                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, ex rel.,       
MICHAEL M. MEYER; PATRICIA J.
SZERLIP,                                        No. 06-17084
            Plaintiffs-Appellants,
                                                 D.C. No.
                                              CV-00-01303-SBA
              v.
HORIZON HEALTH CORPORATION;                      OPINION
SUMMIT MEDICAL CENTER;
SUKHDEEP GREWAL, M.D.,
           Defendants-Appellees.
                                         
        Appeal from the United States District Court
           for the Northern District of California
       Saundra B. Armstrong, District Judge, Presiding

                    Argued and Submitted
         January 13, 2009—San Francisco, California

                       Filed May 14, 2009

   Before: Myron H. Bright,* Stephen Reinhardt, and A.
            Wallace Tashima, Circuit Judges.

             Opinion by Judge Myron H. Bright;
                 Dissent by Judge Reinhardt




   *The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.

                               5799
5802           MEYER v. HORIZON HEALTH CORP.




                        COUNSEL

Sarah S. Wright, San Rafael, California, and John A.
McGuinn, San Francisco, California, for the plaintiffs-
appellants.

Thomas M. Brown, Kenneth P. White, George P. Schiavelli,
Teresa Cespedes Ellis, and Amber Finch, Los Angeles, Cali-
fornia, for defendant-appellee Horizon Health Corporation.

Gregory M. Luce, Washington, D.C., and Shawn Hanson and
Tracy M. Strong, San Francisco, California, for defendant-
appellee Summit Medical Center.

Robert R. Moore and Michael J. Betz, San Francisco, Califor-
nia, for defendant-appellee Sukhdeep Grewal, M.D.
                MEYER v. HORIZON HEALTH CORP.              5803
                          OPINION

BRIGHT, Circuit Judge:

   In this appeal, qui tam relators Michael M. Meyer and
Patricia J. Szerlip contend that the district court erred by
granting a motion to dismiss for lack of subject-matter juris-
diction brought by Horizon Health Corporation, Summit Med-
ical Center, and Dr. Sukhdeep Grewal (collectively
“appellees”). The principal issues on appeal relate to whether
relators’ fraud allegations are based on a public disclosure,
and, if so, whether the relators were the original source of
those allegations. Having jurisdiction under 28 U.S.C. § 1291,
we affirm.

         FACTS AND PROCEDURAL HISTORY

   In 2000, relators Meyer, Szerlip, and Vicki Weatherford
sued appellees, asserting claims under the qui tam provisions
of the False Claims Act, 31 U.S.C. §§ 3729-3733 (“the Act”).
Meyer and Szerlip were psychiatric nurses employed by Sum-
mit; Weatherford was employed by Horizon as the “Senior
Bridges” program director. The Senior Bridges program was
a geropsychiatric unit managed by Horizon at a facility owned
by Summit.

   The gravamen of relators’ allegations assert that appellees
fraudulently billed Medicare for patient services. Specifically,
relators contend that appellees admitted patients to the Senior
Bridges program despite knowing that those patients, who
suffered from dementia, could not benefit from the program.
Appellees received a considerably larger daily Medicare reim-
bursement for a patient in the Senior Bridges program
($1,830) than for a patient in the regular “medical/surgical
unit” ($1,085).

  After a long delay in its decision, the government in May
2004 declined to intervene. Relators then filed their First
5804            MEYER v. HORIZON HEALTH CORP.
Amended Complaint (“FAC”) against appellees in September
2004. Appellees moved to dismiss the FAC, asserting that
relators failed to allege the fraud with particularity. The dis-
trict court granted the motion to dismiss, but permitted rela-
tors to file a Second Amended Complaint (“SAC”), which
they filed in May 2005. Appellees moved to dismiss the SAC
under Fed. R. Civ. P. 9(b) and 12(b)(6). In September 2005,
the district court granted appellees’ motion, dismissed the
complaint, and granted relators leave to file a Third Amended
Complaint (“TAC”). After relators filed the TAC, appellees
moved to dismiss the TAC under Fed. R. Civ. P. 9(b) and
12(b)(6), which the district court denied.

