United States of America, Ex Rel. Mark J. O’connor v. Uscc Wireless Investment, Inc.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 1, 2024 Decided February 11, 2025
No. 23-7044
UNITED STATES OF AMERICA, EX REL. MARK J. O’CONNOR
AND SARA F. LEIBMAN,
AND
MARK J. O’CONNOR AND SARA F. LEIBMAN,
APPELLANTS
v.
USCC WIRELESS INVESTMENT, INC., ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-02071)
Daniel Woofter argued the cause for appellants. With him
on the briefs were Sara M. Lord and Benjamin J. Vernia.
Andrew S. Tulumello argued the cause for appellees. With
him on the brief were Shai Berman, Frank R. Volpe, and Robert
J. Conlan.
Before: WILKINS, KATSAS and RAO, Circuit Judges.
Opinion for the Court filed by Circuit Judge RAO.

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RAO, Circuit Judge: This False Claims Act suit alleges that
U.S. Cellular and other entities committed fraud in Federal
Communications Commission wireless spectrum auctions. The
alleged fraud involved using sham small businesses to obtain
and retain bidding discounts worth millions of dollars. The
district court dismissed the qui tam action because a previous
lawsuit had raised substantially the same allegations, triggering
the Act’s public disclosure bar, and the relators bringing the
action were not original sources of the information. Although
relators have provided some new details about the fraud, they
have not overcome the stringent requirements of the public
disclosure bar. We therefore affirm.
I.
The False Claims Act (“FCA”) imposes liability on
persons who defraud the federal government. Act of Mar. 2,
1863, ch. 67, 12 Stat. 696 (codified as amended at 31 U.S.C.
§ 3729 et seq.). While the government has primary
responsibility for enforcing the FCA, if the government
declines to proceed with a claim, individuals, referred to as
relators, may act as “ad hoc deputies” to pursue the fraud on
behalf of the government in exchange for a share of any
recovery. United States ex rel. Cimino v. IBM Corp., 3 F.4th
412, 415 (D.C. Cir. 2021) (cleaned up); see also 31 U.S.C.
§ 3730(b)(2), (b)(4)(B). The bounty for a prevailing relator,
which can be up to 30 percent of the proceeds of the action or
settlement, provides an incentive for individuals to come
forward with allegations of fraud against the government. See
31 U.S.C. § 3730(d).
Congress, however, limited the circumstances in which a
relator may bring suit and share in the government’s recovery.
The FCA’s public disclosure bar provides that a relator whose

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allegations are “substantially the same” as information that has
already been publicly disclosed cannot maintain a qui tam
action unless he “is an original source of the information.” Id.
§ 3730(e)(4)(A). The public disclosure bar helps protect
against the risk that qui tam suits will lead to “parasitic
exploitation of the public coffers.” United States ex rel.
Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645, 649 (D.C.
Cir. 1994). The bar helps achieve “the golden mean” reflected
in the FCA, which provides “adequate incentives for whistle-
blowing insiders with genuinely valuable information” but
blocks “opportunistic plaintiffs who have no significant
information to contribute of their own.” Id.
A.
This qui tam action involves alleged fraud in FCC
spectrum auctions. The FCC licenses and administers the
wireless spectrum for commercial use and distributes spectrum
licenses through public auctions. As relevant here, Congress
requires the FCC to promote “disseminati[on] [of] licenses
among a wide variety of applicants, including small
businesses.” 47 U.S.C. § 309(j)(3)(B). To implement this
statutory goal, the FCC established a program that provides
qualifying small businesses, i.e., designated entities, with
bidding credits that effectively discount the cost of their
licenses. Implementation of Section 309(j) of the
Communications Act – Competitive Bidding, Second Report &
Order, 9 FCC Rcd. 2348, 2388–91 (1994). Eligibility for
bidding credits turns on an entity’s revenue. 47 C.F.R.
§ 1.2110(b), (c), (f).
Given the high barriers to entry in the telecommunications
market, the FCC also encourages larger companies to invest in
and support designated entities. Large firms may not bid on
licenses for designated entities, but they can “become partners

