15 -39 30

Fabul a v. Amer ica n Med ica l Res po nse, Inc.

UNITED STATES COURTOF APPEAL S F O R T H E S E C O N D C IR C U IT August Term, 2016 (Argued: Feb ruary 27, 2017 D ecided: July 27, 2017)

Docket No. 15-3930

U N I T E D S T A T E S O F A M E R I C A , E X R E L . R O N A L D I. C H O R C H E S A S T R U S T E E F O R T H E

B A N K R U P T C Y E S T A T E O F P A U L F A B U L A , and P A U L F A B U L A , Plaintiffs-Appellants ,

— v. — A M E R I C A N M E D I C A L R E S P O N S E , I N C ., Defendant-Appellee

. *

B e f o r e : K A T Z M A N N , Chief Judge, and L Y N C H and C H I N , Circuit Judges.

Plaintiffs-appellants brought this acti on under the False Claims Act, 31 U.S.C. § 3729 et seq. , against defendant-appellee American Medical Response , Inc. (“AMR”), all eging (1) in a qui tam claim, that AMR m ade false statements and

The Clerk o f Court is di rected t o amend the offi ci al capti on as set forth above. *submitt ed false claims to t he gover nment for re imbursement under the Medicare and Medicaid programs, and (2) in an indivi dual cl aim, t hat AMR retali ated against plaintiff-appellantPaul Fabul a for his re fusal to fal sify a document. The United States District Court for the District of Connec ticut (Michael P. Shea, Judge ) dismi ssed b oth clai ms. For the re asons that follow, the judgm ent of the district court i s VACATED and the case is REMANDED for furthe r proc eedings consistent with thi s opinion.

J O N A T H A N M. L E V I N E (David S. Golub, on the brief ), Silver Golub & TeitellLLP, Stamford, CT, for PlaintiffsAppellants. P A M E L A L. J O H N S T O N , Foley & Lardner LLP, Los Angeles, C A (Lawrence M. Kraus, Foley & Lardner LLP, Boston, MA, on the brief

), forDefe ndant-Appellee. Jeffre y S. Bucholtz, PaulAlessio Mezzina, King & Spalding LLP, Washington, DC, and Kathryn C omerford Todd, Warre n Postman, U.S. Chamber Liti gation Center, Washington, DC. for Amicu s Cur iae The Chamber of Commerce of the United States of America in support of Defe ndant-Appellee.

G E R A R D E. L Y N C H , Circuit Judge : Plaintiffs-appellants brought this acti on under the False Claims Act (“FCA”), 31 U.S.C . § 3729 et seq. , against defendant-appellee American Medical Response , Inc. (“AMR”), al leging (1) i n a qui tam claim, that AMR m ade false

2statements and submitted false clai ms to the government for reimbursement

under the Medicare and Medicaid programs, and (2) in an individualclaim, that AMR retaliat ed against plaint iff-appellant P aul Fabul a for his re fusal to fal sify a document. The qui tam claim is asserte d by bankr uptcy trustee Ronald I. Chor ches for and on be half of the United States of America and for the b enefit of Fabula’s bankruptcy estate. The retaliati on claimis asserte d by Fabula indivi duall y. The United States District Court for the District of Conne cticut (Michael P. Shea, Judge ) dismi ssed b oth clai ms: the first on the ground that C horche s failed to all ege with the specificity requi red b y Federal Rule of CivilProcedure 9(b) that AMR submit ted false claim s to the govern ment, and the secon d on the ground that Fabula’s refusal to falsi fy a document to effectuate AMR’s all eged sch eme to submit fal se claims di d not constitute protected activi ty under the FC A’s antiretaliati on provision. After de ciding, as prelim inary matters, that the district court had jurisdicti on over C horche s’s qui tam claimand that Fabula di d not abandon his r etaliation clai m, we conclude (1) that Chorche s has pled the submission of false clai ms with sufficient particul arity under Rule 9(b), as applied in the qui tam context; and (2) that Fabula’s refus al to fal sify a patient

3repor t, under the circumstances o f this case, quali fies as protec ted activi ty.

Accordingly, we VACATE the judgment of the district court, and REMAND for further p rocee dings consistent with thi s opinion. BACKGROUND The following facts are takenlargely from the second and third amende d complai nts filed in this action (the “SAC” and the “TAC ,” resp ectively). As required when r eviewing a mot ion to di smiss a complaint for failure to state a claim, we accept thes e facts as true for purpo ses of this opinion. See O’Brien v. Nat’l Prop. Analysts Partners , 936 F.2d 674, 676-77 (2d Cir. 1991). From August 2010 to December 2011, Fabula worked as an Emerge ncy Medical T echnician (“EMT”) in the Ne w Haven, C onnecticut branch office of AMR, the largest ambulance company in the Unit ed States. In Feb ruary 2011, while he was employed at AMR, Fabul a filed for Chapter 7 bankruptcy; he

rece ived a discharge of his deb ts in May 2011; and his bankruptcy case was closed in June 2011. As an EMT, Fabula provided emergenc y and non-emer gency medical transpor t services, s ome of which were r eimbursable under Medicare and/ or Medicaid. According to the complaints, AMR engaged in a scheme to

4fraudulently obtai n reimburse ment from Medicare by falsely certifying

ambulance transports as medical ly necessar y and submitting claim s that it knew

were n ot proper ly reimbursable under the rules and re gulati ons gover ning payments by Medicare. 1 The exe cution of the all eged sch eme was re lati vely straightforward. Medicare pays AMR only for ambulance transpor ts that were “medically

neces sary,” as e xplained in the Medicare Bene fit Pol icy Manual . Medical

neces sity i s established whe n the patient’s condition i s such that use of any othe r method of transpor tati on is contraindicated ( i.e. , inadvisable for the patient’s health). Thus, in any case in which some means of transp ortation other than an ambulance can be use d withoutendanger ing the indiv idual ’s health, whether or not such other tr ansportation is actually avail able, Medicare does not pay for ambulance services. Even whenthe ser vices are de emed medicall y neces sary,

moreover , Medicare payments are based onthe level of services furnished, not simpl y on the vehicle used. As a r esult, in order to re ceive reimburse ment from

Although the TAC all eges that AMR made false statements and submitted false 1 claim s for r eimbursement under both the Medicare an d Medicaid programs, the complai nt detail s the sche me primaril y vis-à-vis Medicare. For convenienc e, we refe r only to Medicare in this opini on. 5Medicare, AMR was required to review and s ubmitinformati on about the

condition of pati ents and the e mergency or non-emer gency medical services that it had provided to them. When AMR dispatched an ambulance to transpor t someone (in industry parlance, a “run”) , the participati ng paramedics and/ or EMTs were required to complete an electronic Pati ent Car e Repor t (“PCR”). The PCRs documented informati on such as the date, tim e, and addre ss of the pickup; the name of the pers on being trans ported; the n ame of the medical faci li ty to which the person was transpor ted; and a descr ipti on of the condition of the pers on being transpor ted. They were created e lectronicall y on a laptop computer during, or imm ediately fol lowi ng, a run. The de scription of the transpor ted pers on’s condition determines whether a r un is treated as “medicall y neces sary.” The TAC alleges that during the period of Fabula’s employment, AMR routinely made i ts EMTs and paramedics revise o r re create the ir field-generated PCRs to include false statements purportedly demonstrating medicalneces sity to

ensur e that runs would be r eimbursable by Medicare , whether or not ambulance service was in fact medicall y neces sary in the par ticul ar case . AMR supervisors provided the EMTs and par amedics with printouts of their original P CRs

6prepar ed at the time of the run, marked up with handwritten revisions that

altered the subs tance of the or igi nal PCRs so as to falsely character ize runs as medical ly necessar y. Supervisor s at AMR specifical ly i nstructed EMTs and paramedics how to modify the PCRs b y inclu ding false or misl eading informati on, and admitt ed to Fabula that the purpose of s uch revisions was to qual ify the run for Medicare reimbursement. The p articipati on of the EMTs and paramedics in the revision of the PCRs was required becaus e those e mployees had uniqu e log-in passwords that allowed them to al ter the PCRs and pre vented AMR supervisors fr om revising the PCRs themselves. After the EMTs and paramedics had re vised or re created the original P CRs, AMR super visors collected and shredde d the printouts with the handwritten changes. The f alsifi ed electronic PCRs re mained in AM R’s database, to be used for b il li ng purpose s. In addit ion to i dentifying several gener al categories of patients who were susceptible to having their runs falsely certified as medicall y neces sary (for example, calm and cooperative dementia pati ents wer e routinely written up as having a history of viol ence), the TAC identifies more than ten specific runs for which Fabula was ordere d to alter PCRs to inclu de false or misleading

7informati on. A few examples follow. 2 On July 7, 2011, Fabula and paramedic Wi ll iam Shick t ranspor ted sever al patients to the hospital in res ponse to 911 calls. About two weeks later, Fabula was asked to re vise four of the PCRs by adding informati on about the patients’ previous surge ries and injuries, implying that such history made ambul ance service medically necessary, e ven though one p atient wi th a chronic allergy issue had no medical need for an ambulance but wanted a r ide to the hospital because she thought she could avoi d a wait at the hospital if she was brought in by an ambulance, and another patient called for an ambulance only because he felt that he should not have to buy his own cough syr up. On October 17, 2011, Fabula was in the mi dst of transpor ting a pati ent to the hospital, when the run was c anceled when it was learned that it was not the corre ct date for the patient’s medical appointment. Neverthe less, AMR made Fabula compl ete a “re turn trip PCR,” as if the patient had been tran sported b oth to and from the hospital. TAC ¶ 101. On Dece mber 4, 2011, Fabula and Douglass Gladstone (also an EMT) assisted in transpor ting an obese patient who “had no medical reasonto be se nt to the

In addit ion to PCRs, the TAC alleges that AMR al so falsified Physi cian 2 Cer tifi cation Statements (“PCSs”), for ms completed by physicians or register ed nurse s pursuant to Medicare r egulati ons. 8hospital, he simpl y wanted to go there.” TAC ¶ 100. The patient was able to walk

himself to the stre tcher and climb on unassisted. An AMR super visor instructed Fabula to i nser t informati on about the patient’s pre vious surgeries to justify his transpor t to the hospital. That same patient call ed 911 six dozen times during 2011 for an ambulance to bring him to a medi cal facil ity t o obtain insulin. AMR directed Fabula, under thr eat of being placed on unpaid leave, to state falsely in the PCRs for those runs that the patient had diffi culty remai ning in an upright position. Another r un in Decembe r 2011, in which Fabula assisted paramedic Kevin Bodiford, ulti mately l ed to Fabula’s effective termination by AMR. For seve ral 3 weeks following the run, an AMR supervisor r epeatedly instructed Bodiford, who had completed the original P CR (the “D ecember 2011 PCR”), to revise his PCR so that it coul d be sub mit ted to Medicare for payment. Bodiford r efused to resub mit the PCR and told a supervisor that Fabula was re sponsible for the run. In February 2012, while Fabula was on medical l eave, the s upervisor con tacted

On an ear li er occas ion, Fabula had been susp ended for a day for not completing 3 three PC Rs in the manner spe cified by supervisors , and was ulti mately requi red to complete the forms with i nformation provided to him by AMR in order to be all owed to return to wor k. 9Fabula and “told [hi m] to return to AMR under the guise of r ecre ating a PCR

from a run made in early De cember of 2011 that [the supervisor ] said had been lost.” SAC ¶ 70. Fabula respon ded by email that he was uncomfortable with the request. Later that same month, when Fab ula went to AMR’s offices at the supervisor ’s direction, the super visor told Fabula that “[y]ou should be able to complete the PCR with the informat ion I’ve provided,” SAC ¶ 72, and Fabula was handed the PCR that Bodiford had created as well as a cover she et that included handwritten additions for Fabula to inclu de in a new PCR. The addition of the handwr itt en information woul d have quali fied the run for Medicare reimbursement. The wor ds Fabula was instructed to use were not his, however ; Fabula in fact di d not even know what some of the words meant. No longer wil li ng to participate i n AMR’s scheme, Fabula re fused to falsify the PCR despite being told that “i f he didn’t include [the handwritten informati on] on the PCR, he couldn’t come back to work.” SAC ¶ 75. In a March 1, 2012 letter, AMR instructed Fabula “im mediatel y to arrange a time for r econciliation and transmission of this [electronic PCR]. Fail ure to do so will result in corr ective action up to and i ncluding t ermination.” SAC ¶ 79. Because Fabula never returne d to revise the PC R, his employm ent was effe ctively terminated.

