US ex rel Beauchamp v. Academi

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:11-cv-00371-TSE-TRJ. [999762013]. [15-1148]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1148

UNITED STATES ex rel. LYLE BEAUCHAMP; UNITED STATES ex rel.
WARREN SHEPHERD,
Plaintiffs – Appellants,
v.
ACADEMI TRAINING CENTER, LLC., f/k/a U.S. Training Center
Inc., f/k/a USTC,
Defendants – Appellees,
and
XE SERVICES LLC, f/k/a EP Investments LLC, d/b/a Blackwater
Worldwide; U.S. TRAINING CENTER INC., (“USTC”); USTC
HOLDINGS LLC,
Defendants.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
T. S. Ellis, III, Senior
District Judge. (1:11-cv-00371-TSE-TRJ)

Argued:

October 29, 2015

Decided:

February 25, 2016

Before TRAXLER, Chief Judge, and AGEE and DIAZ, Circuit Judges.

Vacated and remanded by published opinion. Judge Agee wrote the
opinion, in which Chief Judge Traxler and Judge Diaz joined.

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ARGUED: William Edgar Copley, III, WEISBROD MATTEIS & COPLEY
PLLC, Washington, D.C., for Appellants.
Tara Melissa Lee, DLA
PIPER LLP(US), Reston, Virginia, for Appellees. ON BRIEF: Janet
L. Goetz, Susan M. Sajadi, William E. Jacobs, WEISBROD MATTEIS &
COPLEY PLLC, Washington, D.C., for Appellants. Joseph C. Davis,
Reston,
Virginia,
Courtney
G.
Saleski,
Philadelphia,
Pennsylvania, Paul D. Schmitt, DLA PIPER LLP(US), Washington,
D.C., for Appellees.

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AGEE, Circuit Judge:
Lyle

Beauchamp

complaint

alleging

(“Academi”)

and

Warren

that

knowingly

Shepherd

Academi

submitted

(“Relators”)

Training

false

filed

Center,

claims

to

the

a

Inc.
United

States under the False Claims Act (“FCA”), 31 U.S.C. §§ 37293733,

in

connection

with

a

government

contract

security services in Iraq and Afghanistan.

to

provide

Citing the FCA’s

public-disclosure bar, which generally prohibits FCA suits based
on allegations that have already entered the public domain, 31
U.S.C. § 3730(e)(4), the district court dismissed the complaint.
The primary question presented on appeal is whether the district
court

correctly

disclosure

it

applied
found

§ 3730(e)(4)

preclusive,

a

when

the

magazine

sole

public

article,

was

published more than a year after Relators first pled the alleged
fraud.

For

disclosure

the

bar

reasons

that

inapplicable

in

follow,
this

we

case.

find

the

public-

Accordingly,

we

vacate the judgment of the district court and remand the case
for further proceedings.

I.
To place the controversy before us in context, we start
with the relevant statutory framework.

Enacted during the Civil

War to prevent fraud by military contractors, the FCA imposes
civil liability on persons who knowingly submit false claims for
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goods and services to the United States.

31 U.S.C. § 3729; see

also U.S. ex rel. Springfield Terminal Ry. Co. v. Quinn, 14 F.3d
645, 649 (D.C. Cir. 1994) (discussing the statute’s history).
To encourage the disclosure of fraud that might otherwise escape
detection, the FCA permits private individuals, denominated as
relators, to file qui tam 1 actions on behalf of the government
and

collect

§ 3730(b).
seal

and

a

bounty

from

any

recovery.

See

31

U.S.C.

The relator must file his or her complaint under
notify

the

government,

who

allow the relator to proceed alone.
Although

designed

to

can

either

intervene

or

Id.

incentivize

whistleblowers,

the

FCA

also seeks to prevent parasitic lawsuits based on previously
disclosed fraud.

See U.S. ex rel. Wilson v. Graham Cty. Soil &

Water Conservation Dist., 777 F.3d 691, 695 (4th Cir. 2015).

To

balance these conflicting goals, Congress has set careful limits
on qui tam suits.
which

disqualifies

Pertinent here is the public-disclosure bar,
private

suits

based

on

fraud

already

disclosed in particular settings -- such as hearings, government
reports,

or

news

reports

--

unless

1

the

relator

meets

the

“Qui tam” is shorthand in current legal usage for the
Latin phrase “qui tam pro domino rege quam pro se ipso in hac
parte sequitur,” which means “who pursues this action on our
Lord the King’s behalf as well as his own.” Vt. Agency of Nat.
Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 768 n.1 (2000).
4

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definition of an “original source” under the FCA.