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with or make investments in designated entities so as to gain an
interest in” designated entities’ licenses. Implementation of
Section 309(j) of the Communications Act – Competitive
Bidding, Fifth Report & Order, 9 FCC Rcd. 5532, 5547 (1994).
Nevertheless, “bidding credits can only be used by genuine
small businesses—not by small sham companies that are
managed by or affiliated with big businesses.” SNR Wireless
Licenseco, LLC v. FCC, 868 F.3d 1021, 1026 (D.C. Cir. 2017).
The FCC scrutinizes designated entities to ensure that large
companies are not improperly benefitting from bidding credits
by exercising de facto control over small businesses. See 47
C.F.R. § 1.2110(b)(1), (c)(2)(i), (c)(5).
B.
In this qui tam action, the relators maintain the government
was defrauded because the FCC awarded millions of dollars in
bidding credits to designated entities that in fact were
controlled by U.S. Cellular, a large mobile phone service
provider with annual revenues in the billions. Relators sued
U.S. Cellular, several of its related entities, three designated
entities, and Allison DiNardo, the owner of the designated
entities.1 Between 2006 and 2008, DiNardo registered three
entities, Carroll, Barat, and King Street, as “very small
businesses” in FCC auctions and applied for the corresponding
25 percent bidding credit. According to the complaint, these
1 The qui tam action was brought against United States Cellular
Corporation, USCC Wireless Investment, Inc., and Telephone and
Data Systems, Inc. (together, “U.S. Cellular”); King Street Wireless,
L.P., and King Street Wireless, Inc. (together, “King Street”); Carroll
Wireless, L.P., and Carroll PCS, Inc. (together, “Carroll”); Barat
Wireless, L.P., and Barat Wireless, Inc. (together, “Barat”); and
DiNardo. We refer to these entities collectively as “Defendants.”

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designated entities obtained discounted licenses and received
nearly $165 million in bidding credits.
In 2008, the law firm Lampert, O’Connor & Johnston,
P.C., filed a qui tam action alleging that the same defendants
here conspired to register sham designated entities to obtain
and hold discounted spectrum licenses for U.S. Cellular’s
use—thereby allowing U.S. Cellular to exploit bidding credits
intended for small businesses. According to the law firm,
defendants represented that Carroll and Barat were organized
to develop and operate spectrum licenses and provide
telecommunications services, yet the designated entities
engaged in no business activity, had no assets, and generated
no revenue. The law firm further alleged that U.S. Cellular
controlled the discounted licenses for Carroll and Barat from
the moment they were issued but failed to return the bidding
credits as required by federal law. At the time the suit was filed,
King Street had not obtained its spectrum licenses. The
government investigated the allegations against King Street
and declined to intervene in the suit. The FCC eventually
granted the King Street licenses. The law firm then voluntarily
dismissed the qui tam action.
This case originated in 2015, when Sara Leibman and
Mark O’Connor—the latter of whom was a named partner at
Lampert, O’Connor & Johnston, P.C., and represented the firm
in the 2008 qui tam action—filed a complaint in federal court
in Oklahoma, asserting FCA claims against the same
defendants as in the 2008 action. In particular, relators alleged
Defendants conspired to use sham designated entities to obtain
and retain discounted spectrum licenses and made false
statements and representations to the government in this effort.
The relators further claimed that U.S. Cellular exercised de
facto control over these entities, disqualifying them from
receiving bidding credits, and that King Street unlawfully

