NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CECILIA GUARDIOLA, ex. rel. United

States of America,

Plaintiff

- Appellee,

v.

UNITED STATES OF AMERICA,

Intervenor

- Appellant,

v.

RENOWN HEALTH; et al.,

Defendants. No. 20

- 15831

D.C. No.

3:12

- cv

- 00295

- LRH

- CLB

MEMORANDUM *

Appeal from the United States District Court

for the District of Nevada

Larry R. Hicks, District Judge, Presiding

Argued and Submitted April 12, 2021

San Francisco, California

Before: MURGUIA, R. NELSON, and HUNSAKER, Circuit Judges.

The United States appeals the district court’s order granting relator Cecilia

Guardiola a share of proceeds that the government’s recovery audi t contractor

* This disposition is not appropriate for publication and is not precedent except as

provided by Ninth Circuit Rule 36

- 3. 

# FILED

APR 30 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2

(“RAC”) rec ouped wh ile auditing Guardiola’s former employer, Renown Health

(“Renown”)

. Because the parties are familiar with the facts, we do not recite them

here. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we reverse.

1. The district court erred in determining that the RAC’s audits constitute d

an “ alternate remedy ” under the False Claims Act

. See 31 U.S.C. § 3730(c)(5)

. For

a proceeding to constitute an alternate remedy under § 3730(c)(5), the government

must select th at proceeding after a relator files her qui tam complaint pursuant to the

False Claims Act. Se e id. ; U nited States ex rel. Barajas v. United States , 258 F.3d

1004, 1010 (9th Cir. 2001) (“A n alternate remedy under § 3730(c)(5) is a remedy

achieved through the government’s pursuit of a claim after it has cho sen not to

intervene in a qui tam relator’s [] action.” ). Put another way, if the government

cho o se s to recoup lost dollars in a proceeding before the relator files her qui tam

complaint, th at pr oceeding does not constitute an alternate remedy under

§ 3730(c)(5). See B arajas , 258 F.3d at 1010

.

Here

, the record shows that the government’s RAC continuously audited

Renown for false inpatient billing from October 2010 to June 201 3 and that

Guardiola filed her complaint describing the same false inpatient billing in June

2012

. Indeed, the record includes the RAC’s pre

- June 2012 audit spreadsheet and

post

- June 2012 audit spreadsheet. The same three denial codes describe the audit s3

in each sp readsheet. 1 Guardiola stipulated that he r complaint

— alleging that

Renown submitted false claims regarding inpatient billing

— covered the post

- June

2012 audit s of Renown that included any one of those three denial codes

. Those

three denial codes therefor e covered false inpatient billing

. B ecause the same three

denial codes describe the pre

- June 2012 audits of Renown, the pre

- June 2012 audits

covered the same false inpatient billing that Guardiola alleged in her complaint.

The district court , h owever, found that the government’s RAC did not

continuously audit Renown for false inpatient billing before June 2012. Because

that factual finding is “not plausible in light of the record viewed in its entirety ,” the

district court committed a clear err or. See United States v. Hernandez

- Escobar , 911

F.3d 952, 95 6 (9th Cir. 2018 ) (citation and quotation marks omitted). And b ecause

the government’s RAC continuously audited Renown for false inpatient billing

before June 201 2, the RAC’s audits are not an alternate remedy under § 3730(c)(5).

See B arajas , 258 F.3d at 1010

. 2 Therefore, the district court erred in awarding

Guardiola a portion of the proceeds recovered by the RAC’s audits.

2. Finally, because we reverse the district court ’s fin ding that the RAC did

1 The three denial codes include (1) “Medical Necessity ; ” (2) “Medical Necessity, minor surgery,

I/P [inpatient] status ; ” and (3) “Minor surg ery, I/P [inpatient] status

. ”

2 Alternatively, the district court reasoned that the government ha d a “duty” to stop the RAC’s

audit when Guardiola filed her complaint in June 2012 . We disagree. No statutory authority or

contract with the RAC required th e government to stop a RAC’s audit once a relator commenced

a qui tam action.4

not continuously audit Renown for false inpatient billing before June 2012, we need

not decide whether § 3730(c)(5)’s statutory text includes a “preclusion”

requirement.

REVERSED.