31 U.S.C.

§ 3730(e)(4).
Two versions of the public-disclosure bar are relevant to
this appeal given the timeframe of the alleged underlying fraud.
In 2007, when the alleged scheme began, the statutory limitation
read as follows:
No court shall have jurisdiction over an
action under this section 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,
unless the action is brought by the Attorney
General or the person bringing the action is
an original source of the information.
31 U.S.C. § 3730(e)(4)(A) (2005).

We interpreted this version

of the public-disclosure bar “as a jurisdictional limitation -the public-disclosure bar, if applicable, divest[s] the district
court of subject-matter jurisdiction over the action.”

U.S. ex

rel. May v. Purdue Pharma L.P., 737 F.3d 908, 916 (4th Cir.
2013).
Congress amended the FCA, effective March 23, 2010, and
revised several parts of the public-disclosure bar.
914.

See id. at

Post-amendment, the provision provides:
The court shall dismiss an action or claim
under this section, unless opposed by the
Government,
if
substantially
the
same
allegations or transactions as alleged in
the action or claim were publicly disclosed—
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(i) in a Federal criminal, civil, or
administrative hearing in which the
Government or its agent is a party;
(ii) in a congressional, Government
Accountability Office, or other Federal
report,
hearing,
audit,
or
investigation; or
(iii) from the news media,
unless the action is brought by the Attorney
General or the person bringing the action is
an original source of the information.
31 U.S.C. § 3730(e)(4)(A) (2010).
We

have

described

the

2010

amendments

as

“significantly

chang[ing] the scope of the public-disclosure bar.”
F.3d at 917.
the

Among other things, the revised statute deleted

“jurisdiction-removing

§ 3730(e)(4)

May, 737

and

jurisdictional

replaced

phrase,”

language
it

with

making

it

previously
a

contained

generic,

“clear

in

not-obviously-

that

the

public-

disclosure bar is no longer a jurisdiction-removing provision.”
Id. at

916.

Post-amendment,

the

public-disclosure

bar

is

a

grounds for dismissal -- effectively, an affirmative defense -rather than a jurisdictional bar.

See U.S. ex rel. Osheroff v.

Humana, Inc., 776 F.3d 805, 810 (11th Cir. 2015) (“We conclude
that the amended § 3730(e)(4) creates grounds for dismissal for
failure

to

state

a

claim

rather

jurisdiction.”).

6

than

for

lack

of

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The amended statute also changed the required connection
between the plaintiff’s claims and the public disclosure.

Under

the prior version, a qui tam action was barred only if it was
“based

upon”

interpreted

a
to

qualifying
mean

that

public
the

disclosure,

plaintiff

must

a

standard

have

we

“actually

derived” his knowledge of the fraud from the public disclosure.
U.S. ex rel. Siller v. Becton Dickinson & Co., 21 F.3d 1339,
1348 (4th Cir. 1994), superseded on other grounds as recognized
in May, 737 F.3d at 917.

“As amended, however, the public-

disclosure bar no longer requires actual knowledge of the public
disclosure,

but

instead

applies

if

substantially

the

allegations or transactions were publicly disclosed.”

same

May, 737

F.3d at 917. 2
Against this backdrop, we now turn to the case before us.

II.
A.
In
provide

2005,

the

security

stationed

across

U.S.

Department

services
the

for

Middle

of

State

officials
East.

The

hired

and

Academi

embassy

agreement

to

workers
required

Academi’s personnel to maintain a certain degree of proficiency

2

We have omitted internal quotation marks, alterations, and
citations here and throughout this opinion, unless otherwise
noted.
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with

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several

firearms

and

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called

for

Academi

to

submit

marksmanship scores to the State Department on a regular basis.
Specifically,

each

security

contractor

was

required

to

periodically qualify at a set level of proficiency with (i) the
Glock 19 pistol, (ii) the Colt M4 rifle, (iii) the Remington 870
shotgun, (iv) the M240 belt-fed machine gun, and (v) the M249
belt-fed machine gun.
Relators,

both

former

security

contractors

with

Academi,

filed their complaint in the Eastern District of Virginia in
April 2011.
Academi

In the initial complaint, Relators alleged that

submitted

false

reports

and

bills

to

the

State

Department for contractors employed in positions in which they
did not actually work and also defrauded the State Department by
requesting
complaint

payment
was

filed

for

unissued

under

equipment.

seal,

Government as required by the FCA.

with

The

notification

initial
to

the

See 31 U.S.C. § 3730(b)(2).

