US Ex Rel. Marc Wichansky v. Zoel Holding Co.
702 F. App'x 559
| 9th Cir. | 2017Background
- Relator Marc Wichansky filed a qui tam FCA suit alleging fraud; Defendants moved to dismiss under Rule 12(b)(6), arguing the public disclosure bar applied.
- Defendants attached exhibits (a prior federal action and a news article) to show public disclosure; Wichansky responded with argument and an exhibit.
- Without notice, the district court treated the motion as a Rule 12(b)(1) factual attack, considered materials beyond the pleadings, and dismissed the complaint without leave to amend for failure to show relator was an "original source."
- The Ninth Circuit held the pre-2010 version of the FCA governs here, making the public-disclosure bar jurisdictional.
- The appellate court concluded the district court erred by treating an ambiguous motion as a factual Rule 12(b)(1) attack and resolving the original-source issue on the existing record without giving Wichansky notice and a fair chance to present evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the public-disclosure bar bars Wichansky's FCA suit | Wichansky argued he is an original source and thus not barred | Defendants argued prior public disclosures (suit and article) trigger the bar | Court reversed: district erred in resolving original-source question as a factual 12(b)(1) attack without notice; remanded |
| Whether the motion should be treated as a facial or factual 12(b)(1) attack | Wichansky did not anticipate a factual-only resolution and lacked opportunity to present evidence | Defendants presented extrinsic materials implying a factual attack | Court: motion was ambiguous; treating it as factual without notice was error |
| Whether the district court may consider materials outside the complaint without converting to summary judgment | Wichansky contended he needed notice and chance to respond with evidence | Defendants relied on Ninth Circuit precedent permitting consideration in factual 12(b)(1) attacks | Court: such consideration is permissible only with adequate notice; here notice was lacking |
| Which statutory version of the FCA applies | Wichansky relied on pre-2010 text for original-source standard | Defendants cited disclosures under same framework | Court: pre-2010 version applies; district must use pre-2010 statutory language on remand |
Key Cases Cited
- Prather v. AT&T, Inc., 847 F.3d 1097 (9th Cir. 2017) (pre-2010 FCA version can be jurisdictional)
- Safe Air for Everyone v. Meyer, 373 F.3d 1035 (9th Cir. 2004) (distinguishes facial vs. factual Rule 12(b)(1) attacks)
- Savage v. Glendale Union High Sch., Dist. No. 205, 343 F.3d 1036 (9th Cir. 2003) (moving party may convert motion by presenting affidavits or other evidence)
- United States ex rel. Meyer v. Horizon Health Corp., 565 F.3d 1195 (9th Cir. 2009) (district courts may look beyond complaint in factual jurisdictional attacks)
- United States ex rel. Hartpence v. Kinetic Concepts, Inc., 792 F.3d 1121 (9th Cir. 2015) (overruling on other grounds noted)