                                PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 15-1148


UNITED STATES ex rel. LYLE BEAUCHAMP; UNITED STATES ex rel.
WARREN SHEPHERD,

                 Plaintiffs – Appellants,

           v.

ACADEMI TRAINING CENTER, LLC., f/k/a U.S. Training Center
Inc., f/k/a USTC,

                 Defendants – Appellees,

           and

XE SERVICES LLC, f/k/a EP Investments LLC, d/b/a Blackwater
Worldwide; U.S. TRAINING CENTER INC., (“USTC”); USTC
HOLDINGS LLC,

                 Defendants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   T. S. Ellis, III, Senior
District Judge. (1:11-cv-00371-TSE-TRJ)


Argued:   October 29, 2015              Decided:   February 25, 2016


Before TRAXLER, Chief Judge, and AGEE and DIAZ, Circuit Judges.


Vacated and remanded by published opinion. Judge Agee wrote the
opinion, in which Chief Judge Traxler and Judge Diaz joined.
ARGUED: William Edgar Copley, III, WEISBROD MATTEIS & COPLEY
PLLC, Washington, D.C., for Appellants.    Tara Melissa Lee, DLA
PIPER LLP(US), Reston, Virginia, for Appellees. ON BRIEF: Janet
L. Goetz, Susan M. Sajadi, William E. Jacobs, WEISBROD MATTEIS &
COPLEY PLLC, Washington, D.C., for Appellants. Joseph C. Davis,
Reston,    Virginia,   Courtney   G.    Saleski,    Philadelphia,
Pennsylvania, Paul D. Schmitt, DLA PIPER LLP(US), Washington,
D.C., for Appellees.




                               2
AGEE, Circuit Judge:

     Lyle     Beauchamp       and    Warren       Shepherd    (“Relators”)         filed    a

complaint       alleging        that        Academi        Training      Center,      Inc.

(“Academi”)         knowingly    submitted         false     claims    to    the    United

States under the False Claims Act (“FCA”), 31 U.S.C. §§ 3729-

3733,    in    connection       with    a    government       contract       to    provide

security services in Iraq and Afghanistan.                         Citing the FCA’s

public-disclosure bar, which generally prohibits FCA suits based

on allegations that have already entered the public domain, 31

U.S.C. § 3730(e)(4), the district court dismissed the complaint.

The primary question presented on appeal is whether the district

court    correctly         applied     § 3730(e)(4)         when   the      sole    public

disclosure      it     found     preclusive,          a     magazine      article,     was

published more than a year after Relators first pled the alleged

fraud.        For    the    reasons     that      follow,     we   find     the    public-

disclosure      bar    inapplicable         in    this     case.      Accordingly,         we

vacate the judgment of the district court and remand the case

for further proceedings.



                                             I.

     To place the controversy before us in context, we start

with the relevant statutory framework.                     Enacted during the Civil

War to prevent fraud by military contractors, the FCA imposes

civil liability on persons who knowingly submit false claims for

                                             3
goods and services to the United States.                         31 U.S.C. § 3729; see

also U.S. ex rel. Springfield Terminal Ry. Co. v. Quinn, 14 F.3d

645, 649 (D.C. Cir. 1994) (discussing the statute’s history).

To encourage the disclosure of fraud that might otherwise escape

detection, the FCA permits private individuals, denominated as

relators, to file qui tam 1 actions on behalf of the government

and     collect     a   bounty    from       any     recovery.          See   31    U.S.C.

§ 3730(b).         The relator must file his or her complaint under

seal    and   notify    the    government,         who     can    either   intervene      or

allow the relator to proceed alone.                  Id.

       Although     designed     to   incentivize          whistleblowers,         the   FCA

also seeks to prevent parasitic lawsuits based on previously

disclosed fraud.          See U.S. ex rel. Wilson v. Graham Cty. Soil &

Water Conservation Dist., 777 F.3d 691, 695 (4th Cir. 2015).                             To

balance these conflicting goals, Congress has set careful limits

on qui tam suits.          Pertinent here is the public-disclosure bar,

which      disqualifies       private        suits       based     on   fraud      already

disclosed in particular settings -- such as hearings, government

reports,      or   news    reports      --       unless     the    relator    meets      the




       1
       “Qui tam” is shorthand in current legal usage for the
Latin phrase “qui tam pro domino rege quam pro se ipso in hac
parte sequitur,” which means “who pursues this action on our
Lord the King’s behalf as well as his own.” Vt. Agency of Nat.
Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 768 n.1 (2000).