   In March 2006, relator Weatherford withdrew from the suit.
In August 2006, appellees moved to dismiss the TAC under
Fed. R. Civ. P. 12(b)(1), arguing that the district court lacked
subject-matter jurisdiction because the allegations of the
remaining relators, Meyer and Szerlip, had been publicly dis-
closed by Weatherford’s 1999 state-court wrongful-
termination suit and they were not original sources of the alle-
gations. The district court granted the motion, dismissed the
TAC, and this appeal follows.

                        DISCUSSION

I.   The district court did not err by granting appellees’
     motion to dismiss.

   Relators contend first that the district court improperly
granted appellees’ 12(b)(1) motion to dismiss the TAC. Spe-
cifically, relators challenge the district court’s determinations
that the TAC was based on prior public disclosure and that the
relators did not qualify as original sources of the allegations.
We review a district court’s conclusion that it lacks subject-
matter jurisdiction de novo and the findings of fact relevant
to that determination for clear error. See A-1 Ambulance Serv.,
Inc. v. California, 202 F.3d 1238, 1242-43 (9th Cir. 2000).
                MEYER v. HORIZON HEALTH CORP.                 5805
   [1] The Act prohibits false or fraudulent claims for pay-
ment to the United States, 31 U.S.C. § 3729(a), and authorizes
civil actions to remedy such fraud to be brought by the Attor-
ney General, § 3730(a), or by private individuals in the gov-
ernment’s name, § 3730(b)(1). But the Act provides that

    [n]o 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, adminis-
    trative, 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 origi-
    nal source of the information.

§ 3730(e)(4)(A).

   [2] The public-disclosure bar in § 3730(e)(4)(A) sets up a
two-tiered inquiry. First, “we must determine whether there
has been a prior ‘public disclosure’ of the ‘allegations or
transactions’ underlying the qui tam suit.” A-1 Ambulance
Serv., 202 F.3d at 1243. “If and only if there has been such
a public disclosure, we next must inquire whether the relator
is an ‘original source’ within the meaning of
§ 3730(e)(4)(B).” Id. Relators, as the qui tam plaintiffs, bear
the burden of establishing subject-matter jurisdiction by a pre-
ponderance of the evidence. United States v. Alcan Elec. &
Eng’g, Inc., 197 F.3d 1014, 1018 (9th Cir. 1999). We now
turn to this analysis.

  A.   Public disclosure

   Relators filed this suit in April 2000 after very similar alle-
gations were publicly disclosed in a wrongful-termination suit
that Weatherford filed in state court in October 1999. Accord-
ingly, the district court dismissed relators’ suit, holding that
the Weatherford suit was a public disclosure and that relators’
5806            MEYER v. HORIZON HEALTH CORP.
qui tam allegations “plainly share a substantial identity with
the allegations disclosed through the Weatherford complaint
filed in state court in 1999.” Whether a particular disclosure
“triggers the jurisdictional bar of § 3730(e)(4)(A) is a mixed
question of law and fact, which we review de novo.” A-1
Ambulance Serv., 202 F.3d at 1243.

   The public-disclosure question potentially implicates two
distinct but related determinations. First, “we must decide
whether the public disclosure originated in one of the sources
enumerated in the statute.” Id. When a public disclosure origi-
nates in one of these sources, we must then determine
“whether the content of the disclosure consisted of the ‘alle-
gations or transactions’ giving rise to the relator’s claim, as
opposed to ‘mere information.’ ” Id. (quoting Hagood v.
Sonoma County Water Agency, 81 F.3d 1465, 1473 (9th Cir.
1996)). For a qui tam suit to be “based upon” a prior public
disclosure, § 3730(e)(4)(A), the publicly disclosed facts need
not be identical with, but only substantially similar to, the
relator’s allegations. See United States ex rel. Lujan v. Hughes
Aircraft Co., 243 F.3d 1181, 1189 (9th Cir. 2001); see also
United States ex rel. Biddle v. Bd. of Trustees of Leland Stan-
ford, Jr. Univ., 161 F.3d 533, 537 (9th Cir. 1998) (“[A] claim
is ‘based upon’ public disclosure when the claim repeats alle-
gations that have already been disclosed to the public.”).

