Vargas v. Lincare, Inc., No. 24-11080 (11th Cir. 2025)
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Jaime Vargas and Francis R. Alvarez, former employees of medical supplier Lincare, Inc., and its subsidiary Optigen, Inc., filed a qui tam complaint under the False Claims Act (FCA). They alleged that Optigen engaged in fraudulent practices, including systematic upcoding of durable medical equipment, improper kickback arrangements, waiver of co-pays, and shipment of unordered supplies. The relators claimed that Optigen billed CPAP batteries and accessories under codes designated for ventilator accessories, waived patient co-pays without assessing financial hardship, shipped CPAP supplies automatically without patient requests, and paid kickbacks to healthcare providers for referrals.
The case was initially filed in the Eastern District of Virginia and later transferred to the Middle District of Florida. The United States declined to intervene, and the District Court unsealed the complaint. The relators filed multiple amended complaints, each of which was dismissed by the District Court for failing to meet the heightened pleading standard of Federal Rule of Civil Procedure 9(b). The District Court dismissed the fourth amended complaint, holding that it still failed to plead sufficient facts with the requisite specificity.
The United States Court of Appeals for the Eleventh Circuit reviewed the case. The court affirmed the District Court's dismissal of the relators' claims regarding improper kickback arrangements, waiver of co-pays, and automatic shipment of supplies, finding that these allegations lacked the necessary specificity and failed to identify any actual false claims submitted to the government. However, the court reversed the dismissal of the upcoding claim, holding that the relators had pleaded sufficient facts with particularity to withstand a motion to dismiss. The court remanded the case for further proceedings limited to the upcoding issue.
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USCA11 Case: 24-11080 Document: 47-1 Date Filed: 04/16/2025 Page: 1 of 23 [PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 24-11080 ____________________ JAIME VARGAS, United States of America, Ex Rel., FRANCIS R. ALVAREZ, Plainti s-Appellants, versus LINCARE, INC., OPTIGEN, INC., Defendants-Appellees. ____________________ Appeal from the United States District Court for the Middle District of Florida USCA11 Case: 24-11080 2 Document: 47-1 Date Filed: 04/16/2025 Opinion of the Court Page: 2 of 23 24-11080 D.C. Docket No. 3:16-cv-01329-HLA-PDB ____________________ Before JORDAN, LAGOA, and TJOFLAT, Circuit Judges. TJOFLAT, Circuit Judge: This case presents a familiar scenario in False Claims Act (FCA) litigation: a qui tam relator alleges widespread fraud, only for the district court to dismiss the case for failing to plead the fraud with the requisite speci city. The relators here, former employees of medical supplier Lincare, Inc., and its subsidiary Optigen, Inc., allege an array of misconduct, including systematic upcoding of durable medical equipment, improper kickback arrangements, waiver of co-pays, and shipment of unordered supplies. The District Court dismissed their fourth amended complaint for failing to plead su cient facts to meet Federal Rule of Civil Procedure 9(b)’s heightened pleading standard. We a rm in part and reverse in part. While the relators’ allegations of upcoding—wherein Optigen allegedly billed for incorrect batteries and accessories—are pleaded with su cient speci city to withstand a motion to dismiss, their remaining claims fall well short of the mark. We therefore reverse the dismissal of the upcoding claim and remand for further proceedings but a rm the dismissal of all other claims. USCA11 Case: 24-11080 24-11080 Document: 47-1 Date Filed: 04/16/2025 Opinion of the Court I. A. Page: 3 of 23 3 Background Procedural History This case’s procedural history is long and winding. In April 2016, relator Jaime Vargas led a sealed qui tam complaint in the Eastern District of Virginia, alleging that defendant Optigen engaged in a variety of fraudulent practices. Later that year, the case was transferred to the Middle District of Florida, where Vargas led a sealed rst amended complaint in 2017. The United States declined to intervene in 2020, and the District Court unsealed the complaint. Vargas served defendants Lincare and Optigen with the rst amended complaint in March 2021, and soon after sought leave to le a second amended complaint. The Magistrate Judge allowed the amendment but warned that the proposed complaint was a shotgun pleading. The