) great concern that judges will--and often do--apply incorrect linguistic analysis to the case at hand, making it appear that their decision is grounded in plain meaning when in fact neither intuition nor scientific analysis of the text supports the decision. (30) This problem is compounded when the level of "linguistic analysis" performed by courts rarely rises above "dictionary shopping." (31) However, the fact remains that the Supreme Court is moving in the direction of plain meaning analysis. (32) Any argument against the use of plain meaning, given the Court's current support for this technique, would be an exercise in futility. (33) One could have made...