US Ex Rel. Marc Wichansky v. Zoel Holding Co. , 702 F. App'x 559 ( 2017 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUL 31 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MARC A. WICHANSKY, a natural No. 14-17528
person; United States of America, ex rel.,
D.C. No. 2:13-cv-01924-DGC
Plaintiff-Appellant,
v. MEMORANDUM*
ZOEL HOLDING COMPANY, INC., et
al,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted April 4, 2017
Pasadena, California
Before: WARDLAW and CALLAHAN, Circuit Judges, and KENDALL,**
District Judge.
Marc Wichansky (“Wichansky”) appeals the district court’s order granting
Defendants-Appellees’ (“Defendants”) motion to dismiss Wichansky’s False
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Virginia M. Kendall, United States District Judge for
the Northern District of Illinois, sitting by designation.
Claims Act (“FCA”) qui tam action. We have jurisdiction pursuant to 28 U.S.C.
§ 1291, and we reverse and remand.
Defendants moved to dismiss Wichansky’s complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6). Defendants argued that Wichansky’s FCA
action was barred by the public disclosure bar. Defendants asserted that
Wichansky’s allegations failed to establish that he was an original source, and
attached exhibits to demonstrate that the allegations in the complaint had been
disclosed through the first federal action and a news article. Wichansky responded
by arguing the merit of his allegations, and by attaching an exhibit. Without
further notice to the parties, the district court treated the motion as a factual attack
brought under Rule 12(b)(1), considered factual matters outside the pleadings, and
dismissed without leave to amend.
The district court correctly found that the applicable version of the FCA is
the version predating the 2010 amendments to the statute and that the public
disclosure bar is therefore jurisdictional. See Prather v. AT&T, Inc., 847 F.3d
2
1097, 1102–03 (9th Cir. 2017). Accordingly, the district court did not err in
addressing the motion under Rule 12(b)(1) rather than Rule 12(b)(6).1
“A Rule 12(b)(1) jurisdictional attack may be facial or factual. In a facial
attack, the challenger asserts that the allegations contained in a complaint are
insufficient on their face to invoke federal jurisdiction. By contrast, in a factual
attack, the challenger disputes the truth of the allegations that, by themselves,
would otherwise invoke federal jurisdiction.” Safe Air for Everyone v. Meyer,
373 F.3d 1035, 1039 (9th Cir. 2004) (citation omitted). The moving party may
“convert[] the motion to dismiss into a factual motion by presenting affidavits or
other evidence properly brought before the court . . . .” Savage v. Glendale Union
High Sch., Dist. No. 205, 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). And, as a
general matter, a district court deciding a factual attack on jurisdiction “need not
presume the truthfulness of the plaintiffs’ allegations” and may “look beyond the
complaint . . . without having to convert the motion into one for summary
judgment.” United States ex rel Meyer v. Horizon Health Corp., 565 F.3d 1195,
1
We note, however, that the district court proceeded to analyze whether
Wichansky qualifies as an original source by quoting and referring to the post-
amendment statutory language. On remand, the district court must apply the pre-
2010 amendments version of the statutory language.
3
1200 n.2 (9th Cir. 2009) (citation omitted), overruled on other grounds by United
States ex rel. Hartpence v. Kinetic Concepts, Inc., 792 F.3d 1121 (9th Cir. 2015).
But here, whether Defendants’ motion posed a facial or a factual attack was
ambiguous, and neither Defendants nor Wichansky appears to have contemplated
that the court would resolve this issue on an exclusively factual basis. The district
court thus erred in construing Defendants’ motion to dismiss as a factual, rather
than facial, attack under Rule 12(b)(1), and in relying on factual materials to
conclude that Wichansky “failed to meet his burden of showing by a
preponderance of the evidence that he is an original source as defined in the FCA.”
Making this determination on the basis of an ambiguous motion denied Wichansky
adequate notice and opportunity to bring forward factual matters pertinent to the
dispositive issue of whether he qualified as an “original source” under the FCA and
thus could avoid the public disclosure bar to FCA qui tam actions. See 31 U.S.C.
§ 3730(e) (2006).
REVERSED and REMANDED.
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