Judge’s order stated: Vargas is cautioned that the current proposed second amended complaint is an improper “shotgun pleading,” at a minimum because paragraph 79 incorporates all preceding allegations. . . . If Vargas les a shotgun pleading, the Court will strike it and may not permit further amendment. Vargas, now joined by relator Francis Alvarez, went ahead and led the proposed complaint anyway. The Magistrate Judge sua sponte struck it and issued an order to show cause why further amendment should be allowed. The relators’ counsel responded that she only saw the docket entry allowing the second amended complaint to be led, but she did not actually read the USCA11 Case: 24-11080 Document: 47-1 4 Date Filed: 04/16/2025 Opinion of the Court Page: 4 of 23 24-11080 order.1 In addition, the relators’ counsel argued (incorrectly) that the second amended complaint was not a shotgun pleading. After a telephonic status conference, the Court allowed another amendment. The relators led a third amended complaint in October 2021. The defendants moved to dismiss it. The District Court granted the motion, explaining that the relators’ fraud theories “lack[ed] su cient factual allegations to demonstrate that Relators are entitled to relief. Rather, the relators’ theories of fraud are based on speculative and vague assertions and legal conclusions.” And remarkably, the Court highlighted that “Plainti has once again led a complaint that is an impermissible ‘shotgun pleading,’ in part, because paragraph 91 incorporates all preceding allegations.” In November 2022, the relators made yet another attempt, ling a fourth amended complaint. The defendants again moved to dismiss it. The District Court granted the motion, dismissing the complaint and holding that it still failed to meet Rule 9(b)’s heightened pleading standard. B. Pertinent Allegations Optigen, a Florida-based subsidiary of Lincare, specializes in supplying respiratory therapy equipment, particularly continuous positive airway pressure (CPAP) devices. CPAP therapy treats obstructive sleep apnea, a condition where a patient’s airway re1 The ECF entry had an underlined sentence to “See order for details.” USCA11 Case: 24-11080 24-11080 Document: 47-1 Date Filed: 04/16/2025 Opinion of the Court Page: 5 of 23 5 peatedly collapses during sleep. A CPAP machine prevents these collapses by delivering a constant stream of pressurized air through a mask, ensuring uninterrupted breathing. CPAP therapy is non-invasive and, while important for sleep quality and longterm health, it does not provide life-sustaining ventilation. Unlike ventilators—used for patients who cannot breathe on their own— CPAP machines merely assist natural respiration and do not require backup power to prevent immediate harm in case of power failure. The relators, as noted, are Jaime Vargas and Francis R. Alvarez. Vargas, a registered respiratory therapist, managed clinical training and operational compliance across Lincare and later Optigen, including auditing patient les and overseeing CPAP setup practices. Alvarez began working for Optigen in 2004 as its rst Contract Field Technician (CFT) and later became a Regional Health Care Services Manager for the Optigen division of Lincare. In that role, he trained CFTs, supervised operations, and reviewed patient les. Tricare, the health insurance program for military personnel and their families, covers CPAP equipment and replacement supplies when medically necessary. But Tricare, like Medicare, imposes strict billing regulations: CPAP equipment must be properly coded, co-pays must be collected unless waived for genuine nancial hardship, and suppliers may only ship replacement supplies if medically necessary. And the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b, prohibits medical providers from paying for re- USCA11 Case: 24-11080 6 Document: 47-1 Date Filed: 04/16/2025 Opinion of the Court Page: 6 of 23 24-11080 ferrals. According to the relators, the defendants ignored all these rules. Their allegations describe four fraudulent schemes. The rst scheme turned on improper billing. CPAP machines typically plug into an AC outlet, but some patients, especially military personnel, use battery packs. The problem for Optigen was that Tricare did not regularly reimburse CPAP batteries because CPAP therapy, unlike ventilator support, is not lifesustaining. Ventilator patients—who rely on machines to breathe—require backup power to prevent su ocation during outages, so Tricare covers ventilator batteries at higher reimbursement rates. The relators allege that Optigen took advantage of this disparity by systematically billing CPAP