06-1619 U.S. v. Apria Healthcare Group, Inc.

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Civil Procedure
Qui tam actions

Where other pending qui tam actions regarding the same conduct were settled, they are no longer pending, and the later filed qui tam action should be dismissed without prejudice.

"The district court dismissed the complaint with prejudice. As we explained above, however, §3730(b)(5) applies only while the initial complaint is 'pending.' Costa and Wickern are no longer pending (and weren't pending when the district court denied Chovanec's motion for reconsideration), so she is entitled to file a new qui tam complaint-entitled, that is, as far as §3730(b)(5) goes. Perhaps the allegations in Costa and Wickern (or other sources) count as public disclosures that prevent follow-on litigation by anyone other than an original source. 31 U.S.C. §3730(e)(4)(A). See Graham County Soil & Water Conservation District v. United States ex rel. Wilson, 130 S. Ct. 1396 (2010). Or perhaps the disposition of Costa and Wickern, coupled with the doctrines of claim and issue preclusion, blocks anyone (including the United States) from filing additional suits dealing with any upcoding scheme that Apria orchestrated nationally. To avoid preclusion, Chovanec might have to establish that events in Illinois were entirely unrelated to the national scheme of the 1990s, perhaps representing a recurrence (at the behest of local managers) after the national fraud had ended. If Chovanec could show that, the allegations would avoid even §3730(b)(5)."

Vacated and Remanded.

06-1619 U.S. v. Apria Healthcare Group, Inc.

Appeal from the United States District Court for the Northern District of Illinois, Kocoras, J., Easterbrook, J.

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