UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA EX 

REL. MARK TROXLER, 

 Plaintiff - Appellant, 

v. 

WARREN CLINIC, INC.; SAINT 

FRANCIS HEALTH SYSTEM, INC., 

 Defendants - Appellees. 

No. 14-5144 

(D.C. No. 4:11-CV-00808-TCK-FHM) 

(N.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, PORFILIO, and PHILLIPS, Circuit Judges. 

_________________________________ 

Mark Troxler brought this suit under the False Claims Act (“FCA”), 31 U.S.C. 

§§ 3729, 3730, alleging that defendants Warren Clinic, Inc. and Saint Francis Health 

System, Inc. (collectively “clinic”) were fraudulently billing the government for 

services provided by non-physicians. The district court dismissed the suit under 

Federal Rule of Civil Procedure 12(b)(6), and exercising jurisdiction under 28 U.S.C. 

§ 1291, we affirm. 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

submitted without oral argument. This order and judgment is not binding precedent, 

except under the doctrines of law of the case, res judicata, and collateral estoppel. It 

may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 

and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

October 28, 2015

Elisabeth A. Shumaker 

Clerk of Court

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I 

 Dr. Troxler worked at the clinic from March 2010 through February 2011. He 

alleged that during that time, he observed and protested the clinic’s practice of 

having nurses and medical assistants collect patients’ “History of Present Illness” or 

“HPI.” Aplt. App., Vol. 1 at 6. Dr. Troxler averred that HPI information is 

necessary to select the proper billing code for “evaluation and management” or 

“E/M” services and must be supported by a physician’s documentation. Id. at 10-11. 

He further alleged that by having non-physicians collect and document HPI 

information, the clinic was fraudulently obtaining reimbursements from federal and 

state Medicare and Medicaid programs. Dr. Troxler therefore brought this suit on 

behalf of the government under the FCA’s qui tam provisions, claiming the clinic 

was knowingly presenting false or fraudulent claims to the government for payment, 

and knowingly making or using false records to obtain payment for false or 

fraudulent claims. See 31 U.S.C. § 3729(a)(1)(A), (B).1

 The district court dismissed the suit under Rule 12(b)(6).2

 The court first 

described the FCA’s statutory framework, which “‘recognizes two types of 

actionable claims—factually false claims and legally false claims.’” Aplt. App., 

 1

 An individual may prosecute such claims on behalf of the government under 

the FCA’s qui tam provisions and share in any recovery. See U.S. ex rel. Lemmon v. 

Envirocare of Utah, Inc., 614 F.3d 1163, 1167 (10th Cir. 2010) (citing 31 U.S.C. 

§ 3730(b), (d)). 

2

 The district court did not reach the clinic’s alternative argument that the 

complaint was subject to dismissal under Federal Rule of Civil Procedure 9(b) for 

failure to plead the claims with particularity. Our disposition obviates any need to 

consider this issue. 

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Vol. 2 at 220 (quoting U.S. ex rel. Conner v. Salina Reg’l Health Ctr., Inc., 543 F.3d 

1211, 1217 (10th Cir. 2008)).3

 Factually false claims, the court explained, are those 

in which “‘the payee has submitted an incorrect description of goods or services 

provided or a request for reimbursement for goods or services never provided.’” Id.

at 221 (quoting Conner, 543 F.3d at 1217). 

The court determined the complaint failed to plead a factually false claim 

because Dr. Troxler did not allege that anything in the clinic’s claim forms was false, 

nor did he dispute that the services were actually provided. Moreover, he did not 

allege that the clinic failed to document HPI information or that the E/M billing 

codes were incorrect; rather, he merely alleged that the nurses and medical assistants 

who obtained HPI information were unqualified to do so. But because the complaint 

did not allege the clinic was obligated to identify who collected the HPI information, 

the court concluded the complaint failed to state a factually false claim. 

As for legally false FCA claims, the district court explained they may be either 

express or implied and “require the relator to prove that ‘the defendant has certified 

compliance with a statute or regulation as a condition to government payment, yet 

 3

 The relevant provisions of the FCA provide for civil penalties and treble 

damages against a defendant who “(A) knowingly presents or causes to be presented, 

a false or fraudulent claim for payment of approval; [or] (B) knowingly makes, uses, 

or causes to be made or used, a false record or statement material to a false or 

fraudulent claim[.]” 31 U.S.C. § 3729(a)(1). The scienter element is established if 

the defendant has “(i) actual knowledge of the information; (ii) acts in deliberate 

ignorance of the truth or falsity of the information; or (iii) acts in reckless disregard 

of the truth or falsity of the information,” although “no proof of specific intent to 

defraud” is required. Id. § 3729(b)(1); see U.S. ex rel. Burlbaw v. Orenduff, 548 F.3d 

931, 945 & n.12 (10th Cir. 2008). 

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knowingly failed to comply with such statute or regulation.’” Id. (quoting Conner, 

543 F.3d at 1217). The court recognized that an express false certification claim 

arises when “‘a [defendant] falsely certifies compliance with a particular statute, 

regulation or contractual term, where compliance is a prerequisite to payment.’” 

