FILED
                                                   United States Court of Appeals
                                                           Tenth Circuit

                                 PUBLISH                  April 30, 2019
                                                      Elisabeth A. Shumaker
                UNITED STATES COURT OF APPEALS Clerk of Court

                               TENTH CIRCUIT



UNITED STATES OF AMERICA
EX REL., JULIE REED,

      Plaintiff - Appellant,

v.                                              No. 17-1379

KEYPOINT GOVERNMENT
SOLUTIONS,

      Defendant - Appellee.




              Appeal from the United States District Court
                      for the District of Colorado
                (D.C. No. 1:14-CV-00004-CMA-MJW)


Richard E. Condit, Mehri & Skalet PLLC, Washington, District of Columbia
(Steven A. Skalet and Brett D. Watson, Mehri & Skalet PLLC, Washington,
District of Columbia, and John T. Harrington and Robert S. Oswald, The
Employment Law Group, Washington, District of Columbia, with him on the
briefs), for Plaintiff-Appellant.

Robert C. Blume, Gibson, Dunn & Crutcher LLP, Denver, Colorado (Ryan
T. Bergsieker and Allison Chapin, Gibson, Dunn & Crutcher LLP, Denver,
Colorado, with him on the brief), for Defendant-Appellee.


Before BRISCOE, SEYMOUR, and HOLMES, Circuit Judges.
HOLMES, Circuit Judge.


      The False Claims Act (or the “Act”) allows for the recovery of civil

penalties and treble damages from anyone who defrauds the government by

submitting fraudulent claims for payment. 31 U.S.C. §§ 3729–3733. To

enforce its provisions, the Act empowers individuals to file suits on behalf

of the government alleging that a third party made a fraudulent claim for

payment to the government. 

These suits are known as

“qui tam” suits, and the individual plaintiffs are called “relators.”

Recognizing the risks relators face as prospective whistleblowers, the Act

prohibits employers from retaliating against employees who try to stop

violations of the Act. 

      Julie Reed sued her former employer, KeyPoint Government

Solutions, LLC (“KeyPoint”), for violating the False Claims Act. Her qui

tam claims alleged that KeyPoint violated the Act by knowingly and

fraudulently billing the government for work that was inadequately or

improperly completed. Ms. Reed also claimed that KeyPoint fired her in

retaliation for her efforts to stop KeyPoint’s fraud.

      This case presents two overarching questions. First, did the district

court err in granting summary judgment in KeyPoint’s favor on Ms. Reed’s

qui tam claims? Second, did the district court err in dismissing Ms. Reed’s

                                        2
retaliation claim under Federal Rule of Civil Procedure (“Rule”) 12(b)(6)?

      Exercising jurisdiction under 28 U.S.C. § 1291, we hold that the

district court erred in the first respect but not in the second. We therefore

vacate the district court’s order insofar as it granted summary judgment on

Ms. Reed’s qui tam claims and remand for further proceedings. We affirm

the district court’s order insofar as it dismissed Ms. Reed’s retaliation

claim.

                                       I

      This is a whistleblower case. The relevant background has three

parts: (1) the statutory background, (2) the underlying (alleged) bad acts,

and (3) the whistleblowing and ensuing procedural history. We recount

each part below.

                                      A

      The False Claims Act “covers all fraudulent attempts to cause the

government to pay out sums of money.” United States ex rel. Conner v.

Salina Reg’l Health Ctr., Inc., 

, 1217 (10th Cir. 2008)

(quoting United States ex rel. Boothe v. Sun Healthcare Grp., Inc., 

, 1172 (10th Cir. 2007)). It does so by permitting the recovery of civil

penalties and treble damages from anyone who “knowingly presents . . . a

false or fraudulent claim for payment or approval.” 31 U.S.C.


                                       3
§ 3729(a)(1)(A). Liability also attaches to anyone who “knowingly makes,

uses, or causes to be made or used, a false record or statement material to a

false or fraudulent claim.” 

      The Act’s proscriptions may be effectuated in two ways. “First, the

Government itself may” sue “the alleged false claimant” to remedy the

fraud. Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 

, 769 (2000). Second, “a private person (the relator) may bring a qui

tam” suit on behalf of the government and also for herself alleging that a

third party made fraudulent claims for payment to the government. 

bounty for identifying and prosecuting fraud,” relators get to keep a

portion “of any recovery they obtain.” 

(citing 31

U.S.C. § 3730(d)).

      But there are limits to a relator’s right to bring a qui tam suit. One

such limit is “known as the public disclosure bar.” Id.; see State Farm Fire

& Cas. Co. v. United States ex rel. Rigsby, 580 U.S. ----, 

,

440 (2016) (describing the public disclosure bar as a threshold relators must

pass for their qui tam suits to proceed). That bar compels courts to dismiss

qui tam claims “if substantially the same allegations . . . as alleged in the

action or claim were publicly disclosed,” unless the relator “is an original




                                       4
source of the information.” 1 31 U.S.C. § 3730(e)(4)(A). The public


       1
               Before Congress amended the False Claims Act in 2010, the public
disclosure bar was jurisdictional—that is, if the bar applied, courts lacked subject-matter
jurisdiction. See 

(explaining that, as of 2007, the public
disclosure bar was jurisdictional). The pre-2010 provision read: “No court shall have
jurisdiction over” a qui tam action “based upon the public disclosure of allegations.” 31
U.S.C. § 3730(e)(4)(A) (2006). The 2010 amendments removed the reference to
jurisdiction, counseling district courts instead to “dismiss an action” if the public
disclosure bar applies. 31 U.S.C. § 3730(e)(4)(A) (2010). The federal courts of appeals
that have confronted the issue have unanimously held that the 2010 “amendments
transformed the public disclosure bar from a jurisdictional bar to an affirmative defense.”
United States ex rel. Prather v. AT&T, Inc., 

, 1102 (9th Cir.), cert denied,

(2017); see also United States ex rel. Beauchamp v. Academi Training
Ctr., 

, 40 (4th Cir. 2016) (holding the amended “public-disclosure bar is . . .
an affirmative defense,” not “a jurisdictional bar”); United States ex rel. Moore & Co. v.
Majestic Blue Fisheries, LLC, 

, 300 (3d Cir. 2016) (same); United States ex
rel. Osheroff v. Humana Inc., 

, 810 (11th Cir. 2015) (same).
        Our circuit has yet to opine on this issue. And we need not do so today. Let us
briefly explain the most salient reasons. KeyPoint properly raised the public disclosure
bar as a defense in its motion to dismiss before the district court. As a result, we need not
determine the jurisdictional status of the public disclosure bar here. If KeyPoint had
failed to raise the bar before the district court and had asserted it for the first time on
appeal, we would have been obliged to consider the issue only if it was
jurisdictional—that is, if it implicated our jurisdiction to hear the merits of Ms. Reed’s qui
tam claims—not if it was merely an affirmative defense. Therefore, under such
hypothetical circumstances, the jurisdictional status of the issue would have been an
important question that we needed to resolve. See Smith v. Cheyenne Ret. Inv’rs L.P.,

, 1164 (10th Cir. 2018) (noting that “[i]n most cases, including this one,
this distinction between a jurisdictional requirement and an affirmative defense is
immaterial” because the party has “pled failure to exhaust as an affirmative defense”);
McQueen ex rel. McQueen v. Colo. Springs Sch. Dist., 

, 873 (10th Cir. 2007)
(explaining that the distinction between an affirmative defense and a jurisdictional
prerequisite “is important . . . only when the defendant has waived or forfeited the issue”
but because “there is no question of waiver or forfeiture” the court “need not decide
whether exhaustion is jurisdictional”); accord Coleman v. Newburgh Enlarged City Sch.
Dist., 

, 204 (2d Cir. 2007) (“[W]e are not forced to decide whether our
precedent, which labels the IDEA’s exhaustion requirement as a rule affecting subject
                                                                                    (continued...)

                                                5
disclosure bar aims to strike “the golden mean between” encouraging

“whistle-blowing insiders with genuinely valuable information” to come

forward while discouraging “opportunistic plaintiffs who have no

significant information to contribute of their own.” United States ex rel.

Fine v. Sandia Corp., 

, 571 (10th Cir. 1995) (quoting United

States ex rel. Springfield Terminal Ry. Co. v. Quinn, 

, 649 (D.C.

Cir. 1994)).




       1
         (...continued)
matter jurisdiction rather than an ‘inflexible claim-processing’ rule that may be waived or
forfeited, remains good law . . . because there can be no claim of waiver or forfeiture
here.”); see also Davoll v. Webb, 

, 1128 (10th Cir. 1999) (“If [an] issue
implicates subject matter jurisdiction, we have an obligation to address it ‘regardless of
normal rules governing the presentation of issues.’” (quoting Int’l Union of Operating
Eng’rs, Local 150 v. Rabine, 

, 429 (7th Cir. 1998))). But those hypothetical
circumstances are not present here; therefore, we need not consider the jurisdictional
status of the public disclosure bar. Furthermore, as we explain later, we conclude that the
original-source analysis that the district court used in concluding that the public
disclosure bar precludes Ms. Reed’s qui tam claims is legally flawed. Accordingly, we
vacate its judgment and remand for further proceedings. As a product of that disposition,
Ms. Reed’s qui tam claims are not (at least for the time being) subject to the public
disclosure bar. Thus, also for this reason, whether that bar is jurisdictional or not is
immaterial. Finally, we observe that the parties did not meaningfully address the public
disclosure bar’s proper characterization—i.e., jurisdictional or an affirmative defense.
Although this failure would not obviate the need for us to independently consider that
question if our jurisdiction over the merits depended on the answer, the parties’
underdeveloped arguments on this score further militate against us trying to answer the
question when the answer is not material here, let alone determinative of our jurisdiction.
Cf. Hill v. Kemp, 

, 1251 (10th Cir. 2007) (“Our system of justice, after all,
is not a self-directed inquisitorial one; to avoid error, we are dependent on the full
development of issues through the adversarial process . . . .”).

                                             6
      And because insiders might be reluctant to use these qui tam

provisions due to fear of employer backlash, the False Claims Act protects

whistleblowers from employer retaliation. See Potts v. Ctr. for Excellence

in Higher Educ., Inc., 

, 613–14 (10th Cir. 2018) (discussing 31

U.S.C. § 3730(h)). To qualify for whistleblower protection, an employee

must engage in “protected activity.” Armstrong v. Arcanum Grp., Inc., 

, 1286 (10th Cir. 2018). Until 2009, protected activity included

only “lawful acts done by the employee . . . in furtherance of an action

under this section [i.e., a qui tam suit].” 31 U.S.C. § 3730(h) (2008). But

Congress amended the anti-retaliation provision in 2009 and 2010, and it

now protects employees who take steps “in furtherance of” either a qui tam

claim or “other efforts to stop 1 or more violations” of the Act. 31 U.S.C.

§ 3730(h)(1). A whistleblower who prevails on her retaliation claim is

entitled to reinstatement, double back pay, litigation costs, and attorneys’

fees. 

The events giving rise to this litigation took place

against this statutory backdrop.

                                      B

                                      1

      KeyPoint is a private company that conducts background

investigations for the federal government—specifically, the Office of


                                      7
Personnel Management (“OPM”). OPM uses KeyPoint to investigate

prospective federal employees. The depth of KeyPoint’s investigations

varies according to the level of security clearance involved. Most

investigations, though, entail running background checks, interviewing the

subject of the investigation, gathering testimony from the subject’s

neighbors and coworkers, and then compiling the information in a report.

Government agencies rely on these reports in making employment decisions

and deciding whether to issue (or reject) security clearances.

      OPM’s contract with KeyPoint rewards timeliness. If KeyPoint

finishes its investigations on time, OPM pays KeyPoint a premium. But

KeyPoint’s pay decreases for each day an investigation runs past the

deadline.

      The contract also includes safeguards to ensure that KeyPoint’s

investigations are complete and accurate. For example, KeyPoint must do

thorough case reviews of each investigation and reinterview a percentage of

all sources. Another safeguard is the Telephone Testimony Program

(“TTP”); KeyPoint developed such a program at OPM’s request, and OPM

endorsed KeyPoint’s program. Ordinarily, investigators must conduct in-

person interviews. But they may do telephone interviews under some

circumstances, so long as they keep their total number of telephone


                                      8
interviews below a certain percentage threshold. Under the TTP, each

month OPM sends KeyPoint a list of investigators who exceeded their

allotted number of telephone interviews during the last month. KeyPoint

then must send OPM “corrective action report[s]” explaining each

infraction and what it is doing to remedy the problem. Aplt.’s App. at 31, ¶

54 (Second Am. Compl., filed Dec. 5, 2016). The contract and OPM’s

Investigator’s Handbook, which the contract incorporates, spell out these

and other quality-control measures.

                                      2

     Along with KeyPoint, the background-investigation industry has two

other main players—U.S. Investigations Services (“USIS”) and CACI

International, Inc. (“CACI”). This insular industry has had its share of

troubles. From 2008 to 2010, the government prosecuted several individual

investigators, including a former KeyPoint employee, for rushing

investigations and falsifying information in reports to OPM. And a 2010

report summarizing an OPM audit concluded that KeyPoint’s and its

competitors’ “quality assurance process” needed improvement. 

(Final Audit Report, dated June 22, 2010).

     The year 2013 was a particularly turbulent one for the industry. That

year two federal government contractors—Edward Snowden and Aaron


                                      9
Alexis—committed high-profile crimes after having received security

clearances. These embarrassing episodes put the industry under intense

scrutiny.

      With scrutiny came unflattering news reports. A June 2013 article

reporting on allegations against USIS noted that the “concerns about

background checks [were] not limited to USIS” and later named KeyPoint

and CACI as USIS’s “two main competitors.” 

160 (Wash. Post

Article, dated June 27, 2013). Another article that month reported that “a

select group of private contractors conducting background checks for high-

security jobs were not doing enough to ensure the quality of their

investigations.” 

(Reuters Article, dated June 26, 2013). The

article noted “problems with procedures and safeguards used by all three

private contractors—USIS, KeyPoint . . . and CACI.” 

A slew of

other news reports covered such allegations roiling the background-

investigation industry.

      The allegations in the press worried Congress and OPM. Those

worries led to several congressional hearings to probe the industry’s alleged

practice of using “false, incomplete, or rushed information gathering” in its

background investigations. 

& n.3 (Order, entered Sept. 28,

2017). And the bad press of its contractors prompted OPM to commission


                                     10
an audit of KeyPoint’s and its competitors’ practices. The audit concluded

that “OPM need[ed] to strengthen its controls over its Contractors and the

background investigation review process.” 

(Audit Report, dated

June 4, 2014). 2

       Exacerbating the industry’s woes, a federal court unsealed a

complaint against USIS in October 2013. See United States ex rel. Percival

v. U.S. Investigations Servs., LLC, No. 2:11-cv-00527-WKW-WC (M.D.