Shortly thereafter, on May 24, 2011, Relators filed their
first-amended

complaint.

Relevant

here,

Relators

added

new

allegations of a separate fraudulent scheme that, from April
2007 through April 2011, Academi routinely failed to qualify its
contractors on two of the required weapons

-- the M-240 and M-

249 belt-fed machine guns -- and fabricated scorecards showing
proficiency
Department.

with

these

firearms

for

submission

to

the

State

As a result, the first-amended complaint alleged
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that

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Academi

security
tested

fraudulently

services
for,

scores

less

(hereinafter,

Relators

billed

performed

much

provided

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by

the

“weapons

specific

State

contractors

achieved,
the

the

dates

Department

who

had

requisite

not

the

been

marksmanship

qualification
of

for

scheme”).

alleged

weapons

qualification scheme and maintained that they, personally, were
never certified with these weapons during their deployments.
While Relators’ first-amended complaint remained pending,
two former firearm instructors with Academi, Robert Winston and
Allan

Wheeler,

contacted

Relators’

counsel

with

information about the weapons qualification scheme.

additional
Eventually,

Winston and Wheeler filed a separate lawsuit against Academi
(the

“Winston

complaint”),

alleging

they

were

wrongfully

terminated from their employment with Academi for reporting the
weapons

qualification

scheme

up

the

chain

of

command.

See

Winston v. Academi Training Ctr., Inc., No. 1:12cv767, ECF No. 1
(E.D. Va. July 12, 2012).

The Winston complaint detailed the

State

the

Department

contract,

requirements,

and

marksmanship

testing.

weapons

Academi’s
Id.

failure
Notably,

qualification
to

conduct

however,

the

testing
proper
Winston

complaint was not filed as a qui tam action, so its allegations
were not under seal and were thus available to the public from
the date of its filing.

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The

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Winston

complaint

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generated

media

attention,

and

on

July 16, 2012, an online news publication, Wired.com, published
a story about the case.

See Spencer Ackerman, Mercenaries Sue

Blackwater Over Fake Gun Tests, Wired (July 16, 2012, 4:00 AM),
http://www.wired.com/2012/07/blackwater-lawsuit/.

The

article

described the Winston plaintiffs’ allegations of retaliation and
the

weapons

Academi

qualification

“falsif[ied]

scheme,

dozens

security contractors.”

Id.

of

specifically

marksmanship

explaining

tests

for

how

[its]

The article also mentioned by name

the Relators’ pending qui tam suit.
Ultimately,
Relators’

case

the
and

it

Government
was

declined

unsealed.

to

Relators

intervene
then

filed

in
a

second-amended complaint on November 19, 2012, which became the
operative pleading.

In addition to inserting non-qui tam claims

that are not relevant on appeal, the second-amended complaint
expanded the allegations as to the weapons qualification scheme
by adding a number of paragraphs from the Winston complaint that
further

detailed

the

State

Department

contract

and

Academi’s

alleged failure to meet its weapons testing requirements.
B.
Academi moved to dismiss Relators’ qui tam claims under the
first-to-file and public-disclosure bars, as well as for failing
to

meet

the

pleading

Procedure 9(b).

requirements

of

Federal

Rule

of

Civil

See Harrison v. Westinghouse Savannah River
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Co., 176 F.3d 776, 783–84 (4th Cir. 1999) (explaining that suits
brought under the FCA sound in fraud, and thus are “subject to
Federal

Rule

of

Civil

Procedure

9(b),

which

requires

that

claimants plead fraud with particularity”).
The district court granted Academi’s motion.

Specifically,

the court rejected the weapons qualification scheme under the
public-disclosure bar. 3

Using the post-2010 amended version of

the FCA, the court first determined that the Wired.com article
was

a

“public

statute.
933

F.

disclosure”

as

that

term

is

defined

in

the

U.S. ex rel. Beauchamp v. Academi Training Ctr., Inc.,
Supp.

2d

825,

845

(E.D.

Va.

2013).

With

that

prerequisite established, the court then turned to the timing of
the article’s disclosure, noting it must precede Relators’ suit
in

order

to

function

as

a

bar.

