United States of America, ex rel, John Doe v. Lincare Holdings, Inc.

Filing 30

ORDER granting in part and denying in part 15 Motion to Dismiss. IT IS HEREBY ORDERED AND ADJUDGED that Count I of Relator's complaint is dismissed without prejudice. FURTHER ORDERED that Relator shall identify himself through an amended complaint within ten (10) days of the entry of this Order. Signed by Honorable David C. Bramlette, III on 2/27/2017 (EB)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
UNITED STATES OF AMERICA,
ex rel. JOHN DOE

PLAINTIFF

v.

CIVIL ACTION NO. 5:15-cv-19-DCB-MTP

LINCARE HOLDINGS, INC.

DEFENDANT

MEMORANDUM OPINION AND ORDER
This cause is before the Court on defendant Lincare Holdings,
Inc.’s Motion to Dismiss (docket entry 15).

Having carefully

considered the motion, response, and applicable law, and being
otherwise fully informed in the premises, the Court finds as
follows:
I. Facts and Procedural History
Relator John Doe (“Relator”), on behalf of the United States,
filed this qui tam suit against defendant Lincare Holdings, Inc.
(“Lincare”) under the federal False Claims Act (“FCA"), 31 U.S.C.
§§ 3729, et. seq.

Lincare is a national respiratory care provider

with over 1,100 locations across the country. Compl., ¶ 4. Relator
was employed as a salesperson for Lincare, Inc., a wholly-owned
subsidiary of the defendant, from April to September of 2014 in
its Natchez, Mississippi office. Id. at ¶ 2.
Over 80 percent of Lincare’s customers are covered by Medicare
or

Medicaid.

Id.

at

¶

4.

Medicare

includes

a

voluntary

supplemental insurance benefit under “Part B,” which covers the

1

rental of durable medical equipment and other medical supplies.
Id. at 11.

To qualify for Medicare funding, the durable medical

equipment must be medically necessary. Id. at 14.

For a patient

to be medically qualified, the patient must suffer from a severe
lung disease or hypoxia-related symptoms which might be expected
to improve with oxygen therapy, and (among other factors) the
patient must have an arterial oxygen saturation level at or below
88% for at least five minutes. Id. at 19.

Virtuox machines are

generally used to measure patients’ arterial oxygen saturation
level by performing an overnight pulse oximetry test. Id.

Lincare

provides Virtuox machines to potential customers, the customers
use the machine to perform an overnight oximetry test, and Lincare
records the test results and retrieves the Virtuox machine the
following day. Id.

If a patient is otherwise medically qualified

and the Virtuox machine generates a qualifying arterial oxygen
saturation

level,

the

patient’s

physician

then

submits

a

certificate of medical necessity and an order for oxygen supplies.
Id.

Once these steps are completed, providers, like Lincare, may

sell the patient Medicare-covered oxygen supplies. Id.
According to Relator, “Lincare implemented a scheme through
which it falsifie[d] and manipulate[d] its Virtuox testing to
ensure that the results of its tests indicate[d] an arterial oxygen
saturation level at or below 88%.” Id. at 21.

Relator claims that

Lincare used a “host of tricks” to generate false reports that
2

enabled the company to sell oxygen and other services to customers
who were unqualified to receive them.

Id. at ¶¶ 22, 25.

Relator alleges that each morning Lincare’s office manager,
Kay DeWeese, and licensed practical nurse, Dee Mason, would hold
a staff meeting in the Natchez office. Id. at ¶ 23.

During these

meetings, Lincare’s delivery employees were allegedly told to
instruct any potential customers receiving Virtuox machines to
utilize the machines in a manner that would generate a low arterial
oxygen saturation level. Id. Specifically, employees were taught
to direct patients:
(i) to ensure any pain medications or antihistamines are
taken before going to sleep; (ii) not to remove any fake
nails before going to sleep; (iii) to raise the arm to
which the sensor is attached while conducting the test;
and (iv) to de-elevate his or her head before going to
sleep.
Id. at ¶ 24.