Ala. July 1, 2011) (complaint reproduced in Aplt.’s Reply Br., Addendum

A). That complaint leveled three accusations against USIS: first, that USIS

“failed to provide accurate and complete investigations prior to Cases being

submitted to the government,” Aplt.’s Reply Br., Addendum A, at 10;

second, that USIS “knowingly submitted Cases to OPM for payment that [it]

knew had not been reviewed,” 

and third, that USIS exploited “the

Blue Zone software . . . . to submit Cases to OPM under the false pretense

that the Cases had been complete[d] and accurately and properly reviewed,”

This USIS suit and the government’s intervention into it incited


       2
               The copy of the audit report included in the record is undated. But a copy
of the report that is publicly available via the Internet lists the date the report was
published as June 4, 2014. See OFFICE OF PERS. MGMT., AUDIT OF THE FEDERAL
INVESTIGATIVE SERVICES’ CASE REVIEW PROCESS OVER BACKGROUND INVESTIGATIONS
(2014), https://www.opm.gov/our-inspector-general/publications/reports/2014/audit-of-
the-federal-investigative-services-case-review-process-over-background-
investigations.pdf.

                                            11
more press accounts of the industry’s shoddy investigations.

                                       3

      Ms. Reed worked for KeyPoint during this turbulent period. As a

Senior Quality Control Analyst, she reviewed investigators’ work and

documented incomplete investigations in monthly reports. Ms. Reed also

ran KeyPoint’s TTP by performing a “regular monthly audit of KeyPoint

investigators who violated” the program. Aplt.’s App. at 34, ¶ 81. Along

with her “regular duties,” Ms. Reed “was occasionally tasked with extra

audits of investigators,” 

¶ 165, or assigned “to determine the

nature of . . . chronic infractions,” 

¶ 228. The precise scope of

Ms. Reed’s responsibilities as a Senior Quality Control Analyst and where

she fell in the KeyPoint hierarchy, however, are not specified in the

operative complaint.

      Nevertheless, that complaint does clearly aver that, in discharging her

duties, Ms. Reed observed what she described as “KeyPoint’s systemic

violations” of its contract with OPM and persistent submission of

fraudulent claims for payment to the government based on incomplete or

improperly completed investigations. 

¶ 34. Ms. Reed’s position

allowed her to see investigators falsely reporting applicants’ backgrounds

as “clean” and omitting information showing otherwise, completing fewer


                                      12
than the required number of interviews, and generally cutting corners. Ms.

Reed also believed that she witnessed rampant violations of the TTP and a

scheme by KeyPoint management to hide the violations by submitting

knowingly false corrective action reports to OPM.

      According to Ms. Reed, KeyPoint’s management not only knew of the

foregoing systemic violations but also encouraged them by pressuring

investigators to rush investigations to maximize revenue. Alarmed by the

abuses, Ms. Reed voiced her concerns within the company. Periodically,

Ms. Reed and her staff uncovered and reported violations. Ms. Reed also

“regularly reported [certain] infractions to her supervisor . . . by submitting

and discussing a monthly spreadsheet.” 

¶ 171. Along with these

monthly reports, Ms. Reed repeatedly shared her concerns with her

supervisor. She also discussed the problems with other individuals at

KeyPoint, such as the Director of Training, the OPM Contract Director,

Regional Managers, and certain Field Managers. But Ms. Reed’s efforts to

curb the violations failed. In fact, she alleges that the problems multiplied

over time.

      Eventually, KeyPoint fired Ms. Reed in October 2013. About a month

later, Ms. Reed and her counsel contacted the Department of Justice

(“DOJ”). She told DOJ about the abuses she claimed to have witnessed


                                      13
while at KeyPoint. To back up her allegations, Ms. Reed provided a pre-

disclosure statement and a presentation detailing KeyPoint’s alleged

violations.

                                           C

      At the government’s urging, Ms. Reed sued KeyPoint in January 2014.

Her operative complaint raised three qui tam claims and a retaliation

claim. 3 The qui tam claims alleged that KeyPoint violated the False Claims

Act by: (1) falsely certifying that it performed complete and accurate

investigations, (2) falsely certifying that it did proper case reviews and

quality-control checks, and (3) falsifying corrective action reports. Ms.

Reed’s retaliation claim alleged that KeyPoint fired her for trying to stop it

from violating the False Claims Act.

      After the government declined to intervene in the case, KeyPoint

moved to dismiss the suit. The district court then informed the parties that

it intended to convert the portion of KeyPoint’s motion concerning the qui

tam claims into a summary-judgment motion; the court did not perform a

similar conversion on KeyPoint’s motion to dismiss the retaliation claim.



      3
              Ms. Reed also alleged that KeyPoint violated the Americans with
Disabilities Act by retaliating against her because of her disability. The district court
granted KeyPoint’s motion to dismiss that claim. Ms. Reed does not challenge that ruling
on appeal.

                                           14
At the court’s invitation, Ms. Reed filed additional evidence to defend her

qui tam claims from summary judgment.

      In September 2017, the district court entered judgment for KeyPoint

on all counts. Regarding the qui tam claims, the court declined to consider

some of the supplemental materials that Ms. Reed had proffered to oppose

KeyPoint’s summary-judgment motion. And, on the merits, the court

determined that the allegations in Ms. Reed’s qui tam claims were

“substantially the same” as those that had been publicly disclosed in (1) the

criminal investigations of individual investigators, (2) the unflattering news

reports about the background-investigation industry, (3) the congressional

hearings and OPM audits, and (4) the USIS suit. 

. And, because

the court also concluded that Ms. Reed did not qualify as “an ‘original

source,’” it dismissed her qui tam claims under the public disclosure bar.

As for Ms. Reed’s retaliation claim, the district court granted

KeyPoint’s Rule 12(b)(6) motion to dismiss after determining that she had

inadequately pleaded that KeyPoint was on notice that she was engaging in

protected activity.

      Ms. Reed now appeals from the district court’s order entering

judgment for KeyPoint. Her appeal presents two questions. First, did the

district court err in granting KeyPoint summary judgment on the qui tam


                                      15
claims under the public disclosure bar? And second, did the district court

err in granting KeyPoint’s Rule 12(b)(6) motion to dismiss the retaliation

claim? For the reasons explicated below, we answer the first question in

the affirmative and the second in the negative.

                                         II

      We start with the first question. The public disclosure bar compels

courts to dismiss qui tam claims if (1) “substantially the same allegations . .

. were publicly disclosed,” unless (2) the relator is “an original source of

the information.” 31 U.S.C. § 3730(e)(4)(A). The district court thought

the allegations in Ms. Reed’s qui tam claims were substantially the same as

those that had been publicly disclosed. And it further reasoned that Ms.

Reed was not an original source of that information. Thus, the district

court granted KeyPoint summary judgment on Ms. Reed’s qui tam claims.

      We review that conclusion de novo and apply the same legal standard

that the district court used. See United States ex rel. Smith v. Boeing Co.,

, 1145 (10th Cir. 2016). “Summary judgment is appropriate

‘if the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.’” 

E D . R. C I V . P. 56(a)). When, as here, the district court granted the

defendant’s motion for summary judgment, “we accept as true the


                                         16
relator[’s] evidence and draw all reasonable inferences in [her] favor.” 

argues that the district court erred twice en route to

dismissing her qui tam claims under the public disclosure bar. 4 Its first

error, she says, was concluding that the allegations in her complaint were

substantially the same as those aired in earlier public disclosures.

Compounding that error, in her view, the district court then wrongly

determined that she did not fall under the “original source” exception to the

public disclosure bar.

       Put differently, the fate of Ms. Reed’s qui tam claims hangs on two

questions. First, are the allegations in those claims substantially the same

as those in earlier public disclosures? And second, if so, is Ms. Reed an

“original source” of the information in her claims? Our answer to the first

question does not favor Ms. Reed, but our answer to the second one does. 5

       4
                For the public disclosure bar to apply, two other conditions must be met.
First, “the alleged ‘public disclosure’” must “contain[] allegations . . . from one of the
listed sources” in the Act. In re Nat. Gas Royalties, 

, 1039 (10th Cir. 2009)
(quoting United States ex rel. Holmes v. Consumer Ins. Grp., 

, 1203 (10th
Cir. 2003)); see 31 U.S.C. § 3730(e)(4)(A)(i)–(iii) (listing, among other things, news
reports, congressional hearings, prior lawsuits, and federal audits as “sources”). Second,
the disclosure must be “public.” See In re Nat. Gas 

. Because
the parties agree that these conditions are met, we need not (and do not) consider them.
       5
             We typically answer “only the questions we must, not those we can.”
Valley Forge Ins. Co. v. Health Care Mgmt. Partners, Ltd., 

, 1094 (10th
Cir. 2010). Thus, we pause to explain our rationale for resolving the substantially-the-
same question even though we ultimately vacate the district court’s judgment regarding
                                                                             (continued...)

                                            17
       5
        (...continued)
the qui tam claims because of its error in resolving the original-source question. In other
words, because the original-source error is ultimately determinative here in our resolution
of the public-disclosure-bar issue, some might question the need to first rule on the
substantially-the-same component of the public-disclosure-bar issue. But our precedent
teaches that application of the public disclosure bar “requires a four-step inquiry.”
Kennard v. Comstock Res., Inc., 

, 1042 (10th Cir. 2004). The first two
steps—which are not at issue here—relate to whether the information in question
qualifies under the Act as a public disclosure. See 

step is the substantially-
the-same inquiry. These first three steps determine whether, absent an exception, the
public disclosure bar applies at all. See 

our circuit has counseled courts to
“address the first three public disclosure issues first.” 

States ex rel.
Hafter v. Spectrum Emergency Care, 

, 1161 (10th Cir. 1999)). Reaching
“the fourth, ‘original source’ issue is necessary only if the court answers the first three
questions in the affirmative.” 

(quoting 

).
In Kennard, for example, we first concluded that the public disclosure bar’s three
prerequisites applied. 

held that the relators “qualif[ied] as an original
source,” thus reversing the district court’s order. 

       Admittedly, this precedent instructing courts to reach the original-source question
only after answering in the affirmative the substantially-the-same question interpreted the
pre-2010 version of the public disclosure bar, which was jurisdictional. That said, we see
no reason why the 2010 amendment—irrespective of its jurisdictional import—should
change our view that the substantially-the-same “analysis is a threshold inquiry” that we
should resolve before “reach[ing] the ‘original source’ analysis.” United States ex rel.
Fine v. MK-Ferguson Co., 

, 1545 (10th Cir. 1996) (quoting United States ex
rel. Precision Co. v. Koch Indus., Inc., 

, 552 (10th Cir. 1992)). After all, as
we explain below, the 2010 amendment establishes an analytical rubric consistent with
our pre-2010 precedent. Moreover, the structure of the amended provision—like the
unamended version—supports the proposition that the substantially-the-same inquiry is a
threshold one. That provision instructs courts to dismiss a qui tam claim “if substantially
the same allegations . . . were publicly disclosed . . . . unless . . . the person bringing the
action is an original source of the information.” 31 U.S.C. § 3730(e)(4)(A) (2010)
(emphasis added); see 

–98 (quoting this amended language and
concluding that a relator’s allegations were substantially the same as those in the public
sphere, “but that [the relator] was nevertheless an original source”). Thus, we adhere to
our pre-2010-amendment view that courts should resolve the substantially-the-same
question before considering whether a relator’s qui tam claims may proceed under the
                                                                                    (continued...)

                                               18
Specifically, we hold that Ms. Reed’s complaint averments are substantially

the same as the allegations in the available public disclosures, but the

district court erred in finding that Ms. Reed’s averments do not materially

add to those disclosures’ allegations, such that she does not qualify as an

original source. But this holding does not fully resolve the original-source

question. Consequently, we vacate the district court’s summary-judgment

order and remand for further proceedings regarding whether Ms. Reed

qualifies as an original source.

                                       A

      We agree with the district court that Ms. Reed’s allegations

undergirding her qui tam claims are “substantially the same” as the

allegations in the public disclosures. We explain this conclusion in three

steps. First, we discuss the applicable legal standard that guides our

substantially-the-same inquiry. Second, we compare the allegations in Ms.

Reed’s qui tam claims with those in the public disclosures. And third, we

close by concluding that the allegations in the qui tam claims are

“substantially the same” as the publicly disclosed allegations.




      5
        (...continued)
original-source exception.

                                       19
                                       1

      Congress amended the False Claims Act in 2010. See Pub. L. No.

111-148, § 10104(j)(2), 124 Stat. 119, 901–02 (“2010 amendment”). Before

that year, the provision setting out the public disclosure bar read: “No

court shall have jurisdiction over an action under this section based upon

the public disclosure of allegations or transactions . . . .” 31 U.S.C.

§ 3730(e)(4)(A) (2008) (emphasis added). The amended provision reads:

“The court shall dismiss an action . . . if substantially the same allegations .

. . as alleged in the action or claim were publicly disclosed.” 31 U.S.C.

§ 3730(e)(4)(A) (2010) (emphasis added).

      Our court has yet to opine on the degree of similarity necessary to

satisfy this new substantially-the-same standard. That said, even before

2010, our circuit read the unamended provision’s “based upon” language to

mean that the public disclosure bar applied when “the allegations in the

complaint were substantially the same as allegations in the public

disclosures.” 

; see also Glaser v. Wound Care

Consultants, Inc., 

, 910 (7th Cir. 2009) (noting that “eight

other circuits have read the phrase ‘based upon’” to encompass allegations

that are “substantially similar” to those publicly disclosed). That the

substantially-the-same standard adopted in the 2010 amendment resembles


                                      20
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.” Bellevue v. Universal

Health Servs. of Hartgrove, Inc., 

, 718 (7th Cir. 2017), cert.

denied, 

(2018). Thus, the 2010 amendment confirms the

vitality of our pre-2010 standard. 6

       In her reply brief, Ms. Reed argues for the first time that the 2010

amendment nullifies our earlier cases. See Aplt.’s Reply Br. at 8. In her

view, the amendment “made clear” Congress’s “desire to narrow the impact

of the public disclosure bar.” 

Reed believes that Congress

acted specifically to jettison the reasoning used in our pre-2010 cases. And

so she warns us not to rely on those earlier cases in our substantially-the-

same inquiry.

       Ms. Reed’s argument is too little too late. For starters, by waiting



       6
                Accord United States ex rel. Winkelman v. CVS Caremark Corp., 

, 208 n.4 (1st Cir. 2016) (“The revised statutory langauge—‘substantially the
same’—merely confirms our earlier understanding.”); United States ex rel. Mateski v.
Raytheon Co., 

, 569 n.7 (9th Cir. 2016) (“[O]ur analysis of the issue of
substantial similarity would be the same under either version [of the public-disclosure-bar
provision].”); Cause of Action v. Chi. Transit Auth., 

, 281 n.20 (7th Cir.
2016) (“Our analysis [of substantial similarity] is therefore the same under either version
of the statute.”); see also United States ex rel. Armes v. Garman, 719 F. App’x 459, 463
n.2 (6th Cir. 2017) (unpublished) (“[T]he 2010 amendment does not affect our public-
disclosure analysis . . . .”).

                                            21
until her reply brief to argue that the 2010 amendment narrowed the public

disclosure bar’s sweep and undermined our earlier cases, Ms. Reed waived

that argument. See, e.g., White v. Chafin, 

, 1067 (10th Cir.

