Full opinion text
MEMORANDUM OPINION LAMBERTH, District Judge. I. INTRODUCTION This case began its life in the Western District of Virginia, and was one of several matters transferred to this Court for consolidated and coordinated pretrial proceedings as part of a multi-district litigation. That litigation has seen some 30 lawsuits come through this Court, which have lasted ten years and spawned thousands of court filings. Only two of these cases remain, and this is one. Today the Court resolves all outstanding motions, dismissing some claims and granting summary judgment as to others. As this case is now almost ready for trial, the Court will order the submission of a joint pretrial statement and will schedule a pretrial conference, in an effort to help this case reach the point where it can be returned to the court from whence it came for trial. II. BACKGROUND 1. Factual History The relator in this case, Chyrissa Staley, brings this qui tarn suit under the False Claims Act against Columbia/HCA Healthcare, its former subsidiary, Indian Path Hospital, Summit Home Health, and Horizon Mental Health Management, for allegedly inflating costs at Indian Path Hospital and other HCA-affiliated hospitals in order to defraud the federal Medicare program. The allegations revolve primarily around the Indian Path Hospital in Kingsport, Tennessee. Two of the original relators were doctors at Indian Path (“IPH”), while the third, remaining relator, Chyrissa Sta-ley, was a nurse there. As the year 1996 approached, IPH was preparing to open a new unit in the hospital dedicated to the treatment of geriatric patients coping with both mental and physical illness. This geriatric/psychiatric unit, known colloquially as the “geropsych” or “GP” unit, was in addition to the Indian Path Pavilion, an HCA-affiliated mental health treatment facility that stood next to IPH. IPH was to receive reimbursement from the federal Medicare program for patient-care expenses at the GP unit under a special program known as “TEFRA,” after the piece of legislation that spawned it, the Tax Equity and Fiscal Responsibility Act of 1982. The GP unit’s first year of operation ran from March 1, 1996 until February 28,1997. For that first year, IPH was to bill Medicare each time a patient was discharged, by sending a UB-92 form that stated how many days the patient stayed at the GP unit. Medicare then reimbursed IPH at a per-day, per-patient rate that the parties had previously negotiated. At the end of the year, IPH submitted a cost report summarizing all the costs that were incurred at the GP unit for the year. This report was something like a tax return, listing all of the reimbursable costs incurred at the GP unit for the year. Medicare would then reimburse IPH for all costs reflected in the report that had not yet been captured. Most importantly, the cost report for the first year of operation would set the “target amount,” “target rate,” or “base” rate at which IPH would be reimbursed, per-day and per-patient, in future years, with periodic upward adjustments. In its most basic terms, the cost report would report all costs, which would then be divided by the number of patient days, which would yield the new rate at which Medicare would reimburse IPH, per-patient and per-day, in future years. The total cost of running the GP unit during the first year would be treated as the average cost. “Under this system, hospitals were obligated to absorb operating costs in excess of their target amounts, but they received bonuses if their operating costs were less than their targeted amounts.” Sacred Heart Medical Center v. Sullivan, 958 F.2d 537, 540 (3d Cir.1992) (summarizing operation of the TEFRA program). According to the allegations in the Amended Complaint — the evidence in support of which is discussed more fully infra — the GP unit at Indian Path was halfway through the TEFRA base period when it was determined that the TEFRA rate was too low. A scheme was hatched, or so it is alleged, to improperly inflate the TEFRA rate through a number of devices. IPH made use of a management services company called Horizon, whose employee, Cynthia Culberson, set up shop in the GP unit as its director. There she became a central player in the effort to raise the TEFRA rate. Culberson, allegedly acting with the knowing cooperation of Robert Bauer, Indian Path’s Chief Executive Officer, Jim Matney, its Chief Financial Officer, and Gail Peace, its Chief Nursing Officer, embarked on a scheme to inflate the GP unit’s costs beyond what they normally would be. For instance, it is alleged that these conspirators tried to keep patients in the unit longer than was necessary to treat them, and that they also recruited sicker patients to the unit or diverted them from the pavilion in an effort to increase the average time each patient stayed (referred to generally as the “average length of stay” or “ALOS”), which would then increase total cost. Defendants are also alleged to have ordered supplies and equipment for use in other departments at IPH, while billing them to the GP unit, thus inflating its costs under the TEFRA program even further. There is evidence suggesting that a number of items were billed to the GP unit but actually intended for use in other departments of the hospital. Stretchers seemed to be high on everyone’s wish list under this ploy, although there also was a stray coffee pot and other items which purchased for use elsewhere in the hospital but billed to the GP unit. Relator also alleges that the GP unit raised its costs by unnecessarily using more costly contract employees or overtime workers, and other schemes. The result of this plot is that, at the end of the TEFRA period, the GP unit’s cost report reflected a state of affairs that was far from the truth, representing to the government that the high costs were typical, were all incurred at the GP unit, and would occur again. This set the GP unit’s reimbursement rate at a high level going forward. While Jim Matney was still the hospital’s CFO, he allegedly said that the GP unit’s costs during its TEFRA base year would have been some $325,000 lower had it not been for conscious efforts to bring the TEFRA rate up. Fisher Dep. at 32-33 [1220-12], Once the TEFRA period was over, Medicare began reimbursing IPH at the new, higher reimbursement rate established during the TEFRA period. At this point, IPH moved to cut costs in the GP unit; for instance, the average length of stay plummeted, as did the use of contract workers. According to relator, this was the result of intentional conduct by IPH. Once the TEFRA period was over and the GP unit could be reimbursed at the new, inflated rate, its incentive was to slash costs so that its periodic reimbursement greatly exceeded its cost basis and, more importantly, so that IPH could reap the benefits of year-end bonuses for accruing costs well below its TEFRA rate, which was easy to do since the rate was inflated. The individuals responsible for the scheme had their own motives, both professional— for instance, Matney was named a CFO of the Year within his hospital chain — and pecuniary — for instance, the top three officers at IPH stood to receive performance bonuses if the hospital qualified for the Medicare bonuses. See Peace Dep. Before the year 1998 was even out, Indian Path was revising its cost report and filing an