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U.S. v. KITSAP PHYSICIANS SERVICE

No. 01-36089.

314 F.3d 995 (2002)

UNITED STATES of America, Plaintiff, and Alfred Aflatooni, Dr., ex rel, Plaintiff-Appellant, v. KITSAP PHYSICIANS SERVICE, a non-profit Washington corporation; Northwest Diagnostic Imaging, Inc., a Washington professional services corporation; PATHOLOGY Associates of Kitsap County, a Washington Partnership; Ronald Reimer, M.D.; Susan L. Reimer, his wife; Paul S. McCullough, M.D.; Jane Doe McCullough, his wife; Robert C. Schneidler; Sharon K. Schneidler, his wife; Nancy L. Koch; Richard L. Koch, her husband; Keith Hallman, M.D.; Kathleen A. Hallman, his wife; John P. Matan, M.D.; Susan J. Matan, his wife; Thomas C. Case, M.D.; Mary Ann Case, his wife; Milton S. Michaelis, M.D.; Jane Doe Michaelis, his wife; John Doe 1-200; Jane Doe 1-200; Sander E. Bergman, M.D.; Sandra Bergman, his wife, Defendants-Appellees.

United States Court of Appeals, Ninth Circuit.

Filed December 16, 2002.

Attorney(s) appearing for the Case

Cleveland Stockmeyer, Talmadge & Stockmeyer, Tukwila, WA, for the plaintiff-appellant.

Robert G. Homchick, Davis Wright Tremaine LLP, Seattle, WA, for defendants Kitsap Physicians Service and Case.

Steven Y. Koh, Perkins Coie LLP, Seattle, WA, for defendants Estate of Dr. John P. Matan & Susan J. Matan.

David B. Robbins, Bennett Bigelow & Leedom P.S., Seattle, WA, for defendants Pathology Associates of Kitsap County and Hallman.

Before: BROWNING, FISHER, and TALLMAN, Circuit Judges.

OPINION

TALLMAN, Circuit Judge:

It seems to be a fairly obvious notion that a False Claims Act suit ought to require a false claim. Yet, the plaintiff-appellant in this case filed his action, proceeded to summary judgment, and prosecuted this appeal without ever seeing or presenting to a court a single false claim submitted by the defendants-appellees. This flaw is fatal to a qui tam1 action under the False Claims Act...

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