United States Ex Rel. Welch v. My Left Foot Children's Therapy, LLC

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES and STATE OF No. 16-16070
NEVADA ex rel. MARY KAYE
WELCH; D.C. No.
Plaintiff-Appellee, 2:14-cv-01786-
MMD-GWF
v.
MY LEFT FOOT CHILDREN’S OPINION
THERAPY, LLC; ANN MARIE
GOTTLIEB; JONATHAN GOTTLIEB,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Argued and Submitted June 16, 2017
San Francisco, California
Filed September 11, 2017
Before: Mary M. Schroeder, D. Michael Fisher, *
and N. Randy Smith, Circuit Judges.
Opinion by Judge Fisher
*
The Honorable D. Michael Fisher, United States Circuit Judge for
the U.S. Court of Appeals for the Third Circuit, sitting by designation.
2 UNITED STATES EX REL. WELCH V. MLF
SUMMARY **
False Claims Act
The panel affirmed the district court’s denial of the
defendants’ motion to compel arbitration on the alternate
ground that relator Mary Kay Welch’s False Claims Act
claims did not fall within the scope of the arbitration
agreement with Welch’s former employer, defendant My
Left Foot Children’s Therapy, LLC.
Welch alleged that her former employer violated the
federal and Nevada False Claims Acts by presenting
fraudulent Medicaid claims. The United States and Nevada
declined to intervene in the case and her employer moved to
compel arbitration under the Federal Arbitration Act.
The panel held that this lawsuit was not arbitrable
because the plain text of Welch’s arbitration agreement that
she signed when she applied for employment with My Left
Foot did not encompass this False Claims Act case.
COUNSEL
Rex S. Heinke (argued) and Jessica M. Weisel, Akin Gump
Strauss Hauer & Feld LLP, Los Angeles, California; Shawn
Hanson and Kelli Ann Kiernan, Akin Gump Strauss Hauer
& Feld LLP, San Francisco, California; for Defendants-
Appellants.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES EX REL. WELCH V. MLF 3
Robert S. Oswald, David Scher, and Andrew M. Witko, The
Employment Law Group P.C., Washington, D.C., for
Plaintiff-Appellee.
Lindsey Powell (argued) and Michael S. Raab, Assistant
United States Attorneys, Appellate Staff; Civil Division,
United States Department of Justice, Washington, D.C.; for
Amicus Curiae United States.
Mark J. Kreuger (argued), Senior Deputy Attorney General;
Adam Paul Laxalt, Attorney General; Office of the Attorney
General, Carson City, Nevada; for Amicus Curiae State of
Nevada.
OPINION
FISHER, Circuit Judge:
Originally enacted in 1863, the False Claims Act (FCA)
establishes a scheme that permits either the Attorney
General, 31 U.S.C. § 3730(a), or a private party, § 3730(b),
to maintain a civil action against “any person” who
“knowingly presents, or causes to be presented, a false or
fraudulent claim for payment” to an employee of the United
States government. § 3729(a). When brought by a private
party, an “enforcement action under the FCA is called a qui
tam action, with the private party referred to as the relator.”
United States ex rel. Eisenstein v. City of New York, 556 U.S.
928, 932 (2009) (internal quotation marks omitted). And
when a relator initiates a FCA action, the United States has
60 days to review the complaint and decide whether it will
intervene in the case. § 3730(b)(2), (4).
4 UNITED STATES EX REL. WELCH V. MLF
When the government intervenes, it assumes “the
primary responsibility for prosecuting the action, and shall
not be bound by an act of the [relator].” § 3730(c)(1). When
it does not intervene, it is not a “party” to a FCA action for
the purposes of certain procedural rules. See Eisenstein,
556 U.S. at 931. Nonetheless, the United States maintains
some minimal involvement in all FCA actions. For example,
in every FCA case, it remains “a ‘real party in interest,’” id.
at 930, and retains specific statutory rights including rights
to “intervene at a later date upon a showing of good cause,”
§ 3730(c)(3), request service of pleadings and deposition
transcripts, § 3730(c)(3), and veto a relator’s decision to
voluntarily dismiss the action, § 3730(b)(1).