batteries, chargers, and cables under the codes designated for ventilator accessories. This misclassi cation allowed Optigen to obtain reimbursement for items that should not have been covered at all—let alone at the in ated rates set for life-critical equipment. The second scheme involved the routine waiver of patient co-pays. Tricare and Medicare require patients to pay co-pays: a portion of their medical expenses to deter overuse and ensure accountability. Federal law prohibits suppliers from waiving co-pays except in limited cases of nancial hardship, which must be documented. Rather than assessing hardship case by case, however, Optigen included a pre- lled waiver form in every new patient’s CPAP setup package. Patients were not required to submit nancial information—just a signature. USCA11 Case: 24-11080 24-11080 Document: 47-1 Date Filed: 04/16/2025 Opinion of the Court Page: 7 of 23 7 The third scheme centered on automatic shipments of CPAP supplies. Tricare covers replacement CPAP masks, cushions, headgear, and lters on a periodic basis, but only when a patient or provider requests them. Optigen, the relators say, bypassed this requirement by shipping replacement supplies to every CPAP patient at regular intervals—whether they wanted them or not. This practice, they claim, was not accidental. Lincare measured the performance of Optigen employees and locations based on how many supply reorders they processed each month. As a result, employees were pressured to push shipments, even when not medically necessary. Many patients allegedly found themselves accumulating unopened boxes of equipment they did not need. Optigen still billed Tricare, relying on the fact that returns were generally prohibited after 30 days. Relator Vargas, as a regional manager, claims he repeatedly instructed employees to ship only upon request but saw no change. The fourth scheme involved illegal kickbacks to healthcare providers. CPAP prescriptions originate with doctors and sleep clinics, which can direct patients to a particular supplier. Optigen, the relators allege, ensured it was the preferred supplier by paying “setup fees” to the CFTs who installed CPAP equipment. These CFTs were often employees of sleep labs or medical o ces who had in uence over which supplier a patient used. The relators claim that Optigen structured its payments to secure as many referrals as possible—violating the Anti-Kickback Statute. New CFTs typically received $50 per setup, but the most proli c referrers—the CFTs who funneled the most patients to Optigen— USCA11 Case: 24-11080 8 Document: 47-1 Date Filed: 04/16/2025 Opinion of the Court Page: 8 of 23 24-11080 received as much as $225 per installation. Beyond setup fees, Optigen allegedly courted referring providers with meals, gifts, and other incentives. In one instance, according to the relators, an Optigen contractor bought over $300 worth of food for medical sta at the direction of an Optigen regional sales manager. Taken together, the relators claim, these four schemes violated the FCA. Whether these allegations satisfy Rule 9(b) is the question before us. II. Discussion The False Claims Act is the government’s primary weapon against fraud in federal programs. See Yates v. Pinellas Hematology & Oncology, P.A., 21 F.4th 1288, 1298 (11th Cir. 2021). It imposes liability on any person who, among other things, “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval.” 31 U.S.C. § 3729(a)(1)(A). But the FCA does not rely solely on government enforcement. It deputizes private individuals—known as relators—to bring suit on the government’s behalf in what are called qui tam actions.2 31 U.S.C. § 3730(b). If successful, the relator receives a share of the recovery, creating a powerful nancial incentive to root out fraud. See id. § 3730(d). “Qui tam is short for the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, which means ‘who pursues this action on our Lord the King’s behalf as well as his own.’” Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 768 n.1 120 S. Ct. 1858, 1860 n.1 (2000). 