The False Claims Act authorizes private whistleblowers to file civil lawsuits in federal court, on behalf of the United States, alleging fraud on the government. There are limitations on these suits, including the so-called “public disclosure bar” that requires courts to dismiss whistleblower suits
if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed (i) in a Federal criminal, civil, or administrative hearing in which the Government or its agent is a party; (ii) in a congressional, Government Accountability Office, or other Federal report, hearing, audit, or investigation; or (iii) from the news media, unless the . . . person bringing the action is an original source of the information.
31 U.S.C. § 3730(e)(4)(A). A whistleblower is an “original source” that can proceed with a federal case, notwithstanding a public disclosure, if (1) she voluntarily disclosed information to the government before the public disclosure; or (2) if she “has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions” and voluntarily discloses that information to the government before filing suit. Id. § 3730(e)(4)(B).
In United States ex rel. Anderson v. St. Elizabeth Med. Ctr., Inc., et al., No. 2026 WL 1047118 (6th Cir. Apr. 17, 2026), the Sixth Circuit offered helpful guidance on how much fresh information a whistleblower must bring to the table to survive a motion to dismiss under the public disclosure bar. In Anderson, a whistleblower filed an earlier lawsuit alleging a conspiracy to pay physicians kickbacks for medically unnecessary kidney dialysis treatments. That action was voluntarily dismissed after the whistleblower passed away.
Seven years later, a second whistleblower—the Anderson plaintiff—filed a second case that included similar allegations of kickbacks for kidney dialysis treatments. The second whistleblower added details on the dialysis scheme that were not included in the first case, including more information about individuals and the nuts and bolts of how the alleged scheme operated. The second whistleblower also added new allegations regarding fraudulent billing for downstream vascular treatments provided to dialysis patients, though he did not plead those allegations with sufficient particularity to survive a motion to dismiss.
The Sixth Circuit affirmed dismissal of the second whistleblower’s claims concerning the dialysis kickback scheme and offered several important takeaways about the public disclosure bar:
- Adding Certain Details and Defendants Are Not Enough
The key question under the public disclosure bar is one of notice: did the prior public disclosure put the government on notice of “substantially the same allegations?” The Sixth Circuit held, in Anderson, that the second whistleblower did not have enough new information about the earlier-disclosed dialysis kickback scheme. The public disclosure bar does not require “complete identity of allegations” as long as the prior public disclosure “depict[s] essentially the same scheme.” The second whistleblower’s identifying specific individuals, naming new defendants, and providing more details about the mechanics of a scheme that was already disclosed were not enough, in the Sixth Circuit’s view, to circumvent the public disclosure bar.
- Adding Commercial Payers As Victims Was Not Enough
Notably, the Sixth Circuit extended its ruling to certain details about the scope of the alleged fraud. In Anderson, the second whistleblower argued that the public disclosure bar did not apply because he alleged, for the first time, that the scheme involved billing commercial insurance along with government payers. Adding commercial payers as alleged victims of health care billing fraud was not enough to overcome the public disclosure bar. The Sixth Circuit said, “The problem . . . is that fraud on non-governmental entities is outside the [False Claims Act’s] ken. So it would make little sense to defang the FCA’s public disclosure bar whenever a [whistleblower] adds factual allegations on which FCA recovery is impossible as a matter of law.”
- Standard for Materiality of New Information for “Original Sources”
For similar reasons, the Sixth Circuit held that the second whistleblower could not proceed as an “original source” under the exception to the public disclosure bar. As noted above, one part of the original source question is whether the whistleblower’s information “materially adds to the publicly disclosed allegations.” The Sixth Circuit described that standard as meaning the whistleblower “must bring something to the table that would add value for the government and change its thinking or decision-making with respect to the [earlier-disclosed] fraud.”
The court did not believe the relator’s new details about the dialysis kickback scheme “would change the government’s appetite to prosecute. After all, those are the sorts of nitty-gritty details about the alleged fraud that the government could discover for itself while investigating the scheme. And if the government wasn’t even interested in the scheme’s broad contours, it’s hard to see how its mind would change based on easily uncoverable details.”
The public disclosure bar is an important limitation on — and basis for dismissing — parasitic whistleblower lawsuits under the False Claims Act. Warner attorneys have deep experience prosecuting and defending False Claims Act cases. Contact Adam Townshend, Madelaine Lane or your Warner attorney if you have any questions.