10On June 22, 2012, Fabula filed this acti on as a re lator on behalf of the

United States, which declined to intervene in 2013. The SAC asser ted two clai ms: Count One alleged that AMR viol ated 31 U.S.C. § 3729(a) (1)(A) and (B) by maki ng false statements and submitting fal se claims to the gover nment, and Count Two alleged that AMR fired Fabula in retali ation for his efforts to stop the submission of a false clai m in vi olati on of 31 U.S.C . § 3730(h). On March4, 2015, the district court dism issed the re tali ation cl aim w ith prejudice for failure to state a claim, holding thatFabula’s refusal to falsify a P CR did not constitut e protec ted activi ty. Italso dismi ssed the qui tam claimon standing grounds, b ecause the qui tam claim, which pre-dated Fab ula’s bankruptcy petition, had become the proper ty of his bankruptcy estate. The district court stayed the dismissal of the qui tam claim, however , to give Chorche s, the trustee of Fabula’s bankruptcy estate, the oppor tunityto intervene and p ursue that claim . Subse quently, Chor ches joined the action and filed the TAC, which pled only the qui tam claim

. On Novembe r 6, 2015, the district court dismi ssed the TAC with prejudice for failu re to state a claim, hol ding that Chorches did not sati sfy Rule 9(b)’s heightened pleading requirement. It entered its final judg ment dismi ssing the case on N ovember 10, 2015. Ap pellants ti mely appealed the district court’s March

114 and Novembe r 6, 2015 rulings. DISCUSSION

“We re view de novo the gran t of a [Federal Rule of CivilProcedure ] 12(b)(6) motion to di smiss for failure to state a clai m, accepting al l factual all egations as true and dr awing allreaso nable infere nces in favor ofthe plainti ff.” Trs. of Upstate N.Y. Eng’rs. Pension Fund v. Ivy Asset Mgmt. , 843 F.3d 561, 566 (2d Cir. 2016). The complai nt must pl ead “enough facts to state a claim to reli ef that is plausible on it s face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and must “al low[] the court to draw the reas onable infere nce that the defe ndant is li able for the misconduct alleged,” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). Appellants contend that the district court erred in dismissing the FCA qui tam and retaliati on claim s, as pled in the TAC and the SAC, r espe ctively. F or the

reaso ns that follow, we vacate the district court’s judgment and remand for further p rocee dings. I. The Qui Tam Claim Was Adequately Pled. Chor ches ar gues that the district court erre d in dism issing the TAC for failu re to comply wit

h Rule 9(b). AMR not only chal lenges that position but al so claim s that we lack jurisdi ction to consider Chor ches’s qui tam claimbecause the

12district court di d not have subject matter jurisdicti on over that claim. AM R

argues that be cause Ch orches ’s allegati ons der ive from clai ms made in Fabul a’s original com plaint, t

hey violate the FCA’s public disclosure bar, which AMR contends is jurisdicti onal. A. The District Court Had Jurisdiction over the Trustee’s Claim. Because “e very fe deral appellate court has a spe cial obl igati on to satisfy itself not onl y of its own jurisdi ction, but al so [of] that of the lower courts in a cause under review,”• Arnold v. Lucks , 392 F.3d 512, 517 (2d Cir. 2004) (internal quotation marks omi tted), we begin by addr essing AMR’s thres hold contention that the FCA’s so-called “public discl osure b ar” depr ived the district court of jurisdict ion over Ch orches ’s qui tam claim

. The public discl osure b ar provides that courts “shall di smiss an action or claimunder [§ 3730] . . . if subs tantial ly the same all egations or transac tions as all eged in the action or claim w ere publicl y disclosed” in a federal action (amongst other avenue s) “unless . . . the pe rson b ringing the action i s an original source ofthe information.” 31 U.S.C. § 3730(e)(4)(A). For the first tim e on appe al, AMR argues that because Chor ches — the trustee of Fab ula’s bankruptcy estate, to which the qui tam claimbelongs — raise s the same qui tam claimthat was

13previously raised by Fabula, Chor ches’s claimshould be dismissed for lack of

subject matter jurisdicti on. Whether the public discl osure b ar is jurisdicti onal matt ers in this case because of AMR’s fail ure to raise this argument be low. Ordinarily, we willnot consider in the first instance ar guments not raised in the district court. In re Nortel Networks Corp. Secs. Litig. , 539 F.3d 129, 132 (2d Cir. 2008). Howeve r, be cause parties may not, by stipulation or neglect, confer jurisdict ion on the feder al courts that was denied to us by Con gress , we must address an y question about our jurisdict ion, whether or not it has been pr operly pre serve d by the par ty contesting jurisdict ion — or indeed, whethe r or n ot any party raises the issue befor e us. See Wynn v. AC Rochester , 273 F.3d 153, 157 (2d Cir. 2001). Accordingly, we turn first to the jurisdicti onal qu estion. Upon due cons ideration, we conclude that the FCA’s public disclosure bar is nonjurisdictional, and that AMR has forfeited the public disclosure defen se by failing to raise the argument in the district court. Not ever y rule that disal lows clai ms under cer tain condit ions affects the jurisdict ion of the district courts. To the contrary, the S upreme C ourt has warne d against “profligat e use of the term ‘jurisdict ion.’” Sebelius v. Auburn Reg’l Med.

14Ctr. , 568 U.S. 145, 153 (2013). Cour ts must “i nqui re whe ther C ongres s has clearly

stated that the rule is jurisdi ctional ; absen t such a clear statement, [the Supr eme Court has] cautioned, courts should treat the re striction as nonjurisdicti onal in character .” Id . (bracke ts and internal quotation marks omi tted). “Under this test, a provision that does not speak in jurisdicti onal terms or re fer in any way to the jurisdict ion of the district courts wi llnot be cons idered jurisdictional .” U.S. ex rel. Hayes v. Allstate Ins. Co. , 853 F.3d 80, 86 (2d Cir. 2017) (internal quotati on marks omit ted). Rather, such r ules are cons trued as den ying a cause of action under the specified circumstances, and are subject to the normal rules for pr eser ving nonjurisdicti onal arguments for appeal. Our re cent decision in Hayes is instructi ve. There , we held that the FCA’s “first-to-fil e rule” is not jurisdi ctional ; instead, it “bears on the mer its of whether 4 a plainti ff has stated a claim.” Hayes , 853 F.3d at 85. In so holdi ng, we re asoned that the first-to-fil e bar did not speak in jurisdi ctionalterms or r efer in any way to the jurisdicti on of the district courts, and stood “in sharp c ontrast to other provisions of the FCA that do explicitly invoke the jurisdicti on of the district “When a pe rson b rings an action under [§ 3730], no pers on other than the 4 Government may intervene or bring a re lated acti on base d on the facts underlying the pending action.” 31 U.S.C. § 3730(b) (5). 15courts.” Id. at 86 (emphasis in origi nal).

The same rationale applies to the public di sclosure bar at issue here . As elaborated in Hayes, “[b]ecause the FCA clearly states that other li mit ations on qui tam actions are jurisdicti onal, but does not clearly state” that the public di sclosure bar is jurisdicti onal, we must treat the public di sclosure bar “as nonjurisdictional in character.” Id. (bracke ts and internal quotation marks omi tted; emphasis in original). Indeed, the evidence that the public disclosure bar is not jurisdicti onal is especially strong. Not only does the public discl osure b ar, like the first-to-fil e rule at issue in Hayes , not speak in jurisdicti onal terms (when other provisions of the FCA do) — the public di sclosure r ule itself was formerly written as a jurisdict ional bar, but was amended in 2010 specificall y to deletethe jurisdicti onal language. Prior to 2010, the provision expre ssly denied jurisdicti on, specifying that “ [n]o court shall have jurisdiction over an action under [§ 3730] based upon the public di sclosure of allegations or transactions in a criminal, civil, or admini strative hearing . . . unless . . . the pers on bringing the action is an original source ofthe information.” 31 U.S.C. § 3730(e)(4)(A) (2006) (e mphasis added). But Congr ess e li minat ed the re fere nce to “jurisdicti on” when it amended the statute in 2010. Thus, when this action was fil ed in 2012, the public discl osure r ule was

16no longer jurisdictionalin nature. That remains true today.

Theref ore, we join the maj ority of our sister circuits that have address ed the issue in holding that the public disclosure bar is no longer jurisdict ional. See, e.g. , U.S. ex rel. Advocates for Basic Legal Equality, Inc. v. U.S. Bank, N.A. , 816 F.3d 428, 433 (6th Cir. 2016) (since the 2010 amen dment, “[t]he public di sclosure bar is no longer jurisdictional, as ever y other circuit to address the question has concluded.”); U.S. ex rel. Moore & Co., P.A. v. Majestic Blue Fisheries, LLC , 812 F.3d 294, 299-300 (3d Cir. 2016); U.S. ex rel. May v. Purdue Pharma L.P. , 737 F.3d 908, 916-17 (4th Cir. 2013). But see United States ex rel. Sheet Metal Workers Int'l Ass'n, Local Union 20 v. Horning Investments, LLC , 828 F.3d 587, 591 (7th Cir. 2016) (“It is true that claim s that previously have bee n disclosed may be bro ught only i n li mit ed circumstances, se e 31 U.S.C . § 3730(e)(4), and that this rule is jurisdict ional.”). Accordingl y, because AMR fail ed to raise the pub li c disclosure bar as anaffirmati ve defen se or in connection with i ts moti on to dismi ss be low, its argument that Chorches ’s qui tam claimis barre d by Fabula’s earlier complai nts in this acti on has not be en pr eser ved for app ellate review. 5

We re tain di scre tion, of course, to consider ar guments that are raised for the 5 first tim e on appe al, where such c onsideration is in the interest of justice. See Gibeau v. Nellis , 18 F.3d 107, 109 (2d Cir. 1994). No s uch injusti ce is appare nt here , 17B. The Qui Tam Claim was Adequately Pled under Rule 9(b).