   Here, relators concede that (1) Weatherford filed her suit
nearly six months before they filed this suit; (2) the Weather-
ford suit contains similar fraud allegations; and (3) a lawsuit
can publicly disclose allegations or transactions under the
Act. Relators argue only that they “made the first public dis-
closure when they presented evidence to the government
through their counsel to Medicare fraud investigator Steven
M. Lack, on July 6, 1999, fully three months before the
Weatherford lawsuit.” In other words, their suit is not subject
                   MEYER v. HORIZON HEALTH CORP.                        5807
to the Act’s public-disclosure bar because they “were the first
to disclose the Medicare fraud.”1 We reject this contention.

   Even accepting relators’ assertion that they disclosed the
allegations of Medicare fraud to the government before
Weatherford filed her suit, we reject relators’ argument
because it fails the first prong of the two-part test described
in A-1 Ambulance Serv.2

   [3] Public disclosure may occur in only three categories of
fora: (1) in a “criminal, civil, or administrative hearing”; (2)
in a “congressional, administrative, or Government Account-
ing Office report, hearing, audit, or investigation”; or (3) in
the “news media.” § 3730(e)(4)(A); A-1 Ambulance Serv.,
202 F.3d at 1243. Relators’ apparent argument is that they
made the first public disclosure by informing the government
of the allegations during a meeting with Investigator Lack.
But relators offer no argument (and cite no authority) in sup-
port of their contention that such a private disclosure to a gov-
ernment employee is a public disclosure, as the Act defines
the term.

   [4] In any event, relators’ argument, which asks us to read
into the Act a fourth forum for a public disclosure, is fore-
  1
     In their reply brief, relators argue additionally that “[t]he Weatherford
action is not a prior public disclosure because this action picks up from
where the Weatherford action left off.” But this new theory, first raised in
relators’ reply brief, is waived. See Alcan Elec. & Eng’g, Inc., 197 F.3d
at 1020 (stating that arguments raised on appeal for the first time in a reply
brief are waived).
   2
     Appellees brought a factual, as opposed to facial, motion to dismiss for
lack of subject-matter jurisdiction. See Safe Air for Everyone v. Meyer,
373 F.3d 1035, 1039 (9th Cir. 2004) (explaining the distinction). Accord-
ingly, we “need not presume the truthfulness of the plaintiffs’ allegations”
and may “look beyond the complaint . . . without having to convert the
motion into one for summary judgment.” White v. Lee, 227 F.3d 1214,
1242 (9th Cir. 2000). Here, however, we accept relators’ version of the
facts as true for purpose of their public-disclosure argument because, even
under their version, relators’ argument would fail.
5808               MEYER v. HORIZON HEALTH CORP.
closed by caselaw. For example, this court has held that “in-
formation that was ‘disclosed in private’ ” is not a public
disclosure under the Act.3 United States ex rel. Schumer v.
Hughes Aircraft Co., 63 F.3d 1512, 1518 (9th Cir. 1995)
(quoting United States ex rel. Stinson, Lyons, Gerlin & Busta-
mante v. Prudential Ins. Co., 944 F.2d 1149, 1161 (3d Cir.
1991)), vacated on other grounds by 520 U.S. 939 (1997); see
also United States ex rel. Devlin v. California, 84 F.3d 358,
360 (9th Cir. 1996) (holding that, although a newspaper arti-
cle was a public disclosure, a relator’s private disclosure to a
reporter in advance of publication was not a public disclo-
sure). This rule applies even when the private disclosure is
made to a government employee. See Hughes Aircraft, 63
F.3d at 1518. Moreover, a public disclosure is restricted to
information that is actually made public as opposed to mate-
rial that is “ ‘only theoretically available upon the public’s
request.’ ” Id. at 1519-20 (quoting United States ex rel.
Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645, 652-53
(D.C. Cir. 1994)). Thus, even when the government has the
information, it is not publicly disclosed under the Act until it
is actually disclosed to the public. See id.

