U.S. ex rel. Weinberger v. State of Fla., 78-2626

• Decision Date: 28 April 1980
• Docket Number: No. 78-2626,78-2626
• Citation: 615 F.2d 1370
• Parties: UNITED STATES of America ex rel. David P. WEINBERGER, and David P. Weinberger, Esq., Individually, Plaintiffs-Appellants, v. STATE OF FLORIDA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1370

615 F.2d 1370

UNITED STATES of America ex rel. David P. WEINBERGER, and David P. Weinberger, Esq., Individually Plaintiffs-Appellants, v. STATE OF FLORIDA, Defendant-Appellee.

No. 78-2626.

United States Court of Appeals Fifth Circuit.

April 28, 1980.

David P. Weinberger, pro se.

Alan C. Brown, Leonard Schaitman, Alexander Younger, Commercial Litigation Branch, Civil Div., Dept. of Justice, Washington, D. C., for amicus curiae.

Jim Smith, Randy J. Schwartz, Attys. Gen. of Florida, Tallahassee, Fla., Thomas A. Beenck, Joseph A. Linnehan, Asst. Attys. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before MORGAN, ANDERSON and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

This is an appeal from a district court order dismissing a qui tam action brought under the False Claims Act, 31 U.S.C. § 231-35. The False Claims Act "prohibits false or fraudulent claims to government payment," United States ex rel. Weinberger v. Equifax, 557 F.2d 456, 460 (5th Cir. 1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 768, 54 L.Ed.2d 782 (1978); grants an informer standing to sue on behalf of the United States; and provides an award to the informer for the recovery of forfeitures and damages, see id. § 232(B) and (E)(2). Upon filing the qui tam action, the informer must notify the United States of the suit. If the United States elects to decline to enter an appearance, the informer may continue the suit. See id. § 232(C). However, no subject matter jurisdiction exists "whenever it shall be made to appear that such suit was 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." Id. § 232(C).

On August 12, 1977, Relator Weinberger filed a complaint in the district court on behalf of the United States. On September 22, 1977, the United States declined to enter an appearance in the action. The gravamen of Weinberger's complaint is that in the course of requesting fiscal assistance from the United States Department of Labor's Employment and Training Administration, the Florida Department of Commerce falsely certified that it was adhering to a federally approved merit system of personnel administration. The district court dismissed the suit for failure to state a claim upon which relief could be granted, holding that a state is not a "person" subject to liability under the False Claims Act. On appeal, this court granted the motion of the United States to file a brief and appear at oral argument as amicus curiae. The United States contends that the district court lacked jurisdiction under 31 U.S.C. § 232(C) because the suit was based upon evidence or information which the United States possessed at the time the suit was brought. We agree.

The jurisdictional bar of 31 U.S.C. § 232(C) operates to preclude an informer's suit under the False Claims Act when "the essential information upon which the suit was predicated was in the possession of the United States prior to the filing of the suit." United States v. Aster, 275 F.2d 281, 282 (3rd Cir.), cert. denied, 364 U.S. 894, 81 S.Ct. 223, 5 L.Ed.2d 188 (1960). Knowledge by the Government prior to suit bars the action even if the plaintiff is the source of that knowledge. Pettis ex rel. United States v. Morrison-Knudsen Co., 577 F.2d 668 (9th Cir. 1978); Safir v. Blackwell, 579 F.2d 742 (2d Cir. 1978), cert. denied, 441 U.S. 943, 99 S.Ct. 2160, 60 L.Ed.2d 1044 (1979); United States v. Aster, 275 F.2d 281. In this case, the district court's lack of subject matter jurisdiction is revealed on the face of the pleadings, for in his Third More Definite Statement, Weinberger conceded that "(p)rior to the filing of this suit, plaintiff-relator disclosed substantially all of the evidence in his possession to the Attorney General of the United States, by registered mail dated Feb. 10, 1976 . . . and certified mail dated August 4, 1977." We reject Weinberger's assertion that the district court had jurisdiction of the suit because his pre-suit disclosures to the Government did not include one or two items of information which he sought to use as support for his claim. We agree with the Ninth Circuit that the evidence or information possessed by the United States need not be a "mirror image" of that in the hands of the qui tam plaintiff, and that the jurisdictional bar is properly invoked "where it is possible to say that...