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United States ex rel. Chorches v. Am. Med. Response, Inc.

United States ex rel. Chorches v. Am. Med. Response, Inc.

United States Court of Appeals for the Second Circuit

February 27, 2017, Argued; July 27, 2017, Decided

Docket No. 15-3930

Opinion

 [*75]  Gerard E. Lynch, Circuit Judge:

Plaintiffs-appellants brought this action under the False Claims Act ("FCA"), 31 U.S.C. § 3729 et seq., against defendant-appellee American Medical Response, Inc. ("AMR"), alleging (1) in a qui tam claim, that AMR made false statements and submitted false claims to the government for reimbursement under the Medicare and Medicaid programs, and (2) in an individual claim, that AMR retaliated against plaintiff-appellant Paul Fabula for his refusal to falsify a document. The qui tam claim is asserted by bankruptcy trustee Ronald I. Chorches for and on behalf of the United States of America and for the benefit of Fabula's bankruptcy estate. The retaliation claim is asserted by Fabula individually.

The United States District Court for the District of Connecticut (Michael P. Shea, Judge) dismissed both claims: the first on the ground that Chorches failed to allege with the specificity required by Federal Rule of Civil Procedure 9(b) that AMR submitted false claims to the government, and the second on the ground that Fabula's refusal to falsify a document to effectuate AMR's alleged scheme [**3]  to submit false claims did not constitute protected activity under the FCA's anti-retaliation provision. After deciding, as preliminary matters, that the district court had jurisdiction over Chorches's qui tam claim and that Fabula did not abandon his retaliation claim, we conclude (1) that Chorches has pled the submission of false claims with sufficient particularity under Rule 9(b), as applied in the qui tam context; and (2) that Fabula's refusal to falsify a patient report, under the circumstances of this case, qualifies as protected activity. Accordingly, we VACATE the judgment of the district court, and REMAND for further proceedings consistent with this opinion.

BACKGROUND

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865 F.3d 71 *; 2017 U.S. App. LEXIS 13585 **; 42 I.E.R. Cas. (BNA) 150; 98 Fed. R. Serv. 3d (Callaghan) 376; 2017 WL 3180616

UNITED STATES OF AMERICA, EX REL. RONALD I. CHORCHES AS TRUSTEE FOR THE BANKRUPTCY ESTATE OF PAUL FABULA, and PAUL FABULA, Plaintiffs-Appellants, — v. — AMERICAN MEDICAL RESPONSE, INC., Defendant-Appellee.1

Subsequent History: Motion granted by United States ex rel. Chorches v. Am. Med. Response, Inc., 2018 U.S. Dist. LEXIS 522 (D. Conn., Jan. 3, 2018)

Prior History: Plaintiffs-appellants brought this action under the False Claims Act, 31 U.S.C. § 3729 et seq. [**1] , against defendant-appellee American Medical Response, Inc. ("AMR"), alleging (1) in a qui tam claim, that AMR made false statements and submitted false claims to the government for reimbursement under the Medicare and Medicaid programs, and (2) in an individual claim, that AMR retaliated against plaintiff-appellant Paul Fabula for his refusal to falsify a document. The United States District Court for the District of Connecticut (Michael P. Shea, Judge) dismissed both claims. For the reasons that follow, the judgment of the district court is VACATED and the case is REMANDED for further proceedings consistent with this opinion.

United States ex rel. Chorches v. Am. Med. Response, Inc., 2015 U.S. Dist. LEXIS 151272 (D. Conn., Nov. 6, 2015)

CORE TERMS

false claim, qui tam, allegations, district court, falsify, reimbursement, billing, patient, retaliation claim, details, transported, ambulance, medically necessary, public disclosure, paramedics, Circuits, pled, strong inference, circumstances, particularity, revise, invoices, marks, protected activity, quotation, purposes, records, fraudulent scheme, qualify, bankrupt estate

Civil Procedure, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Appeals, Standards of Review, De Novo Review, Pleadings, Complaints, Requirements for Complaint, Appellate Jurisdiction, Governments, Federal Government, Claims By & Against, Labor & Employment Law, False Claims Act, Scope & Definitions, Jurisdictional Bar, Reviewability of Lower Court Decisions, Preservation for Review, Jurisdiction, Subject Matter Jurisdiction, Jurisdiction Over Actions, Employer Liability, Scope & Definitions, Heightened Pleading Requirements, Fraud Claims, Standards of Review, Qui Tam Actions, Dismissal, Involuntary Dismissals, Appellate Review, Business & Corporate Compliance, Protected Activities, Retaliation, Statutory Application, False Claims Act, Elements, Adverse Employment Actions, Discrimination, Burdens of Proof, Causation