United States Court of Appeals

For the Eighth Circuit

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No. 13-1654

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United States of America and State of Iowa, ex rel Susan Thayer

lllllllllllllllllllll Plaintiffs - Appellants

v.

Planned Parenthood of the Heartland

lllllllllllllllllllll Defendant - Appellee

United States of America; State of Iowa

lllllllllllllllllllllInterested parties

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 Appeal from United States District Court 

for the Southern District of Iowa - Des Moines

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 Submitted: November 20, 2013

 Filed: August 29, 2014

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Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.

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WOLLMAN, Circuit Judge.

Susan Thayer brought this qui tam action against Planned Parenthood of the

Heartland, Inc. (Planned Parenthood), alleging that Planned Parenthood violated the
False Claims Act (FCA), 31 U.S.C. §§ 3729-3733, and the Iowa False Claims Act

(IFCA), Iowa Code Ann. §§ 685.1-.7, by submitting false or fraudulent claims for

Medicaid reimbursement. The district court dismissed her complaint for failure to

plead fraud with the particularity required by Federal Rule of Civil Procedure 9(b). 

We affirm in part, reverse in part, and remand for further proceedings. 

I. Background

Planned Parenthood is an Iowa non-profit corporation that provides

reproductive healthcare services to patients, including Title XIX Medicaid-eligible

patients. From 1991 to December 2008, Thayer was employed asthe center manager

of Planned Parenthood’s clinic in StormLake, Iowa. From 1993 to 1997, Thayer also

served as the center manager of Planned Parenthood’s clinic in LeMars, Iowa.

Planned Parenthood operated a total ofseventeen clinics throughout Iowa during the 

period of Thayer’s employment. 

Thayer’s action seeks to recover funds that Planned Parenthood allegedly

obtained in violation of the FCA and the IFCA. Thayer’s second amended complaint

(hereinafter the complaint), alleges that Planned Parenthood wrongfully obtained

Medicaid reimbursements for prescriptions and services that either were not

reimbursable or were not reimbursable in the amounts claimed. Specifically, Thayer

alleges that Planned Parenthood: (1) filed claims for unnecessary quantities of birth

control pills that often were prescribed without examinations or were not received by

Planned Parenthood patients; (2) sought reimbursement for abortion-related services

in violation of federal law and instructed patients who experienced abortion-related

complications to give false information to medical professionals at other hospitals,

causing those medical professionals to unknowingly file claims for services

performed in connection with abortions; (3) filed claims for the full amount of

services that had already been paid, in whole or in part, by “donations” Planned

Parenthood coerced from patients; and (4) filed claims for more expensive services

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than were actually performed by engaging in a process known as “upcoding.” Thayer

alleges that all of Planned Parenthood’s clinics participated in these four fraudulent

schemes from early 2006 to December 2008. The complaint, however, does not

include any representative examples of the false claims that Thayer alleges that

Planned Parenthood submitted for reimbursement. 

Planned Parenthoodmoved to dismissthe complaint, arguing thatThayer failed

to allege fraud with particularity as required by Rule 9(b). The district court granted

Planned Parenthood’s motion, concluding that Thayer failed to meet the pleading

requirements of Rule 9(b) as articulated in United States ex rel. Joshi v. St. Luke’s

Hospital, Inc., 441 F.3d 552 (8th Cir. 2006), because she failed “to provide a single

specific example of a particular fraudulent claimPlanned Parenthood submitted to the

government, let alone any representative examples.” D. Ct. Order of Dec. 28, 2012,

at 6. 

II. Discussion

We review de novo a district court’s decision to dismiss a complaint under 

Rule 9(b). In re Baycol Prods. Litig., 732 F.3d 869, 874 (8th Cir. 2013). The FCA

imposes liability on those who knowingly “present false claims, or cause false claims

to be presented, to the government for payment or approval; [knowingly] use false

statements, or cause false statements to be used, to get a false claim paid or approved

by the government; or conspire to defraud the government, among other things.”1

United States ex rel. Raynor v. Nat’l Rural Utils. Coop. Fin., Corp., 690 F.3d 951,

955 (8th Cir. 2012) (citing 31 U.S.C. § 3729(a)(1)-(3)). Under the FCA, private

individuals are permitted “to bring a civil action in the name of the United States

Because the FCA and the IFCA are nearly identical, case law interpreting the

1

FCA also applies to the IFCA. See Eilbert v. Pelican (In re Eilbert), 162 F.3d 523,

526 (8th Cir. 1998).

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against those who violate the [FCA]’s provisions.” Baycol Prods. Litig., 732 F.3d at

874. Liability under the FCA attaches “not to the underlying fraudulent activity, but

to the claim for payment.” Id. at 875 (quoting Costner v. URS Consultants, Inc., 153

F.3d 667, 677 (8th Cir. 1998)).

