In her dissent in Schindler Elevator Corp. v. United States ex rel. Kirk, Justice Ginsburg sent a clear message not to her fellow Justices in the majority, but to that other branch that works on the other side of First Street. The majority opinion broadly interprets the definition of the word “report,” thereby expanding a FOIA exemption, thereby limiting access to federal courts to find fraud.
By ranking DOL’s ministerial response an “administra-tive . . . report,” akin to a “Government Accounting Officereport,” §3730(e)(4)(A) (footnote omitted), the Court weakens the force of the FCA as a weapon against fraud on the part of Government contractors. Why should a whistleblower attentive to the heightened pleading standards of Federal Rule of Civil Procedure 9(b) be barred from court if he seeks corroboration for his allegations, as Kirk did, through a FOIA request simply for copies of a contractor’s filings? After today’s decision, which severely limits whistleblowers’ ability to substantiate their allegationsbefore commencing suit, that question is worthy of Congress’ attention.
This is a common theme in Justice Ginsburg’s opinions, one I think is admirable. She realizes she lacks the votes to shift the interpretation of the Court, so she calls on Congress to change it. I don’t know that this call will have the same gravitas as her Ledbetter dissent, but I’ll keep my eye ont his.