                                             4
definition of an “original source” under the FCA.             31 U.S.C.

§ 3730(e)(4).

       Two versions of the public-disclosure bar are relevant to

this appeal given the timeframe of the alleged underlying fraud.

In 2007, when the alleged scheme began, the statutory limitation

read as follows:

           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 action is brought by the Attorney
           General or the person bringing the action is
           an original source of the information.

31 U.S.C. § 3730(e)(4)(A) (2005).      We interpreted this version

of the public-disclosure bar “as a jurisdictional limitation --

the public-disclosure bar, if applicable, divest[s] the district

court of subject-matter jurisdiction over the action.”          U.S. ex

rel. May v. Purdue Pharma L.P., 737 F.3d 908, 916 (4th Cir.

2013).

       Congress amended the FCA, effective March 23, 2010, and

revised several parts of the public-disclosure bar.       See id. at

914.   Post-amendment, the provision provides:

           The court shall dismiss an action or claim
           under this section, unless opposed by the
           Government,   if   substantially   the   same
           allegations or transactions as alleged in
           the action or claim were publicly disclosed—

                                  5
                   (i) in a Federal criminal, civil, or
                   administrative hearing in which the
                   Government or its agent is a party;

                   (ii) in a congressional, Government
                   Accountability Office, or other Federal
                   report,      hearing,     audit,     or
                   investigation; or

                   (iii) from the news media,

            unless the action is brought by the Attorney
            General or the person bringing the action is
            an original source of the information.

31 U.S.C. § 3730(e)(4)(A) (2010).

      We   have   described    the    2010      amendments     as     “significantly

chang[ing] the scope of the public-disclosure bar.”                          May, 737

F.3d at 917.       Among other things, the revised statute deleted

the   “jurisdiction-removing         language           previously    contained          in

§ 3730(e)(4)      and   replaced     it   with      a    generic,     not-obviously-

jurisdictional      phrase,”    making        it    “clear     that    the    public-

disclosure bar is no longer a jurisdiction-removing provision.”

Id. at     916.    Post-amendment,        the      public-disclosure       bar      is    a

grounds for dismissal -- effectively, an affirmative defense --

rather than a jurisdictional bar.               See U.S. ex rel. Osheroff v.

Humana, Inc., 776 F.3d 805, 810 (11th Cir. 2015) (“We conclude

that the amended § 3730(e)(4) creates grounds for dismissal for

failure     to    state    a    claim         rather       than      for     lack        of

jurisdiction.”).



                                          6
     The amended statute also changed the required connection

between the plaintiff’s claims and the public disclosure.                                 Under

the prior version, a qui tam action was barred only if it was

“based    upon”    a     qualifying         public       disclosure,        a     standard   we

interpreted       to    mean       that    the       plaintiff      must    have    “actually

derived” his knowledge of the fraud from the public disclosure.

U.S. ex rel. Siller v. Becton Dickinson & Co., 21 F.3d 1339,

1348 (4th Cir. 1994), superseded on other grounds as recognized

in May, 737 F.3d at 917.                    “As amended, however, the public-

disclosure bar no longer requires actual knowledge of the public

disclosure,       but    instead          applies       if    substantially         the   same

allegations or transactions were publicly disclosed.”                                May, 737

F.3d at 917. 2

     Against this backdrop, we now turn to the case before us.



                                              II.

                                                 A.

     In   2005,        the    U.S.    Department         of   State       hired    Academi   to

provide   security           services      for       officials      and    embassy    workers

stationed     across         the     Middle      East.        The     agreement      required

Academi’s personnel to maintain a certain degree of proficiency


     2 We have omitted internal quotation marks, alterations, and
citations here and throughout this opinion, unless otherwise
noted.


                                                 7
with    several      firearms       and   called       for     Academi       to     submit

marksmanship scores to the State Department on a regular basis.

Specifically,        each     security         contractor       was    required            to

periodically qualify at a set level of proficiency with (i) the

Glock 19 pistol, (ii) the Colt M4 rifle, (iii) the Remington 870

shotgun, (iv) the M240 belt-fed machine gun, and (v) the M249

belt-fed machine gun.

