Rule 9B: The Heightened Pleading Agreement for Fraud

Rule 9B of the federal rules of civil procedure requires fraud to be pled with particularity. This creates a heightened pleading requirement, an additional burden on Plaintiff’s and the United States when filing a False Claims Act case. That’s fancy talk for saying that if you file a complaint in court for these particular kinds of cases, you are supposed to have more specificity in that complaint than you would for a typical torte case such as a a slip and fall, or a car crash, or for negligence. You have to be able to show the time, the place, the events with some specificity in order to be able to maintain an action if it falls under the jurisdiction of rule 9B. Therefore if interested in filing a 9B case it is in your best interest to consult with a DC whistleblower lawyer first.

Federal Rules of Civil Procedure

The federal rules of civil procedure are as the name implies rules that apply to filing a case in federal court and a civil case. They are adopted by all federal courts in order to have some uniformity of procedure in any type of civil case. There are also local rules which are enacted pursuant to the specific Court as to how to proceed. They tell you everything that one has to do that conform with the rules of the court in terms of, where to file, how to file, what documents to file, what deadlines there are and that sort of thing as well as imposing burdens such as rule 9B, the type of pleading that might be involved.

False Claims Act cases are filed as civil matters and they therefore, fall under the jurisdiction of the federal rules of civil procedure. False Claims Act law has within that its own procedural requirements, which conform to the federal rules of civil procedure but are added to them. Most civil cases are not filed under seal in a way false claims act cases are. That’s certainly within the federal rules and certainly conforms to federal rules, but it is unusual to have a sealed case proceed in civil court. There are certain other kinds of cases that do have that happen. It does have its own procedure in fact in most cases.

Usually when you file a complaint, you have to immediately serve it on the defendants. Under the federal rules you have a certain amount of time to serve the defendants and you get a summons and you serve the defendants with the complaint. Under the False Claims Act, that step is suspended while the case is under seal; one serves the complaint on the government. The government then takes over in the investigation and the time to serve the complaints is told or if you want delayed if you will until the government makes a decision about whether it’s going to join the case.

The Impact of Rule 9B on False Claims Cases

Courts have held that the False Claims Act, while it’s not exactly a fraud statute, but close enough falls under rule 9B and that therefore a complaint filed under the False Claims Act has to conform to rule 9B for a plaintiff to maintain an action in court. So that imposes a burden on the plaintiffs usually the whistle blower. Usually the government can be able to state pretty much specifically what the defendants did that was in violation of the false claims act in order to maintain an action, because the government has the benefit of an investigation prior to filing its pleadings.

Courts have been stringent in upholding this requirement. There’s a feeling that you just don’t want to let people accuse a contractor of fraud without putting them on notice of exactly the behavior that they are accused of doing, which violates the law.

In some instances courts have gone too far but that’s the overall direction that the courts have gone with respect to rule 9B.