In this case, Mary Kaye Welch alleges that her former
employer violated the federal FCA and Nevada FCA by
presenting fraudulent Medicaid claims. The United States
and Nevada declined to intervene in the case and her
employer moved to compel arbitration under the Federal
Arbitration Act (FAA), 9 U.S.C. § 1 et seq. Holding that
Welch had entered into a valid arbitration agreement that
covers this FCA case, the District Court nonetheless
declined to enforce that arbitration agreement. In its view,
because FCA claims belong to the government and neither
the United States nor Nevada agreed to arbitrate their claims,
sending this dispute to arbitration would improperly bind
them to an agreement they never signed. Though the
question of the enforceability of a relator’s agreement to
arbitrate FCA claims is interesting, our holding rests on a
rather unremarkable textual analysis. Since we conclude that
the plain text of Welch’s arbitration agreement does not
encompass this FCA case, this lawsuit is not arbitrable, and
we will affirm the District Court’s denial of the Defendants’
motion to compel arbitration on that alternate ground.
UNITED STATES EX REL. WELCH V. MLF 5
I.
In August 2013, Mary Kaye Welch applied for
employment with My Left Foot Children’s Therapy, LLC
(MLF), a small, family-owned company that provides
functional therapy to children in the Las Vegas area. She was
hired as a speech therapist that September and worked at
MLF for just over a year. During the application process,
Welch entered into a mutually binding arbitration agreement
with MLF that provides:
I agree and acknowledge that the Company
and I will utilize binding arbitration to
resolve all disputes that may arise out of the
employment context. Both the Company and
I agree that any claim, dispute, and/or
controversy that either I may have against the
Company . . . or the Company may have
against me, arising from, related to, or having
any relationship or connection whatsoever
with my seeking employment by, or
employment or other association with the
Company shall be submitted to and
determined exclusively by binding
arbitration under the Federal Arbitration Act
. . . . To the extent permitted by applicable
law, the arbitration procedures stated below
shall constitute the sole and exclusive method
for the resolution of any claim between the
Company and Employee arising out of ‘or
related to’ the employment relationship.
ER 20 (underlining in original). The agreement then adds:
Included within the scope of this agreement
are all disputes, whether they be based on the
6 UNITED STATES EX REL. WELCH V. MLF
state employment statutes, Title VII of the
Civil Rights Act of 1964, as amended, or any
other state or federal law or regulation,
equitable law, or otherwise, with exception of
claims arising under the National Labor
Relations Act which are brought before the
National Labor Relations Board, claims
brought pursuant to state workers
compensation statutes, or as otherwise
required by state or federal law.
Id.Shortly before Welch left MLF, she filed a sealed
complaint in federal court alleging that MLF and its co-
owners—Ann Marie and Jonathan Gottlieb—violated both
the federal FCA and the Nevada FCA 1 by presenting
fraudulent claims to Medicaid and Tricare, a program that
offers Medicaid-like benefits to service members. In 2015,
the United States and Nevada declined to intervene and
Welch amended her complaint. In that amended complaint,
Welch alleges that MLF treated patients who could not
benefit from therapy, provided and billed for unnecessary
treatment, ordered therapists to draft inaccurate patient
progress reports, and told therapists to use a single billing
code for all services regardless of whether a more
appropriate code would result in lower charges.
On October 19, 2015, the Defendants moved to compel
arbitration of Welch’s FCA claims pursuant to the FAA and
1
Because we resolve this case based on the text of Welch’s
arbitration agreement, any distinctions between the federal FCA and
Nevada FCA are immaterial to our holding. We will accordingly refer to
both sets of claims collectively as “FCA claims.”
UNITED STATES EX REL. WELCH V. MLF 7
MLF’s arbitration agreement with Welch. Welch opposed
that motion as did the United States and Nevada. On June
13, 2016, the District Court denied the Defendants’ motion
to compel arbitration on the ground that Welch’s arbitration
agreement did not extend to the United States or Nevada, the
parties which owned the underlying FCA claims. This timely
appeal followed.
II.
The District Court had jurisdiction under 28 U.S.C.
§ 1331 and 31 U.S.C. § 3732. We have jurisdiction under
9 U.S.C. § 16(a)(1) and 28 U.S.C. § 1291. We review a
district court’s decision to grant or deny a motion to compel
arbitration de novo. Sakkab v. Luxottica Retail N. Am., Inc.,
803 F.3d 425, 429 (9th Cir. 2015).
III.