       Relators,    both     former    security       contractors      with       Academi,

filed their complaint in the Eastern District of Virginia in

April 2011.         In the initial complaint, Relators alleged that

Academi     submitted       false     reports      and    bills       to     the        State

Department for contractors employed in positions in which they

did not actually work and also defrauded the State Department by

requesting     payment       for     unissued      equipment.              The     initial

complaint     was    filed     under      seal,    with       notification         to    the

Government as required by the FCA.                See 31 U.S.C. § 3730(b)(2).

       Shortly thereafter, on May 24, 2011, Relators filed their

first-amended       complaint.         Relevant       here,    Relators      added        new

allegations of a separate fraudulent scheme that, from April

2007 through April 2011, Academi routinely failed to qualify its

contractors on two of the required weapons                     -- the M-240 and M-

249 belt-fed machine guns -- and fabricated scorecards showing

proficiency    with     these      firearms     for    submission      to    the        State

Department.        As a result, the first-amended complaint alleged

                                           8
that     Academi     fraudulently        billed     the     State        Department        for

security    services       performed     by    contractors         who    had        not   been

tested     for,    much    less    achieved,       the      requisite          marksmanship

scores     (hereinafter,          the    “weapons        qualification               scheme”).

Relators     provided       specific      dates        of    the    alleged            weapons

qualification scheme and maintained that they, personally, were

never certified with these weapons during their deployments.

        While Relators’ first-amended complaint remained pending,

two former firearm instructors with Academi, Robert Winston and

Allan     Wheeler,     contacted        Relators’      counsel          with     additional

information about the weapons qualification scheme.                             Eventually,

Winston and Wheeler filed a separate lawsuit against Academi

(the     “Winston     complaint”),         alleging         they    were         wrongfully

terminated from their employment with Academi for reporting the

weapons    qualification       scheme     up     the    chain      of    command.           See

Winston v. Academi Training Ctr., Inc., No. 1:12cv767, ECF No. 1

(E.D. Va. July 12, 2012).                The Winston complaint detailed the

State    Department       contract,      the    weapons      qualification             testing

requirements,        and      Academi’s         failure       to        conduct         proper

marksmanship       testing.        Id.         Notably,      however,          the    Winston

complaint was not filed as a qui tam action, so its allegations

were not under seal and were thus available to the public from

the date of its filing.



                                           9
       The   Winston    complaint        generated    media    attention,        and    on

July 16, 2012, an online news publication, Wired.com, published

a story about the case.             See Spencer Ackerman, Mercenaries Sue

Blackwater Over Fake Gun Tests, Wired (July 16, 2012, 4:00 AM),

http://www.wired.com/2012/07/blackwater-lawsuit/.                     The    article

described the Winston plaintiffs’ allegations of retaliation and

the   weapons      qualification        scheme,   specifically      explaining         how

Academi      “falsif[ied]      dozens     of    marksmanship    tests      for    [its]

security contractors.”            Id.    The article also mentioned by name

the Relators’ pending qui tam suit.

       Ultimately,      the      Government       declined     to    intervene         in

Relators’     case    and   it    was    unsealed.      Relators     then    filed      a

second-amended complaint on November 19, 2012, which became the

operative pleading.         In addition to inserting non-qui tam claims

that are not relevant on appeal, the second-amended complaint

expanded the allegations as to the weapons qualification scheme

by adding a number of paragraphs from the Winston complaint that

further      detailed   the      State   Department     contract    and     Academi’s

alleged failure to meet its weapons testing requirements.

                                           B.

       Academi moved to dismiss Relators’ qui tam claims under the

first-to-file and public-disclosure bars, as well as for failing

to    meet   the    pleading     requirements      of   Federal     Rule    of    Civil

Procedure 9(b).         See Harrison v. Westinghouse Savannah River

                                           10
Co., 176 F.3d 776, 783–84 (4th Cir. 1999) (explaining that suits

brought under the FCA sound in fraud, and thus are “subject to

Federal       Rule    of     Civil    Procedure      9(b),       which      requires         that

claimants plead fraud with particularity”).

       The district court granted Academi’s motion.                         Specifically,

the court rejected the weapons qualification scheme under the

public-disclosure bar. 3             Using the post-2010 amended version of

the FCA, the court first determined that the Wired.com article

was    a    “public     disclosure”        as    that     term    is     defined        in    the

statute.       U.S. ex rel. Beauchamp v. Academi Training Ctr., Inc.,

933    F.     Supp.     2d    825,    845       (E.D.    Va.     2013).           With       that

prerequisite established, the court then turned to the timing of

the article’s disclosure, noting it must precede Relators’ suit

in    order    to    function    as    a    bar.        Id.      Because     Relators         had

amended their complaint several times, the issue became which

was the proper pleading for purposes of the statutory timing

benchmark.           Citing     Rockwell        International          Corp.      v.     United

States, 549 U.S. 457 (2007), the district court determined that

only the most recent complaint was relevant to this analysis.

