                                                       [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 10-14642         ELEVENTH CIRCUIT
                       ________________________     AUGUST 26, 2011
                                                       JOHN LEY
                                                        CLERK
                   D.C. Docket No. 3:06-cv-00016-CDL

UNITED STATES OF AMERICA,
ex rel., et al.,

                                                                  Plaintiffs,

DAVID L. LEWIS, Ph.D,
R.A. MCELMURRAY, III,
G. WILLIAM BOYCE,

                                                       Plaintiffs-Appellants,

                                 versus

JOHN WALKER, Ph.D.,
JULIA W. GASKIN,
ROBERT B. BROBST,
WILLIAM P. MILLER, Ph.D.,
E. WILLIAM TOLLNER, Ph.D., et al.,

                                                   Defendants-Appellees.
                              ________________________

                      Appeal from the United States District Court
                          for the Middle District of Georgia
                            ________________________

                                       (August 26, 2011)

Before HULL and FAY, Circuit Judges, and VINSON,* District Judge.

PER CURIAM:

       David Lewis, R.A. McElmurray III and G. William Boyce (collectively

“Relators”) appeal the District Court’s order dismissing their qui tam action for

lack of subject matter jurisdiction. The District Court found that the documents

obtained by Relators, which form the basis of the qui tam action, were gathered

through Freedom of Information Act (“FOIA”) and Georgia Open Records Act

(“GORA”) requests and therefore fell within the public disclosure bar of the False

Claims Act (“FCA”). After careful review of the record and counsels’ briefs we

affirm.

                                  I.     BACKGROUND

       On February 17, 2006, Appellants/Relators filed suit against several

individuals employed by the United States Environmental Protection Agency, the



       *
         The Honorable Clyde Roger Vinson, United States District Court for the Northern
District of Florida, sitting by designation.

                                              2
University of Georgia and the University of Georgia Research Foundation.

Relators claimed that the individuals, Appellees, provided false information to the

United States government in order to obtain research funds to investigate a variety

of reported sewage sludge incidents on local Georgia farms, in violation of the

False Claims Act, 31 U.S.C. § 3729 et seq. Appellees filed various motions to

dismiss which were all denied. On September 25, 2009, after extensive discovery,

Appellees filed motions for summary judgment. On September 8, 2010, the

District Court entered an order dismissing the case for lack of subject matter

jurisdiction. The District Court held that all documents obtained through FOIA or

GORA are considered “publically disclosed” for purposes of the FCA’s public

disclosure bar. Therefore, because Relators were not the “original source” of these

documents, the District Court lacked jurisdiction. On October 5, 2010, Relators

filed this timely appeal.

                               II.   DISCUSSION

      We review the District Court’s dismissal of an action for lack of subject

matter jurisdiction de novo. Pillow v. Bechtel Constr., Inc., 201 F.3d 1348, 1351

(11th Cir. 2000). When the determination of subject matter jurisdiction requires

the Court to look at matters beyond the face of the complaint, the Court applies an

analysis similar to the summary judgment standard. Lawrence v. Dunbar, 919

                                         3
F.2d 1525, 1530 (11th Cir. 1990) (courts should apply “a Rule 56 summary

judgment standard when ruling on a motion to dismiss which asserts a factual

attack on subject matter jurisdiction”). This Court applies a three part inquiry to

determine if subject matter jurisdiction over a qui tam FCA claim exists: “(1) have

the allegations made by the plaintiff been publicly disclosed; (2) if so, is the

disclosed information the basis of the plaintiff's suit; (3) if yes, is plaintiff an

‘original source’ of that information.” McElmurray v. Consol. Gov’t of Augusta-

Richmond Cnty., 501 F.3d 1244, 1252 (11th Cir. 2007) (citing Battle v. Bd. of

Regents, 468 F.3d 755, 762 (11th Cir. 2006) (quoting Cooper v. Blue Cross &

Blue Shield of Fla., 19 F.3d 562, 565 n.4 (11th Cir. 1994))).

      Appellants argue that the District Court erred in determining that documents

obtained through the FOIA and GORA requests were “publically disclosed” for

purposes of the FCA, thus barring the qui tam action. The FCA bars private

parties from bringing qui tam suits based upon information that has been publicly

disclosed “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




                                            4
the original source of the information.” 31 U.S.C. § 3730(e)(4)(A).1 Appellants

contend that the holding in United States ex rel. Kirk v. Schindler Elevator Corp.,

601 F.3d 94 (2d Cir. 2010) is directly on point, and that because Kirk has been

granted certiorari by the United States Supreme Court, an affirmance by the

Supreme Court would require reversal of the District Court in this case.2 Because

the Supreme Court decided the public disclosure issue in Appellees’ favor,

reversing the Second Circuit’s decision in Kirk, we affirm.