amendment with the Medicare program, restating its costs downward by hundreds of thousands of dollars. Rumors of Medicare fraud at the facility led to internal and external investigations, and culminated in the firing of Bauer and Mat-ney. The events at Indian Path gave rise to a number of lawsuits, including this one. 2. Procedural History The original three relators brought this qui tam action under the False Claims Act in the fall of 1997, in the United States District Court for the Western District of Virginia. In 1999 the Judicial Panel on Multidistrict Litigation consolidated this suit in this Court for pretrial purposes, along with several other loosely related cases alleging various forms of Medicare fraud. Defendants are Indian Path Hospital itself; Superior Home Health of East Tennessee, Inc., which provided' certain contract services for the GP unit; Horizon Mental Health Management, Inc., a health services company that essentially provided consulting assistance to the GP unit to achieve the optimal TEFRA rate during the target period; and Columbia/HCA Healthcare Corp. As discussed more fully below, Columbia/HCA was, at the relevant times, the ultimate parent corporation of Indian Path, and operated a vast chain of health care facilities across the country. As will also be seen below, the original complaint was amended once, adding the allegation that the kind of fraud that allegedly occurred at Indian Path’s geropsych unit also occurred at other geropsych units at hospitals owned by Columbia/HCA. The Court and parties have distinguished between the allegations in the original complaint, which are specific to Indian Path and have been called the “Phase I” allegations, and those added by the Amended Complaint, which speak to other Columbia/HCA facilities and have been called the “Phase II” allegations. The parties have proceeded through discovery, and a number of motions now confront the Court, grouped into four main substantive areas: (1) relator moves for suggestion of remand to the Panel for Multidistrict Litigation; (2) defendants challenge the Court’s subject matter jurisdiction over the Phase II claims; (3) Horizon and Columbia/HCA each seek summary judgment on the grounds that they cannot be held liable for whatever happened at IPH; and (4) defendants seek partial summary judgment that the UB-92 forms submitted by IPH for reimbursement during the TEFRA period are not false claims for which defendants can be assessed separate statutory penalties. In short form, the Court holds as follows: (1) the motion for suggestion of remand is denied; (2) the Court finds that it lacks subject matter jurisdiction over the Phase II claims, by operation of statute; (3) there are genuine issues of material fact that preclude summary judgment as to Horizon and HCA’s liability for conduct at IPH; and (4) relator has failed to adduce evidence sufficient to survive summary judgment for the individual UB-92 forms, because she has not identified any one that contains a false statement. III. HOUSEKEEPING Before diving into the substance of the case, there are a number of housekeeping matters with which to deal. Relator’s Motion [1191] to establish a briefing schedule on motions to dismiss is DENIED because it has been mooted by the passage of time. The parties’ effort to streamline briefing is commendable, but the briefing already has unfolded along other lines. The other housekeeping motions seek to strike filings or seek leave to file surreplies, a popular mode of advocacy in this case. “A motion to strike is considered an exceptional remedy and is generally disfavored, and the proponent of such a motion must shoulder a formidable burden.” United States ex rel. K & R Limited Partnership v. Massachusetts Housing Finance Agency, 456 F.Supp.2d 46, 53 (D.D.C.2006) (Lamberth, J.) (internal quotations and citations omitted) (collecting authorities). “The decision to grant or deny leave to file a sur-reply is committed to the sound discretion of the court. If the movant raises arguments for the first time in his reply to the non-movant’s opposition, the court will either ignore those arguments in resolving the motion or provide the non-movant an opportunity to respond to those arguments by granting leave to file a sur-reply.” Flynn v. Veazey Const. Corp., 310 F.Supp.2d 186,189 (D.D.C.2004) (Urbina, J.) (internal citation omitted) (collecting cases). Relator filed a Motion [1216] seeking leave to file a surreply to HCA’s motion to dismiss, but relator’s counsel did not certify that she had conferred with defense counsel on this non-dispositive motion. This violates Local Civil Rule 7(m), which would be grounds for denying the motion. Yet it seems that consultation would have been futile, since HCA filed an opposition, equal in length to the surreply at issue, which stated no reason for rejecting the surreply, other than it being untimely and unnecessary. That opposition brief was really just a rehash of HCA’s argument in support of its motion to dismiss, and thus was in effect a sur-surreply, to which relator, for some reason, saw fit to reply, leaving this Court as the owner of what may be the world’s first sur-sur-surreply, a position in which no Court should ever find itself. Since relator’s surreply responds to evidence first raised in HCA’s reply, and because HCA identified no actual prejudice that would result from allowing the surreply, the Motion [1216] is GRANTED. Relator herself filed a Motion [1224] to strike Horizon’s reply memorandum [1222] in support of its motion for summary judgment, or in the alternate, for leave to file an ever-popular surreply thereto. Relator argues that Horizon introduced a wholly new theory for summary judgment in its reply brief, which is impermissible, and also that relator should be allowed to respond to Horizon’s objections to the evidence relator offered in opposition to the summary judgment motion. The Court agrees that Horizon’s argument shifted slightly between the two briefs, such that a new argument seems to have emerged, to which relator should be allowed the opportunity for a full response. Relator’s Motion [1224] is DENIED in part and GRANTED in part. It is denied insofar as the Court is loathe to strike a brief, especially when the better course is to grant the request for leave to file a surre-ply, so that a complete record may be considered. Horizon has moved [1228] for leave to file a surreply to relator’s reply to Horizon’s opposition to relator’s motion to strike Horizon’s reply in support of its summary judgment motion. Since the Court has just denied the motion to strike. but accepted relator’s surreply, Horizon is essentially seeking leave to file a sur-sur-reply, which of course, relator opposed, with Horizon responding to that opposition. Since all of these responses argued the merits just as much as they argued why certain papers should or should not be accepted, the Court is left with something it never thought it would see, a sur-sur-sur-surreply (hereinafter, “reply”). All of these papers, particularly the reply, add very little that is new, and do not respond to any improper argument. We are now several steps removed from a substantive motion, and are faced only with filings about filings. Eventually we reach a point where all this metapleading must stop, and this is that point. The Motion [1228] is DENIED. IV. SUGGESTION