Opposition Brief — Stephen B. Grant, on Behalf of the United States and the State of Iowa, Petitioner v. Steven Zorn, et al.
Supreme Court briefApr 11, 2025
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No. 24-549
IN THE
STEPHEN B. GRANT, ON BEHALF OF THE UNITED STATES
OF AMERICA AND ON BEHALF OF THE STATE OF IOWA,
Petitioner,
v.
STEVEN ZORN; IOWA SLEEP DISORDERS CENTER, P.C.;
IOWA CPAP, L.L.C.,
Respondents.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the
Eighth Circuit
BRIEF IN OPPOSITION
BRIAN O. MARTY
ANDREW B. HOWIE
SHINDLER, ANDERSON,
GOPLERUD & WEESE, P.C.
5015 Grand Ride Drive,
Suite 100
West Des Moines, IA 50265
JESSICA L. ELLSWORTH
Counsel of Record
DANIELLE DESAULNIERS STEMPEL
J. ANDREW MACKENZIE
HOGAN LOVELLS US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004
Telephone: (202) 637-5600
jessica.ellsworth@hoganlovells.com
Counsel for Respondents
QUESTIONS PRESENTED
1. Whether the Eighth Circuit correctly held that
the Excessive Fines Clause limits the statutory penalties in this particular case to a single-digit multiplier
of actual damages, which the District Court should determine on remand.
2. Whether the District Court clearly erred by declining to infer that Respondents overbilled the Government on certain patient visit codes when Petitioner
did not produce evidence as to those patient codes.
(i)
ii
CORPORATE DISCLOSURE STATEMENT
Pursuant to Supreme Court Rule 29.6, Respondents disclose the following: Iowa Sleep Disorders
Center, P.C. and Iowa CPAP, L.L.C. do not have a
parent corporation, and no publicly held company
owns 10% or more of its stock.
iii
STATEMENT OF RELATED CASES
All proceedings directly related to this Petition include:
United States v. Zorn, No. 24A627 (U.S.)
Zorn v. Grant, No. 24-845 (U.S.)
Grant ex rel. United States v. Zorn, Nos. 223481, 22-3591 (8th Cir.)
Grant ex rel. United States v. Zorn, No. 4:18cv-00095 (S.D. Iowa)
iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................ i
CORPORATE DISCLOSURE STATEMENT ............. ii
STATEMENT OF RELATED CASES .......................iii
TABLE OF AUTHORITIES ....................................... vi
INTRODUCTION ........................................................ 1
STATEMENT OF THE CASE .................................... 5
A.
Legal Background ..................................... 5
B.
Statement of Facts .................................... 6
C.
Procedural History.................................... 7
REASONS FOR DENYING THE PETITION .......... 12
I.
CERTIORARI REVIEW OF THE
EIGHTH CIRCUIT’S EIGHTH AMENDMENT ANALYSIS IS UNWARRANTED ......12
A.
Certiorari Is Unwarranted On
Whether The Excessive Fines
Clause Applies To Non-Intervened Qui Tam Actions ..........................12
B.
Certiorari Is Unwarranted On
The Eighth Circuit’s Fact-Bound
Excessive Fines Analysis........................16
1.
The decision below does not
create or exacerbate a
circuit split ......................................16
v
TABLE OF CONTENTS—Continued
Page
2.
C.
II.
The Eighth Circuit’s Excessive Fines Clause analysis is
correct on the merits .......................18
This Case Is A Poor Vehicle To
Address The Constitutional
Question Presented ................................26
CERTIORARI IS UNWARRANTED TO
REVIEW WHETHER PETITIONER
CARRIED HIS BURDEN AS TO
CERTAIN BILLING CODES .........................27
vi
TABLE OF AUTHORITIES
Page(s)
CASES:
Adeli v. Silverstar Auto. Inc.,
960 F.3d 452 (8th Cir. 2020) ..........................18, 20
Austin v. United States,
509 U.S. 602 (1993) .................................. 12, 13, 14
BMW of North America, Inc. v. Gore,
517 U.S. 559 (1996) ..............................................25
Brown v. Entertainment Merchants Ass’n,
564 U.S. 786 (2011) ..............................................21
Browning-Ferris Indus. of Vt., Inc. v.
Kelco Disposal, Inc.,
492 U.S. 257 (1989) ........................................12, 13
DeVillier v. Texas,
601 U.S. 285 (2024) ........................................22, 26
Egbert v. Boule,
596 U.S. 482 (2022) ..............................................22
Fulton v. City of Philadelphia,
593 U.S. 522 (2021) ..............................................21
Grabinski v. Blue Springs Ford Sales, Inc.,
203 F.3d 1024 (8th Cir. 2000) ........................18, 20
Graham Cnty. Soil & Water Conservation Dist. v.
United States ex. rel. Wilson,
559 U.S. 280 (2010) ................................................6
vii
TABLE OF AUTHORITIES—Continued
Page(s)
Harmelin v. Michigan,
501 U.S. 957 (1991) ..............................................24
Marbury v. Madison,
5 U.S. 137 (1803) ..................................................14
State Farm Mut. Auto. Ins. Co. v. Campbell,
538 U.S. 408 (2003) .................................. 10, 19, 24
Stop Ill. Health Care Fraud, LLC v. Sayeed,
100 F.4th 899 (7th Cir. 2024) ........................17, 18
United States ex rel. Bunk v. Gosselin World
Wide Moving, N.V.,
741 F.3d 390 (4th Cir. 2013) .................... 17, 18, 24
United States ex rel. Cheryl Taylor v. Healthcare
Assocs. of Texas, LLC,
No. 3:19-cv-2486, 2025 WL 624493
(N.D. Tex. Feb. 26, 2025) .....................................20
United States ex rel. Drakeford v. Tuomey,
792 F.3d 364 (4th Cir. 2015) ..........................19, 21
United States ex rel. Fesenmaier v.
