                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 07-1322


UNITED STATES OF AMERICA ex rel. KAREN T. WILSON,

                Plaintiff - Appellant,

          v.

GRAHAM COUNTY SOIL & WATER CONSERVATION DISTRICT; CHEROKEE
COUNTY SOIL & WATER CONSERVATION DISTRICT; RICHARD GREENE,
in his individual capacity; WILLIAM TIMPSON, in his
individual capacity; KEITH ORR, in his individual and
official capacities; RAYMOND WILLIAMS, in his individual
capacity; DALE WIGGINS, in his individual capacity; GERALD
PHILLIPS, in his individual capacity; ALLEN DEHART, in his
individual capacity; LLOYD MILLSAPS; JERRY WILLIAMS, in his
individual   capacity;  BILLY   BROWN,  in   his individual
capacity; LYNN CODY, in his individual capacity; BILL
TIPTON; C. B. NEWTON, in his individual capacity; EDDIE
WOOD, in his individual capacity; GRAHAM COUNTY,


                Defendants – Appellees,

          and

GRAHAM COUNTY BOARD OF COUNTY COMMISSIONERS; CHEROKEE COUNTY
BOARD OF COUNTY COMMISSIONERS; CHERIE GREENE; RICKY STILES;
BETTY JEAN ORR; JOYCE LANE; JIMMY ORR; EUGENE MORROW;
CHARLES   LANE;   CHARLES  LANEY;   GEORGE  POSTELL;   LLOYD
KISSLEBURG; TED ORR; BERNICE ORR; JOHN DOE, JR.; JOHN DOE
CORPORATION; GOVERNMENTAL ENTITIES, 1-99,

                Defendants.



     On Remand from the Supreme Court of the United States.
                       (S. Ct. No. 08-304)
Submitted:   May 24, 2010                    Decided:    October 1, 2010


Before TRAXLER,   Chief     Judge,   and   MOTZ   and   DUNCAN,   Circuit
Judges.


Remanded with instructions by unpublished per curiam opinion.


ARGUED: Mark Tucker Hurt, Abingdon, Virginia, for United States
of America ex rel. Karen T. Wilson.      Christopher G. Browning,
Jr., Solicitor General, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina; Zeyland G. McKinney, Jr., Robbinsville,
North Carolina, for Graham County Soil & Water Conservation
District, Cherokee County Soil & Water Conservation District,
Richard Greene, in his individual capacity, William Timpson, in
his individual capacity, Keith Orr, in his individual and
official   capacities,  Raymond   Williams,   in  his  individual
capacity, Dale Wiggins, in his individual capacity, Gerald
Phillips, in his individual capacity, Allen Dehart in his
individual capacity, Lloyd Millsaps, Jerry Williams, in his
individual capacity, Billy Brown, in his individual capacity,
Lynn Cody, in his individual capacity, Bill Tipton, C. B.
Newton, in his individual capacity, Eddie Wood, in his
individual capacity, Graham County.       ON BRIEF: Roy Cooper,
Attorney General, Raleigh, North Carolina, for Graham County
Soil & Water Conservation District, Gerald Phillips, Allen
Dehart,   Lloyd   Millsaps,   Cherokee   County   Soil  &   Water
Conservation District, Bill Tipton, C. B. Newton and Eddie Wood;
Sean F. Perrin, WOMBLE, CARLYLE, SANDRIDGE & RICE, P.L.L.C.,
Charlotte, North Carolina, for Graham County, Raymond Williams,
Dale Wiggins and Lynn Cody; Roy Patton, Canton, North Carolina,
for Richard Green and Billy Brown.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

        This case is before us after a remand from the Supreme

Court.         In a previous opinion, we concluded that the public-

disclosure         bar      of    the    False   Claims   Act,       see   31   U.S.C.A.    §

3730(e)(4)         (West         2003), *   “applies     to    federal       administrative

audits, reports, hearings or investigations, but not to those

conducted or issued by a state or local governmental entity.”

United States ex rel. Wilson v. Graham County Soil & Water Cons.

Dist., 528 F.3d 292, 296 (4th Cir. 2008).                        We therefore reversed

the         decision     of        the      district    court        and     remanded     for

consideration of certain specified issues.                             The Supreme Court

granted       certiorari          and    reversed,     concluding      that     the   public-

disclosure bar is not limited to federal reports and audits, but

also        applies    to    reports,        audits,    and    the    like    conducted    or

issued by state and local governments.                        See Graham County Soil &

Water Cons. Dist. v. United States ex rel. Wilson, 130 S. Ct.

