UNITED STATES OF AMERICA EX REL., JULIE REED, Plaintiff - Appellant,
KEYPOINT GOVERNMENT SOLUTIONS, Defendant - Appellee.
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.
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
BRISCOE, SEYMOUR, and HOLMES, Circuit Judges.
HOLMES, CIRCUIT JUDGE
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. Id.
§ 3730(b)(1). 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. Id. § 3730(h).
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.
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 retaliation claim under Federal Rule of Civil
Procedure ("Rule") 12(b)(6)?
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.
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.
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., 543 F.3d 1211, 1217 (10th Cir. 2008)
(quoting United States ex rel. Boothe v. Sun Healthcare
Grp., Inc., 496 F.3d 1169, 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. § 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." Id. § 3729(a)(1)(B).
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,
529 U.S. 765, 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.
Id. "As a bounty for identifying and
prosecuting fraud," relators get to keep a portion
"of any recovery they obtain." Boothe, 496
F.3d at 1172 (citing 31 U.S.C. § 3730(d)).
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.
___, 137 S.Ct. 436, 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 source of the information." 31 U.S.C. §
3730(e)(4)(A). The public 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., 70 F.3d 568, 571
(10th Cir. 1995) (quoting United States ex rel.
Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645, 649
(D.C. Cir. 1994)).
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., 908 F.3d 610, 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., 897 F.3d 1283, 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. Id. § 3730(h)(2). The
events giving rise to this litigation took place against this
is a private company that conducts background investigations
for the federal government-specifically, the Office of
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.
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.
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 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.
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. Id. at 273 (Final Audit Report, dated
June 22, 2010).
year 2013 was a particularly turbulent one for the industry.
That year two federal government contractors-Edward Snowden
and Aaron Alexis-committed high-profile crimes after having
received security clearances. These embarrassing episodes put
the industry under intense scrutiny.
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." Id. at 159, 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." Id. at 302 (Reuters Article,
dated June 26, 2013). The article noted "problems with
procedures and safeguards used by all three private
contractors-USIS, KeyPoint . . . and CACI." Id.
at 303. A slew of other news reports covered such allegations
roiling the background-investigation industry.
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. Id. at 411 & n.3
(Order, entered Sept. 28, 2017). And the bad press of its
contractors prompted OPM to commission 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." Id. at 164 (Audit Report, dated June
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,"
id. at 6; 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," id. at 12.
This USIS suit and the government's intervention into it
incited more press accounts of the industry's shoddy
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," id.
at 61, ¶ 165, or assigned "to determine the nature
of . . . chronic infractions," id. at 84,
¶ 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.
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. Id. at 29,
¶ 34. Ms. Reed's position allowed her to see
investigators falsely reporting applicants' backgrounds
as "clean" and omitting information showing
otherwise, completing fewer 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.
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." Id. at 62, ¶ 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.
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 while at KeyPoint. To back up her
allegations, Ms. Reed provided a pre-disclosure statement and
a presentation detailing KeyPoint's alleged violations.
government's urging, Ms. Reed sued KeyPoint in January
2014. Her operative complaint raised three qui tam
claims and a retaliation claim. 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.
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. At the court's invitation, Ms. Reed
filed additional evidence to defend her qui tam
claims from summary judgment.
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. Id.
at 411. 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. Id. at 414. 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.
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 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.
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.
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., 825 F.3d 1138, 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.'" Id. (quoting Fed.R.Civ.P.
56(a)). When, as here, the district court granted the
defendant's motion for summary judgment, "we accept
as true the relator['s] evidence and draw all reasonable
inferences in [her] favor." Id.
Reed argues that the district court erred twice en route to
dismissing her qui tam claims under the public
disclosure bar. 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
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. 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.
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
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).
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." Fine, 70 F.3d at
572; see also Glaser v. Wound Care Consultants,
Inc., 570 F.3d 907, 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 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., 867 F.3d 712, 718 (7th Cir. 2017),
cert. denied, 138 S.Ct. 1284 (2018). Thus, the 2010
amendment confirms the vitality of our pre-2010
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." Id.
Indeed, Ms. 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
Reed's argument is too little too late. For starters, by
waiting 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, 862 F.3d 1065,
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.
ordinarily derive Congress's intent "from the text,
not from extrinsic sources." Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts 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
Fine, 70 F.3d at 572, 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., 737 F.3d 908, 917 (4th Cir. 2013)
(explaining 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., 827 F.3d 201, 208 n.4 (1st Cir.
2016). Thus, our pre-2010-amendment cases guide our
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." Fine, 70 F.3d at 571. 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 any specific
compan[y]." See In re Nat. Gas Royalties, 562
F.3d 1032, 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." Fine, 70 F.3d at 572. 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., 363 F.3d 1039, 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." Boothe, 496 F.3d at
1174. Rather, it is enough if "the essence of" the
relator's allegations was "'derived from' a
prior public disclosure." Id. In fact, the
public disclosures need not allege any False Claims Act
violations or even "any wrongdoing"; they need only
disclose "the material elements of the fraudulent
transaction." Fine, 70 F.3d at 572.
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." Fine, 70 F.3d at 571.
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.
high level of generality, Ms. Reed's qui tam
claims allege that KeyPoint "was engaging in systemic
fraud." Aplt.'s 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.
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 adds to
this by exposing scores of violations of the TTP.
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." Id. at 89, ¶
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. Id. at 89, ¶ 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." Id. at 89, ¶ 256. To Ms.
Reed's knowledge, KeyPoint falsified dozens of reports to
hide malfeasance by at least four individual investigators.