United States of America, Ex Rel. Stanley D. Rabushka Stanley D. Rabushka, Individually v. Crane Company, Cf & I Steel Corporation

40 F.3d 1509

• Court: Court of Appeals for the Eighth Circuit
• Decided: January 19, 1995
• Docket: 93-3212
• Status: Published

Opinions

WOLLMAN, Circuit Judge.

Stanley D. Rabushka brought this qui tam action against Crane Company (“Crane”) and CF & I Steel Corporation (“CF & I”) under the False Claims Act (the “Act”), 31 U.S.C. §§ 3729 and 3730. Finding that it was “based upon the public disclosure of allegations or transactions” relating to the alleged fraud, the district court dismissed the suit for lack of subject matter jurisdiction .pursuant to section 3730(e)(4) of the Act. Rabushka appeals that determination and alternatively seeks to amend his complaint to satisfy the jurisdictional requirements. We reverse and remand.

I. Background

Crane spun off its subsidiary CF & I to shareholders in 1985. At that time CF & I’s unfunded pension liability was stated at approximately $46 million. CF & I’s financial condition worsened after the spinoff, in large part because of its burgeoning unfunded pension obligation. In November 1990, with an estimated $140 million unfunded pension liability, CF & I filed for bankruptcy. In March 1992, when the unfunded pension liability had grown to approximately $270 million, the Pension Benefit Guaranty Corporation (“PBGC”) terminated CF & I’s pension plan and assumed those plan obligations that were protected by the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001 et seq.

Rabushka, a Crane shareholder at the time of the spinoff, filed suit on February 28, 1991,¹ contending that his discussions with Crane executives at the time of the spinoff prove that the unfunded pension liability was fraudulently understated and that the CF & I spinoff was designed to shift Crane’s pension responsibility to the PBGC.

II. Discussion

Section 3730(e)(4) provides:

(e) Certain actions barred.

(4)(A) 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.

(B) For purposes of this paragraph, “original source” means an individual who has direct and independent knowledge of the information on which the allegations are based and has provided the information to the government before filing an action under this section which is based on the information.

The Act’s jurisdictional scheme is designed to promote private citizen involvement in exposing fraud against the government, while at the same time prevent parasitic suits by opportunistic late-comers who add nothing to the exposure of the fraud. See United States ex rel. Precision Co. v. Koch Indus., 971 F.2d 548, 552 (10th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1364, 122 L.Ed.2d 742 (1993); United States ex rel. Stinson v. Prudential Ins., 944 F.2d 1149, 1154 (3d Cir.1991). This sense of balance is reflected in the historical development of the Act. See United States ex rel. Springfield Terminal Ry. v. Quinn, 14 F.3d 645, 649-51 (D.C.Cir.1994); Stinson, 944 F.2d at 1153-54. We have not yet specifically addressed the scope of the section 3730(e)(4)(A) jurisdictional bar in this circuit.

A. Public Disclosure of Allegations

The district court based its dismissal in part on statements made at a creditors’ meeting following CF & I’s bankruptcy filing. At that meeting, Frank Cummings, counsel for CF & I, said:

[Tjhere were what we believe to be miscalculations, putting the kindest possible face on it, by the actuary for this plan who was retained by the former parent of the company, Crane. And those miscalculations— it is a pejorative term. Those calculations which did not display what we believe should have been displayed were not discovered until at or about the time of the spin-off which occurred in 1985.

The district court viewed this statement as tantamount to a public allegation of fraud.

Cummings also stated, however, that the rise in the unfunded pension liability after the spinoff was the result of a number of additional factors: actuarial assumptions, downsizing in the steel industry (where special early retirement benefits arise when facilities shut down), and discount rate changes all contributed to the massively underfunded debt. Moreover, Cummings also said that “[y]ou can be underfunded in this universe in any industry including steel simply by obeying the law” that allows a forty-year amortization period for the pension liability. When viewed in this context, Cummings’ offhand remark, although hardly complimentary, is by itself insufficient to rise to the level of a public allegation of fraud on the part of Crane.

B. Public Disclosure of Transactions

Several developments since the district court ruling assist us in analyzing the proper effect of the public disclosure of these transactions under section 3730(e)(4)(A).