Relator alleges that for customers who had already

been provided a positive airway pressure machine for sleep apnea
or other conditions, Lincare used a software system called Profox
to test the patient’s arterial oxygen saturation. Id. at ¶ 26.
These Profox tests were administered without physician approval,
and, as with the Virtuox machine, customers were instructed to
take the test in such a manner as to lower the arterial oxygen
saturation number. Id.
to

improperly

“qualify”

Lincare allegedly used these techniques
patients

for

Medicare-covered

oxygen

services. Id. After reporting this conduct to Lincare’s Compliance

3

office on two occasions, Relator claims he was terminated for
“insubordination” and “causing discord.” Id. at ¶ 27.
This

oximetry

testing

Lincare’s Natchez office.

scheme

allegedly

extended

beyond

Relator claims that two employees

stationed in other locations reported that Lincare improperly
coached patients to “use the Virtuox machine right after walking
up stairs . . . walk around the room while the Virtuox machine
[is] connected, [] hold their breath while using the machine. . .
or [] have a family member with a known low oxygen saturation to
wear the machine instead.” Id. at 29.

And another employee

allegedly reported that Lincare would deliver oxygen and equipment
to patients before obtaining physician approval. Id. at 32.
On February 25, 2015, Relator filed his original Complaint
against the defendant under seal, alleging that Lincare violated
Sections 3729(a)(1)(A), (B), and (G) of the FCA by submitting
fraudulent bills to the government after deliberately manipulating
and falsifying pulse oximetry tests to generate the appearance of
low oxygen saturation levels.

Id. at ¶ 37.

Relator also asserted

a claim for retaliatory discharge under Section 3730(h). The
Complaint was unsealed on August 24, 2015 after the government
declined

to

intervene.

Defendant

Lincare

moved

to

dismiss

Relator’s complaint for lack of subject matter jurisdiction and
failure to state a claim under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6).
4

II. Discussion
A. False Claims under 31 U.S.C. § 3729
Lincare urges the Court to dismiss the complaint under Rule
12(b)(1) for lack of subject matter jurisdiction because the FCA’s
first-to-file

bar

precludes

Relator’s

claims.

Additionally,

Lincare submits that dismissal for failure to state a claim under
Rule

12(b)(6)

insufficiently
disclosure

is

warranted

pled

bar.

because

and

precluded

When

also
a

Rule

Relator’s

12(b)(1)

by

the

motion

claims
FCA’s
is

are

public

filed

in

conjunction with a motion under Rule 12(b)(6), the Court considers
the

jurisdictional

challenge

5349153, *3 (N.D. Miss. 2013).

first.

Roop

v.

Melton,

2013

WL

Thus, the Court shall address the

jurisdictional challenge to Relator’s FCA claims under the firstto-file bar before considering Lincare’s arguments for dismissal
under Rule 12(b)(6).
1.

Subject Matter Jurisdiction

When considering a motion to dismiss under Rule 12(b)(1), the
Court may look to: “(1) the complaint alone, (2) the complaint
supplemented
complaint

by

undisputed

supplemented

by

facts

in

undisputed

the

record,

facts

plus

or
the

(3)

the

court’s

resolution of disputed facts.” U.S. ex rel. Colquitt v. Abbot
Laboratories, 864 F. Supp. 2d 499, 516 (N.D. Tex. 2012).

The Court

considers all well-pled allegations as true, viewing them in the
light most favorable to the plaintiff. Id.
5

The party asserting

jurisdiction bears the burden of proving that jurisdiction does in
fact exist. Ramming v. U.S., 281 F.3d 158, 161 (5th Cir. 2001).
The

FCA’s

first-to-file

bar

prohibits

plaintiffs

from

bringing “a related action based on the facts underlying [a]
pending action.” 31 U.S.C. § 3730(b)(5).

This jurisdictional bar

was enacted “to discourage opportunistic plaintiffs from filing
parasitic lawsuits that merely feed off previous disclosures of
fraud.”
F.3d

U.S. ex rel. Branch Consultants v. Allstate Ins. Co., 560

371,

376

(5th

Cir.

