FILED

United States Court of Appeals

Tenth Circuit

August 4, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, ex

rel. JOLENE LEMMON, as personal

representative of the estate of Roger

Lemmon,

Plaintiff - Appellant,

PATRICK COLE; KYLE

GUNDERSON,

Plaintiffs,

v.

ENVIROCARE OF UTAH, INC.,

 Defendant - Appellee

-------------------

UNITED STATES OF AMERICA,

 Amicus Curiae.

No. 09-4079

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D.C. No. 02-CV-00904-BSJ)

Charles W. Scarborough (and Michael S. Raab, Attorneys, Appellate Staff, Civil

Division, Department of Justice; Tony West, Assistant Attorney General; Brett L.

Tolman, United States Attorney, on the brief), Washington, D.C., for Amicus

Curiae.

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Jeffrey W. Appel, (Janelle P. Eurick and Maria E. Heckel of Ray, Quinney &

Nebeker, P.C.; Jeffrey D. Eisenberg and Steve Russell of Eisenberg & Gilchrist;

Richard D. Burbidge of Burbidge, Mitchell & Gross, on the briefs), Salt Lake

City, Utah, for Plaintiff - Appellant.

Rodney G. Snow, (Neil A. Kaplan, Walter A. Romney, Jr., and Christopher B.

Snow of Clyde, Snow & Sessions, on the brief), Salt Lake City, Utah, for

Defendant - Appellee.

Before KELLY, O’BRIEN, and HOLMES, Circuit Judges.

KELLY, Circuit Judge.

Plaintiff-Appellant Jolene Lemmon appeals from the district court’s

dismissal with prejudice of her complaint alleging false claims against the

government. See Aplt. App. 705. The district court dismissed under Rules 8(a),

9(b) and 12(b)(6) of the Federal Rules of Civil Procedure. She contends that the

district court overlooked her implied-certification (of false claims) theory and

erred in rejecting her express-certification theory. Our jurisdiction arises under

28 U.S.C. § 1291 and we reverse. 

Background

Brought under the False Claims Act (“FCA”), 31 U.S.C. § 3729(a)(1) and

(2), this suit involves qui tam claims against Defendant-Appellee Envirocare of

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1

 Envirocare has since changed its name to EnergySolutions, Inc.

2

 During the pendency of the litigation, Plaintiff and former Envirocare

employee Roger Lemmon died. His survivor, Jolene Lemmon, has been

substituted as a Plaintiff.

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Utah, Inc. (“Envirocare”)1 by one of its former employees2 and two former

employees of an Envirocare subcontractor (“Plaintiffs”). Aplt. App. at 452-54. 

The suit arises from Envirocare’s hazardous-and-radioactive-waste-disposal

contracts with the federal government (“government”). Id. at 452-56. Plaintiffs

allege that, between June 2000 and June 2001, Envirocare repeatedly violated its

contractual and regulatory obligations by improperly disposing of the contractedfor waste. Id. at 468-86. In spite of these violations, Plaintiffs contend,

Envirocare falsely represented to the government that it had fulfilled its

obligations and, based on its false representations, improperly received payment

from the government. Id. at 462-64, 486-87. 

Specifically, Plaintiffs’ claims allege that they observed and—at the

direction of Envirocare superiors—participated in Envirocare’s improper disposal

of waste. Id. at 464-65. Plaintiffs allege that Envirocare’s government contracts

required it to “receive and dispose of the contaminated materials in accordance

with all applicable, relevant and appropriate federal, state and local regulations . .

. .” Id. at 457. The contracts further obligated Envirocare to, inter alia, (1)

periodically submit written reports detailing its receipt and disposal of waste, (2)

submit follow-up reports detailing any problems encountered, (3) maintain

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records sufficient to allow the government to confirm compliance with the

contractual provisions, (4) report all contractual violations to the government, and

(5) provide and maintain an inspection system for government review. Id. at 457-

61.

