Judge Sidney Stein
Qui tam relator Kirk charged Schindler Elevator’s violation of the False Claims Act (FCA) by filing false "VETS-100" reports with the U.S. Department of Labor (DOL) so as to conceal its failure to comply with the Vietnam Era Veterans Readjustment Assistance Act. On appeal of dismissal Second Circuit found the FCA’s public disclosure bar inapplicable, and also that Kirk stated a valid FCA claim regarding Schindler’s allegedly false reports. Supreme Court reversed the circuit’s public disclosure finding. The circuit affirmed dismissal of Kirk’s claims premised on Schindler’s failure to file reports, but remanded for further consideration of Kirk’s claims premised on Schindler’s filing of false reports. Granting Kirk leave to file a second amended complaint (SAC), the court held Schindler’s renewed motion to dismiss Kirk’s first amended complaint (FAC) moot. Given that it could adjudicate whether Schindler was knowingly or recklessly so far out of compliance to render its claims to payment from the government fraudulent, the court found the concept of primary jurisdiction inapplicable. Equally meritless was Schindler’s claim that DOL resolution of Kirk’s administrative complaint estopped him from claiming that Schindler’s VETS-100 reports were false.