Cameron-Ehlen Grp., Inc.,
715 F. Supp. 3d 1133 (D. Minn. 2024) ..........20, 21
United States ex rel. Schutte v. SuperValu Inc.,
598 U.S. 739 (2023) ..........................................9, 27
United States v. Aleff,
772 F.3d 508 (8th Cir. 2014) ................................20
viii
TABLE OF AUTHORITIES—Continued
Page(s)
United States v. Bajakajian,
524 U.S. 321 (1998) .......... 10, 16, 17, 19, 21, 23, 24
United States v. Lanier,
520 U.S. 259 (1997) ..............................................22
United States v. Rogan,
517 F.3d 449 (7th Cir. 2008) ................................13
Vermont Agency of Nat. Res. v. United States
ex. rel. Stevens,
529 U.S. 765 (2000) ..............................................15
Universal Health Services., Inc. v. United States
ex rel. Escobar,
579 U.S. 176 (2016) ..............................................27
Weems v. United States,
217 U.S. 349 (1910) ..............................................24
Yates v. Pinellas Hematology & Oncology, P.A.,
21 F.4th 1288 (11th Cir. 2021) ........... 9, 10, 12, 13,
14, 15, 17, 20, 23
STATUTES:
18 U.S.C. § 982(a)(1) ..................................................19
31 U.S.C. § 3729(a)(1) ..................................................5
31 U.S.C. § 3729(a)(1)(A) ................................. 5, 27, 28
31 U.S.C. § 3729(b)(1)(B) .............................................9
31 U.S.C. § 3730(b)(1) ..................................................5
ix
TABLE OF AUTHORITIES—Continued
Page(s)
31 U.S.C. § 3730(d)(2)..................................................5
31 U.S.C. § 3730(e)(4)(A) .........................................6, 9
31 U.S.C. § 3731(d) ....................................................28
REGULATION:
29 C.F.R. § 85.5 (Table 1) ............................................5
RULES:
Fed. R. App. P. 40(b)-(c).............................................26
Fed. R. Evid. 404(b)(2) ...............................................25
Sup. Ct. R. 10 .............................................................25
OTHER AUTHORITIES:
Melissa Ballengee Alexander, Bajakajian:
New Hope for Escaping Excessive Fines
Under the Civil False Claims Act, 27 J.L.
Med. & Ethics 366 (1999) ......................................5
Krause, “Promises to Keep”: Health Care Providers and the Civil False Claims Act, 23
Cardozo L. Rev. 1363 (2002) ................................24
Letter from Acting Solicitor General Sarah
M. Harris to Speaker Mike Johnson
(Feb. 24, 2025) ................................................11, 12
IN THE
_________
No. 24-549
_________
STEPHEN B. GRANT, ON BEHALF OF THE UNITED STATES
OF AMERICA AND ON BEHALF OF THE STATE OF IOWA,
Petitioner,
v.
STEVEN ZORN; IOWA SLEEP DISORDERS CENTER, P.C.;
IOWA CPAP, L.L.C.,
Respondents.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the
Eighth Circuit
BRIEF IN OPPOSITION
INTRODUCTION
Petitioner asks this Court to grant certiorari to review the Eighth Circuit’s decision about how the Excessive Fines Clause applies on the facts of this case,
and whether the Eighth Circuit correctly found no
clear error in the District Court’s determination that
certain overbilling claims failed for lack of evidence.
Neither of those issues or the sub-questions they implicate are cert-worthy; indeed, most are fact-bound,
none implicate a split, and all suffer from vehicle problems.
This case arises from a dispute between two doctors in a small-town sleep medicine practice. In 2016
(1)
2
and 2018, a Medicare auditor sent Dr. Steven Zorn audit letters accusing him of overbilling Medicare by
miscoding the complexity of certain patient visits. The
Medicare auditor took no further action. Dr. Stephen
Grant, another doctor who worked with Zorn and coowned the practice, saw copies of those letters and
filed a qui tam suit under the False Claims Act (FCA).
Grant’s suit relied on the letters and the same underlying information they disclosed. The FCA’s public
disclosure bar should have precluded that parasitic
suit, but the District Court and Eighth Circuit found
the bar inapplicable. Dr. Zorn has petitioned for review of that holding. See Pet., Zorn v. Grant, No. 24845 (U.S. Feb. 5, 2025).
Grant’s suit alleged that Zorn submitted claims
for sleep-related services that falsely described the patient encounters as more complex than they were. After a bench trial, the District Court found that Zorn
had submitted 1,050 false claims and caused approximately $86,000 in actual damages. The final judgment took account of the FCA’s treble damages provision for actual losses and the statute’s penalty provision. Here, the District Court calculated the statutory
penalties for $86,000 in actual damages at approximately $7.7 million. Applying the Eighth Amendment’s Excessive Fines Clause, the court reduced the
statutory penalties to approximately $6.7 million. On
appeal, the Eighth Circuit agreed that the statutory
penalties violated the Excessive Fines Clause, but
found the District Court’s reduction insufficient. The
appeals court held that the penalties were still unconstitutionally excessive and should be further reduced.
It ordered the District Court on remand to determine
the appropriate statutory penalties, but instructed
3
that the penalty should be no larger than a single-digit
multiplier of the actual damages, given the facts of
this case.
Petitioner takes issue with that decision on various fronts, but none warrant this Court’s review.
First, neither of the issues under the Excessive
Fines Clause are cert-worthy. Those holdings—that
the Excessive Fines Clause applies to non-intervened
qui tam cases and that the statutory penalties imposed here were unconstitutionally excessive based on
the record—do not implicate a circuit split. Every circuit to address the question has correctly concluded
that the Excessive Fines Clause applies to relator-litigated actions. And every circuit Petitioner points to
applies this Court’s proportionality test to determine
whether a given fine in a given case is excessive—like
the Eighth Circuit did here.
Petitioner attempts to contrive a split by describing the Eighth Circuit as imposing a “facial” singledigit multiplier cap for all FCA cases. Pet. 20. The
court did no such thing. It held that, on “these facts,”
in “this case,” a double-digit multiplier was excessive.
Pet. App. 27a. As a result, this case does not even present the first question presented, which is whether
“the FCA’s statutory penalty must be limited to a single-digit multiplier of the actual damages.” Pet. i. The
Eighth Circuit took no position on whether more egregious conduct in some other case might warrant a
larger multiplier. Nor is it surprising that, in deciding
whether a particular fine is disproportional to particular conduct, different courts have reached different
conclusions. That shows that disparate cases warrant
disparate outcomes, not that courts are split.
4
The Eighth Circuit also got it right on the merits.
Consistent with this Court’s guidance in the Due Process Clause context, the Eighth Circuit concluded that
cases involving a relatively small amount of purely
economic harm are less reprehensible than ones involving tortious conduct or other illegal activity. The
court below adhered to this Court’s instruction that
the legislature’s judgment is entitled to substantial—
but not absolute—deference. After all, the Bill of
Rights does not grant the fox the run of the henhouse.
Second, Petitioner seeks review of the Eighth Circuit’s decision, on clear-error review, to affirm the District Court’s finding that Petitioner failed to prove
part of his case. Once again, there is no split or conflict
with this Court’s precedents, this issue is wholly casespecific, and there are significant vehicle problems—
namely, that the District Court also found Petitioner
failed to prove multiple elements of his FCA claims as
to this part of his case.
The Eighth Circuit’s decision does present one
cert-worthy issue—just not one that Petitioner identified. As explained in Zorn’s separate petition, certiorari is warranted to review the Eighth Circuit’s decision that the public disclosure bar is only triggered
when there is an express accusation of fraud through
one of the statutorily defined channels. Pet., Zorn v.