   [5] Accordingly, even if relators disclosed the alleged Med-
icare fraud to Investigator Lack before Weatherford filed her
  3
    We also note that the majority of circuits that have considered the issue
have concluded that disclosure to the government, without more, is not a
public disclosure under § 3730(e)(4)(A). See, e.g., United States ex rel.
Rost v. Pfizer, Inc., 507 F.3d 720, 728 (1st Cir. 2007) (“In our view, a
‘public disclosure’ requires that there be some act of disclosure to the pub-
lic outside of the government.”); Kennard v. Comstock Res., Inc., 363 F.3d
1039, 1043 (10th Cir. 2004) (holding that the public-disclosure require-
ment “clearly contemplates that the information be in the public domain
in some capacity and the Government is not the equivalent of the public
domain”); United States ex rel. Williams v. NEC Corp., 931 F.2d 1493,
1499-1500 (11th Cir. 1991) (stating that a report submitted to government
officials was not a public disclosure under the Act). But see United States
v. Bank of Farmington, 166 F.3d 853, 861 (7th Cir. 1999) (“Disclosure to
an official authorized to act for or to represent the community on behalf
of government can be understood as public disclosure.”).
                MEYER v. HORIZON HEALTH CORP.                 5809
suit, such a disclosure would not be a public disclosure within
the meaning of the Act. And because it would not qualify as
a public disclosure, relators’ argument that they first publicly
disclosed the allegations must be rejected.

  B.   Original Source

   [6] Because the Weatherford suit publicly disclosed the
allegations in relators’ suit, we must next consider whether
relators are original sources under the Act. See
§ 3730(e)(4)(A), (B); A-1 Ambulance Serv., 202 F.3d at 1243.
An original source is an individual who has “direct and inde-
pendent knowledge of the information on which the allega-
tions are based and has voluntarily provided the information
to the Government before filing an action under this section
which is based on the information.” § 3730(e)(4)(B); see also
Rockwell Int’l Corp. v. United States, 127 S. Ct. 1397, 1405
(2007). This court has held that to be an original source, a
relator “must satisfy an additional requirement under
§ 3730(e)(4)(A) that is not in the statute in haec verba,”
namely that he “ ‘had a hand in the public disclosure of the
allegations that are a part of [his] suit.’ ” United States ex rel.
Zaretsky v. Johnson Controls, Inc., 457 F.3d 1009, 1013 (9th
Cir. 2006) (alteration in original) (quoting Wang v. FMC
Corp., 975 F.2d 1412, 1417 (9th Cir. 1992)). Thus, post-
Wang, the requirements for the original-source exception are
as follows:

    To qualify as an original source, a relator must show
    that he or she [1] has direct and independent knowl-
    edge of the information on which the allegations are
    based, [2] voluntarily provided the information to the
    government before filing his or her qui tam action,
    and [3] had a hand in the public disclosure of allega-
    tions that are a part of . . . [the] suit.

United States ex rel. Lujan v. Hughes Aircraft Co., 162 F.3d
1027, 1033 (9th Cir. 1998) (internal quotation marks omitted).
5810               MEYER v. HORIZON HEALTH CORP.
   Relators contend that the district court erred by concluding
that they were not original sources under the Act. We dis-
agree.

   Initially, we note a potentially fatal defect with relators’
original-source argument. The pages of relators’ opening brief
do not easily reveal why the district court allegedly erred in
concluding that relators were not original sources. As dis-
cussed above, relators argue that there was no prior public
disclosure of the allegations and assert that the conversations
with Investigator Lack were a public disclosure. But in the
course of making that short argument,4 they also baldly con-
clude that they “meet the Ninth Circuit’s test for ‘original
sources.’ ” An appellant’s brief “must contain . . . appellant’s
contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant
relies.” Fed. R. App. P. 28(a)(9) (emphasis added). This court
deems issues unsupported by argument to be abandoned. See
Self Directed Placement Corp. v. Control Data Corp., 908
F.2d 462, 467 (9th Cir. 1990). The exegesis in relators’ reply
brief is marginally clearer, but the reply brief is ordinarily not
the place for such an analysis in the first instance on appeal.
See Alcan Elec. & Eng’g, Inc., 197 F.3d at 1020 (holding that
such arguments are waived).