Id.

Because

Relators

had

amended their complaint several times, the issue became which
was the proper pleading for purposes of the statutory timing
benchmark.

Citing

Rockwell

International

Corp.

v.

United

States, 549 U.S. 457 (2007), the district court determined that
only the most recent complaint was relevant to this analysis.
See Beauchamp, 933 F. Supp. 2d at 845 (“The public disclosure
bar

inquiry

applies

to

‘the

3

allegations

in

the

original

The district court also dismissed Relators’ other claims
on the merits.
See Beauchamp, 933 F. Supp. 2d at 841-43.
Relators have not challenged those decisions in this appeal.
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complaint as amended[,]’ [and thus] ‘courts look to the amended
complaint

to

determine

Relators’

last

pleading

jurisdiction.’”).
--

the

Observing

second-amended

that

complaint

--

postdated the Wired.com article, the court concluded that the
article

was

a

qualifying

disclosure bar applied.

public

disclosure

so

the

public-

Id.

The court then considered whether Relators were nonetheless
protected under the original source exception.

The court found

this exception inapplicable because Relators failed to disclose
Academi’s

fraud

statute.
In

to

the

government

in

accordance

with

the

Id. at 845-46.
light

of

those

determinations,

the

district

declined to address Academi’s Rule 9(b) arguments.
846 n.40.

court

See id. at

This appeal followed, and we have jurisdiction under

28 U.S.C. § 1291.

III.
Relators’ appeal is limited to the weapons qualification
scheme

and

the

disclosure bar.
when

it

found

district

court’s

application

of

the

public-

They first argue that the district court erred
the

Wired.com

article

12

was

a

qualifying

public

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disclosure. 4
triggered
amended
scheme.

the

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Relators
bar

complaint

Pg: 13 of 26

contend

because
initially

it

was

this

story

published

alleged

the

could
after

weapons

not
the

have
first-

qualification

On this point, they specifically dispute the district

court’s conclusion that Rockwell “requir[ed] it to consider only
the most recent complaint to determine when Relators alleged
Academi’s [scheme] for purposes of § 3730(e)(4)(A).”

Opening

Br.

if

32-22.

Alternatively,

Relators

argue

that,

even

the

district court was correct regarding the Wired.com article, the
public-disclosure bar does not apply here because Relators’ suit
falls under the original source exception. 5

4

The phrase “qualifying public disclosure” is a term of art
used to identify a public disclosure that meets the statutory
requirements of § 3730(e)(4)(A) and therefore triggers the bar.
See May, 737 F.3d at 919-20.
5 The parties agreed below, and the district court applied,
the post-amendment public-disclosure bar as the appropriate
statutory framework.
Academi now contests its application in
light of intervening precedent holding that the 2010 FCA
amendments should not be employed retroactively.
See May, 737
F.3d at 917-18.
Academi argues that because its alleged fraud
spans 2010, the district court should “have split the public
disclosure analysis between the current and former versions of
the [public-disclosure bar] depending upon [when the] conduct
occurred.”
Response Br. 17-18.
Academi concedes that it did
not raise this issue below but contends we should reach it now
by applying, in the first instance, the pre-amendment publicdisclosure bar to the pre-March 23, 2010 allegations.
Ordinarily, Academi’s concession would constitute waiver of
the issue and preclude our review. See United States v. Evans,
404 F.3d 227, 236 n.5 (4th Cir. 2005). However, we do not find
waiver here since there could be jurisdictional implications.
See May, 737 F.3d at 916 (“Under the prior version of the
statute, § 3730(e)(4) operated as a jurisdictional limitation -(Continued)
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A.
The public-disclosure bar aims “to strike a balance between
encouraging

private

persons

to

root

out

fraud

and

stifling

parasitic lawsuits” in which a relator, instead of plowing new
ground, attempts to free-ride by merely reiterating previously
disclosed

fraudulent

acts.

Graham

Cty.

Soil

&

Water

Conservation Dist. v. U.S. ex rel. Wilson, 559 U.S. 280, 295
(2010).

In line with this objective, the bar applies only when

information exposing the fraud has already entered the public
domain prior to the relator’s suit.

Id. at 296 n.16 (explaining

that “parasitic lawsuits” arise when “those who learn of the
fraud through public channels . . . seek remuneration although
they contributed nothing to the exposure of the fraud”).
courts

considering

whether

the

public-disclosure

bar

Hence,
applies

must resolve, among other things, when the public disclosure
occurred in relation to the relator’s claims.

