Supreme Court affirms police action in Kentucky drug case

Whistleblower claims

The court made it harder for whistleblowers to bring lawsuits alleging corporate wrongdoing when they use government information to support their claims.

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By a 5 to 3 vote, the court stopped a lawsuit brought under the federal False Claims Act based on information that Daniel and Linda Kirk obtained through a Freedom of Information Act request.

The False Claims Act allows private citizens to bring civil lawsuits against companies in the government’s name, and receive a share of any money recovered. In this case, Daniel Kirk said his former employer, Schindler Elevator, had violated the terms of its government contracts involving reports about the employment of Vietnam veterans.

But the False Claims Act does not allow lawsuits based on information disclosed in public reports. Justice Clarence Thomas, writing for the majority, said Congress was concerned that private citizens not base their complaints on information the government itself generated.

“The sort of case that Kirk has brought seems to us a classic example of the ‘opportunistic’ litigation that the public disclosure bar is designed to discourage,” Thomas wrote. “Although Kirk alleges that he became suspicious from his own experiences as a veteran working at Schindler, anyone could have filed the same FOIA requests and then filed the same suit.”

Thomas was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Alito.

Ginsburg dissented, along with Justices Stephen G. Breyer and Sonia Sotomayor.

“Why should a whistleblower . . . be barred from court if he seeks corroboration for his allegations?” Ginsburg asked.

“After today’s decision, which severely limits whistleblowers’ ability to substantiate their allegations before commencing suit, that question is worthy of Congress’s attention,” she said.

Justice Elena Kagan did not take part in the case because she had worked on it in her previous job as solicitor general.

The case is Schindler Elevator Corp. v. United States, ex rel. Kirk.