   [7] In any event, we conclude that the district court did not
err by determining that relators were not original sources. To
establish the proposition that they were original sources, rela-
tors must show that they possessed “direct and independent
knowledge of the information” on which their allegations are
based. See § 3730(e)(4)(B); Rockwell, 127 S. Ct. at 1407-08.
To show direct knowledge, “the relator must show that he had
firsthand knowledge of the alleged fraud, and that he obtained
this knowledge through his own labor unmediated by any-
  4
   Relators’ opening brief dedicates only three pages to public disclosure
and the original-source exception. Relators’ reply brief, on the other hand,
dedicates 24 of its 25 pages to these issues.
                   MEYER v. HORIZON HEALTH CORP.                      5811
thing else.” Alcan Elec. & Eng’g, Inc., 197 F.3d at 1020
(internal quotation marks omitted). A relator has independent
knowledge when he knows about the allegations before that
information is publicly disclosed. Id. (“Harshman’s knowl-
edge was ‘independent’ because it preceded the public disclo-
sure in the [earlier] complaint.”).

   Here, the TAC alleges fraud solely regarding the treatment
and billing for the patient referred to as “Patient A.” Thus,
relators must have direct and independent knowledge of the
treatment and billing of Patient A. The district court found
that relators had “no such direct and independent knowledge.”
We conclude that the record supports the district court.

   [8] The TAC contains no allegation that relators had direct
and independent knowledge of appellees’ alleged attempt to
defraud the government with respect to Patient A. See Rock-
well, 127 S. Ct. at 1408-09 (stating that courts examine the
allegations in the amended complaint to determine whether a
relator qualifies as an original source under the Act). Simi-
larly, relators’ declarations filed in opposition to appellees’
motion to dismiss contain no assertion that relators had direct
and independent knowledge of appellees’ allegedly fraudulent
billing for Patient A’s services.5 The TAC and declarations
reveal, at most, that Szerlip knew about alleged fraud, not that
she had direct and independent knowledge of the alleged
fraud. This is an important distinction. The district court did
not clearly err by determining that relators lacked the requisite
direct and independent knowledge of the alleged fraud to
qualify as original sources.
   5
     More than one week after briefing on appellees’ motion to dismiss
closed, relators filed an “Ex Parte Application for Leave to File Additional
Documents,” which included new declarations of relators and relators’
counsel. As noted in Section III, infra, relators have proffered no argument
as to why we should disturb the district court’s discretionary decision to
refuse to accept these untimely materials, and, therefore, we limit our
review to the TAC and the motion papers that the district court did accept.
5812            MEYER v. HORIZON HEALTH CORP.
   We note additionally that relators have not established
another prerequisite to be an original source: that they “had a
hand in the public disclosure of allegations that are a part of
. . . [the] suit.” Wang, 975 F.2d at 1418; see also Johnson
Controls, 457 F.3d at 1018 (stating that relators must “play a
role in the public disclosure at issue”). The district court
determined that relators did not have a hand in the Weather-
ford suit, which publicly disclosed the allegations, because
they were not parties to the Weatherford suit. But we need not
determine whether a relator must actually be a party to a prior
lawsuit that publicly discloses the allegations to “have a hand
in” the public disclosure. It is sufficient to say that neither the
TAC nor relators’ declarations filed in opposition to appel-
lees’ motion to dismiss the TAC include any assertion that
relators had a hand in the Weatherford suit’s public disclosure
of the allegations.

   The district court did not err by determining from the
record before it that relators neither had direct and indepen-
dent knowledge of the alleged fraudulent practices surround-
ing Patient A nor had a hand in the public disclosure of those
allegations.

