In US ex rel Polukoff v St Mark's Hospital(1) the Tenth Circuit reversed a district court's dismissal of qui tam claims, reasoning that the relator's allegations had satisfied Rule 9(b) of the Federal Rules of Civil Procedure. In so holding, the Tenth Circuit "excuse[d] deficiencies that result from the plaintiff's inability to obtain information within the defendant's exclusive control". Earlier in 2019, defendant Intermountain Health Care filed a petition for a writ of certiorari and the Supreme Court recently requested a response from the relator and the United States.
Intermountain's petition urged the Supreme Court to review two questions. First, Intermountain contended that the court's intervention is necessary to resolve a deep circuit split on whether Rule 9(b)'s particularity requirement can be relaxed where a defendant exclusively holds the information necessary to state a claim. Intermountain argued that, by relaxing the particularity requirement, the Tenth Circuit's opinion threatens to undermine the core purpose of the False Claims Act's qui tam provisions: "to incentivize insiders to expose fraud they have observed." "[A] relator who cannot particularly describe a fraud is no such insider". Intermountain's petition was supported by amici The American Hospital Association and Federation of American Hospitals, which argued that Rule 9(b)'s particularity requirement averts qui tam relators' costly "fishing expedition[s]" in the healthcare industry.
Second, Intermountain's petition urged the court to address whether the False Claim Act's qui tam provisions violate the appointments clause. This clause provides that only the president, courts of law and heads of departments have authority to appoint officers. Intermountain contended that:
the FCA's [False Claims Act] qui tam provisions violate the Appointments Clause because (1) relators are officers; or, alternatively, (2) the FCA impermissibly vests a core function of officers—civil law enforcement—in nonofficer relators.
The relator and the United States have requested that the Supreme Court reject Intermountain's cert petition. The relator's brief in opposition focused on the first question, which argued that Rule 9(b) expressly provides that knowledge "may be alleged generally".
According to the relator, the Tenth Circuit merely held that:
when missing details are within a defendant's sole possession, a complaint can survive Rule 9(b) without that information if it otherwise alleges enough to enable the defendant to prepare a defense.
The relator disputed that a clear split existed on this issue. According to the relator, every circuit has applied a flexible, case-by-case approach to Rule 9(b). The government took no position on the first issue but the relator relied on the government's invitation brief in another matter before the court, which took a similar position – that is, that relators need not plead the "details of particular false claims" and a contrary rule would "undermine the FCA's effectiveness as a tool to combat fraud".
In response to the Supreme Court's request to weigh in on Intermountain's cert petition, the United States addressed only the second question: whether the False Claim Act's qui tam provisions violate the appointments clause. The government argued that qui tam relators are not officers, nor do they discharge "core officer function[s]".
According to the government, the First Congress had enacted similar informer statutes and did not view qui tam relators as officers. In addition, the government argued that a qui tam relator lacks the practical indicia of an officer because the "role is limited in time and scope, confined to a particular case, and fundamentally personal in nature". Unlike federal officers, qui tam relators do not enforce public law; instead, a "qui tam relator is more aptly analogized... to a plaintiff who asserts a private right of action under a federal statute". The relator's brief in opposition largely deferred to the government's arguments on this point and agreed that the Supreme Court should decline to review the appointment clause issue.
Whether Intermountain's cert petition persuaded the court to weigh in on one (or both) of the questions presented, or whether the court will abstain (at least for now) is expected to come to light soon.(2)
Endnotes
(1) 895 F3d, 730 (10th Cir 2018).
(2) The parties' briefs can be found here.
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