We turn nex t to the merits of Chorch es’s app eal. “In reviewing a decision to dismi ss a complaint on Rul e 9(b) gr ounds, we ass ume the truth of [a plainti ff’s] all egations.” O’Brien , 936 F.2d at 676-77. The TAC alleges on information and belief that specific clai ms were s ubmit ted to Medicare for payment. The district court held, however , that the TAC fails to sati sfy Rule 9(b) because it provides neither details, such as invoice numbers, invoice dates, an d amounts bil led or reimbursed, r egarding actual requests for payment made to the govern ment, nor a factual basis for its al legati ons that AMR submit ted false claim s. We

however . The public discl osure b ar is intended to confine the r ight to bring qui tam actions to those who bring frauds against the public t reasur y to the attention of the gover nment and the courts; no p ublic purpose is ser ved by allowi ng opportunistic outsi ders to file suit based on allegations of fraud that have already beenpublici zed in lawsui ts by others . In this case, however , Chor ches b rings the qui tam claimnot for his per sonal bene fit but in his capacity as the trustee of Fabula’s bankruptcy estate, which in turn is the succes sor in interes t to Fabula’s pre-pe tit ion clai ms. His clai m is thus sim ply the continuati on of claim s originall y brought by Fab ula, who made al legati ons of fraud n ot previously discl osed by anyone else . If the suit i s succes sful, moreover, Fabula willpers onally benefit, not only by having the moral sati sfaction of seeing his debts r epaid but also, if Chor ches r ecover s an amount that exceeds the cre ditor’s clai ms against the bankruptcy es tate, by rece ivi ng any res idualamount i n the estate. We expr ess no view as to whether, unde r these circumstances, the public disclosure bar sh ould be he ld appli cable if objection had been p roper ly raised in the district cou rt. We are conf ident, however, that no injustice results from per mit ting the trustee to procee d in these circumstances whe n the defe ndant failed to preser ve the issue. 18resp ectfull y disagree.

The FCA is an anti-fraud statute that “may be enforce d not just through li tigat ion brought by the Govern ment itself, but al so through civil qui tam actions that are filed by private parties, called relators, ‘in the name of the Govern ment.’” Kellogg Brown & Root Servs., Inc. v. U.S. ex rel. Carter , 135 S. Ct. 1970, 1973 (2015), quoting 31 U.S.C. § 3730( b)(1). As r elevant to Chorc hes’s qui tam claim, the FCA imposes li abili ty on any pers on who “knowingly presen ts, or causes to be pres ented, a false or fraudulent clai m for payment or appro val” or who “knowingly m akes, uses , or causes to be made or use d, a false recor d or statement materialto a false or fraudulent claim .” 31 U.S.C. § 3729(a)(1) (A), (B). 6 The FCA de fines a “claim ” as “any re quest or demand . . . for money or proper ty” that i s pre sented, dire ctly or indi rectly, to the United States. 31 U.S.C. § 3729(b)(2)(A). Qui tam complai nts filed under the FCA, b ecause the y are claims of fraud, are sub ject to Rul e 9(b). U.S. ex rel. Ladas v. Exelis, Inc. , 824 F.3d 16, 26 (2d Cir.

The district court dism issed the claim because of Ch orches ’s failure to 6 sufficientl y plead the submission of a false claim . On appeal, AMR does not argue that any other element neces sary for qui tam li abili ty is l acking. Thus, we need n ot parse the other e lements of either subs ection. 192016); Gold v. Morrison-Knudsen Co. , 68 F.3d 1475, 1476-77 (2d Cir. 1995). Rule 9(b)

states that “[i]n all eging fraud . . . , a party must state with parti cularitythe circumstances constituti ng fraud.” Fed. R. C iv. P. 9(b). That ordinarily requires a complai nt all eging fraud to “(1) specify the statements that the plaintiff contends were f raudulent, (2) identify the spe aker, (3) s tate where an d when the statements were made, and (4) explain why the statements wer e fraudulent.” Ladas , 824 F.3d at 25 (internal quotati on marks omitt ed). But “the adequacy of particularized al legati ons under Rule 9(b) is . . . case- and contex t-specific.” Espinoza ex rel. JPMorgan Chase & Co. v. Dimon , 797 F.3d 229, 236 (2d Cir. 2015). “Des pite the gener all y rigid requi rement [of Rule 9(b)], allegations may be based oninformati on and be li ef when fac ts are pe culi arly within the opposing party’s knowledge.” Wexner v. First Manhattan Co. , 902 F.2d 169, 172 (2d Cir. 1990). “Pleading on i nformation and belief is a desirable and ess ential expedient when matters that are neces sary to complete the statement of a claimare not withi n the knowledge of the p lai ntiff but he has sufficient data to ju stify interposing an allegati on on the sub ject.” 5C C. Wr ight et al ., Fed. Prac. & Proc. § 1224 (3d ed. April 2017 Update). “Where pleading is permit ted on information and belief” in a complaint that all eges fr aud (and is therefor e subject to Rule

209(b)), we r equire that the compl aint “adduce specific facts supporting a strong

inference of fraud.” Wexner , 902 F.2d at 172. AMR argues that Chor ches has not satisfied Rul e 9(b)’s h eightened pleading requirements because h e has not identified actualinvoices that were submitt ed to the fede ral government. The TAC , however , adequately pl eads — with specifici ty, albeit on i nformation and belief — that fraudulent cl aims were submitt ed to Medicare.

1. The TAC Adequately Alleges that Billing Information was Peculiarly Within the Knowledge of AMR. Chor ches con cedes that he cannot identify exact bill ing numbers, dates, or amounts for claim s submitted to the government. Howeve r, the TAC s ets forth facts establishing specific reasons why such information regarding the particular bill s that were s ubmit ted for re imbursement is “peculiarl y withi n [AMR’s] knowledge.” Id . According to the TAC, all ambulance per sonnel, includi ng Fabula, “were pr ohibited from making unauthorized entran ces into the admini strative building of AMR in New Haven whe re all the bill ing was taki ng place,” and other than “c ertify[ing] whether ambulance runs were medically

neces sary,” they we re not ab le to “partici pate[] in [AMR’s] bill ing procedure s.”

21TAC ¶ 115. In fact, EMTs and paramedics were r estricted to the “‘garage’ an d the

‘window’ where they punch ed in and punched out eachday,” so that any “informati on about AMR’s submissions to Medicare . . . [was] not acces sible by any paramedics or EMTs such as Fabula.” Id

. 7 The billing proce dures e stablished by AMR thus (advertently or inadvertently) made itvirtual ly i mpossible for most employees to have acces s to allof the information necessar y to certify on pers onal knowledge both that a particular invoi ce was submitted for payment and that the facts stated to justify the invoice were false. The EMTs and paramedics who participated in the runs and wrote up the PC Rs had knowledge of the facts r ecited regar ding the runs (including any falsifications), which would be the basis for e stablishing whether the runs we re e li gible for Medicare re imbursement, but they had no acces s to the bill ing records establishing whether the r uns with all egedly falsifi ed re cords were in fact billed to Medicare. Conver sely, the accounting person nel who pres umably deal t with the billing and re imbursement proces ses kne w which invoices were s ubmit ted to Medicare, but had acces s to PCRs (that the TAC

The “garage” was AMR’s office in New Haven, C onnecticut where trucks and 7 ambulances were ke pt when not in use. 22all eges we re de liber ately falsi fied) only after the falsification was complete;

theref ore, the y pres umably were in a positi on to believe in good faith that, according to the information certifi ed by the EMTs and par amedics, the submitt ed runs qual ified for reimbursement. 8 In li ght of those particular circumstances, which are b ased on s pecific factual al legati ons that arewithi n Fabula’s knowledge and that we must assume to be true for pres ent purpos es, Fabula (and hen ce Ch orches ) was unable, withoutthe ben efit of discovery, to provide billing details for clai ms that AMR submitt ed to the gover nment for re imbursement. As a res ult, through no fault or lack of dil igence on their par t, plaintiffs lacked the abili ty to i dentify specific documents containing fal se claims that AM R submitted to the gover nment. The TAC does, h owever, make plausible allegati ons that the bills or invoices actual ly submitt ed to the gover nment were uniquely wi thin AMR’s knowl edge and control. It there fore e stablishes a basis for concluding that all egations regar ding the actual submi ssion of bills m ay be made on information and belief. But, as noted above, e ven wher e a plainti ff has alleged facts sufficient to permit fraud to The TAC appe ars to identify only one managerial empl oyee who b oth directed 8 the falsification of PCRs and was later promoted to a position overse eing the bill ing qu ali ty control unit

. 23be pled on information and belief, the complaint must stil l “adduce specific facts

supporting a strong infer ence of fr aud.” Wexner , 902 F.2d at 172. 2. The TAC Alleges a Basis for a Strong Inference that Specific False Claims Were Indeed Submitted to the Government. “[F]raud under the FCA has two components: the defe ndant must submit or cause the submission of a clai m for payment to the government, and the claim for payment must itself be false or fraudulent.” U.S. ex rel. Hagerty v. Cyberonics, Inc. , 844 F.3d 26, 31 (1st Cir. 2016). To begin with, there is littl e dispute that insofar as AMR’s sche me of falsifying PCRs is concer ned — as distinct from its subse quent submissi on of any claim for payment — the TAC “state[s] with particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). Indeed, even in dismissing the TAC for failure to identi fy “with particu larity any specifi c false claim s that were actually submi tted to the federal gover nment for payment,” the district court noted that “the TAC all eges, in some de tail, a scheme of fraud, i.e. [AMR’s] falsely compl eting PCRs.” J.A. 309-10, n.6. The TAC, over forty pages long, details the specifics of a scheme whe reb y AMR falsi fied PCRs so as to cer tify runs as “medicall y neces sary” and thus rende r them reimbursab le by the gover nment. It nam es supe rvisory per sonnel at

24AMR’s offices in New Haven who instructed paramedics and EMTs to revise

PCRs to insert false information. It i dentifies not only the ti me period of Fabula’s employment, Augu st 2010 to Decembe r 2011, as that during which the fraudulent scheme took place, but also provides dates , both pre cise and approx imat e, with resp ect to many particul ar runs for which Fabula was later asked to falsify a PCR. It explains both the scheme itself and the method by which AMR executed the scheme: how Medicare reimbursed AMR only for ambulance trans ports that qual ified as medi callyneces sary; how the EMTs and p aramedics were required to complete PCRs to document their runs; and how AMR supervisor s provided hard-copy markups (that wer e later destr oyed) to the EMTs and paramedics and order ed them, under thr eat of suspen sion or termination, to revise fieldgener ated PCRs with false or misleadi ng information such that runs could be certified as medicall y neces sary. In addit ion to al leging that A MR falsi fied PCRs on a daily basis, and identifying the types of patients whos e PCRs wer e routinely falsifi ed, the TAC details m any specific runs — pr oviding information such as the date, patient name, and original reason for the transpor t — for which Fabula was told t o alter a PCR with fal se or misl eading informati on. These all egations are not mere ly

25gener al or conclusory. Her e, as an e xample, is one such allegati on vis-à-vis a

particular set of runs that Ch orches claim s, upon information and belief, was submitt ed to Medicare for reimbursement:

[Patient nam e re dacted] (now dece ased) of [addr ess redacted] in Ne w Haven, was a gr ossly overweight man and a diabetic, and he called 911 for an ambulance on a dail y basis — six dozen times during 2011 — to bring him t o his medicalfacili ty — for his insuli n. Paul Fabul a was directed, under threat of be ing put on unpaid l eave, to change and falsely certify the electronic en try of the PCRs in order to say that [patient] had diffi culty remaining in an upright posi tion i n order to qual ify [patient’s] runs in the ambulance for Medicare /Medicaid reimbursement. Fab ula di d as he was or dere d, and upon information and belief they were sub mit ted to Medicare for p ayment. TAC ¶ 108. 9 We note that it is easy to im agine innocent explanations for at least some of the 9 alterations identi fied in the TAC. It i s not a crime for a medical service provider to endeavor to make sure that its personn el omi t no fact about a case that would legit imat ely render a particular service re imbursable by the patient’s (governmental or pr ivate) insurer. Some s uch facts (such as thos e about a patient’s history) mi ght not be known b y the ambulance pers onnel res ponsible for a par ticul ar run; othe r facts might be inadvertently omi tted in fiel d-gener ated repor ts because their significance to the bil li ng proce ss was not appr eciated by an EMT or a paramedic whose pr incipalconcer n was the immediat e health and safety of the patient. Thus, whether discovery willsupport or r efute the TAC’s all egations cannot be knownat this ti me. Never theless, the TAC directly and specificall y all eges that at least some of the facts that Fabula was asked to inser t were f latl y false, and that other facts ab out the patient’s history, whil e per haps 26Those allegations detailspecific and plausible facts from which we may

easily i nfer, fo r pre sent purpo ses, that AMR systematical ly fal sified it s rec ords to support false claims that ambulance runs we re medically necessary and thus reimbursable. S uch an infere nce of falsity is central to al leging the submission of false claim s. As the Fifth Circuit has explained,

[s]tanding alone, raw bills — even with number s, dates, and amounts — are not fraud without an underlying scheme to submit the bill s for unpe rformed or unneces sary work. It is the scheme in which particular circumstances constituti ng fraud may be found that make it hi ghly li kely the fraud was consummated through the pr esen tment of false bill s. U.S. ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 190 (5th Cir. 2009). Accordingly, Chor ches has sufficientl y pled the allegati on, criticalto stating an FCA qui tam claim, that records were in fact falsified. He must also plead, however , that the false recor ds were actuall y pres ented to the government for reimbursement. As n oted above, although Chor ches puts forth particularized all egations of a scheme to falsify recor ds, and des cribes specific instances of the implementati on of that scheme, he does not — and, for

li terally true, did not provide an accurate reas on for the r un and were thus misl eading. We must assume for pre sent purpo ses that those all egations are true

. 27reaso ns set for th above, he cannot — allege on pers onal knowledge (of himself or

of Fabula) that fal se claims were submitted to the government. We conc lude, however , that the TAC sets for th facts supporting a strong infer ence that they

were. First, Chorc hes alleges that Fabula was explicitl y “informed by [AMR supervisor s who directed the s cheme] that the re visions were r equired to qu ali fy the run for Medicare re imbursement.” TAC ¶ 33. Moreove r, the TAC identifies specific instances in which AMR supervisors e xpre ssly asked for a PC R to be falsifi ed in order to qual ify a run for Medicare r eimbursement. These all egations are har dly i mplausible, or eve n surpr ising, i n light of the sche me of falsifi cation that Chorch es ass erts (b ased on Fab ula’s personal knowledge) was e ffectuated by AMR. Indeed, it i s difficul t to conceive of a reas on why AMR would go through the trouble of quali fying runs as medicall y neces sary if not to clai m reimbursement for them. Thus, in all eging that supervisors s pecificall y refe rence d Medicare as the provider to whose requirements the allegedly falsi fied revisions were intended to conform, the TAC s upports a stron g inference that false clai ms were s ubmit ted to the government . Moreover , in li ght of the significant share of runs that ar e

28reimbursed b y Medicare and Medicaid (as distinct from private insurance), it is

highly l ikely that any systematic scheme for documenting fabricated medical

neces sity for ambulance services will indeed r each the gove rnmental insurers

. 10 While i t can be hypothe sized, as AMR indirectly suggests, that AMR falsifi ed PCRs for r uns that were “b il led to payors other than Medicare, billed for a denial, or not billed at al l,” Appell ee’s Br . 50, any such conclusory de fense of the underlying scheme is not per suasive at the pleading stage. If the all egations as to the falsification scheme are true, as we must assume at the pleading stage, it i s highly i mplausi

ble to suggest that the res ulting recor ds were never submitt ed to

The TAC alleges that between40% and 70% of AMR’s b usiness in New Have n 10 during the period in question i nvolved Medicare or Medicaid patients. This suggests that any systematic scheme for doc umenting fabricated medical neces sity for ambulance services would indeed re ach the gover nmental i nsure rs. More fundamentally, regardless of the li kelihood that any particu lar run would be billed to Medicare, the key issue is the likelihood that a run associated with a falsified PCR was bill ed to the gover nment. The super visors who aske d Fabula to falsify P CRs spe cifical ly refere nced Medicare, s uggesting that the falsi ficati on of recor ds may have bee n particularly necessary to se cure r eimbursement from feder al i nsurance programs. We must take as true that the supervisor s made these s tatements, and we see no basis, at the pleading stage, for failing to t ake the supervisor s at their word that it was Medicare, rather than a private insurer, for which particul ar falsificati ons wer e gene rated. 29the feder al government for r eimbursement. Accordingly, AMR fai ls to diffu se 11 the strong infer ence that it submitt ed false claims to the gover nment that arises from the admissions all egedly made to Fabula by his supervisors at AMR that Medicare was the s pecific target of the fabricated medical necessity clai ms that the alleged scheme gene rated. We are theref ore s atisfied that the TAC makes plausible and particularized factual al legati ons leading to a strong inferen ce that AMR did in fact submit fal se claim s to the govern ment.

3. Permitting Pleading on Information and Belief on These Facts is Consistent with the Purposes of Rule 9(b) and of the False Claims Act. In applyi ng Rule 9(b) to the submission of false clai ms under sub sections 3729(b)(2)(A) and (B) of the FCA, we dec li ne to re qui re that eve ry qui tam

Under an alogous circumstances, our sister circuits have re asoned as we do 11 here

. See Foglia v. Renal Ventures Mgmt., LLC , 754 F.3d 153, 158 (3d Cir. 2014) (“While both scenar ios are poss ible, it is unclear what would m otivate the second, as it woul d expos e [defe ndant] to possible sanctions for failure to comply with requi red pr ocedure s, and would not provide any financial incentive.”); Grubbs , 565 F.3d at 192 (the particularized al legati ons “that specified, unprovided services were r ecorde d amounts to m ore than pr obable, nigh likely, circumstanti al evidence that the doctors’ fr audulent records c aused the hos pital ’s bill ing system in due course to pre sent fraudulent claim s . . . . It woul d stretch the imag inati on to infer the inver se; that . . . they continuall y recor d unprovided services only for the sche me to deviate from the regular billing track at the last moment so that the recorde d, but unprovided, ser vices never get bill ed.”). 30complai nt all ege on pe rsonal knowledge spe cific i dentified false invoi ces

submitt ed to the gover nment. As set for th above, a complaint can sati sfy Rule 9(b)’s par ticul arity requirement by maki ng plausible al legati ons cre ating a strong inference that specific false clai ms were s ubmit ted to the governmen t and that the information that w ould permit fu rther identifi cation of those claim s is peculiarly wi thin the opposing party’s knowledge. That standard “must not be mistaken for license to base claim s of fraud on speculation and conclusory all egations.” Wexner , 902 F.2d at 172. A relator must make all egations that lead to a strong inference that specific clai ms were indee d submitt ed and also plead that the particulars of those claims were peculiarly withi n the opposing par ty’s knowledge. Those r equirements ensure that those who can identify examples of actualclaim s mustdo so at the pleading stage. Cf

. U.S. ex rel. Clausen v. Lab. Corp. of Am. , 290 F.3d 1301, 1314 n.25 (11th Cir. 2002) (rejecting argument for a “more lenient pleading standard” where r elator was “not without

avenues for obtaining information” and his “conclusory statements [were ] insuffici ent to justify relaxati on”). The pleading standard we apply accords with the text of Rul e 9(b), which requires “the circumstances co nstituting fraud” to be pleade d with particul arity.

31Our standard is also mindful of the purposes of both Rule 9(b) and the False

Claims Act. An interpr etation of Rul e 9(b) that re qui res qui tam plainti ffs to plead bill ing detail s regar ding the submission of specific fal se claims, even when knowledge of such details is peculi arly within the defendan t’s purview, would discourage the filing of m eritorious qui tam suits that can expose fr aud against the govern ment. Under that appro ach, by simply i nsulati ng its accounting department from per sonnel with operational knowledge, a corporate fr audster could ensure that few e mployee relators could successfully plead both the falsity of recor ded information and the pres entment of a claimcontaining those falsehoods. As in this case, the li ne worke rs who falsify paperwor k or witness the fraud could not show that clai ms were in fact submitted, whil e the accountants who submit the clai ms would be unaware of the par ticul ars of any falsificati on, and per haps to the en tire scheme itself. It i s not the purpos e of Rule 9(b), as applied to FCA qui tam actions, to render the FCA toothless as to par ticul arly clever fr audulent schemes. See U.S. ex rel. Lusby v. Rolls-Royce Corp. , 570 F.3d 849, 854 (7th Cir. 2009) (any re qui rement that the re lator plead detail s regar ding bill ing packages “takes a big bite out of qui tam li tigat ion”). Instead, Rul e 9(b) is “designed to provide a de fendant with fair notice of a plaintiff’s clai m, to

32safeguard a de fendant’s r eputation from im provident charge s of wrongdoing,

and to protect a defe ndant against the institution of a strike suit .” Ladas , 824 F.3d at 25 (internal qu otation m arks omitted). All owing the complaint in thi s case to go forward doe s no violence to those pur poses. First, “it i s the pleading of the circumstances of the alleged fraud with a certain amount of precision that serves [Rule 9(b)’s] purpose by apprising the defendan t . . . of the nature of the claim and the acts or statements or failu res to disclose relied upon by the plaintiff as constituting the fraud b eing charged.” 5A C. Wright et al., Fed. Prac. & Proc. § 1297 (3d ed. Apr il2017 Update). “[T]he point of Rule 9(b) is to ensure that ther e is sufficient substance to the allegations to both afford the de fendant the oppo rtunity to prepare a r espons e and to warr ant further judicial process.” U.S. ex rel. Heath v. AT & T, Inc. , 791 F.3d 112, 125 (D.C

. Cir. 2015). As de tail ed above , the TAC pr ovides ample detail s as to the nature of the alleged scheme, as well as to particular instances in which the scheme was, to the per sonal knowledge of the original relator, all egedly carried out. While i nvoice numbers an d the dates of their s ubmission woul d undoubtedly have put AMR on notice of specific clai ms all egedly submitted to the govern ment, so do details provided in the TAC (such as dates ofruns, patient

33names, actual reasons for the transpor t, and the information entered into PCRs)

with respect to spe cific runs for which false claim s were all egedly submitted. That level of noti ce is espe ciall y fair and adequate given that AMR — and not its ambulance person nel — is “in possession of the most re levant records , such as . . . internal bill ing records , with whi ch to defend onthe grounds that alleged falsely-recorde d services were n ot recor ded [or] we re not b il led for.” Grubbs , 565 F.3d at 191. 12 Second, wh il e we acknowledge that AMR’s “rep utati on in the health field is valuabl e and should not be e asily t arnished,” App ellee’s Br. 38, that concer n does not inoculate AMR agai nst qui tam li abili ty under the FC A such that no relator — eve n one who, as discussed in the pre ceding subsec tions, has overcome our demanding Rule 9(b) pleading requi rements — cansurvive Rule 12(b)(6) dismi ssal. The allegati ons of fraud made b y the TAC are sufficientl y strong to