2009).

In

determining

whether

the

Relator’s claim is barred by the first-to-file provision, the court
must compare the relator’s complaint with the allegedly firstfiled complaint.

U.S. ex rel. Poteet v. Medtronic, Inc., 552 F.3d

503, 516 (6th Cir. 2009).

Though the allegations of fraud need

not

the

be

identical

across

lawsuits,

Section

3730(b)(5)’s

jurisdictional bar will apply “so long as the later-filed complaint
alleges the same material or essential elements of fraud described
in a pending qui tam action.” Id. at 378.

The first-to-file bar

enjoys relatively broad application, and the essential focus is on
“whether an investigation into the first claim would uncover the
same fraudulent activity alleged in the second claim.” U.S. v.
Planned Parenthood of Houston, 570 Fed. App’x 386, 389 (5th Cir.
2014). See also U.S. ex rel. Lujan v. Hughes Aircraft Co., 243
F.3d 1181, 1189 (9th Cir. 2001) (“once the government knows the
essential facts of a fraudulent scheme, it has enough information
6

to discover related frauds”).

Thus, a relator cannot avoid the

first-to-file bar by “simply adding factual details or geographic
locations to the essential or material elements of a fraud claim
brought against the same defendant” in a prior suit. Branch, 560
F.3d at 378.
In its motion, Lincare argues that Relator’s fraud claims are
precluded

by

the

FCA’s

first-to-file

bar

because

they

are

duplicative of allegations previously asserted in a case pending
before the United States District Court for the District of
Massachusetts. See U.S. ex rel. Robins et al. v. Lincare, Inc. et
al., 1:10-cv-12256-DPW (D. Mass. 2014).

Lincare contends that

because Relator alleges the same general conduct and theory of
fraud contained in the Robins complaint, Relator’s claims must be
dismissed. In response, Relator maintains that Robins is unrelated
to the fraudulent scheme alleged in this case, therefore the firstto-file bar should not apply.1
Comparing the Robins complaint with the complaint sub judice,
the

Court

finds

that

the

allegations

contained

therein

are

sufficiently related so as to preclude Relator’s claims under the
first-to-file
fraudulent

bar.

scheme

Robins
in

alleges

violation

of

that
the

Lincare
FCA

by

conducted

a

improperly

1 The parties do not dispute that Robins was filed prior to the instant
case, nor do they dispute that Robins is currently “pending” for purposes of
the first-to-file bar.

7

administering

pulse

oximetry

testing

without

approval

authorization:


Lincare generally engaged in . . . billing for
portable oxygen tanks when the customer did not
require them . . . [and] testing potential customers
and providing oxygen to Medicare beneficiaries
without physician orders. Robins Compl., ¶ 4.



Specifically, Lincare falsely and fraudulently billed
the government for services and equipment that were
non-reimbursable, were not medically necessary, . . .
or were provided in direct violation of the applicable
standards
and
regulations
governing
Lincare’s
provision of oxygen equipment and services. Robins
Compl., ¶ 3.



Lincare’s service representatives provide customers
with instruction and training regarding equipment use
and maintenance, as well as compliance with the
prescribed therapy. Robins Compl., ¶ 50.



Lincare routinely initiated and conducted oximetry
testing to discover new oxygen customers. Robins
Compl., ¶ 203.



Service representatives were given a pulse oximetry
overnight testing device and instructed, as part of
their daily routes, to provide it to the non-oxygen
customers and instruct the customers how to use the
device.
The
service
representatives
told
the
customers that a simple overnight test needed to be
performed as part of their treatment. Lincare service
representatives were trained to tell customers, when
they asked who had ordered the testing, that their
physicians had ordered it.
In fact, Lincare had
initiated the testing; the customer’s physician was
unaware that it was being conducted. Robins Compl., ¶
205.



