One of the critical elements for a whistleblower in successfully bringing a qui tam lawsuit under the False Claims Act is being able to prove that the whistleblower is an “original source.” In general, courts have no jurisdiction over qui tam actions based upon the public disclosure of allegations or transactions, such as congressional hearings, federal criminal or civil proceedings, media reports, or other public disclosures.
The False Claims Act will only allow an award to a whistleblower who is an “original source” of the information in the whistleblower lawsuit.
“Original Source” Defined
The False Claims Act defines “original source” in two ways. First, if a whistleblower voluntarily discloses information to the government before public disclosure has occurred, the whistleblower will be considered an original source. Second, a whistleblower “who has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions, and who has voluntarily provided the information to the government before filing” a qui tam lawsuit will be considered an “original source.” 31 U.S.C. § 3730(e)(4)(B).
Original Source Disclosure Under the False Claims Act
In either case, the disclosure made to the government by the whistleblower must include information that actually supports an allegation of fraud, not just suspicions of fraud. A qui tam relator must reveal all of the facts and circumstances on which the allegations or transactions of his complaint are based. Disclosure must be made to an appropriately responsible government or official agency, such as the United States Attorney, FBI, or other suitable law enforcement office. Disclosure to a state or local official or agency is insufficient to confer “original source” status under the False Claims Act.
The False Claims Act also requires that a whistleblower’s disclosure be voluntarily in order for the whistleblower to be given “original source” status. A disclosure made in response to a subpoena or as the result of a federal investigation would not be considered “voluntary” under the law.
Finally, where there has already been some public disclosure, a qui tam relator must make a voluntary disclosure of independent or new information that materially adds to the public disclosure before the filing of a qui tam lawsuit. Courts have held that two weeks to thirty days is sufficient notice to the government before filing the complaint.
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