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transferred its licensed spectrum to U.S. Cellular while
concealing the transfer from the government.
Relators primarily focused on fraudulent activity
involving King Street. They discovered that King Street never
provided wireless services to the public. It did not apply for or
receive telephone numbers, had no retail stores or customers,
and lacked the network capabilities necessary to offer
telecommunications services. Instead, according to relators,
U.S. Cellular used King Street’s licenses to provide U.S.
Cellular branded service to customers. King Street, meanwhile,
filed false annual reports and construction notices with the FCC
to conceal that it was holding its discounted licenses for U.S.
Cellular.
Relators also conducted field tests that supposedly
revealed U.S. Cellular had incorporated King Street’s spectrum
into its network. They learned of a network sharing agreement
(the “2011 NSA”) that, relators say, effectively transferred
King Street’s spectrum rights for many of its licenses to U.S.
Cellular. Relators alleged the agreement established an
“attributable material relationship” between King Street and
U.S. Cellular, violating FCC rules and disqualifying King
Street as a designated entity. The government declined to
intervene in relators’ suit.
The case was transferred to the District of Columbia,2 and
the district court found relators’ complaint asserted
2 Relators filed a second, related action in the Western District of
Oklahoma, which was similarly transferred to the District of
Columbia. United States ex rel. O’Connor v. U.S. Cellular Corp.,
No. 20-cv-2070, Dkt. No. 128 (D.D.C. July 30, 2020). We heard oral
argument in both cases on the same day. United States ex rel.
O’Connor v. U.S. Cellular Corp., No. 23-7041 (D.C. Cir. Apr. 1,
2024).

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“substantially the same” allegations as the 2008 qui tam action.
This triggered the FCA’s public disclosure bar, and because
relators did not meet the criteria for the original source
exception, the district court dismissed the action. United States
ex rel. O’Connor v. U.S. Cellular Corp., 2023 WL 2598678, at
*4–7 (D.D.C. Mar. 22, 2023).
Relators timely appealed, and this court has jurisdiction.
28 U.S.C. § 1291. We review de novo a district court’s grant of
a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6). United States ex rel. Williams v. Martin-Baker
Aircraft Co., 389 F.3d 1251, 1259 (D.C. Cir. 2004). When
determining whether a complaint fails to state a claim, “we
accept the operative complaint’s well-pleaded factual
allegations as true and draw all reasonable inferences in the
[relators’] favor.”3 North American Butterfly Ass’n v. Wolf, 977
F.3d 1244, 1249 (D.C. Cir. 2020).
II.
Relators attempt to save their qui tam action by arguing
that the public disclosure bar does not apply, either because
their allegations were not “substantially the same” as those in
the 2008 qui tam action or because they qualify for the original
source exception. We reject both arguments.
3 Although the FCA is an anti-fraud statute and requires relators to
meet the heightened “particularity” pleading standard of Federal
Rule of Civil Procedure 9(b), United States ex rel. Totten v.
Bombardier Corp., 286 F.3d 542, 551–52 (D.C. Cir. 2002), that
standard is not at issue in this case because Defendants do not
challenge the sufficiency of relators’ substantive allegations on
appeal.

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A.
We begin by considering whether relators’ allegations are
“substantially the same” as those disclosed in the 2008 qui tam
action and thus trigger the public disclosure bar. The claims
here turn on alleged transactions that postdate 2010, and so are
governed by the public disclosure bar as amended in 2010,
which provides:
The court shall dismiss an action or
claim … unless opposed by the Government, if
substantially the same allegations or
transactions as alleged in the action or claim
were publicly disclosed … [in the enumerated
channels], unless … the person bringing the
action is an original source of the information.
31 U.S.C. § 3730(e)(4)(A).
The 2010 amendments included two changes relevant to
this case. First, the public disclosure bar was previously a
jurisdictional limit but is now an affirmative defense. When the
bar applies, a court must “dismiss [the] action.” Id.; compare
31 U.S.C. § 3730(e)(4)(A) (1986) (providing that “[n]o court
[would] have jurisdiction over an action” for which there had
already been a public disclosure). Unless Congress “clearly
states” that a statutory limitation is jurisdictional, “courts
should treat the restriction as nonjurisdictional.” Arbaugh v.
Y&H Corp., 546 U.S. 500, 515–16 (2006). In the 2010
amendments, Congress removed the jurisdictional language in
the public disclosure bar. United States ex rel. Shea v. Cellco
Partnership, 863 F.3d 923, 933 (D.C. Cir. 2017). Moreover,
the government may oppose a court’s dismissal, which
reinforces that the bar is no longer jurisdictional. Otherwise,
“the government [could] cure a jurisdictional defect simply by
opposing a motion to dismiss.” United States ex rel. Osheroff