U.S. ex rel. Gear

v. Emergency Med. Assocs. of Ill., Inc., 436 F.3d 726, 728 (7th

the public-disclosure bar, if applicable, divested the district
court
of
subject-matter
jurisdiction
over
the
action.”).
Nonetheless, while subject matter jurisdiction issues may exist
in other cases regarding which version of the FCA applies, that
distinction does not affect the resolution of this case.
Even
conceding Academi is correct as to bifurcating the analysis of a
claim which spans the amendment of the statute, the district
court’s decision below was erroneous under either version of the
public-disclosure bar.
Thus, we need delve no further into
Academi’s arguments on this point.
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Cir. 2006) (“The first issue, then, is whether the information
on which the complaint is based was already publicly disclosed
when [the relator] filed his complaint.”).
The parties agree that the Wired.com article is a “public
disclosure” as that term is statutorily defined under either the
pre- or post-amendment version of the FCA. 6

See Malhotra v.

Steinberg, 770 F.3d 853, 858 (9th Cir. 2014) (“[T]he existence
of a public disclosure is a threshold condition for application
of the bar.”).

We also agree.

Thus, if the Wired.com article

came later than the applicable part of Relators’ claims, the
public-disclosure bar has no application here.
It is undisputed that Relators initially pled the weapons
qualification scheme in their first-amended complaint more than
a

year

before

however,

the

Relators

Wired.com
filed

a

story.

Following

second-amended

that

complaint

article,
that

re-

alleged this fraud and added further detail about it gleaned
from

the

article.

Academi

argued,

and

the

district

court

agreed, that under the Supreme Court’s decision in Rockwell,

6

Courts have unanimously construed the term “public
disclosure” to include websites and online articles.
See
Schindler Elevator Corp. v. U.S. ex rel. Kirk, 563 U.S. 401, 408
(2011)
(“The
other
sources
of
public
disclosure
in
§ 3730(e)(4)(A), especially ‘news media,’ suggest that the
public disclosure bar provides ‘a broa[d] sweep.’”); Osheroff,
776 F.3d at 813 (concluding that newspapers and publicly
available websites qualified as “news media” under the public
disclosure provision).
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Relators’

Filed: 02/25/2016

last

benchmark

when

Beauchamp,

pleading

933

second-amended
district

applying
F.

that

found

the

the

Supp.

2d

complaint

court

disclosure

was

Pg: 16 of 26

appropriate

public-disclosure

at

845.

postdated

that

triggered

story
the

statutory

And

the
to

bar.

be
Id.

a

bar.

because

Wired.com

See

Relators’

article,

qualifying
In

timing

the

public

substance,

the

district court concluded that the timing of Relators’ claims for
public-disclosure bar purposes was set by the filing date of
their most recent complaint instead of when the relevant claims
were first alleged.
B.
In adopting the view that only the most recent pleading
should control the public-disclosure bar’s timing, Academi and
the district court misapprehend the factual and legal basis of
the Supreme Court’s decision in Rockwell.
In Rockwell, a nuclear weapons plant attempted to dispose
of hazardous waste by combining it with concrete in solid blocks
called “pondcrete.”
plant

engineer,

549 U.S. at 461.

reviewed

the

plans

The Rockwell relator, a
and

stated

before

the

procedure was undertaken that it would fail because of flaws in
the piping system.

Id.

The plant later discovered that many of

the blocks did in fact leak.

Id.

When this environmental

violation came to light, the relator filed suit alleging that
faulty piping was to blame and the plant’s claims for payment to
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the government were therefore fraudulent under the FCA.
463.

During

discovery,

however,

the

relator

Id. at

abandoned

the

piping-defect allegations, instead claiming for the first time a
new theory of fraud liability: that the leak was the result of
an improper waste mixture.

Id. at 465.

The case proceeded to

trial, and the relator prevailed on his new theory.
The defendant subsequently moved to set aside the verdict
under

the

public-disclosure

bar,

asserting

that

the

relevant

fraudulent scheme (the last filed improper-waste-mixture claim)
had

been

publically

disclosed.

Id.

at

466.

The

relator

conceded that his successful claim was based on a qualifying
public disclosure, but he argued that he nevertheless qualified
as an “original source.”

Id. at 467.

