FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, ex rel. 

JODY SHUTT,

Plaintiffs-Appellees, No. 07-56060

v. D.C. No.  CV-04-02075- COMMUNITY HOME AND HEALTH

CARE SERVICES, INC., a California MMM

corporation; NIDA M. CAMPANILLA, OPINION

an individual,

Defendants-Appellants. 

Appeal from the United States District Court

for the Central District of California

Margaret M. Morrow, District Judge, Presiding

Argued and Submitted

November 17, 2008—Pasadena, California

Filed December 16, 2008

Before: Myron H. Bright,* Stephen S. Trott, and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Hawkins

*The Honorable Myron H. Bright, Senior United States Circuit Judge

for the Eighth Circuit, sitting by designation. 

16505
COUNSEL

Jeffrey A. Clair (presented argument and authored brief),

United States Department of Justice, Washington, D.C., for

the plaintiffs-appellees. 

Eric Olson (presented argument) and John M. Gantus

(authored brief), John M. Gantus & Associates, Glendale,

California, for the defendants-appellants. 

OPINION

HAWKINS, Circuit Judge: 

Facing a question of first impression, we conclude that an

order granting summary judgment is final and appealable

under 28 U.S.C. § 1291 even though the district court retained

UNITED STATES v. COMMUNITY HOME AND HEALTH 16507
jurisdiction over a pending claim by a qui tam relator for a

share of the award under the False Claims Act (“FCA”), 31

U.S.C. § 3730(d).1

FACTS

Relator Jody Shutt originated this FCA action against Nida

Campanilla (“Campanilla”), the sole owner and president of

Community Home and Health Care Services (“Community

Home”), an agency that provided nursing and home health

services and received at least $2.77 million in Medicare reimbursements from May 2003 to August 2004. 

Subsequently, the United States pursued criminal charges

against Campanilla who entered a guilty plea to one count of

health care fraud, in violation of 18 U.S.C. § 1347. In the

agreement, she stipulated to making illegal payments to physicians, patients, and marketers, forging physician signatures

on Medicare forms documenting the medical necessity of

claimed services, submitting reimbursement claims to Medicare for home health services she knew were not medically

necessary, and submitting reimbursement claims for services

that were not performed as represented. Campanilla also

admitted that the scheme had caused Medicare a loss of at

least $608,558.49 and agreed to make full restitution of that

amount. 

Several months later, the United States intervened in this

FCA suit against Campanilla and Community Home, raising

both FCA claims and separate common law claims and seeking a civil penalty of $5,500 and treble damages. The district

court granted partial summary judgment to the government,

awarding a civil penalty of $5,500 and treble the damages

1Although the Fifth Circuit appears to consider potential litigation over

the relator’s share to be “collateral” to the main action, it has addressed

the issue only in dicta. See United States v. United States ex rel. Thornton,

207 F.3d 769, 773 (5th Cir. 2000). 

16508 UNITED STATES v. COMMUNITY HOME AND HEALTH
Campanilla had admitted in her plea agreement.2

 The district

court dismissed the government’s remaining common law

claims without prejudice while retaining jurisdiction over the

relator’s claim for a share of the judgment pursuant to 31

U.S.C. § 3730(d). 

DISCUSSION

[1] We have jurisdiction over appeals from all final decisions of the United States district courts. 28 U.S.C. § 1291.

Although the parties do not dispute appellate jurisdiction, the

court must consider sua sponte whether an order is final and

thus appealable under 28 U.S.C. § 1291. See WMX Techs.,

Inc. v. Miller, 104 F.3d 1133, 1135 (9th Cir. 1997) (en banc).

A prevailing party’s decision to dismiss its remaining claims

without prejudice generally renders a partial grant of summary judgment final. United Nat’l Ins. Co. v. R & D Latex

Corp., 141 F.3d 916, 918 (9th Cir. 1998). 

[2] In concluding that a relator’s pending claim against the

United States for a share in the judgment does not interfere

with the finality of the district court order, we are guided by

White v. New Hampshire Dep’t of Employment Sec., 455 U.S.