On appeal, the Defendants argue that we should reverse
the district court’s denial of their motion to compel
arbitration. They maintain that MLF’s arbitration agreement
with Welch encompasses this FCA lawsuit and that the
government cannot prevent enforcement of an arbitration
agreement covering FCA claims when, as here, it has
declined to intervene in the underlying FCA suit. In
addressing those arguments, we must first determine
whether Welch’s arbitration agreement with MLF
encompasses the FCA claims at issue in this case.
A.
Seeking “to reverse the longstanding judicial hostility to
arbitration agreements” and place them “upon the same
footing as other contracts,” Gilmer v. Interstate/Johnson
Lane Corp., 500 U.S. 20, 25 (1991), Congress enacted the
8 UNITED STATES EX REL. WELCH V. MLF
FAA in 1925. Under the FAA, private agreements to
arbitrate are “valid, irrevocable, and enforceable, save upon
such grounds as exist at law or in equity for the revocation
of any contract.” 9 U.S.C. § 2. Since the FAA “mandates . . .
arbitration on issues as to which an arbitration agreement has
been signed,” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S.
213, 218 (1985), when, as here, an arbitration agreement
involves “a contract evidencing a transaction involving
commerce,” 9 U.S.C. § 2, our role is limited “to determining
(1) whether a valid agreement to arbitrate exists and, if it
does, (2) whether the agreement encompasses the dispute at
issue.” Chiron Corp v. Ortho Diagnostic Sys., Inc., 207 F.3d
1126, 1130 (9th Cir. 2000).
In this case, Welch does not argue that her arbitration
agreement with MLF is invalid. Instead, she maintains that
these FCA claims do not fall within its scope because,
contrary to what the District Court held, none of them are
related to, arose out of, or were connected with her
employment or other association with MLF. This argument
turns on interpretation of her arbitration agreement with
MLF—“a matter of contract” that requires us “to honor
parties’ expectations.” AT&T Mobility LLC v. Concepcion,
563 U.S. 333, 351 (2011).
Governing Law
Before turning to the text of Welch’s arbitration
agreement, we must first determine the governing law.
Under the FAA, the “interpretation of an arbitration
agreement is generally a matter of state law,” Stolt-Nielsen
S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 681 (2010),
and since the arbitration agreement in this case was signed
in Nevada by a Nevada resident and a Nevada-based LLC,
the parties agree that Nevada law would govern any contract
dispute here. In applying Nevada law to interpret Welch’s
UNITED STATES EX REL. WELCH V. MLF 9
arbitration agreement, however, “the FAA imposes certain
rules of fundamental importance” that must also guide our
interpretation “including the basic precept that arbitration is
a matter of consent, not coercion,” id. (internal quotation
marks omitted), and the rule that “questions of arbitrability
must be addressed with a healthy regard for the federal
policy favoring arbitration.” Moses H. Cone Mem’l Hosp. v.
Mercury Constr. Corp., 460 U.S. 1, 24 (1983).
“Because the FAA is at bottom a policy guaranteeing the
enforcement of private contractual arrangements,” EEOC v.
Waffle House, Inc., 534 U.S. 279, 294 (2002) (internal
quotation marks omitted), when examining the scope of an
arbitration agreement, “[a]s with any other contract dispute,
we first look to the express terms [of the parties’
agreement].” Chiron, 207 F.3d at 1130. If the text is plain
and unambiguous, that is the end of our analysis in this case
because we “must rigorously enforce arbitration agreements
according to their terms” under both the FAA and Nevada
law. Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304,
2309 (2013) (internal quotation marks omitted); see also
Waffle House, 534 U.S. at 294 (“While ambiguities in the
language of the agreement should be resolved in favor of
arbitration, . . . we do not override the clear intent of the
parties, or reach a result inconsistent with the plain text of
the contract, simply because the policy favoring arbitration
is implicated.”); State ex rel Masto v. Second Judicial Dist.
Ct. ex rel. Cty. of Washoe, 199 P.3d 828, 832 (Nev. 2009)
(“In interpreting a contract, we construe a contract that is
clear on its face from the written language, and it should be
enforced as written.”).
The Arbitration Agreement
Turning now to the text, the arbitration agreement that
Welch signed when she applied for employment with MLF
10 UNITED STATES EX REL. WELCH V. MLF
contains two key sections. The first section, which is titled
“Agreement,” includes three separate iterations of an
agreement to arbitrate. The second section, which is titled
“Included Claims,” provides that minus limited exceptions
not applicable here, the scope of the arbitration agreement
includes “all disputes, whether they be based on the state
employment statutes, Title VII of the Civil Rights Act of
1964, as amended, or any other state or federal law or
regulation.” ER 20.
