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Schindler Elevator v. U.S. ex rel Kirk

Supreme Court Limits Whistleblower's Standing in Some Cases


While ruling against the whistleblower in this specific instance, the Supreme Court ruled that not all responses to requests for information bar whistleblowers’ actions.


The federal False Claims Act (FCA) enables individuals to report waste, fraud and abuse by government contractors and other providers who are reimbursed by federal programs. It has been a critical tool for ensuring money is spent as the government intended.

Daniel Kirk, an employee of Schindler Elevator Corp., suspected that the company was submitting false or misleading reports of work done on federal contracts. Investigating these suspicions, his wife filed a request under the federal Freedom of Information Act (FOIA) asking for documents from the U.S. Department of Labor, the agency that had contracted with Schindler. The documents the Kirks received did not jibe with his personal knowledge, and thus confirmed for him (his lawsuit claims) that fraud and abuse was taking place. As he wrote in his brief before the Supreme Court, his “inside knowledge of the company allowed him to see fraud that the government could not see.”

The FCA does not permit claims based on information obtained from an ongoing government investigation. Schindler claimed that by responding to Kirk’s FOIA request, the government had “investigated” his claims. An appeals court disagreed, finding that response to a FOIA request, alone, cannot disqualify a claim under the False Claims Act. Schindler appealed.

Attorneys with AARP Foundation Litigation filed AARP’s friend-of-the-court brief. The brief argued that merely looking for a document in response to a FOIA request is not a government investigation. AARP emphasized the FCA’s importance, particularly in the health care realm. If publicly disclosed documents are excluded per se, then people like Kirk — whose inside information needed the additional proof provided by documents obtained through a FOIA request — would be stymied in bringing wrongdoers to account, eviscerating the intent of the FCA.

The Court disagreed. While noting that there are many instances in which information released after a FOIA request or other request to the government would not bar whistleblower claims, the Court ruled that a report written in response to a FOIA request is covered by the public disclosure bar. The dissent urged Congress to rectify the situation.

What’s at Stake

The FCA is critically important in ensuring the integrity of many government programs, perhaps none as much as in the health care arena, where FCA complaints have unearthed fraud and abuse in Medicare and Medicaid that have endangered lives of vulnerable people who cannot seek redress. As health care costs skyrocket and threaten state budgets, the importance of fraud detection, prevention and enforcement is increasing dramatically.

The FCA is the single most effective tool in the fight against fraud; in the two years between 2009 and 2011, the government recovered more than $6.8 billion in FCA actions. Because more than 80 percent of FCA cases are filed by individual whistleblowers, it is critical their efforts be supported.

Case Status

Having ruled that the report in question was in fact covered by the law, the U.S. Supreme Court returned Schindler Elevator Corporation v. U.S. ex rel. Kirk to the appeals court to determine whether the current lawsuit is based upon the contents of that report.

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Our legal advocacy initiatives  - conducted by AARP Foundation Litigation (AFL) - reflect more than 15 years of work in federal and state courts across the country. Through our efforts, we support the Foundation’s four priority areas: Hunger, Income, Housing and Isolation, and ensure that those 50 and older have a voice in the laws and policies that affect their daily lives.