Grant, No. 24-845. That question is the subject of a
twelve-circuit split. The Eighth Circuit’s approach is
deeply wrong. The issue is exceptionally important.
And a ruling for Zorn on that issue would obviate the
need to address the issues Petitioner raises here.
The Court should accordingly deny certiorari on
Grant’s petition and grant Zorn’s. But if the Court
5
grants certiorari on Grant’s petition, it should also
grant Zorn’s petition and consider the cases together.
STATEMENT OF THE CASE
A.
Legal Background
The FCA imposes significant financial penalties
on “any person who” “knowingly presents, or causes to
be presented, a false or fraudulent claim for payment
or approval” by the Government.
31 U.S.C.
§ 3729(a)(1)(A). Under the FCA’s qui tam provisions,
a private person may bring an action as a relator on
behalf of the United States. Id. § 3730(b)(1).
If a defendant is found liable under the FCA, the
statute specifies damages of “3 times the amount of
damages which the Government” sustained. Id.
§ 3729(a)(1). In addition, the statute imposes a mandatory penalty of between $13,946 and $27,894, which
courts interpret to be a per-claim penalty. See id.; 29
C.F.R. § 85.5 (Table 1). The relator receives up to 30%
of the recovery, including any statutory penalties, in
addition to attorneys’ fees and costs. 31 U.S.C.
§ 3730(d)(2).
Because the statutory penalties are not connected
to the dollar amount of the claim, large numbers of
claims causing little damage can nevertheless lead to
massive penalties. In the healthcare field in particular, providers routinely submit thousands of relatively
small-dollar-value claims each year. The magnitude
of FCA penalties in these cases can result in tremendous upwards settlement pressure, even where the
Government experienced little or no tangible harm.
See Melissa Ballengee Alexander, Bajakajian: New
Hope for Escaping Excessive Fines Under the Civil
False Claims Act, 27 J.L. Med. & Ethics 366, 368
6
(1999) (explaining that “[w]hen numerous claims are
at issue the FCA’s per claim fines can metamorphize
from rough remedial justice to grossly disproportionate penalties”).
The FCA also contains a “public disclosure bar”
that directs dismissal of a relator’s action if “substantially the same allegations or transactions as alleged
in the action or claim were publicly disclosed,” including via an “audit.” 31 U.S.C. § 3730(e)(4)(A). This provision is designed “to strike a balance between encouraging private persons to root out fraud and stifling
parasitic lawsuits.” Graham Cnty. Soil & Water Conservation Dist. v. United States ex. rel. Wilson, 559
U.S. 280, 295 (2010).
B.
Statement of Facts
Respondent Dr. Steven Zorn practices sleep medicine in West Des Moines and Ankeny, Iowa. The other
Respondents are his personal practice and a related
medical equipment company.1
Dr. Zorn treats Medicare, Medicaid, and Tricare
patients, for which he submits bills to the Government. Sleep medicine doctors must code the bill to describe the nature of the visit. New patient visits are
coded for reimbursement from 99201 through 99205.
Pet. App. 3a. Return visits are coded for reimbursement from 99211 to 99215. Id. The last digit in these
codes reflects the visit’s complexity; higher digits
1
Petitioner did not name Iowa CPAP, LLC as a Respondent.
See Pet. iii. Because Iowa CPAP was also a defendant-appellee
below along with Zorn and Iowa Sleep, this brief collectively refers to all three as “Respondent” or “Zorn.”
7
indicate greater complexity and seek a higher payment. Id.
In September 2016, a Medicare contractor for the
Centers for Medicare & Medicaid Services (CMS) audited Zorn’s billing and sent his office a letter describing its concerns. According to the letter, Zorn had
billed new patients with the highest dollar-value code
“100 percent” of the time. Id. at 60a. The letter explained that “[m]ore variety would be expected” and
offered “to educate” Zorn on proper billing. Id.
In January 2018, following another audit to identify “fraud, waste, and abuse,” the same CMS contractor sent Zorn a second letter. Id. at 61a. This letter
explained that the Government had previously
warned Zorn about incorrectly billing new patient
codes at the highest level 100 percent of the time. Id.
at 61a-62a. The letter provided “formal notice” regarding Zorn’s overbilling and specific “overpayments
made to” him by Medicare. Pet. App. 172a, Zorn, No.
24-845.
C.
Procedural History
1. Petitioner Dr. Stephen Grant worked with Zorn
and was a partial owner in Zorn’s practice. The practice’s office manager gave Dr. Grant copies of the audit
letters. Two months after the second audit letter, in
March 2018, Grant brought this qui tam action based
on the letters, alleging that Zorn had violated the FCA
by overbilling.
Zorn sought to dismiss the action under the public
disclosure bar, arguing that Grant’s FCA claim should
be foreclosed because it was based on the audit letters.
The District Court held the public disclosure bar inapplicable because the letters from the CMS contractor
8
did not allege that Zorn had engaged in “intentional”
miscoding, while Grant’s complaint did. Id. at 93a.
Following a bench trial, the District Court found
that Zorn overbilled on initial Medicare patient visits
causing “actual damages to the Government of
$86,332”—“approximately $113 per false claim”—
which the court trebled to $258,996. Id. at 125a, 127a.
The court, applying what it thought was the statutory minimum for FCA penalties, calculated the penalty amount at $7,699,525 based on 1,050 false claims
submitted by Zorn. Id. at 126a-127a. As the Eighth
Circuit pointed out on appeal, the District Court used
an incorrectly low statutory minimum for some
claims. See id. at 20a-21a. The Government has since
asserted that the correct minimum statutory penalties
should have been $8,062,025. USG Pet. for Rehearing
4 n.1; accord Pet. 3 n.1.
The District Court found that imposing the minimum statutory penalties violated the Eighth Amendment’s Excessive Fines Clause. Pet. App. 148a-149a.
It accordingly reduced the penalty amount to
$6,474,900. Id.
2. Zorn appealed, and Grant cross-appealed. On
Zorn’s appeal, the Eighth Circuit first addressed the
public disclosure bar. It held the bar was “inapplicable” because it applies only when “substantially the
same allegations” have been publicly disclosed
through one of the specified channels, and the allegations in Grant’s complaint differed from the CMS contractor letters. Id. at 11a. According to the Eighth
Circuit, the difference was that Grant “alleged that
the defendants knowingly submitted false claims to
the government,” id. (emphasis added), whereas the
9
CMS auditor’s letters “revealed only the possibility of
inaccurate billing” and “failed to suggest” Zorn “intentionally” submitted false bills, id. at 12a (citation and
brackets omitted). “Given the letters’ repeated references to” Zorn’s “errors and the accompanying offers
for remedial education,” the Eighth Circuit reasoned
that “an uninitiated reader would not reasonably infer
from the letters that” Zorn “had committed fraud.” Id.
at 12a.2
The Eighth Circuit next addressed the Excessive
Fines Clause. The court of appeals held the Excessive
Fines Clause applies to non-intervened qui tam suits,
consistent with the Eleventh Circuit—the only other
court to decide the issue. Id. at 22a-23a (citing Yates
v. Pinellas Hematology & Oncology, P.A., 21 F.4th
1288, 1308 (11th Cir. 2021)).