The pre-amendment public-

disclosure bar at issue in Rockwell defined “original source” as
an

individual

with

“direct

and

independent

knowledge

of

the

information on which the allegations [of the FCA action] are
based.”

Id.

The Rockwell relator, however, did not contend that he had
“direct and independent” information as an original source for
his

successful

improper-waste-mixture

theory.

Instead,

he

argued that he was an original source for FCA purposes based on
his

insider

knowledge

piping-system claim.

about

the

first-pled,

but

abandoned,

Thus, the relator argued to the Supreme

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Court

Doc: 37

that

Filed: 02/25/2016

it

should

focus

Pg: 18 of 26

on

the

allegations

complaint to determine his original source status.
The

Supreme

Court

found

the

Rockwell

in

the

first

Id. at 473.

relator’s

argument

without merit, holding that the original source provision did
not speak in terms of allegations in the original complaint,
“but of the relator’s ‘allegations’ simpliciter.”

Id.

Simply

put, the FCA inquiry went to the relevant claim before the court
(there, the improper-waste-mixture claim), and evaluating that
claim required review of the pleading that first raised it.
The
question

Supreme

Court

required

allegations

in

the

thus

held

consideration
original

that
of

the

“(at

complaint

original
a

as

source

minimum)

amended.”

the
Id.

Accordingly, even though the relator may have been an original
source as to the piping-defect claims asserted in the original
complaint, the Court found those allegations irrelevant because
the relator had abandoned them in favor of a wholly different
fraud theory.

Id. at 475 (declining to “determine jurisdiction

on the basis of whether the relator is an original source of
information underlying allegations that he no longer makes”).
Instead of examining the rationale of the Supreme Court’s
decision in Rockwell, the district court mechanically applied
the statement

that

“courts

look

to

determine jurisdiction.”

Id. at 474.

court

last

used

Relators’

the

complaint

to

As a result, the district

pleading,
18

amended

the

second-amended

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complaint, to determine when the weapons qualification scheme
was

alleged

for

purposes

of

§ 3730(e)(4)(A).

We

find

this

application of Rockwell faulty, as it takes the Supreme Court’s
words and holding wholly out of context and fails to analyze the
public-disclosure

bar

on

the

basis

of

the

relevant

fraud

alleged.
The Supreme Court in Rockwell focused on the relator’s last
pleading only because that was where the relevant fraud, the
improper-waste-mixture theory, had been pled.

The Court sought

to match the relevant claim of fraud with the pleading that
raised
source

it
as

to

determine

to

that

whether

claim.

the
The

relator

was

an

original

Supreme

Court’s

holding

effectively reiterated existing law in the qui tam setting, that
judicial review is based on a claim by claim analysis.

See In

re Nat. Gas Royalties, 562 F.3d 1032, 1040 (10th Cir. 2009)
(“Relator

correctly

points

out

that

we

use

a

claim-by-claim

analysis to determine whether the allegations in a complaint
were publicly disclosed.”).
Here, however, the district court failed to evaluate the
relevant fraud claim, the weapons qualification scheme, under
the pleading that first alleged that fraud: the first-amended
complaint.

Relators’

second-amended

complaint

further detail about a claim already alleged.

merely

added

On such facts,

Rockwell does not limit our public-disclosure analysis to the
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latest

Filed: 02/25/2016

pleading.

Pg: 20 of 26

Recognizing

this

limitation,

our

sister

circuits have been reluctant to expand Rockwell’s last-pleading
rule as the district court did below.

See, e.g., U.S. ex rel.

Jamison v. McKesson Corp., 649 F.3d 322, 328 (5th Cir. 2011)
(distinguishing Rockwell and explaining that we “look to [the
relator’s] original complaint . . . to determine whether it was
based on public disclosures of allegations or transactions”);
U.S. ex rel. Branch Consultants, LLC v. Allstate Ins. Co., 782
F.

Supp.

suggest

2d

248,

that

the

261

(E.D.

original

La.

2011)

complaint

(“[Rockwell]

becomes

did

not

irrelevant

for

jurisdictional purposes once an amended complaint is filed.

To

the contrary, the Court stated that its holding was consistent
with ‘[t]he rule that subject-matter jurisdiction depends on the
state of things at the time of the action brought.’”).
Focusing
appeared

in

our
the

bar’s purpose.

inquiry
case

also

on

when

aligns

the

relevant

with

the

claims

first

public-disclosure

See Crandon v. United States, 494 U.S. 152, 158

(1990) (“In determining the meaning of the statute, we look not
only to the particular statutory language, but to the design of
the statute as a whole and to its object and policy.”).