OF REMAND Relator has filed a motion [1147] asking this Court to suggest to the Judicial Panel on Multidistrict Litigation (“MDL Panel” or “JPML”) that this case be remanded to the transferor court, the Western District of Virginia. Relator seeks remand prior to the Court ruling on the motions to dismiss for lack of subject matter jurisdiction and for summary judgment. The MDL Panel may, under 28 U.S.C. § 1407(a), transfer multiple actions to one district court for “coordinated or consolidated pretrial proceedings” when it determines that “such proceedings will be for the convenience of the parties and witnesses and will promote the just and efficient conduct of such actions.” The statute also commands that “[e]ach action so transferred shall be remanded by the panel at or before the conclusion of such pretrial proceedings to the district from which it was transferred unless it shall have been previously terminated.” Id. Relator argues that remand is appropriate at this time because “there are no longer any pretrial proceedings that need to be ‘coordinated or consolidated,’ ” and the only other action that remains before this Court does not share any common parties or discovery with this case. Relator’s Motion [1147] to Consider Suggestion Of Remand To The MDL Panel at 1. Relator also argues that remand will serve judicial economy because resolution by the transferor court of certain issues remaining in the case will reduce the likelihood of duplicative appeals to both the District of Columbia and Fourth Circuits. Defendants oppose remand, arguing that, at the time relator moved for it, discovery was still ongoing, and that this Court’s experience with this case and the other MDL cases make it desirable to resolve all pretrial matters here. For instance, the HCA defendants point out that motions for summary judgment in this case might have required interpretation of a settlement agreement in another case that came before this Court as part of the same MDL, and will in any event call on the general familiarity- the Court has gained from these cases in dealing with the False Claims Act, allegations of Medicare and similar fraud in the healthcare industry, and the facts of this case in particular. Only the MDL Panel may remand a case or cases transferred under § 1407; a district court sitting as transferee court lacks that power. In re Wilson, 451 F.3d 161 (3d Cir.2006). While the MDL Panel will consider remand upon the suggestion of the transferee district court, the motion of any party, or on its own initiative, JPML Rule 7.6(c), “[t]he Panel is reluctant to order remand absent a suggestion of remand from the transferee district court,” and a district court’s suggestion of remand is typically given - considerable weight. JPML Rule 7.6(d). In most cases, the Panel’s decision to order remand, and the transferee court’s decision to suggest it, are discretionary. But in some circumstances, § 1407 commands the MDL Panel to remand a case, and if those circumstances applied here, the Court would be hard pressed to do anything but suggest remand. The statute orders that a case “shall be remanded by the panel at or before the conclusion of such [coordinated or consolidated] pretrial proceedings to the district from which it was transferred unless it shall have been previously terminated.” 28 U.S.C. § 1407(a). Remand is thus mandatory if (1) the case has not been previously terminated and (2) coordinated or consolidated pretrial proceedings have concluded. In all other cases, it is discretionary. This case clearly has not been terminated. Although discovery has been completed, pretrial proceedings still have not concluded, since “[p]re-trial, as an adjective, means before trial — ... all judicial proceedings before trial are pretrial proceedings.” In re Plumbing Fixture Cases, 298 F.Supp. 484, 494 (Jud.Pan.Mult.Lit.1968). This means that pretrial proceedings do not conclude until a final pretrial order is entered, and that all prior proceedings — including rulings on motions for summary judgment — are pretrial proceedings that may properly remain before the transferee court. See Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 34, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998) (including summary judgment motions when considering pretrial proceedings under § 1407); In re Rhone-Poulenc Rorer Pharmaceuticals, Inc., 138 F.3d 695, 697 (7th Cir.1998) (stating that transferee judge has power to issue final pretrial order under F.R.C.P. 16; collecting authorities); In re Patenaude, 210 F.3d 135, 144-45 (3d Cir.2000) (reviewing legislative history of § 1407 and other authorities and concluding that pretrial proceedings include summary judgment). Relator seems to suggest a third layer, implying that whatever pretrial proceedings may remain, they have lost their nature as “coordinated or consolidated pretrial proceedings” because there are no issues or parties in common between this case and the one other remaining in this MDL. This misunderstands the meaning ascribed to “coordinated or consolidated.” The Supreme Court has made clear that cases may be coordinated, and thus serve the purposes of the statute, even if all other cases have already been disposed of, so long as there is some “common core” that makes it more just or efficient that the cases continue to be handled in one court or before one judge. Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 34, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998); see also In re Wilson, 451 F.3d 161, 170 (3d Cir.2006) (“ ‘[A] proceeding that relates only to a single individual’s case or claim can nonetheless be coordinated,’ as coordination can be found even if common issues are present only in relation to eases that have already been terminated.”) (quoting In re Patenaude, 210 F.3d 135, 143 (3d Cir.2000)); Patenaude, 210 F.3d at 144 (“To be coordinated, it is not necessary that common issues are being contemporaneously addressed.”); In re Evergreen Valley Project Litig., 435 F.Supp. 923, 924 (Jud.Pan.Mult.Lit.1977) (statute contemplates that transferee judge “in his discretion will conduct the common pretrial proceedings with respect to the actions and any additional pretrial proceedings as he deems otherwise appropriate.”). Defendants have identified several ways in which this case could and should be coordinated with other cases already handled as part of this multidistrict litigation, as well as the one other case that remains before the Court. See Pogue v. Diabetes Treatment Centers of America, Civil Action No. 99-3298. For instance, this Court is best situated to analyze certain legal and factual issues in this case because it has already dealt with them in others, including the cases against the HCA defendants and the other extant case, which does not involve HCA. There are thus several ways in which the treatment of this case can and is being coordinated with other cases that have come before the Court as part of this MDL, and the pretrial proceedings here thus remain “coordinated” as contemplated by 28 U.S.C. § 1407. Because the statute does not make remand mandatory in this case, the decision whether to suggest remand is in the Court’s sound discretion. In exercising that discretion, “[t]he transferee court should consider when remand will best serve the expeditious disposition of the litigation.” Manual for Complex Litigation, Fourth, § 20.133. As § 1407 sets forth, the purpose of pretrial consolidation or coordination is “for the convenience of the parties and witnesses and [to] promote the just and efficient conduct” of the cases. 