On appeal, the Defendants rely on the presumption in
favor of arbitration, the breadth of the “Agreement” section,
and the breadth of the “Included Claims” section to maintain
that Welch’s arbitration agreement covers the FCA claims at
issue in this case. In our view, however, it is solely the text
of the “Agreement” section that dictates the scope of
Welch’s arbitration agreement. Since the presumption of
arbitrability is not in play if the text of the agreement is clear,
that presumption plays no role unless the agreement is
susceptible to an interpretation that covers this FCA case.
And since it would violate several rules of textual
interpretation to rely on the “Included Claims” section to
define the breadth of the agreement, we believe that section
is irrelevant to assessing the scope of Welch’s agreement
unless the “Agreement” section first provides for arbitration.
Certainly, as the Defendants point out, the “Included
Claims” section is broad and encompasses FCA claims
insofar as it provides that “all disputes,” including those
based on “any . . . federal law,” fall within the scope of the
arbitration agreement. ER 20. There are nonetheless two
problems with relying on this section to assess whether this
case is subject to arbitration. First, the “Included Claims”
section contains no agreement to arbitrate any disputes—
rather, the “Agreement” section defines when the parties
UNITED STATES EX REL. WELCH V. MLF 11
have agreed to arbitration while the “Included Claims”
section explains the types of disputes that arbitration extends
to when the parties have elsewhere agreed to arbitration.
Second, the breadth of the “Included Claims” section cannot
be read in isolation from the rest of the arbitration
agreement, and the “Agreement” section provides for
arbitration in much narrower circumstances than the
“Included Claims” section.
This second point is particularly critical because had the
parties wished to arbitrate every dispute encompassed in the
“Included Claims” section it could have left the scope of the
“Agreement” section at “any and all disputes whatsoever.”
Instead, every provision in the “Agreement” section
containing an agreement to arbitrate is followed by some
plain language imposing a textual limitation that, to be
arbitrable, the dispute must arise from, relate to, or be
connected with Welch’s employment or association with
MLF. Having chosen to include that language, we are bound
to define the scope of this agreement by those limitations
under two cardinal rules of textual interpretation. The first is
the rule that the specific governs the general, or generalia
specialibus non derogant, because the “Agreement” section
is more specific than the “Included Claims” section. See,
e.g., S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 891
(9th Cir. 2003) (“A standard rule of contract interpretation is
that when provisions are inconsistent, specific terms control
over general ones.”); Shelton v. Shelton, 78 P.3d 507, 510
(Nev. 2003) (“[A] specific provision will qualify the
meaning of a general provision.”). The second is the
interpretative principle of verba cum effectu sunt
accipienda—that if possible, every word and every
provision is to be given effect—because if the language
about arising out of and relating to employment did not limit
the scope of the arbitration agreement to those situations, it
12 UNITED STATES EX REL. WELCH V. MLF
would have no purpose. See, e.g., United States v. Butler,
297 U.S. 1, 65 (1936) (“These words cannot be meaningless,
else they would not have been used.”); Sturges v.
Crowinshield, 17 U.S. (4 Wheat.) 122, 202 (1819) (“It would
be dangerous in the extreme, to infer from extrinsic
circumstances, that a case for which the words of an
instrument expressly provide, shall be exempted from its
operation.”); Quirron v. Sherman, 846 P.2d 1051, 1053
(Nev. 1993) (“It is a well established principle of contract
law . . . that where two interpretations of a contract provision
are possible, a court will prefer the interpretation which
gives meaning to both provisions rather than an
interpretation which renders one of the provisions
meaningless.”).
Having established that the scope of this arbitration
agreement turns solely on the text of the “Agreement”
section, we must now consider whether the text of the
“Agreement” section is broad enough to encompass this
lawsuit. As discussed above, the “Agreement” contains three
different arbitration provisions. The first provision provides
for arbitration of “all disputes that may arise out of the
employment context.” ER 20. The second provision
provides for arbitration of “any claim, dispute, and/or
controversy that either I may have against the Company . . .
or the Company may have against me arising from, related
to, or having any relationship or connection whatsoever with
my seeking employment by, or employment or other
association with the Company.” Id. The third provision
provides for arbitration of “any claim between the Company
and Employee arising out of ‘or related to’ the employment
relationship.” Id. (underlining in original).