See Beauchamp, 933 F. Supp. 2d at 845 (“The public disclosure

bar    inquiry        applies    to     ‘the       allegations         in   the        original


       3
       The district court also dismissed Relators’ other claims
on the merits.     See Beauchamp, 933 F. Supp. 2d at 841-43.
Relators have not challenged those decisions in this appeal.


                                             11
complaint as amended[,]’ [and thus] ‘courts look to the amended

complaint         to       determine      jurisdiction.’”).          Observing      that

Relators’         last      pleading      --   the    second-amended      complaint    --

postdated the Wired.com article, the court concluded that the

article      was       a    qualifying      public    disclosure     so   the    public-

disclosure bar applied.               Id.

       The court then considered whether Relators were nonetheless

protected under the original source exception.                       The court found

this exception inapplicable because Relators failed to disclose

Academi’s         fraud      to    the    government     in    accordance    with     the

statute.      Id. at 845-46.

       In    light         of     those   determinations,      the   district       court

declined to address Academi’s Rule 9(b) arguments.                          See id. at

846 n.40.         This appeal followed, and we have jurisdiction under

28 U.S.C. § 1291.



                                               III.

       Relators’ appeal is limited to the weapons qualification

scheme      and    the      district      court’s     application    of    the   public-

disclosure bar.             They first argue that the district court erred

when   it    found         the    Wired.com    article   was   a   qualifying     public




                                                12
disclosure. 4          Relators   contend          this   story    could     not      have

triggered      the    bar   because     it   was    published     after    the     first-

amended   complaint         initially    alleged      the   weapons     qualification

scheme.     On this point, they specifically dispute the district

court’s conclusion that Rockwell “requir[ed] it to consider only

the most recent complaint to determine when Relators alleged

Academi’s [scheme] for purposes of § 3730(e)(4)(A).”                             Opening

Br.   32-22.         Alternatively,      Relators     argue     that,     even   if    the

district court was correct regarding the Wired.com article, the

public-disclosure bar does not apply here because Relators’ suit

falls under the original source exception. 5


      4The phrase “qualifying public disclosure” is a term of art
used to identify a public disclosure that meets the statutory
requirements of § 3730(e)(4)(A) and therefore triggers the bar.
See May, 737 F.3d at 919-20.
     5 The parties agreed below, and the district court applied,

the post-amendment public-disclosure bar as the appropriate
statutory framework.    Academi now contests its application in
light of intervening precedent holding that the 2010 FCA
amendments should not be employed retroactively.    See May, 737
F.3d at 917-18.   Academi argues that because its alleged fraud
spans 2010, the district court should “have split the public
disclosure analysis between the current and former versions of
the [public-disclosure bar] depending upon [when the] conduct
occurred.”   Response Br. 17-18.    Academi concedes that it did
not raise this issue below but contends we should reach it now
by applying, in the first instance, the pre-amendment public-
disclosure bar to the pre-March 23, 2010 allegations.
     Ordinarily, Academi’s concession would constitute waiver of
the issue and preclude our review. See United States v. Evans,
404 F.3d 227, 236 n.5 (4th Cir. 2005). However, we do not find
waiver here since there could be jurisdictional implications.
See May, 737 F.3d at 916 (“Under the prior version of the
statute, § 3730(e)(4) operated as a jurisdictional limitation --
(Continued)
                                             13
                                       A.

     The public-disclosure bar aims “to strike a balance between

encouraging    private     persons    to    root   out   fraud   and    stifling

parasitic lawsuits” in which a relator, instead of plowing new

ground, attempts to free-ride by merely reiterating previously

disclosed     fraudulent     acts.          Graham   Cty.     Soil      &    Water

