In a matter of first impression, the Sixth Circuit recently held in US ex rel Summers v LHC Group, Inc, No 09-5883 (6th Cir Oct 4, 2010).pdf that a plaintiff’s failure to adhere to the False Claims Act’s (“FCA”) procedural requirements, without more, warrants dismissal of the complaint. The well-reasoned decision, authored by Judge Boggs, (with Judge McKeague joining and Judge Keith concurring), relied extensively on the FCA’s legislative history and policy. These sources indicated that the procedural requirement overlooked by the relator appellant – that qui tam complaints be filed under seal and in camera for sixty days before publication or notice to the defendant – is essential to the statute’s goals as it affords the federal government an opportunity to investigate a relator’s claims and evaluate whether to intervene in the action, all without the defendant’s knowledge. In deference to Congress and the statutory scheme it enacted, the Court concluded that a relator is stripped of her statutory right to bring suit in the name of the government when she fails to comply with the FCA’s procedural mandates, to the “t."
In adopting a per se rule and eschewing the consideration of factors such as the degree of harm caused by the procedural error or the relator’s good faith, the Sixth Circuit rejected the balancing tests utilized by the Second and Ninth Circuits. See, United States ex rel. Lujan v. Hughes Aircraft Co., 67 F.3d 242 (9th Cir. 1995); United States ex. rel. Pilon v. Martin Marietta Corp., 60 F.3d 995 (2d Cir. 1995).
Will this decision usher in a new era of FCA restraint, or will the Supreme Court ultimately intervene? One can only guess. But one thing is certain, a qui tam plaintiff in the Sixth Circuit must strictly comply with the FCA, or face the consequences.