Id. at 221-22 (quoting Conner, 543 F.3d at 1217). But an implied false certification 

claim “requires only the presentation of a false or fraudulent claim for payment or 

approval without the additional . . . requirement of a false record or statement.” 

U.S. ex rel. Lemmon v. Envirocare of Utah, Inc., 614 F.3d 1163, 1168 (10th Cir. 

2010) (internal quotation marks omitted). When analyzing these implied false 

certification claims, the focus is “‘on the underlying contracts, statutes, or 

regulations . . . to ascertain whether they make compliance a prerequisite to the 

government’s payment.’” Aplt. App., Vol. 2 at 222 (quoting Conner, 543 F.3d 

at 1218). 

The district court concluded that the complaint failed to allege either an 

express or an implied false certification claim. An express false certification theory 

failed, the court ruled, because there were no allegations that the clinic certified its 

compliance with any legally binding authority. A single paragraph in the complaint 

alleged the clinic “repeatedly and falsely certified their continued compliance with 

Medicare guidelines while knowingly rendering services not in compliance with 

Medicare guidelines and while knowingly submitting false records or statements for 

payment related to such services rendered.” Aplt. App., Vol. 1 at 20, ¶ 47. But this 

conclusory statement, the court held, failed to identify any statement or certification 

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of compliance with any legally binding authority. Although Dr. Troxler cited a 

provision of the Department of Health and Human Services’ Evaluation and 

Management Services Guide, the district court determined this document had no 

legally binding effect and even if it did, there was no indication in the complaint how 

the clinic certified its compliance with it.4

 Apart from that, the court noted that 

Dr. Troxler did not identify any false certification premised on the requirements of a 

statute, regulation, or contract. This was fatal to his theory of an implied false 

certification, the court explained, because without an underlying statute, regulation, 

or contract, there was no authority to make compliance a prerequisite to the 

government’s payment. 

II 

We review the district court’s dismissal de novo, Lemmon, 614 F.3d at 1167, 

and agree that Dr. Troxler failed to plead a plausible FCA claim. The complaint fails 

to state a factually false claim because there are no allegations that the clinic 

submitted anything false to the government or that the services were not actually 

provided. Dr. Troxler suggests the reimbursement requests were false because only 

physicians can certify whether services are medically necessary, see Aplt. Br. at 17 

(“reimbursements . . . are made only for services that are medically necessary” and 

 4

 The “Medicare guidelines” that Dr. Troxler referenced in his complaint are 

the 1997 Documentation Guidelines for Evaluation and Management Services, see 

Aplt. App., Vol. 1 at 10 ¶17, 20 ¶ 47, which are appended to and appear to be part of 

the Evaluation and Management Services Guide, see id. at 57-145. The clinic 

attached these materials to its motion to dismiss, and the parties do not dispute their 

authenticity. See Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002). 

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are inappropriate “when a physician’s documentation fails to support the medical 

necessity of a[n] . . . E/M service”), but there are no allegations that the services were 

unnecessary. Rather, the complaint alleges that HPI information was collected by 

unqualified personnel. But as the district court recognized, absent allegations that the 

clinic was required to identify who collected HPI information, the complaint fails to 

state a factually false claim. 

Likewise, the complaint fails to state a legally false claim. There are no 

allegations to support an express false certification theory because the complaint does 

not identify any expressly false certification or statement. Nor does the complaint 

identify a statute, regulation, or contract requiring that only physicians collect HPI 

information as a prerequisite to payment. This deficiency defeats an implied false 

certification theory because without an underlying legal authority to make 

compliance a prerequisite to payment, there can be no false certification. See

Conner, 543 F.3d at 1218. Although Dr. Troxler alludes to the 1997 Documentation 

Guidelines for Evaluation and Management Services, Aplt. App., Vol. 1 at 96; 

Aplt. Br. at 22, he does not allege—and we find no indication—that these guidelines 

legally mandate and condition payment of services on a health-care provider’s 

certification that HPI information was collected exclusively by physicians. 

Moreover, without a statutory, regulatory, or contractual obligation to make this 

certification, it is implausible that the allegations satisfy the scienter requirement 

because there was nothing with which the clinic could have knowingly certified its 

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false compliance.5

 Under these circumstances, the district court correctly dismissed 

the complaint. 

Accordingly, having reviewed the parties’ appellate materials, the relevant 

legal authorities, and the record on appeal, we affirm the district court’s judgment for 

substantially the same reasons stated by the district court in its decision dated 

November 5, 2014. 

Entered for the Court 

Gregory A. Phillips 

Circuit Judge 

 5

 Dr. Troxler reiterates his argument that a provision of the Evaluation and 

Management Services Guide allows “ancillary staff” to collect and document certain 

information. Aplt. App., Vol. 1 at 70. He insists that this expressly enumerated 

allowance for non-physicians to collect specific information must mean that other 

information, including HPI information, can only be collected by physicians. But 

even if we could read this negative inference from the omission of language in the 

Evaluation and Management Services Guide (which we do not), the district court 

correctly recognized that this guide is not legally binding. Indeed, it expressly says 

that it is merely a “reference tool” and “is not a legal document and does not grant 

rights or impose obligations.” Id. at 58. 

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