28 U.S.C. § 1407. This emphasis on fair and efficient case administration has been voiced by the courts as well, which have stated that the decision of whether to suggest remand should be guided in large part by whether one option is more likely to “insure the maximum efficiency for all parties and the judiciary.” In re IBM Peripheral EDP Devices Antitrust Litig., 407 F.Supp. 254, 256 (Jud.Pan.Mult.Lit.1976). Efficient and fair resolution of certain issues is likely to “require any particular experience that the transferee judge might have gained from supervising this litigation,” and thus remand is premature. In re Multidistrict Civil Actions Involving the Air Crash Disaster Near Dayton, Ohio on March 9, 1967, 386 F.Supp. 908, 909 (Jud.Pan.Mult.Lit.1975); see also In re Four Seasons Secs. Laws Litig., 361 F.Supp. 636 (Jud.Pan.Mult.Lit.1973) (remand may be unwise where transferee court has gained expertise in issues important to the case, and where remand would simply duplicate those efforts). In cases where remand has been deemed appropriate prior to the conclusion of all pretrial proceedings, there was no efficiency gain to be had by keeping the case before the transferee court. See, e.g., In re Baseball Bat Antitrust Litig., 112 F.Supp.2d 1175 (Jud.Pan.Mult.Lit.2000). Many of the same reasons cited above in explaining why this case could still be coordinated with others leads the Court to conclude that it should still be coordinated. This Court’s familiarity with the issues in this case — a case which by now encompasses a voluminous docket — as well as the many related issues in the other cases in this MDL, indicates that it would be much more efficient to proceed to summary judgment motions in this Court rather than to ask the transferor court to play catch-up. Relator claims that remand is appropriate because this case should be governed by the law of the transferor forum’s circuit, the Fourth Circuit, which differs from the law of the D.C. Circuit. Relator points to no authority supporting the proposition that remand is mandated by a circuit conflict. To the extent relator is simply seeking to avoid what it predicts will be this Court’s application of the correct law, it has never been the case that dissatisfaction with the transferee court’s rulings could support remand. In re Holiday Magic Secs. & Antitrust Litig., 433 F.Supp. 1125, 1126 (Jud.Pan.Mult.Lit.1977). Relator also had moved [1187] for an extension of time to oppose Horizon’s motion to dismiss until after the Court ruled on the motion for suggestion of remand. That motion is DENIED, not only because it has been mooted as events have unfolded, but also because it calls for MDL courts to adopt poor practices. Relator essentially asked the Court to defer a ruling on whether it had subject matter jurisdiction over many of the claims in this case until after it had determined whether or not to suggest that the entire case be remanded. This not only runs counter to general notions of subject matter jurisdiction, which dictate that a court cannot do anything with a case or part thereof unless it is first sure that it has jurisdiction over the subject matter, but it also is not in the best interest of judicial economy, which dictates that, as a general matter, MDL transferee courts should dispose of as many pretrial matters as possible before a case is returned to the trial court. V. SUBJECT MATTER JURISDICTION Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. At issue here is the public disclosure provision of the False Claims Act, 31 U.S.C. § 3730(e)(4) (“FCA”), which cuts off subject matter jurisdiction over a relator’s claims where the suit is “based upon the public disclosure of allegations or transactions,” unless the relator can establish that he was an “original source of the information.” 31 U.S.C. § 3730(e)(4)(A),(B). Defendants contend that a news story published after the original complaint was filed, but before it was amended, publicly disclosed that fraud similar to that alleged at Indian Path may have occurred across the Columbia healthcare system. Relators amended the complaint to allege fraud at other hospitals only after these public disclosures, defendants argue, and thus the jurisdictional bar applies. Defendants also point out that substantially similar allegations were made in two qui tam actions in which the complaints remained under seal at the time the complaint in this action was amended. Relator counters that there was no public disclosure because (1) she did not see the media articles and, at any rate, they did not disclose the same allegations she makes here; and (2) complaints that remain under seal cannot be public disclosures. Even if there was a public disclosure, she argues, she is an original source, because of information conveyed to the government at the time the original complaint was filed. A. Applicable Law While a transferee court sitting under § 1407 normally would apply the same law applied by the transferor court when sitting in diversity, Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964), the transferee court should follow its own circuit on questions of federal law. In re Korean Air Lines Disaster of September 1, 1983, 829 F.2d 1171 (1987), aff'd on other grounds sub nom. Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 109 S.Ct. 1676, 104 L.Ed.2d 113 (1989). “As a general rule, ‘questions. of federal law in MDL-transferred cases are governed by the law of the transferee circuit.’ ” In re MSPower Razor System Marketing & Sales Practices Litig., 2007 WL 128846, *4, 2007 U.S. Dist. LEXIS 2641 at *17, MDL No. 1704 (D.Mass. Jan. 11, 2007) (quoting In re New England Mutual Life Ins. Co. Sales Practices Litig., 324 F.Supp.2d 288, 297-98 (D.Mass.2004)). The Court thus applies the public disclosure rule as construed by the D.C. Circuit, where not otherwise guided by the Supreme Court. B. The Complaints, Alleged Disclosures, and Procedural History The original complaint was filed under seal on August 11, 1997. At that time there were three relators, Chyrissa Staley, Dr. Debra Hockett, and Dr. Linda Thompson. Hockett is now deceased and no longer a relator, and Thompson’s claims were dismissed due to her failure to list this suit in her bankruptcy estate. See Mem. Op. & Order [989] (July 7, 2004). The original complaint alleged a fraudulent scheme at Indian Path Hospital, and no other facility. On June 22, 1998, relators filed a First Amended Complaint. ■ Significantly, the Amended Complaint added two paragraphs alleging Medicare fraud at HCA facilities other than Indian Path. Paragraphs 36 and 37 allege: 36. Upon information, defendant Columbia conducted one or more meetings of chief financial officers (CFOs) and certain other officials of the hospitals it owned and/or operated which had Geropsych units. Jim Matney, CFO of Indian Path, attended on behalf of his hospital. There, Matney and his counterparts were instructed in the use of, and told to use techniques that would inflate the TEFRA charges in their respective Geropsych units. 