Last week, we posted about the U.S. Supreme Court’s request for input from the Solicitor General on how False Claim Act complaints should be reviewed by courts.
Currently, the plaintiff-relators in two cases—U.S. ex rel. Owsley v. Fazzi Associates, Inc. and Johnson v. Bethany Hospice & Palliative Care, LLC—have submitted petitions for certiorari asking the Supreme Court to resolve what they see as a “long-standing circuit split” on the application of Rule 9(b) in False Claims Act cases.
In the Bethany Hospice case, which was the first to submit a petition, the plaintiff-relator argued that her complaint was dismissed under the Eleventh Circuit’s “rigid” application of Rule 9(b), which in most cases requires the specific details of at least one false claim that was actually submitted to the government, but that her complaint would have easily survived dismissal in many other circuits that only require “reliable indicia” that such claims were submitted.
In January, the Supreme Court asked the Solicitor General to provide the United States’ view on the purported circuit split. And, just last week, the high court again asked the Solicitor General to weigh in on the Fazzi Associates case, which raised similar arguments about Sixth Circuit’s application of Rule 9(b). These requests spurred speculation that the Court might take the issue up for review.
But, in its brief submitted this week, the Solicitor General says that there’s no need for the Court to step in, as the courts of appeals have largely converged on an either-or standard requiring that a relator either plead the details concerning a specific false claim presented to the government or identify some other reliable bases for concluding that such claims were submitted. The Solicitor General explained that no circuit court of appeals now applies a “per se rule requiring every FCA complaint to identify representative examples of specific false claims.” As such, in the United States’ view, any disagreement that previously existed has now “subsided.”
The justices may still choose to take the issues up, but this input from the Solicitor General may serve as the death knell for a potential Supreme Court decision on the application of Rule 9(b) in False Claims Act litigation.
To read more about the application of Federal Rule 9(b), check our prior posts on the topic. To follow along with other updates on the False Claims Act, please subscribe to the Inside the False Claims Act blog and check out our Healthcare Fraud & Abuse Resource Center, where you can access a searchable database of False Claims Act settlements from the last decade. If you have any questions about the False Claims Act, please contact a member of Bass, Berry & Sims’ Healthcare Fraud & Abuse Task Force.