2017) (“Mr. White waived this contention by waiting to present it for the

first time in his reply brief.”). Furthermore, were we to overlook this

waiver, we nevertheless would decline Ms. Reed’s invitation to discard our

earlier precedent because of Congress’s supposed “desire to narrow the

impact of the public disclosure bar.” Aplt.’s Reply Br. at 8.

      We ordinarily derive Congress’s intent “from the text, not from

extrinsic sources.” Antonin Scalia & Bryan A. Garner, R E A D I N G L A W : T H E

INTERPRETATION    OF   L E G A L T E X T S 56 (2012). The amended text says that

the public disclosure bar applies when substantially the same allegations

had been publicly disclosed; that is how our circuit (and most others)

applied the public disclosure bar pre-amendment, see 

,

and that is how we will continue to apply it until Congress or the Supreme

Court tells us otherwise. In any event, Congress’s supposed desire to

narrow the public disclosure bar presumably would relate to only those

circuits that had used a standard other than the substantially-the-same

standard adopted in the 2010 amendment. See, e.g., United States ex rel.

May v. Purdue Pharma L.P., 

, 917 (4th Cir. 2013) (explaining


                                         22
that because the Fourth Circuit had not used the substantially-the-same

standard, the 2010 amendment “changed the required connection between

the plaintiff’s claims and the qualifying public disclosure” in that circuit).

But in this circuit—where we already used the substantially-the-same

standard—the 2010 amendment “merely confirms our earlier

understanding.” United States ex rel. Winkelman v. CVS Caremark Corp.,

, 208 n.4 (1st Cir. 2016). Thus, our pre-2010-amendment

cases guide our substantially-the-same inquiry.

       Those cases teach that the operative question is whether the public

disclosures were sufficient to set the government “on the trail of the alleged

fraud without [the relator’s] assistance.” 7 

. And we

must recognize that the government’s nose for fraud may be sensitive

enough to pick up the scent even if the public disclosures did not “identify




       7
               We are aware of scholarly criticism of the on-the-trail-of-fraud standard.
See Susan Schneider Thomas & Jonathan Z. DeSantis, Misguided Meanders: The “Trail
of Fraud” Under the Public Disclosure Bar of the False Claims Act, 43 UNIV. OF
DAYTON L. REV. 161, 182 (2018) (“[R]ather than using the innately ambiguous
assessment of whether the alleged public disclosures ‘might have’ ‘set’ the government
on the ‘trail’ of fraud, it would be a far more meaningful analysis to examine, as the plain
language of the statue commands, whether the potentially disabling public disclosures in
fact disclosed allegations or transactions of fraud, or made actual allegations of fraudulent
conduct.”). However, Fine and its progeny are binding precedent in this circuit.
Moreover, Ms. Reed does not challenge the propriety of this standard in her Opening
Brief.

                                             23
any specific compan[y].” 8 See In re Nat. Gas Royalties, 

,

1039, 1042 (10th Cir. 2009). The need to identify the defendant by name is

particularly weak when “the government has already identified the problem

and has an easily identifiable group of probable offenders.” 9 

. Similarly, “[a] relator need not have learned of the basis for the qui

tam action from the public disclosure” to trigger the public disclosure bar.

Kennard v. Comstock Res., Inc., 

, 1044 (10th Cir. 2004). Nor

is “a complete identity of allegations, even as to time, place, and manner . .

. required to implicate the public disclosure bar.” 

. Rather, it is enough if “the essence of” the relator’s allegations was

“‘derived from’ a prior public disclosure.” 

the public

       8
                See also United States ex rel. Lager v. CSL Behring, L.L.C., 

,
946 (8th Cir. 2017) (concluding that the disclosures “‘set the government squarely on the
trail’ of the defendants’” fraud even though the disclosures did not name defendants
(quoting In re Nat. Gas 

)); United States ex rel. Zizic v.
Q2Administrators, LLC, 

, 238 (3d Cir. 2013) (concluding allegations were
substantially similar even though defendants “were not actually identified” in the public
disclosure).
       9
               See also 

(finding substantial similarity when
disclosures gave enough information about an industry-scheme to “identify the
defendants” without naming them); cf. United States ex rel. Jamison v. McKesson Corp.,

, 329, 330 (5th Cir. 2011) (observing that “the public disclosures need not
name particular defendants so long as they ‘alerted the government to the industry-wide
nature of the fraud and enabled the government to readily identify wrongdoers through an
investigation,” but reasoning that “the defendants’ documents, considered alone, likely
are not sufficient publically to disclose allegations specific to” them because their
industries “are large” and “[t]he public disclosures do not indicate that fraud is universal
or even widespread within them” (quoting In re Nat. Gas 

)).

                                            24
disclosures need not allege any False Claims Act violations or even “any

wrongdoing”; they need only disclose “the material elements of the

fraudulent transaction.” 10 

.

      In summary, the public disclosure bar applies to qui tam claims “if

substantially the same allegations . . . were publicly disclosed.” 31 U.S.C.

§ 3730(e)(4)(A). Our pre-2010-amendment cases primarily guide our

substantially-the-same inquiry. And those cases teach that the operative

question is whether the public disclosures were sufficient to set the

government “on the trail of the alleged fraud without [the relator’s]

assistance.” 

.

                                            2

      Having settled on the proper standard governing the substantially-the-

same inquiry, we now must compare Ms. Reed’s allegations with those in

the public disclosures.

      Ms. Reed’s Allegations. At a high level of generality, Ms. Reed’s qui

tam claims allege that KeyPoint “was engaging in systemic fraud.” Aplt.’s



      10
               See also 

–19 (noting that the substantially-the-
same standard requires only “that the government had enough information” from the
public disclosures to infer that the defendant knowingly violated the False Claims Act);

(explaining that it is enough that the public disclosures “lead
to a plausible inference of fraud” (quoting United States ex rel. Ondis v. City of
Woonsocket, 

, 54 (1st Cir. 2009))); 

(same).

                                           25
Opening Br. at 1. This fraud grew from KeyPoint’s “focus[] on meeting . .

. deadlines” and winning bonuses “at the expense of the quality,

completeness, and accuracy” of its investigations, Ms. Reed says. Aplt.’s

App. at 29, ¶ 38. For instance, Ms. Reed accuses KeyPoint of pressuring

investigators to rush investigations to maximize revenue. This pressure led,

generally, to rampant violations of KeyPoint’s contract with OPM and, in

particular, of the TTP. Notably, as to the TTP, the pressure led to the

submission of knowingly false corrective action reports designed to hide the

violations. At bottom, Ms. Reed alleges that KeyPoint knowingly

defrauded the government to “enrich itself and its executives at the expense

of national security.” Aplt.’s Opening Br. at 6.

      Zooming in on the details, Ms. Reed claims that KeyPoint’s fraud

manifested itself in three main ways. First, she says that KeyPoint falsely

certified to OPM that it had performed complete and accurate

investigations. To support this charge, Ms. Reed points to specific

instances in which investigators failed to do mandatory interviews of

sources. She also details how individual investigators uncovered

derogatory information about subjects but failed to report that information

in their reports to OPM. Piling on, Ms. Reed lists over 100 instances in

which investigators cut interviews short and then lied about it to OPM. She


                                     26
adds to this by exposing scores of violations of the TTP.

      Ms. Reed contends that the second manifestation of KeyPoint’s fraud

entailed falsely representing to OPM that it had done proper case reviews

and quality-control checks. For instance, she documents at least five times

that, “despite . . . readily apparent violations,” KeyPoint reviewers violated

OPM requirements by failing to reopen cases. Aplt.’s App. at 88, ¶ 248.

And to circumvent the TTP, “quality control staff failed to perform the

proper number of re-interviews.” 

¶ 252.

      The third (related) strain of fraud Ms. Reed identifies is KeyPoint’s

submission of falsified corrective action reports. Recall that these reports

“are supposed to detail the specific actions taken by KeyPoint management

to address” violations of OPM rules and programs—most notably, the TTP.

¶ 255. To hide its rampant violations and institutional

acquiescence to those violations, Ms. Reed alleges that “KeyPoint falsified

corrective action reports to OPM” to give the appearance that it “was

actively addressing [violations], when it was not.” 

¶ 256. To Ms.

Reed’s knowledge, KeyPoint falsified dozens of reports to hide malfeasance

by at least four individual investigators.

      Publicly Disclosed Allegations. There are four categories of relevant

public disclosures: (1) criminal investigations of individual investigators,


                                      27
(2) the news reports, (3) congressional hearings and OPM audits, and (4)

the previously mentioned USIS suit.

      Criminal Investigations. Between 2007 and 2013, the government

prosecuted individual investigators for allegedly falsifying information in

their reports. At least one of these “criminal cases involve[d] . . . a former

Key[P]oint employee who ‘raced through investigations to get more work’

and lied about conducting thorough background checks when they were

incomplete and rushed.” 

      News Reports. In 2013, a slew of news reports chronicled the

suspected fraud and widespread sloppiness in the background-investigation

industry. One article in September 2013 reported that the government was

“‘pursuing suspected fraud in the granting of security clearances,’ including

‘19 private and government investigators for submitting fabricated

reports.’” 

at 307–09 (NBC Article, dated Sept. 18, 2013)).

Another article in June 2013 relayed that OPM had found problems “with

procedures and safeguards used by all three private contractors—USIS,

KeyPoint . . . and CACI.” 

This article added that “[a]ll three

companies have had investigators who were found to have done substandard

work in background checks.” 

2013 article reporting on

allegations against USIS noted that “concerns about background checks


                                      28
[were] not limited to USIS.” 

      Congressional Hearings & OPM Audits. In 2013, Congress twice

held hearings to investigate the background-investigation industry’s

practice of using “false, incomplete, or rushed information gathering” in its

background investigations. 

& n.3. OPM reacted by

commissioning an audit of KeyPoint’s and its competitors’ practices. This

audit determined that OPM “need[ed] to strengthen its controls over its

Contractors and the background investigation review process.” 

.

Back in 2010, OPM had completed a report on another audit of the

background-investigation industry. This earlier report concluded that

KeyPoint’s and its competitors’ “quality assurance process” needed

improvement. 

. The 2010 report also revealed that KeyPoint

sometimes “did not conduct the required amount of re-contacts” in its

investigations, 

and that there were “falsification and[] integrity

issues” with investigations done by USIS, KeyPoint, and CACI, 

      The USIS Suit. In October 2013—a month before Ms. Reed conveyed

her allegations to DOJ and two months before she filed her qui tam suit—a

federal court unsealed a complaint against USIS. The complaint included

three qui tam claims against USIS. First, it alleged that USIS had a

practice of “dumping” cases. That is, USIS allegedly sent cases “to OPM


                                      29
that were represented as Field Finished” when, in truth, they were

unreviewed or “had not been investigated at all.” Aplt.’s Reply Br.,

Addendum A, at 5. Second, the complaint claimed that USIS “failed to

provide accurate and complete investigations.” 

Third, USIS

supposedly falsely represented to OPM the extent to which it used a

software program known as the “Blue Zone.” 

But the suit neither

mentioned KeyPoint nor implied that USIS’s fraud extended to its

competitors or the industry as a whole.

                                              3

       The question now is: Are the allegations in Ms. Reed’s qui tam

claims substantially the same as those in the publicly disclosed sources?

We agree with the district court that the answer to that question is “yes.”

That is, we conclude that the public disclosures were sufficient to set the

government on the trail of KeyPoint’s alleged fraud without Ms. Reed’s

assistance. 11


       11
               Ms. Reed alleges on appeal that the district court “fail[ed] to do a diligent
comparison of the putative public disclosures with [her] allegations.” Aplt.’s Opening Br.
at 3. Not so. Beyond incorporating the magistrate judge’s discussion of the relevant
allegations, see Aplt.’s App. at 409, the district court dutifully recounted Ms. Reed’s
allegations and the publicly disclosed allegations in turn, see 

From this
comparison, the court then concluded that Ms. Reed’s allegations were substantially
similar to the publicly disclosed allegations. The sufficiency of this analysis cannot be
questioned. In any event, our review is de novo, and we have thoroughly compared the
                                                                                (continued...)

                                             30
       At their most general, Ms. Reed’s qui tam claims allege systemic

sloppiness and fraud in the background-investigation industry. 12 But the

government and the public knew that much already from the news reports.

Those news articles painted a picture of widespread problems with the

thoroughness and accuracy of the private contractors’ background


       11
         (...continued)
averments of Ms. Reed’s operative complaint to the identified public disclosures.
Accordingly, Ms. Reed’s assertion that the district court conducted a faulty analysis of the
summary judgment record is ultimately of no moment. Cf. Rivera v. City & County of
Denver, 

, 920 (10th Cir. 2004) (“Because our review is de novo, we need not
separately address Plaintiff’s argument that the district court erred by viewing evidence in
the light most favorable to the City and by treating disputed issues of fact as
undisputed.”).
       12
               We, like other circuits, would have reservations about keeping our analysis
of Ms. Reed’s allegations solely at such a high level of generality. See 

(agreeing with the “Seventh Circuit’s warning against reading qui tam complaints
at only the ‘highest level of generality’” (quoting Leveski v. ITT Educ. Servs., Inc., 

, 831 (7th Cir. 2013))). But at what precise level of generality we should
compare a relator’s claims with allegations in public disclosures is a difficult question.
The Act tells us to ask if the relator’s claims are “substantially the same.” 31 U.S.C.
§ 3730(e)(4)(A). The ordinary meaning of “substantial” is: “concerning the essentials of
something.” THE NEW OXFORD AMERICAN DICTIONARY 1687 (2d ed. 2005). And the
ordinary meaning of “same” is: “identical; not different; unchanged” or “of an identical
type.” 

“Substantially the same,” then, connotes a standard that requires only
the essentials of the relator’s allegations to be identical to or of an identical type as those
disclosed publicly. This plain-meaning analysis comports with our precedent. See

(noting that “a complete identity of allegations” is unnecessary;
it is enough for “the essence of” the relator’s allegations to be “‘derived from’ a prior
public disclosure”). We need not put a finer point on this issue in this case. That is
because it is clear to us that only if we accept Ms. Reed’s hyper-specific reading that
requires near-complete identity of allegations could we conclude that her allegations are
not substantially similar to those in the public disclosures. And our precedent forecloses
such a hyper-specific reading. See 

And that Congress held hearings to probe the background-

investigation industry’s alleged practice of using “false, incomplete, or

rushed information gathering” underscored the pre-existing public

awareness of a strong probability of fraud in the industry. Aplt.’s App. at

411 & n.3. What is more, the criminal prosecutions of individual

investigators confirmed that the government knew that investigators in the

industry were falsifying information in their reports.

      Moving down a rung on the generality ladder to more specific footing,

Ms. Reed’s claims allege fraud not only in the background-investigation

industry generally, but also in KeyPoint’s specific background-investigative

practices. That information, too, was old news to the government. After

all, the government prosecuted a former KeyPoint employee for “rac[ing]

through investigations” and lying “about conducting thorough background

checks when they were incomplete and rushed.” 

News reports

from 2013 added to this knowledge by reporting that OPM had found

problems “with procedures and safeguards used by all three private

contractors—USIS, KeyPoint . . . and CACI.” 