The Eighth Circuit also agreed with Zorn that the
fine imposed here was unconstitutionally excessive.
Id. at 24a. The court acknowledged that it owed “substantial deference to legislative judgments concerning
appropriate sanctions.” Id. at 28a (quotation marks
omitted). But the court recognized that the Excessive
Fines Clause does not permit Congress to impose a
penalty “grossly disproportional to the gravity of a
2
As explained more in Zorn’s petition for certiorari, the
Eighth Circuit did not analyze the text of the public disclosure
bar, which applies when either “substantially the same allegations or transactions” are disclosed. 31 U.S.C. § 3730(e)(4)(A)
(emphasis added). Nor did the Eighth Circuit acknowledge that
the FCA’s scienter requirement does not require the intentional
submission of false claims. Id. § 3729(b)(1)(B); United States ex
rel. Schutte v. SuperValu Inc., 598 U.S. 739, 750 (2023) (necessary mental state for FCA liability includes “actual knowledge,
deliberate ignorance, or recklessness”).
10
defendant’s offense.” Id. at 23a (quoting United States
v. Bajakajian, 524 U.S. 321, 334 (1998)). The Eighth
Circuit accordingly was “mindful” of its obligation “not
to give ‘undue deference’ to legislative judgments
about excessiveness,” lest the legislature supply both
“an answer to the question of what a fine should be
and whether it’s excessive.” Id. (quoting Yates, 21
F.4th at 1323 (Newsom, J., concurring)).
At the parties’ joint invitation, the Eighth Circuit
drew from this Court’s insights in Due Process Clause
cases to conclude that “purely economic harm * * * is
less reprehensible than ‘tortious conduct that evinces
an indifference to the health or safety of others.’ ” Id.
at 26a (quoting State Farm Mut. Auto. Ins. Co. v.
Campbell, 538 U.S. 408, 419 (2003)) (brackets and ellipses omitted). As the court explained, the “defendants here caused a relatively small amount ($86,332)
of only economic loss and did not endanger the health
or safety of others.” Id. (quotation marks omitted).
This case was thus unlike other cases involving “tortious conduct that evinced an indifference to the
health or safety of others,” in which courts found double-digit multipliers were appropriate. Id. The Eighth
Circuit concluded that on the facts of this case, including because it involves “purely economic harm,” id.,
“the district court should have limited the punitive
sanction to a single-digit multiplier of compensatory
damages,” id. at 27a. Rather than set that number
itself, the court left the precise sanction to the District
Court’s discretion on remand. Id. at 29a.
Chief Judge Smith disagreed with the panel’s constitutional analysis. Id. at 30a-39a (Smith C.J., concurring in part and concurring in the judgment). “[O]n
this record,” he would have concluded that imposing a
11
$7.7 million fine for only $86,332 in actual losses was
not excessive. Id. at 33a.
3. The United States intervened for the purpose of
seeking panel rehearing and rehearing en banc.
Grant also sought rehearing. Zorn opposed rehearing
but argued that, if the Eighth Circuit reheard the case,
it should first correct the panel’s error regarding the
public disclosure bar. As Zorn explained, a different
decision on the public disclosure bar would have allowed the Eighth Circuit to avoid the constitutional
question. The Eighth Circuit denied rehearing en
banc. Id. at 154a.
4. Both Grant and Zorn petitioned this Court for
a writ of certiorari. The United States, despite seeking rehearing en banc on the Excessive Fines Clause
question and multiple extensions from this Court, ultimately “determined that a petition for a writ of certiorari” on that fact-bound issue “is not warranted in
this case.” Letter from Acting Solicitor General Sarah
M. Harris to Speaker Mike Johnson at 2 (Feb. 24,
2025)
(“Solicitor
General
Letter”),
https://perma.cc/4NWY-MR9N. As the Government
explained in its letter to Congress, the Eighth Circuit’s
decision invalidated “a particular application of a federal statute regarding penalties in a particular case,”
rendering certiorari inappropriate. Id. The United
States also suggested that this case is a poor vehicle
because this Court “has previously reserved the question whether the Excessive Fines Clause applies in qui
tam suits” and “[t]he need to decide that threshold issue could complicate th[is] Court’s review.” Id.
12
REASONS FOR DENYING THE PETITION
I.
CERTIORARI REVIEW OF THE EIGHTH
CIRCUIT’S EIGHTH AMENDMENT ANALYSIS IS UNWARRANTED.
A.
Certiorari Is Unwarranted On Whether
The Excessive Fines Clause Applies To
Non-Intervened Qui Tam Actions.
As the United States recognized when it declined
to seek certiorari, there is a threshold question to the
Eighth Circuit’s fact-bound Excessive Fines Clause
analysis: whether the Clause applies in non-intervened qui tam suits. Solicitor General Letter, supra,
at 2. There is no split on that question, and the panel’s
unanimous decision holding that the Excessive Fines
Clause applies to such suits is correct. Nor is there
any need for this Court to weigh in on Petitioner’s unpreserved secondary question about whether the portion of a judgment payable to a relator is exempt from
the Excessive Fines Clause.
1. No court of appeals has held the Excessive Fines
Clause inapplicable to relator-litigated actions. The
Court left that question open in 1989, Browning-Ferris
Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257,
276 n.21 (1989), and again in 1993, Austin v. United
States, 509 U.S. 602, 607 n.3 (1993). In the decades
since, two courts of appeals have addressed the issue—the Eleventh Circuit in 2021 and the Eighth Circuit below. Both reached the same result: the Excessive Fines Clause applies to relator-litigated actions.
Pet. 15; see Pet. App. 23a (majority op.); id. at 30a-39a
(Smith, C.J., concurring in part and concurring in the
judgment); Yates, 21 F.4th at 1308.
13
Petitioner invokes the possibility of a future split
based on the Seventh Circuit’s 17-year-old supposed
“skepticism” of that approach. Pet. 15 (citing United
States v. Rogan, 517 F.3d 449, 453-454 (7th Cir.
2008)). But Rogan was a suit litigated by the Government, not a relator, and the Seventh Circuit offered no
view on the Clause’s application in relator-litigated
suits. See Rogan, 517 F.3d at 451. It merely observed
that whether “the Excessive Fines Clause applies to
civil actions under the” FCA was an open question. Id.
at 453-454. The Seventh Circuit had no need to resolve that issue, which was unpreserved. Id.