A. Pleading Standard Under the FCA

“Because the FCA is an anti-fraud statute, complaints alleging violations ofthe

FCA must comply with Rule 9(b).” Joshi, 441 F.3d at 556. Rule 9(b) requires a party

alleging fraud to “state with particularity the circumstances constituting fraud[.]” 

“This particularity requirement demands a higher degree of notice than that required

for other claims.” United States ex rel. Costner v. United States, 317 F.3d 883, 888

(8th Cir. 2003). 

We explained in Joshi that to satisfyRule 9(b)’s particularity requirement, “the

complaint must plead such facts as the time, place, and content of the defendant’s

false representations, as well as the details of the defendant’s fraudulent acts,

including when the acts occurred, who engaged in them, and what was obtained as

a result.” 441 F.3d at 556. In other words, “the complaint must identify the ‘who,

what, where, when, and how’ of the alleged fraud.” Id. (quoting Costner, 317 F.3d

at 888). Moreover, we stated that although an FCA complaint need not include the

“specific details of every alleged fraudulent claim” when a relator alleges that a

defendant engaged in a systematic practice orscheme ofsubmitting fraudulent claims,

the complaint “must provide some representative examples of [the defendant’s]

alleged fraudulent conduct, specifying the time, place, and content of [the

defendant’s] acts and the identity of the actors.” Id. at 557.

Thayer concedes that she did not provide any representative examples of the

false claims in the complaint. She argues, however, that neither Rule 9(b) itself nor

Joshi requires that representative examples be pleaded in every FCA complaint that

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alleges a systematic practice or scheme of submitting false claims. We agree, and

conclude thatJoshi’s representative-examplesrequirement need not be satisfied with

respect to some portions of the complaint. 

Dr. Joshi was an anesthesiologist who had practiced at St. Luke’s Hospital

from 1989 to 1996. Id. at 554. His April 2004 qui tam action against the hospital and

the hospital’s chief of anesthesiology alleged, among other things, that the hospital

had systematically violated the FCA over a sixteen-year period by seeking Medicare

reimbursements at higher rates than those to which it was entitled and by submitting

claims for services that were not performed and supplies that were not provided. Id.

at 554, 557. He did not identify the details of any of the false claims in his complaint

but instead alleged that every claim submitted was fraudulent. Id. at 554-56. In

concluding that the complaint failed to satisfy Rule 9(b), we explained that “Dr.

Joshi’s allegation that ‘every’ claim submitted by St. Luke’s was fraudulent lack[ed]

sufficient ‘indicia of reliability[,]’” id. at 557, because, as an anesthesiologist rather

than a member of the hospital’s billing department, he failed to provide the factual

basis for his “knowledge concerning the alleged submission offraudulent claims,” id.

at 558. We held that to satisfy Rule 9(b), he was required to plead at least some

representative examples of the false claims. Id. at 557. 

Unlike Dr. Joshi, who had no direct connection to the hospital’s billing or

claims department and could only speculate that false claims were submitted, Thayer

was the center manager for two of Planned Parenthood’s clinics, oversaw Planned

Parenthood’s billing and claims systems, and was able to plead personal, first-hand

knowledge of Planned Parenthood’s submission of false claims. In these

circumstances, we find persuasive the approach of those circuits that have concluded

that a relator can satisfy Rule 9(b) by “alleging particular details of a scheme to

submit false claims paired with reliable indicia that lead to a strong inference that

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claims were actually submitted.” United States ex rel. Grubbs v. Kanneganti, 565

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F.3d 180, 190 (5th Cir. 2009); see also Chesbrough v. VPA, P.C., 655 F.3d 461, 471

(6th Cir. 2011); Ebeid ex rel. United States v. Lungwitz, 616 F.3d 993, 998-99 (9th

Cir. 2010); United States ex rel. Lemmon v. Envirocare of Utah, Inc., 614 F.3d 1163,

1172 (10th Cir. 2010); cf. United States ex rel. Nathan v. Takeda Pharm. N. Am., Inc.,

707 F.3d 451, 457 (4th Cir. 2013) (indicating that a relator need not identify

individual false claims in order to satisfy Rule 9(b) if the “specific allegations of the

defendant’s fraudulent conduct necessarily led to the plausible inference that false

claims were presented to the government[,]” but that representative examples are

required if a defendant’s actions “could have led, but need not necessarily have led,

to the submission of false claims”), cert. denied, 134 S. Ct. 1759 (2014); United

States ex rel. Duxbury v. Ortho Biotech Prods., L.P., 579 F.3d 13, 29 (1st Cir. 2009)

(explaining that in qui tam actions in which the defendant allegedly caused third

parties to file false claims, “a relator could satisfy Rule 9(b) by providing ‘factual or

statistical evidence to strengthen the inference of fraud beyond possibility’ without

necessarily providing details as to each false claim”); United States ex rel. Lusby v.