To be sure, the

news reports avoided explicitly accusing KeyPoint of defrauding the

government. But direct allegations of fraud were unnecessary to put the

government on the trail of KeyPoint’s fraud. Cf. 

208 (explaining that it is enough that the disclosures “lead to a plausible

inference of fraud” (quoting United States ex rel. Ondis v. City of

Woonsocket, 

, 54 (1st Cir. 2009))); United States ex rel.

Osheroff v. Humana Inc., 

, 814 (11th Cir. 2015) (same);

(“[A] complete identity of allegations, even as to

time, place, and manner [is unnecessary].”); 

(noting

that public disclosures need not allege “any wrongdoing”). Moreover, a

2010 OPM audit report revealed both that KeyPoint sometimes “did not

conduct the required amount of re-contacts” in its investigations, Aplt.’s

App. at 289, and that there were “falsification and[] integrity issues” with

investigations done by USIS, KeyPoint, and CACI, 

The

government, then, did not need Ms. Reed’s allegations to pick up the scent

of fraud at KeyPoint.

      At their most specific, Ms. Reed’s claims allege that KeyPoint

knowingly defrauded the government by submitting fraudulent reports about

the completeness and accuracy of its investigations. The government could

have inferred as much from the public disclosures. Consider the USIS

lawsuit. That suit alleged that USIS failed to review investigations, failed

to do adequate investigations, and sent false reports to OPM. Those are the

same basic failings Ms. Reed accuses KeyPoint of. Furthermore, the USIS


                                       33
suit alleged that investigators sent cases “to OPM that were represented as

Field Finished” when, in truth, they were unreviewed or “had not been

investigated at all.” Aplt.’s Reply Br., Addendum A, at 5. Ms. Reed’s suit

similarly asserts that KeyPoint sent OPM false claims “certifying that [its]

investigators conducted complete, accurate, and proper investigations.”

Aplt.’s App. at 104, ¶ 359.

      Considering this information from the USIS lawsuit and the other

publicly disclosed matters discussed above, we conclude that the public

disclosures were sufficient to set the government on the trail of KeyPoint’s

alleged fraud without Ms. Reed’s assistance. Our cases reinforce this

conclusion. Take Fine, for example. The relator there accused Sandia

Corporation of misappropriating nuclear waste 

. At

the time, Sandia was one of only nine laboratories receiving federal funds

from the Department of Energy. Before the relator’s suit, a government

report documented how three such laboratories, including Sandia, funded

their discretionary research. The report concluded that the two other

laboratories—but, notably, not Sandia—were fraudulently “taxing” nuclear

waste funds in order to bolster their research programs, possibly in

violation of federal law. 

implicating Sandia, a later

congressional hearing further probed the Department of Energy’s


                                      34
acquiescence to such behavior from its laboratories. As we saw it, that

neither the report nor the congressional hearing named Sandia as a

wrongdoer was not determinative. 

We reasoned that because the

public disclosures had “identified the problem and [there was] an easily

identifiable group of probable offenders,” the disclosures “were sufficient

to put the government on notice as to Sandia’s potential for

misappropriating nuclear waste funds.” 

held that the relator’s

allegations were substantially the same to those in the report and the

congressional hearing. 

reasoning applies here. As in Fine, the public disclosures

here identified the problem—fraud in background investigations—and

traced that problem to an easily identifiable group of probable offenders

(USIS, KeyPoint, and CACI). As in Fine, Congress held hearings to probe

the suspected fraud in this limited industry. Moreover, akin to Fine, a

government report (here, the 2010 OPM audit report) laid bare the heart of

the matter—i.e., the falsification and integrity issues that plagued the

background-investigation industry.

      But unlike in Fine, some of the public disclosures explicitly linked

KeyPoint to the suspected fraud. The OPM audit said that “Contractors”

had falsification issues; that defined term meant USIS, KeyPoint, and


                                      35
CACI. And the news reports publicized that OPM had “found problems

with procedures and safeguards used by all three private contractors—USIS,

KeyPoint . . . and CACI.” Aplt.’s App. at 303. Thus, although the public

disclosures did not say the words “KeyPoint defrauded the government,” the

link that the disclosures forged between KeyPoint and the fraud was even

stronger than the one in Fine, where we held that the substantially-the-same

standard was satisfied. It ineluctably follows that this link was sufficient

here to satisfy that standard—that is, to have set the government on the trail

of KeyPoint’s alleged fraud without Ms. Reed’s help.

      Ms. Reed’s attempts to distinguish Fine fall short. For starters, Ms.

Reed is mistaken in asserting that “no publicly disclosed information prior

to [her] lawsuit indicated that KeyPoint was a wrongdoer.” Aplt.’s Reply

Br. at 10. The news reports linked KeyPoint to the fraud allegations roiling

the industry. Even Ms. Reed’s statement that “KeyPoint was not

investigated for any suspected wrongdoing,” 

hollow.

After all, the government prosecuted a former KeyPoint employee for lying

“about conducting thorough background checks when they were incomplete

and rushed.” Aplt.’s App. at 410. Even if Ms. Reed’s characterization of

the absence of a KeyPoint-specific investigation were correct, the fact that

KeyPoint was not named as a wrongdoer would not distinguish Fine;


                                      36
instead, it would reinforce the parallels with it. And those parallels persist

even though—as Ms. Reed points out—unlike the Department of Energy,

OPM never “acquiesced to or implicitly approved any fraudulent schemes.”

Aplt.’s Reply Br. at 10. Ms. Reed overstates the significance of the

Department of Energy’s acquiescence in Fine. We noted this agency

conduct there to emphasize that the government knew of the underlying

problem at issue in a limited industry; our point was not that the

acquiescence itself was independently important. See 

.

In sum, Ms. Reed errs in suggesting that Fine is materially distinguishable.

It is not. To the contrary, it bolsters our conclusion that Ms. Reed’s

allegations are substantially the same as the publicly disclosed allegations.

      In re Natural Gas Royalties further supports our view on the

substantially-the-same question. The relator there alleged that certain

natural gas companies used fraudulent measurement techniques to underpay

federal royalties. The relevant public disclosures included (1)

congressional documents revealing problems with measurement techniques

in the natural-gas industry, (2) an earlier qui tam suit against different gas

companies for the same fraudulent practices, and (3) press accounts

reporting on the earlier suit and “disclos[ing] the industrywide nature of

[the suit’s] broad 

. On appeal, the relator


                                       37
argued that these disclosures were not substantially the same as his

allegations because the specific “Defendants and techniques were not

identified in any public disclosed allegation.” 

This court

disagreed.

      Citing Fine, we explained in In re Natural Gas Royalties that “the

public disclosures at issue named a significant percentage of industry

participants as wrongdoers and indicated that others in the industry were

very likely engaged in the same practices.” 

These revelations

alleviated the burden for the government “to comb through myriad

transactions performed by various types of entities in search of potential

fraud.” 

government needed only to investigate the

measurement techniques used by a small pool of actors to ferret out the

fraud. For those reasons, we held that, even without naming the specific

defendants and techniques identified by the relator, “the allegations of

industrywide gas mismeasurment disclosed” in the public documents “were

sufficient to set the government on the trail of the fraud as to all

Defendants.” 

      So too here. The allegations in the public disclosures identified

pervasive fraud in the background-investigation industry. Recall that in the

years before Ms. Reed’s suit, the government prosecuted individual


                                      38
investigators for allegedly falsifying information in their reports.

Furthermore, a 2013 news article reported that the government was

“pursuing suspected fraud in the granting of security clearances” by

contractors. Aplt.’s App. at 308. And the USIS suit alleged that one of

KeyPoint’s two main competitors (i.e., USIS) falsely told OPM that it had

provided “accurate and complete investigations.” Aplt.’s Reply Br.,

Addendum A, at 10.

      As in In re Natural Gas Royalties, the public disclosures here

obviated the need for the government “to comb through myriad transactions

performed by various types of entities in search of potential 

. The disclosures identified three main players (including

KeyPoint), and generally unearthed the type of fraud—false certifications

of accurate and complete investigations—that the government needed to

look for. Guided by In re Natural Gas Royalties, we conclude that the

publicly available information here was more than enough to set the

government on the trail of KeyPoint’s fraud without Ms. Reed’s allegations.

      Ms. Reed rejects such a conclusion. She first argues that her

allegations “relate to a different entity” than the entities—notably,

USIS—accused of wrongdoing in the public disclosures. Aplt.’s Opening

Br. at 12. Ms. Reed is quick to point out that the USIS suit made “no


                                      39
allegations against KeyPoint” and that none of the public disclosures

expressly accused KeyPoint of defrauding the government. 

Maybe so. But the substantially-the-same standard does not demand that

the disclosures identify the defendant by name as the wrongdoer. See In re

Nat. Gas 

. To the contrary, it is enough that the

“public disclosures alleged industry-wide fraud” and “provide[d] enough

information” to link the defendant to the scheme. 13 United States ex rel.

Lager v. CSL Behring, L.L.C., 

, 946 (8th Cir. 2017). In a

similar way, “the public disclosure bar contains no requirement that a

public disclosure use magic words.” 

. Thus,

although the public disclosures did not say the magic words “KeyPoint

defrauded the government,” the disclosures were sufficient to link KeyPoint

to fraud in an industry with only three players. No more is required.

      Ms. Reed next argues that her allegations substantially differ from the



      13
               See also 

(noting that the substantially-the-same
standard requires only “that the government had enough information” from the public
disclosures to infer that the defendant knowingly violated the Act); 

(same); 

(“[T]he public disclosures need not name particular
defendants so long as they ‘alerted the government to the industry-wide nature of the
fraud and enabled the government to readily identify wrongdoers through an
investigation.’” (quoting In re Nat. Gas 

)); United States ex
rel. Gear v. Emergency Med. Assocs. of Ill., Inc., 

, 729 (7th Cir. 2006)
(rejecting “argument that for there to be public disclosure, the specific defendants named
in the lawsuit must have been identified in the public records”).

                                           40
publicly disclosed allegations because she exposed different schemes. For

instance, she maintains that “USIS had a very specific fraudulent scheme

that it used to facilitate ‘dumping’ cases.” Aplt.’s Reply Br. at 5. That

scheme, Ms. Reed explains, involved representing to OPM that cases were

complete when they actually were unfinished or “had not been investigated

at all.” 

by contrast, describes “several types of

fraudulent schemes specific to KeyPoint that are entirely unrelated to the

USIS case or any of the other publicly disclosed information.” 

      Ms. Reed is right that some of the schemes she exposed—especially,

the scheme involving the TTP—added to the government’s knowledge

(more on this subject later), but these additions do not alter our

substantially-the-same assessment. For now, the relevant question is only

whether the public disclosures set the government on the trail of KeyPoint’s

fraud. As we have explained, this does not require “complete identity of

allegations.” 

. Rather, it is enough if the relator’s

complaint is “at least ‘in . . . part’” substantially the same as “the publicly

disclosed information.” 

(alteration in original)

(quoting Battle v. Bd. of Regents, 

, 762 (11th Cir. 2006) (per

curiam)).

      Moreover, it cannot be gainsaid that in significant, material respects


                                       41
Ms. Reed’s complaint averments are substantially the same as the complaint

averments in the USIS suit. For instance, Ms. Reed’s complaint alleges that

KeyPoint conducted “improper, incomplete, and inaccurate investigations.”

Aplt.’s App. at 33, ¶ 74. The USIS complaint likewise alleges that USIS

“failed to provide accurate and complete investigations.” Aplt.’s Reply Br.,

Addendum A, at 10. 14 And there are other substantial similarities between

the complaints. Compare Aplt.’s App. at 32, ¶ 64 (alleging that KeyPoint

“transformed almost every aspect of its investigative processes to maximize

profits by hitting deadlines and taking on as much work as possible, without

concern for the quality, accuracy, or completeness of its investigations”),

with Aplt.’s Reply Br., Addendum A, at 5 (alleging that USIS pressured

“Field Investigators to submit a large number of [reports of investigations]

in a short amount of time in order to meet the revenue goals”). Therefore,

given these substantial similarities, that Ms. Reed’s complaint revealed one

or more KeyPoint fraudulent schemes that are distinct from those alleged in

the USIS lawsuit does not dissuade us from the view that the USIS suit

helped put the government on the trail of KeyPoint’s alleged fraud.



      14
              Compare also Aplt.’s App. at 88, ¶ 244 (“Each case was submitted as
though it had been properly completed, reviewed, and checked when none had received
the required oversight.”), with Aplt.’s Reply Br., Addendum A, at 6 (“USIS knowingly
submitted Cases to OPM for payment that they knew had not been reviewed . . . .”).

                                         42
     Finally, Ms. Reed argues that the district court erred by not

considering 2014 congressional testimony from a KeyPoint executive, Ms.

Ordakowski, in its substantially-the-same analysis. In that testimony, Ms.

Ordakowski told Congress that KeyPoint met or exceeded OPM standards

and had “never wavered from its focus on quality.” Aplt.’s Opening Br. at

21. Ms. Reed reasons that “if the government had some suspicions about

the quality of KeyPoint’s work,” this testimony would have “throw[n] the

government off the trail of the type of fraud [that Ms. Reed] alleges.” 

crumbles upon even brief reflection. First of all, Ms.

Ordakowski testified months after Ms. Reed communicated her allegations

to DOJ and after she sued KeyPoint. So the substance of Ms. Ordakowski’s

testimony tells us nothing about whether the government would have picked

up the trail of fraud at KeyPoint based on the information it already had

when Ms. Reed sued KeyPoint. Leaving aside this space-time-continuum

problem, Ms. Reed’s argument defies common sense. That Congress called

a KeyPoint executive to testify about problems with background

investigations strongly suggests that Congress thought there was a problem

and that KeyPoint potentially was among the culprits. Cf. 

(“[T]he public disclosures here were sufficient to put the government

on notice as to Sandia’s potential for misappropriating nuclear waste funds


                                     43
. . . .”). Simply put, Ms. Ordakowski’s testimony supports the district

court’s (and our) conclusion that the public disclosures were sufficient to

have alerted the government to KeyPoint’s potential for fraud.

      In summary, we agree with the district court that the allegations in

Ms. Reed’s qui tam claims are substantially the same as those in the public

disclosures. Thus, unless Ms. Reed is an “original source” of the

information in her claims, the public disclosure bar prevents those claims

from proceeding.

                                         B

      We now take up the question of whether Ms. Reed is an original

source. Recall that the district court concluded that Ms. Reed was not an

original source and therefore dismissed her qui tam claims under the public

disclosure bar. Ms. Reed argues that in doing so the district court made

both a procedural and a substantive error. The court’s procedural error, she

says, was excluding some of the evidence that she submitted to the court

after it converted KeyPoint’s motion to dismiss to a summary-judgment

motion. As for the alleged substantive error, Ms. Reed contends that the

district court erred in concluding that she was not an original source, in

particular, because her complaint averments did not materially add to the

information in the public disclosures.


                                      44
      As we explain below, Ms. Reed loses the procedural battle but wins

the substantive war. That is, we hold that the district court did not err in

excluding certain proffered evidence at summary judgment, but we hold that

the court did err in concluding that Ms. Reed was not an original source

because her complaint averments did not satisfy the materially-adds

standard.