II.    Relators have withdrawn their challenge to the SAC.

   Relators contend in their opening brief that the district
court erred by concluding that the SAC failed to meet the
heightened pleading requirements of Fed. R. Civ. P. 9(b) and
dismissing the SAC on that basis. Appellees argue that rela-
tors cannot challenge the district court’s dismissal of the SAC
because relators filed the TAC, which supersedes and waives
any error involving the SAC. In their reply brief, relators con-
cede the issue, acknowledging that “by filing the TAC, they
cannot challenge the district court’s dismissal of their SAC.”
Because relators have expressly withdrawn this issue, we do
not consider it.
                MEYER v. HORIZON HEALTH CORP.              5813
III.   Appellees’ motion to strike.

   Appellees move to “(1) strike pages five through 23 of
[relators’] Reply Brief, which contain new legal argument and
record citations and, (2) strike [relators’] Supplemental
Excerpts of Record because the documents contained therein
are not part of the district court record.”

   [9] As noted throughout this opinion, we have not relied on
the arguments that relators first raised in their reply brief.
Appellees also assert that we should not consider the supple-
mental declarations filed with the Ex Parte Application for
Leave to File Additional Evidence. The district court denied
relators’ application to file these supplemental declarations,
noting that they were untimely filed as a result of relators’
“deliberate choice . . . not to respond fully to the Motion [to
dismiss]” and would amount to an “inequitable . . . surreply.”
Relators have proffered no argument regarding why the dis-
trict court abused its discretion by refusing to accept these
untimely materials. But because our holding does not rely on
either the arguments that relators first raised in their reply
brief or the supplemental declarations, we deny appellees’
motion to strike as moot.

                       CONCLUSION

   For the foregoing reasons, we AFFIRM the district court’s
dismissal of the TAC with prejudice. We also DENY appel-
lees’ motion to strike certain matters sought to be presented
by relators. Each party shall pay its own costs on this appeal.



REINHARDT, Circuit Judge, dissenting:

   I agree with the majority that the Weatherford suit consti-
tuted a public disclosure, thereby triggering the requirement
that the relators be “original sources” in order to proceed with
5814              MEYER v. HORIZON HEALTH CORP.
their qui tam suit. I disagree, however, with the majority’s
assessment of the record, and conclude that Szerlip has met
her burden of showing “original source” status, thereby estab-
lishing jurisdiction, by a preponderance of the evidence.1

   As the majority correctly states, a qui tam relator is an
“original source” of the action if she “[1] has direct and inde-
pendent knowledge of the information on which the allega-
tions are based and [2] has voluntarily provided the
information to the Government before filing an action under
this section which is based on the information.” 31 U.S.C.
§ 3730(e)(4)(B). In addition, our circuit requires that the rela-
tor has “had a hand in the public disclosure of allegations that
are a part of . . . [the] suit.” United States ex. rel. Devlin v.
State of California, 84 F.3d 358, 360 n.3 (9th Cir. 1996)
(internal quotations omitted). This third requirement is satis-
fied, however, where the relator discloses her allegations to
the government before similar allegations are publicly dis-
closed. See United States ex rel. Lujan v. Hughes Aircraft Co.,
162 F.3d 1027, 1034 (9th Cir. 1998). Doing so is considered
“indirectly” having a hand in the public disclosure. See id.

   The evidence shows by a preponderance of the evidence
that Szerlip satisfies both the second and third requirements
of “original source” status because she disclosed her allega-
tions to the government before filing this action and therefore
before the public disclosure in the Weatherford suit. Specifi-
cally, Szerlip’s attorney filed a declaration stating that Szerlip
had given her documents about the alleged fraud, including
information about “Patient A,” which she submitted to a gov-
ernment Medicare fraud investigator at a meeting on July 6,
1999. Because the Weatherford suit was not filed until Octo-
ber 5, 1999, Szerlip’s disclosure to the government through
her attorney predated the filing of that suit. The attorney’s
declaration includes a copy of a FedEx bill showing that an
  1
   Because I conclude that Szerlip meets the original source requirement,
I do not reach the question whether Meyer does as well.
                  MEYER v. HORIZON HEALTH CORP.                    5815
agent of the Office of Inspector General of the United States
Department of Health & Human Services sent her a package
on July 7, 1999, corroborating the attorney’s statement that
the agent mailed her back all the documents the day after their
meeting. Nothing in the record contradicts this evidence.2