Plaintiffs assert that Envirocare breached its obligations by, inter alia, (1)

ignoring its reporting, recording, regulatory, and maintenance requirements, (2)

violating the contractual and regulatory disposal requirements pertaining to

location and size of buried debris, (3) violating the contractual and regulatory

disposal requirements pertaining to exposed waste materials, (4) failing to

remediate and report waste spills, (5) disposing of waste without proper work

orders, (6) violating disposal requirements regarding the construction and

maintenance of waste-containing cells, and (7) failing to report the improper

mixing of waste. Id. at 462-86.

According to Plaintiffs, Envirocare expressly and impliedly certified

fulfillment of its obligations by submitting payment requests to the government. 

Id. at 462, 487. These requests, which the government paid in full, form the basis

of Plaintiffs’ third amended complaint. 

That complaint was filed after three complaints were dismissed without

prejudice and with leave to file an amended complaint. In the last of these

preceding dismissals, the district court provided an extensive analysis of the

deficiencies of Plaintiffs’ (second amended) complaint and gave guidance for

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filing legally sufficient claims. See Aplt. App. at 400-50. 

Responding to the district court’s analysis, Plaintiffs filed the third

amended complaint. At 37 pages, it was more than 100 pages shorter and

contained over 700 fewer averments than the second. Compare Aplt. App. 451-87

(third amended complaint) with Aplt. App. 24-173 (second amended complaint). 

It contained only a handful of claims—as opposed to 67 before—and added

substantial factual allegations. It also omitted the § 3729(a)(7) claim, which the

district court had dismissed for failure to state a claim. See id. at 413-22. 

Nonetheless, the district court dismissed the third amended complaint with

prejudice in a two-page order. Aplt. App. 703-04. The order stated that the

dismissal was “[f]or substantially the same reasons” set forth in the prior opinion

and order dismissing the second amended complaint. Id. In relying on its prior

opinion, the district court did not note the obvious and critical differences

between the third and second amended complaints. See id. Most notably, the

court made no mention of the replacement of the § 3729(a)(7) claim with impliedfalse-certification claims under § 3729(a)(2). Id. Indeed, the implied-falsecertification claims appear to have gone unnoticed. Id. Instead, the court stated

that Plaintiffs “may well have pleaded various regulatory violations,” but because

Plaintiffs did not “allege that [the regulations] require complete regulatory

compliance before certification for payment,” Plaintiffs failed to “tie[] those

allegations to an identifiable, plausible ‘false claim’ within the meaning of the

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False Claims Act.” Id. at 704.

Discussion

We review the district court’s dismissal under Rule 12(b)(6) de novo. 

United States ex rel. Conner v. Salina Reg’l Health Ctr., Inc., 543 F.3d 1211,

1217 (10th Cir. 2008). Under 12(b)(6), we review for plausibility, specifically

whether enough facts have been pled to state a plausible claim. Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). Concerning the failure to plead fraud with

particularity under Rule 9(b), we also review a dismissal de novo. United States

ex rel. Gagne v. City of Worcester, 565 F.3d 40, 45 (1st Cir. 2009) (de novo

standard applies to claims under § 3729(a)(1) or (2)). Finally, Rule 8(a)

dismissals are reviewed for an abuse of discretion, but to overcome a motion to

dismiss, a plaintiff’s allegations must move from conceivable to plausible. See

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009); Nasious v. Two Unknown

B.I.C.E. Agents, 492 F.3d 1158, 1161-62 (10th Cir. 2007).

Before turning to the sufficiency of Plaintiffs’ allegations, we review the

statutory basis of their claims.

A. Implied and Express False Certification Claims

Plaintiffs’ third amended complaint asserts claims under § 3729(a)(1) and

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 The Fraud Enforcement and Recovery Act of 2009, Pub. L. No. 111-21,

§ 4, 123 Stat. 1616 (2009) modified and renumbered the subsections of § 3729(a). 