If the results showed that a customer’s oxygen level
was low enough to justify oxygen therapy, the center’s
sales representative took the results to the
customer’s physician and tried to convince the
physician to prescribe oxygen. Robins Compl., ¶ 206.
8

or

Similarly, Count I of Relator’s complaint cites violations of 31
U.S.C. § 3729(a)(1), alleging:
[Lincare] has submitted and/or caused to be submitted
false or fraudulent claims to Medicare and Medicaid by
having non-qualified providers perform, participate
and/or instruct patients with regards to the pulse
oximetry test, deliberately manipulating and falsifying
pulse oximetry results to generate the appearance of low
oxygen saturation levels so that it could provide
Medicare-covered oxygen to patients that were not
qualified to receive it.
Compl., ¶ 37.

As in Robins, Relator alleges that Lincare violated

Medicare guidelines by delivering oximetry machines to prospective
customers’ homes, where unqualified delivery employees would then
instruct patients to use the machine. Compl., ¶ 22.

Relator also

claims that Lincare delivered oxygen and respiratory equipment to
prospective customers without physician approval, and for those
patients already receiving Lincare services, Lincare performed
unauthorized
saturation.

assessments
Id.

at

¶¶

of

26,

the
32.

patients’
After

arterial

allegedly

oxygen

instructing

customers to take the assessment in a manner that would lower the
arterial

oxygen

saturation

result,

Lincare

would

attempt

to

“upsell” customers by encouraging them to purchase oxygen or by
convincing the customers’ physician to prescribe oxygen. Id.
Relator disputes that the Robins scheme bears any similarity
to the fraudulent conduct forming the basis of his claims. Relator
argues that these fraudulent schemes are distinguishable because
Robins

fails

to

mention

that

Lincare
9

instructed

patients

to

manipulate oximetry tests to produce a qualifying result. Although
Relator offers additional facts about the manner in which Lincare
instructed customers to take the unauthorized oximetry tests,
these

additional

details

are

insufficient

to

save

Relator’s

claims. See Branch, 560 F.3d at 266 (relator could not avoid the
first-to-file bar by focusing on additional instances of fraud
occurring in different geographic locations); Planned Parenthood,
570 Fed. App’x at 390 (allegations that medical services were
performed but improperly coded were not sufficiently distinct from
earlier allegations that the defendant submitted bills for medical
services

not

performed);

U.S.

ex

rel.

Bane

v.

Life

Care

Diagnostics, 2008 WL 4853599 (M.D. Fla. Nov. 10, 2008) (barring
later filed suit despite slight variations in fraudulent scheme);
see also U.S. ex rel. Poteet v. Medtronic, Inc., 552 F.3d 503, 517
(6th

Cir.

2009)

(the

fact

that

allegations

covered

somewhat

different time periods was irrelevant where the complaints alleged
“the same type of fraudulent activity by the same general group of
actors”).
The fraudulent scheme depicted in Relator’s complaint is
largely based on the same underlying facts as the Robins scheme,
namely

that

Lincare

submitted

fraudulent

claims

by

issuing

oximetry tests without physician approval or authorization, that
Lincare administered these tests in an effort to qualify nonoxygen customers for Medicare covered oxygen, that unqualified
10

delivery personnel provided customers with instructions on how to
take these unauthorized oximetry tests, and that Lincare used these
test

results

to

influence

physicians

to

prescribe

oxygen

customers who were otherwise unqualified to receive it.
the

additional

facts

advanced

by

Relator,

i.e.

to

Further,

that

Lincare

manipulated the administration of oximetry tests, could not have
occurred but for the fact that Lincare administered the tests
without

authorization.

Based

on

the

substantial

overlap

in

material facts underlying these alleged schemes, the Court finds
that the complaints are sufficiently “related” for purposes of the
first-to-file

bar.

Both

complaints

essentially

allege

that

Lincare violated the FCA by generating false reports and performing
unauthorized
patients

for

assessments

in

an

Medicare-covered

effort
oxygen.

to
The

improperly
Robins

qualify

complaint

contains broad allegations of multiple schemes and extensive,
wide-reaching fraud orchestrated by defendant Lincare.
Compl., ¶¶ 25, 65, 89.