Conservation Dist. v. U.S. ex rel. Wilson, 559 U.S. 280, 295

(2010).     In line with this objective, the bar applies only when

information exposing the fraud has already entered the public

domain prior to the relator’s suit.            Id. at 296 n.16 (explaining

that “parasitic lawsuits” arise when “those who learn of the

fraud through public channels . . . seek remuneration although

they contributed nothing to the exposure of the fraud”).                    Hence,

courts    considering    whether     the    public-disclosure     bar       applies

must resolve, among other things, when the public disclosure

occurred in relation to the relator’s claims.               U.S. ex rel. Gear

v. Emergency Med. Assocs. of Ill., Inc., 436 F.3d 726, 728 (7th




the public-disclosure bar, if applicable, divested the district
court  of   subject-matter    jurisdiction over  the  action.”).
Nonetheless, while subject matter jurisdiction issues may exist
in other cases regarding which version of the FCA applies, that
distinction does not affect the resolution of this case.    Even
conceding Academi is correct as to bifurcating the analysis of a
claim which spans the amendment of the statute, the district
court’s decision below was erroneous under either version of the
public-disclosure bar.     Thus, we need delve no further into
Academi’s arguments on this point.


                                       14
Cir. 2006) (“The first issue, then, is whether the information

on which the complaint is based was already publicly disclosed

when [the relator] filed his complaint.”).

       The parties agree that the Wired.com article is a “public

disclosure” as that term is statutorily defined under either the

pre- or post-amendment version of the FCA. 6                      See Malhotra v.

Steinberg, 770 F.3d 853, 858 (9th Cir. 2014) (“[T]he existence

of a public disclosure is a threshold condition for application

of the bar.”).          We also agree.          Thus, if the Wired.com article

came later than the applicable part of Relators’ claims, the

public-disclosure bar has no application here.

       It is undisputed that Relators initially pled the weapons

qualification scheme in their first-amended complaint more than

a   year     before    the   Wired.com    story.      Following    that   article,

however,         Relators    filed   a   second-amended     complaint     that   re-

alleged this fraud and added further detail about it gleaned

from       the   article.      Academi     argued,    and   the   district   court

agreed, that under the Supreme Court’s decision in Rockwell,


       6Courts have unanimously construed the term “public
disclosure” to include websites and online articles.         See
Schindler Elevator Corp. v. U.S. ex rel. Kirk, 563 U.S. 401, 408
(2011)   (“The   other   sources   of   public   disclosure   in
§ 3730(e)(4)(A), especially ‘news media,’ suggest that the
public disclosure bar provides ‘a broa[d] sweep.’”); Osheroff,
776 F.3d at 813 (concluding that newspapers and publicly
available websites qualified as “news media” under the public
disclosure provision).


                                           15
Relators’    last   pleading     was    the       appropriate          statutory     timing

benchmark    when     applying        the        public-disclosure            bar.       See

Beauchamp,    933   F.   Supp.    2d    at        845.         And    because    Relators’

second-amended      complaint    postdated          the    Wired.com          article,   the

district    court    found     that    story       to     be    a     qualifying     public

disclosure   that    triggered        the    bar.         Id.        In   substance,     the

district court concluded that the timing of Relators’ claims for

public-disclosure bar purposes was set by the filing date of

their most recent complaint instead of when the relevant claims

were first alleged.

                                            B.

     In adopting the view that only the most recent pleading

should control the public-disclosure bar’s timing, Academi and

the district court misapprehend the factual and legal basis of

the Supreme Court’s decision in Rockwell.

     In Rockwell, a nuclear weapons plant attempted to dispose

of hazardous waste by combining it with concrete in solid blocks

called “pondcrete.”          549 U.S. at 461.             The Rockwell relator, a

plant   engineer,     reviewed        the    plans        and        stated    before    the

procedure was undertaken that it would fail because of flaws in

the piping system.       Id.     The plant later discovered that many of

the blocks did in fact leak.                     Id.      When this environmental

violation came to light, the relator filed suit alleging that

faulty piping was to blame and the plant’s claims for payment to

                                            16
the government were therefore fraudulent under the FCA.                          Id. at

463.      During     discovery,    however,       the    relator     abandoned        the

piping-defect allegations, instead claiming for the first time a

new theory of fraud liability: that the leak was the result of

an improper waste mixture.            Id. at 465.         The case proceeded to

trial, and the relator prevailed on his new theory.

       The defendant subsequently moved to set aside the verdict

under    the    public-disclosure        bar,    asserting    that    the       relevant

fraudulent scheme (the last filed improper-waste-mixture claim)

had    been    publically    disclosed.          Id.    at   466.         The   relator

conceded that his successful claim was based on a qualifying

public disclosure, but he argued that he nevertheless qualified

as an “original source.”          Id. at 467.          The pre-amendment public-

disclosure bar at issue in Rockwell defined “original source” as

an    individual     with   “direct   and       independent    knowledge         of   the

information on which the allegations [of the FCA action] are

based.”       Id.