       Appellants based a large part of their argument on Kirk, and on the

assumption that the Supreme Court would affirm that an agency’s written response

to a FOIA request was not a “report” for purposes of the FCA’s public disclosure

bar to bringing certain qui tam actions. However, in Schindler Elevator Corp. v.

United States ex rel. Daniel Kirk, -- U.S. --, 131 S. Ct. 1885 (2011), the Supreme

Court reversed the Second Circuit’s ruling and found that a federal agency’s

written response to a FOIA request for records constitutes a “report” within the



       1
         On March 23, 2010, the President signed the Patient Protection and Affordable Care Act,
which, among many other things, amended 31 U.S.C. § 3730(e)(4). See Pub. L. No. 111-148,
§ 10104(j)(2), 124 Stat. 901 (2009). Because Congress did not make this § 3730(e)(4)
amendment retroactive to pending cases, we apply the prior version of § 3730(e)(4) that was in
effect when Appellants filed their FCA claim. See Graham Cnty. Soil & Water Conservation
Dist. v. United States ex rel. Wilson, ___ U.S. ___, 130 S. Ct. 1396, 1400 n.1 (2010).
       2
        Appellants’ Brief was filed November 16, 2010. The Supreme Court heard argument in
Kirk on March 1, 2011, and issued its opinion on May 16, 2011.

                                               5
meaning of the FCA’s public disclosure bar. Thus, the Court found that such

information was publicly disclosed. Applying the Supreme Court’s decision in

Kirk to the facts of this case, it is clear that the information Appellants obtained

through their FOIA and GORA requests falls within the FCA’s public disclosure

bar. Therefore, the information cannot support a qui tam action by Appellants

unless Appellants fall under the “original source” exception. See McElmurray,

501 F.3d at 1251-52.

      The FCA defines an “original source” as an “individual who has direct and

independent knowledge of the information on which the allegations are

based . . . .” 31 U.S.C. § 3730(e)(4)(B). Here, Appellants obtained their

information through FOIA and GORA requests, previous litigation, government

reports and a journal article. There is no indication in the record that Appellants

had independent, undisclosed knowledge of any information regarding the alleged

fraud. Toward the end of Appellants’ brief, which was based almost entirely on

the assumption that Kirk would be decided in their favor, Appellants make the

conclusory assertion that they were the “original source” of the information and

therefore it would not matter whether the information was ultimately held to be

publicly disclosed under Kirk. Appellants cite no evidence to support this

contention. Rather, it appears that Appellants reconstructed what they believed to

                                           6
be the contents of the subject grant application, which was never provided nor

publicly disclosed, from documents provided in response to GORA. Thus,

Appellants claim that their compilation of the publicly disclosed information to

reconstruct the grant application was independent information for which they were

the original source.

      The problem with this argument is that, based on the Supreme Court’s

ruling in Kirk, the GORA information that Appellants used to reconstruct the grant

application is publicly disclosed, and Appellants point to no additional

information which they held directly or independently of the public disclosures.

The information which Appellants purportedly used to “compile” the grant

application was available to anyone who wished to use it for the same purpose.

Appellants further argue that they are the original source because, were it not for

the lawsuits they filed in 1998, the grant application and related study would never

have existed. Appellants’ “but for” argument, however, does not establish that

they were the “original source” of the information. See United States ex rel.

Dhawan v. N.Y. Med. Coll., 252 F.3d 118, 121 n. 3 (2d Cir. 2001) (remarking that,

even if the government would not have performed an audit “but for plaintiff’s

request for an audit, this allegation would not suffice to show that they were the

source of the core information”) (emphasis in original); United States ex rel.

                                          7
Hafter v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1163 (10th Cir. 1999)

(concluding that where “most of the core information contained in the . . .

complaint came from [a third party’s] independent research and investigation,” the

plaintiff’s claim that it “provided the initial impetus for [the third party’s]

investigation” did not support a conclusion that the plaintiff was the “original

source” of the information). Appellants did not have or provide any original

information beyond what was publicly disclosed.

      Because Appellants are not the “original source” of the information upon

which their qui tam action is based, and because, under Kirk, the information is

considered publicly disclosed, Appellants’ qui tam action is barred. The District

Court, therefore, correctly dismissed this qui tam action for lack of jurisdiction.

      AFFIRMED.




                                            8
