Come Join the Party: SCOTUS Invites Solicitor General to Weigh In on Rule 9(b) Debate

On May 16, 2022, the Supreme Court of the United States—for the second time this year—invited the solicitor general (SG) to weigh in on the cert-worthiness and substance of the FCA Rule 9(b) fracas.

The Court extended Monday’s invitation in U.S. ex rel. Owsley v. Fazzi Associates, Inc. Owsley concerns the dismissal of a relator’s complaint for failure to plead fraud with particularity—in this case, that her employer had used fraudulent data from Fazzi Associates to submit false claims to the government. The Sixth Circuit affirmed dismissal. The Court’s invitation consisted of concise language typical of requests of this kind: “The solicitor general is invited to file [a brief] expressing the views of the United States.” In January, the Court extended the same invitation in U.S. ex rel. Johnson v. Bethany Hospice, a case in which the Eleventh Circuit affirmed the dismissal of a relator’s suit for failure to plead with particularity that the defendant submitted false claims as a result of illegal payments for patient referrals. 

FCA practitioners would welcome clarity from the Court on the level of detail an FCA plaintiff must plead to survive a motion to dismiss under Federal Rule of Civil Procedure 9(b). The current state of play is that some circuit courts (including the Sixth and Eleventh) generally require that a relator plead details of specific false claims to pass muster under Rule 9(b), while the majority of circuit courts do not require details of actual false claims at the pleading stage — but do demand that the complaint contain enough detail to lead to a sufficiently strong inference that false claims were actually submitted to the government.

As a practical matter, what does the Court’s Call for the Views of the Solicitor General (CVSG) mean?

First, despite being styled as an invitation, the SG’s only real choice is to RSVP “yes”: by tradition, CVSGs are command performances. Although there is no formal deadline, invited amicus briefs are usually timed to coincide with the Court’s annual term, which runs from the first Monday in October until the following June. That means the government commonly files such invited briefs by December (in time for granted cases to be argued during that Supreme Court term) or by May (so the Court can decide whether to grant before the summer recess begins). Because the SG has already had several months to consider the Rule 9(b) issue in light of the Johnson CVSG, it seems likely that the government will file its response by this winter, in time for the case to be argued and decided by June 2023.

There is a third pending cert. petition that also tees up the question of the contours of Rule 9(b) in FCA cases—Molina Healthcare of Illinois, Inc. v. U.S. ex rel. Prose, out of the Seventh Circuit. The Court might also issue a CVSG in Molina when it considers the case for the first time, which is currently scheduled for its June 2 conference. Even if it doesn’t, there’s a good chance that the SG’s brief in Owsley/Johnson would discuss the comparative merits of Molina to resolve the 9(b) issue. When the Court CVSGs in related cases, the SG commonly submits a single joint brief for all cases in the group, and frequently addresses other related cases that are in the pipeline.

Second, the parties and others will have an opportunity to present their views to the SG orally and in writing before it formulates its position. By long tradition, the SG’s filing will address not only the cert-worthiness of the issue but the merits of the various legal issues and so will articulate DOJ’s position on the appropriate Rule 9(b) standard in FCA cases. DOJ seems likely to endorse a standard that is more hospitable to relators, consistent with its past practice and the government’s interest in increasing FCA recoveries.

Finally and most significantly, this week’s invitation, following the invitation in January, means that cert. is very likely to be granted in at least one of the Rule 9(b) cases. A CVSG means that at least four justices were interested enough to ask the SG to weigh in—the same number of votes it takes for the Court to grant review.¹ And statistical analyses of the Court’s orders reflect that the cert. grant rate is between forty and fifty times higher following a CVSG. Indeed, the odds of a grant remain much higher even if the SG recommends the Court deny review.² That said, the statistics also show that, once cert. is granted, the Court’s decision on the merits is not highly correlated with the SG’s merits position in her brief. ³ So, although the SG’s position on Rule 9(b) pleading rules may be easier to predict, the Court’s final decision is less so.

We at Qui Notes will continue to monitor the Court’s activity, and look out for any SG briefing, on this important issue and update our readers.

© Arnold & Porter Kaye Scholer LLP 2022 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.