Robins

With allegations of Lincare’s nationwide

fraudulent scheme, Robins provided sufficient information to put
the government on notice of the related fraud described here, as
it is likely that an investigation into the Robins allegations
would

reveal

complaint.

the

fraudulent

conduct

alleged

in

Relator’s

Accordingly, the Court finds that Relator’s FCA claims

under § 3729 are precluded by the first-to-file bar and shall
therefore be dismissed without prejudice. See U.S. ex rel. Chovanec
11

v. Apria Healthcare Group Inc., 606 F.3d 361 (7th Cir. 2010)
(dismissal based on § 3730(b)(5) should be without prejudice
because the first-to-file bar only applies while the initial
complaint is “pending”).
2. Failure to State a Claim
Even

assuming

jurisdictionally

that

barred,

the
Count

Relator’s
I

of

the

FCA

claims

Complaint

are
should

not
be

dismissed based on the insufficiency of Relator’s allegations in
light of the pleading standards governing Rule 8, Rule 9, and Rule
12(b)(6). Lincare moves for dismissal under Rule 12(b)(6), arguing
that Relator’s claims are insufficient to state a claim under the
FCA.
Under Rule 12(b)(6), a court may dismiss a suit for “failure
to state a claim upon which relief can be granted.” Fed. R. Civ.
P. 12(b)(6).

Pleadings must contain a “short and plain statement

of the claim” showing the plaintiff is entitled to relief. Fed. R.
Civ. P. 8(a)(2). To survive a motion for dismissal under Rule
12(b)(6), the plaintiff must plead “enough facts to state a claim
to relief that is plausible on its face.” U.S. ex rel. Rafizadeh
v. Continental Common, Inc., 553 F.3d 869, 872 (5th Cir. 2008).
“A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009).
12

In considering the motion,

the “[C]ourt accepts all well-pleaded facts as true, viewing them
in the light most favorable to the plaintiff.” Martin K. Eby Const.
Co., Inc. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th
Cir. 2004).
In

addition

to

satisfying

the

plausibility

requirement

articulated in Iqbal, claims brought under the FCA must also comply
with the supplemental pleading standards of Rule 9(b). U.S. ex
rel. Steury v. Cardinal Health, Inc., 735 F.3d 202, 204 (5th Cir.
2013); U.S. ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 190 (5th
Cir. 2009) (“Rule 9(b) supplements but does not supplant Rule
8(a)’s notice pleading.”).

Rule 9 works to “weed out meritless

fraud claims sooner rather than later,” and the Fifth Circuit
applies the rule to FCA claims “with ‘bite’ and ‘without apology.’”
Grubbs, 565 F.3d at 185. Rule 9 requires that “in alleging fraud
or mistake a party must state with particularity the circumstances
constituting fraud or mistake.”

Fed. R. Civ. P. 9(b).

At a

minimum, the plaintiff must set forth the “who, what, when, where,
and how of the alleged fraud.”

Steury, 735 F.3d at 204.

Applying this standard, the Court finds that Relator has
failed

to

sufficiently

required by Rule 9(b).

allege

fraud

with

the

particularity

In Count I of the complaint, Relator

alleges claims under Section 3729(a)(1), which imposes liability
on any person who:

13

(A) knowingly presents, or causes to be presented, a
false or fraudulent claim for payment or approval;
(B) knowingly makes, uses, or causes to be made or used,
a false record or statement material to a false or
fraudulent claim; [or]
. . . .
(G) knowingly makes, uses, or causes to be made or used,
a false record or statement material to an obligation to
pay or transmit money or property to the Government, or
knowingly conceals or knowingly and improperly avoids or
decreases an obligation to pay or transmit money or
property to the Government . . .
31 U.S.C. § 3729(a)(1).

To state a claim under the FCA, plaintiffs

must allege: “(1) a false statement or fraudulent course of
conduct; (2) made or carried out with the requisite scienter; (3)
that was material; and (4) that caused the government to pay out
money or forfeit moneys due (i.e. that involved a claim).” U.S. ex
rel. Longhi v. United States, 575 F.3d 458, 467 (5th Cir. 2009);
Steury, 735 F.3d at 267.
Relator’s FCA claims are fatally flawed because the complaint
fails to sufficiently allege the presentment of a claim.