1396,       1400   (2010).           The    Supreme    Court’s       opinion,    of   course,

establishes the scope of the public-disclosure bar.                             The Court’s

opinion, however, does not affect our previously expressed view




        *
          Although § 3730(e)(4) was amended effective March 23,
2010, the amendments are not retroactive.     See Graham County
Soil & Water Cons. Dist. v. United States ex rel. Wilson, 130 S.
Ct. 1396, 1400 n.1 (2010).



                                                 3
that a remand to the district court is required before we can

consider the substance of Wilson’s claims.

         As   is   relevant      to   this     case,    the    public-disclosure    bar

strips courts of jurisdiction over FCA actions that are “based

upon the public disclosure of allegations or transactions . . .

in   a    congressional,         administrative,        or    Government     Accounting

Office report, hearing, audit, or investigation.”                         31 U.S.C.A. §

3730(e)(4)(A); see Rockwell Int’l Corp. v. United States, 549

U.S.      457,     468-69     (2007)      (explaining         that    §   3730(e)(4)(A)

deprives courts of subject-matter jurisdiction over FCA claims

that fall within the scope of the public disclosure bar).                             As

noted in our prior opinion, the district court did not make the

necessary        factual    findings      to      establish    that   Wilson’s    claims

were “based upon” any of the reports at issue in this case.                         See

31 U.S.C.A. § 3730(e)(4)(A) (West 2003).                           The district court

likewise failed to make the requisite findings to establish that

the reports at issue were in fact publicly disclosed.                              See,

e.g.,     United     States      ex   rel.        Ramseyer    v.   Century   Healthcare

Corp., 90 F.3d 1514, 1521 (10th Cir. 1996) (“The mere possession

by a person or an entity of information pertaining to fraud,

obtained through an independent investigation and not disclosed

to   others,       does    not   amount      to    ‘public    disclosure.’       Rather,

public disclosure occurs only when the allegations or fraudulent

transactions are affirmatively provided to others not previously

                                               4
informed thereof.”).         Given the jurisdictional nature of the

public-disclosure bar, these subsidiary issues must be resolved

before we can proceed to consider the merits of the Wilson’s FCA

claims.

      Accordingly, we must remand the case to give the district

court     the     opportunity       to     make     the    necessary    factual

determinations as to whether the relevant federal, state, or

local governmental audits, reports, hearings, or investigations

were publicly disclosed and whether the claims Wilson asserts in

this action were derived from any such public disclosures.                     If

the   court     determines   that    any     of   the   relevant   reports   were

publicly disclosed and that any of Wilson’s claims were derived

from those public disclosures, the court should then reconsider

whether Wilson qualifies as an original source for any of those

claims.

      As we noted in our prior opinion, the district court must

consider and address these jurisdictional questions on a claim-

by-claim basis.       See Rockwell, 549 U.S. at 476 (2007); United

States ex rel. Boothe v. Sun Healthcare Group, Inc., 496 F.3d

1169, 1177 (10th Cir. 2007).             If the district court determines

that it has subject matter jurisdiction over any of Wilson’s

claims, it may then proceed to consider the merits of the claims

over which it has jurisdiction.



                                         5
     On remand, the district court shall permit the parties to

submit additional evidence as may be necessary for the court to

make the factual determinations upon which the jurisdictional

questions turn.       If the district court again concludes that the

public-disclosure bar applies and deprives the court of subject

matter jurisdiction over Wilson’s claims, the court should not

consider the merits of her claims.                 However, if the district

court concludes that it has jurisdiction over some or all of

Wilson’s claims, the court may then consider the merits of the

claims over which it has jurisdiction.                  If the district court

rejects    Wilson’s    claims      on    jurisdictional    grounds    or   on   the

merits, it should again consider the defendants’ requests for

attorneys’ fees.      Nothing in our mandate should be understood as

precluding the district court from considering the merits of

Wilson’s   claims     anew   or,    if    the   court   deems   it   appropriate,

permitting the parties to submit additional evidence or argument

supporting their claims.

                                                   REMANDED WITH INSTRUCTIONS




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