In Springfield, pay vouchers and telephone records disclosed during discovery in an earlier suit were deemed insufficient to constitute “allegations or transactions” within the terms of the Act’s statutory bar. 14 F.3d at 653-56. The Springfield court found the preclusive effect of section 3730(e)(4)(A) to apply only when “the critical elements of the fraudulent transaction themselves [are] in the public domain.” Id. at 654. Because mere disclosure of the subject matter transaction was deemed insufficient to prevent a qui tam suit, id. at 653, the Springfield relator’s additional disclosures alleging fraud in the vouchers and telephone records sufficed to surmount the statutory bar.

Another recent case, Cooper v. Blue Cross and Blue Shield of Fla., 19 F.3d 562 (11th Cir.1994) (per curiam), involved a Government Accounting Office report that criticized a particular Blue Cross and Blue Shield of Florida (“BCBSF”) payment monitoring plan and noted a potential conflict of interest. The report, however, did not allege any wrongdoing by BCBSF, so the court found it to “not constitute a ‘public disclosure of allegations or transactions’ that BCBSF knowingly violated” the law. Id. at 567. While it did not explain its analysis in detail, the court did not invoke the transactional aspect of the bar despite the fact that the hospital payments and monitoring plan detailed in the report were also the subject transactions of the relator’s claim of fraudulent BCBSF conduct.

These intervening decisions persuade us that the district court’s reliance on the mere disclosure of the “subject transactions” reads the jurisdictional bar too broadly. We agree with Springfield that the essential elements exposing the transaction as fraudulent must be publicly disclosed as well. See 14 F.3d at 654.

Crane relies on several articles published by the Pueblo Chieftain and other newspapers, CF & I corporate reports, and information disclosed at the creditors’ meeting to support the proposition that the subject transactions were sufficiently disclosed to bar Rabushka’s suit. While these disclosures publicly reveal Crane’s spinoff of CF & I, as well as CF & I’s growing unfunded pension woes and eventual bankruptcy, they do not raise the inference that Crane officials intentionally and fraudulently understated the pension problem in an attempt to avoid liability.

A May 1985 article in the Chieftain mentioned Crane’s concerns about the pension liability and how the spinoff relieved Crane of that liability. The article does not, however, indicate that the liability was fraudulently understated. Nor does it impute any bad faith to Crane. In fact, the article was optimistic about CF & I’s future, describing “CF & I’s recovery” and return to profitability in the hard-pressed steel industry. An April 7, 1985, Sunday Chieftain & Star-Journal article noted that the spinoff would leave both Crane and CF & I better off in the market, stating that it was “engineered to allow Crane to focus on its main areas of interest” rather than on the ups and downs of the steel market. These 1985 articles do not indicate at all that Crane was scheming to dump the pension liability on the government. Rather, the April article noted that CF & I was “in the black once more, thanks in large measure to Crane’s earlier investments.”

The news articles cited by Crane that appeared after the spinoff detail the discovery of the pension fund problems, but they still do not give rise to an inference of fraud on the part of Crane. A July 1990 Chieftain article noted that the pension liability was CF & I’s “greatest stumbling block to profitability” and mentioned the termination discussions with the PBGC, but again does not indicate any intentional wrongdoing on the part of Crane or CF & I officials or expose the essential element of the fraud alleged by Rabushka.

Similarly, a November 8,1990, article in the Chieftain detailing CF & I’s bankruptcy filing and the PBGC’s involvement does not indicate that Crane executives misled shareholders or the government when it spun off CF & I. That same article goes on to detail Crane’s discovery as a result of a 1985 actuarial study that the annual pension bill was more than triple the original estimate. Athough this clearly makes public CF & I’s pension plan problems, it does not, either by itself or in conjunction with the other public disclosures cited by Crane, place the additional set of facts alleged by Rabushka — that Crane officials intentionally understated the pension liability in an attempt to defraud the government — in the public domain. The article itself described CF & I’s negotiations with the PBGC as “a good faith effort” to resolve the problems.