2. In any event, the decision below is correct.
“[T]he Excessive Fines Clause was intended to limit
only those fines directly imposed by, and payable to,
the government.” Austin, 509 U.S. at 607 (quoting
Browning-Ferris, 492 U.S. at 268). The Eighth and
Eleventh Circuits correctly hold that non-intervened
qui tam awards meet that standard.
Beginning with the latter requirement, “the monetary awards in non-intervened qui tam actions are
‘payable’ to the government because the government
shares in the proceeds of the action.” Pet. App. 22a
(quoting Yates, 21 F.4th at 1308). Even in relator actions, “the United States generally receives between
70 and 75 percent of the recovery.” Yates, 21 F.4th at
1308. Indeed, the Eleventh Circuit had “no difficulty
concluding” the payable-to-the-government requirement was met in non-intervened qui tam cases. Id.
“The monetary awards in non-intervened qui tam
actions are also ‘imposed’ by the government because
the government maintains ‘sufficient control’ over the
action.” Pet. App. 22a (quoting Yates, 21 F.4th at
1310). The Eleventh Circuit deemed this “too plain to
14
be contested.” Yates, 21 F.4th at 1309. (quoting Marbury v. Madison, 5 U.S. 137, 177 (1803)). The Eighth
Circuit agreed. See Pet. App. 23a (finding “no reason
to depart from Yates”). For one, qui tam awards are
fines “imposed by” the Government under the FCA, a
federal law. Yates, 21 F.4th at 1309. That law instructs individuals to pay “the United States as punishment * * * for an offense” committed against the
United States, irrespective of whether the United
States intervenes. Id. The United States also retains
“substantial control” over relator-litigated actions,
even when it initially chooses not to intervene. Id. at
1311. It may “request to intervene at any time, can
obtain a stay of discovery, and can settle the action
notwithstanding the objections of the relator.” Pet.
App. 22a. Finally, “the history and nature of qui tam
actions support” this result. Yates, 21 F.4th at 1313.
“[Q]ui tam actions were viewed as a routine enforcement mechanism in the early Republic,” so failure to
include qui tam penalties in the Eighth Amendment’s
prohibition on excessive fines would have left a gaping
loophole for Congress to exploit. Id.
Petitioner disputes none of this. He instead suggests that the Excessive Fines Clause only applies in
criminal proceedings. Pet. 14-15. The Eighth Circuit
did not directly pass on that argument because Petitioner conceded below that the Eighth Amendment applies to the FCA. See Appellee’s Principal and Response Br. 57 (applying Eighth Amendment test). For
good reason: This Court has already rejected the argument that the Eighth Amendment is confined to
“criminal proceedings.” Austin, 509 U.S. at 608-609
(quotation marks omitted). “The question is not, as
[Petitioner] would have it, whether” a penalty “is civil
15
or criminal, but rather whether it is punishment.” Id.
at 610. Courts have accordingly “accepted that FCA
monetary awards are fines for the purposes of the Excessive Fines Clause” because they are “at least in part
punitive.” Yates, 21 F.4th at 1308 (collecting cases);
see also Vermont Agency of Nat. Res. v. United States
ex. rel. Stevens, 529 U.S. 765, 784 (2000) (describing
the FCA’s treble damages and civil penalties as “essentially punitive in nature”).
3. Nor is certiorari warranted to resolve what Petitioner terms a “[s]econd[ary]” question—to which he
devotes a solitary paragraph: “whether the portions of
the award to be paid solely to the private relator are
exempt from any Excessive Fines Clause remittitur.”
Pet. 16. Petitioner faults the Eighth Circuit for failing
to address this. Id. But any blame lies at his feet.
Petitioner did not raise this argument in his briefing
before the Eighth Circuit at the merits or rehearing
stage.
Petitioner is wrong in any event. He suggests that
the Excessive Fines Clause comes into play only “after
the relator’s share is awarded—as the Government is
not entitled to any part of it.” Id. But as the Eleventh
Circuit explained, “all monetary awards in FCA qui
tam actions” are imposed and controlled by the United
States and are thus subject to the Excessive Fines
Clause. Yates, 21 F.4th at 1308. The relator is effectively an “avatar in litigation.” Id. at 1310. That “a
small share of the award” is given by the Government
to the relator “as a bounty for prosecuting the action
on the United States’ behalf ” does not change that
analysis. Id. at 1311.
16
B. Certiorari Is Unwarranted On The Eighth
Circuit’s Fact-Bound Excessive Fines
Analysis.
1. The decision below does not create or exacerbate a circuit split.
There is no meaningful division among the circuits
as to the application of the Excessive Fines Clause in
FCA cases. In Bajakajian, this Court held that “[t]he
touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish.” 524 U.S. at 334. The circuits have
heeded that guidance when analyzing Excessive Fines
Clause arguments under the FCA. Proportionality,
however, is inherently a fact-intensive inquiry that
can lead to different results on different facts in different cases. Petitioner seizes on those differing outcomes in an attempt to create the illusion of a circuit
split, asserting that the Eighth Circuit adopted a per
se “single-digit multiplier” rule for all non-intervened
FCA cases. Pet. i. The Eighth Circuit did no such
thing. It determined that, in this case, a single-digit
multiplier was proportional to the gravity of the offense. That splitless, fact-bound decision does not
merit this Court’s review.
Every Circuit in Petitioner’s supposed split follows
Bajakajian and treats proportionality as the touchstone for application of the Excessive Fines Clause.
That includes the Eighth Circuit. As the panel explained, “[a] punitive sanction under the FCA is ‘excessive’ when it is ‘grossly disproportional to the gravity of a defendant’s offense.’ ” Pet. App. 23a (quoting
17
Bajakajian, 524 U.S. at 334); id. at 30a (Smith, C.J.,
concurring in part and concurring in the judgment)
(applying the same standard); see also Pet. App. 129a.
The other circuits Petitioner lists—the Fourth, Seventh, and Eleventh—apply the same rule. See Pet. 2122 (collecting cases); Yates, 21 F.4th at 1314 (“A fine
‘violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant’s offense.’ ”)
(quoting Bajakajian, 524 U.S. at 334); Stop Ill. Health
Care Fraud, LLC v. Sayeed, 100 F.4th 899, 907 (7th
Cir. 2024) (“To violate the Excessive Fines Clause, a
penalty must be ‘grossly disproportional to the gravity
of the defendant’s offense.’ ”) (quoting Bajakajian, 524
U.S. at 334); United States ex rel. Bunk v. Gosselin
World Wide Moving, N.V., 741 F.3d 390, 408 (4th Cir.