Rolls-Royce Corp., 570 F.3d 849, 854 (7th Cir. 2009) (“We don’t think it essential

for a relator to produce the invoices(and accompanying representations) at the outset

of the suit.”); Corsello v. Lincare, Inc., 428 F.3d 1008, 1012 (11th Cir. 2005) (per

curiam) (stating that to satisfy Rule 9(b), an FCA “complaint must contain ‘some

Planned Parenthood argues that because we have continued to require relators

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to plead representative examples of the false claims in order to satisfy Rule 9(b) in

cases following Joshi, we should not excuse Thayer’s failure to plead representative

examples. See United States ex rel. Dunn v. N. Mem’l Health Care, 739 F.3d 417,

420 (8th Cir. 2014); Baycol Prods. Litig., 732 F.3d at 878-80; United States ex rel.

Ketroser v. Mayo Found., 729 F.3d 825, 829 (8th Cir. 2013); United States ex rel.

Vigil v. Nelnet, Inc., 639 F.3d 791, 797-98 (8th Cir. 2011); United States ex rel. Roop

v. Hypoguard USA, Inc., 559 F.3d 818, 822-25 (8th Cir. 2009). Like Joshi, however,

these cases are distinguishable because the relators did not have access to the

defendants’ billing systems and were not able to plead personal knowledge of the

defendants’ submission of false claims. 

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indicia of reliability’” to support the allegation that a false claim wassubmitted to the

government). 

As Judge Higginbotham explicated in Grubbs, Rule 9(b) “is context specific

and flexible and must remain so to achieve the remedial purpose of the False Claim

Act.” See 565 F.3d at 190. Allowing a relator to satisfy Rule 9(b) by pleading the

“particular details of a scheme to submit false claims paired with reliable indicia that

lead to a strong inference that claims were actually submitted” fulfills the objectives

of Rule 9(b) “without stymieing legitimate efforts to expose fraud.” Id. These

objectives include both providing the defendant with adequate notice of the relator’s

claims and protecting the defendant from baseless claims. Id. at 190-91. We agree

that “[s]tating ‘with particularity the circumstances constituting fraud’ does not

necessarily and always mean stating the contents of a bill.” Id. at 190.

Given Rule 9(b)’s objective of protecting defendants from baseless claims,

relators whose allegations lack sufficient indicia of reliability should be required to

plead representative examples of the false claims because their allegations are more

likely to be unfounded. In contrast, a relator who provides sufficient indicia of

reliability to support her allegations that false claims were submitted, such as by

pleading details about the defendant’s billing practices and pleading personal

knowledge of the defendant’s submission of false claims, fulfills Rule 9(b)’s

objective of protecting the defendant from baseless claims. Accordingly, we

conclude that a relator can satisfyRule 9(b) without pleading representative examples

of false claims if the relator can otherwise plead the “particular details of a scheme

to submit false claims paired with reliable indicia that lead to a strong inference that

claims were actually submitted.” Id. To satisfy the “particular details” requirement

of our holding, however, the relator must provide sufficient details “to enable the

defendant to respond specifically and quickly to the potentially damaging

allegations.” United States ex rel. Costner v. United States, 317 F.3d 883, 888 (8th

Cir. 2003).

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B. The Complaint

Applying this standard to the allegations in the complaint, we conclude that

Thayer has pled sufficiently particularized facts to support her allegations that

Planned Parenthood violated the FCA by filing claims for (1) unnecessary quantities

of birth control pills, (2) birth control pills dispensed without examinations or without

or prior to a physician’s order, (3) abortion-related services, and (4) the full amount

of services that had already been paid, in whole or in part, by “donations” Planned

Parenthood coerced from patients. Thayer adequately alleges the particular details

of these schemes, such as the names of the individuals that instructed her to carry out

these schemes, the two-year time period in which these schemes took place, the

clinics that participated in these schemes, and the methods by which these schemes

were perpetrated. Moreover, she alleges that her position as center manager gave her

access to Planned Parenthood’s centralized billing system, pleads specific details

about Planned Parenthood’s billing systems and practices, and alleges that she had

personal knowledge of Planned Parenthood’s submission of false claims. Thayer’s

claims thus have sufficient indicia of reliability because she provided the underlying

factual bases for her allegations. See Corsello, 428 F.3d at 1012-14 (describing the

indicia ofreliability required under Rule 9(b)). Accordingly, because Thayer pleaded

the particular details of these schemes as well as the bases for her knowledge of these

details, these allegations are sufficient to withstand Rule 9(b)’s particularity

requirement.