2 USCA11 Case: 24-11080 24-11080 Document: 47-1 Date Filed: 04/16/2025 Opinion of the Court Page: 9 of 23 9 That structure has bene ts and costs. On the one hand, relators may expose fraud the government would otherwise miss. On the other, the FCA’s bounty system may tempt opportunists to le speculative lawsuits, hoping to pressure settlements from businesses unwilling to endure protracted litigation. Recognizing that risk, courts have long held that FCA claims must clear a high pleading bar. That bar comes from Federal Rule of Civil Procedure 9(b), which provides that a party alleging fraud “must state with particularity the circumstances constituting fraud or mistake.” General allegations are not enough. An FCA complaint must spell out the fraud in detail—what happened, who did it, when and where it occurred, and how it amounted to fraud. See Hopper v. Solvay Pharms., Inc., 588 F.3d 1318, 1324 (11th Cir. 2009). But even that is not enough. The FCA targets false claims— not regulatory violations, not internal misconduct, and not abstract theories untethered from government payment. U.S. ex rel. Clausen v. Lab’y Corp. of Am., 290 F.3d 1301, 1311 (11th Cir. 2002). As we have said, “the submission of a claim is . . . the sine qua non of a False Claims Act violation.” Id. So to state a viable FCA claim, a relator must allege not just a scheme, but a scheme that actually led to false claims being submitted to the government— and he must do so with particularity. The most direct way to satisfy that requirement is by identifying speci c claims submitted to the government: invoices, billing records, reimbursement forms. See Hopper, 588 F.3d at 1326. USCA11 Case: 24-11080 10 Document: 47-1 Date Filed: 04/16/2025 Opinion of the Court Page: 10 of 23 24-11080 But Rule 9(b) does not always require documentary proof at the pleading stage. A relator can satisfy the rule by other means—so long as he still pleads the submission of a claim with “su cient indicia of reliability.” See U.S. ex rel. Atkins v. McInteer, 470 F.3d 1350, 1357–58 (11th Cir. 2006); see also Durham v. Bus. Mgmt. Assocs., 847 F.2d 1505, 1512 (11th Cir. 1988) (“Allegations of date, time, or place satisfy the Rule 9(b) requirement that the circumstances of the alleged fraud must be pleaded with particularity, but alternative means are also available to satisfy the rule.”). Whether an allegation is reliable depends on context. See Atkins, 470 F.3d at 1358 (emphasizing that we determine whether a claim has “su cient indicia of reliability . . . on a case-by-case basis.”). In United States ex rel. Walker v. R&F Properties of Lake County, Inc., for example, the relator alleged rst-hand knowledge of the defendants’ billing practices. 433 F.3d 1349, 1360 (11th Cir. 2005). She described speci c conversations and observations that supported her belief that a particular defendant submitted false claims. Id. That was enough. See id.; see also Hopper, 588 F.3d at 1326 (distinguishing Walker from a case where “[t]he complaint does little more than hazard a guess”). By contrast, Atkins illustrates what is not enough. There, the relator was a psychiatrist who suspected his employer was submitting false claims. 470 F.3d at 1359. He identi ed patients and procedures he thought should not have been reimbursable— but he had no role in billing and no personal knowledge of what claims were actually submitted. Id. His allegations rested on “ru- USCA11 Case: 24-11080 Document: 47-1 24-11080 Date Filed: 04/16/2025 Opinion of the Court Page: 11 of 23 11 mors from sta ” and his own opinions about others’ conduct. Id. That was not enough. See id. Without a clear link between the alleged scheme and actual claims, the complaint failed. See id. In the end, an FCA claim must do more than sketch out a theory. It must allege facts showing that a false claim was actually submitted to the government. The relators here contend they have met this standard. The defendants argue, and the District Court found, that they did not. We now turn to each scheme. A. The Battery Upcoding Scheme First, the relators allege that Optigen engaged in a scheme to defraud Tricare by billing CPAP batteries, chargers, and cables under HCPCS codes3 designated for ventilator accessories: A4611 3 As the Fifth Circuit explains, [F]or a supplier to obtain reimbursement . . . , the supplier must identify its products using a coding system known as the Healthcare Common Procedure Coding System (“HCPCS”). The HCPCS is maintained by the HCPCS AlphaNumeric Editorial Panel . . . , which decides whether a new code should be created for a product or whether the product fits within an existing code. . . . Each HCPCS code describes a category of products, and each product fitting the description is billed to Medicare under that code. Durable medical equipment that does not match the description of a specific HCPCS code is billed using code E1399, for miscellaneous products, a code that is processed by hand rather than computer. United States v. Medica Rents Co. Ltd., No. 03-11297, 2008 WL 3876307, at *1 (5th Cir. Aug. 19, 2008). USCA11 Case: 24-11080 12 Document: 47-1 Date Filed: 04/16/2025 Opinion of the Court Page: 12 of 23 24-11080 (ventilator battery), A4612 (ventilator battery charger), and A4613 (ventilator battery cables). According to the relators, Tricare does not cover CPAP batteries under standard billing codes. So Optigen allegedly secured payments for equipment that either should not have been covered at all or should have been reimbursed at a lower rate. To support their claims, the relators provide speci c allegations. Consider “Patient A,” a service member treated for sleep apnea. His physician ordered supplies from Optigen, and Optigen submitted a claim (Claim Record No. 2010064FL998011055535) to United Healthcare, Tricare’s administrator. The claim was coded as A4611—a ventilator battery. The relators allege that Tricare paid the claim. The hitch, according to the relators, is that Optigen never provided Patient A with a ventilator battery—Patient A had a CPAP machine, not a ventilator. The relators o ered similar allegations for numerous other patients. They even attached a spreadsheet listing exemplar claims, identifying patients, billing codes, and reimbursement amounts. The defendants argue that these allegations are not enough for two reasons. First, they contend the relators’ allegations lack the “indicia of reliability” necessary to show that an actual claim was submitted to the government. Second, they insist that even if claims were submitted, they were not false. 1. Reliability First, the defendants argue that because the relators have no rsthand knowledge of the claims in their spreadsheet, their USCA11 Case: 24-11080 24-11080 Document: 47-1 Date Filed: 04/16/2025 Opinion of the Court Page: 13 of 23 13 assertions are based on “information and belief.” And they invoke our decision in Clausen for the proposition that “pleadings generally cannot be based on information and belief.” See Clausen, 290 F.3d at 1310. But that argument misses key points. For one, the relators do not only allege fraud “on information and belief.” They allege that they audited patient les— including billing correspondence and authorizations for payment. That kind of hands-on access to primary records gives them the type of inside information that are su cient at the pleading stage. 4 More than that, the complaint o ers the details we found lacking in Clausen. There, the relator relied “exclusively on conclusory allegations of fraudulent billing.” Id. at 1311 (internal quotation marks omitted). As we explained: Clausen merely o ers conclusory statements, and does not adequately allege when—or even if—the schemes were brought to fruition. He merely alleged that “these practices resulted in the submission of false claims for payment to the United States.” No amounts of charges were identi ed. No actual dates were alleged. No policies about billing or even second-hand information about billing practices were The relators argue that attaching actual billing data, by itself, satisfies Rule 9(b) and makes any further showing of reliability unnecessary. Not so. Relators must still allege facts showing that the data reflect actual claims submitted to the government. Otherwise, any relator could repackage conjecture as “billing data” and sidestep Rule 9(b) entirely. 4 USCA11 Case: 24-11080 14 Document: 47-1 Date Filed: 04/16/2025 Opinion of the Court Page: 14 of 23 24-11080 described . . . . No copy of a single bill or payment was provided. Id. at 1312. Not so here. The relators identify speci c claims, with dates, amounts, and billing codes. Unlike vague assertions or theories, the relators allege speci c instances of upcoding. That is more than enough to distinguish this case from cases like Clausen. At its core, the defendants confuse pleading with proof. At the motion-to-dismiss stage, we take the plainti ’s well-pleaded allegations as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678–79, 129 S. Ct. 1937, 1949–50 (2009). That does not change in FCA cases. “[W]hen Rule 9(b) applies to a complaint, a plainti is not expected to actually prove his allegations, and we defer to the properly pleaded allegations of the complaint.” Clausen, 290 F.3d at 1313. The question is not whether the relators have proved fraud; it is whether they have alleged it with particularity. They have. 2. Falsity Next, falsity. The defendants maintain that because Tricare lacked a speci c billing code for CPAP batteries, it allowed providers to use ventilator battery codes instead. In support, they cite exhibits attached to the relators’ own complaint, which they say re ect Tricare’s instruction or acquiescence. If that were true—if Tricare authorized the use of ventilator codes for CPAP equipment—then the claims submitted would not be false, and the relators’ theory would