                                         1

      When a district court relies on material outside the complaint to

resolve a Rule 12(b)(6) motion, it ordinarily must convert that motion “into

a motion for summary judgment.” Burnham v. Humphrey Hosp. REIT Tr.,

Inc., 

, 713 (10th Cir. 2005); see F E D . R. C I V . P. 12(d). If a

district court intends to convert a motion, it should inform the parties of

this intention and give them “the opportunity to present to the court all

material made pertinent to such motion by Rule 56.” Nichols v. United

States, 

, 364 (10th Cir. 1986) (quoting Ohio v. Peterson,

Lowry, Rall, Barber & Ross, 

, 457 (10th Cir. 1978)).

Converting a motion “without giving the adverse party an opportunity to

present pertinent material is error.” Adams v. Campbell Cty. Sch. Dist., 

, 1353 (10th Cir. 1973).

      We review a district court’s choice to exclude evidence at the


                                        45
summary-judgment stage, however, “only for an abuse of discretion.”

LifeWise Master Funding v. Telebank, 

, 927 (10th Cir. 2004).

Without “a definite and firm conviction that the [district] court made a

clear error of judgment or exceeded the bounds of permissible choice,” we

cannot say that the court abused its discretion. 

Inc. v.

Novell, Inc., 

, 1016 (10th Cir. 2002)).

      The district court converted KeyPoint’s Rule 12(b)(6) motion into a

summary-judgment motion. Before doing so, it allowed the parties to

present relevant material. Ms. Reed asked to present three sets of

materials: (1) documents that she had given the government both before and

after she filed her qui tam suit, (2) a declaration in which she attested “to

the source of her allegations,” and (3) more “briefing on the public

disclosure and original source issues.” Aplt.’s Opening Br. at 30.

      After considering Ms. Reed’s proffered materials, the district court

allowed her to submit only the documents she gave the government in her

pre-filing disclosures: specifically, the court excluded any post-filing

disclosures to the government, Ms. Reed’s declaration, and the additional

briefing. Those other materials, the court reasoned, would not add “any

material information” helpful to the public-disclosure-bar inquiry because

Ms. Reed’s complaint made “clear what the source of [her] knowledge was”


                                      46
and because the parties had fully briefed the applicable legal standards.

Aplt.’s App. at 404. Thus, under the court’s view, the post-filing

documents, declaration, and additional briefing “were not ‘made pertinent’

by the conversion.” 

796 F.2d at 364).

      To the extent that Ms. Reed argues that the district court erred by

refusing “to allow [her] the opportunity to provide all material evidence,”

Aplt.’s Opening Br. at 30 (emphasis added), the record proves otherwise.

The court notified the parties of its intention to convert the motion to a

summary-judgment motion, and it gave them time to provide pertinent

material. Unlike the parties in the cases she cites, 15 Ms. Reed had ample

opportunity to provide the court with “material made pertinent by Rule 56.”

(quoting 

). Indeed, the

court twice permitted Ms. Reed to amend her complaint to include the post-

filing information she now complains the court excluded. In the end, the

court gave Ms. Reed notice of the conversion, considered her proffered

material, and even accepted some of that evidence.

      And the district court’s exclusion of the post-filing disclosures, Ms.

Reed’s declaration, and the added briefing was well within “the bounds of



      15
              See 

(reversing because district court gave party
no chance to present material); 

(same).

                                           47
permissible choice.” LifeWise Master 

(quoting

). Simply put, the court reasonably concluded that

none of those items contained material and relevant information that the

court did not already possess. Therefore, the excluded materials were not

“made pertinent” by the conversion. 

(quoting

).

     Ms. Reed, however, begs to differ. She says the excluded post-filing

disclosure statement and personal declaration were “pertinent” to

“establish[ing] her status as an original source.” Aplt.’s Opening Br. at 30.

These materials, Ms. Reed contends, would have shown “the extent to

which [her] allegations materially added to those allegations that had

purportedly been publicly disclosed.” 

The problem for Ms. Reed

is that—as she admitted—the allegations in her complaint were “based

almost entirely upon the documents that were discussed during the

pre-filing meeting with [DOJ].” Aplee.’s Suppl. App., Vol. VII, at 1419

(Ms. Reed’s Objs. to R. & R., filed Sept. 12, 2017). And Ms. Reed twice

amended her complaint to include the crux of the information from her

post-filing disclosures to the government. Ms. Reed’s proffered materials,

then, would have merely duplicated that existing information in the twice-

amended complaint.


                                     48
      In the end, we cannot say that the district court abused its discretion

as to this procedural matter. Thus, we leave undisturbed the district court’s

ruling excluding the post-filing disclosures, Ms. Reed’s declaration, and the

additional briefing.

                                       2

                                       a

      Having resolved the procedural issue, we turn to the substance of the

original-source question. The False Claims Act instructs courts to dismiss

qui tam claims under the public disclosure bar “if substantially the same

allegations . . . were publicly disclosed”—unless the relator is “an original

source of the information.” 31 U.S.C. § 3730(e)(4)(A). We have already

resolved the substantially-the-same question in KeyPoint’s favor. We now

must decide whether the district court erred in determining that Ms. Reed’s

qui tam claims cannot escape the public disclosure bar through the original-

source exception.

      Two types of relators qualify as “original sources.” The first type is a

relator who, “prior to a public disclosure [within the meaning of the Act] . .

. , has voluntarily disclosed to the Government the information on which

allegations or transactions in a claim are based.” 

The

second type is a relator with “knowledge that is independent of and


                                       49
materially adds to the publicly disclosed allegations” and who gave the

government this information before filing her qui tam claims. 

district court, Ms. Reed argued that she was an original

source of the second type. The district court agreed that Ms. Reed had in

fact given the government her information before she sued KeyPoint. But

the court ruled that Ms. Reed’s allegations did not “materially add” to the

public disclosures. And so, without addressing whether Ms. Reed’s

knowledge was “independent of” the public disclosures, the district court

concluded that Ms. Reed was not an original source.

      On appeal, Ms. Reed argues that the district court erred in concluding

that her allegations did not “materially add” to the public disclosures. As

for the “independent of” portion of the original-source inquiry, Ms. Reed

says in a short footnote that she satisfies that criterion, too. See Aplt.’s

Opening Br. at 29 n.8. For its part, KeyPoint posits that “regardless of

whether her knowledge was ‘independent of’ the public disclosures,” Ms.

Reed is not an original source because her allegations “did not materially

add to the public disclosures.” Aplee.’s Resp. Br. at 34.

      Our circuit has yet to expound on the meaning of the “materially

adds” language in the original-source exception. Congress added this

language in the same 2010 amendment discussed earlier but did not define


                                       50
the term. Since then, however, several other courts of appeals have

interpreted the “materially adds” requirement. 16

       We are particularly persuaded by the First Circuit’s analysis in

Winkelman. There, the court framed the relevant question for the

materially-adds inquiry as “whether the relators’ allegedly new information

is sufficiently significant or essential so as to fall into the narrow category

of information that materially adds to what has already been revealed

through public 

. To determine what

information falls into the materially-adds bucket, the First Circuit looked to

the ordinary legal meaning of “material”—i.e., an addition that “is ‘[o]f

such a nature that knowledge of the item would affect a person’s decision-

making,’ or if it is ‘significant,’ or if it is ‘essential.’” 

LA C K ’ S L A W D I C T I O N A R Y 1124 (10th ed. 2014) [hereinafter B LA C K ’ S ]). In

other words, Winkelman teaches that a relator “materially adds” to public


       16
               Although KeyPoint concedes that the meaning of “materially adds” “is a
matter of first impression for the Tenth Circuit,” Aplee.’s Resp. Br. at 34, it nonetheless
relies on pre-2010-amendment cases to argue that Ms. Reed’s allegations do not
materially add to the public disclosures, see 

Although the 2010 amendment
ratified our prior cases by adopting the “substantially the same” language that we already
used, the amendment added a new component to the original-source analysis—namely,
the materially-adds inquiry. Before the 2010 amendment, our original-source analysis
asked whether the relator “had direct and independent knowledge of the information
underlying his allegations.” In re Nat. Gas 

. We did not ask
whether the relator’s knowledge materially added to the public disclosures. Thus, our
pre-2010-amendment cases are not germane to the materially-adds inquiry.

                                             51
disclosures if her information “is sufficiently important to influence the

behavior of the recipient.” 

definition of “materially adds” finds support in the

Act’s provisions defining the scope of liability, which state that “the term

‘material’ means having a natural tendency to influence, or be capable of

influencing, the payment or receipt of money or property.” 31 U.S.C.

§ 3729(b)(4); see also Joel D. Hesch, Restating the “Original Source

Exception” to the False Claims Act’s “Public Disclosure Bar” in Light of

the 2010 Amendments, 51 U.    OF   R I C H . L. R E V . 991, 1019 (2017) (looking to

§ 3729(b)(4) in attempting to discern the meaning of “materially adds” and

ultimately concluding that it means that “a reasonable person would attach

importance to the information”). Furthermore, though they have applied the

definition in different ways, a few federal circuit courts have expressly

adopted a like definition of “materially adds.” See United States ex rel.

Advocates for Basic Legal Equal., Inc. v. U.S. Bank, N.A., 

,

431 (6th Cir. 2016) (“Materiality in this setting requires the claimant to

show it had information ‘[o]f such a nature that knowledge of the item

would affect a person’s decision-making,’ is ‘significant,’ or is ‘essential.’”

(quoting B LA C K ’ S , supra, at 1124)); United States ex rel. Moore & Co. v.

Majestic Blue Fisheries, LLC, 

, 306 (3d Cir. 2016) (concluding


                                         52
based on dictionary definitions of the separate words “materially” and

“add” that to “‘materially add[]’ to “the publicly disclosed allegation or

transaction of fraud, a relator must contribute significant additional

information to that which has been publicly disclosed so as to improve its

quality”); see also United States ex rel. Paulos v. Stryker Corp., 

, 694–95 (8th Cir. 2014) (relying on dictionary definitions of the

separate words “material” and “add” and suggesting that information

“materially adds” to something when it “substantially” or “considerably”

“improve[s] or alter[s] its quality or nature” (quoting T H E N E W O X F O R D

A M E R I C A N D I C T I O N A R Y 18, 1079 (3d ed. 2010))).

       Winkelman also offered several helpful guideposts for how to

distinguish between new but immaterial information and material additions.

It noted that what is “significant” or “essential” depends in part on “the

level of detail in [the] public 

. That is, the

fewer questions the public disclosures answer, the more room there is for a

relator’s allegations to add material information. However, the court

pointed out that “a relator who merely adds detail or color to previously

disclosed elements of an alleged scheme is not materially adding to the

public disclosures.” 

Winkelman also recognized the potential

overlap between the materially-adds inquiry and the inquiry into “whether



                                              53
the relator’s allegations are substantially the same as th[e] prior

revelations.” 

“Despite this potential for overlap,” the First

Circuit explained, “the ‘materially adds’ inquiry must remain conceptually

distinct; otherwise, the original source exception would be rendered

nugatory.” 

      In sum, we find persuasive the materially-adds standard that the First

Circuit articulated in Winkelman. Under that standard, a relator who

discloses new information that is sufficiently significant or important that it

would be capable of “influenc[ing] the behavior of the recipient”—i.e., the

government—ordinarily will satisfy the materially-adds standard. 

On the other hand, a relator who merely adds background information

or details about a known fraudulent scheme typically will be found not to

have materially added to the publicly disclosed information. See 

      We recognize that the Seventh Circuit has taken a different path. For

example, in Cause of Action v. Chicago Transit Authority, 

(7th Cir. 2016), the court held that if a relator’s “allegations are

substantially similar to those contained in the” public disclosures, her

allegations cannot “‘materially add[]’ to the public disclosure[s].” 

This standard, however, has the effect of collapsing the materially-

adds inquiry into the substantially-the-same inquiry. As such, we cannot



                                       54
embrace it.

       The plain terms of the original-source exception contemplate that

some qui tam claims involving allegations that are substantially the same as

publicly disclosed allegations nevertheless will survive the public

disclosure bar because they materially add to the publicly disclosed

information. Yet, the Seventh Circuit’s view runs counter to this idea. And

as a logical matter, its view is simply unpersuasive. After all, what good is

an exception (i.e., the original-source exception) that does not actually

except anything? See 

(noting that because the

materially-adds condition “is designed to be an exception to the public

disclosure bar,” it “is not meant to block out relators simply because there

had been a qualifying public disclosure that contains similar allegations”).

       Reflecting this sort of reasoning, one commentator observed:

               The addition of the new requirement that the information
               “materially add” to the publicly disclosed information has
               caused some confusion. Some courts have required the
               information to be “qualitatively different” from the publicly
               disclosed information or not substantially the same as the
               public disclosure. That approach renders the [materially-
               adds] requirement the same as the public disclosure
               question rather than part of an exception to the public
               disclosure bar. Materially adds connotes the addition of
               something of significance or import and whether it is
               substantially the same as the type of information already
               publicly disclosed should not matter.

Claire M. Sylvia, T H E F A LS E C LA I M S A C T : F R A U D A G A I N S T   THE


                                               55
G O V E R N M E N T § 11:68, Westlaw (database updated June 2018) (emphasis

added) (footnote omitted); see also 

(“[M]erely

because the allegations are substantially the same as a qualifying public

disclosure, a relator still qualifies as an original source if she brings

something to the table that adds value.”). In sum, we agree with the First

Circuit’s assessment in Winkelman: “[T]he ‘materially adds’ inquiry must

remain conceptually distinct; otherwise, the original source exception

would be rendered 

–12.

      The path plotted by the Third Circuit in its noteworthy decision,

Moore, is less clearly defined. However, in fleshing out our approach, we

highlight a possible point of distinction with it. In Moore, the Third Circuit

looked to “Rule 9(b)’s pleading 

, as “a

helpful benchmark for measuring ‘materially adds,’” 

Relying on

this “standard” from Rule 9(b), the court took the position that “a relator

materially adds to the publicly disclosed allegation or transaction of fraud

when it contributes information—distinct from what was publicly

disclosed—that adds in a significant way to the essential factual

background: ‘the who, what, when, where and how of the events at issue.’”

re Rockefeller Ctr. Props., Inc. Sec. Litig., 

,

217 (3d Cir. 2002)).



                                       56
      Perhaps Moore is amenable to a narrow interpretation. Cf. 

(noting that the materially-adds standard is not met unless the relator’s

information “adds in a significant way to the essential factual background”

and describing the Rule 9(b) factors as only “a helpful benchmark,” without

expressly saying that the presence of one or more of the factors is always

dispositive) (emphasis added)). But see United States v. Medtronic, Inc.,

, 851 (E.D. Pa. 2018) (contrasting Moore’s “relatively

broad definition of materiality” with “Winkelman[’s] . . . narrower

definition”). However, insofar as Moore is (reasonably) interpreted as

holding that a relator’s averments that add a not-insignificant who, what,

when, where, or how to a publicly disclosed fraudulent scheme should be

uniformly deemed to meet the materially-adds standard, we must disagree.