       The Rockwell relator, however, did not contend that he had

“direct and independent” information as an original source for

his     successful     improper-waste-mixture           theory.       Instead,         he

argued that he was an original source for FCA purposes based on

his    insider      knowledge    about    the     first-pled,       but    abandoned,

piping-system claim.            Thus, the relator argued to the Supreme



                                          17
Court   that    it    should     focus    on    the    allegations       in   the   first

complaint to determine his original source status.                       Id. at 473.

     The   Supreme      Court     found    the    Rockwell        relator’s       argument

without merit, holding that the original source provision did

not speak in terms of allegations in the original complaint,

“but of the relator’s ‘allegations’ simpliciter.”                          Id.      Simply

put, the FCA inquiry went to the relevant claim before the court

(there, the improper-waste-mixture claim), and evaluating that

claim required review of the pleading that first raised it.

     The   Supreme       Court     thus    held       that   the       original     source

question   required          consideration        of     “(at      a     minimum)     the

allegations     in     the     original        complaint     as     amended.”         Id.

Accordingly, even though the relator may have been an original

source as to the piping-defect claims asserted in the original

complaint, the Court found those allegations irrelevant because

the relator had abandoned them in favor of a wholly different

fraud theory.        Id. at 475 (declining to “determine jurisdiction

on the basis of whether the relator is an original source of

information underlying allegations that he no longer makes”).

     Instead of examining the rationale of the Supreme Court’s

decision in Rockwell, the district court mechanically applied

the statement        that    “courts     look    to    the   amended      complaint    to

determine jurisdiction.”           Id. at 474.         As a result, the district

court    used        Relators’     last        pleading,      the        second-amended

                                           18
complaint, to determine when the weapons qualification scheme

was   alleged     for    purposes       of    § 3730(e)(4)(A).               We    find    this

application of Rockwell faulty, as it takes the Supreme Court’s

words and holding wholly out of context and fails to analyze the

public-disclosure         bar    on     the    basis       of    the       relevant       fraud

alleged.

      The Supreme Court in Rockwell focused on the relator’s last

pleading only because that was where the relevant fraud, the

improper-waste-mixture theory, had been pled.                          The Court sought

to match the relevant claim of fraud with the pleading that

raised   it     to    determine    whether         the    relator      was    an    original

source     as    to     that     claim.            The    Supreme      Court’s        holding

effectively reiterated existing law in the qui tam setting, that

judicial review is based on a claim by claim analysis.                                See In

re Nat. Gas Royalties, 562 F.3d 1032, 1040 (10th Cir. 2009)

(“Relator       correctly      points    out       that   we    use    a    claim-by-claim

analysis to determine whether the allegations in a complaint

were publicly disclosed.”).

      Here, however, the district court failed to evaluate the

relevant fraud claim, the weapons qualification scheme, under

the pleading that first alleged that fraud: the first-amended

complaint.           Relators’    second-amended           complaint         merely       added

further detail about a claim already alleged.                              On such facts,

Rockwell does not limit our public-disclosure analysis to the

                                              19
latest     pleading.          Recognizing           this   limitation,       our     sister

circuits have been reluctant to expand Rockwell’s last-pleading

rule as the district court did below.                        See, e.g., U.S. ex rel.

Jamison v. McKesson Corp., 649 F.3d 322, 328 (5th Cir. 2011)

(distinguishing Rockwell and explaining that we “look to [the

relator’s] original complaint . . . to determine whether it was

based on public disclosures of allegations or transactions”);

U.S. ex rel. Branch Consultants, LLC v. Allstate Ins. Co., 782

F.   Supp.    2d    248,     261    (E.D.      La.    2011)    (“[Rockwell]        did   not

suggest      that    the     original      complaint         becomes    irrelevant       for

jurisdictional purposes once an amended complaint is filed.                              To

the contrary, the Court stated that its holding was consistent

with ‘[t]he rule that subject-matter jurisdiction depends on the

state of things at the time of the action brought.’”).