37. Still upon information, these Gerop-sych units, acting in accordance with Columbia’s instructions, employed these techniques and perhaps others for-inflating TEFRA charges and as a result overcharged Medicare at the subject hospitals. The overcharging techniques included those which are described in paragraphs 15 through 35 of this Complaint. On December 18,1997, after the original complaint was filed but before the above amendments were made to allege fraud beyond Indian Path, the New York Times ran an article outlining a detailed investigation of Medicare fraud at HCA hospitals. The article is discussed more fully infra. This Court has dealt with prior invocations of the public disclosure bar in the manner appropriate to the stage of the proceedings. See, e.g., Mem. Op. & Order [39 in 99-3311 Docket] (Apr. 23, 2004); Mem. Op. & Order [989] (July 7, 2004). But the Court also has made clear that motions challenging subject matter jurisdiction may be made or renewed until judgment is entered. Mem. & Order [1169] (June 2, 2006). C. Public Disclosure Bar and Original Source Exception 1. In General The False Claims Act, 31 U.S.C. §§ 3729 et seq., prohibits false or fraudulent claims for payment to the federal government, § 3729(a), and permits civil actions based on such claims to be brought by the Attorney General, § 3730(a), or by private individuals acting in the government’s name, § 3730(b)(1). But § 3730(e)(4)(A) of the Act provides that: no court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the.action is an original source of the information. An “original source” is defined as: an individual who [1] has direct and independent knowledge of the informátion on which the allegations are based and [2] has voluntarily provided the information to the Government before filing an action under this section which is based on the information. 3730(e)(4)(B). The jurisdictional inquiry proceeds in two steps, each with two subsidiary prongs of its own. First, the court must determine that: (1) there has been a public disclosure of allegations or transactions; and (2) that the lawsuit is based upon the public disclosure of allegations or transactions. Second, if there is a public disclosure, the court must determine whether the relator is an original source, meaning one who: (1) has direct and independent knowledge of the information and (2) voluntarily provided that information to the government before filing the action. The jurisdictional bar aims mainly at stopping parasitic suits, but “the blocking of freeloading relators who copy their complaints directly from public disclosures is not the FCA’s only concern. From its inception, the qui tam provisions of the FCA were designed to inspire whistleblow-ers to come forward promptly with information concerning fraud so that the government can stop it and recover ill-gotten gains. Once the information is in the public domain, there is less need for a financial incentive to spur individuals into exposing frauds. Allowing qui tam suits after that point may either pressure the government to prosecute cases when it has good reasons not to or reduce the government’s ultimate recovery.” United States ex rel. Findley v. FPC-Boron Employees’ Club, 105 F.3d 675, 685 (D.C.Cir.1997). In other words, “[t]hese jurisdictional requirements serve to ensure that the Act’s rewards are available only where, at the time the qui tam claims were filed, the federal government was not already ‘on the trail’ of the alleged wrongdoing.” United States ex rel. Ervin & Assocs. Inc. v. The Hamilton Secs. Group, Inc., 370 F.Supp.2d 18, 37 (D.D.C.2005) (Oberdorfer, J.). As the D.C. Circuit has noted, it must be emphasized that the first step in the public disclosure/original source analysis is to “ascertain whether the ‘allegations or transactions’ upon which the suit is based were ‘publicly disclosed’ in a ‘criminal, civil, or administrative hearing’, in a congressional, administrative or Government Accounting Office report, hearing, audit or investigation, or from the news media.” United States ex rel. Springfield Terminal Railway Co. v. Quinn, 14 F.3d 645, 651 (D.C.Cir.1994) (internal citations omitted) (hereinafter Springfield Terminal). If there is no public disclosure or the suit is not based on publicly disclosed information, there is no need to proceed further, and jurisdiction is appropriate. “If — and only if — the answer to the first question is affirmative, will the court then proceed to the ‘original source’ inquiry, under which it asks whether the qui tam plaintiff ‘has direct and independent knowledge of the information on which the allegations are based.’ Under these circumstances, if the qui tam plaintiff qualifies as an original source, the action may proceed; if she does not, the action is barred.” Id. 2. Rockwell International The Supreme Court has recently provided guidance on the application of the public disclosure/original source rule, in Rockwell International Corp. v. United States, - U.S. -, 127 S.Ct. 1397, 167 L.Ed.2d 190 (2007). Though the case only deals directly with the second, original source component of the statutory analysis, it nonetheless speaks to the statute’s application as a whole. In Rockwell the relator, Stone, had worked at a nuclear facility operated by Rockwell in the 1980s. In 1986, Stone was laid off, and in June of 1987 he went to the FBI, alleging that a number of environmental crimes were committed at the facility while he worked there, and providing the FBI with 2,300 pages of documents related to these charges. Id., 127 S.Ct. 1397, 167 L.Ed.2d at 199-200. Among the documents was a 1982 engineering report containing Stone’s assessment of a proposed waste treatment process that Rockwell was considering. Id., 127 S.Ct. 1397, 167 L.Ed.2d at 200. In short, the process was called “pondcrete,” and involved mixing hazardous waste sludge with concrete into a mixture that was sufficiently solid that it could be stored and disposed of in blocks. Id., 127 S.Ct. 1397, 167 L.Ed.2d at 199. Back in 1982, Stone had predicted that a piping system used to make the pondcrete would be ineffective and fail. Id. When he went to the FBI Stone did not point out this report, buried among the other documents, or orally tell the FBI about his pondcrete concerns. Id., 127 S.Ct. 1397, 167 L.Ed.2d at 200. It turned out that there were problems with the pondcrete, but of a different nature. After Stone was laid off at Rockwell, the company learned that pondcrete blocks were insolid, and by 1988 the Department of Energy also learned of this, when several blocks began leaking waste, which in turn led to the revelation that there were thousands of insolid blocks at the facility. Id., 127 S.Ct. 1397, 167 L.Ed.2d at 199. By the spring of 1988 the media had reported these findings, and it was the media’s explanation that the root of the problem was “Rockwell’s reduction of the ratio of concrete to sludge in the mixture,” not the piping system that Stone had predicted would go wrong. Id. “Based in part on information allegedly learned from Stone,” the FBI and EPA raided the Rockwell facility on June 6, 1989. Id., 127 S.Ct. 1397, 167 L.Ed.2d at 200. The affidavit in support of the search warrant alleged, inter alia, that Rockwell had used an “inadequate waste-concrete mixture” in the pondcrete blocks, rendering many insolid, and the media reported this allegation. Id. In July of the same year, Stone filed a qui tam suit under