fall apart. USCA11 Case: 24-11080 24-11080 Document: 47-1 Date Filed: 04/16/2025 Opinion of the Court Page: 15 of 23 15 But that argument is premature. Again, at the motion-todismiss stage, we accept the complaint’s well-pleaded allegations as true and draw all reasonable inferences in the relators’ favor. See Ashcroft, 556 U.S. at 678–79, 129 S. Ct. at 1949–50. The relators allege that Optigen billed for CPAP equipment—batteries, chargers, and cables—using HCPCS codes designated for ventilator accessories, which they claim Tricare did not authorize. On its face, the complaint plausibly alleges that the coding practice was improper and that the resulting claims were false. To be sure, there is no real dispute about the face of the codes themselves: A4611, A4612, and A4613 are expressly designated for ventilator batteries and accessories. Nor can the defendants dispute that the HCPCS has a catch-all code—E1399—for miscellaneous equipment not otherwise covered. The dispute, instead, is over what those codes meant in practice: whether the government knowingly allowed providers to use ventilator codes for CPAP devices. That is a factual dispute. And factual disputes are not grounds for dismissal at this stage. The exhibits that the defendants invoke do not compel a di erent conclusion. Those exhibits—attached by the relators— are not formal policy documents, nor do they de nitively establish that the government sanctioned the practice. At most, they support the defendants’ position in that factual dispute. And again, that is not enough at this stage. USCA11 Case: 24-11080 16 Document: 47-1 Date Filed: 04/16/2025 Opinion of the Court Page: 16 of 23 24-11080 In sum, the relators allege a scheme, identify speci c claims allegedly paid by the government, and explain why the coding was improper. The District Court erred in dismissing this claim. B. The Patient Co-Pay Waiver Scheme The relators next allege that Optigen routinely waived patient co-pays without assessing nancial hardship, in violation of federal law. They assert that every CPAP setup package included a standardized waiver form that required only a patient’s signature—without any income veri cation, documentation, or individualized review. It is true that federal law permits co-pay waivers only in limited circumstances. See 42 U.S.C. § 1320a-7a(i)(6)(A). And it is equally true that such waivers, if used to induce payments from federal healthcare programs, can give rise to liability under the FCA. But the FCA does not impose liability for preparations for fraud, it penalizes the actual submission of false claims. See Clausen, 290 F.3d at 1312 n.21. The relators do not identify any speci c claim submitted to Tricare in connection with a co-pay waiver. They identify no patient whose co-pay was improperly waived and for whom reimbursement was sought. Nor do they allege any direct knowledge of billing activity or access to claims data. At most, they describe a policy; they do not describe a fraud. Still, the relators suggest that pleading “reliable indicia” that there was a scheme to submit false claims excuses them from pleading claims that were actually submitted to the government. USCA11 Case: 24-11080 Document: 47-1 24-11080 Date Filed: 04/16/2025 Opinion of the Court Page: 17 of 23 17 Not so. However styled, “the true essence of the fraud of a False Claims Act action involves an actual claim for payment and not just a preparatory scheme.” Clausen, 290 F.3d at 1312 n.21 (internal quotation marks omitted). As we have explained, Rule 9(b) does not permit a False Claims Act plainti merely to describe a private scheme in detail but then to allege simply and without any stated reason for his belief that claims requesting illegal payments must have been submitted, were likely submitted or should have been submitted to the Government. Id. at 1311. The inferential leap the relators urge us to condone is precisely what we have rejected in previous cases. See, e.g., Atkins, 470 F.3d at 1359 ( nding a complaint de cient where a relator alleged improper practices and asked the court to infer that false claims must have been submitted). The same reasoning applies here. The District Court correctly dismissed this theory. C. The Auto-Ship Scheme The relators next allege that Optigen automatically shipped CPAP replacement supplies to patients who had not requested them. Certainly, Tricare covers certain replacement items. But it covers them only when medically necessary. According to the relators, Optigen bypassed that requirement by setting up recurring shipments and pressuring employees to meet monthly reorder targets. The result, they claim, was a glut of unwanted equipment and a stream of improper claims. USCA11 Case: 24-11080 Document: 47-1 18 Date Filed: 04/16/2025 Opinion of the Court Page: 18 of 23 24-11080 But again, the complaint identi es no speci c false claim submitted to the government. The relators provide no claim numbers, no billing codes, no dates, and no reimbursement amounts to satisfy Rule 9(b)’s requirements. 