2013) (“A cumulative monetary penalty such as that
imposed under the FCA will violate the Eighth
Amendment * * * [when] ‘grossly disproportional to
the gravity of a defendant’s offense.’ ”) (quoting Bajakajian, 524 U.S. at 334).
Determining what is “grossly disproportional to
the gravity of ” the offense is “inherently imprecise”
and necessarily varies in each case. Bajakajian, 524
U.S. at 334, 336; see also Yates, 21 F.4th at 1314 (acknowledging this is “not a simple task”) (brackets and
citation omitted). That is a feature—not a bug. The
purpose of the Excessive Fines Clause inquiry is to assess whether a particular fine is excessive for a particular defendant based on particular conduct. As a consequence of this fact-dependent inquiry, courts unsurprisingly reach different results about the propriety of
varying fines under the FCA. See, e.g., Yates, 21 F.4th
at 1316 (“On this record, the monetary award imposed
does not violate the Excessive Fines Clause.”); Sayeed,
18
100 F.4th at 907-908 (concluding that “the gravity of
the defendant’s” specific conduct warranted the statutory penalty imposed); Bunk, 741 F.3d at 409 (finding
no excessive fine “[u]nder the circumstances before
us”).
No circuit has adopted a “facial cap” on the appropriate multiplier for non-intervened FCA cases. Contra Pet. 20. As the Petition acknowledges, the Fourth,
Seventh, and Eleventh Circuits have all upheld
awards exceeding a single-digit multiplier. Pet. 20-21.
So has the Eighth Circuit in non-FCA cases. See, e.g.,
Adeli v. Silverstar Auto. Inc., 960 F.3d 452 (8th Cir.
2020) (upholding 1:24.75 ratio); Grabinski v. Blue
Springs Ford Sales, Inc., 203 F.3d 1024 (8th Cir. 2000)
(upholding 1:27 ratio).
Here, the Eighth Circuit applied Bajakajian and
determined that, in “this case,” on “these facts,” a
“double-digit multiplier is unwarranted.” Pet. App.
27a. It accordingly remanded for the District Court to
determine the appropriate award in the “first instance.” Id. at 25a. The appeals court took no position
on whether a higher multiplier might be appropriate
on other facts in some other case.
2. The Eighth Circuit’s Excessive Fines Clause
analysis is correct on the merits.
The Eighth Circuit’s decision tracks this Court’s
precedents. The panel applied the governing legal
standard and held that on these facts—which involve
“purely economic harm” as opposed to tortious activity—Zorn’s conduct was not sufficiently reprehensible
to justify an award greater than a single-digit multiplier of actual damages. Id. at 26a. It accordingly remanded for the District Court to choose an
19
appropriate award in light of that conclusion. Nothing
about that warrants this Court’s review.
Starting with the gravity of the offense, the
Eighth Circuit concluded that Zorn’s purely economic
harm was not as reprehensible as tortious conduct
that poses a risk to others. Id. Although Bajakajian
did not provide extensive guidance on how to assess
“gravity,” courts often look to this Court’s Due Process
Clause cases as “instructive.” Id. at 23a; see, e.g.,
United States ex rel. Drakeford v. Tuomey, 792 F.3d
364, 388 (4th Cir. 2015). Consistent with that approach, the Eighth Circuit embraced State Farm’s insight “that purely economic harm * * * is less reprehensible than ‘tortious conduct that evinced an indifference to the health or safety of others.’ ” Id. at 27a
(quoting State Farm, 538 U.S. at 419).
Bajakajian strongly supports that conclusion, too.
The defendant in that case attempted to leave the
United States with more than $357,000 in cash, without following the applicable reporting requirements.
524 U.S. at 325. The Government sought forfeiture of
the full sum under a statute permitting as much. Id.
(citing 18 U.S.C. § 982(a)(1)). This Court deemed that
forfeiture unconstitutionally excessive. The crime at
issue “was solely a reporting offense,” “unrelated to
any other illegal activities,” and it “affected only one
party, the Government.” 524 U.S. at 337-339.
The Eighth Circuit also looked to precedent to assess whether the fine calculated using the statutory
minimum was “grossly disproportional” to Zorn’s conduct. Pet. App. 23a (quoting Bajakajian, 524 U.S. at
334). It distinguished two cases approving of doubledigit multipliers that involved “tortious conduct that
20
evinced an indifference to the health or safety of others.” Id. at 27a (citing Adeli, 960 F.3d 452, and
Grabinski, 203 F.3d 1024). By contrast, “[t]he defendants here caused a relatively small amount ($86,332)
of only economic loss and did not endanger the health
or safety of others.” Id. The court also looked to another FCA case that affirmed an award of “4.3 times
the amount of actual damages.” Id. at 28a (citing
United States v. Aleff, 772 F.3d 508, 513 (8th Cir.
2014)). Only after comparing and contrasting the
facts of this case against those did the Eighth Circuit
“conclude the district court should have limited the
punitive sanction to a single-digit multiplier.” Id.3
In so holding, the Eighth Circuit acknowledged
that it owed “substantial deference” to the legislature’s decision “concerning appropriate sanctions for
the conduct at issue.” Pet. App. 28a. Nevertheless,
the court observed that it “must be mindful not to give
‘undue deference’ to legislative judgments about excessiveness,” lest it risk ceding the constitutional
question to Congress. Id. (quoting Yates, 21 F.4th at
1323 (Newsom, J., concurring)). The court accordingly
3
Other courts have likewise reduced FCA civil penalties under the Excessive Fines Clause to single-digit multipliers where
the statutory penalty was significantly out of proportion to the
Government’s actual damages and there were no allegations of
physical harm. See United States ex rel. Cheryl Taylor v.
Healthcare Assocs. of Texas, LLC, No. 3:19-cv-2486, 2025 WL
624493, at *7 (N.D. Tex. Feb. 26, 2025) (reducing penalty in Medicare FCA case from 100x to 3x actual damages); United States
ex rel. Fesenmaier v. Cameron-Ehlen Grp., Inc., 715 F. Supp. 3d
1133, 1159, 1164 (D. Minn. 2024) (reducing penalties in Medicare
FCA case to 4x actual damages), appeal dismissed, 2024 WL
4026210, at *1 (8th Cir. 2024).
21
held that, on these facts, “[a] more modest punishment * * * could have satisfied the government’s legitimate objectives.” Id. at 29a (quotation marks omitted).
Petitioner challenges several aspects of the Eighth
Circuit’s decision. None of those arguments is meritorious.