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v. Humana, Inc., 776 F.3d 805, 811 (11th Cir. 2015). The
public disclosure bar now operates as an affirmative defense.4
Second, Congress clarified the standard for applying the
public disclosure bar. Prior to the amendment, the public
disclosure bar deprived courts of jurisdiction over actions
“based upon the public disclosure of allegations or
transactions.” 31 U.S.C. § 3730(e)(4)(A) (1986) (emphasis
added). Interpreting the pre-2010 language, this circuit held
that a suit was “based upon publicly disclosed allegations or
transactions when the allegations in the complaint [were]
substantially similar to those in the public domain.” United
States ex rel. Oliver v. Philip Morris USA Inc., 826 F.3d 466,
472 (D.C. Cir. 2016) (cleaned up) (emphasis added). Other
circuits used terms such as “substantially similar,”
“substantially the same,” and “substantial identity” when
applying the public disclosure bar. See United States ex rel.
Holloway v. Heartland Hospice, Inc., 960 F.3d 836, 849–50 &
nn.8–9 (6th Cir. 2020) (collecting and discussing cases). In the
2010 amendments, Congress mirrored these judicial
formulations, requiring dismissal of a qui tam action “if
substantially the same allegations or transactions … were
publicly disclosed.” 31 U.S.C. § 3730(e)(4)(A) (emphasis
added).
Congress’s amendment of the public disclosure bar is best
understood as codifying the interpretation of this circuit and
others that focused on whether the allegations of fraud in a qui
tam action were “substantially similar” to or “substantially the
same” as publicly disclosed allegations and transactions. See
United States ex rel. May v. Purdue Pharma L.P., 737 F.3d
4 We note this is the unanimous view of our sister circuits that have
considered the issue. See, e.g., United States ex rel. Reed v. KeyPoint
Gov’t Sols., 923 F.3d 729, 737 n.1 (10th Cir. 2019) (collecting cases).

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908, 917 (4th Cir. 2013) (“[T]he amended version [of the
public disclosure bar] … focuses on the similarity of the
allegations of fraud.”); see also United States ex rel. Reed v.
KeyPoint Gov’t Sols., 923 F.3d 729, 743 (10th Cir. 2019)
(“That the substantially-the-same standard adopted in the 2010
amendment resembles the standard we already used is no
accident; the amendment expressly incorporates the
‘substantially similar’ standard in accordance with the
interpretation of this circuit and most other circuits.”) (cleaned
up). Because the FCA amendments incorporate judicial
interpretations, we can reasonably continue to rely on our pre-
2010 cases applying the public disclosure bar.5
B.
Under the “substantially the same” standard, the critical
inquiry is whether “the government … ha[d] enough
information to investigate the case … or [whether] the
information could at least have alerted law-enforcement
authorities to the likelihood of wrongdoing.” United States ex
5 Other circuits have also concluded that “pre-2010-amendment
cases guide [the] substantially-the-same inquiry.” Reed, 923 F.3d at
744; see also Silbersher v. Valeant Pharms. Int’l, Inc., 89 F.4th 1154,
1167 (9th Cir. 2024) (“Congress re-enacted its prior law in clearer
terms by replacing ‘based upon’ with ‘substantially the same as,’
leaving our precedent interpreting that phrase undisturbed.”); United
States ex rel. Silver v. Omnicare, Inc., 903 F.3d 78, 83–84 n.6 (3d
Cir. 2018); Bellevue v. Universal Health Servs. of Hartgrove, Inc.,
867 F.3d 712, 718 (7th Cir. 2017). By contrast, the Sixth Circuit has
held that “substantially the same” requires a higher degree of
similarity than “based upon.” Holloway, 960 F.3d at 850–51. We
need not resolve whether or how the two standards differ because
relators conceded in the proceedings below that our cases
interpreting the public disclosure bar before the 2010 amendments
remain instructive.

