UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MARCIA STEIN; RODOLFO BONE, No. 22-15862 Qui Tam Relators; ex rel. United States of America, D.C. Nos.

Plaintiffs-Appellants, 3:16-cv-05337- EMC and 3:13-cv-03891- UNITED STATES OF AMERICA, EMC

Plaintiff, OPINION v. KAISER FOUNDATION HEALTH PLAN, INC., a California corporation; KAISER FOUNDATION HOSPITALS, a California corporation; KAISER FOUNDATION HEALTH PLAN OF COLORADO, A Colorado Corporation; KAISER FOUNDATION HEALTH PLAN OF GEORGIA, INC., a Georgia corporation; KAISER FOUNDATION HEALTH PLAN OF THE MID- ATLANTIC STATES, INC., a Maryland corporation; KAISER 2 STEIN V. KAISER FOUND. HEALTH PLAN, INC.

FOUNDATION HEALTH PLAN OF THE NORTHWEST, an Oregon corporation; KAISER FOUNDATION HEALTH PLAN OF WASHINGTON, a Washington corporation; PERMANENTE MEDICAL GROUP, INC., a California corporation; SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP; COLORADO PERMANENTE MEDICAL GROUP, a Colorado corporation; SOUTHEAST PERMANENTE MEDICAL GROUP; HAWAII PERMANENTE MEDICAL GROUP; MID-ATLANTIC PERMANENTE MEDICAL GROUP; NORTHWEST PERMANENTE, P.C.; GROUP HEALTH PERMANENTE; KAISER PERMANENTE,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Edward M. Chen, District Judge, Presiding

Submitted June 26, 2024* Seattle, Washington

Filed September 24, 2024 * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). STEIN V. KAISER FOUND. HEALTH PLAN, INC. 3

Before: Mary H. Murguia, Chief Judge, and Johnnie B. Rawlinson, Milan D. Smith, Jr., Jacqueline H. Nguyen, Bridget S. Bade, Kenneth K. Lee, Danielle J. Forrest, Patrick J. Bumatay, Gabriel P. Sanchez, Roopali H. Desai and Anthony D. Johnstone, Circuit Judges.

Opinion by Judge Forrest; Concurrence by Judge Forrest

SUMMARY**

False Claims Act

Reversing in part the district court’s dismissal of an action under the False Claims Act for lack of jurisdiction under the Act’s first-to-file rule, the en banc court overruled circuit precedent, held that the first-to-file rule is not jurisdictional, and remanded to the three-judge panel for further proceedings. Plaintiffs sued various Kaiser-related entities alleging Medicare fraud. The district court dismissed the action as barred by the first-to-file rule, 31 U.S.C. § 3730(b)(5), because it related to earlier-filed pending actions against the same defendants or other Kaiser-related entities. The three- judge panel affirmed, applying circuit precedent that the first-to-file rule is jurisdictional.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 4 STEIN V. KAISER FOUND. HEALTH PLAN, INC.

Acknowledging a circuit split, the en banc court overruled United States ex rel. Hartpence v. Kinetic Concepts, Inc., 792 F.3d 1121 (9th Cir. 2015) (en banc), and United States ex rel. Hughes Aircraft Co., 243 F.3d 1181 (9th Cir. 2001), and held that the first-to-file rule is not jurisdictional. Applying the Supreme Court’s more recent holding that a statutory bar is jurisdictional only if Congress clearly states that it is, the en banc court held that the first- to-file rule is not jurisdictional because § 3730(b)(5) does not use the term “jurisdiction” or include any other textual clue that points to jurisdiction, unlike other provisions in the False Claims Act that use explicitly jurisdictional language. Concurring, Judge Forr