First, Petitioner accuses the Eighth Circuit of
“appl[ying] Due Process precedent to overwrite Excessive Fines Clause authority.” Pet. 19-20. The Eighth
Circuit did not hold that the Due Process Clause somehow trumps the Excessive Fines Clause; it looked for
guideposts in this Court’s Due Process Clause cases in
determining whether the penalties here were unconstitutionally excessive under the Excessive Fines
Clause.4
There is nothing improper about that approach.
Courts borrow insights from other areas of the law all
the time. In Bajakajian itself, this Court took a page
from its Cruel and Unusual Punishments Clause jurisprudence to assist “in deriving a constitutional excessiveness standard.” 524 U.S. at 336. In Fulton v.
City of Philadelphia, this Court applied the rule that
“speculation is insufficient to satisfy strict scrutiny” in
a Free Exercise case even though that teaching came
from a Free Speech precedent. 593 U.S. 522, 542
(2021) (citing Brown v. Entertainment Merchants
Ass’n, 564 U.S. 786, 799-800 (2011)). Just last term,
4
Other courts have regularly looked to this Court’s Due
Process Clause cases for relevant insights when assessing
whether a FCA penalty is unconstitutionally excessive. See, e.g.,
Tuomey, 792 F.3d at 388; United States ex rel. Fesenmaier, 715 F.
Supp. 3d at 1159.
22
in DeVillier v. Texas, a case about the Fifth Amendment Takings Clause, this Court referenced the general rule that “[c]onstitutional rights do not typically
come with a built-in cause of action,” citing a precedent raising First and Fourteenth Amendment claims.
601 U.S. 285, 291 (2024) (citing Egbert v. Boule, 596
U.S. 482, 490-491 (2022)). In each of those cases, the
Court still analyzed the relevant constitutional
claim “under the standard appropriate to that specific
provision.” Pet. 19 (quoting United States v. Lanier,
520 U.S. 259, 272 n.7 (1997)). It simply looked to other
areas of the law to help define what that standard
should be.
Regardless, any error on this score is of Petitioner’s
own making. Petitioner invited the Eighth Circuit to
consider this Court’s Due Process Clause cases. See
Pet. App. 23a (“The plaintiffs assert, and the defendants accept, that cases analyzing punitive damages
under the Due Process Clause are instructive in analyzing punitive sanctions under the Excessive Fines
Clause.”). Like the Eighth Circuit’s opinion, the section of Petitioner’s appellate brief analyzing the reprehensibility of Zorn’s conduct cites due process decisions—including by listing the State Farm factors. See
Appellee’s Principal and Response Br. 60-63; see also
Appellee’s Reply Br. 13-18. Any attempt by Petitioner
to rescind these arguments in an ambiguous statement at oral argument, see Pet. 17, was insufficient to
preserve the issue at this late stage.
Even now, Petitioner urges application of Due Process Clause principles when to his benefit. In a separate section of his petition, Petitioner faults the
Eighth Circuit for not attending more closely to Due
Process Clause precedents, which, Petitioner says,
23
required the Eighth Circuit to account for various
“[a]ggravating factors.” Pet. 26; see id. at 29. For the
reasons explained below, infra p. 25, the Eighth Circuit made no such error. But more to the present
point, Petitioner cannot have it both ways.
Second, Petitioner argues that the Eighth Circuit
failed to give sufficient deference to the legislature’s
judgment, as codified in the FCA’s statutory penalties.
Pet. 19. That argument ignores the Eighth Circuit’s
recognition that it owed “substantial deference” to
Congress. Pet. App. 28a (quotation marks omitted).
Petitioner’s real complaint is that the Eighth Circuit did not blindly defer to the legislature on the constitutional question. But this Court has never endorsed a rule of absolute deference in the Excessive
Fines Clause context. To the contrary, Bajakajian
found the fine at issue unconstitutionally excessive
even though it was what the statute required. 524
U.S. at 324.
Nor would a rule of absolute deference be consistent with the text or history of the Excessive Fines
Clause. Under such a rule, “Congress would in effect
be ‘suppl[ying] an answer to the questions of what a
fine should be and whether it’s excessive.’ ” Pet. App.
28a (quoting Yates, 21 F.4th at 1318 (Newsom, J., concurring)). But as Judge Newsom colorfully put it, “we
didn’t end up with the Bill of Rights because of the
founding generation’s great faith in the powers that
be.” Yates, 21 F.4th at 1318 (Newsom, J., concurring).
Anti-federalists like Robert Yates and Patrick Henry
advocated the adoption of the Eighth Amendment to
“limit the power of Congress to punish.” Id; see also
Weems v. United States, 217 U.S. 349, 372 (1910) (observing that the “predominant political impulse”
24
behind the Bill of Rights “was distrust of power”).
That skepticism is particularly warranted as to monetary fines. After all, “[i]mprisonment, corporal punishment, and even capital punishment cost a State
money; fines are a source of revenue.” Harmelin v.
Michigan, 501 U.S. 957, 978 n.9 (1991).5
Third, Petitioner again objects that the Eighth Circuit adopted “a rigid multiplier” rule. Pet. 22. As discussed supra pp. 16-18, the Eighth Circuit did not demand strict proportionality or announce a bright-line
single-digit multiplier rule for all FCA cases. It did
not even mandate the specific single-digit multiplier
that would be the maximum constitutional penalty in
this case. Rather, it asked whether on the facts of this
case the FCA’s statutory penalties would be “grossly
disproportional to the gravity” of Zorn’s offense. Pet.
App. 23a (quoting Bajakajian, 524 U.S. at 334). Having answered “yes,” the Eighth Circuit followed this
Court’s example and left the District Court wide discretion to select an appropriate award. Id. at 30a; see
State Farm, 538 U.S. at 429 (remanding for further
proceedings in light of the Court’s conclusion that due
process would allow “a punitive damages award at or
5
It is questionable whether the statutory fine Petitioner
seeks here reflects a legislative judgment as opposed to “a monster of [courts’] own creation.” Bunk, 741 F.3d at 407. The FCA
does not instruct whether the civil penalty provision applies on a
per-invoice level. Courts have read this language to require a
separate monetary penalty for each and every invoice submitted
to the Government, but that approach is particularly problematic
for doctors, who “tend to submit a large number of relatively
small claims each year.” Krause, “Promises to Keep”: Health Care
Providers and the Civil False Claims Act, 23 Cardozo L. Rev.
1363, 1370 (2002).
25
near the amount of compensatory damages”); BMW of
North America, Inc. v. Gore, 517 U.S. 559, 585 (1996)
(same, following the Court’s holding that a punitive
damages award 500 times larger than actual damages
was grossly excessive).
Fourth, Petitioner quibbles (at 23-26) with the
manner in which the Eighth Circuit weighed the gravity of Zorn’s conduct. At best, Petitioner is asking for
precisely the sort of case-specific error correction that
does not warrant this Court’s intervention. See Sup.