Like the “Included Claims” section, these provisions are
broad and capable of expansive reach. But as this Court has
UNITED STATES EX REL. WELCH V. MLF 13
noted, there is a difference between a clause being “broad”
and “unlimited.” N. Cal. Newspaper Guild Local 52 v.
Sacramento Union, 856 F.2d 1381, 1383 (9th Cir. 1988).
The first arbitration provision is limited to disputes that
“arise out of the employment context” while the third is
limited to claims “arising out of or ‘related to’ the
employment relationship.” ER 20. And for three reasons, we
cannot hold that the text of the first or third provision is
broad enough to encompass this case.
First, contrary to Defendants’ position, the terms used in
the limiting language of the first and third provisions are not
boundless because both of the phrases, “arising out of” and
“related to,” mark a boundary by indicating some direct
relationship. As we have held, the words arising out of are
“relatively narrow as arbitration clauses go,” Mediterranean
Enters., Inc. v. Ssangyong Corp., 708 F.2d 1458, 1464 (9th
Cir. 1983) (internal quotation marks omitted), and
“understood to mean originating from[,] having its origin in,
growing out of or flowing from.” Cont’l Cas. Co v. City of
Richmond, 763 F.2d 1076, 1080 (9th Cir. 1985) (internal
quotation marks omitted). And though we have recognized
that the phrase “relate to” is broader than the phrases “arising
out of” or “arising under,” we agree with the Eleventh
Circuit that “‘related to’ marks a boundary by indicating
some direct relationship; otherwise the term would stretch to
the horizon” and “have no limiting purpose” in violation of
the cannon of verba cum effectu sunt accipienda. Doe v.
Princess Cruise Lines, Ltd., 657 F.3d 1204, 1218 (11th Cir.
2011); see also N.Y. State Conference of Blue Cross & Blue
Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995)
(noting that if the phrase “relate to were taken to extend to
the furthest stretch of its indeterminacy,” it would be
meaninglessly empty because “relations stop nowhere”
(internal quotation marks omitted)).
14 UNITED STATES EX REL. WELCH V. MLF
Second, we are persuaded by the reasoning of the Fifth
and Eleventh Circuits, which have previously interpreted
arbitration agreements covering disputes that “arise out of”
or “relate to” a contractual or employment relationship.
Though neither circuit decided this issue in the context of a
FCA claim, we find their textual analysis compelling and
instructive. In both cases, the courts found that a plaintiff’s
sexual assault claims did not “arise out of” or “relate to” the
plaintiff’s employment or workplace simply because the
assault occurred at the plaintiff’s workplace or would not
have occurred but for the plaintiff’s employment. As both
circuits explained, the sexual assault did not “arise out of” or
“relate to” the plaintiffs’ employment because there was no
direct connection between their claims and employment
where the defendant “could have engaged in” the same
conduct “even in the absence of any contractual or
employment relationship with [the plaintiff],” and a third
party “could have brought the[] same claims . . . based on
virtually the same alleged facts.” Doe, 657 F.3d at 1219–20;
see also Jones v. Halliburton Co., 583 F.3d 228, 240 (5th
Cir. 2009). The same is true here—this FCA suit has no
direct connection with Welch’s employment because even if
Welch “had never been employed by defendants, assuming
other conditions were met, she would still be able to bring a
suit against them for presenting false claims to the
government.” Mikes v. Strauss, 889 F. Supp. 746, 754
(S.D.N.Y. 1995).
Finally, the fact that Welch observed the fraud while
employed is immaterial under the first and third arbitration
provisions. Since, contrary to what the District Court held,
neither clause applies to “claims aris[ing] from observations
Welch made while employed by MLF,” United States v. My
Left Food Children’s Therapy, LLC, No. 14-01786, 2016
WL 3381220, at *3 (D. Nev. June 13, 2016), to interpret this
UNITED STATES EX REL. WELCH V. MLF 15
clause to cover all disputes discovered while Welch worked
at MLF would be “to read the arbitration provision so
broadly as to encompass any claim related to [her] employer,
or any incident that happened during her employment”
whereas “that is not the language of the contract.” Jones,
583 F.3d at 241. Indeed, because Welch could have just as
easily discovered the factual predicate of her claims in a
different capacity, because Defendants could have engaged
in the same fraudulent conduct absent any relationship with
Welch, and because the legal basis of this FCA case would
exist regardless of where Welch worked or observed the
fraud, it is MLF’s act of fraudulent billing—rather than
Welch’s employment—that these FCA claims “arise out of”
and “relate to.”
