In a brief unpublished memorandum opinion released on June 15, 2015, the Ninth Circuit affirmed the district court’s dismissal of an FCA claim brought against a tribe, holding that tribes do not fit within the FCA’s definition of “persons.”  See Thomas Howard and Robert Weldy, ex rel. United States v. Shoshone Paiute Tribes of the Duck Valley Indian Reservation, No. 13-16118 (9th Cir. June 15, 2015).  Whistleblowers Howard and Berg, former tribal employees, alleged that the tribes had submitted millions of dollars of false claims to Medicare and Medicaid by double-billing for services and misrepresenting a tribal clinic as a hospital, among other things.

Although unpublished, the Ninth Circuit’s decision is significant in that it appears to be among the first appellate decisions analyzing the applicability of the FCA to tribes.  The court’s conclusion is consistent with the generally accepted view that while certain public entities are subject to the FCA (e.g., cities and counties), states are not “persons” within the meaning of the law.  Until the law develops further, however, tribes will remain at risk of FCA claims.