      In our view, the materially-adds analysis must be firmly grounded in

the facts and circumstances of a particular case. And those facts and

circumstances will guide our determination of whether the who, what,

when, where, or how actually should be considered sufficiently significant

or important to affect the government’s actions regarding the fraudulent

scheme. For example, as discussed further below, when, as here, the

publicly disclosed fraud exists within an industry with only a few players, a

relator who identifies a particular industry actor engaged in the fraud (i.e.,



                                      57
the “who”) is unlikely to materially add to the information that the public

disclosures had already given the government.

      We are concerned that Moore (as interpreted above) could allow the

original-source exception to swallow the public disclosure bar.

Specifically, one might read the Third Circuit’s approach in that case to

permit “a relator who merely adds detail or color to previously disclosed

elements of an alleged scheme” to qualify as an original source.

; see 

(“Moore and Winkelman apply two different standards: Moore adopted a

relatively broad definition of materiality while Winkelman adopted the

narrower definition from Universal Health [Services, Inc. v. United States

ex rel. Escobar, 579 U.S. ----, 

(2016)].” (citation omitted)).

Like the First Circuit, we do not think that adding detail or color is enough.

See also United States ex rel. Hastings v. Wells Fargo Bank, NA, Inc., 656

F. App’x 328, 331–32 (9th Cir. 2016) (unpublished) (Mem. Op.)

(“Allegations do not materially add to public disclosures when they provide

only background information and details relating to the alleged fraud—they

must add value to what the government already knew.”).

      Thus, we are guided here by materially-adds principles that are

generally consistent with those the First Circuit articulated in Winkelman.



                                      58
We believe that these principles are faithful to the balance struck by

Congress, in amending the original-source exception in 2010, between

“attracting whistleblowers and not paying rewards” to relators who fail to

provide information that “materially adds value.” Hesch, supra, 1026,

1040.

                                       b

        We now turn to the question of whether Ms. Reed satisfies this

standard. Although we conclude that most of Ms. Reed’s arguments

relative to this standard fall short, we are persuaded that her complaint

averments regarding the TTP program materially add to the information in

the public disclosures. Therefore, she prevails on this component of the

original-source inquiry.

        Ms. Reed argues that her allegations materially add to the public

disclosures in several ways. First, Ms. Reed points out that her complaint

identifies “a new defendant” (KeyPoint). Aplt.’s Opening Br. at 25.

Second, she reasons that naming individual “investigators who violated

OPM requirements” adds to the disclosures. 

Reed posits

that she materially adds to the disclosures because she did her own

investigation into KeyPoint. Fourth, she says that her allegations

uncovered “new schemes to defraud the government (e.g., the telephone



                                       59
testimony violations).” 

we disagree that naming KeyPoint as a wrongdoer

materially adds to the public disclosures. After all, the news reports linked

KeyPoint to the suspected fraud in the background-investigation industry.

And the 2010 OPM audit report revealed that there were “falsification and[]

integrity issues” with investigations done by USIS, KeyPoint, and CACI.

Aplt.’s App. at 261. Consequently, Ms. Reed is mistaken in suggesting that

there was “no information concerning KeyPoint specifically in the public

domain.” Aplt.’s Opening Br. at 28. To be sure, the disclosures did not

“use the word ‘fraud’” when discussing KeyPoint. Advocates for Basic

Legal 

. But that omission is irrelevant because the

disclosures “presented enough facts to create an inference of wrongdoing”

by KeyPoint. 

(quoting United States ex rel. Jones v. Horizon

Healthcare Corp., 

, 332 (6th Cir. 1998)).

      At bottom, the government already suspected fraud in the background-

investigation industry. Counting KeyPoint, that industry only has three

main players; and the disclosures linked KeyPoint to the suspected fraud.

We cannot see how naming KeyPoint adds information of sufficient

significance or importance “to influence the [government’s] behavior.”

. Put another way, this is an instance in which



                                     60
averments regarding the “who” of a publicly disclosed fraudulent scheme

are not a material addition within the meaning of the original-source

exception. Cf. 

.

      Similarly, identifying individual investigators as wrongdoers “merely

adds detail or color to previously disclosed elements of an alleged scheme.”

. The government knew that individual

investigators (including a former KeyPoint employee) “lied about

conducting thorough background checks when they were incomplete and

rushed.” Aplt.’s App. at 410. And a September 2013 article reported that

the government was “pursuing suspected fraud in granting of security

clearances” and had already convicted at least “19 private and government

investigators for submitting fabricated reports.” 

True, Ms.

Reed’s allegations suggested that the problem was more pervasive at

KeyPoint than the public disclosures hinted. But if identifying new

employees engaged in fraud were enough, the original-source exception

would burst from overbreadth. Cf. 

(explaining

that giving “specific examples of” publicly known fraud “does not provide

any significant new information”).

      Ms. Reed also is mistaken that her allegations materially add to the

public disclosures because she did her own investigation into KeyPoint.



                                      61
For starters, as KeyPoint rightly points out, “the ‘materially adds’

requirement . . . focuses on the substance of the allegations, not the

source.” Aplee.’s Resp. Br. at 37. That Ms. Reed’s independent

investigation confirmed, as to KeyPoint, some of the allegations floating

around the public sphere is arguably relevant to the question of whether her

knowledge is independent of the public disclosures, but that question is not

presently before us. See 

–47 (explaining that

relators had “direct and independent knowledge” because they did “their

own investigation”). In sum, in our view, Ms. Reed’s separate investigation

is irrelevant to the materially-adds question. See 

(rejecting argument that relators materially added to the public

disclosures by “trumpet[ing] their personal knowledge of specific instances

of alleged [fraud]”). As the Eighth Circuit remarked, “A relator is not an

original source of information . . . simply because he discovered or

suspected it first” through his own investigation if that investigation only

confirms what was “already thoroughly revealed.” 

.

      All that said, we ultimately conclude that Ms. Reed does satisfy the

materially-adds standard. We reach that conclusion because we determine

that Ms. Reed’s allegations regarding the TTP materially add to the

information available in the public disclosures for two related and



                                       62
intertwined reasons. First, Ms. Reed makes specific allegations of both

investigator- and management-level fraud in the distinct context of the TTP.

Second, many of Ms. Reed’s allegations concerning KeyPoint’s responses to

her reports of possible fraud in the TTP provide direct evidence of

KeyPoint’s scienter. Neither the allegations of investigator- and

management-level fraud in the TTP context nor the allegations of

KeyPoint’s scienter were available via the public disclosures. Considered

together, these allegations reveal a “new scheme[] to defraud the

government” involving repeated violations of the TTP by KeyPoint

investigators and management. Aplt.’s Opening Br. at 25. And they offer

“[t]rue evidence of intent or guilty knowledge” by KeyPoint, 

, insofar as they aver Ms. Reed’s specific knowledge of KeyPoint

managers’ efforts to knowingly cover up the TTP violations. Cf. United

States ex rel. Ambrosecchia v. Paddock Labs., LLC, 

, 955 (8th

Cir. 2017) (“[Relator] claims that her information materially adds to the

existing information by demonstrating scienter. However, the complaint

provides no more than the simple, conclusory allegation that Defendants’

actions were knowing . . . . Accordingly, [relator’s] complaint is

insufficient to plausibly state that she qualifies as an original source.”

(citation omitted)).



                                      63
      Ms. Reed’s allegations of scienter make us especially confident that

her allegations regarding KeyPoint’s fraudulent TTP practices satisfy the

materially-adds standard. False Claims Act “cases often turn on the issue

of scienter.” 

. Yet, “the government is never in a

good position to have direct evidence of guilty knowledge.” 

Reed’s allegations that KeyPoint’s investigators and managers tried to

knowingly cover up the TTP violations amplify the materiality of the

underlying allegations of TTP fraud. Cf. 

(“We

do not rule out the possibility that furnishing information that a particular

defendant is acting ‘knowingly’ (as opposed to negligently) sometimes may

suffice as a material addition to information already publicly disclosed.”);

(“[R]egardless of how well defined the fraud

allegations are in a qualifying public disclosure, when a relator brings forth

knowledge of scienter that is not specifically contained in a qualifying

public disclosure it should be presumed to materially add value.”).

      Now consider those underlying allegations. Recall that investigators

were generally required to conduct in-person interviews, but the TTP

permitted them to do telephone interviews under some circumstances so

long as they kept their total number of telephone interviews below a certain

percentage threshold. Each month, OPM would send KeyPoint a list of



                                      64
investigators who exceeded their allotted number of telephone interviews

during the last month. KeyPoint then would be obliged to send OPM

“corrective action report[s]” explaining each infraction and what it was

doing to remedy the problem. Aplt.’s App. at 31, ¶ 54.

      Ms. Reed avers that KeyPoint investigators repeatedly violated the

TTP and KeyPoint management regularly falsified corrective action reports

to cover up the violations. For instance, one corrective action report by a

KeyPoint Field Manager justified an investigator’s violations by claiming

that telephone interviews were “justified due to weather and due ‘to the

remote and large geographical area [the investigator] work[ed].’” 

¶ 262. When Ms. Reed looked into the matter, she discovered that the

report was false; the investigator’s sources were actually “located in nearby

Colorado, well within the territory he was required to cover in person” 

¶ 264. When Ms. Reed recommended that the investigator be

disciplined for violating the TTP, rather than do so and correct the false

corrective action report, a KeyPoint Regional Manager “tried to persuade

[Ms.] Reed that [the investigator] was covering remote territory in

Wyoming.” 

¶¶ 265–267.

      Similarly, Ms. Reed determined that another investigator was

violating the TTP by “not giv[ing] many sources the opportunity for in-



                                      65
person interviews,” 

¶ 298, and that KeyPoint management had

falsely “certified that [the investigator] had not conducted the telephonic

testimonies that OPM had indicated,” 

¶ 300. Ms. Reed

specifically informed identified members of KeyPoint management that the

investigator was violating the TTP—which meant that KeyPoint’s prior

certifications to OPM to the contrary were false. See 

than

discipline the investigator and correct the false certifications, the

investigator’s “Field Manager continued to issue Corrective Action Reports

to OPM about [the investigator] that claimed geographic distance and

source request, when Reed had already shown KeyPoint’s management that

[the investigator] had conducted phone interviews without attempting to

conduct in-person interviews.” 

¶ 310.

      Furthermore, on more than one occasion, in response to Ms. Reed’s

efforts to correct problems in the TTP, “KeyPoint management told [her] to

stop interfering.” 

¶ 292; see also 

¶ 308 (“[Ms.] Reed

was later told to ‘stop interfering.’”). In short, Ms. Reed’s complaint offers

pages of details describing how KeyPoint managers knowingly schemed to

defraud the government by covering up systemic violations of the TTP.

      None of the public disclosures accused KeyPoint—or the industry

generally—of fraud relating to a TTP. The news reports, for instance,



                                       66
focused generally on problems in the industry with “investigators who were

found to have done substandard work in background checks.” 

The articles do not hint at systemic investigator fraud designed to evade the

requirements of a TTP (e.g., its percentage ceiling for conducting telephone

interviews), let alone discuss knowing efforts of management personnel to

cover up that fraud. Likewise, Congress suspected KeyPoint and its

competitors only of using “false, incomplete, or rushed information

gathering” in its background investigations but unearthed no evidence that

industry management knowingly lied about the circumstances in which they

gathered information by telephone. 

& n.3. The two OPM audits

do not even reference a TTP or fraudulent corrective action reports

covering up violations of such a program. And the USIS suit alleged that

USIS investigators “dumped” incomplete and unreviewed cases to OPM and

abused OPM’s “Blue Zone software.” Aplt.’s Reply Br., Addendum A, at

6–12. But this suit makes no mention of a TTP, corrective action reports,

or a scheme by management to cover up deficiencies under that program.

     In short, Ms. Reed’s allegations regarding KeyPoint’s fraudulent

practices related to its TTP added material information to the public

disclosures that satisfied the Act’s materially-adds standard. These

allegations had the effect of “expanding the scope of the fraud” revealed in



                                     67
the public disclosures and introducing “knowledge of scienter that is not

specifically contained in a qualifying public disclosure.” 

, 1027. This is not a case where the relator’s allegations contributed

nothing more than personal “knowledge (even if gained early and

independently).” 

. Nor is it a situation where the

allegations of fraud in the public disclosures were so detailed that there was

no room for Ms. Reed to materially add to them with her allegations of

KeyPoint’s fraudulent TTP practices. 

(“As the

level of detail in public disclosures increases, the universe of potentially

material additions shrinks.”). Indeed, her allegations about KeyPoint’s

scheme to evade the TTP did more than “add[] detail or color to previously

disclosed elements of an alleged scheme.” 

see also Hastings,

656 F. App’x at 331–32 (“Allegations do not materially add to public

disclosures when they provide only background information and details

relating to the alleged fraud—they must add value to what the government

already knew.”). Hence, we conclude that Ms. Reed’s complaint averments

relating to KeyPoint’s fraudulent TTP practices reveal information “[o]f

such a nature that knowledge of the item would affect [the government’s]

decision-making.” 

(first alteration in original)

(quoting B LA C K ’ S , supra, at 1124). In other words, her allegations



                                       68
materially add to the public disclosures.

      The soundness of this conclusion is highlighted when one contrasts

the materiality of the new fraudulent scheme that Ms. Reed alleges

regarding the TTP with the immateriality of the added information at issue

in Osheroff. The relator in Osheroff alleged that certain medical clinics

were violating the federal anti-kickback law and related government

contracts by providing “a variety of free services for patients . . . ,

including transportation, meals, spa and salon services, and 

. An earlier lawsuit had disclosed a different clinic’s

similar practices. And news reports publicized that the defendant-clinics

provided “‘free lunch’ . . . and free transportation.” 

In arguing

that he was an original source, the relator emphasized that his complaint

added to the public disclosures by revealing “the type of food the clinics

served . . . , the destinations of some of the free transportation, the

frequency of salon services, and the price of the substitute services or

goods.” 

The Eleventh Circuit, however, was “not persuaded.”

the court explained, the relator’s “complaint add[ed]

background information and details relating to the value of the services

offered, making it somewhat more plain that the clinics’ programs could

violate the [statute].” 

not enough. The court held that under



                                       69
the 2010 version of the False Claims Act, the relator’s “information d[id]

not materially add to the public disclosures, which were already sufficient

to give rise to an inference that the clinics were providing illegal

remuneration to patients.” 

’s complaint averments relating to KeyPoint’s distinct TTP

fraud stand in stark contrast to the general background information

regarding an existing fraudulent scheme that the relator delivered in

Osheroff. Unlike in Osheroff, Ms. Reed’s allegations do not add a few

more breadcrumbs on an existing trail; they blaze a new trail.

      We underscore that we do not rest our holding that Ms. Reed has

satisfied the materially-adds standard based solely on either her allegations

concerning specific instances of investigator- and management-level fraud

in the TTP or her allegations concerning KeyPoint’s responses to her

reports of possible TTP fraud—notably, to cover up fraud—that evinced

KeyPoint’s scienter. Instead, we base our holding on the combined,

synergistic effect of the allegations of distinct misconduct in the TTP and

the related and intertwined allegations detailing KeyPoint’s knowing efforts

to cover up TTP violations. The combination of these allegations clearly

permit Ms. Reed to satisfy the materially-adds standard. We need not—and

thus do not—opine on whether either of the two related and intertwined



                                       70
features of Ms. Reed’s TTP allegations, standing alone, would be sufficient

to satisfy the materially-adds standard.