The

linchpin of an FCA claim is the “false claim.” U.S. ex rel.
Rafizadeh v. Continental Common, Inc., 553 F.3d 869 (5th Cir.
2008); U.S. ex rel. Parikh v. Brown, 587 Fed. App’x 123, 128 (5th
Cir. 2014) (“[FCA] attaches liability . . . to the claim for
payment, not to the underlying fraudulent activity.”); U.S. ex
rel. Phillips v. Pediatric Services of America, Inc., 142 F. Supp.
2d 717, 730 (W.D.N.C. 2001) (“a central question in False Claims
14

Act cases is whether the defendant ever presented a false or
fraudulent claim to the government”).

To survive dismissal, the

Fifth Circuit has held that relators must, at a minimum, plead the
“particular details of a scheme to submit false claims paired with
reliable indicia that lead to a strong inference that claims were
actually submitted.” U.S. ex rel. Grubbs v. Kanneganti, 565 F.3d
180,

190

(5th

Cir.

2009)

(reversing

dismissal

of

relator’s

complaint, which contained “dates and descriptions of recorded,
but un-provided services, and a description of the billing systems
that records were likely entered into”).
Here, Relator’s complaint falls short of the standard set
forth in Grubbs.

The complaint contains no reference to financial

statements evidencing any claim, nor does Relator allege any
identifying information about the amount of specific claims or the
dates on which they were submitted. Relator’s complaint also lacks
the requisite indicia of the specific scheme to submit false
claims.

Relator

representative.

was

employed

by

the

defendant

as

a

sales

He provides no information about the company’s

billing system or other facts to suggest that he has knowledge of
how bills were submitted by Lincare for payment.

Relator alleges

that Ms. Mason and Ms. DeWeese instructed delivery personnel to
improperly coach patients, but the complaint fails to identify any
delivery personnel who complied with these instructions or any
billing

personnel

who

submitted
15

false

claims

as

a

result.

Furthermore, Relator fails to identify which, if any, of the
oximetry tests administered during Relator’s employment produced
false results, who recorded those false results, or how Lincare
fraudulently certified its compliance with Medicare regulations in
order to effect payment.
Relator assumes that Lincare submitted false claims at some
point in time simply because delivery personnel were instructed to
administer oximetry tests incorrectly.

But the relator is not

permitted “merely to describe a private scheme in detail but then
allege simply and without any stated reason for his belief that
claims requesting illegal payments must have been submitted, were
likely submitted or should have been submitted to the government.”
U.S. ex rel. Clausen v. Laboratory Corp. of America, Inc., 290
F.3d 1301, 1311 (11th Cir. 2002); see U.S. v. ex rel. Thompson v.
Columbia/HCA Healthcare Corp., 125 F.3d 899, 903 (5th Cir. 1997)
(“even where allegations are based on information and belief, the
complaint must set forth a factual basis for such belief”); U.S.
ex rel. Church v. Miss. Baptist Healthy Sys., Inc., 2005 WL
2375161, *4 (S.D. Miss. Sept. 26, 2005) (“latitude should only be
granted to a Relator when the pleadings set forth a factual basis
to substantiate their belief that fraud has occurred”); see also
U.S. ex rel. Nunnally v. West Calcasieu Cameron Hosp., 519 Fed.
App’x 890, 895 (5th Cir. 2013) (unpublished) (“the contents of a
false claim need not always be presented,” but this does not
16

relieve relators of the burden of satisfying the particularity
requirements of Rule 9).

At best, Relator’s complaint alleges a

general “scheme” by which false claims could have eventually been
submitted by Lincare.
vague

allegations

But despite the complaint’s general and

referencing

the

possibility

that

Lincare

submitted false claims, there is no specificity regarding who,
what, when, where, and how such alleged claims were submitted.
Because the complaint fails to provide some indicia of reliability
creating

a

strong

inference

that

false

claims

were

actually

submitted through the alleged scheme, Relator’s FCA claims are
subject to dismissal.
Additionally, Relator’s claim under the FCA’s reverse false
claims provision is deficient because the complaint fails to
mention any financial obligation Lincare may have owed to the
Government.