the FCA, alleging that Rockwell was obligated to comply with certain environmental laws, that it had failed to do so, and that in order to induce the government to make payments to Rockwell under its contract, the company had presented false and fraudulent claims. Id., 127 S.Ct. 1397, 167 L.Ed.2d at 200-201. Of the 26 environmental and safety issues mentioned in the complaint, one involved pondcrete, and reiterated Stone’s claim that after his 1982 review of the design for the pondcrete process, he had predicted that the piping system would lead to problems. Id., 127 S.Ct. 1397, 167 L.Ed.2d at 201. After the government intervened, Stone and the government filed an amended complaint, which maintained the allegation that Rockwell violated environmental laws by storing leaky pondcrete, but dropped the allegation that it was due a piping system defect. Id. These allegations were refined even further in a statement of claims that superseded the amended complaint, which added further details of events that allegedly gave rise to liability for the pondcrete problem, all of which occurred after Stone left Rockwell’s employ, and none of which involved his previous piping system allegations. Id. The jury returned a verdict finding Rockwell liable for claims covering the pondcrete allegations, which spanned from April 1, 1987 to September 30, 1988, and found for Rockwell on all other claims. Id., 127 S.Ct. 1397, 167 L.Ed.2d at 202. After the verdict, Rockwell moved to dismiss under § 3730(e)(4). Stone conceded that his successful claims were based on publicly disclosed information, but argued he was an original source. After a few iterations, the District Court held that Stone had not disclosed his information to the government prior to filing his qui tam suit, because the 1982 engineering report was insufficient to communicate the pond-crete allegations, and because Stone did not present sufficient evidence that he had orally informed the FBI about these allegations. Id. The Tenth Circuit disagreed, holding that the 1982 engineering report was a sufficient disclosure to the government. The Supreme Court in turn reversed, holding that the report was indeed insufficient. The Court first emphasized that § 3730(e)(4) is a subject matter jurisdiction provision. Id., 127 S.Ct. 1397, 167 L.Ed.2d at 203-205. It then proceeded to the original source inquiry, since it was conceded that the suit was based upon publicly disclosed allegations. The Court pointed out that “the ‘information’ to which subparagraph [3730(e)(4)](B) speaks about is the information upon which the relators’ allegations are based,” meaning that the inquiry should not focus on whether the relator was the source of the public disclosure, but rather whether he is a source of the information underlying his own suit. Id., 127 S.Ct. 1397, 167 L.Ed.2d at 205. The Court next grappled with the phrase “information on which the allegations are based,” holding that “the term ‘allegations’ is not limited to the allegations of the original complaint.” Id., 127 S.Ct. 1397, 167 L.Ed.2d at 206. Because the statute only speaks of the relator’s “allegations simpliciterit is not limited to the allegations in the original complaint, so that “new allegations regarding a fundamentally different fraudulent scheme require reevaluation of the court’s jurisdiction.” Id. In other words, jurisdiction must be evaluated as to each distinct claim in a suit, and each must be capable of surviving if brought as a stand-alone action. The Court then proceeded to a determination that Stone failed to qualify as an original source. As Stone and the government had alleged in the case they tried, during the relevant time period, Stone did not work at Rockwell, and therefore did not know anything about the problems that occurred there, with pondcrete or anything else. His prediction that the pondcrete process would not work because of a piping system flaw did not qualify as “direct and independent knowledge.” Stone “did not know that the pondcrete failed; he predicted it,” and “[ejven if a prediction can qualify as direct and independent knowledge in some case (a point we need not address), it assuredly does not do so when its premise of cause and effect is wrong.” Id., 127 S.Ct. 1397, 167 L.Ed.2d at 208. Stone’s premise was wrong because the flaw he predicted in the piping system never came to pass; the system worked, and it was a different problem, unforeseen by Stone, that led to the leaky pondcrete. Stone’s “knowledge” was so insubstantial as to count as no knowledge at all. Stone argued that because he was an original source as to some of the claims that went to trial, the court had jurisdiction over all of them, including the pond-crete claims. The Supreme Court rejected that argument, holding that § 3730(e)(4) “does not permit jurisdiction in gross just because a relator is an original source with respect to some claim. We, along with every court to have addressed the question, conclude that § 3730(e)(4) does not permit such claim smuggling.” Id., 127 S.Ct. 1397, 167 L.Ed.2d at 209 (citing United States ex rel. Merena v. SmithKline Beecham Corp., 205 F.3d 97 (3d Cir.2000) (Alito, J.); Hays v. Hoffman, 325 F.3d 982, 990 (8th Cir.2003); Wang ex rel. United States v. FMC Corp., 975 F.2d 1412, 1415-1416 (9th Cir.1992)). While Rockwell does not deal directly with the first prong of the statutory analysis, i.e., whether a suit is based on a public disclosure, it does provide some guidance in conducting that inquiry. First, it emphasizes that the separate claims in a case must be analyzed distinctly, such that it is possible for one to be publicly disclosed while another is not. Second, Rockwell reiterates that the public disclosure/original source bar is a matter of subject matter jurisdiction. This lends credence to those courts which have read the public disclosure prong broadly, as a quick trigger, and the original source prong searchingly, because this mode of analysis construes the jurisdiction under the statute narrowly, and jurisdictional provisions are to be construed narrowly. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). D. Analysis The original Complaint only alleged wrongdoing at IPH. Our jurisdictional inquiry focuses on the “Phase II” allegations, added in paragraphs 36 and 37 of the Amended Complaint. These are “new allegations regarding a fundamentally different fraudulent scheme,” and thus “require reevaluation of the court’s jurisdiction.” Rockwell, 127 S.Ct. 1397, 167 L.Ed.2d at 206. As Rockwell makes clear, the new, distinct claims that relator seeks to add by amendment must satisfy the jurisdictional requirements as if they had been brought as a stand-alone suit. Therefore, the Court must satisfy itself that the allegations added to the Complaint via amendment were not based on a public disclosure, or that if they were, that relator qualifies for the original source exception as to those claims. “The federal courts are courts of limited jurisdiction, having only those powers assigned to them by Congress or directly by the Constitution.” Daniels v. Union Pacific RR Co., 480 F.Supp.2d 191, 194 (D.D.C.2007) (citing Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). On a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, where the Court’s power to hear a claim is at issue, the plaintiff bears the burden of establishing that the court has subject-matter jurisdiction, the Court “must give the plaintiffs factual allegations closer scrutiny” than they would receive on a 12(b)(6) motion for failure to state a claim, and the Court may look to matters outside the pleadings. Flynn v. Veazey Const. Corp., 310 F.Supp.2d 186, 189-190 (D.D.C.2004) (Urbina, J.) (collecting cases on legal standard for 12(b)(1) motion to dismiss). In a case such as this, where there has been discovery, the plaintiff must establish subject matter jurisdiction by a preponderance of the evidence, typically either at a pretrial hearing or at trial itself, and the court may resolve disputed evidence. See, e.g., Erby v. United States, 424 F.Supp.2d 180, 182-83 (D.D.C.2006) (Friedman, J.); Volkswagenwerk Aktiengesellschaft v. Beech Aircraft Corp., 751 F.2d 117, 120 (2d Cir.1984). As developed more fully below, the question of subject matter jurisdiction is capable of resolution at this time based on the record before the Court. 