Margaret Jallali v. Sun Healthcare Group

Case: 15-14231 Date Filed: 07/01/2016 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-14231
Non-Argument Calendar
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D.C. Docket No. 0:12-cv-61011-KMW
MARGARET JALLALI,
Relator,
Plaintiff - Appellant,
versus
SUN HEALTHCARE GROUP,
SUNDANCE REHABILITATION AGENCY, INC.,
SUNDANCE REHABILITATION CORPORATION,
DOES 1-500,
Defendants - Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 1, 2016)
Case: 15-14231 Date Filed: 07/01/2016 Page: 2 of 4
Before HULL, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
Plaintiff Margaret Jallali, proceeding as qui tam relator on behalf of the
Unites States, appeals the district court’s order dismissing with prejudice her First
Amended Complaint, which sought relief under the False Claims Act, 31 U.S.C.
§§ 3729, et. seq (FCA) and several common law theories. Jallali contends the
district court erred in concluding that the complaint fails to allege with sufficient
particularity that the Defendants in fact presented the Government with a false
claim for payment. 1 After review,2 we affirm.
Under binding precedent,3 each element of an FCA claim must meet the
pleading standard of Rule 9(b), Federal Rules of Civil Procedure. United States ex
rel. Clausen v. Lab. Corp. of Am., Inc., 290 F.3d 1301, 1309 (11th Cir. 2002).
Thus, “a plaintiff must plead facts as to time, place, and substance of the
1
By failing to identify any error regarding the district court’s dismissal of her common
law claims, Jallali has waived her challenge to the dismissal of Counts V–VII. See Jones v.
Sec’y, Dept. of Corr., 607 F.3d 1346, 1353–54 (11th Cir. 2010). We therefore summarily affirm
the district court’s order as to these counts.
2
We review de novo a district court’s dismissal for failure to state a claim upon which
relief can be granted. Corsello v. Lincare, Inc., 428 F.3d 1008, 1012 (11th Cir. 2005). We must
accept as true all allegations of fact in the complaint. Id.
3
We are unpersuaded by any suggestion that an unpublished opinion of this Court in any
way alters the law as stated in a prior, published opinion of this Court. See U.S. ex rel. Atkins v.
McInteer, 470 F.3d 1350, 1358 n.15 (11th Cir. 2006) (noting that an unpublished opinion is not
binding precedent and cannot supersede a published opinion from a prior panel). Where, as here,
we have binding precedent specifically addressing the legal issue, we seek no guidance from
unpublished opinions.
2
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defendant’s alleged fraud.” Id. at 1310 (quotation marks omitted); see also
Corsello, 428 F.3d at 1014 (affirming the district court’s dismissal where the
plaintiff “failed to allege the ‘who,’ ‘what,’ ‘where,’ ‘when,’ and ‘how’ of
fraudulent submissions to the government”). We disregard conclusory statements
regarding a defendant’s alleged fraudulent submissions to the Government and
require a “factual basis for [the] conclusory statement.” Clausen, 290 F.3d at
1312. Stated another way, “if Rule 9(b) is to be adhered to, some indicia of
reliability must be given in the complaint to support the allegation of an actual
false claim for payment being made to the Government.” Id. at 1311 (emphasis in
original); see also Corsello, 428 F.3d at 1013 (“Because it is the submission of a
fraudulent claim that gives rise to liability under the False Claims Act, that
submission must be pleaded with particularity and not inferred from the
circumstances.”).
In the complaint, Jallali alleges personal knowledge of patients who were
billed for services not rendered. Jallali also generally alleges personal knowledge
of the Defendants’ “billing fraud.” But the closest thing in the complaint to a
specific allegation that the Defendants in fact presented the Government with a
false claim for payment is Jallali’s allegation that she “had a reliable indication that
claims were fraudulently submitted to Medicare for payments by Defendant
because [Jallali] was privy to the internal billing practices [of] Defendant as the
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Director of Rehab and Therapy Department for Defendant.” A “reliable
indication” based on a plaintiff’s access to a defendant’s “billing practices” is far
too vague to meet the requirements of Rule 9(b). See Corsello, 428 F.3d at 1013
(“Although we construe all facts in favor of the plaintiff when reviewing a motion
to dismiss, we decline to make inferences about the submission of fraudulent
claims because such an assumption would strip all meaning from Rule 9(b)’s
requirements of specificity.” (quotation marks omitted)). Jallali fails to allege the
“who, what, where, when, and how” of any specific false claim for payment and
fails to allege that her general conclusion that the Defendants submitted to the
Government false claims for payment is supported by anything other than
conjecture or inference.
As in Clausen, Jallali provides voluminous documents and allegations
regarding improper internal practices. Also as in Clausen, “nowhere in the blur of
facts and documents . . . can one find any allegation, stated with particularity, of a
false claim actually being submitted to the Government.” Id. at 1312. Absent an
allegation, stated with particularity, that the Defendants presented a false claim for
payment to the Government, Jallali has failed to state claim for relief under the
FCA. Accordingly, the district court did not err in dismissing Counts I–IV of
Jallali’s First Amended Complaint.
AFFIRMED.
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