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rel. Davis v. District of Columbia, 679 F.3d 832, 836 (D.C. Cir.
2012) (cleaned up). “[T]he government has enough
information to investigate the case” when either “the allegation
of fraud” or “its underlying factual elements” have been
publicly disclosed. United States ex rel. Doe v. Staples, Inc.,
773 F.3d 83, 86 (D.C. Cir. 2014) (cleaned up). The public
disclosure bar applies if the fraud was publicly disclosed, or if
both the misrepresentation and the truth were in the public
domain. Id.
Because the public disclosure bar is an affirmative defense
and Defendants have raised it in a pre-answer motion under
Federal Rule of Civil Procedure 12(b), Defendants must show
that “the facts that give rise to the defense are clear from the
face of the complaint.” See de Csepel v. Republic of Hungary,
714 F.3d 591, 608 (D.C. Cir. 2013) (cleaned up). Defendants
argue the public disclosure bar applies to this case because the
2008 qui tam action publicly disclosed “substantially the same”
allegations, namely the same fraudulent scheme (obtaining
discounted bidding credits) at the same FCC auctions,
perpetrated by the same defendants.
In response, relators claim that their current allegations are
not “substantially the same” as the disclosures from 2008,
because this suit alleges post-licensing fraud focused on the
retention of bidding credits and the incorporation of the
designated entities’ spectrum into the U.S. Cellular network.
Relators also insist they have marshalled new evidence,
including an engineering study, employee interviews, and the
2011 NSA, that exposes this fraudulent scheme. Furthermore,
relators argue that they have advanced a new allegation that
U.S. Cellular’s control over King Street’s spectrum violates the
FCC’s attributable material relationship rule, an allegation that
is not substantially the same as the pre-licensing fraud

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involving U.S. Cellular’s control over the designated entities
during the spectrum auctions.
Relators’ complaint includes some additional facts, but
ultimately describes a fraud that is merely a continuation of,
and therefore substantially the same as, the scheme disclosed
in the 2008 qui tam action. In the 2008 action, relators alleged
that Carroll, Barat, and King Street served as fronts for U.S.
Cellular to obtain spectrum licenses at a discount and that the
designated entities were under the de facto control of U.S.
Cellular. In their present complaint, relators reiterate these
same allegations, adding only some details about how
Defendants have continued the fraud since the spectrum
auctions. But the pertinent elements of the fraud were all
alleged in the 2008 qui tam action: the misrepresentation that
Carroll, Barat, and King Street were genuine designated
entities; the truth that they were fronts for U.S. Cellular; and
the allegation that Defendants committed fraud in the FCC
auctions to benefit from valuable bidding credits. The 2008 qui
tam action alerted the government to the same fraud alleged in
this action.
This qui tam action simply elaborates on how Defendants
attempted to conceal the fraud and maintain its benefits. But “a
qui tam action cannot be sustained where both elements of the
fraudulent transaction … are already public, even if the relator
comes forward with additional evidence incriminating the
defendant.” Doe, 773 F.3d at 86 (cleaned up). Filling in details
about an already disclosed fraud is not enough to overcome the
public disclosure bar. United States ex rel. Settlemire v. District
of Columbia, 198 F.3d 913, 919 (D.C. Cir. 1999). We agree
with the district court that the 2008 qui tam action publicly
disclosed that the “same defendants intended to acquire the
same discounts at the same auctions via the same scheme of