Ct. R. 10. Petitioner accuses the Eighth Circuit of “disregard[ing]” the District Court’s fact findings. Pet. 23,
25. But the findings in question are selectively quoted
from a portion of the District Court’s opinion deeming
certain evidence credible “as Rule 404(b) evidence” to
show motive, opportunity, intent, or the like. Pet.
App. 120a; see Fed. R. Evid. 404(b)(2). The District
Court went on to conclude that “even if considered as
direct evidence, this is insufficient to meet Dr. Grant’s
burden” as to the vast majority of the alleged false
claims. Pet. App. 120a. If anyone is engaged in
“[r]ecord revisionism,” it is Petitioner. See Pet. 23.
Finally, Petitioner highlights (at 26-31) several socalled “aggravating factors,” which he accuses the
Eighth Circuit of ignoring. Not so. The Eighth Circuit
accounted for the size of the compensatory award and
the nature of Petitioner’s “malfeasance” and “fraud” in
its analysis, but found a higher figure unwarranted
based on the degree of reprehensibility of Zorn’s conduct or lack thereof. See Pet. App. 28a-29a (weighing
the fact that Zorn “damaged government programs”
against the fact that he caused only “a modest amount
of economic loss”). Petitioner simply wishes the
Eighth Circuit had weighed those factors differently.
26
C.
This Case Is A Poor Vehicle To Address
The Constitutional Question Presented.
Because the Eighth Circuit did not hold that “the
FCA’s statutory civil penalty must be limited to a single-digit multiplier of the actual damages under the
Eighth Amendment,” Pet. i, the petition has a fundamental vehicle problem. The court below applied established precedent to hold that on the facts of this
case, the Eighth Amendment does not permit a penalty amount that is greater than a single-digit multiplier of the Government’s actual loss.
The concurrence characterized its disagreement
with the majority in fact-bound terms, opining that,
“on this record,” the fines were “not excessive.” Id. at
30a (Smith, C.J., concurring in part and concurring in
the judgment). That is perhaps why the concurring
judge did not vote to rehear the case en banc. See Pet.
App. 154a; Fed. R. App. P. 40(b)-(c) (rehearing en banc
is inappropriate for mere error correction).
Additionally, the constitutional question is only at
issue if the Eighth Circuit was correct in its analysis
of the FCA’s public disclosure bar. At minimum, that
counsels in favor of granting Zorn’s petition for certiorari if the Court grants this petition so that the Court
can consider the case as a whole. See Pet. 32, Zorn v.
Grant. A decision reversing the Eighth Circuit on application of the public disclosure bar would obviate the
need to address the Eighth Circuit’s constitutional
holding. As the Court explained just last term in
DeVillier when confronted with a similar situation, it
would be “imprudent to decide [a constitutional] question” when the “case does not require us to.” 601 U.S.
at 292. So too here.
27
II.
CERTIORARI IS UNWARRANTED TO REVIEW WHETHER PETITIONER CARRIED
HIS BURDEN AS TO CERTAIN BILLING
CODES.
The Eighth Circuit rejected Petitioner’s argument
that the District Court clearly erred in finding certain
overbilling claims lacked proof. See Pet. App. 16a-17a
(majority op.); id. at 30a (Smith, C.J., concurring in
part and concurring in the judgment) (joining this part
of the majority opinion). Specifically, Petitioner asserts that the District Court erred in differentiating
between patient visits coded as 99205, and patient visits coded as 99215, 99214, and 99204. Pet. 33. That
fact-bound question does not merit certiorari.
To start, there is no split on this issue or conflict
with this Court’s precedent. Nothing in Schutte, 598
U.S. 739, or Universal Health Services., Inc. v. United
States ex rel. Escobar, 579 U.S. 176 (2016), conflicts
with how the court below addressed any particular
billing code. The FCA requires proof a defendant submitted, or caused to be submitted, a “claim for payment or approval” that is false or fraudulent. 31
U.S.C. § 3729(a)(1)(A) (emphasis added). Absent proof
of such a claim, there is no FCA liability.
Petitioner’s argument rests on his disagreement
with the District Court’s case-specific ruling about
whether to extrapolate damages from certain record
evidence. The only evidence of “false or fraudulent
documentation” that Petitioner produced at trial “pertained to initial patient visits” coded under 99205.
Pet. App. 16a. The trial record thus had no evidence
relating to patient visits coded under 99204, 99214, or
99215. Id. at 16a, 118a. As the District Court found
28
and the Eighth Circuit affirmed, it is inappropriate to
“extrapolat[e]” from the 99205 visit charts to impose
liability for bills submitted under “entirely different
codes.” Id. at 16a (quoting Pet. App. 118a). Neither
Schutte nor Escobar have anything to say on that
question, which is reviewed under the deferential
clear-error standard. See id.
Petitioner also appears to argue that because the
District Court found initial visits under 99205 were
fraudulently coded as complex, it should have assumed established patient visits coded under 99214
and 99215 were also fraudulent. See Pet. 36-37. But
Petitioner bore the burden of proving “all essential elements of the cause of action * * * by a preponderance
of the evidence.” Pet. App. 118a (quoting 31 U.S.C.
§ 3731(d)). The District Court rightly refused to impose liability where Petitioner failed to carry his evidentiary burden. See id. at 119a. As the District
Court explained, the requirements for coding initial
patient visits as complex are more stringent than established patient visits, meaning that a non-complex
initial visit could be followed by a complex established
visit. Id. at 55a. Thus, “one cannot necessarily infer
the defendants fraudulently overbilled the government on established patient visits just because they
did so on initial patient visits.” Id. at 17a.
Third, even setting aside the lack of a split, conflict, or viable merits arguments, this question runs
headlong into a vehicle problem. The FCA requires
proof that a person “knowingly presents * * * a false
or fraudulent claim for payment or approval.” 31
U.S.C. § 3729(a)(1)(A). The District Court separately
concluded that Petitioner had not submitted sufficient
evidence to prove Zorn’s scienter with respect “to the
29
other codes.” Pet. App. 119a. That alternative holding
provides a separate and independent basis to affirm.
CONCLUSION
For the foregoing reasons, the Petition for a Writ of
Certiorari should be denied.
Respectfully submitted,
BRIAN O. MARTY
ANDREW B. HOWIE
SHINDLER, ANDERSON,
GOPLERUD & WEESE, P.C.
5015 Grand Ridge Drive,
Suite 100
West Des Moines, IA 50265
JESSICA L. ELLSWORTH
Counsel of Record
DANIELLE DESAULNIERS STEMPEL
J. ANDREW MACKENZIE
HOGAN LOVELLS US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004
Telephone: (202) 637-5600
jessica.ellsworth@hoganlovells.com
Counsel for Respondents
APRIL 2025
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.