US Supreme Court Requests Solicitor General’s Views in FCA Rule 9(b) Context

On May 16, 2022, the US Supreme Court requested a brief from the US Solicitor General on the level particularly required by Federal Rule of Civil Procedure 9(b) in pleading False Claims Act (FCA) cases.

The Court made the request in Owsley v. Fazzi Associates, a case alleging Medicare Fraud. The US Court of Appeals for the Sixth Circuit ruled that the Plaintiff did not sufficiently identify specific claims submitted to the government under the alleged fraud scheme. If the Court grants certiorari, the Court would likely resolve a Circuit split on whether Federal Rule of Civil Procedure 9(b)’s requirement to plead fraud with particularity requires plaintiffs in False Claims Act (FCA) cases to plead specific examples of false claims.

The US Supreme Court made the same request of the US Solicitor General four months ago in Johnson v. Bethany Hospice, a whistleblower case on appeal from the US Court of Appeals for the Eleventh Circuit, and has not yet received the Solicitor General’s brief. Another case posing the same question of the pleading with particularity requirements of Rule 9(b) for plaintiffs in FCA, Molina Healthcare v. Prose, is before the US Supreme Court; Molina filed a reply brief in support of its petition for review shortly after the justices’ request to the Solicitor General on Monday.

Circuits are split in interpreting the requirements of Rule 9(b) in the FCA context—some courts...

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