Roger Lewis is quoted in the article, "FCA Split Has High Court Momentum Despite DOJ's Critique," published in the May 31, 2022, edition of Law360.
The article concerns the probability that the U.S. Supreme Court will agree to assess whether False Claims Act whistleblowers must pinpoint potentially fraudulent billing because a new filing from the U.S. Department of Justice fails to debunk the consensus view of a serious circuit split.
The DOJ submitted its filing from U.S. Solicitor General Elizabeth B. Prelogar in response to one of two high court invitations on a major FCA issue. Its amicus brief insisted that circuit courts have "largely converged" on a "fact-driven and flexible" approach to the legal requirement that FCA whistleblowers "state with particularity the circumstances constituting fraud."
That depiction contrasted sharply with the portrayals offered by a diverse set of litigants — including whistleblowers and corporate lobbying groups — in three pending cases that are asking the justices whether FCA complaints must immediately identify specific billing claims allegedly tainted by fraud. Although the government's appraisal likely carries considerable weight at the high court, it might not be enough to tip the scales against a barrage of briefs describing a clear-cut and intractable circuit split.
Three pending petitions involving Medicare or Medicaid reimbursement are giving the Supreme Court an opportunity to address what's required under Rule 9(b) of the Federal Rules of Civil Procedure, frequently a central issue in motions to dismiss FCA cases. Disputes over the rule's demands have long been a major FCA topic, and the Supreme Court has expressed interest on multiple occasions, only to turn away cases after the DOJ in 2010 and 2014 contended that review would be premature.
Requiring whistleblowers to connect descriptions of billing shenanigans with concrete examples of billing claims can stop FCA cases in their tracks. To the extent a circuit split exists, that means identical allegations succeed in some courts but fail in others. The DOJ's downplaying of any split probably indicates that it doesn't think many meritorious cases are being torpedoed by strict interpretations of Rule 9(b).
"The government is likely satisfied overall with the status quo on this issue in the circuit courts," Goldberg Kohn principal Roger Lewis told Law360.
It's not clear how soon the justices will announce whether they'll accept one or more of the pending petitions. But by seeking the DOJ's views in two pending cases, and by doing so on a topic where they previously sought the DOJ's perspective on two other occasions, the justices could be signaling that they're serious about finally scrutinizing the split, real or imagined.
"It would not be surprising if the court's patience has worn thin after years of circuit decisions that, on first blush, might appear to be difficult to reconcile," Lewis said. "But the government has made an articulate, thoughtful case that the split is exaggerated, if not nonexistent."
The cases are Johnson et al. v. Bethany Hospice and Palliative Care LLC, case number 21-462, Molina Healthcare of Illinois Inc. et al. v. Thomas Prose, case number 21-1145, and U.S. ex rel. Owsley v. Fazzi Associates Inc. et al., case number 21-936, all before the Supreme Court of the United States.