UNITED STATES ex rel. STEPHEN YAGMAN v. James Elmer Mitchell, in former official capacity

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES ex rel. STEPHEN
YAGMAN,
Plaintiff-Appellant,
v.
JAMES ELMER MITCHELL, in former
official capacity and in present individual
capacity; JOHN BRUCE JESSEN, in former
official capacity and in present official
capacity; MITCHELL JESSEN AND
ASSOCIATES, and affiliates or corporate
entities,
Defendants-Appellees.
No. 16-55346
D.C. No.
2:14-cv-09771-DMG-PJW
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Submitted February 12, 2018**
Pasadena, California
Before: McKEOWN and WARDLAW, Circuit Judges, and QUIST,*** District
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Gordon J. Quist, United States District Judge for the
FILED
FEB 14 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Judge.
Stephen Yagman appeals the district court’s dismissal of his claims against
James Mitchell and John Jessen (collectively, “Defendants”) under the False
Claims Act, 31 U.S.C. § 3729 et seq. The district court dismissed Yagman’s
claims under the public disclosure bar, which withdraws a district court’s
jurisdiction over qui tam actions “if substantially the same allegations or
transactions as alleged in the action or claim were publicly disclosed” in a
government report or 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.”
Id. § 3730(e)(4)(A). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Yagman’s purportedly novel allegations were indisputably “substantially the
same allegations or transactions” that “were publicly disclosed” in government
reports and the news media. Id. The term “transactions” has “a broad meaning,”
Schindler Elev. Corp. v. United States ex rel. Kirk, 563 U.S. 401, 408 (2011),
which we generally have defined as “facts from which fraud can be inferred,”
United States ex rel. Mateski v. Raytheon Corp., 816 F.3d 565, 571 (9th Cir. 2016).
The public sources on which Yagman’s complaint relies described in
considerable detail the Defendants’ participation in the CIA’s interrogation
program. See, e.g., Committee Study of the Central Intelligence Agency’s
Western District of Michigan, sitting by designation.

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Detention and Interrogation Program, S. REP. No. 113-288 (2014) (hereinafter
“Senate Report”) at xviii-xxi, 31–36, 40, 46, 65–66, 84. They discussed the extent
and relevance of the psychologists’ supposed “expertise” in “non-standard means
of interrogation.” See id. at xx–xxi, 21 & n.59, 32 & n.138; Memorandum from
John O. Brennan to Sens. Dianne Feinstein & Saxby Chambliss, “CIA Comments
on the Senate Select Committee on Intelligence Report on the Rendition,
Detention, and Interrogation Program” (June 27, 2013) (hereinafter “CIA
Response”)1 at 73. They debated the effectiveness of the interrogation techniques
and whether the CIA knew that the techniques were ineffective. See, e.g., Senate
Report at xi–xii, 17–20, 172–400; CIA Response at 3–4, 18–21, 45–47, 84–136.
And they discussed whether the CIA, including its contract psychologists, had
performed either sufficient empirical research before the techniques were adopted
or a comprehensive analysis of effectiveness after the program was operational.
See, e.g., Senate Report at xxii–xxiii, 20–21, 124–28; CIA Response at 13, 48–49.
Most importantly, the CIA Response specifically referred to the “impracticality of
establishing an effective control group.” CIA Response at 48.
Yagman’s complaint provided no additional details; rather, it openly
acknowledged that the “information and bases for [Yagman]’s claims [were] set
1 The CIA Response is available at
https://www.cia.gov/library/reports/CIAs_June2013_Response_to_the_SSCI_Stud
y_on_the_Former_Detention_and_Interrogation_Program.pdf.

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forth in” various news articles and the declassified portions of the Senate Report,
“all of whose contents [were] incorporated” by reference into the complaint.
“Reading between the lines of the publicly disclosed information,” there is more
than enough in the publicly available materials to raise an inference of exactly the
type of fraud that Yagman alleged. Mateski, 816 F.3d at 572.
Finally, even if Yagman’s allegations are sufficiently specific to distinguish
them from publicly available information, Yagman failed to establish that he is an
“original source” of those allegations. See 31 U.S.C. § 3730(e)(4)(B) (an “original
source” means “an individual . . . who has knowledge that is independent of and
materially adds to the publicly disclosed allegations or transactions, and who has
voluntarily provided the information to the Government before filing an action
under this section”). Nowhere does Yagman’s complaint claim to have voluntarily
provided the information in his complaint to the Government before filing.
AFFIRMED.

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