445 (1982). There the Supreme Court addressed a related

issue: whether a request for attorney’s fees raises legal issues

collateral to the main action prompting an inquiry separate

and apart from the decision on the merits. Id. at 451-52. Following White, we held that a district court retains the power

to award attorney’s fees after a notice of appeal from the decision on the merits has been filed, Masalosalo v. Stonewall Ins.

Co., 718 F.2d 955, 957 (9th Cir. 1983), and adopted the

“bright-line rule” that “all attorney’s fees requests are collateral to the main action,” rendering a “judgment on the merits

. . . final and appealable even though a request for attorney’s

2

In a separate memorandum disposition, we deal with Campanilla’s

claims that the civil judgment violated constitutional guarantees against

double jeopardy and excessive fines. 

UNITED STATES v. COMMUNITY HOME AND HEALTH 16509
fees is unresolved,” Int’l Assoc. of Bridge Local Union 75 v.

Madison Indus., Inc., 733 F.2d 656, 659 (9th Cir. 1984). 

[3] Although relators’ claims for a percentage of FCA

awards are likely to be larger in amount than those of attorneys in some instances, those claims are similarly “collateral”

to the judgment on the merits. Congress’s decision to allow

qui tam relators a share of FCA awards is designed to encourage relators to initiate FCA suits and to compensate them for

their efforts. The determination of the relator’s share of an

FCA award, like the award of attorney’s fees, raises factual

issues “collateral to the main action” because it involves a

factual inquiry distinct from one addressing the merits. 

[4] The criteria for determining the relator’s share, as set

out in the Department of Justice’s “Relator’s Share Guidelines” (“Guidelines”), generally are not relevant to the defendant’s liability under the FCA. See Marc S. Raspanti & David

M. Laigaie, Current Practice and Procedure Under the

Whistleblower Provisions of the Federal False Claims Act, 71

Temp. L. Rev. 23, 53 (1998) (quoting the Guidelines). For

example, the Guidelines suggest considering the circumstances in which the relator reported the false claims, the

report’s effects, the extent of the relator’s relevant knowledge,

the level of assistance provided by the relator and the relator’s

counsel, and any substantial adverse impact on the relator of

filing the complaint. Id. 

[5] To be sure, the existence of a nationwide practice and

the potential safety issues involved may be relevant both to

the merits and to allocating the award. See id. However, these

determinations, along with other criteria noted in the Guidelines, including the size of the award and the scope of the

FCA proceeding, id., usually cannot be fully resolved until

after the merits of the FCA claim have been addressed. The

district court would therefore rarely have occasion to determine the relator’s share of an award prior to or even simultaneously with the merits of the underlying claim. 

16510 UNITED STATES v. COMMUNITY HOME AND HEALTH
The important purpose of promoting efficient judicial

administration, Eisen v. Carlisle & Jacquelin, 417 U.S. 156,

170 (1974), is also better served by treating the relator’s claim

as collateral to the merits. Although such a rule creates some

risk of occasional “piecemeal” appeals, in many instances a

court of appeals ruling on the merits of a dispositive motion

might make an allocation of the award between the government and the relator unnecessary or duplicative. For example,

where a district court incorrectly grants a plaintiff’s summary

judgment motion, an opportunity to review that judgment

avoids the need for the district court to determine the relator’s

share when the claims should have been dismissed or when an

ensuing trial would require a new allocation of the award to

reflect the relator’s participation.

CONCLUSION

[6] For these reasons, we hold a judgment on the merits of

an FCA claim is a separate, final, and appealable decision

even where the district court has retained jurisdiction over the

collateral issue of allocating the FCA award between the

United States and the relator. We therefore reach the merits

of this appeal and affirm the district court’s grant of summary

judgment for the reasons stated in an unpublished memorandum disposition filed herewith. 

AFFIRMED. 

UNITED STATES v. COMMUNITY HOME AND HEALTH 16511