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using front companies to fraudulently pose as small
businesses.” O’Connor, 2023 WL 2598678, at *5 (cleaned up).
Although relators offer some additional details about
actions Defendants took to preserve their bidding credits and
spectrum, the underlying fraud is “substantially the same” as
that alleged in the 2008 qui tam action. Therefore, the public
disclosure bar applies.
III.
Relators also argue they qualify as “original sources” and
therefore fit within the exception to the public disclosure bar.
Even if relators’ claims were previously publicly disclosed,
they may bring a qui tam action if they were “original
source[s]” identifying the alleged fraud. 31 U.S.C.
§ 3730(e)(4)(A). In the 2010 amendments to the FCA,
Congress narrowed the definition of original source. Before the
amendments, a relator qualified as an original source by simply
possessing “direct and independent knowledge of the
information on which the allegations are based.” 31 U.S.C.
§ 3730(e)(4)(B) (1986). The timing of the relator’s claim was
immaterial. Now, a relator can be an original source only if:
(1) “prior to a public disclosure … [he] has voluntarily
disclosed to the Government the information on which
allegations or transactions in a claim are based”; or (2) he “has
knowledge that is independent of and materially adds to the
publicly disclosed allegations or transactions, and … has
voluntarily provided the information to the Government before
filing an action.” 31 U.S.C. § 3730(e)(4)(B). Relators here are
not original sources under either definition.
Because qualifying as an original source is an exception to
the public disclosure bar, relators will generally bear the burden
of demonstrating it applies. The original source exception
benefits relators by permitting their claims to go forward even

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if the public disclosure bar is triggered. Relators are also best
situated to know the facts relevant to whether they qualify as
original sources. See Smith v. United States, 568 U.S. 106, 112
(2013) (“Where the facts with regard to an issue lie peculiarly
in the knowledge of a party, that party is best situated to bear
the burden of proof.”) (cleaned up).
A.
Relators maintain that O’Connor is an original source
under the first definition because his law firm shared the 2008
qui tam action with the government before its public disclosure.
O’Connor cannot be an original source for the 2008 qui
tam action, however, because that action was filed by his law
firm. The 2008 pleadings stated: “Lampert, O’Connor &
Johnston, P.C. brings this action … on behalf of itself and the
Government.” It is a fundamental principle of corporate law
that a professional corporation is a legal entity distinct from its
shareholders. See O’NEAL, THOMPSON & WELLS, 1 CLOSE
CORPORATIONS AND LLCS: LAW AND PRACTICE § 2.9 (3d ed.
2024). Although O’Connor was a partner at the law firm and
involved in filing the complaint, he cannot attribute the firm’s
suit to himself. Cf. United States ex rel. Precision Co. v. Koch
Indus., Inc., 971 F.2d 548, 554 (10th Cir. 1992) (holding a
corporation cannot serve as the original source of information
gathered by its shareholders before its formation). The 2008 qui
tam action was brought by the law firm, and O’Connor cannot
step into the firm’s shoes to qualify as an original source.
For the first time in their reply brief, relators also claim
that O’Connor personally communicated with the government
about the allegations of fraud in the 2008 qui tam action before
its unsealing. This argument, however, has been forfeited
because it was not presented in the opening brief. In their
opening brief, relators suggested O’Connor was an original

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source of the 2008 qui tam action because he “served” and later
“dismissed” the complaint. Defendants naturally responded by
focusing on whether the 2008 qui tam action, which was filed
by O’Connor’s law firm and did not mention O’Connor
personally, could be attributed to him. Only in their reply brief
did relators specifically assert that O’Connor independently
communicated with the government about the allegations as
early as 2007. This argument comes too late. Relators cannot
preserve their claim that O’Connor is an original source by
providing a “skeletal” argument in their opening brief and
waiting to develop their full argument in reply. Al-Tamimi v.
Adelson, 916 F.3d 1, 6 (D.C. Cir. 2019) (cleaned up).
O’Connor cannot claim to be an original source based on
the disclosures of his law firm, and any argument that he
individually provided information to the government has been
forfeited. Relators therefore do not qualify as original sources
under the first definition of section 3730(e)(4)(B) by
voluntarily disclosing allegations of fraud prior to the unsealing
of the 2008 qui tam action.
B.
Relators also argue that they qualify as original sources
under the second definition by having “knowledge that is
independent of and materially adds to the publicly disclosed
allegations or transactions” and by voluntarily providing that
information to the government. 31 U.S.C. § 3730(e)(4)(B).
Relators maintain that their independent investigations
materially added to the disclosures in the 2008 qui tam action
by providing information about post-licensing fraud. For
example, relators proved through spectrum analyses that after
King Street obtained the licenses referenced in the 2008 qui
tam action, U.S. Cellular secretly incorporated King Street’s
licensed spectrum, which contradicted King Street’s FCC