Moreover, “[s]ubjecting qui tam relators to a per se rule r equiri ng the 12 identifi cation of specific fal se claims” based on per sonal knowledge is not neces sary in FCA qui tam cases to pr ovide the government with information neces sary to decide whe ther to interven e in the case, s ince the govern ment “rare ly i f ever needs a relator’s ass istance to identify cl aims for payment that have be en submitted to the United States. Rather, re lators typical ly contribute to the govern ment’s enfor cement effor ts by br inging t o light other information that shows those claim s to be false.” Br . for the United States as Amicu s Cur iae 16, U.S. ex rel. Nathan v. Takeda Pharm. N. Am., Inc. , 134 S. Ct. 1759 (2014). 34justifyfurther inquiry to determine whether AMR does or does not deser ve an

unblemished reputation for integrity, even without further particularizati on of the invoices or bills submit ted to the governmen t. Third, the allegati ons in the TAC ar e also sufficientlyrobust to allay any fear of unde rmining Ru le 9(b)’s purpos e, cited by AMR, of preve nting strike suits and the concomitant pressur e to settle such suits due to the pres sure of litigation costs. The TAC is not, as AMR claim s, “an unjustifi ed ticket to di scover y” that is founded on “conclusor y and insufficient al legati ons.” Appellee’s Br . 43; see also Madonna v. United States , 878 F.2d 62, 66 (2d Cir. 1989) (“One of the purpos es of Rule 9(b) is to di scourage the filing of complai nts as a pre text for discover y of unknown wrongs.” ( internal quot ation marks omi tted)). To the contrary, b y all eging with parti cularityAMR’s scheme to falsify PCRs in order to quali fy runs as medicall y neces sary, and identifying particul ar case s in which that scheme

was carr ied out, Fabula has “overcome the bar ere cted by Rule 9(b) to spurious charges or frivolous lawsuit s.” Clausen , 290 F.3d at 1317 (Barkett, J ., dissenting). Fabula’s plausibl e and par ticul arized allegati ons are amenable to a targeted discovery pr ocess that could lead to a swift resoluti on of the lawsuit, especiall y if

35AMR has not commi tted the fraud alleged. 13

Finall y, it bears re membering what Rule 9(b) actual ly requi res. The Rule provides that “[i]n all eging fraud . . . , a party must state with parti cularitythe circumstances constituti ng fraud.” Fed. R. C iv. P. 9(b). The rule demands specificity, but unli ke such sub stantive reforms as the Private Securities

“[I]n allmatters relating to di scover y, the district court has broad discre tion to 13 li mit discovery in a pruden tialand propor tionate way.” EM Ltd. v. Republic of Argentina , 695 F.3d 201, 207 (2d Cir. 2012). Thus, on r emand, the district court has the power to tail or a discovery p roces s that suits the case at hand. See Grubbs , 565 F.3d at 191 (“Rul e 9(b) sh ould not be made to shoulder all the bur den of policing abusive discovery. Its balance dr aws upon the vigil ant hand of the district court judge.”). Where a qui tam relator identifies repre sentative examples of false claim s or, as h ere , makes allegati ons leading to a strong inferen ce that specific false claim s were submitt ed, defe ndants could ini tial ly be required to provide discovery only with respect to the cas es identified in the compl aint. I f no genuine dispute of materialfact is found to exist as to whether false claims were in fact submitt ed in that li mit ed set of cas es, the lawsuit woul d be at or n ear its end. See id . (“Discover y can be pointed and e fficient, wi th a summary judg ment foll owing on the hee ls of the complai nt if bil li ng recor ds discredit the complaint ’s particularized al legati ons.”). If the initi al inqui ry produce s evidence that se ems to bear out the complaint’s asser tions, however, the door could be ope n to broade r discovery without fear of subjecting an innocent defe ndant to burdens ome and unjustifi ed inqui ries. See TAC ¶¶ 110, 114 (stating that false clai ms not specificall y all eged “can b e re adil y identifi ed by, and fr om, the existence of mul tipl e ver sions of electronic PCRs for any particular run that has bee n submitt ed to Medicare for payment”). We do not under take to direct any particular approach to regulating discovery; that is l eft to the discretion of the district court. We note only that l imi tati ons on discover y to preven t open-ende d, expe nsive fishing expeditions are plainly avai lable. 36Liti gation Reform Act of 1995 (PSLRA), i t does not elevate the s tandard of

certainty that a pleadi ng must attain beyond the ordinary level of plausibil ity. 14 Nor doe s it forbid pleading upon informat ion and belief where , as her e, the circumstances justify pl eading on that basis. See Wexner , 902 F.2d at 172. Thus, as noted above, Rule 9(b) de mands that the pleading specify (1) the fraudulent statements, (2) the spe aker, (3) whe re and wh en the statements we re made, and (4) why the statements wer e fraudulent. See Ladas , 824 F.3d at 25. The TAC amply satisfies that standard: (1) it contends that AMR falsely stat ed facts to make specific ambulance runs appear medical ly necessar y when they wer e not, and explains the nature an d signifi cance of those falsifi ed facts; (2) it identi fies that the speake r was, br oadly, AMR, and m ore s pecificall y, Fabula or other identified EMTs or paramedics who wer e re qui red b y their super visors to include such The PSLRA requires plaintiffs to stat e with particul arity the facts evidencing 14 scienter: “[T]he complai nt shall, wi th resp ect to each act or omission all eged to viol ate this chapter, state with particulari ty facts giving rise to a strong infer ence that the defendant acted with the re qui red state of mind.” 15 U.S.C. § 78u–4(b )(2). But unli ke Rule 9(b), which remains subject to the plausibil ity standard, under “the stricter de mand [that] Congres s sought to convey” in the PSLRA, “an inference of scienter must be more than merely plausible or reason able – it must be coge nt and at least as compell ing as any opposing inferen ce of nonfr audulent intent.” Tellabs, Inc. v. Makor Issues & Rights, Ltd. , 551 U.S. 308, 314 (2007). Thus, our applicati on of Rule 9(b) in the FCA qui tam context leaves unaffe cted our interpretation of § 78u–4(b)(2), or its appli cation i n future case s. 37falsifi ed facts; (3) it states that the statements were made in PCRs that were, on

informati on and be li ef, submitted to Medicare or Medicaid for reimbursement on dates close in tim e to the dates of the specified runs within the li mit ed time period during which Fabula knew of and participated in the scheme; and (4) it explains that the statements were fraudulent in that they asse rted false facts warranting a false infere nce that the runs were medically necessar y and thus eligible for Medicare reimbursement. Rule 9(b) r equires nothing more. In sum, the TAC satisfies Rul e 9(b)’s p articulari ty requirement as applied to FCA qui tam claim s.

4. Our Holding in this Case Accords with the Emerging Consensus in our Sister Circuits, and is Fully Consistent with our own Precedents. We re cently acknowledged — without taking any positi on of our own — a seeming “circuit spli t regarding whethe r, to satisfy Rule 9(b), an FCA re lator all eging a fraudulent scheme must provide the details of specific examples of actual fal se claims presente d to the government.” U.S. ex rel. Polansky v. Pfizer, Inc. , 822 F.3d 613, 619 (2d Cir. 2016). On fur ther cons ideration, we conclude that our holding today i s consistent with the law as generally stated by a majority of our sister circuits, and that the rep orts of a circuit spli t are, like those pre maturely

38repor ting Mark Twain’s death, “gr eatly exaggerated.” As the various Circuits

have confr onted differen t factualvariations, differences in broad pronounce ments in early cases have beenrefined in ways that suggest a case -bycase appr oach that is more consistent than might at fi rst appear . Our holding today i s clearly consistent with the approach taken b y the Third, Fifth, Seventh, Ninth, Tenth, and D .C. C ircuits, whi ch have ove rtly adopted a “more lenient” pleading standard. Those c ourts have allowed a complai nt that does not allege the details of an actual ly submi tted false clai m to pass Rule 9(b) muster by “alleging particul ar details of a scheme to submit false claim s paired with reliable indi cia that l ead to a strong infer ence that claims were actuall y submitt ed.” Grubbs , 565 F.3d at 190 (5th Cir. 2009); U.S. ex rel. Lemmon v. Envirocare of Utah, Inc. , 614 F.3d 1163, 1172 (10th Cir. 2010) (adopting Grubbs standard); Ebeid ex rel. U.S. v. Lungwitz , 616 F.3d 993, 998-99 (9th Cir. 2010) (same); Foglia v. Renal Ventures Mgmt., LLC , 754 F.3d 153, 156-57 (3d Cir. 2014) (same); Heath , 791 F.3d at 126 (D.C. C ir. 2015) (same); cf

. Lusby, 570 F.3d at 854 (7th Cir. 2009) (“We don ’t think i t essen tialfor a re lator to produce the invoices

39(and accompanying repr esen tati ons) at the outset of the s uit.”). 15

In arguable conflict, at

least at first gl ance, are decisions from circuits that have pro fesse d to apply a “stricter” standard for p leading the submission of fal se claim s. In Clausen , the Eleventh Circuit held that Rul e 9(b)’s h eightened pleading standard r equires “some indici a of reliabili ty . . . to support the allegati on of an actual false claim for payment be ing made to the [g]overnment.” 290 F.3d at 1311 (emphasis in original ). The First, Fourth, and Sixth C ircuits have relied on Clausen to require, broadly speaking, that a relator allege details i dentifying actu al false claim s submitted to the government. Simi larly, the Eighth Circuit has held that 16 AMR argues that the TAC fails to satisfy even the re laxed pleading standard of 15 Grubbs , Lusby, Lemmon , Ebeid, Foglia , and Heath . While each of those case s addres ses a distinct (and hence potentiall y disti nguishable) set of allegati ons, we find unpersuasive AMR’s interpr etation of their respe ctive holdi ngs. More importantl y, we are n either bound b y, nor do we adop t wholesale, either the announced pleading standard p urportedly adopted in those cas es or the particular results reache d in each of them. We simply expres s our view that a complai nt that satisfi es our pleading standard also satisfies that of the Third, Fifth, Seventh, Ninth, Tenth, and D .C. C ircuits, and that our analysi s is broadly consistent with that of those courts. See U.S. ex rel. Karvelas v. Melrose-Wakefield Hosp. , 360 F.3d 220, 232-33 (1st Cir. 16 2004), abrogated onother gr ounds by Allison Engine Co. v. U.S. ex rel. Sanders , 553 U.S. 662 (2008) (adopting Clausen standard to hold that “a relator must provide details thatidentify parti cular false clai ms for payment that were s ubmit ted to the govern ment,” such as “details concerning the dates of the claim s, the conten t of the forms or bill s submitted, their identi ficati on numbers , the amount of 40a relator’s complaint does not satisfy Rul e 9(b) whe re it “fail s to identify even one

example of an actual false clai m submit ted.” U.S. ex rel. Dunn v. N. Am. Mem’l Health Care, 739 F.3d 417, 420 (8th Cir. 2014). Howeve r, the dec isions from those Circuits are in fact more nuanced ( as are thos e from the C ircuits adopting a more “lenient” standard) and leave ope n unres olved possibili ties such that any “split” betweenthem and decisions from the more lenient circuits is not, we think, a sharp on e. 17 In any event, whethe r such a sp li t can be identified in the broad language