The modifications included designating § 3729(a)(2) as § 3729(a)(1)(B) and

adding language to the newly numbered provision to “correct erroneous

interpretations of the law” which required proof that the defendant intended to

induce the government to pay a false claim. See S. Rep. No. 111-10, at 10

(2009)). Though Congress specified that certain changes would apply to all

claims pending on June 7, 2008, see 123 Stat. at 1625, the new language does not

affect this case because Envirocare submitted claims directly to the government. 

See Gov’t Amicus Br. at 4 n.1. To avoid confusion, we cite the pre-amendment

subsection, § 3729(a)(2).

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(2) of the False Claims Act.3 The FCA “covers all fraudulent attempts to cause

the government to pay out sums of money.” Conner, 543 F.3d at 1217 (quoting

United States ex rel. Boothe v. Sun Healthcare Grp., Inc., 496 F.3d 1169, 1172

(10th Cir. 2007)). Its qui tam provisions allow an individual to sue on behalf of

the government. 31 U.S.C. § 3730(b). Though the government may intervene

and take over a private plaintiff’s case, id. § 3730(b)(2) and (c)(3), it often

declines to do so. In such instances, the private plaintiff, termed a “relator,”

conducts the litigation and shares any recovery with the government. Id. §

3730(d).

Section 3729(a)(1) imposes civil liability when a person “knowingly

presents, or causes to be presented” to the Government “a false or fraudulent

claim for payment or approval . . . .” Section 3729(a)(2) renders a party liable for

“knowingly mak[ing], us[ing], or caus[ing] to be made or used, a false record or

statement to get a false or fraudulent claim paid or approved by the Government .

. . .” Violation of these provisions subjects a party to treble damages and civil

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4

 As we discuss below, the purported breaches of Envirocare’s contractual

obligations are sufficient to sustain Plaintiffs’ implied-false-certification claims,

thus, we need not decide whether the alleged regulatory breaches would have

been sufficient.

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penalties. Id. § 3729(a). 

Under § 3729(a), liability can attach when a government payee submits

either a legally or factually false request for payment. Claims arising from

factually false requests generally require a showing that the payee has submitted

“‘an incorrect description of goods or services provided or a request for

reimbursement for goods or services never provided.’” Conner, 543 F.3d at 1217

(quoting Mikes v. Straus, 274 F.3d 687, 697 (2d Cir. 2001)). Claims arising from

legally false requests, on the other hand, generally require knowingly false

certification of compliance with a regulation or contractual provision as a

condition of payment. See id.

Plaintiffs’ suit rests on allegations of legal falsity—that Envirocare falsely

certified compliance with, inter alia, the terms of its government contracts in

seeking payment. Plaintiffs allege both that Envirocare violated a variety of state

and federal regulations and that, in doing so, it violated its contractual obligations

to the government.4

 See, e.g., Aplt. App. at 452, 486. 

Plaintiffs assert claims under the FCA based on both implied and express

false-certification theories. See, e.g., Aplt. App. at 458-66; see Conner, 543 F.3d

at 1217; Shaw v. AAA Eng’g & Drafting Inc., 213 F.3d 519, 531 (10th Cir. 2000)

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(recognizing that, in light of the FCA’s language, structure and legislative history,

§ 3729(a) authorizes claims for false certification of compliance with a

government contract under both implied and express false-certification theories). 

Claims under an express-false-certification theory arise when a payee

“falsely certifies compliance with a particular statute, regulation or contractual

term, where compliance is a prerequisite to payment.” Conner, 543 F.3d at 1217

(quoting Mikes, 274 F.3d at 698). The payee’s “certification” need not be a

literal certification, but can be any false statement that relates to a claim. Id.; see,

e.g., United States ex rel. Hendow v. Univ. of Phoenix, 461 F.3d 1166, 1172 (9th

Cir. 2006) (“So long as the statement in question is knowingly false when made,

it matters not whether it is a certification, assertion, statement, or secret

handshake; False Claims liability can attach.”). 