                                            * * *

       In sum, we agree with the district court that the allegations in Ms.

Reed’s qui tam claims are substantially the same as those in the public

disclosures. But we disagree with the court’s conclusion that Ms. Reed’s

allegations do not materially add to the public disclosures, such that she did

not qualify as an original source. As a consequence, we vacate the district

court’s summary-judgment order that dismissed Ms. Reed’s qui tam claims.

However, because the district court did not reach the second part of the

original-source standard—i.e., whether Ms. Reed’s allegations are

“independent of” the public disclosures—we remand the case for the

district court to resolve that question in the first instance. 17 See Tabor v.

       17
                We likewise decline KeyPoint’s invitation to affirm the district court’s
judgment on alternative bases not ruled on by the district court. See Aplee.’s Resp. Br. at
58–60 (arguing that Ms. Reed’s FCA claims fail for want of (1) particularity under Rule
9(b), (2) falsity, (3) materiality, and (4) scienter). Although it is true that we may affirm
on any basis finding support in the record, see Richison v. Ernest Grp., Inc., 

, 1130 (10th Cir. 2011), we are often “reluctant” to do so when “we are deprived of
the benefit of vigorous adversarial testing of the issue, not to mention a reasoned district
court decision on the subject.” Abernathy v. Wandes, 

, 552 (10th Cir. 2013);
accord Sylvia v. Wisler, 

, 1325 (10th Cir. 2017). KeyPoint offers only brief
arguments in support of the alternative bases for affirmance. In these circumstances, the
superior course of action is to remand so that district court may decide the issues in the
first instance. See United States v. McLinn, 

, 1157 (10th Cir. 2018)
(declining to rule on inadequately briefed issues “not fully addressed by the district
                                                                                   (continued...)

                                               71
Hilti, Inc., 

, 1227 (10th Cir. 2013) (“Where an issue has not

been ruled on by the court below, we generally favor remand for the district

court to examine the issue.”); see also Singleton v. Wulff, 

, 120

(1976) (“It is the general rule, of course, that a federal appellate court does

not consider an issue not passed upon below.”).

                                       III

       We now turn to Ms. Reed’s retaliation claim. The False Claims Act

protects whistleblowers from retaliation by their employers. See 

–14 (discussing 31 U.S.C. § 3730(h)). To state a claim of

retaliation, a plaintiff must meet her “burden of pleading facts” that prove

(1) she engaged in protected activity, (2) the defendant “had been put on

notice” of that protected activity, and (3) the defendant retaliated against

the plaintiff “because of” that activity. McBride v. Peak Wellness Ctr.,

Inc., 

, 704 (10th Cir. 2012); see also 31 U.S.C. § 3730(h).

       Ms. Reed alleges that KeyPoint retaliated against her by firing her for

trying to stop it from violating the False Claims Act. The district court

granted KeyPoint’s Rule 12(b)(6) motion to dismiss this retaliation claim

because Ms. Reed had, in the district court’s view, inadequately pleaded

that KeyPoint was on notice that she was engaging in protected activity.

       17
           (...continued)
court”).

                                        72
      We review de novo “the district court’s dismissal under Rule

12(b)(6).” United States ex rel. Polukoff v. St. Mark’s Hosp., 

,

740 (10th Cir. 2018) (quoting United States ex rel. Lemmon v. Envirocare

of Utah, Inc., 

, 1167 (10th Cir. 2010)). Dismissal under Rule

12(b)(6) “is appropriate only if the complaint, viewed in the light most

favorable to plaintiff, ‘lacks “enough facts to state a claim to relief that is

plausible on its face.”’” 

(quoting Trentadue v.

Integrity Comm., 

, 1236 (10th Cir. 2007)).

      Applying these standards, we affirm the district court’s dismissal of

Ms. Reed’s retaliation claim. At the outset, we are constrained to point out

that the district court relied on a legally erroneous view of what constitutes

protected activity. But we “can affirm the district court’s dismissal on any

ground sufficiently supported by the record.” GF Gaming Corp. v. City of

Black Hawk, 

, 882 (10th Cir. 2005); accord George v. Urban

Settlement Servs., 

, 1254 (10th Cir. 2016). And we determine

that, under the correct legal understanding of protected activity, Ms. Reed

has failed to plead sufficient facts to show that KeyPoint was on notice of

her purported protected activity. For that reason, we affirm the district

court’s order dismissing Ms. Reed’s retaliation claim.

                                       A



                                       73
      The False Claims Act protects whistleblowers who engage in

“protected activity.” 

. Until 2009, protected

activity included only “lawful acts done by the employee . . . in furtherance

of an action under this section [i.e., a qui tam suit].” 31 U.S.C. § 3730(h)

(2008). The circuit courts split over what conduct qualified as “in

furtherance of” a qui tam action. Our circuit and several others interpreted

that language to mean that protected activity encompassed conduct

preparing for “a private qui tam action or assisting in an . . . action brought

by the government.” United States ex rel. Ramseyer v. Century Healthcare

Corp., 

, 1522 (10th Cir. 1996); accord Robertson v. Bell

Helicopter Textron, Inc., 

, 951 (5th Cir. 1994). In these

circuits, an employee who, for example, reported a False Claims Act

violation to her supervisor but did not pursue a qui tam action had not

engaged in protected activity. See, e.g., Zahodnick v. Int’l Bus. Machs.

Corp., 

, 914 (4th Cir. 1997). Other circuits, by contrast, read

“in furtherance of” more broadly to include protection against “retaliation

for filing an internal complaint.” United States ex rel. Grenadyor v.

Ukrainian Vill. Pharmacy, Inc., 

, 1108–09 (7th Cir. 2014)

(describing the Seventh Circuit’s pre-2009 precedent).

      Congress resolved this circuit split in 2009. That year, it amended



                                      74
the False Claims Act’s whistleblower protections to protect employees who

take “lawful” actions “in furtherance of other efforts to stop 1 or more

violations” of the False Claims Act. 31 U.S.C. § 3730(h)(1) (2009)

(emphasis added). With this amendment, Congress thereby expanded “the

universe of protected conduct.” 18 United States ex rel. Chorches v. Am.

Med. Response, Inc., 

, 97 (2d Cir. 2017). In this expanded

universe, whistleblowers who lawfully try to stop one or more violations of

the Act are protected, without regard to whether their conduct advances a

private or government lawsuit under the Act.

      Congress did amend the whistleblower protections again in 2010. As

a consequence, the now-effective protections expressly apply to an

employee’s “lawful” acts “in furtherance of” either “an action” under the

Act “or other efforts to stop 1 or more violations of” the Act. 31 U.S.C.

§ 3730(h)(1); see also United Stated ex rel. Grant v. United Airlines Inc.,

, 201 & n.3 (4th Cir. 2018) (noting these two amendments to

the Act). But as is evident, the 2010 amendment left intact the 2009

amendment’s broad “other efforts to stop” language, which is our focus in


      18
              See also United States ex rel. Grant v. United Airlines Inc., 

,
201 (4th Cir. 2018) (“[W]e and other circuits have recognized that the amended language
broadens the scope of protected activity.”); Halasa v. ITT Educ. Servs., Inc., 

, 847–48 (7th Cir. 2012) (noting the broader scope of protected activity under the
amended provision).

                                           75
this appeal. Thus, Ms. Reed could avail herself of this “other efforts to

stop” language in this action.

       The district court, however, failed to acknowledge the expanded

universe that the 2009 amendment defined. Instead, it assessed the

sufficiency of Ms. Reed’s averments under the pre-2009 rubric. In this

regard, the court wrongly declared that under the False Claims Act “the

activity prompting plaintiff’s discharge must have been taken ‘in

furtherance of’ a[] [qui tam] action.” Aplt.’s App. at 417 (quoting

–04). 19 The plain text of the amended

whistleblower provisions does not support such a narrow view. Congress

added the “other efforts to stop” language for a reason—namely, to stretch


       19
              Although we decided McBride in 2012, the conduct at issue there occurred
in January 2009—before the 2009 amendment took effect in May of that year. See Fraud
Enforcement and Recovery Act of 2009, Pub. L. No. 111-21, § 4(f), 123 Stat. 1617
(2009) (effective date May 20, 2009). McBride, then, had no reason to consider or apply
the amended whistleblower provision. Hence, its analysis is inapposite to post-2009
protected conduct. That said, in a 2017 unpublished opinion, a panel of our court quoted
McBride for the proposition that “without evidence that [plaintiff] was planning to report
[defendant] to the government or file a qui tam suit, [plaintiff’s] retaliation claim cannot
survive summary judgment.” Cash v. Lockheed Martin Corp., 684 F. App’x 755, 764
(10th Cir. 2017) (unpublished) (quoting 

). That seeming
declaration of post-2009-amendment law (embodied in a 2017 decision) is of course not
binding on us; Cash is not precedential. See 10TH CIR. R. 32.1(A). More fundamentally,
Cash is problematic because (1) it is contrary to the plain text of the current (i.e., post-
amendment) whistleblower provisions, (2) contains no analysis of the change in statutory
language, and (3) conflicts with the decisions of our sister circuits that have construed the
current provisions, see, e.g., 

. Accordingly, we decline to follow
Cash’s lead, and KeyPoint’s reliance on Cash is unavailing.

                                             76
the “protected activity” umbrella to cover additional conduct. When

“Congress expands the scope of activity protected by a statute, we cannot

restrict ourselves to applying a narrower old standard that the expansion . .

. eschew[ed].” 

. The district court mistakenly did

just that. Tellingly, the phrase “other efforts to stop” does not appear in

the district court’s order, and the court fails to cite a single case applying

the amended provision. Simply put, the district court applied the wrong

version of the statute.

      This error necessarily affected the district court’s consideration of

whether Ms. Reed adequately pleaded notice. To adequately plead a

retaliation claim, a plaintiff must aver that the defendant was on notice of

her protected activity. See 

. Once Congress

expanded the scope of protected activity, the universe of conduct that a

plaintiff could allege to show notice also necessarily expanded. See United

States ex rel. Smith v. Clark/Smoot/Russell, 

, 434 & n.6 (4th

Cir. 2015) (explaining that the amendment expanded the boundaries of what

constitutes notice of protected activity). But because the district court

thought that only conduct in furtherance of a qui tam lawsuit was properly

classified as “protected activity,” the court asked the wrong question—an

improperly narrow one. It asked only whether Ms. Reed pleaded facts



                                       77
sufficient to show that KeyPoint was on notice that she was “taking action

in furtherance of a private qui tam action or assisting in an . . . action

brought by the government.” Aplt.’s App. at 417 (quoting 

). And the court answered that question in the negative and,

accordingly, dismissed Ms. Reed’s claim.

      But as framed by Ms. Reed’s arguments, the right question regarding

the notice element of the retaliation claim centers on the language Congress

added to the Act in 2009. The district court should have gone beyond its

previous inquiry and asked whether Ms. Reed pleaded facts that plausibly

show that KeyPoint was on notice that she had tried to stop its alleged False

Claims Act violations. The answer to that question determines whether Ms.

Reed’s retaliation claim stands or falls. Reviewing her complaint de novo,

we answer that question in the negative.

                                        B

      Specifically, we hold that Ms. Reed has not pleaded sufficient facts to

state a claim of retaliation because she has failed to establish the notice

element of that claim. We explain that conclusion in two parts. First, we

clarify what kind of facts Ms. Reed must plead to show that KeyPoint knew

she was trying to stop its violations of the False Claims Act. Second, we

determine that Ms. Reed’s complaint averments come up short.



                                        78
                                       1

      Our circuit has yet to begin the work of defining the boundaries of

what constitutes protected efforts to stop a violation of the False Claims

Act. Naturally, we cannot narrow our consideration to our pre-2009 view

that an employee must prove in every instance that the employer knew that

she was acting “in furtherance of” a qui tam action. 

. Beginning the outline of those boundaries, we state our agreement

with KeyPoint “that a relator’s actions still must convey a connection to the

[False Claims Act].” Aplee.’s Resp. Br. at 52; see 

(noting that “plaintiff’s actions need not lead to a viable” qui tam action,

but “they must still have a nexus to a[] [False Claims Act] violation”);

United States ex rel. Booker v. Pfizer, Inc., 

, 59 n.8 (1st Cir.

2017) (explaining that relator’s “activities must pertain to violations” of the

Act). After all, the text of the amendment says the “other efforts” must be

“to stop 1 or more violations of [the False Claims Act].” 31 U.S.C.

§ 3730(h)(1).

      We also agree with KeyPoint that compliance employees typically

must do more than other employees to show that their employer knew of the

protected activity. Our cases applying the pre-2009 whistleblower

provisions explained that an employee “whose job entails the investigation



                                      79
of fraud . . . . must make clear” that she engaged in protected activity “to

overcome the presumption that [she was] merely acting in accordance with

[her] employment obligations.” 

n.7; accord

United States ex rel. Sikkenga v. Regence Bluecross Blueshield of Utah, 

, 729 (10th Cir. 2006). In other words, in these decisions, we

recognized that an employer might reasonably presume that when a

compliance employee reports incidents of fraud she is just doing her job.

So to hold an employer liable under the Act’s whistleblower provisions, our

pre-2009 precedent required a compliance employee to overcome that

presumption by showing that she was engaging in protected activity, not

just doing her job.

      We think this reasoning has survived the 2009 amendment. True, as

we have explained above, that amendment expanded the scope of protected

activity and thus expanded the universe of conduct that a relator may plead

in giving the employer notice of the protected activity. But nothing about

the 2009 amendment undercuts the rationale of our precedent addressing

compliance officers who are charged by their employer with investigating

fraud. See United States ex rel. Campie v. Gilead Scis., Inc., 

,

908 (9th Cir. 2017) (deeming our pre-2009 Ramseyer decision “instructive,”

in a post-amendment context, on the point that compliance employees must



                                      80
do more to show an employer’s knowledge), cert. denied, 

(2019).

      In sum, to state a retaliation claim, as relevant here, an employee’s

complaint must allege facts that show her employer knew of her efforts to

stop a False Claims Act violation. The 2009 amendment left intact our

precedent requiring compliance employees to do more than other employees

to meet the notice element. And so, to adequately plead notice, a

compliance employee must allege facts that, viewed in her favor, make

clear that her employer had been put on notice that she was trying to stop it

from violating the False Claims Act and not merely doing her job.

                                      2

      We conclude that Ms. Reed’s complaint averments come up short of

this standard. To be sure, Ms. Reed is correct that her complaint shows that

she voiced objections regarding the alleged fraud “to everyone at KeyPoint

who would listen.” Aplt.’s Opening Br. at 41. For instance, the complaint

alleges that “she approached KeyPoint’s Director of Training” and “raised

concerns to her supervisor,” the “OPM Contract Director,” and “the

Regional Managers and certain Field Managers.” Aplt.’s App. at 31–32, ¶¶

59, 65. Indeed, the complaint notes that Ms. Reed brought some of “the

most egregious instances” of fraud at the investigator level to the attention



                                      81
of “field managers and . . . regional managers.” 