Liability under Section 3729(a)(1)(G) arises when a

defendant knowingly makes a false record or statement to avoid an
obligation

to

3729(a)(1)(G).

pay

money

to

the

Government.

See

31

U.S.C.

§

Claims under this provision require: “(1) that the

defendant had an obligation to pay money to the government, (2)
that the defendant used a false statement to avoid or decrease
that obligation, (3) that the false statement was material, and
(4) that the defendant made the false statement knowingly.” U.S.
ex rel. Branch Consultants, L.L.C. v. Allstate Ins. Co., 668 F.
Supp. 2d 780, 811 (E.D. La. 2009).
17

“Where a complaint ‘makes no

mention of any financial obligation that the [defendants] owed to
the government,’ and ‘does not specifically reference any false
records or statements used to decrease . . . an obligation,’ the
court should dismiss the subsection (a)(1)(G) claim.” U.S. v. ex
rel. Kester v. Novartis Pharm. Corp., 43 F. Supp. 3d 332, 368
(S.D.N.Y. 2014) (citing Wood ex rel. U.S. v. Applied Research
Assocs., Inc. 328 Fed. App’x 744, 748 (2d Cir. 2009); see Branch,
668 F. Supp. 2d at 811 (dismissing reverse false claims where
relator failed to identify any obligation owed by defendants).
Apart

from

citing

the

statutory

language

of

subsection

(a)(1)(G), Relator has not identified any monetary obligation owed
by defendant Lincare.

In his response to the motion, Relator

attempts to argue that Lincare violated the reverse false claims
provision by receiving a windfall which should have been refunded
to the government for government funded services.

But this

argument amounts to mere speculation as it is unsupported by the
factual allegations in the complaint.

Accordingly, Relator has

failed to adequately plead a violation of Section 3279(a)(1)(G).
The Court finds that Relator’s FCA claims under Count I are
precluded by the first-to-file bar.

Moreover, Relator has failed

to adequately plead his FCA claims in accordance with Rules 8, 9,
and 12(b)(6).

Because dismissal is warranted on these grounds,

the Court finds it unnecessary to determine whether the public
disclosure bar also precludes Relator’s claims.
18

B. Retaliation
In Count II of the complaint, Relator alleges retaliatory
discharge under 31 U.S.C. 3730(h).
employer

from

“discharging

.

.

Section 3730(h) prohibits an
.

or

in

any

other

manner

discriminating against an employee in the terms and conditions of
employment

because

of

lawful

acts

done

by

the

employee

furtherance of an action under the FCA.” Compl., ¶ 42.

in

Unlike

Relator’s other FCA claims, retaliation claims under 31 U.S.C. §
3730(h) need only satisfy the basic pleading requirements of Rule
8.

Guerrero v. Total Renal Care, Inc., 2012 WL 899228, at *3 (W.D.

Tex. March 12, 2012).

To bring an FCA retaliation claim, the

plaintiff must plead: (1) that he engaged in a protected activity;
(2) that his employer knew he was engaged in a protected activity;
and (3) that he was discharged because of it. Robertson v. Bell
Helicopter Textron, Inc., 32 F.3d 948, 951 (5th Cir. 1994).
To engage in a protected activity under the FCA, an employee’s
actions must be aimed at matters that “reasonably could lead to a
viable claim under the [FCA].” U.S. ex rel. Wuestenhoefer v.
Jefferson, 105 F. Supp. 3d 641, 676 (N.D. Miss. 2015) (“an employee
need not have filed an FCA lawsuit or have developed a winning
claim at the time of the alleged retaliation”); but see Hoyte v.
Am. Nat’l Red Cross, 518 F.3d 61, 68 (D.C. Cir. 2008) (employee’s
investigation

into

employer’s

noncompliance

regulations was not a protected activity).
19

with

federal

Internal complaints

are considered protected activity under the FCA if they “concern
false

or

fraudulent

claims

for

payment

submitted

to

the

government.” U.S. ex rel. George v. Boston Scientific Corp., 864
F. Supp. 2d 597, 604 (S.D. Tex. 2012) (no “magic words” are
required, but employee must state that he is concerned about
possible fraud in order to impute knowledge on the employer).

