Last week the en banc court rejected a petition in United States ex rel. Martin v. Hathaway, 63 F.4th 1043, 1054 (6th Cir. 2023), a False Claims Act case in which an ophthalmologist and a hospital had an informal agreement to refer patients to each other. Chief Judge Sutton’s opinion rejected the argument that the referral arrangement violated the False Claims Act, holding that the statute’s definition of “remuneration” requires “payments and other transfers of value” rather than just “any act that may be valuable to another.” The opinion also rejected the claim on the basis that the Act requires “but-for” causation, rejecting the Government’s position and that of the Third Circuit, which held that a plaintiff does not need to prove that referrals “actually caused” someone to choose a particular healthcare provider, but that a “link” between the referrals and choice was sufficient. See United States ex rel. Greenfield v. Medco Health Sols., Inc., 880 F.3d 89, 98 (3d Cir. 2018). Judge Mathis’ short concurrence noted that the court didn’t need to decide the “remuneration” issue because of its decision on causation.
This concurrence raises an interesting question about whether the causation or remuneration part of the opinion is dicta—both issues created new law in the circuit, but only one holding was necessary to decide the appeal. In Brawner v. Scott Cnty., Tennessee, 14 F.4th 585, 604 (6th Cir. 2021), Judge Readler’s concurrence notes that the resolution of an issue creates “at most, non-binding dicta” when it is unnecessary to the outcome. That makes good sense in cases like Brawner because when, as the concurrence explains, “a party can prevail under both a higher standard and a lower standard, “selecting one standard or the other would ‘not [be] necessary to the determination of the issue on appeal.’” Since neither issue in Martin was technically necessary to the decision, should both causation and remuneration issues be treated as dicta? Despite not-infrequent concurrences like those from Judge Mathis, gently chiding the majority for deciding issues unnecessarily, that’s not a winning argument for a litigant in most circumstances. As my colleague Ben Glassman rightly points out, the longstanding rule is “where a decision rests on two or more grounds, none can be relegated to the category of obiter dictum.” Woods v. Interstate Realty Co., 337 U.S. 535, 537 (1949).
The application of this rule gets murky when, as often happens, a panel notes that an issue might be unnecessary to decide but gives their opinion anyway to assist the parties on remand, to provide a much-needed clarification, or for other salutary reasons.