We have

consistently

public-

observed

that

Congress’s

goal

with

the

disclosure bar was to encourage qui tam suits while preventing
only “parasitic” claims “in which relators, rather than bringing
to light independently-discovered information of fraud, simply
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feed off of previous disclosures of government fraud.”
21 F.3d at 1347.

Siller,

The weapons qualification scheme was pled in

Relators’ first-amended complaint.

It was not a new fraudulent

scheme first introduced after the Wired.com public disclosure.
Where

the

relevant

fraud

is

“parasitic.”

that

the

suit

is

the

public

See Graham Cty., 559 U.S. at 296 n.16.
conclude

the

before

as

therefore

here,

alleged

disclosure,

We

occurred

first

plainly

determination

of

not

when

a

plaintiff’s claims arise for purposes of the public-disclosure
bar

is

governed

by

the

date

of

the

first

pleading

to

particularly allege the relevant fraud and not by the timing of
any subsequent pleading.

See U.S. ex rel. Ackley v. Int’l Bus.

Machs. Corp., 76 F. Supp. 2d 654, 660 (D. Md. 1999) (looking to
the

relator’s

initial

complaint

where

the

fraud

was

first

alleged); U.S. ex rel. Adams v. Wells Fargo Bank Nat’l Ass’n,
No. 2:11-CV-00535-RCJ-PAL, 2013 WL 6506732, at *6 (D. Nev. Dec.
11, 2013) (same).

In Rockwell terms, the relevant fraud here is

the weapons qualification scheme, which predated the Wired.com
article in the first-amended complaint.

The contrary position,

adopted by the district court and pressed by Academi, misreads
Rockwell and does not comport with the objectives underlying
§ 3730(e)(4)(A).

The district court thus erred in holding the

second-amended complaint was the relevant pleading by which to
measure the public-disclosure bar.
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C.
Academi further argues that, even if the district court
erred in applying Rockwell, Relators’ second-amended complaint
was “the first [pleading] that describes with specificity the
weapons qualification scheme.”

Response Br. 28.

Consequently,

Academi posits, the timing of the second-amended complaint still
controls when the weapons qualification scheme was alleged.

We

disagree.
In

their

first-amended

complaint,

Relators

alleged

that

Academi did not qualify its employees on the M-240 and M-249
belt-fed weapons as required under the government contract and
intentionally submitted false documents to the State Department
to conceal this failure.

See J.A. 39 (“[Academi] fraudulently

billed their services to the Department of State, as none of the
independent contractors [were] qualified to shoot M-240s and M249s.”).

Relators

further

provided

specific

dates

on

which

Academi falsified their weapons scores, and alleged that this
practice occurred throughout training centers in Afghanistan and
Iraq.

See id. (“Mr. Beauchamp’s score cards from October 4,

2010, April 3, 2010, July 23, 2010, . . . and April 8, 2011 are
fraudulent.”).
of

the

These allegations were sufficient for purposes

public-disclosure

bar.

See

United

States

v.

Triple

Canopy, Inc., 775 F.3d 628, 636 (4th Cir. 2015) (explaining that
a relator “pleads a false claim when [he or she] alleges that
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the contractor, with the requisite scienter, made a request for
payment under a contract and ‘withheld information about its
noncompliance with material contractual requirements.’”).
At bottom, the public-disclosure bar does not apply here.
Relators sufficiently pled the weapons qualifications scheme in
their

first-amended

Wired.com article.
that

this

article

triggered the bar.

complaint

that

came

well

before

the

The district court thus wrongly concluded
was

a

qualifying

public

disclosure

that

And without a qualifying public disclosure,

the district court erred by dismissing these claims under either
version

of

§ 3730(e)(4)(A).

See,

e.g.,

Walburn

v.