   Szerlip also satisfies the remaining requirement for “origi-
nal source” status: that she possess “direct and independent
knowledge of the information on which the allegations are
based.” 31 U.S.C. § 3730(e)(4)(B). To have such “direct and
independent knowledge” of the fraud, a relator must show that
she had “firsthand knowledge of the alleged fraud,” which she
obtained “through [her] own labor unmediated by anything
else,” and through channels independent of the public disclo-
sure. United States v. Alcan Electrical & Engineering, Inc.,
197 F.3d 1014, 1020 (9th Cir. 1999) (internal quotation marks
and citations omitted). Here, the complaint and its exhibits
show that Szerlip was Patient A’s nurse therapist and that she
observed that Patient A was kept in the Senior Bridges Pro-
gram although she was not improving and did not want to be
there. Szerlip’s declaration also states that she witnessed
Medicare fraud — including the admission of patients who
were unable to benefit from the program, false entries regard-
ing Dr. Grewal’s visits to patients, and the extension of
patients’ stays in the unit beyond that which was appropriate
— and alerted management to them before resigning. Again,
nothing in the record contradicts these statements.

   These documents show that, much like the other relators
whom this court has found to have direct and independent
knowledge, Szerlip encountered the alleged fraud — the
fraudulent admission and treatment practices — through her
  2
    The defendants argue that an application for an order extending time
to intervene filed by the United States government in this case indicates
that the relators met with government agents in June 2000. That applica-
tion, however, does not state that it was the first time that government
agents met with the relators or their attorney.
5816            MEYER v. HORIZON HEALTH CORP.
own experience as a nurse therapist, and not through the pub-
lic disclosure or other secondary sources. C.f., e.g., United
States ex rel. Newsham v. Lockheed Missiles & Space Co.,
Inc., 190 F.3d 963, 970 (9th Cir. 1999) (relators observed
improper billing and nonproductive labor during their work as
a technician and an analyst); Wang v. FMC Corp., 975 F.2d
1412, 1417 (9th Cir. 1992)(engineer-relator worked on the
allegedly defective product). That she did not have direct
access to the fraudulent invoices does not matter, because “to
qualify as an original source, a relator does not have to have
personal knowledge of all elements of a cause of action.”
Minnesota Association of Nurse Anesthetists v. Allina Health
System Corp., 276 F.3d 1032, 1050 (8th Cir. 2002). The direct
knowledge of her unit’s fraudulent admissions and treatment
practices is sufficient to raise the inference that the govern-
ment was being billed fraudulently. C.f. id. (holding that the
nurses’ direct knowledge of operating room practices, despite
their lack of access to billing records, is sufficient to satisfy
original source status).

   Because there are uncontradicted statements in the record
showing that Szerlip had direct and independent knowledge of
the alleged fraud and that she revealed her knowledge to the
government before the Weatherford suit, I would conclude
that the district court clearly erred when it determined that
Szerlip has not alleged facts sufficient to demonstrate that she
satisfies any of the criteria for original source status, and
would hold instead that Szerlip has met her burden of estab-
lishing subject-matter jurisdiction by a preponderance of the
evidence. See United States v. Alcan Elec. & Eng’g, Inc., 197
F.3d 1014, 1018 (9th Cir. 1999). Although the majority would
require Szerlip to allege her original source status more
clearly in the complaint or submit more documents in its sup-
port, I do not think that any more is required for a preponder-
ance of the evidence than uncontested facts showing that she
met all three prongs of the inquiry. I would therefore reverse
                   MEYER v. HORIZON HEALTH CORP.                       5817
the district court and remand in order to allow the proceedings
to continue.3




  3
    I conclude that Szerlip did not waive the “original source” argument
in the opening brief, but raised it sufficiently when she argued that she had
first hand knowledge of the fraud and that her attorney met with a govern-
ment agent prior to the filing of the Weatherford action.