As

to the causal-link element of the prima facie case, “the showing
. . . is not onerous; the plaintiff merely has to prove that the
protected activity and the negative employment action are not
completely unrelated.” Id. at 609.
Here, Relator alleges that he reported the “illegal conduct”
to his superiors on two occasions and that he was “discharged by
the Defendant as a direct result of his acts” immediately after
the second occasion. Compl., ¶ 27, 34, 35.

Based on the facts

alleged, the Court finds that Relator’s allegations are sufficient
to state a plausible claim for retaliation and declines to dismiss
Count II on this basis.
C. Relator’s Identity
Although Relator’s retaliation claim survives the motion to
dismiss, Relator must disclose his identity in order to proceed
with his remaining claim. As Lincare aptly noted in its memorandum
in support of the motion to dismiss, Relator’s identity remains
undisclosed despite the fact that this case has been unsealed.

To

this point, the Government filed a Statement of Interest in the
20

case, arguing that Relator should no longer be permitted to proceed
as a John Doe plaintiff.

Finding no circumstances justifying

anonymity, the Court agrees.
Rule 10(a) requires that the names of all parties be included
in the complaint. Fed. R. Civ. P. 10(a). Consistent with the
general proposition that judicial proceedings should be conducted
in the open, courts have disfavored plaintiffs’ attempts to proceed
anonymously as “John Does.” See Southern Methodist Univ. Ass’n of
Woman Law Students v. Wynne & Jaffe, 599 F.2d 707, 712-13 (5th
Cir. 1979) (finding that plaintiffs have no right to proceed
anonymously absent special circumstances).

Generally, a plaintiff

may not proceed anonymously unless he can demonstrate a substantial
privacy right that outweighs the customary presumption of openness
in judicial proceedings. See Doe v. Hallock, 119 F.R.D. 640, 643
(S.D. Miss. Dec. 8, 1987); Doe v. Frank, 951 F.2d 320, 324 (11th
Cir. 1992) (anonymity is only appropriate in exceptional cases of
“highly sensitive and personal nature ... the risk that a plaintiff
may suffer some embarrassment is not enough”). The same principles
that disfavor John Doe plaintiffs in other cases apply equally to
qui tam matters. See U.S. ex rel. McLain v. Flour Enterprises,
2013 WL 4721367, at *1 (E.D. La. Sept. 3, 2013) (ordering John Doe
relators to identify themselves in an amended complaint or face
dismissal).

21

Relator has cited no facts, circumstances, or legal authority
which would allow him to proceed as a John Doe in this case.
Therefore, the Court finds that Relator must disclose his identity
or face dismissal as to his retaliation claim.
III. Conclusion
For the reasons set forth herein, Lincare’s motion to dismiss
is granted as to Relator’s FCA claims under Count I, but the motion
is denied as to Relator’s claim for retaliation under Count II.
Within ten (10) days of the entry of this Order, Relator shall
amend his complaint to identify himself in accordance with Rule
10.

Relator is hereby notified that failure to disclose his

identity through an amendment shall result in the dismissal of his
remaining claim.
Accordingly,
IT IS HEREBY ORDERED AND ADJUDGED that Lincare’s Motion to
Dismiss (docket entry 15) is GRANTED IN PART and DENIED IN PART.
FURTHER

ORDERED

that

Count

I

of

Relator’s

Complaint

is

DISMISSED WITHOUT PREJUDICE;
FURTHER ORDERED that Relator shall identify himself through
an amended complaint within ten (10) days of the entry of this
Order.

22

SO ORDERED this the 27th day of February, 2017.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

23