      Focusing       our    inquiry       on   when    the    relevant      claims    first

appeared     in     the    case    also    aligns     with     the     public-disclosure

bar’s purpose.            See Crandon v. United States, 494 U.S. 152, 158

(1990) (“In determining the meaning of the statute, we look not

only to the particular statutory language, but to the design of

the statute as a whole and to its object and policy.”).                            We have

consistently        observed       that    Congress’s        goal    with   the    public-

disclosure bar was to encourage qui tam suits while preventing

only “parasitic” claims “in which relators, rather than bringing

to light independently-discovered information of fraud, simply

                                               20
feed off of previous disclosures of government fraud.”                          Siller,

21 F.3d at 1347.          The weapons qualification scheme was pled in

Relators’ first-amended complaint.                 It was not a new fraudulent

scheme first introduced after the Wired.com public disclosure.

Where    the   relevant    fraud      is   first     alleged    before    the    public

disclosure,      as      occurred     here,     the     suit     is    plainly      not

“parasitic.”      See Graham Cty., 559 U.S. at 296 n.16.

      We     therefore    conclude     that     the   determination       of     when    a

plaintiff’s claims arise for purposes of the public-disclosure

bar     is   governed     by    the    date     of     the     first     pleading       to

particularly allege the relevant fraud and not by the timing of

any subsequent pleading.            See U.S. ex rel. Ackley v. Int’l Bus.

Machs. Corp., 76 F. Supp. 2d 654, 660 (D. Md. 1999) (looking to

the   relator’s       initial   complaint       where    the     fraud     was    first

alleged); U.S. ex rel. Adams v. Wells Fargo Bank Nat’l Ass’n,

No. 2:11-CV-00535-RCJ-PAL, 2013 WL 6506732, at *6 (D. Nev. Dec.

11, 2013) (same).         In Rockwell terms, the relevant fraud here is

the weapons qualification scheme, which predated the Wired.com

article in the first-amended complaint.                  The contrary position,

adopted by the district court and pressed by Academi, misreads

Rockwell and does not comport with the objectives underlying

§ 3730(e)(4)(A).         The district court thus erred in holding the

second-amended complaint was the relevant pleading by which to

measure the public-disclosure bar.

                                           21
                                      C.

      Academi further argues that, even if the district court

erred in applying Rockwell, Relators’ second-amended complaint

was “the first [pleading] that describes with specificity the

weapons qualification scheme.”         Response Br. 28.       Consequently,

Academi posits, the timing of the second-amended complaint still

controls when the weapons qualification scheme was alleged.                  We

disagree.

      In   their   first-amended   complaint,      Relators   alleged      that

Academi did not qualify its employees on the M-240 and M-249

belt-fed weapons as required under the government contract and

intentionally submitted false documents to the State Department

to conceal this failure.       See J.A. 39 (“[Academi] fraudulently

billed their services to the Department of State, as none of the

independent contractors [were] qualified to shoot M-240s and M-

249s.”).      Relators   further   provided      specific   dates    on   which

Academi falsified their weapons scores, and alleged that this

practice occurred throughout training centers in Afghanistan and

Iraq.      See id. (“Mr. Beauchamp’s score cards from October 4,

2010, April 3, 2010, July 23, 2010, . . . and April 8, 2011 are

fraudulent.”).      These allegations were sufficient for purposes

of   the   public-disclosure   bar.        See   United   States    v.    Triple

Canopy, Inc., 775 F.3d 628, 636 (4th Cir. 2015) (explaining that

a relator “pleads a false claim when [he or she] alleges that

                                      22
the contractor, with the requisite scienter, made a request for

payment under a contract and ‘withheld information about its

noncompliance with material contractual requirements.’”).

       At bottom, the public-disclosure bar does not apply here.

Relators sufficiently pled the weapons qualifications scheme in

their       first-amended      complaint         that   came      well    before     the

Wired.com article.           The district court thus wrongly concluded

that       this   article    was    a     qualifying     public      disclosure    that

triggered the bar.           And without a qualifying public disclosure,

the district court erred by dismissing these claims under either

version      of   § 3730(e)(4)(A).           See,   e.g.,      Walburn    v.    Lockheed

Martin Corp., 431 F.3d 966, 974 (6th Cir. 2005) (observing that

the existence of a qualifying public disclosure is a threshold

condition for application of the bar). 7

       Having      concluded       that    no    qualifying      public    disclosure

occurred      within   the     meaning      of   the    FCA,    we   do   not    address

       7
       To be clear, our holding today does not suggest that a
plaintiff can raise skeletal claims of fraud and then use such a
pleading to avoid the public-disclosure bar when he or she later
files an amended complaint that adds necessary facts gleaned
from the public domain.   We agree with Academi that under such
circumstances the initial complaint should not dictate when the
relator’s claims were first brought. Cf. United States v. Educ.
Mgmt. LLC, No. 2:07-cv-461, 2014 WL 2766115, at *2 (W.D. Pa.
June 18, 2014) (“[A]n amended complaint which sets forth a
fundamentally different fraudulent scheme [does] not relate back
in time to the original complaint.”).    Conversely, however, an
amended complaint that merely adds detail to a previously pled
cause of action does not reset the clock for when the relator’s
claims were alleged. That is the circumstance in this case.


