                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 19 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



THOMAS A. BERG; et al.,                          No. 11-35001

              Plaintiffs - Appellants,           D.C. No. 3:07-cv-00215-JWS

  v.
                                                 MEMORANDUM *
HONEYWELL INTERNATIONAL, INC.
and HONEYWELL, INC.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Alaska
                    John W. Sedwick, District Judge, Presiding

                      Argued and Submitted August 28, 2012
                               Anchorage, Alaska

Before: HAWKINS, McKEOWN, and BEA, Circuit Judges.

       Thomas Berg, Ryne Linehan, Nayer Mahmoud, Stanley Smith, and Thomas

Berg (collectively, “Relators”) appeal the dismissal of their qui tam action against

Honeywell International, Inc. and Honeywell, Inc. (collectively, “Honeywell”),




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
under the False Claims Act (“FCA”), 31 U.S.C. § 3729–3733. The facts are well

known to the parties and we do not repeat them here.

      The district court held that it lacked jurisdiction over Relators’ action under

the FCA because the Army Audit Agency (“AAA”) reports and the Government

Accountability Office (“GAO”) report were “public disclosures” under 31 U.S.C.

§ 3730(e)(4)(A) and Relators did not qualify as “original sources” under

§ 3730(e)(4)(B). We review de novo a district court’s determination that it lacks

subject matter jurisdiction under § 3730(e)(4)(A). United States ex rel. Meyer v.

Horizon Health Corp., 565 F.3d 1195, 1198 (9th Cir. 2009).

      The “public disclosure bar” of the FCA provides that

      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 . . . person
      bringing the action is an original source.

31 U.S.C. § 3730(e)(4)(A) 1. For the bar to prevent a court from exercising

jurisdiction, there must have been (1) a “public disclosure” (2) of “allegations or



      1
       In 2010, Congress amended § 3730(e)(4) and did not address retroactivity.
Accordingly, we apply the previous version of § 3730(e)(4), which was in effect at
the time of the filing of this action. See Graham Cnty. Soil and Water
Conservation Dist. v. United States ex rel. Wilson, 130 S. Ct. 1396, 1400 n.1
(2010).

                                          2
transactions” (3) in one of the three fora articulated in the statute (4) and the

relator’s action must be based upon that public disclosure. United States ex rel.

Lindenthal v. Gen. Dynamics Corp., 61 F.3d 1402, 1409 (9th Cir. 1995).

      Initially, we must determine whether the AAA reports were publicly

disclosed because they were potentially available to the public through a Freedom

of Information Act (“FOIA”) request. “In the FOIA context, information can not

be deemed disclosed until a member of the public requests the information and

receives it from the government. Only then is the information actually, rather than

theoretically or potentially, available to the public.” United States ex rel. Schumer

v. Hughes Aircraft Co., 63 F.3d 1512, 1520 (9th Cir. 1995), vacated on other

grounds, 520 U.S. 939 (1997) (emphasis in original). Here, no member of the

public requested the AAA reports or received them from the government prior to

the date Relators filed their action. Thus, the reports were “theoretically or

potentially available” to the public prior to Relators’ suit, but they were not

“actually” available and were not publicly disclosed under the FCA. See Meyer,

565 F.3d at 1201 (“[E]ven when the government has the information, it is not

publicly disclosed under the Act until it is actually disclosed to the public.”).

      Further, the AAA reports were not publicly disclosed when the government

provided them to EMP2, a private company hired by the government to audit the


                                            3
energy performance savings contract (“ESPC”). In Schumer, the court

distinguished public disclosures from “the release of information within a private

sphere,” stating that under a “practical, commonsense interpretation, . . .

information that was disclosed in private has not been publicly disclosed.” 63 F.3d

at 1518 (internal quotation marks omitted); see also Meyer, 565 F.3d at 1200

(recognizing that information disclosed in private is not a public disclosure under

the FCA). In Seal 1 v. Seal A, 255 F.3d 1154, 1161-62 (9th Cir. 2001), the court

employed Schumer’s reasoning to hold that information was publicly disclosed

because the government disclosed it to an “outsider to the [] investigation” with a

“significant incentive (and no disincentive) to use the allegations” to his own

advantage. Here, unlike the relator in Seal 1, EMP2 was not an “outsider” to the

investigation, but rather was acting on behalf of the government and had an

incentive to keep confidential the information learned during its audit. Thus, the

government did not publicly disclose the AAA reports by providing them to

EMP2.2 Accordingly, we conclude the AAA reports did not constitute a “public

disclosure” under § 3730(e)(4)(A).


      2
       Additionally, the Inspector General Report’s brief mention of the final
AAA report does not trigger the public disclosure bar because the Report did not
contain any of the “allegations or transactions” upon which Relators’ action is
based. See United States ex rel. Found. Aiding the Elderly v. Horizon West, Inc.,
265 F.3d 1011, 1015 (9th Cir. 2001).

                                           4
      Finally, we consider whether the GAO report was a “public disclosure”

under § 3730(e)(4)(A). The GAO report disclosed generally that some contractors

performing the 254 ESPCs granted between 1999 and 2003 had engaged in the

activity Relators allege is fraudulent, but the report did not disclose the names of

any contractors or specify any locations where an ESPC may have involved fraud.

Because of the large number of ESPCs granted and the GAO report’s lack of

specificity, the report did not contain sufficient information to enable the

government to pursue an investigation against Honeywell. Accordingly, the GAO

report was not a “public disclosure” under § 3730(e)(4)(A). See United States v.

Alcan Elec. and Eng’g, Inc., 197 F.3d 1014, 1019 (9th Cir. 1999) (holding that the

disclosure is a “public disclosure” within the meaning of the FCA if the “the prior

public disclosure[] contained enough information to enable the government to

pursue an investigation against [the defendant]”).

      Because neither the AAA reports nor the GAO report constituted “public

disclosures” under § 3730(e)(4)(A), we reverse the judgment dismissing for lack of

jurisdiction and remand for further proceedings.

      REVERSED and REMANDED.




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