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Justice Clarence Thomas Wrote the Schindler Decision

Justice Clarence Thomas wrote the majority opinion holding that Freedom of Information Act request responses constitute “reports,” relators who rely on FOIA request responses can fall prey to the public disclosure bar of the False Claims Act.  The Court issued the opinion in Schindler Elevator Corp v. United States ex rel. Kirk on May 16, 2011. Justice Ginsburg filed the dissenting opinion, in which Justices Breyer and Sotomayor joined.

Relator Daniel Kirk, a military veteran, worked for Schindler Elevator from 1978 to 2003.  He resigned in September 2003 saying that the company had forced him out.  Kirk filed his False Claims action in 2005.  In an amended complaint in 2007, Kirk alleged that Schindler has improperly submitted for payment hundreds of false claims to the government because Schindler had certified it was in compliance with VEVRAA reporting requirements.  Kirk alleged the certification of compliance was false.

Relator Kirk sought verification that his allegations were correct by asking his wife to ask for Schindler’s reporting information through a FOIA request.  Mrs. Kirk made three requests, and DOL responded with information that showed the reports were not filed for several years in question.

Schindler asked the Court to dismiss the case on the ground that the verification information Mrs. Kirk obtained through the FOIA requests was a “public disclosure.” Under the pre-existing public disclosure rules, whistleblower claims could be dismissed if the relator was found to have “based” the allegations on specified types of publically available information.  In Schindler, J. Thomas said that a FOIA response = a report = a public disclosure.  He left open the question of whether or not Mr. Kirk based his allegations on those FOIA responses.

False Claims actions can be complicated, and the statute requires a whistleblower to be represented by an attorney.  For a free consultation on a potential government fraud claim, please call Kenney & McCafferty, P.C. today.