1. Public Disclosure “The public disclosure prong of § 3730(e) has two discrete criteria: there must be a ‘public disclosure of allegations or transactions;’ and the qui tarn suit must be ‘based upon the public disclosure.’ ” United States ex rel. Schwedt v. Planning Research Corp., Inc., 39 F.Supp.2d 28, 31 (D.D.C.1999) (Oberdorfer, J.). These inquiries seek to serve the FCA’s “two basic goals: 1) to encourage private citizens with first-hand knowledge to expose fraud; and 2) to avoid civil actions by opportunists attempting to capitalize on public information without seriously contributing to the disclosure of the fraud.” United States ex rel. Precision Co. v. Koch Indus., 971 F.2d 548, 552 (10th Cir.1992) (citing United States ex rel. Stinson, Lyons, Gerlin & Bustamante, P.A. v. Prudential Ins. Co., 944 F.2d 1149, 1154 (3d Cir.1991)). Because the new claims added by the Amended Complaint must be able to stand on their own, a public disclosure has the potential to bar relator’s claims as long as it occurred before relator amended her complaint; the disclosure need not pre-date the original complaint. a. Requirement of Public Disclosure First the Court must assess whether there has been a public disclosure at all of the sort contemplated by the statute. The statute recognizes “public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media.” 31 U.S.C. § 3730(e)(4)(A). Courts have construed the definition of “public disclosure” somewhat broadly, such that it is sufficient that “the general practice has already been publicly disclosed.” United States ex rel. Settlemire v. District of Columbia, 198 F.3d 913, 919 (D.C.Cir.1999). See also Mem. Op. & Order [39 in Docket 99-3311] (Apr. 23, 2004) at 4 (“The level of public disclosure necessary to trigger the bar is relatively low, may be general in nature, and a realtor’s ability to provide more specific information than that relayed by the public disclosure is irrelevant.”) (citing Findley at 687); Schwedt, 39 F.Supp.2d at 33) (citing Findley, 105 F.3d at 688)). i. Prior Qui Tam Actions Defendants argue that two prior qui tarn cases, filed under seal in the District of Columbia District Court, disclosed the general scheme at issue here. See United States of America ex rel. Alderson v. Columbia/HCA Healthcare Corp., Civil Action No. 99-3290 (D.D.C.); United States ex rel. Schilling v. Columbia/HCA Healthcare Corp., Civil Action No. 99-3289 (D.D.C.). These complaints were not unsealed until after the complaint in this case was amended. It has been established that a “civil hearing” encompasses pleadings and other materials filed in civil litigation, and not just live “hearings” in open court, so long as the paper matter is not subject to a protective order. See, e.g., Springfield Terminal, 14 F.3d at 652 (holding that “discovery material, when filed with the court (and not subject to protective order) is ‘publicly disclosed’ in a ‘civil hearing’ ” for FCA purposes); United States ex rel. Kreindler & Kreindler v. United Technologies Corp., 985 F.2d 1148, 1158 (2d Cir.1993); Grayson v. Advanced Management Technology, Inc., 221 F.3d 580, 582 (4th Cir.2000) (finding public disclosure where administrative agency “filing was not under seal and the document was available upon request”); Stinson, 944 F.2d 1149, 1155; Findley at 686. All of this authority suggests that documents whose disclosure is restricted by a court — such as a sealed qui tarn complaint, which has yet to even be served on the defendant — do not qualify as public disclosures. Defendants have not identified any case that clearly stands for the opposite position. Allowing a sealed qui tarn complaint to act as a jurisdictional bar is not only coun-terintuitive — a sealed document is defini-tionally not public and thus a poor candidate as a “public disclosure” — but also does not serve the purposes aimed at by this provision of the FCA. The public disclosure/original source dichotomy seeks to encourage relators to come forward with useful information, but to disallow parasitic suits where the relator has done little more than record in a lawsuit what can be heard in the public domain. But where a complaint is sealed, a relator cannot know what allegations are contained therein, or that her services in exposing a fraud are not needed. The Court holds that a sealed qui tam complaint, of which a relator has no knowledge, is not a public disclosure for purposes of § 37370(e)(4). ii. Newspaper articles The other alleged public disclosure is a New York Times article that appeared in December of 1997, after the original complaint was filed but six months before it was amended to broaden the allegations beyond IPH. See Kurt Eichenwald, “Health Care’s Giant: Artful Accounting— A special report; Hospital Chain Cheated U.S. On Expenses, Documents Show,” New York Times (Dec. 18, 1997) at Al. The article, which purports to be based on a nearly two-year investigation by the Times of a substantial number of Columbia facilities, and which relies on a review of thousands of documents, describes a system of fraud, suggests that it is pandemic across the Columbia system, and gives a handful of examples of specific facilities in Tennessee and other states, and techniques used to perpetrate the fraud. The report is clearly the type of “public disclosure ... from the news media” that the statute has in mind. § 3730(e)(4)(A). It also predates the amendment of the complaint, so the operative paragraphs of the Amended Complaint could be “based upon” this public disclosure. The question then is whether relator’s lawsuit is indeed “based upon” the allegations or transactions in the article. b. “Based upon ... allegations or transactions” The FCA provides that “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). As the D.C. Circuit has noted, “Congress did not prescribe by mathematical formulae the quantum or centrality of nonpublic information that must be in the hands of the qui tam relator in order for suits to proceed. When, as here, some information relied upon by the qui tam plaintiff is undeniably in the public domain, the task of ensuring that qui tam suits are limited to those in which the relator has contributed significant independent information can prove tricky.” Springfield Terminal, 14 F.3d at 653. The courts of this Circuit have navigated that tricky landscape by holding that a relator’s lawsuit is “based