Lockheed

Martin Corp., 431 F.3d 966, 974 (6th Cir. 2005) (observing that
the existence of a qualifying public disclosure is a threshold
condition for application of the bar). 7
Having
occurred

concluded

within

the

that
meaning

no
of

7

qualifying
the

FCA,

public
we

do

disclosure
not

address

To be clear, our holding today does not suggest that a
plaintiff can raise skeletal claims of fraud and then use such a
pleading to avoid the public-disclosure bar when he or she later
files an amended complaint that adds necessary facts gleaned
from the public domain.
We agree with Academi that under such
circumstances the initial complaint should not dictate when the
relator’s claims were first brought. Cf. United States v. Educ.
Mgmt. LLC, No. 2:07-cv-461, 2014 WL 2766115, at *2 (W.D. Pa.
June 18, 2014) (“[A]n amended complaint which sets forth a
fundamentally different fraudulent scheme [does] not relate back
in time to the original complaint.”).
Conversely, however, an
amended complaint that merely adds detail to a previously pled
cause of action does not reset the clock for when the relator’s
claims were alleged. That is the circumstance in this case.
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Relators’ alternative arguments that they were original sources
of the information.

See U.S. ex rel. Holmes v. Consumer Ins.

Grp., 318 F.3d 1199, 1208 (10th Cir. 2003) (en banc) (“[W]here,
as here, there was no public disclosure, the . . . inquiry under
§ 3730(e)(4) ceases, regardless of whether the relator qualifies
as an original source.”).

IV.
In the final portion of its brief, Academi offers several
alternate grounds for affirmance that do not require extended
discussion.
First,

Academi

contends

that

the

Winston

complaint

is

another public disclosure that preempts Relators’ claims under
the public-disclosure bar.
discussed,

the

Winston

We are unpersuaded.

complaint

was

filed

As previously
after

Relators’

first-amended complaint that alleged the weapons qualification
scheme, and therefore it does not trigger the public-disclosure
bar for the same reasons already explained.
Academi

next

Training Ctr.,

argues

Inc.,

No.

that

U.S.

1:08cv1244

ex

rel.

(E.D.

Va.

Davis
filed

v.

U.S.

Dec.

1,

2008), another FCA case filed against Academi in some of its
prior corporate forms, also triggered the public-disclosure bar.
The complaint in Davis was unsealed in 2010, and thus the Davis
action undisputedly preceded the instant case.
24

Nonetheless, as

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the district court correctly noted, the scheme alleged in Davis
was

that

Academi

committed

fraud

by

recruiting

persons

who

“because of drug use and predilection for violence are . . .
unqualified for employment in ‘shooter’ positions.”
933

F.

Supp.

2d

at

839.

That

fraud

claim

is

Beauchamp,

distinct

and

unrelated to the weapons qualification scheme at issue here, and
thus the disclosures in the Davis litigation also do not trigger
the public-disclosure bar.

See U.S. ex rel. Found. Aiding the

Elderly v. Horizon West, Inc., 265 F.3d 1011, 1016 (9th Cir.
2001) (explaining that “unrelated allegations of fraud cannot
trigger § 3730(e)(4)(A)”).
Academi further argues that the Davis case, even if not a
disqualifying

public

disclosure,

is

a

preclusive

first-filed

action under the FCA’s corresponding first-to-file bar.
U.S.C. § 3730(b)(5).

See 31

In broad strokes, the first-to-file bar

prohibits later-filed FCA actions while an earlier-filed case
based on the same fraud remains pending.

See Kellogg Brown &

Root Servs., Inc. v. U.S. ex rel. Carter, 135 S. Ct. 1970, 197479 (2015).

Academi contends that because the Davis case was

pending when this action was filed, the first-to-file bar must
apply to preclude Relators’ claims.
first-to-file
noted,

the

We again disagree.

bar

applies

only

to

“related

fraud

claimed

here

is

not

alleged in Davis.

actions,”

related

to

and

the

See Beauchamp, 933 F. Supp. 2d at 837-38.
25

The
as

fraud

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Finally, Academi argues that Relators failed to plead the
weapons qualification scheme with the “particularity” that Rule
9(b)

requires

for

fraud

claims,

thus

rendering

deficient regardless of the foregoing.
at 783–84.

these

claims

See Harrison, 176 F.3d

In light of its ruling on the public-disclosure bar,

the district court declined to reach this alternative argument.
Id. at 846 n.40.
district

court

to

We deem it more appropriate to allow the
consider

Academi’s

Rule

necessary, in the first instance on remand.

9(b)

argument,

if

See Davani v. Va.

Dep’t of Transp., 434 F.3d 712, 720 (4th Cir. 2006).

V.
For the foregoing reasons, we vacate the portion of the
district

court’s

order

dismissing

Relators’

weapons

qualification claims under the public-disclosure bar and remand
for further proceedings consistent with this opinion.

VACATED AND REMANDED

26