While express-false-certification claims may presumably arise under any

subsection of § 3729(a), we have held that implied-false-certification claims can

arise under § 3729(a)(1) but not under § 3729(a)(2). Shaw, 213 F.3d at 531-32. 

In so finding, we recognized that § 3729(a)(1) requires “only the presentation of a

false or fraudulent claim for payment or approval” without the additional

§ 3729(a)(2) requirement of a “false record or statement.” Id. (internal quotation

marks and citations omitted). Thus, claims under an implied-false-certification

theory do not require courts to examine a payee’s statements to the government. 

Rather, “the analysis focuses on the underlying contracts, statutes, or regulations

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themselves to ascertain whether they make compliance a prerequisite to the

government’s payment.” Conner, 543 F.3d at 1218. “If a contractor knowingly

violates such a condition while attempting to collect remuneration from the

government, he may have submitted an impliedly false claim.” Id.

In this circuit, the nature of claims advanced under an implied-falsecertification theory has been addressed most directly in Shaw. 213 F.3d at 531-

33. In Shaw, and later in Conner, we recognized that the key attribute of impliedfalse-certification claims—and what most clearly differentiates them from

express-false-certification claims—is that the payee’s request for payment lacked

an express certification. Id. Thus, we found that the pertinent inquiry for such

claims is not whether a payee made an “affirmative or express false statement,”

but whether, through the act of submitting a claim, a payee knowingly and falsely

implied that it was entitled to payment. Id. at 532-33; see also Conner, 543 F.3d

at 1218.

Though implied claims differ from express claims, they nonetheless share

some common elements, including a materiality requirement. This requirement

necessitates showing that the false certification was “material to the government’s

decision to pay out moneys to the claimant.” Conner, 543 F.3d at 1219 (internal

quotation marks and citations omitted). Thus, a false certification—regardless of

whether it is implied or express—is actionable under the FCA only if it leads the

government to make a payment which, absent the falsity, it may not have made. 

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Id.

1. Implied False Certification Claims

To state viable implied-false-certification claims, Plaintiffs’ third amended

complaint needed to contain sufficient factual allegations to show that Envirocare

knowingly submitted legally false requests for payment to the government, that

the government paid the requests and that, had the government known of the

falsity, it may not have paid. While Plaintiffs were not required to prove their

case in the complaint, they needed to give enough facts to show that relief was

plausible. See Twombly, 550 U.S. at 553.

The third amended complaint contained sufficient factual allegations to

support Plaintiffs’ implied-false-certification claims. First, they documented a

series of instances in which they personally observed Envirocare violate its

contractual and statutory obligations. See Aplt. App. at 464-86. For the alleged

violations, Plaintiffs detailed the violative activity, the regulation or contractual

provision violated, the date on which the alleged violation occurred, and the

Plaintiff that witnessed or, at Envirocare’s direction, participated in the activity. 

See id. Next, Plaintiffs explained how Envirocare was aware of the violations,

listing specific instances in which Plaintiffs documented and/or informed their

superiors of the violations. See id. With regard to government payments,

Plaintiffs provided the dates, numbers, and amounts of Envirocare’s requests for

payment under its contracts with the government. Id. at 456-57. Plaintiffs stated

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that they had reviewed “all” of Envirocare’s requests for payment during the

pertinent period and that none disclosed any violations of Envirocare’s

contractual or regulatory obligations. Id. at 464. Plaintiffs further alleged that

each request for payment submitted during the pertinent time period was paid in

full by the government. Id. Finally, addressing the materiality requirement,

Plaintiffs cited specific contractual provisions under which the government, had it

been aware of the violations, may have refused or reduced payment to Envirocare. 

Id. at 459. Plaintiffs also showed that the violations undercut the purpose of the

contracts—the safe and permanent disposal of waste. See, e.g., id. at 466-68,

472-77, 482-85. Based on the contractual provisions, Plaintiffs contended that,

had it been aware of the violations, the government may not have paid in full.

