Emily Roe v. Stanford Health Care ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 15 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EMILY ROE, Relator; et al., No. 20-55874
Plaintiff-Appellant, D.C. No.
2:17-cv-08726-DSF-AFM
and
UNITED STATES OF AMERICA; STATE MEMORANDUM*
OF CALIFORNIA,
Plaintiffs,
v.
STANFORD HEALTH CARE, FKA
Stanford Hospitals and Clinics; et al.,
Defendants-Appellees,
and
LOS ANGELES COUNTY DISTRICT
ATTORNEY'S OFFICE, Interested Party,
Defendant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted March 9, 2022**
Pasadena, California
Before: WARDLAW and HURWITZ, Circuit Judges, and MOLLOY,*** District
Judge.
Emily Roe brought this False Claims Act (“FCA”) action, alleging that
Stanford Health Care and others engaged in fraudulent Medicare billing. The district
court dismissed Roe’s seconded amended complaint with prejudice, relying on the
FCA’s public disclosure bar, and also ordered Roe to disclose her identity. After
Roe failed to do so, the district court held Roe and her counsel in contempt and
ordered that per diem sanctions would be imposed if they did not purge their
contempt by a stated date. We affirm in part and reverse in part.
1. A FCA suit by a private party will not lie “if substantially the same
allegations or transactions as alleged in the action or claim were publicly disclosed
. . . unless the action is brought by the Attorney General or the person bringing the
action is an original source of the information.” 31 U.S.C. § 3730(e)(4)(A). The
second amended complaint is almost entirely premised on publicly disclosed
Medicare data Roe obtained through Freedom of Information Act requests. See
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
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Schindler Elevator Corp. v. U.S. ex rel. Kirk, 563 U.S. 401, 404 (2011). The other
information Roe identifies in arguing that her action does not rest on the Medicare
data is either irrelevant or already revealed in the data.
2. Roe’s operative complaint is not saved by the FCA’s original source
exception, which allows private suits by someone with “knowledge that is
independent of and materially adds to the publicly disclosed allegations or
transactions.” 31 U.S.C. § 3730(e)(4)(B). Neither Roe’s specialized expertise, see
A-1 Ambulance Serv., Inc. v. California, 202 F.3d 1238, 1245 (9th Cir. 2000), the
allegedly fraudulent billing to a private insurer she personally observed, see United
States v. Kitsap Physicians Serv., 314 F.3d 995, 1002–03 (9th Cir. 2002), nor the
other information she points to materially adds to the Medicare data.
3. On the same day, after it entered its order dismissing Roe’s second
amended complaint with prejudice, the district court entered a second order requiring
disclosure of her identity. In determining whether to allow anonymity, a court “must
balance five factors: (1) the severity of the threatened harm, (2) the reasonableness
of the anonymous party’s fears, (3) the anonymous party’s vulnerability to such
retaliation, (4) the prejudice to the opposing party, and (5) the public interest.” Doe
v. Kamehameha Sch./Bernice Pauahi Bishop Est., 596 F.3d 1036, 1042 (9th Cir.
2010) (cleaned up). Although discounting the severity of the first three factors, the
district court did not hold that they carried no weight; rather, it found them
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outweighed by the fourth and fifth factors. However, Stanford already knew Roe’s
identity and the public interest in litigation already dismissed at the Rule 12(b)(6)
stage is not as strong as that for ongoing litigation. We therefore reverse the
disclosure order and vacate the corresponding sanctions.
AFFIRMED in part, REVERSED in part. The parties shall bear their own
costs.1
1
Roe’s motion to take judicial notice, Dkt. 33, is granted as to the complaint in
United States ex rel. Gaines v. University Health Care Alliance and otherwise
denied. All remaining motions by both parties, Dkts. 40, 41, 66, are denied,
including the requests for sanctions on appeal and the motions to seal previously
granted subject to reconsideration by this panel, Dkts. 34, 41.
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