Thayer’s allegations that Planned Parenthood violated the FCA by causing

other hospitals to unknowingly submit claims for abortion-related services and by

upcoding, however, are not sufficient to satisfy Rule 9(b). We address these

allegations in turn. 

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1. Causing Other Hospitals to Submit False Claims

As set forth above, Thayer contendsthat Planned Parenthood violated the FCA

by instructing patients who experienced abortion-related complications to give false

information to medical professionals at other hospitals, causing those medical

professionals to unknowingly file claims for services performed in connection with

abortions. Specifically, Thayer alleges that Planned Parenthood’s clinic personnel

were instructed to tell patients who received abortions “to report to the local hospital

emergency room in case of hemorrhage or other seriousside effect and to advise local

hospital emergency room personnel that [they] had suffered a ‘miscarriage’ and to

seek Title XIX-Medicaid coverage for such ‘miscarriage.’” Thayer further alleges

that she learned that false claims were subsequently filed by local hospitals “as a

direct result of Planned Parenthood[’s] . . . instructions to clients to falsely tell the

hospitals that they were merely suffering a miscarriage.” These allegations fail to

satisfy Rule 9(b) because they lack sufficient indicia of reliability. Thayer does not

allege thatshe had accessto the billing systems of the unidentified local hospitals, nor

does she contend that she had knowledge of their billing practices. As a result,

Thayer is only able to speculate that false claims were submitted by these hospitals. 

Because Thayer failed to provide a factual basis for her knowledge of these alleged

false claims, we are unable to infer that false claims were submitted. Accordingly,

we affirm the dismissal of these allegations. 

2. Upcoding

The complaint alleges that Planned Parenthood scheduled large numbers of

clients for visits during the short windows of time in which physicians would be

available at the clinics. Thayer contends that Planned Parenthood then violated the

FCA by “bill[ing] visits . . . as problem visits, using CPT codes 99212-99215 (for

existing patients) and 99201-99205 (for new patients) for services performed during

this window of time even though the physician would usually only briefly look into

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the room from the hallway at the client or not even see the client[.]” In addition,

Thayer alleges that Planned Parenthood used problem codes in billing even “where

the client had no medical problem and was only seeking family planning services[.]” 

These allegations also fail to satisfy Rule 9(b). Although Thayer is not required to

plead representative examples of the false claims, she still is required to plead the

particular details of the scheme to submit false claims. Thayer’s conclusory and

generalized allegations that Planned Parenthood violated the FCA by engaging in

upcoding do not meet this requirement. For example, Thayer failed to allege when

or how often upcoding took place at the various clinics, who or how many physicians

engaged in upcoding, or what types of services were involved in the upcoding

scheme. Moreover, instead of alleging what monies were fraudulently obtained as

a result of the alleged upcoding, Thayer merely contends that “the United States and

Iowa have been damaged in an amount to be proven at trial.” We thus affirm the

dismissal of Thayer’s upcoding allegations.

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C. Federal Rule of Civil Procedure 12(b)(6)

In addition to meeting Rule 9(b)’s particularity requirement, complaints

alleging violations of the FCA “must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.” Vigil, 639 F.3d at 796

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Independent of its argument

that Thayer’s allegations fail to satisfy Rule 9(b), Planned Parenthood asserts that

Thayer’s claims should be dismissed because she failed to state FCA claims as a

matter of law. Specifically, Planned Parenthood argues that the complaint should be

dismissed because (1) her allegations are based on alleged regulatory violations that

cannot serve as bases for liability under the FCA, (2) she failed to identify regulations

In light of this conclusion, we need not address Planned Parenthood’s 3

alternative argument that, at a minimum, the upcoding allegations should be

dismissed because Thayer failed to file those allegations under seal. 

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that prohibitPlanned Parenthood’s practices, or(3) the applicable regulations actually

permit Planned Parenthood’s conduct. The district court did not consider these

arguments in light of its decision to dismiss the complaint on the basis of Thayer’s

failure to plead representative examples of the false claims. On remand, the district

court should consider whether any of Thayer’s remaining allegations survive these

challenges. Our holding with respect to the Rule 9(b) issue, however, should not be

read as in any way expressing a view on Planned Parenthood’s Rule 12(b)(6)

arguments.

III. Conclusion

The judgment is affirmed in part and reversed in part. The case is remanded

to the district court for further proceedings consistent with this opinion. 

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