¶ 172. Likewise,

Ms. Reed allegedly told “her supervisor . . . on numerous occasions” about

violations of the TTP. 

¶ 253.

       However, Ms. Reed was a “Senior Quality Control Analyst”—that is,

a compliance officer. 

¶ 3. Thus, under our precedent, we may

presume that Ms. Reed—as a compliance officer—was just doing her job in

repeatedly reporting fraud internally to employees at KeyPoint. And Ms.

Reed’s complaint averments do not overcome that presumption—indeed,

they tend to underscore the soundness of it. In this regard, Ms. Reed

herself links her knowledge of, and efforts to report, the alleged fraud at

KeyPoint to her role “as a Senior Quality Control Analyst.” 20 

¶ 4.

For instance, the complaint notes that Ms. “Reed and her staff

discover[ed]” fraud. 

¶ 201 (emphasis added). And at points, the


       20
               See also Aplt.’s App. at 28–29, ¶¶ 29, 33 (noting that KeyPoint put Ms.
“Reed in charge of the [TTP],” and through these duties, she “uncovered systemic
violations” of the OPM contract); 

¶¶ 52, 55 (noting that Ms. “Reed developed
and ran” the TTP, and in that role, she “discovered that KeyPoint management repeatedly
falsified corrective action reports by fabricating justifications for the violations”); 

¶ 78 (explaining that Ms. Reed’s job “allowed her to review investigators’ work” and
“compile[] extensive records of [improper] investigations”); 

¶ 165 (alleging that
when extra compliance work was needed, KeyPoint “occasionally tasked [Ms. Reed] with
extra audits of investigators”); 

¶ 228 (“Reed was assigned to determine the
nature of the chronic infractions.”); 

¶¶ 231–232 (pointing out that “[i]n the
course of her duties, Reed discovered that certain investigators were” circumventing
OPM requirements); 

¶ 260 (“Reed was tasked with investigating . . . each
investigator’s high frequency of telephone testimonies.”).

                                             82
complaint specifies that Ms. “Reed and her staff reported [certain]

violations.” 

¶ 207 (emphasis added); see also 

80, ¶¶

203, 210. That her staff was assisting Ms. Reed in fraud detection and

reporting activities suggests that such activities fell within the ambit of Ms.

Reed’s responsibilities as a Senior Quality Control Analyst because one

might reasonably infer that Ms. Reed’s staff would not be assisting her in

off-book operations or matters of personal preference, rather than duty.

Even when Ms. Reed acted alone, the complaint suggests that she reported

misconduct on a regularized schedule as part of her job—averring that she

“regularly reported [certain] infractions to her supervisor . . . by submitting

and discussing a monthly spreadsheet.” 

¶ 171 (emphasis added);

see also 

¶ 230. And for investigators who persistently violated

policies, Ms. Reed reported them “for disciplinary action by

KeyPoint”—which strongly suggests that she had some job-related mandate

to do so. 

¶ 265; see also 

¶ 99.

      In sum, as the district court correctly observed, “[T]he monitoring and

reporting activities described in her Complaint were exactly those activities

Ms. Reed was required to undertake . . . as a Senior Quality Control

Analyst.” 

In other words, Ms. Reed’s complaint averments

do not rebut—and, indeed, tend to highlight the soundness of—the



                                       83
presumption that her conduct was just part of her job.

      Ms. Reed tries to rebut this presumption by showing that she went

“outside [her] normal chain of command to report fraudulent conduct.”

Aplt.’s Opening Br. at 37. In this regard, Ms. Reed conclusorily asserts

that she complained about the fraud to “people well outside her chain of

command.” 

In particular, Ms. Reed avers that she reported the

fraud to “the OPM Contract Director . . . , the Regional Managers[,] and

certain Field Managers.” Aplt.’s App. at 32, ¶ 65. Her complaint also

refers to a conversation with “KeyPoint’s Director of Training.” 

¶ 59. By reporting fraud to these individuals, Ms. Reed argues that

she “acted beyond the scope of her ordinary duties in attempting to stop

KeyPoint’s false statements” and that “[t]he KeyPoint employees who

decided to fire [her] knew” as much. 

¶¶ 389, 396. Hence, Ms.

Reed reasons, KeyPoint knew that her reports of fraud were not part of her

job but, instead, efforts to stop False Claims Act violations.

      KeyPoint disagrees. It says that Ms. Reed’s actions were exactly

what she “was required to undertake in fulfillment of her job duties” as a

Senior Quality Control Analyst. Aplee.’s Resp. Br. at 53 (quoting

). KeyPoint also denies that it was properly put

on notice of Ms. Reed’s protected activity because she ostensibly “went



                                      84
outside of her usual chain of command.” 

Indeed, KeyPoint notes

that Ms. Reed “does not cite any binding authority for the proposition that

alleged discussions with individuals inside the company but outside of her

normal reporting structure would suffice to overcome the presumption that

she was acting within the scope of her ordinary duties.” 

Hence,

KeyPoint argues that it “could not have been on notice of [Ms. Reed’s]

allegedly protected actions.” 

      KeyPoint is correct that our court has never expressly held that a

compliance employee may put her employer on notice of her efforts to stop

False Claims Act violations by reporting fraud internally but outside her

chain of command. But other circuits have. The Ninth and D.C. Circuits,

for example, each have held that, under certain circumstances, a compliance

employee may meet the notice element of retaliation by pleading that her

employer knew that she had reported fraud within the company in a manner

that violated or went outside the established chain of command. See, e.g.,

, 908 (holding that retaliation complaint by a

“Senior Director of Global Quality Assurance” adequately pleaded notice

because, inter alia, the employer knew the employee had “conversations

outside of his chain of command regarding his concerns”); United States ex

rel. Schweizer v. Oce N.V., 

, 1239–40 (D.C. Cir. 2012)



                                      85
(holding that a compliance employee’s retaliation claim survived summary

judgment because employer knew she had “ignor[ed] ‘the chain of

command’” by reporting fraud to her boss’s boss); cf. United States ex rel.

Williams v. Martin-Baker Aircraft Co., 

, 1261 (D.C. Cir.

2004) (stating the general proposition that “when an employee acts outside

his normal job responsibilities or alerts a party outside the usual chain of

command, such action may suffice to notify the employer that the employee

is engaging in protected activity,” in a case in which the employee “went

outside the company and alerted the government”).

      We need not definitively opine here, however, on the cogency of this

precedent. Even if Ms. Reed could legally overcome the compliance-

employee presumption by showing that she went outside of the chain of

command to report fraud, her complaint averments do not plausibly

establish, as a factual matter, that she did so. That is, she has not pleaded

facts showing that she indeed went outside her ordinary reporting structure

as a compliance officer. To be sure, we must “assume the truth of all well-

pleaded facts in the complaint[] and draw all reasonable inferences” in Ms.

Reed’s favor. Leverington v. City of Colorado Springs, 

, 723

(10th Cir. 2011) (quoting Dias v. City & County of Denver, 

,

1178 (10th Cir. 2009)). And Ms. Reed avers that she reported fraud to



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persons other than her direct supervisor—namely, “the OPM Contract

Director. . . , Regional Managers[,] and certain Field Managers,” as well as

the “Director of Training.” Aplt.’s App. at 31–32, ¶¶ 59, 65. But Ms. Reed

never pleaded facts delineating her specific job description or defining the

scope of her duties such that we could discern with some specificity the

contours of Ms. Reed’s chain of command or ordinary reporting structure

related to fraud matters. Without that information, we cannot say, or

reasonably infer, that Ms. Reed broke the chain of command or ordinary

communication protocol by speaking with the Director of Training, OPM

Contract Director, Regional Managers, or Field Managers.

      For example, as a compliance officer, Ms. Reed may have been

obliged as part of her job duties to communicate with, and seek remedial

action from, those at KeyPoint other than her direct supervisor regarding

instances of employee fraud—especially if her supervisor did not

adequately respond to her concerns. If so, that Ms. Reed turned to, for

example, the Regional Managers or Field Managers to address her fraud

concerns could not properly be viewed as an instance of Ms. Reed violating

the established communication protocol or chain of command. Ms. Reed’s

complaint averments shed no appreciable light on whether her job

description did in fact contemplate such communications beyond her direct



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supervisor—much less negate this possibility.

      Tellingly, in responding to KeyPoint’s similar comments regarding

factual gaps in her complaint, the best that Ms. Reed seemingly could

muster in her Reply Brief was a plea for merciful forbearance: “With

respect to her retaliation claim, [Ms. Reed] is arguing that, at the motion to

dismiss stage, she gets the benefit of the doubt.” Aplt.’s Reply Br. at 22

(emphasis added). But the one case that she cites for support—Gee v.

Pacheco, 

(10th Cir. 2010)—says no such thing. That case

and other controlling decisions make quite clear that, “[t]o survive a motion

to dismiss,” a plaintiff’s complaint averments must be factually plausible.

(quoting Ashcroft v. Iqbal, 

, 678 (2009)). And that

plausibility standard is satisfied “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” 

556 U.S. at 678). As

relevant here, Ms. Reed had to plead facts from which we could reasonably

infer that she put KeyPoint on notice of her protected activity by going

outside the established communication protocol or chain of command. But

she has failed to plead such facts. 21

      21
             Putting aside Ms. Reed’s failure to demonstrate KeyPoint’s notice through a
chain-of-command theory, Ms. Reed’s complaint averments do not provide sufficient
facts from which we could conclude that the content of her communications with the
                                                                           (continued...)

                                           88
       The D.C. Circuit’s analysis in Schweizer offers a useful contrast.

Like Ms. Reed, the relator there was responsible for ensuring “compliance

with government 

. Upon uncovering fraud, the

relator voiced concerns to her supervisor and then “repeatedly disobeyed

the orders of . . . her supervisor[] to stop investigating” the alleged fraud.

the relator went over her boss’s head to his supervisor “on two

separate occasions.” 

conversations, “she alleged a variety of

specific False Claims Act violations” and “made an emotional plea to

‘sav[e] the company’ from ‘legal trouble.’” 

(alteration in

       21
         (...continued)
identified KeyPoint officials would have put KeyPoint on notice that she was doing
something more than her job. For example, regarding Ms. Reed’s conversation with the
“OPM Contract Director,” we do not know which “concerns” she voiced or whether
voicing those unspecified concerns was inconsistent with her job duties. Aplt.’s App. at
32, ¶ 65. It is the same story with Ms. Reed’s discussions with “the Regional Managers
and certain Field Managers.” 

to the Director of Training, we are especially
hard-pressed to see how Ms. Reed’s communications with that official would have alerted
KeyPoint to the fact that she was seeking to prevent the company from committing a
violation the False Claims Act. Specifically, Ms. Reed’s complaint speaks of the
problems that the Director of Training brought to Ms. Reed’s attention—not
the other way around. See 

¶¶ 60–63. That the Director of Training reported
problems to Ms. Reed tells us nothing about whether KeyPoint knew of Ms. Reed’s
efforts to stop a False Claims Act violation. Therefore, her complaint averments
regarding the content of her communications with the identified KeyPoint officials do not
aid her argument that KeyPoint was on notice of her protected activity. Moreover, lest
there be any doubt, Ms. Reed’s averments also cannot support a reasonable inference that
her reports of fraud to her direct supervisor were outside her ordinary job duties. In fact,
the complaint suggests otherwise. Recall that Ms. Reed often reported violations “to her
supervisor . . . by submitting and discussing a monthly spreadsheet.” 

¶ 171.
Ms. Reed’s descriptions of these meetings with her direct supervisor strongly suggest that
she was just doing her “regular monthly duties.” 

¶ 127.

                                            89
original). Some weeks later, “[t]he company fired” the relator. 

Her termination letter specified that she was fired for “‘refusing to follow

orders’ and ignoring ‘the chain of command.’” 

evidence, the

D.C. Circuit held that the relator’s “factual allegations [were] sufficient to

overcome ‘the presumption that [she was] merely acting in accordance with

[her] employment obligations.’” 

third alterations in

original) (quoting 

).

      Measured against the allegations in Schweizer, the paucity of the

factual content in Ms. Reed’s complaint averments is patent. Unlike in

Schweizer, we have no specifically pleaded facts here indicating that Ms.

Reed violated the chain of command in reporting suspected fraud to

KeyPoint officials other than her direct supervisor. Whereas the relator in

Schweizer was ordered to stop investigating the fraud, Ms. Reed was

“tasked with extra audits of investigators.” Aplt.’s App. at 61, ¶ 165. And

while the employer in Schweizer fired the relator for “failing to follow

orders and the chain of 

, we lack any

specific—much less express—basis in Ms. Reed’s complaint from which to

infer that Ms. Reed’s activities in reporting suspected fraud, in her capacity

as a compliance officer, violated KeyPoint’s established communication

protocols or broke her chain of command. Simply put, Ms. Reed’s



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complaint averments fail to rebut the presumption that her actions were just

doing her job.

                                     * * *

         In summary, Ms. Reed has the burden of pleading sufficient facts to

show that KeyPoint knew of her protected activity. See 

. To do so, she must overcome the presumption that her internal

reports of fraud were part of her job as a Senior Quality Control Analyst.

This she cannot do. Accordingly, we hold that Ms. Reed has failed to

adequately allege that KeyPoint was on notice of her efforts to stop its

alleged False Claims Act violations. Consequently, her retaliation claim

fails.

                                        IV

         For the reasons stated above, we VACATE the district court’s

judgment and order insofar as it granted summary judgment on Ms. Reed’s

qui tam claims. We AFFIRM the district court’s order insofar as it




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dismissed Ms. Reed’s retaliation claim. And we REMAND for further

proceedings consistent with this opinion. 22




      22
               We also GRANT KeyPoint’s unopposed motion to seal Volumes II
through VI of its unredacted supplemental appendix. KeyPoint filed two versions
of its seven-volume supplemental appendix, one redacted and one unredacted.
KeyPoint moves to seal Volumes II through VI of the unredacted materials, which
include OPM’s contract with KeyPoint and OPM’s Investigator’s Handbook. The
public has a “right of access to judicial records.” Eugene S. v. Horizon Blue
Cross Blue Shield of N.J., 

, 1135 (10th Cir. 2011); 10 TH C IR . R.
30.1(D). To seal court records and thus impair that right, a party “must articulate
a real and substantial interest that justifies depriving the public of access to the
records that inform our decision-making process.” Helm v. Kansas, 

, 1292 (10th Cir. 2011). Three considerations lead us to conclude that
sealing is appropriate here. First, KeyPoint has articulated a strong
national-security interest in sealing. The OPM contract and handbook contain
sensitive materials regarding the techniques used in performing background
checks; revealing this information could compromise future background
investigations. Second, KeyPoint has preserved the public’s right to view judicial
records by publicly filing a redacted version of the appendices proffered under
seal. This publicly available—albeit redacted— version of the appendices leaves
the content of the appendices visible in significant measure. Finally, sealing is
appropriate because the documents at issue “play[ed] no role in our resolution of
this appeal.” Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 

,
1246 n.14 (10th Cir. 2017). Although KeyPoint’s Response Brief references the
unredacted materials, we did not rely on the underlying unredacted documents in
deciding this appeal.

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