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Daniel Kirk served with the U.S. Army in Vietnam from 1969 to 1971. Beginning in 1978, he worked at Millar Elevator Industries, which was later absorbed by Schindler Elevator in 2002. Although he had been promoted within the company on past occasions, in 2003, he was demoted from a managerial position to a non-managerial slot. He then resigned. Kirk filed a complaint with the Department of Labor in 2004 claiming his demotion was in violation of the Vietnam Era Veterans Readjustment Assistance Act. After his claim was denied by the department, he filed suit in the Southern District of New York in 2005 under the False Claims Act. Kirk claimed the company was shirking its obligation to take affirmative steps to employ and promote veterans, invite eligible veterans to identify themselves to employers and file annual reports detailing the hiring and placement of veterans.

Using documentation supplied by FOIA requests submitted by his wife and his own knowledge of company operations, he claimed the company failed to file reports from 1998 until late 2004 and filed false reports in 2004, 2005 and 2006, alleging that each claim for payment on the hundreds of government contracts submitted by Schindler was a violation of the False Claims Act.

The U.S. District Court for the Southern District of New York dismissed the complaint in March 2009 for failure to state a claim upon which relief can be granted and for lack of subject matter jurisdiction. In April 2010, the U.S. Court of Appeals for the Second Circuit vacated the lower court order and remanded the case for further proceedings.

May a whistleblower use information obtained through FOIA to allege violations of the federal False Claims Act by a government contractor?

No. The Supreme Court reversed the lower court order in a decision by Justice Clarence Thomas. A written response to a FOIA request for records is a report within the meaning of the False Claims Act's disclosure bar, according to the majority. Justice Ruth Bader Ginsburg authored a dissent, which was joined by Justices Stephen Breyer and Sonia Sotomayor. Ginsburg wrote that she would "affirm the Second Circuit's judgment as faithful to the text, context, purpose, and history of the FCA's public disclosure bar." Justice Elena Kagan took no part in consideration of the case.