                                                                           FILED
                           NOT FOR PUBLICATION                              AUG 12 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JERRE FRAZIER, ex rel. United States of          No. 08-16243
America,
                                                 D.C. No. 2:05-CV-00766-JAT
             Plaintiff - Appellant,

  v.                                             MEMORANDUM *

IASIS HEALTHCARE CORPORATION,

             Defendant - Appellee.




JERRE FRAZIER, ex rel. United States of          No. 08-16305
America,
                                                 D.C. No. 2:05-cv-00766-JAT
              Plaintiff - Appellee,

  v.

IASIS HEALTHCARE CORPORATION,

              Defendant - Appellant.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                   Appeals from the United States District Court
                            for the District of Arizona
                   James A. Teilborg, District Judge, Presiding

                       Argued and Submitted March 9, 2010
                            San Francisco, California

Before: WALLACE, GRABER, and McKEOWN, Circuit Judges.

      Qui tam relator Jerre Frazier, the former Chief Compliance Officer and Vice

President, Ethics and Business Practices, of IASIS Healthcare Corp., brought a

complaint alleging violations of the False Claims Act (“FCA”), 31 U.S.C. §§ 3729-

3731. Frazier alleges two types of violations. Frazier first asserts that IASIS

Healthcare submitted claims for reimbursement from federally funded health care

programs for medically unnecessary procedures. Second, Frazier alleges that, to

obtain valuable Medicare referrals, IASIS Healthcare and/or the hospitals it owns

entered into prohibited financial relationships with and/or provided prohibited

kickbacks to doctors in violation of the Stark Act, 42 U.S.C. § 1395nn, and the

anti-kickback provision of the Health Insurance Portability and Accountability Act

of 1996 (“Anti-Kickback Provision”), 42 U.S.C. § 1320a-7b(b)(2). Frazier alleges

that IASIS hospitals submitted claims for referrals generated by doctors in

prohibited financial relationships and thus falsely certified its compliance with

Medicare requirements when it filed its annual cost reports.



                                          2
      The district court correctly determined that Frazier failed to comply with

Federal Rule of Civil Procedure 9(b) by failing to plead his claims with sufficient

particularity. Consistent with the requirements of Rule 9(b), Frazier must plead

“the who, what, when, where, and how” of IASIS Healthcare’s alleged false claims

with particularity sufficient to provide IASIS Healthcare with enough notice to

defend the suit. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir.

2003) (internal quotation marks omitted). Frazier is not required to plead

representative examples of false claims submitted to the Government to support

every allegation, but he must plead with sufficient particularity to lead to a strong

inference that false claims were actually submitted. Ebeid v. Lungwitz, No. 09-

16122, slip op. 11249, 11259 (9th Cir. Aug. 9, 2010).

      Frazier’s allegations regarding medically unnecessary procedures were

conclusory at best. Although it is not mandatory that Frazier provide

representative examples, such examples would go a long way in providing the

necessary particularity under Rule 9(b). At a minimum, he must provide “reliable

indicia” that IASIS Healthcare submitted claims for medically unnecessary

procedures. Id. The Second Amended Complaint fails in this regard.




                                           3
      To plead fraud based on falsely certified compliance with the Stark Act and

the Anti-Kickback Provision sufficiently,1 Frazier must allege (1) a false claim (2)

made with scienter (3) that was material to the government’s decision to pay and

(4) an actual claim on the government fisc. United States ex rel. Hendow v.

University of Phoenix, 461 F.3d 1166, 1171-73 (9th Cir. 2006). Materiality is

sufficiently pleaded only where certification of compliance with the relevant law,

rule, or regulation “is a prerequisite to obtaining a government benefit” and “a sine

qua non of receipt of state funding.” United States ex rel. Hopper v. Anton, 91

F.3d 1261, 1266-67 (9th Cir. 1996). Again, Frazier need not provide

representative examples to plead express false certification, so long as he

sufficiently alleges an illegal kickback scheme violating the Stark Act or the Anti-

Kickback Provision and provides a sufficient basis to infer that IASIS Healthcare

or its hospitals expressly certified compliance with those provisions as part of the

process of submitting Medicare and Medicaid claims for patients referred by

doctors involved in those schemes. The Second Amended Complaint also fails in

this regard.



      1
         Although we recently adopted the theory of implied false certification,
Ebeid, slip op. at 11254, Frazier’s complaint alleges only that IASIS Healthcare
expressly certified compliance with the Stark Act and the Anti-Kickback Provision.
Implied false certification is thus not at issue here.

                                          4
      Despite Frazier’s failure of pleading, the district court erred in dismissing his

Second Amended Complaint with prejudice. Leave to amend should be freely

granted “‘when justice so requires.’” Bly-Magee v. California, 236 F.3d 1014,

1019 (9th Cir. 2001) (quoting Fed. R. Civ. P. 15(a)). In dismissing the complaint

with prejudice, the district court relied heavily on the “advanced” age of this case

and on the fact that it was Frazier’s third complaint. The court did not give

sufficient weight to the fact that the first two complaints were filed under seal and

that the motion to dismiss the Second Amended Complaint was the first time that

Frazier’s claims were subject to a Rule 9(b) sufficiency analysis. Accordingly,

Frazier should be permitted to amend his complaint.

      Finally, on IASIS Healthcare’s cross-appeal, the district court erred in

denying IASIS Healthcare’s motion for surrender on mootness grounds. The

question of sanctions is not a judgment on the merits, but “a determination of a

collateral issue and a determination of a collateral issue may be made after the

principal suit has been terminated.” Retail Flooring Dealers of Am., Inc. v.

Beaulieu of Am., LLC, 339 F.3d 1146, 1150 (9th Cir. 2003).

      Frazier incorrectly asserts that there is “no basis for sanctions under any

theory.” Sanctions, including dismissal of the complaint, may be granted under the

court’s inherent power. Gomez v. Vernon, 255 F.3d 1118, 1133-34 (9th Cir. 2001).


                                           5
Frazier is also incorrect in asserting that the motion is moot because “any arguably

privileged documents” were returned without review or utilization in this case.

That characterization begs the question as to whether there was abuse of the

judicial process that tainted the proceedings before the documents were returned.

Id.

      The district court’s order denying the motion for surrender on mootness

grounds is reversed, and the district court should consider, after in camera review,

whether sanctions are appropriate.

      REVERSED and REMANDED for proceedings consistent with this

disposition.




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