money charged to the gove rnment”); U.S. ex rel. Bledsoe v. Comty. Health Sys., Inc. , 501 F.3d 493, 510 (6th Cir. 2007) (re lyi ng on Clausen and Karvelas to hold that “where a relator pleads a complex and far -reach ing fraudulent scheme,” he must also “provide[ ] examples of sp ecific fal se claims submi tted to the government”); U.S. ex rel. Nathan v. Takeda Pharms. N.A. , 707 F.3d 451, 456-58 (4th Cir. 2013) (adopting Clausen standard to hold that “when a defe ndant’s actions, as alleged and as re asonably inferr ed from the allegations, could have l ed, but nee d not neces sarily have led, to the submission of false clai ms, a relator must all ege with particularity that specific fal se claims actual ly were pre sented to the gove rnment for payment.” (emphasis omitted)). In a 2014 ami cus brief sub mit ted in respon se to a Supr eme Cour t order inviting 17 the Solicit or Gener al to expres s the views of the United States onwhether a relator must identify specifi c false claim s submitted for payment, the govern ment explained that whil e circuits “have reach ed inconsistent conclusions about the precise manne r in which a qui tam relator may satisfy” Rul e 9(b), it is not a “clearly defined” disagreement. Br. for the United States as Amicus Curiae 10, Nathan , 134 S. Ct. 1759. 41of the cases is not particul arly meaningfulhere . It i s far fr om clear that Circuits

that have adopted the str icter pleading standard — but at the same time declined to im pose an ineluctable bright-line rule that everyrelator allege details of actual claim s submitted — woul d disagree with our decision in this case. Indeed, the TAC includes some details regarding submitted cl aims thatthose C ircuits have identifi ed as abs ent from insufficientl y particulari zed complaints. The Sixth Circuit, for ex ample, i n adopting the “stricter” pleading standard, ex pres sly noted that it did not “i ntend to fore close the poss ibil ity of a court relaxing this rule in circumstances where a r elator demonstrates that he cannot allege the specifics of actual fal se claims that in all l ikelihood exist, and the

reaso n that the relator cannot pr oduce such allegations is not at tributable to the conduct of the relator.” U.S. ex rel. Bledsoe v. Cmty. Health Sys., Inc. , 501 F.3d 493, 504 n.12 (6th Cir. 2007); see also Chesbrough v. VPA, P.C. , 655 F.3d 461, 471 (6th Cir. 2011) (leaving open a simi lar possibili ty). The Sixth Circuit has re cently 18

Simi larly, the Fourth Circuit di d not consider its holding in Nathan to conflict 18 with thatof cases ado pting the more lenient pleading standard: “In contrast to cases s uch as [ Grubbs ], [r]elator’s claim does not involve an int egrated s cheme in which prese ntment of a clai m for payment was a neces sary r esult.” 707 F.3d at 460, 461 (rejecting relator’s “as sertion that, if a pati ent is insured under a government pr ogram, [a court] reas onably may i nfer that any pr escr ipti on the patient received for anoff-label use was fill ed and that a claimwas pre sented to 42suggested that “a re lator may . . . survive a motion to di smiss by pleading specific

facts base d on her pers onal bill ing-related knowledge that support a strong inference that specific false clai ms were s ubmit ted for payment.” U.S. ex rel. Prather v. Brookdale Senior Living Communities, Inc. , 838 F.3d 750, 773 (6th Cir. 2016). In doing so, it

noted more gen erally that “[e]very circuit that has appli ed a heightened standar d . . . has re treated fr om such a requirement in cases in which other de tail ed factual all egations support a stron g inference that clai ms were submitt ed.” Id . at 772. Furthermore, it appear ed to recogn ize that i n a situati on in which “specific all egations of the defen dant’s fraudulent conduct neces sarily led to the plausible i nfere nce that false claim s were pres ented to the gover nment,” a plainti ff might survi ve a motion to di smiss. Id

. (internal quot ation marks omit ted). Such allegations, as detail ed above , are pr esen t in the instant case. the govern ment”). It i s thus a consider able exagger ation to consider the Fourth Circuit to be in direct confli ct with Grubbs . Moreover , the Fourth Circuit appears to have distingui shed its holding in Nathan from a case suchas the pr esen t one, in which plaintiffs have alleged the kind of “integrated scheme in which pres entment of a claimfor payment was a ne cessar y result” that was not all eged in that case. Id . at 461. Furthermore, in dismissing the qui tam suit in Nathan , it disti nguished a case pe rmitting a relator to plead an adequate basis for an inference that false clai ms were s ubmit ted by noting that the relator in that case had pleaded “spe cific detai ls of false clai ms,” inclu ding, among these details, “the dates of the alleged violati ons” and “details of the purpor ted violations.” 707 F.3d at 457 n.6. Both of those types of allegations are pr esen t in the TAC. 43Theref ore, we fail t o see h ow our holding can be constr ued as in conflict wi th the

Sixth Circuit’s prece dents. The standard in the Eleven th Circuit, the originator of the “strict” pleadi ng standard der iving from Clausen , has itself evolved in the years following that decision into a “nuanced, case-by-cas e approac h, [wher eby] other means are avail able to pres ent the re qui red indicia of reliabil ity that a false claimwas actuall y submitt ed.” U.S. ex rel. Mastej v. Health Mgmt. Assocs., Inc. , 591 F. App’x 693, 704 (11th Cir. 2014). Indeed, C horche s’s allegati ons are analogous to those that the Eleventh Circuit, in yet another case, de emed “sufficient to explain why [a relator] be li eved [the de fendant] submitted false or fraudulent claim s for services rende red b y nurse p ractiti oners and physician assistants.” U.S. ex rel. Walker v. R&F Properties of Lake Cty., Inc. , 433 F.3d 1349, 1360 (11th Cir. 2005) (where the relator — unlike Clausen ’s “corpor ate outsider” who made speculative

asser tions but qu ite li ke Fabula — was a nurse practitioner in the defendant’s employ whose conver sation about bil li ng practices with the office manager formed the bas is for her belief that clai ms were actually submi tted). 19

In a case wher e plainti ff “was able to plead pers onal, first-hand knowledge of 19 [the] submission of false claim s” given her managerial positi on, the Eighth Circuit held that “a relator can satisfy Rul e 9(b) without pleading repres entative 44Finall y, “although [ Karvelas ] cites Clausen and formulates its own strict

standard, the facts b efore it di d not require the [First Circuit] to reach the question of whether all compl aints all eging [an FCA] pr esen tment clai m mu st include detai ls of specific bil ls.” Grubbs , 565 F.3d at 187. Moreover , unli ke the complai nt dismi ssed in Karvelas , the TAC her e contains many of the “details” that the First Circuit deemed relevant for purpose s of “identify[ing] parti cular false claim s for payment:” the s upervisors involved i n the fraudulent sche me, dates for se veral runs, an d both the conten ts of PCRs for thos e runs and particular services for which the gover nment was allegedly bi ll ed. Karvelas , 360 F.3d at 232; see id . at 232-35. More re cently, in a “qu i tamaction in which the defen dant 20

examples of false claims i f the re lator can otherwise plead the ‘par ticul ar details of a scheme to submit false clai ms paired with reliabl e indicia that lead to a strong infere nce that claim s were actuall y submitted.’” U.S. ex rel. Thayer v. Planned Parenthood of the Heartland, 765 F.3d 914, 917-18 (8th Cir. 2014), quoti ng Grubbs , 565 F.3d at 190; cf

. Ebeid, 616 F.3d at 999 (declini ng to relax “traditional pleading standards for fr aud under Rule 9(b)” wher e re lator was an “outsider” because “the FCA is gear ed primarily t o encourage insiders to disclose informati on nece ssary to pr event fraud”). The Eighth Circuit has stated that a relator “must provide some repr esen tati ve 20 examples of [defe ndant’s] fraudulent conduct, specifying the time, pl ace, and content of their acts and the identity of the actors.” Dunn , 739 F.3d at 420, qu oting U.S. ex rel. Joshi v. St. Luke's Hosp., Inc. , 441 F.3d 552, 557 (8th Cir. 2006). The TAC makes those types o f allegati ons. 45induced third parties to fil e false claims,” the Fi rst Circuit adopted a “more flexible

standard” such that “a r elator could sati sfy Rule 9(b) by providing factual or statisti cal evidence to strengthe n the infere nce of fr aud beyond pos sibili ty withoutneces sarily providing detai ls as to each false claim.” U.S. ex rel. Duxbury v. Ortho Biotech Prods., L.P. , 579 F.3d 13, 29-30 (1st Cir. 2009) (internal quotati on marks omitt ed; emphasis in original). Al though Chor ches alleges that AMR, and not a third party, submitt ed the false claims, the third-party rationale is pers uasive where , as her e, the complaint i s “specific” and “systematic” in all eging the submission of false claim s, and the b il li ng department was effectively a separate e ntity t o ambulance person nel who were barr ed from accessing it. Hagerty, 844 F.3d at 32. In short, we do not view our interpr etation of Rul e 9(b) to be in confli ct with thatof our sister C ircuits. Nor do we see our holding as adopting a “l enient” pleading standard. We simply apply the basic rules of Rule 9(b) to a particular 21

The district courts in thi s Circuit that have confronted this issue have tended to 21 apply the “stricter” pleading standard, re asoning, for ex ample, that “ Grubbs would l ikely not be accepted as the law of this Circuit. Clausen and Karvelas are more consistent with decades of S econd C ircuit precedent.” U.S. ex rel. Corp. Compliance Assocs. v. N.Y. Soc’y. for the Relief of the Ruptured & Crippled, Maintaining the Hosp. for Special Surgery, No. 07 Civ. 292, 2014 WL 3905742, at *15 (S.D.N .Y. Aug. 7, 2014). However, at least some of those courts have r eached that 46set of allegati ons.