Viewing Plaintiffs’ allegations, it is difficult to discern the purported Rule

12(b)(6) deficiencies. As noted above, the district court did not mention the

implied-false-certification claims. Instead, the district court’s order faulted

Plaintiffs for not “tying the alleged incidents with an identifiable certification of

regulatory compliance.” Aplt. App. at 704. As explained above, implied-falsecertification claims do not involve—let alone require—an explicit certification of

regulatory compliance. 

The district court found that Plaintiffs failed to allege that the state and

federal regulations “require complete regulatory compliance before certification

for payment.” Id. Yet Plaintiffs’ third amended complaint makes clear that the

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alleged regulatory violations also constituted material breaches of Envirocare’s

contractual obligations. See, e.g., Aplt. App. at 457 (“Pursuant to the specific

provisions of the Contracts, Envirocare agreed and was obligated to receive and

dispose of contaminated materials in accordance with all applicable, relevant and

appropriate federal, state and local regulations . . . .”), 486 (“The numerous

violations detailed in paragraphs 68-129 are all material violations of

Envirocare’s contracts with the U.S. Government . . . . None of these violations

were reported to the U.S. Government as required by the contracts.”). Even if

Plaintiffs failed to state a claim arising directly from Envirocare’s regulatory

obligations, Plaintiffs’ allegations provided more than enough factual detail to

support their contract-based claims.

Envirocare largely ignores Plaintiffs’ extensively pled contract-based

claims, arguing instead that numerous regulations govern waste disposal, and that,

because remedies for regulatory violations abound, no claims can arise directly

from its purported regulatory breaches. See Aplee. Br. at 14-18. Even if

accepted as true, Envirocare’s argument does little to justify the dismissal because

none of Plaintiffs’ claims rely exclusively on regulatory breaches. 

Equally unavailing is Envirocare’s materiality argument. On this front,

Envirocare contends that Plaintiffs’ pleading failed to show that, had the alleged

violations been known by the government, they would have affected the

government’s payment decision. Aplee. Br. at 18. But materiality does not

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require a plaintiff to show conclusively that, were it aware of the falsity, the

government would not have paid. Rather, it requires only a showing that the

government may not have paid. See Conner, 543 F.3d at 1219-20. Here, as

Plaintiffs point out, the pertinent contracts explicitly state that if Envirocare fails

to live up to all of its contractual obligations the government might refuse or

reduce payment. Taken in context, such allegations are enough.

Because Plaintiffs sufficiently pled their contract-based claims, the district

court’s Rule 12(b)(6) dismissal was in error.

2. Express False Certification Claims

Plaintiffs’ third amended complaint sufficiently alleges that Envirocare

knowingly submitted legally false requests for payment to the government and

that the government paid the requests. Thus, in order to sustain their expressfalse-certification claims, Plaintiffs need only to have alleged—with sufficient

factual basis—that the requests contained a false statement and that the statement

was material to the government’s decision to pay. Plaintiffs’ third amended

complaint addresses the false-statement requirement by pointing to the payment

requests’ certification that “the payments requested were only for work performed

in accordance with the specifications, terms and conditions of the contract . . . .” 

Aplt. App. at 462. Because Envirocare’s work was not performed in accordance

with the contractual requirements, Plaintiffs allege, the certifications were false. 

Envirocare contends that the FCA does not apply because the language of

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5

 See Aplee. Br. at 30 (quoting Conner, 543 F.3d at 1217); see also Aplt.

App. at 459 (citing contractual provisions requiring compliance with all

contractual requirements in order to ensure full payment). 

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the certification fails to certify compliance with any specific contractual term. 