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certifications and exposed unlawful activity. Relators also
discovered that King Street never operated as a legitimate
telecommunications provider. According to relators, their
efforts instigated a government investigation that uncovered
the 2011 NSA, further demonstrating Defendants’ post-
licensing fraud. Relators argue they influenced the
government’s decisionmaking and filled gaps in the
government’s understanding of the fraud.
Even assuming relators provided some new information
that is “independent of” the 2008 qui tam action, we must
consider whether this information “materially adds” to what
was publicly disclosed.6 Id.
This circuit has not previously considered what counts as
a material addition for the purpose of the original source
exception. We begin with the text and structure of the statute.
As the Supreme Court has recognized when interpreting other
sections of the FCA, the term “material” has a well-established
common law meaning: Something is material if it is likely to
influence a reasonable person’s behavior. See Universal Health
Servs., Inc. v. United States ex rel. Escobar, 579 U.S. 176, 193
(2016) (discussing common law definitions of “material” in
6 Whether the original source exception applies because information
“materially adds” to public disclosures must be a separate inquiry
from whether relators have brought forward allegations that are
“substantially the same,” which triggers application of the public
disclosure bar. While the precise line between these concepts may be
difficult to draw, they “must remain conceptually distinct; otherwise,
the original source exception would be rendered nugatory.” United
States ex rel. Winkelman v. CVS Caremark Corp., 827 F.3d 201,
211–12 (1st Cir. 2016); see also United States ex rel. Maur v. Hage-
Korban, 981 F.3d 516, 525 (6th Cir. 2020) (endorsing Winkelman’s
reasoning because the alternative “would leave an exception that
excepts nothing”).

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tort and contract). Information is material if “knowledge of [it]
would affect a person’s decision-making” or if it is
“significant” or “essential.” Material (adj.), BLACK’S LAW
DICTIONARY (10th ed. 2014). This definition comports with the
liability section of the FCA, which defines “material” as
“having a natural tendency to influence, or be capable of
influencing, the payment or receipt of money or property.”7 31
U.S.C. § 3729(b)(4). As the Supreme Court has emphasized,
“[t]he materiality standard [in section 3729(b)(4)] is
demanding” and is not met “where noncompliance is minor or
insubstantial.” Escobar, 579 U.S. at 194. Interpreting the term
“material” consistently across the FCA, we conclude that
minor or insubstantial additions to publicly disclosed
information will not qualify a relator as an “original source.”
A relator therefore “materially adds” to public disclosures
by contributing information that “is sufficiently significant or
essential” to influence the government’s decision to prosecute
fraud.8 United States ex rel. Winkelman v. CVS Caremark
Corp., 827 F.3d 201, 211 (1st Cir. 2016); see also Reed, 923
7 The Supreme Court has interpreted “material” in other federal
statutes in a similar way. See, e.g., Kungys v. United States, 485 U.S.
759, 770 (1988) (construing “material” in an immigration statute to
mean information that “has a natural tendency to influence, or was
capable of influencing, the decision of the decisionmaking body to
which it was addressed”) (cleaned up); Neder v. United States, 527
U.S. 1, 20–25 (1999) (same for federal mail fraud, bank fraud, and
wire fraud statutes); see also id. at 22 (explaining “the common law
could not have conceived of ‘fraud’ without proof of materiality”).
8 In addition to the cases already cited, this interpretation is consistent
with the interpretation of “materially adds” in other circuits. See, e.g.,
United States ex rel. Advocates for Basic Legal Equality., Inc. v. U.S.
Bank, N.A., 816 F.3d 428, 431 (6th Cir. 2016); United States ex rel.
Moore & Co., P.A. v. Majestic Blue Fisheries, LLC, 812 F.3d 294,
306–07 (3d Cir. 2016).

