by Ben Vernia | September 10th, 2012
On August 9, the Court of Appeals for the Eleventh Circuit affirmed the district court’s dismissal of U.S. ex rel. Jallali v. Nova Southeastern Univ., agreeing with the lower court that the whistleblower’s complaint lacked sufficient particularity under Fed. R. Civ. P. 9(b).
The qui tam relator was a former medical student at the university who never obtained a degree. He sued the school under the False Claims Act, alleging that the university false asserted that it was in compliance with federal regulations when it submitted payment requests for federal student aid. The government declined to intervene in the case, and the school moved to dismiss for lack of particularity. The 11th Circuit described the relator’s allegations: that the school violated two federal regulations; that federal regulations required to school to certify its compliance with those rules each time it requests federal student aid payments; and that the school requested such payments. The Court concluded that these allegations failed to meet 9(b)’s standard, because they did not include an allegation that the school in fact certified its compliance or an allegation that noncompliance renders the school ineligible to receive the funds.
The Court also rejected the whistleblower’s arguments that the district court erred in refusing to consider exhibits attached to his opposition to the school’s motion to dismiss (it concluded that a plaintiff cannot amend a complaint in that manner), and that the dismissal was erroneous because the Attorney General had not consented (the provision of the False Claims Act requiring the AG’s consent only applied to voluntary dismissals, the Eleventh Circuit reasoned).