upon” a public disclosure if it is “supported by” or is “substantially similar” to the allegations or transactions contained in the disclosure; it does not need to actually be “derived from” the public disclosure. Findley, 105 F.3d at 682; see also Schwedt, 39 F.Supp.2d at 34. The reason for this broad interpretation of the jurisdictional bar is to strike a balance between providing incentives for qui tam suits while shutting out “civil actions brought by opportunists who do not contribute anything significant to the exposure of the fraud.” Findley at 682. Case law in the D.C. Circuit is in line with the Tenth Circuit’s observation that “the threshold ‘based upon’ analysis is intended to be a quick trigger for the more exacting original source analysis.” United States ex rel. Precision Co. v. Koch Indus., 971 F.2d 548, 552 (10th Cir.1992). A subsequent lawsuit is “based upon” a prior public disclosure if “the general practice has already been publicly disclosed.” United States ex rel. Settlemire v. District of Columbia, 198 F.3d 913, 919 (D.C.Cir.1999). “Allegation,” as used here, “connotes a conclusory statement implying the existence of provable supporting facts.” Springfield Terminal at 653-54. “Transaction,” on the other hand, “suggests an exchange between two parties or things that reciprocally affect or influence one another.” Id. at 654. The D.C. Circuit has illustrated the meaning of this phrase by way of a formula: [I]f X + Y = Z, Z represents the allegation of fraud and X and Y represent its essential elements. In order to disclose the fraudulent transaction publicly, the combination of X and Y must be revealed, from which readers or listeners may infer Z, i.e., the conclusion that fraud has been committed. The language employed in § 3730(e)(4)(A) suggests that Congress sought to prohibit qui tam actions only when either the allegation of fraud or the critical elements of the fraudulent transaction themselves were in the public domain---- [W]hen X by itself is in the public domain, and its presence is essential but not sufficient to suggest fraud, the public fisc only suffers when the whistleblower’s suit is banned. When X and Y surface publicly, or when Z is broadcast, however, there is little need for qui tam actions, which would tend to be suits that the government presumably has chosen not to pursue or which might decrease the government’s recovery in suits it has chosen to pursue.... [QJuitam actions are barred only when enough information exists in the public domain to expose the fraudulent transaction (the combination of X and Y), or the allegation of fraud (Z). When either of these conditions is satisfied, the government itself presumably can bring an action under the FCA and there is no place in the enforcement scheme for qui tam suits. Springfield Terminal at 654. The Court looks first to what is alleged for the first time in the Amended Complaint, and then to the public disclosure, to determine if the former is “supported by” or “substantially similar” to the latter. Paragraphs 36 and 37 of the Amended Complaint allege that Columbia held one or more meetings at which Indian Path CFO Jim Matney and “certain other officials” of Columbia facilities that had gerop-sych units were instructed in and “told to use techniques that would inflate the TEFRA charges in their respective Gerop-sych units.” 1AC ¶ 36. The Amended Complaint alleges that other, unspecified Columbia geropsych units used the same techniques as the Indian Path unit for defrauding Medicare, and “perhaps others.” Id. ¶ 37. The difference between the complaint as originally filed and as amended boils down to two points that were added via amendment: (1) that some of, or perhaps all of, the things alleged in the rest of the complaint happened at other, unspecified Columbia facilities; and (2) that Matney attended a meeting with officials of other Columbia facilities at which TEFRA-inflation techniques were discussed. Turning to the public disclosure, the New York Times article, it alleged that certain specific Columbia facilities had engaged in certain specific techniques for defrauding Medicare. The article also alleged that many other facilities, not named therein, had engaged in similar fraudulent practices. Likewise, the article described a number of other fraudulent techniques without tying them to specific facilities. The article made clear that it was based on a Times investigation spanning almost two years and involving the review of thousands of pages of Columbia documents. The Times article is a public disclosure of the allegation of fraud across the Columbia system, as well as of certain fraudulent transactions that support that general allegation. In the lexicon of Springfield Terminal, the article disclosed one big “Z” and a laundry list of “Xs” and “Ys,” the “essential elements” of fraud, and suggested that many more details of fraudulent transactions were supported by the volumes of information uncovered in the investigation. A number of the fraudulent devices cited by the Times are similar to ploys allegedly used at Indian Path, such as billing supplies to certain cost centers where they were not actually used, and the improper use of contract employees. The Court holds that relator’s “Phase II” claims, the causes of action asserted by paragraphs 36 and 37 of the Amended Complaint, are “based upon” a prior “public disclosure” for purposes of the False Claims Act. The new allegations are based upon the Times disclosure of the “allegation” that Medicare fraud occurred across the HCA system, not just at IPH. The public disclosure bar kicks in where “the general practice has already been publicly disclosed.” United States ex rel. Settlemire v. District of Columbia, 198 F.3d 913, 919 (D.C.Cir.1999). Stripped to their essence, the two new paragraphs in the Amended Complaint merely state that, on information and belief, something like what happened at IPH happened elsewhere in the HCA system, and that, on information and belief, HCA held at least one meeting for officials at hospitals with GP units, where instruction was given on techniques for inflating TEFRA rates. This is highly similar to United States ex rel. Hampton v. Columbia/HCA Healthcare Corp., 318 F.3d 214 (D.C.Cir.2003), which applied the FCA’s first-to-file rule, with its identical “based upon” analysis. Under Hampton, a suit is “based upon” earlier allegations where the “same material elements” are at issue, and there need not be an identity of facts. Id. at 218. A relator’s suit is “based upon” prior allegations where it consists of “merely variations on the fraud [that a prior] complaint described.” Id. There, as here, the relator took a broad allegation of fraud and simply narrowed it. But since the whole cat was out of the bag, it did relator no good to focus on a smaller part of it. Also on point is Wang v. FMC Carp., 975 F.2d 1412, 1417 (9th Cir.1992), a public disclosure case where the relator’s complaint was merely “a rehash of what already has been publicly disclosed” and simply “repeats what the public already knows,” while adding only slight details to the same general allegation that had been publicly disclosed; in that case, “that serious problems existed with the Bradley [fighting vehicle]’s transmission.” See also id. at 1418 (“Qui tarn suits are meant to encourage insiders privy to a fraud on the