5 See Hopper, 558 F.3d at 1324. They do not reliably assert that they had access to Optigen’s billing systems or personal involvement in the claims submission process for these supplies. Instead, relator Vargas states only that he was in a “perfect position” to know about the shipping practices—and from that, the relators ask us to infer that fraudulent claims must have followed. That is not enough. As with the co-pay theory, the relators must allege facts that show that Optigen actually submitted false claims to the government. Their allegations do not meet that standard. The District Court properly dismissed this theory. D. The Kickback Scheme The relators’ nal theory rests on the Anti-Kickback Statute, which prohibits o ering or paying remuneration to induce referrals for federally reimbursable healthcare services. 42 U.S.C. § 1320a-7b(b)(2). They allege that Optigen violated this statute by paying setup fees and other perks to CFTs, who acted as independent contractors for Optigen and allegedly worked with sleep clinicians who prescribed CPAP machines. According to the comTo be clear, we do not suggest these are required elements of the relators’ claim. They are, rather, “some types of information that might have helped [the relators] state an essential element of [their] claim with particularity.” See Clausen, 290 F.3d at 1312 n.21. 5 USCA11 Case: 24-11080 24-11080 Document: 47-1 Date Filed: 04/16/2025 Opinion of the Court Page: 19 of 23 19 plaint, these CFTs received between $50 and $225 per setup, with higher-volume CFTs—those who supposedly generated more referrals—receiving higher payments. Some CFTs also got extras like warehouse stipends, phone reimbursements, and occasional meals. But the relators fail to tie the CFTs’ payments to any actual referrals. They identify no patient referred by a CFT, no instance in which a CFT in uenced a prescribing decision, and no facts showing that CFTs played any role in the referral process (whatever that may be). They point to CFTs who purportedly received high fees and made many referrals, but they o er no detail—no conversations, no meetings, no in uence over any prescriber’s decision.6 Instead, what the complaint does show is that Optigen paid CFTs to do a legitimate job: set up CPAP equipment in patients’ homes. That work likely included travel, equipment setup, training, and follow-up support. Merely paying people for doing that work—even if the rates vary—does not violate the law. The upshot is that the relators never pleaded how CFTs induced referrals or why the compensation—paid for services ren- In their briefs and again at oral argument, the relators recited the conclusory refrain that they alleged the payments were made—“in part”—to induce referrals. Such a barebones assertion scarcely warrants mention, except to repeat what we have said many times: under Rule 9(b), that is not enough. 6 USCA11 Case: 24-11080 20 Document: 47-1 Date Filed: 04/16/2025 Opinion of the Court Page: 20 of 23 24-11080 dered—should be viewed as anything other than payment for work done. And without facts bridging payment and referral, the complaint fails to su ciently plead a kickback scheme. The District Court correctly dismissed this claim. III. Conclusion The relators pleaded one claim under the FCA, but they pursued four distinct theories of liability. Only one of those theories—the alleged upcoding of CPAP batteries and accessories as ventilator batteries and accessories—satis es Rule 9(b)’s heightened pleading standard. The others fall short. The allegations regarding co-pay waivers, automatic shipments of accessories, and kickbacks are too speculative, too general, or too disconnected from any actual claim for payment. We therefore a rm the District Court’s dismissal of the relators’ FCA claim to the extent it rests on those de cient theories. But we reverse the dismissal as to the upcoding theory and remand for further proceedings limited to that issue. AFFIRMED IN PART, REVERSED AND REMANDED IN PART. USCA11 Case: 24-11080 24-11080 Document: 47-1 Date Filed: 04/16/2025 Tjo at, J., Concurring Page: 21 of 23 1 TJOFLAT, Circuit Judge, concurring: I write separately to ag a foundational pleading defect that the District Court did not reach. The relators’ fourth amended complaint—the fth complaint led in this case—asserts just one count under the FCA. But packed into that single count are four distinct fraud claims: (1) misclassifying CPAP batteries as ventilator equipment, (2) routinely waiving patient co-pays, (3) autoshipping CPAP supplies without patient requests, and (4) paying kickbacks to referring technicians. These are separate allegations, involving di erent conduct, di erent facts, and di erent legal theories. Yet the relators lump them together in one catch-all count, forcing the District Court—and now us—to sort them out. That is not how litigation works. See Fed. R. Civ. P. 10(b) (“[E]ach claim founded on a separate transaction or occurrence . . . must be stated in a separate count.”). The fourth amended complaint is a shotgun pleading— something we have condemned time and again. It “lumps multiple claims together in one count” and forces courts to play detective rather than umpire. See Ledford v. Peeples, 657 F.3d 1222, 1239 (11th Cir. 2011). Shotgun pleadings are not tolerated because they run counter to the purpose of the Federal Rules of Civil Procedure: The purpose of these rules is self-evident, to require the pleader to present his claims discretely and succinctly, so that, [a plainti ’s] adversary can discern what he is claiming and frame a responsive pleading, the court can determine which facts support which USCA11 Case: 24-11080 2 Document: 47-1 Date Filed: 04/16/2025 [Judge, Concurring] Page: 22 of 23 24-11080 claims and whether the plainti has stated any claims upon which relief can be granted, and, at trial, the court can determine that evidence which is relevant and that which is not. “Shotgun” pleadings, calculated to confuse the “enemy,” and the court, so that theories for relief not provided by law and which can prejudice an opponent’s case, especially before the jury, can be masked, are atly forbidden by the [spirit], if not the [letter], of these rules. T.D.S. Inc. v. Shelby Mut. Ins., 760 F.2d 1520, 1543 n.14 (11th Cir. 1985) (Tjo at, J., dissenting); accord Weiland v. Palm Beach Cnty. Sheri ’s O ., 792 F.3d 1313, 1320 (11th Cir. 2015). Separating claims into di erent counts allows courts to test each claim on the pleadings, strike the de cient ones, and let the rest proceed. Plainti s who refuse to do that usually have a reason. As we have explained, shotgun pleadings are often calculated “to extort the settlement of a meritorious claim . . . and to extort the settlement of unmeritorious claims.” Byrne v. Nezhat, 261 F.3d 1075, 1130 (11th Cir. 2001). And that is the case here. The relators pack four claims into one count, but only one claim is pleaded su ciently. Yet the relators made it virtually impossible to dismiss, amend, or try one claim without entangling the others. The costs of this tactic are real. First, it burdens courts, which must untangle the claims just to gure out what is at issue. Second, it burdens defendants, who must guess at what they should defend against. Third, it burdens the appellate process, where we are asked to review a complaint the plainti s never USCA11 Case: 24-11080 24-11080 Document: 47-1 Date Filed: 04/16/2025 Tjo at, J., Concurring Page: 23 of 23 3 bothered to clarify. In sum, shotgun pleadings reward imprecision and strategic vagueness. They out the basic demands of Rules 8 and 10. So what is a district court—or a defendant—to do? A defendant confronted with a shotgun complaint should move under Rule 12(e) for a more de nite statement. See Fed. R. Civ. P. 12(e) (“A party may move for a more de nite statement . . . if the pleading is so vague or ambiguous that the party cannot reasonably prepare a response.”); Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996) (“Where, as here, the plainti asserts multiple claims for relief, a more de nite statement, if properly drawn, will present each claim for relief in a separate count, as required by Rule 10(b).”). And a district court confronted with a shotgun complaint should sua sponte strike it—early and rmly. We have said it before, and we will say it again: shotgun pleadings harm courts “by impeding [their] ability to administer justice.” Byrne, 261 F.3d at 1131. Striking shotgun complaints at the outset spares everyone wasted time, money, and motion practice. See, e.g., Anderson, 77 F.3d at 366–67 (“[W]ith the shotgun pleading out of the way, the trial judge will be relieved of ‘the cumbersome task of sifting through myriad claims, many of which [may be] foreclosed by [various] defenses.’” (quoting Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984))).
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