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AARP Asks U.S. Supreme Court to Allow Whistleblower's Case

AARP is asking the U.S. Supreme Court to uphold the letter and spirit of the federal whistleblower law. The outcome will affect other whistleblower cases alleging fraud in Medicare and Medicaid.


The federal False Claims Act (FCA) enables individuals to report waste, fraud and abuse by government contractors. It has been a critical tool in accountability of federal dollars and ensuring money is spent as the government intended.

Daniel Kirk was an employee of Schindler Elevator Corp. when he began to suspect that the company was submitting false, misleading or incomplete 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 for services. 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. In the words of his brief to 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, and Schindler claimed that by responding to Kirk's FOIA request, the government had "investigated" his claims and thus Kirk's FCA action had to be dismissed. An appeals court refused to dismiss Kirk's case, finding that response to a FOIA request, alone, cannot disqualify a claim under the False Claims Act. Schindler appealed to the U.S. Supreme Court.

Attorneys with AARP Foundation Litigation filed AARP's "friend of the court" brief in support of Kirk. The brief points out that merely looking for a document in response to a FOIA request is not a government investigation, and holding it so would lead to results directly counter to the core intent of the law; AARP emphasized the FCA's importance, particularly in the health care realm (see "What's at Stake," below). 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.

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 most effective tool in the fight against fraud perpetrated against the government; 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 reporting on misdeeds, it is critical their efforts be supported.


Schindler Elevator Corp. v. U.S. ex rel. Kirk
is before the U.S. Supreme Court.

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