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F.3d at 757 (holding that “materially adds” requires relators to
“disclose[] new information that is sufficiently significant or
important that it would be capable of influencing the behavior
of the recipient—i.e., the government”) (cleaned up). This
interpretation is consistent with the careful balance Congress
struck in the FCA to ensure that the government remains “in
the driver’s seat to pursue and punish false claims according to
its priorities.” United States v. Honeywell Int’l Inc., 47 F.4th
805, 818 (D.C. Cir. 2022). Reading “material” to require
significant or essential additional information also comports
with Congress’s narrowing of the original source exception in
2010.
Determining whether a relator’s contribution materially
adds to a public disclosure is a case-dependent inquiry. “[A]
relator who merely adds detail or color to previously disclosed
elements of an alleged scheme is not materially adding to the
public disclosures.” Reed, 923 F.3d at 757 (cleaned up). Simply
elaborating on public disclosures is insufficient to meet the
“materially adds” standard because marginal details are not
likely to influence the government’s decision to prosecute.
Relators do not qualify for the original source exception to
the public disclosure bar because their information—which we
take as true—does not materially add to the disclosures made
in the 2008 qui tam action. The 2008 action provided
substantial information about U.S. Cellular’s alleged control
over Carroll, Barat, and King Street. That complaint alleged the
designated entities were sham companies under the de facto
control of U.S. Cellular and existed solely to obtain the 25
percent bidding credit on FCC licenses that were ultimately for
U.S. Cellular’s use. Relators’ allegations in this case merely
confirm U.S. Cellular’s continued control over the designated
entities and its use of their licenses. While some information
may be new, it is not so significant or essential that it would

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influence the government’s decision to prosecute, because the
2008 action already disclosed the allegations of Defendants’
fraud. Rather than “blaz[ing] a new trail,” relators merely
“add[ed] a few more breadcrumbs on an existing trail.” Id. at
763. Providing some additional color about the fraudulent
scheme does not make relators an original source.
Relators’ contention that they affected the government’s
decisionmaking by prompting an investigation does not alter
our conclusion. Relators say they provided evidence of post-
licensing fraud that led the government to conduct a second
investigation. This investigation uncovered the 2011 NSA,
which relators claim established an attributable material
relationship between King Street and U.S. Cellular that
violated FCC rules and disqualified King Street from bidding
credits. On relators’ account, the fact of the government’s
investigation proves their new information materially added to
what the government knew. We disagree.
The government has broad discretion in deciding how to
respond to allegations in a qui tam suit, and such decisions may
be based on a range of factors independent of the relators’
specific disclosures. See Swift v. United States, 318 F.3d 250,
253 (D.C. Cir. 2003). The FCA requires relators to serve the
government a copy of the complaint and all material evidence,
which remains sealed for 60 days. See 31 U.S.C. § 3730(b)(2).
During this seal period, the government may investigate, or
take whatever action it sees fit, to determine whether it wants
to proceed with an enforcement action or intervene in the qui
tam suit. See id. The fact that the government undertook some
due diligence in response to new information does not
necessarily show that relators’ information was material. The
government has significant latitude in how it exercises its
enforcement authority under the FCA, and the mere fact of a
government investigation cannot support the conclusion that

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relators’ information was essential or influenced the
government.
Because relators’ allegations failed to materially add to the
public disclosures, relators do not qualify for the original
source exception to the public disclosure bar.9
* * *
This qui tam action must be dismissed because the frauds
Leibman and O’Connor allege were publicly disclosed in an
earlier lawsuit, and they are not original sources of the
information. We therefore affirm the judgment of the district
court.
So ordered.
9 The district court did not abuse its discretion in dismissing with
prejudice. Relators did not make a formal motion to amend, and in
these circumstances it is not an abuse of discretion for a district court
not to grant “such leave sua sponte.” Kowal v. MCI Commc’ns Corp.,
16 F.3d 1271, 1280 (D.C. Cir. 1994).

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