Defendant has the better of this argument. As director of the
PWBA's Office of Information Management, Schwedt had, by his own
admission, "primary responsibility" for developing a Field Office
Information System ("FOIS"). Opp. at 26. This entailed not only
managing the contractor (PRC), but also supervising employees
who, working "under [his] direction," tested the software
delivered by the contractor. Id. at 26-27. Schwedt also
"provided periodic written reports and frequent (daily) . . .
reports to [his] supervisors regarding project status." Subm. of
2/9/99 at 2 (parentheses in original). By definition, then,
Schwedt performed a management role that obligated him to alert
superiors to any suspicions of contractor wrongdoing that
threatened to impede development of the FOIS.
This case therefore is closely analogous to, if not
indistinguishable from, those in which government auditors were
held as a matter of law not to have "voluntarily" provided
information to the government because of the inherent nature of
their duties and responsibilities. See, e.g., United States ex
rel. Fine v. Chevron, U.S.A., Inc., 72 F.3d 740, 744 (9th Cir.
1995) (en banc); United States ex rel. Foust v. Group
Hospitalization and Med. Serv., Inc., 26 F. Supp.2d 60, 73
(D.D.C. 1998). As the Ninth Circuit wrote in Fine, employees such
as Schwedt who have managerial authority can "no more voluntarily
provide information to the government than . . . federal judges
. . . voluntarily hear arguments and draft dispositions." Fine,
72 F.3d at 743-44. See also United States ex rel. Biddle v.
Board of Trustees of the Leland Stanford, Jr. Univ.,
161 F.3d 533, 540-43 (9th Cir. 1998) (applying same analysis to
administrative contracting officer); United States ex rel.
Reagan v. Marovic, 97-3063, at 5 (N.D.Cal. 1998). Cf. Hagood v.
Sonoma County Water Agency, 81 F.3d 1465, 1476 (9th Cir. 1996)
(holding that government contracting lawyer was an original
source); id. at 1479-80 (Kleinfeld, J., concurring)
(disagreeing that lawyer was an original source). Just as an
auditor's investigative duties require her to report suspected
fraud, Schwedt's managerial responsibility to implement a Field
Office Information System obligated him to report suspected
contractor wrongdoing. As a matter of law, he could not have
"voluntarily" provided to the government information concerning
alleged fraud, and thus cannot qualify as an "original source"
within the meaning of 31 U.S.C. § 3730(e)(4)(B).*fn6
Schwedt argues that this conclusion subverts the False Claims
Act because if he could not have "voluntarily" provided
information to the government, then no government employee ever
could, as all are required by executive order to "disclose waste,
fraud, abuse, and corruption. . . ." Opp. at 28 (citation
omitted). This is not persuasive. That Schwedt was a highlevel
manager vested with primary responsibility over a vast project,
and that he learned of the alleged fraud in the course of
performing his managerial duties, easily distinguish this case
from that of other, differently situated, federal employees.
Furthermore, Schwedt concedes that he was bound by Department of
Labor regulations that made "[a]ll DOL employees . . .
responsible for . . . [p]romptly reporting . . . information that
they reasonably believe indicates wrongdoing," which was defined
to include "[s]ubmission of false claims or fraudulent statements
by employees, contractors, grantees or others doing business with
DOL." DLMS § 713, 704, Mot. to Dismiss Ex. C-14; Depos. of Mervyn
Schwedt, Vol. IV, at 584-85, Mot. to Dismiss Ex. C-12A (agreeing
that he "had no choice" but to report suspected contractor
wrongdoing). Thus, whether all federal employees are precluded
from "voluntarily" providing information to the government, and
whether such a result would subvert the purpose of the 1986
amendments to the False Claims Act, need not be addressed.*fn7
In view of the foregoing, PRC has established that
subject-matter jurisdiction is lacking because Schwedt was not an
"original source" within the meaning of
31 U.S.C. § 3730(e)(4)(B). Accordingly, its motion to dismiss will be
PRC's motion to dismiss on constitutional grounds argues: 1)
that the qui tam provisions of the False Claims Act violate the
Appointments Clause of Article II of the United States
Constitution; 2) that such provisions violate separation of
powers principles; and 3) that relator lacks Article III
standing. While each of these arguments has been rejected by
several courts of appeals, see, e.g., United States ex rel. Hall
v. Tribal Dev. Corp., 49 F.3d 1208, 1213-14 (7th Cir. 1995),
United States ex rel. Taxpayers Against Fraud v. General
Electric Co., 41 F.3d 1032, 1041 (6th Cir. 1994), the Supreme
Court has instructed courts to "decid[e] statutory claims first
to avoid unnecessary constitutional adjudications." Douglas v.
Seacoast Products, Inc., 431 U.S. 265, 272, 97 S.Ct. 1740, 52
L.Ed.2d 304 (1977). See also Hagans v. Lavine, 415 U.S. 528,
549, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974). In view of the
analysis of the motion to dismiss for lack of subject-matter
jurisdiction, see infra I, PRC's motion to dismiss on
constitutional grounds need not be addressed, and will be denied
Both parties also have filed cross-motions for summary
judgment, which, in view of the foregoing, see infra I,
likewise will be denied as moot.
An accompanying order implements the decisions announced