See Aplee. Br. 30-31, 33. Envirocare relies on language in Conner regarding

certification of compliance with a “particular . . . contractual term.” Conner, 543

F.3d at 1217 (quoting Mikes, 274 F.3d at 698) (emphasis added)). So read, this

language would preclude claims whenever a payee certifies compliance with all

contractual requirements rather than with a single, specific contractual

requirement.5

 Such a reading runs counter to the plain language of § 3792(a)(2),

the FCA’s broad application to “all fraudulent attempts to cause the Government

to pay out sums of money,” United States v. Neifert-White Co., 390 U.S. 228, 233

(1968), the legislative history of the FCA, see, e.g., S. Rep. No. 99-345 (noting

that the FCA covers any “claim for goods or services . . . provided in violation of

contract terms . . . .”), and our recognition in Conner that an express-falsecertification claim can arise from “any false statement that relates to a claim,”

Conner, 543 F.3d at 1217. We decline to read this language in Conner as

exclusive, i.e., the only way to raise an express-false-certification claim, and thus

find that requirements of Rule 12(b)(6) have been satisfied.

B. Rule 9(b)

Though Plaintiffs have stated legally sufficient claims, they were also

required to comply with Rule 9(b). The district court found that they did not.

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Rule 9(b) joins with 8(a) to form the general pleading requirements for

claims under the FCA. See, e.g., United States ex rel. Sikkenga v. Regence

Bluecross Blueshield of Utah, 472 F.3d 702, 726-27 (10th Cir. 2006) (requiring

compliance with 9(b) in pleading claims under the FCA); see also 5A Charles

Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1298 (3d ed.

2004 & Supp. 2010) (collecting cases for the proposition that it is “[o]f primary

importance in understanding the requirement of Federal Rule 9(b)” to recognize

that “it does not render the general principles of simplicity set forth in Rule 8

entirely inapplicable to pleadings alleging fraud . . . .”). Rule 8(a)’s mandate,

that plaintiffs provide a “short and plain statement of the claim showing that the

pleader is entitled to relief,” has been incorporated into both the 9(b) and 12(b)(6)

inquiries. See id.; see also Twombly, 550 U.S. at 554-56; Iqbal, 129 S. Ct. at

1949-51. 

Rule 9(b) supplements 8(a) in setting forth the pleading requirements under

the FCA. Rule 9(b) states that “[i]n alleging fraud or mistake, a party must state

with particularity the circumstances constituting fraud or mistake. Malice, intent,

knowledge, and other conditions of a person’s mind may be alleged generally.” 

Our pre-Twombly cases required plaintiffs pursuing claims under the FCA to

plead the “who, what, when, where and how of the alleged [claim].” Sikkenga,

472 F.3d at 727. This language has been read to require plaintiffs to identify the

time, place, content, and consequences of the fraudulent conduct. See, e.g., Koch,

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203 F.3d at 1236 (quoting Lawrence Nat’l Bank v. Edmonds, 924 F.2d 176, 180

(10th Cir. 1991)). Though Twombly and Iqbal clarified 9(b)’s requirements, the

Rule’s purpose remains unaltered. Namely, “to afford defendant fair notice of

plaintiff’s claims and the factual ground upon which [they] are based . . . .” Id.

(quoting Farlow v. Peat, Marwick, Mitchell & Co., 956 F.2d 982, 987 (10th Cir.

1992)); see also 5A Wright & Miller § 1298 (collecting cases in support of the

proposition that “the most basic consideration for a federal court in making a

judgment as to the sufficiency of a pleading for purposes of Rule 9(b) . . . is the

determination of how much detail is necessary to give adequate notice to an

adverse party and enable that party to prepare a responsive pleading.”). Thus,

claims under the FCA need only show the specifics of a fraudulent scheme and

provide an adequate basis for a reasonable inference that false claims were

submitted as part of that scheme. See, e.g., United States ex rel. Duxbury v.

Ortho Biotech Prods., 579 F.3d 13, 29 (1st Cir. 2009); United States ex rel. Lusby

v. Rolls-Royce Corp., 570 F.3d 849, 854-55 (7th Cir. 2009); United States ex rel.

Grubbs v. Kanneganti, 565 F.3d 180, 190 (5th Cir. 2009). 