Since neither the first nor third arbitration provision is
broad enough to encompass this FCA case, the lawsuit is
arbitrable only if it falls within the scope of the second
arbitration provision. As Defendants note, this provision is
clearly the broadest and may not require a direct relationship
with Welch’s employment insofar as the phrase “any
relationship or connection whatsoever with” is much broader
than the phrases “arising out of” and “related to.” But we
must again look carefully at the text of this provision, which
indicates that it only covers a “claim, dispute, and/or
controversy that either [Welch] may have against [MLF] . . .
or [MLF] may have against [Welch].” ER 20.
Contrary to Defendants’ arguments, this case does not
meet that textual requirement. This case involves no claim
that MLF has against Welch. Nor can it be said to be a claim,
dispute, or controversy that Welch “may have against
[MLF].” ER 20. Indeed, though the FCA grants the relator
the right to bring a FCA claim on the government’s behalf,
an interest in the outcome of the lawsuit, and the right to
16 UNITED STATES EX REL. WELCH V. MLF
conduct the action when the government declines to
intervene, our precedent compels the conclusion that the
underlying fraud claims asserted in a FCA case belong to the
government and not to the relator. See, e.g., Vermont Agency
of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765,
773 (2000) (Noting that the “FCA can reasonably be
regarded as effecting a partial assignment of the
Government’s damages claim.” (emphasis added)); Stoner v.
Santa Clara Cty. Office of Educ., 502 F.3d 1116, 1126 (9th
Cir. 2007) (“The FCA makes clear that notwithstanding the
relator’s statutory right to the government’s share of the
recovery, the underlying claim of fraud always belongs to
the government.”); Cedars-Sinai Med. Ctr. v. Shalala,
125 F.3d 765, 768 (9th Cir. 1997) (“[A] qui tam plaintiff by
definition asserts not his own interests, but only those of
United States.”). 2 The meaning of the verb “have” is “to hold
in the hand or in control; own; possess.” Have, Webster’s
New World College Dictionary (5th ed. 2014).
Consequently, because FCA fraud claims always belong to
2
Stoner is particularly instructive here. In Stoner, we concluded that
a relator cannot pursue a FCA claim pro se. 502 F.3d at 1126–28. A pro
se plaintiff can only “prosecute his own action in propria persona,” and
“has no authority to prosecute an action in federal court on behalf of
others.” Id. at 1126. Because a FCA claim is the government’s claim—
and not the relator’s claim—and because the FCA does not allow relators
to pursue any interest they might have in the claim separately from the
government, we concluded that a pro se plaintiff could not bring such a
claim. Id. at 1126–28. Thus, even where, as here, “the government
chooses not to intervene, a relator bringing a qui tam action for a
violation of [the FCA] is representing the interest of the government and
prosecuting the action on its behalf.” Id. at 1126. A relator only has “the
right to bring suit on behalf of the government.” Id. (quoting United
States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 743 (9th Cir. 1993)). We
find no grounds upon which to distinguish our holding in Stoner from
the contract language at issue here.
UNITED STATES EX REL. WELCH V. MLF 17
the government, Welch cannot be said to own or possess
them, and the FCA claims at issue in this case do not meet
this arbitration clause’s requirement that the claim must be
one that Welch “have against [MLF].” 3 E.R. 20. Since this
second clause, like the other two, is not broad enough to
encompass this FCA case, this suit does not fall within the
scope of Welch’s arbitration agreement and is not arbitrable.
IV.
For the reasons set forth above, we affirm the District
Court’s denial of the Defendants’ motion to compel
arbitration on the alternate ground that Welch’s FCA claims
do not fall within the scope of her arbitration agreement with
MLF.
AFFIRMED.
3
In so holding, we note that, once again, had the parties wished to
agree to arbitrate FCA claims, they were free to draft a broader
agreement that covers “any lawsuits brought or filed by the employee
whatsoever” or “all cases Welch brings against MLF, including those
brought on behalf of another party.” But having instead drafted a more
limited clause that covers only those claims that Welch, rather than the
government, has, Defendants cannot now argue that we should ignore
this textual limitation.