Tuesday, July 07, 2015

U.S. ex rel. Hartpence v. Kinetic Concepts (9th Cir. - July 7, 2015)


That's what an en banc court of the Ninth Circuit unanimously says today about a prior circuit precedent.

The prior case, Wang v. FMC Corp., held that a qui tam relator had to have played a role in a prior public disclosure of fraud before he could file a lawsuit under the False Claims Act.  But the Ninth Circuit now says that this decision was wrong.  Wrongly decided then.  Wrong rule now.  Overruled.

"We hold today that there are two, and only two, requirements in order for a whistleblower to be an 'original source' who may recover under the False Claims Act: (1) Before filing his action, the whistleblower must voluntarily inform the government of the facts which underlie the allegations of his complaint; and (2) he must have direct and independent knowledge of the allegations underlying his complaint. Abrogating our earlier precedent, we conclude that it does not matter whether he also played a role in the public disclosure of the allegations that are part of his suit."

The prior opinion was authored by Judge Poole, and joined by Judges Betty Fletcher and T.G. Nelson. Serendipitously, one of the members of the en banc panel is Judge William Fletcher.  So this is one of those rare occasions when a judge gets to tell everyone, for posterity, that his mother was wrong.

One other, tiny, error.  Judge Bea's en banc opinion says that "Wang has been the law of this circuit for 23 years."  Not quite.  It's actually 22 years, since Wang was decided in September of 1992.

But I'll go ahead and let the court round.  Good enough for government work.