The FRCP Rule 9(b) Standard In False Claims Act Cases

In general terms, the FCA imposes liability on persons who knowingly submit false claims to defraud federal government programs. In addition to allowing the United States to pursue perpetrators of fraud on its own, the FCA allows private citizens to file suits on behalf of the government (called "qui tam" suits) against those who have defrauded the government. Because these are fraud claims, they are subject to the heightened pleading requirement of Federal Rule of Civil Procedure 9(b), which states that, "[i]n alleging fraud …, a party must state with particularity the circumstances constituting fraud."

In recent years, federal circuit courts of appeals have set forth somewhat different standards that civil FCA complaints brought by private citizens, known as relators, must meet to satisfy Rule 9(b) — especially regarding whether representative examples of allegedly fraudulent claims must be included in a complaint. Although the practical impact of the disagreement among the circuits is of some dispute, the U.S. Supreme Court is currently considering whether to grant certiorari in a case where the petitioners, claiming a clear circuit conflict over what Rule 9(b) requires in FCA cases, presented the issue as, "[w]hether Rule 9(b) requires plaintiffs in [FCA] cases who plead a fraudulent scheme with particularity to also plead specific details of false claims." In opposition to the petition, the respondent asserted that the petitioners' had "vastly" overstated the alleged split in authority. Johnson v. Bethany Hospice and Palliative Care, No. 21-462 (S.Ct.). On January 18, the court invited the Solicitor General to file a brief expressing the government's views.