                                            23
Relators’ alternative arguments that they were original sources

of the information.          See U.S. ex rel. Holmes v. Consumer Ins.

Grp., 318 F.3d 1199, 1208 (10th Cir. 2003) (en banc) (“[W]here,

as here, there was no public disclosure, the . . . inquiry under

§ 3730(e)(4) ceases, regardless of whether the relator qualifies

as an original source.”).



                                        IV.

     In the final portion of its brief, Academi offers several

alternate grounds for affirmance that do not require extended

discussion.

     First,    Academi       contends   that     the       Winston     complaint     is

another public disclosure that preempts Relators’ claims under

the public-disclosure bar.           We are unpersuaded.              As previously

discussed,     the   Winston      complaint     was    filed       after     Relators’

first-amended complaint that alleged the weapons qualification

scheme, and therefore it does not trigger the public-disclosure

bar for the same reasons already explained.

     Academi     next    argues     that     U.S.     ex    rel.     Davis   v.   U.S.

Training Ctr.,       Inc.,    No.   1:08cv1244      (E.D.     Va.    filed    Dec.   1,

2008), another FCA case filed against Academi in some of its

prior corporate forms, also triggered the public-disclosure bar.

The complaint in Davis was unsealed in 2010, and thus the Davis

action undisputedly preceded the instant case.                      Nonetheless, as

                                        24
the district court correctly noted, the scheme alleged in Davis

was   that   Academi      committed     fraud      by     recruiting     persons          who

“because of drug use and predilection for violence are . . .

unqualified for employment in ‘shooter’ positions.”                          Beauchamp,

933   F.   Supp.    2d    at   839.    That    fraud      claim    is   distinct          and

unrelated to the weapons qualification scheme at issue here, and

thus the disclosures in the Davis litigation also do not trigger

the public-disclosure bar.            See U.S. ex rel. Found. Aiding the

Elderly v. Horizon West, Inc., 265 F.3d 1011, 1016 (9th Cir.

2001) (explaining that “unrelated allegations of fraud cannot

trigger § 3730(e)(4)(A)”).

      Academi further argues that the Davis case, even if not a

disqualifying       public     disclosure,     is    a    preclusive         first-filed

action under the FCA’s corresponding first-to-file bar.                             See 31

U.S.C. § 3730(b)(5).            In broad strokes, the first-to-file bar

prohibits later-filed FCA actions while an earlier-filed case

based on the same fraud remains pending.                     See Kellogg Brown &

Root Servs., Inc. v. U.S. ex rel. Carter, 135 S. Ct. 1970, 1974-

79 (2015).         Academi contends that because the Davis case was

pending when this action was filed, the first-to-file bar must

apply to preclude Relators’ claims.                     We again disagree.                The

first-to-file       bar   applies     only    to    “related      actions,”         and    as

noted,     the   fraud    claimed     here    is    not    related      to    the    fraud

alleged in Davis.         See Beauchamp, 933 F. Supp. 2d at 837-38.

                                         25
       Finally, Academi argues that Relators failed to plead the

weapons qualification scheme with the “particularity” that Rule

9(b)   requires    for   fraud   claims,   thus   rendering      these   claims

deficient regardless of the foregoing.             See Harrison, 176 F.3d

at 783–84.   In light of its ruling on the public-disclosure bar,

the district court declined to reach this alternative argument.

Id. at 846 n.40.         We deem it more appropriate to allow the

district   court    to   consider   Academi’s     Rule    9(b)   argument,   if

necessary, in the first instance on remand.                See Davani v. Va.

Dep’t of Transp., 434 F.3d 712, 720 (4th Cir. 2006).



                                     V.

       For the foregoing reasons, we vacate the portion of the

district     court’s       order     dismissing          Relators’       weapons

qualification claims under the public-disclosure bar and remand

for further proceedings consistent with this opinion.



                                                         VACATED AND REMANDED




                                     26