For that reas on, we reject AMR’s cit ation of our opinion i n Ladas as a decision “from this Court [that] is not supportive” of Chor ches’s position. Appellee’s Br. 51. AMR’s re li ance on Ladas — which issued a week after Polansky and did not grapple with the issue of prese ntment that Polansky identifi ed but ulti mately l eft unres olved — is mi splaced. Ladas was an impl ied false 22 certificati on case whe re the r elator brought a qui tam claimall eging that certain devices wer e falsely certified as conforming to the terms of a procur ement contract with the government. More specificall y, he “alleged that required forms relating to quali ty assurance and payment were filed wi th the U.S. upon shipping, [falsely] certifyi ng that li sted items conform to contract.” Ladas , 824

conclusion based on a misunders tanding that appl ying the Grubbs standard is tantamount t o not applying Ru le 9(b). In any event, the s tandard we apply in this case is distingui shable fr om that of Grubbs

. The relator in Polansky, all eging that his former employer “improperly 22 marketed [a drug] as app ropriate for patients whose risk factors and cholestero l levels falloutside the National Cholesterol Education Program G uidelines,” did not provide details of actualfalse claim s pre sented to the gove rnment. 822 F.3d at 614. But because this Cour t affirmed the district court’s di smissal of the clai ms on the basis that “the FDA’s approval of [the drug] was n ot depende nt upon compli ance with the Gui delines,” it di d not need to, and e lected not to, take a position on the issue of pres entment. Id . at 614, 619. 47F.3d at 26 (alt erations and internal quotati on marks omitt ed). “This, however ,

[was] the [complaint’s] only express refe rence to an all egedly false statement made to the government by de fendants in conne ction wi th a clai m for payment.” Id . As a res ult, the C ourt held that the relator’s complaint

did not contai n plausible al legati ons of fact that showed, as required for FC A purpose s, that any claimfor payment submitt ed by [def endants] was false o r that any of the devices de li vere d to the government failed to meet [c]ontract spec ifications. [Also, the] district court found that the [complai nt] does not include the specifics of any claim s submitted . . . . Id . at 27 (internal qu otation m arks omitted). Thus, the Ladas complaint, unli ke the TAC, failed to suffici ently plead the falsity of any submitted clai ms. Moreover , that decision, l ike Polansky, did not address whe ther “an FC A relator alleging a fraudulent scheme must provide the details of specific examples of actual fal se claim s pre sented to the gove rnment.” Polansky, 822 F.3d at 619. Accordingly, our holding i n this case is fully consistent wi th Ladas

. 23

Simi larly, our dispositi on of U.S. ex rel. Wood v. Applied Research Associates, Inc., 23 328 F. App’x 744 (2d C ir. 2008) (affirming the district court’s dismi ssal of a qui tam claim ) does not affe ct the outcome here. The all egations in this case are eas il y disti nguishable from those in Wood (where , as in Ladas , an inferen ce of falsity itself was wanti ng). Further more, unlike Chorche s, the re lator in Wood “d[id] not asser t any facts that are peculiarly wi thin the knowledge” of defendan ts such that he could make all egations based oninformati on and be li ef. Id . at 747 n.1. 48* * *

In conclusion, Ru le 9(b) does n ot require that every qui tam complaint provide details of actualbill s or invoices submitted to the government, so long as the relator makes plausible allegati ons, as C horche s does in the TAC , that lead to a strong infere nce that specific claim s were indeed submitted and that informati on about the details of the claim s submitted are peculiarly wi thin the opposing party’s knowledge. We theref ore r ever se the district court’s dismissal of the qui tam claimasser ted in the TAC. II. Fabula Has Adequately Stated a Retaliation Claim. Fabula argues that the district court erre d in holding that the SAC fails to state a claimfor re tali ation under § 3730(h) of the FC A. We agree

. A. The Retaliation Claim Was Not Abandoned. Before addres sing the substance of the claim, we must first consider AMR’s thresh old argument that Fabul a has “waived or aban doned his re tali ation cl aim by faili ng to replead it in the TAC.” Appellee’s Br. 28. Unde rstanding AMR’s position requi res a more detailed account of the procedural history in the district court. The SAC , filed by Fabula, pl ed both the qui tam and the re tali ation cl aims against AMR.

49In an opinion dated March 4, 2015, the district court held that Fabul a

lacked standing to bring the qui tam claim, which had become the pr operty of his bankruptcy es tate, but stayed dismi ssal to all ow the trustee of the bankruptcy estate to be s ubstituted as plaintiff to bring that cl aim. As to the re tali ation cl aim, which it concl uded Fabula did have standing to pursue, the court he ld that Fabula “has failed to stat e a claimfor re tali ation under the FCA” an d it di smissed the claim“with prejudice.” J.A. 209. Subse quently, the district court granted 24 trustee C horche s’s motion to j oin the case as a plaintiff for purposes of asser ting the qui tam claimon beh alf of the bankruptcy estate, and , on April 3, 2015, issued a text order “all ow[ing] Pl ainti ffs the oppor tunityto amend both counts of the second amende d complai nt.” J.A. 10 (emphasis added). Howeve r, the TAC, which was fil ed by C horche s — and whose caption li sts Chor ches as the sole “[p]lainti ff,” “[b]ringing this action on behalf of” the U.S., Fabula’s estate, and

At that point

, although the dism issal of the retaliati on claimwith prejudice was 24 a final di sposition of that claim , the orde r was an interlocutory orde r that was not imm ediately appealable, since it di d not dispose of the e ntire case, allowing for the possibility, which indeed eventuated, that the case would conti nue to be li tigat ed in the district court by the bankruptcy trustee . Nor was the substituti on of the bankr uptcy trustee for Fab ula wi th resp ect to the qui tam case appe alable by Fabula at that poi nt. Ashmore v. CGI Grp., Inc. , —F.3d—, 2017 WL 2661595, at *3 (2d Cir. June 21, 2017). 50Fabula (who retains a res idualinterest in his estate) — pled only the qui tam

claim . J.A. 330. Fabula did not fi le an amended ver sion of his retaliati on claim

. AMR does not dispute that the retaliati on claim, which arose s ever al months after Fabula’s bankr uptcy case had be en closed, be longs to Fabula indivi duall y and not, like the qui tam claim, to his bankruptcy estate. Rather , AMR contends, as it did below i n support of its motion to di smiss the TAC, that the district court’s April 2015 t ext orde r giving plaintiffs the opportunity to replead bo th counts modifi ed its March 2015 with-prejudice dismi ssal of the retaliati on claim, and that Fabula’s fail ure to re plead his retaliati on claimin the TAC thus ren ders that claim abandoned. Although the district court di d not addres s the issue of ab andonment in its November 6, 2015 dec ision di smissing the TAC, it held that “[b]ecause C horche s makes no attempt [in the TAC] to replead the r etaliation clai m, that cl aim i s dismissed with prejudice.” J.A. 293. This Court has pr eviously noted that “[a] di smissal wi th leave to amend is ordinarily a non-appealable order , but an appeal may be pursue d where the plainti ff disclai ms any intention to am end or wh ere . . . the district court sets a deadline for amending and the plainti ff does not amend within the deadline.” Salmon v. Blesser

, 802 F.3d 249, 252 n.2 (2d Cir. 2015) (citation omi tted). Therefor e,

51even as suming that the district court’s April 2015 t ext orde r re troactively m ade its earlier dismi ssal of the re tali ation cl aim a non-finalorder that is not ordinarily appealable, by neither joining Chor ches in the TAC n or re pleading the retaliat ion claimin a separate amende d complai nt of his own, Fabula render ed that “nonfinal order ‘final’ and appealable,” Slayton v. Am. Exp. Co. , 460 F.3d 215, 224 (2d Cir. 2006), subject to appe al after a final j udgment was entere d in the case. 25 Accordingly, the fil ing by Chor ches of the TAC, which pleads the qui tam claim and undoubtedly supers eded the S AC with respe ct to thatclaim, did not constitute an abandonment by Fabula of his entirely separate claimof retaliati on against AMR. I f Fabula believed that his retali ation cl aim w as adequately pl ed in the SAC , he was fully entitled to stand on the allegati ons of the S AC, and to appeal the dismissal of that clai m (when a final ju dgment was entere d in the

AMR’s view, expre ssed at or al argument, that the TAC was b rought by Fabula 25 in addit ion to Chorche s, is borne out neither by the TAC (as noted above in our account of the proce dural history) nor by the recor d more br oadly. SeeJ.A. 293 (“On April 24, 2015, Chorches filed the TAC . . . .” (emphasis added)). Howeve r, even if AMR were cor rect, this Cour t has in the past not “require[d] re pleading of a claimor defe nse that ex plici tly has been de nied.” In re Crysen/Montenay Energy Co. , 226 F.3d 160, 162 (2d Cir. 2000) (holding that fail ure to include an arbitration defens e in the amended ans wers afte r be ing denied an initi al motion to stay was not a waiver of the defe nse); Brown v. Daikin Am. Inc. , 756 F.3d 219, 223 n.1 (2d Cir. 2014). 52case), r ather than to attempt to replead his retaliati on claimto the district court.

B. Fabula Adequately Pled That He Engag ed in Protected Activity. The FCA’s an ti-retali ation provision provides in relevant part that [a]ny employee . . . shall be entitled to al l relief neces sary to make that employee . . . whole, if that employee . . . is discharged, demoted, suspe nded, threatene d, harass ed, or in any other manner discrimi nated against in the terms and conditions of employment because of lawful acts done by the employee . . . in furtherance of an action under this section or other efforts to stop 1 or more violati ons of [the FCA]. 31 U.S.C. § 3730(h )(1). The particularity requi rement of Rule 9(b) does not apply to retaliat ion clai ms under the FC A. See Weslowski v. Zugibe, 626 F. App’x 20, 20 (2d Cir. 2015) (in reviewing the Rule 12(b)(6) dismissal of a § 3730(h) clai m, stating, wi thout menti oning Rul e 9(b), that the complaint i s to be cons trued “liber all y” in accordance with Twombly and Iqbal ); accord, Smith v. Clark/Smoot/Russell , 796 F.3d 424, 433 (4th Cir. 2015) (stating that FCA retaliati on claim s “nee d pass only [Feder al Rul e of Civil Procedure] 8(a)’s r elativel y low notice-pleadings muster – in contrast to Rul e 9(b)’s s pecificity requirements”); Mendiondo v. Centinela Hosp. Med. Ctr. , 521 F.3d 1097, 1103 (9th Cir. 2008); U.S. ex rel. Williams v. Martin-Baker Aircraft Co. , 389 F.3d 1251, 1259 (D.C . Cir. 2004).

53Although “[t]hi s Cour t has yet to articulat e a test for de ciding when a

plainti ff has se t forth a claimfor re tali ation under section 3730(h),” Weslowski, 626 F. App’x at 22, district courts in thi s Circuit, as well as our sister circuits, have gener ally required a plainti ff to show that (1) he engage d in acti vity protected under the statute, (2) the employer was aware of such activity, and (3) the employer took adverse action agai nst him because he engaged in the pr otected activi ty. In it s March 2015 de cision di smissing Fabula’ s retaliati on claim, the

26 district court considered only the first of the thre e elements outlined above and held that Fabula’s “mere refusal to complete the PCR, without other affirmative acts to stop the alleged fraud, is not protected activity.” J.A. 207. We respectfully disagree. As relevant to Fabula’s claim, § 3730(h) protects “lawful acts done by the employee . . . in furtherance of . . . efforts to stop 1 or more violati ons of [the FCA].” 31 U.S.C . § 3730(h)(1); see also Townsend v. Bayer Corp. , 774 F.3d 446, 459 (8th Cir. 2014)