The same day as the November 8, 1990, Chieftain article, another- article about CF & I’s bankruptcy filing appeared in the Denver Post. This article, although cited by Crane, belies the theory that the subject transactions were adequately disclosed to bar the suit. The article mentioned that seven of the ten largest unfunded pensions assumed by the PBGC came from the steel industry and discusses the PBGC’s fear of its own $1 billion deficit. If anything, this article raises the inference that the pension problems were part and parcel of the problematic steel industry and that involvement by the PBGC was more the result of industry economics than any fraudulent activity on the part of Crane.

Our analysis also holds true for the corporate reports² and creditors’ meeting disclosures relating to the pension liability. Athough CF & I’s pension fund woes were squarely in the public eye prior to Rabushka’s suit, the available information cited by Crane reports seemingly legitimate transactions and fails to suggest to the uninitiated reader the state of affairs alleged by Rabushka — that CF & I’s pension liability was intentionally understated and that the spinoff was concocted in the hope that Crane would avoid eventual liability. Rabushka was the first to assert that Crane officials knew that the underfunding at the time of the spinoff was much greater than reported and that Crane officials were aware that the liability was sufficient to “sink” Crane if Crane was held responsible. Therefore, not “enough information exist[ed] in the public domain to expose the fraudulent transaction” and invoke the jurisdictional bar. Springfield, 14 F.3d at 654; see Wang v. FMC Corp., 975 F.2d 1412, 1418 (9th Cir.1992).

We do not require the public disclosure of a patently fraudulent transaction to bar a suit under the Act. Rather, the bar is given effect when the essential elements comprising that fraudulent transaction have been publicly disclosed so as to raise a reasonable inference of fraud. See Springfield, 14 F.3d at 655 (noting that the presence of only one state of facts in the public domain “cannot be expected to set government investigators on the trail of fraud”). Much as in Springfield, we “are confident in this case that the information put in the public domain ... did not present so clear or substantial an indication of foul play as to qualify as either an allegation of fraud or a fraudulent transaction.” Id. at 656.

Our decision is also supported by the recognized purpose of the Act. Embracing too broad a definition of “transaction” threatens to choke off the efforts of qui tam relators in their capacity as “private attorneys general.” See Cooper, 19 F.3d at 566. By allowing Rabushka’s complaint to proceed beyond the jurisdictional inquiry, we help ensure that private actions designed to protect the public fisc can proceed in the absence of governmental notice of a potential fraud. Springfield, 14 F.3d at 655, 657. This is not the type of case that Congress sought to bar, precisely because the publicly disclosed transactions involved do not raise such an inference of fraud.

Because we conclude that the publicly disclosed “allegations or transactions” proffered by Crane do not encompass the essential element of the fraud alleged in Rabushka’s complaint and therefore do not fit within the terms of the jurisdictional bar, we need not address whether Rabushka’s allegation of fraud is “based upon” those “allegations or transactions.” Nor need we address concerns about the original-source exception to the jurisdictional bar and Rabushka’s proposal to amend his complaint in an attempt to meet that exception. See id. at 651; Wang, 975 F.2d at 1416.

The judgment is reversed, and the case is remanded to the district court for further proceedings.

1 . Rabushka’s initial suit was dismissed by the district court as premature because CF & I's pension fund plan had not yet been terminated by the PBGC. That dismissal was appealed, and during the pendency of the appeal the PBGC terminated CF & I's plan. The appeal was subsequently dismissed and remanded. Prior to the remand, however, Rabushka filed a second complaint at the district level. The two proceedings were consolidated into the instant proceeding.

2 . Our analysis of the level of disclosures sufficient to bar a suit holds equally true for both the news accounts and corporate reports. Corporate reports, however, are also insufficient as a jurisdictional bar to the action because they are not contemplated by the terms of the statute. United States ex rel. Williams v. NEC Corp., 931 F.2d 1493, 1499 (11th Cir.1991) ("the methods of 'public disclosure’ set forth in section 3730(e)(4)(A) are exclusive of the types of public disclosure that would defeat jurisdiction under that section”); see also United States ex rel. LeBlanc v. Raytheon Co., 913 F.2d 17, 20 (1st Cir.1990) (section 3730(e)(4)(A) "does not deny jurisdiction over actions based on disclosures other than those specified”), cert. denied, 499 U.S. 921, 111 S.Ct. 1312, 113 L.Ed.2d 246 (1991).