Plaintiffs’ FCA claims complied with the Koch standard by providing

factual allegations regarding the who, what, when, where and how of the alleged

claims. With regard to the who, Plaintiffs alleged the names and positions of

Envirocare employees who observed the contract-and-regulation-breaching

activity, the names of the Envirocare supervisors to whom they reported, and the

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names of the Envirocare employees responsible for submitting the false claims to

the Government. Aplt. App. at 452-54, 463-65, 468-74, 479-86. Addressing the

what, Plaintiffs alleged a series of contractual and regulatory breaches, pointing

to specific obligations that Envirocare breached. Id. at 455-62, 466-86. For

contractual violations, Plaintiffs listed the contracts that were purportedly

violated. Id. at 455-56. They also listed payment requests submitted, including

the date of submission, the amount sought, and where applicable the language of

the express certification contained in each request. Id. at 456-57. In pleading the

when, Plaintiffs documented the dates on which specific violations took place and

the dates on which payment requests were submitted. Id. at 456-57, 468-73, 477-

86. For the where, Plaintiffs provided the location of the waste disposal site for

the alleged violations—including, at times, the specific site area where the

violations occurred. See, e.g., id. at 468-73, 477-86. Finally, with regard to the

how, Plaintiffs included extensive factual detail regarding how the violations

occurred, adding, in many instances, the conduct that led to the violation, the

reason the result constituted a violation, and a description of the effect of the

violation. Id. Plaintiffs also offered a detailed description of Envirocare’s

alleged efforts to conceal the violations, including, for example, the names of the

Envirocare supervisors who instructed one Plaintiff to stop documenting

violations. Id. at 464-65, 471-73, 475-85.

By providing these factual allegations in a clear, organized, and relatively

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concise manner, Plaintiffs’ FCA claims appear to have complied with both the

heightened pleading requirements of Rule 9(b) and the general requirements of

Rule 8(a). 

Envirocare expends little new effort in arguing for Rule 9(b) dismissal and

instead relies primarily on contentions made in its Rule 12(b)(6) arguments. 

Where it addresses Rule 9(b) directly, Envirocare relies on the district court’s

dismissal of the second amended complaint and Plaintiffs’ admissions in oral

argument before the district court in faulting Plaintiffs for not providing the

“what and how,” which Envirocare characterizes as “the actual presentment of a

false claim for payment to . . . the treasury.” Aplee. Br. at 33-34. As support,

Envirocare points to Plaintiffs’ allegations regarding the volume of purported

violations (and claims) under the FCA and Plaintiffs’ admission that “relators

sometimes cannot match an act constituting a false claim to a specific payment

request.” Id. at 35-40. Envirocare supplements this argument by highlighting

examples of the virtually infinite number of questions that Plaintiffs’ third

amended complaint does not—and is not required to—answer. Id. at 36-37. At

times, in advancing its argument, Envirocare simply ignores the content of

Plaintiffs’ allegations. Compare, e.g., id. at 37 (“[Plaintiffs’ allegations] do not

state what specific certification was submitted with what payment request . . . .”)

with Aplt. App. at 462 (“Envirocare periodically submitted requests for payment

to the Corps of Engineers for services allegedly provided under the Contracts. In

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each request, Envirocare expressly certified that the payments requested were

only for work performed in accordance with the specifications, terms, and

conditions of the contract . . . .”) (third amended complaint).

In so arguing, Envirocare seeks to hold Plaintiffs to a higher standard than

is required. The federal rules do not require a plaintiff to provide a factual basis

for every allegation. Nor must every allegation, taken in isolation, contain all the

necessary information. Rather, to avoid dismissal under Rules 9(b) and 8(a), 

plaintiffs need only show that, taken as a whole, a complaint entitles them to

relief. See, e.g., Twombly, 550 U.S. at 554-56. The complaint must provide

enough information to describe a fraudulent scheme to support a plausible

inference that false claims were submitted. Because Plaintiffs have provided

sufficient factual detail to demonstrate the viability of their FCA claims, the

dismissal under Rule 9(b) was error.

REVERSED.

Appellate Case: 09-4079 Document: 01018470866 Date Filed: 08/04/2010 Page: 20