. AMR does not contest that Fabula’s refusal to falsify the PCR was See, e.g. , United States v. Empire Educ. Corp. , 959 F. Supp. 2d 248, 256 (N.D .N.Y. 26 2013); U.S. ex rel. Sarafoglou v. Weil Med. Coll. of Cornell Univ. , 451 F. Supp. 2d 613, 624 (S.D.N .Y. 2006); U.S. ex rel. Bias v. Tangipahoa Par. Sch. Bd. , 816 F.3d 315, 323 (5th Cir. 2016); U.S. ex rel. Miller v. Weston Educ., Inc. , 840 F.3d 494, 505 (8th Cir. 2016); Clark/Smoot/Russell , 796 F.3d at 433; Mendiondo , 521 F.3d at 1103. 54a lawfulact. It argues, rather , that Fabula’s refusal does not, without m ore, 27 qual ify as an effort to stop a fraudulent sche me. Based on the p lain language of the FCA’s an ti-retali ation provision, we hold that F abula’s refusal to engage in the fraudulent scheme, which under the facts as pled was intended an d

reaso nably could be expe cted to preve nt the submission of a false claimto the government, can con stitut e protec ted activi ty under the statute. As alleged, Fabula’s “refus[al] to falsify the PCR as de manded by” his AMR supervisor, S AC ¶ 135, was plainly in further ance of an e ffort to stop an FCA violati on. To the exten t AMR contends that Fabula’s refusal does not rise to the level of an affirmati ve act, and so canno t constitut e an “effor t,” that argument is refuted by the p lai n language of the statute. Consistent with the word’s

ever yday use, Webs ter’s r elevantly defines “effort” as a “co nscious exe rtion of physical or mental power.” Webste r’s Third Ne w International Dict ionary, Unabridged (2002) (“We bster ’s”). Fabula did not sim ply omi t, fail, or neglect to fillout the Dece mber 2011 PCR after being instructed to do so — he ve rbally refuse d to alter the document as requested b y AMR and, despite AMR’s threat of The district court “assume[d] without deciding that M r. Fabula’s allegati on that 27 he defied his bos s’s command to fil l out t he form cons titutes a ‘lawfulact.’” J.A. 205. AMR does not contend other wise. 55terminati on, failed to subsequently “arrange a time for recon cili ation and

transmission of” that PCR. SAC ¶ 79. 28 Nor is this a case of anemployee simplydeclining t o play a role in a corrupt sch eme engaged in by h is fellows. I t may wel l be a reas onable interpretation of § 3730(h)(1) to hold that a doctor whose colleagues in a hospital or medical practice submit inflat ed Medicare claims for their own ser vices does not engage in protec ted activi ty when she merely declines to submit inflated bill s hers elf, whil e making no effort either to pr event other s from doing so or to re port their corr uption. But that hypothetical — on whi ch we ex pres s no final view — i s not this case. While refusing to falsify a si ngle PCR could not have put the brakes on AMR’s fraudulent scheme as a whole, onthe facts as pled, Fabula had re ason to believe that his refusal to alter the Dece mber 2011 PCR — which par amedic

For that reas on, we re spectfully di sagree with the analysi s of the D istrict Court 28 for the D istrict of Columbia in U.S. ex rel. Tran v. Computer Sciences Corp. , 53 F. Supp. 3d 104, 136 (D.D .C. 2014), which the district court adopted in dismi ssing Fabula’s clai m. Tran held that the relator could not show that his all eged r efusal to participat e in a fraudulent pass-through s cheme constituted “protected activi ty” suffici ent to trigger the pr otections of § 3730(h) becaus e with “rare exce ption, the mere re fusal to partici pate in an all egedly unlawfulscheme is neither an ‘act[] done ’ nor an ‘e ffort[]’ taken, and suchforbe arance c ertainly does not equate with the kind of affirmati ve activity that the text of the statute conveys.” 53 F. S upp. 3d at 136 (alterations in original). 56Bodiford had refused to alter, leaving only Fabul a (who was called in during si ck

leave for the pr ecise purpos e of altering the document) with the credentials to falsify i t — would m ake it diffi cult, or even impossible, for AMR to fil e a false

29 claimfor that particular run, thus pre venting or hindering at least one viol ation of the FCA. See Webster ’s (in relevant part, def ining “stop” as “to hinder or pre vent the passage of,” “to get in the way of,” “to int err upt or preve nt the continuance

or occurr ence of,” an d “to arres t the progre ss or motion of”). Thus, Fabula’s 30 refusal to falsify the Decembe r 2011 PCR so as to hinder the filing of a fraudul ent claimin viol ation of the FCA constitutes protected activity u nder § 3730(h ). 31 Our conclusion, which is rooted in the plain text of the statute, i s bolstere d The SAC clearly im plies that onlythe per sonnel (the par amedic and/or EMT) 29 involved i n the actual run were e mpowered to fillout, and later change, the PCR for any given run. See SAC ¶ 55, 57, 86. In fact, wi th resp ect to the Dec ember 2011 PCR, Fabula all eges that “the PCR for m [that the supervisor] wanted Fab ula to submit had to have Fabula’s unique login and his electronic signatu re.” S AC ¶ 73 (emphasis added). Indeed, the TAC e xpre ssly all eges that as a r esult of Fabula’s refusal to falsi fy 30 the De cember 2011 PCR, AMR was, in fact, thwarted in submi tti ng a claimto Medicare for that run

. Since we conclude that Fabula has adequately pled that hi s refusal was a 31 “lawfulact[ ] . . . in furtherance of . . . [an] effor t[ ] to stop” an FCA violati on, we need n ot, and do not, address whether his refusal also qual ifies as protected activi ty on account of its being a “lawfu l act[ ] . . . i n further ance of an action under this sec tion.” 31 U.S.C. § 3730(h)(1). 57by the anti-retaliati on provision’s drafting history as well as relevant policy

considerations. Prior to 2009, § 3730(h) pr ovided a non-exclusive list of specific “lawfulacts” done in further ance of an FC A action that protected an employee, and it di d not include the “other effor ts to stop . . . viol ations” language that i s now part of the statute. That vers ion read:

Any employee who is discharged, [e tc.] . . . by his or her employer becaus e of lawful act s done b y the employee on beh alf of the employee or other s in furtheran ce of an action under this section, including investigati on for, init iati on of, testimony for, or ass istance in an action filed or to be filed under this section, shall be entitled to allrelief neces sary to make the employee whole. 31 U.S.C. § 3730(h ) (2006). Thus, the 2009 amendment had the e ffect of broade ning the universe of pr otected conduct under § 3730( h), at least with resp ect to “efforts to stop” FC A viol ations. At least one of the authors of the 32 amendment, Congre ssman Howard L. Be rman, contended that § 3730(h) was amended “so that it is cl ear that it covers . . . r etaliation against not only those

A blackline comparison of the two ver sions helps elucidate this point: An 32 employee who is discharged, susp ended, or threatene d because of “lawfulacts done” by the employee “in furtherance of an action under this section, including investigati on for, initiation of, testim ony for, or assistance in an action fil ed or to be filed under this se ction, or other ef forts to stop 1 or more viol ations of this subchapter “ is entitl ed to anti-retaliat ory re li ef. 58who actuall y fil e a qui t am acti on, but also against those who plan to fil e a qui

tam thatnever gets filed, who blow the whistl e internally or exter nally wi thout the fili ng of a quitam acti on, or who refuse to participate in the wrongdoing .” 155 Cong. Rec. E1295-03, 2009 WL 1544226, at *E1300 (e mphasis added). 33 Furthermore , interpreting the anti-retaliati on provision to draw an arbitrary b oundary be tween effor ts that take the form of “internal repor ting to a supervisor or company compliance department” and those that amount to “refusals to participate in the mi sconduct that leads to the false claim s,” id. , would m ake lit tle poli cy sense . There is, at be st, a hair’s-br eadth distincti on betweencomplaining internally t hat a practice is il legal under the FCA and advising a supervisor of one ’s refus al to engage in that i ll egal practice. The facts all eged in this case ex empli fy that point. Fabul a, who admit s to having falsifi ed numerous PCRs dur ing his empl oyment with AMR, had beentold by his supervisor s that PCRs were altered in order to rende r other wise non-

Were the statute ambiguou s, that statement would be of li mit ed weight, since it 33 is a part of extende d remarks that C ongres sman Berman submitted on June 3, 2009, almost two weeks after the amendment became law as part of the Fr aud Enforce ment and Recovery Act of 2009 (FERA). In any eve nt, since we nee d not rely on the legislati ve history to res olve any ambigui ty in the statut e, we note the remark only as an indication of what one sponsor intended. 59reimbursable r uns re imbursable by the gover nment. Under s uch circumstances,

Fabula’s emailand oral refusals to falsify the Dece mber 2011 PCR, and h is statement to a supervisor who, acc ording to the complai nts, was involved in AMR’s fraudulent scheme that he did not “feel comfortable” making the alterations, SAC ¶ 135, ar e functionall y equival ent to raising the issue internally. Any line-drawing between the two, so as to qual ify one but not the other as protected activity under § 3730(h), would raise concer ns about arb itrariness and encourage the adoption of opaque or burde nsome re porting mechanisms that would help FCA viol ators avoid li abili ty. We theref ore de cline to interpr et the FCA’s anti-retaliati on provision to exclude Fabula’s conduct. The district court, whose analysis AMR repeats on app eal, concluded that because Fabula’s action di d not take the form of “complaints to hi s employer’s management or in-house counse l, reports to the media, or a r easone d explanation to his supervisors that what they were asking him to do vi olated the law and should cease,” it did not constitute “an ‘effort’ to ‘stop’ . . . ‘[one ] or more viol ations’ of the FCA.” J.A. 206 (alterations in original ). But that conclu sion 34

Foll owing that same l ogic, the districtcourt also concluded that “because ther e 34 is no all egation that Mr. Fabula t old his empl oyer that what it was doing was il legal, there is no reasonto think hi s ‘lawful act ’ was designed to pro mpt an 60both ignores the plain l anguage of the FC A’s anti-retaliation provision — which

does not re qui re any of thos e particular steps but br oadly protects effor ts to stop

even a s ingle vi olati on of the FCA — an d undermines, as a pr acticalmatter, its capacity to protect persons who assist in the discovery and pr osecution of FCA viol ations. 35 While further factual development may wel l failto vali date Fabula’s clai m of retaliati on, we must construe the allegations of the complai nt in his favor at the pleading stage. We conclude that, on the facts alleged, Fabula has adequately

examination of — l et alone a change to — AMR’s practices.” J.A. 207. But § 3730(h) does n ot protect only efforts to pr ompt an investigation or to change a company’s gener al practices; it protects an effort to pre vent even one violation of the False Claims Act. Contrar y to AMR’s positi on, Thomas v. ITT Educ. Servs., Inc., 517 F. App’x 259 35 (5th Cir. 2013), which held that a plai ntiff who all eged that she was asked to falsify grades did not establish that she engaged in pr otected activity, does not support the district court’s textual analysis of the anti-retali ation provision. Thomas is readily di stingui shable on its facts. Unlike Fabula’s detail ed allegati ons regar ding AMR’s scheme to defraud the gove rnment, the plaintiff in Thomas failed to establi sh — post discover y, for purpos es of summary judgment — that she had e ngaged in protected activity because, among other r easons , she “had n o knowledge which of her s tudents were rece ivi ng feder al funds to attend ITT, . . . what effect a faili ng grade would have on a s tudent’s feder al l oans, or how many fail ing grades a student had to r eceive to lose fede ral loans,” “was only aware of four gr ades that were changed, and thos e grade s were changed after ITT terminated her,” and “did not submit evi dence that ITT forced her to change gr ades.” 517 F. App’x at 263. 61pled that his refusal to alt er the D ecember 2011 PCR satisfies the “protected

activi ty” element of § 3730(h). We there fore vacate the district court’s dism issal of the retaliati on claimasser ted in the SAC. 36 CONCLUSION For the for egoing reason s, the judgment of the district court i s VACATED, and the case is REMANDED for further p rocee dings consistent with thi s opinion.

Although we acknowledge that Fabula has averred f acts indicating that AMR 36 was aware of h is refusal to falsify the De cember 2011 PCR and that it threaten ed to terminate his empl oyment based on that re fusal, we leave it t o the district court to consider in the first instance, if nece ssary, whe ther the S AC satisfies the second an d third elements of a § 3730(h) claim

. 62