Whether the False Claims Act's public disclosure bar requires courts to assess the 'substantially the same' standard for qui tam suits based on whether prior disclosures would put the government on notice of potential fraud or whether a more granular 'new and material information' test should apply

No question identified. : APPLICATION To the Honorable Elena Kagan, Associate Justice of the Supreme Court of the United States and the Circuit Justice for the Ninth Circuit: Pursuant to Rule 13.5 of the Rules of this Court and 28 U.S.C. § 2101(0), Applicant Biotronik, Inc. respectfully requests a 30-day extension of time, to and including March 4, 2026, within which to file a petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. 1. The Ninth Circuit issued its judgment on September 15, 2025 (Exhibit A), and denied a timely petition for panel rehearing en banc on November 4, 2025 (Exhibit B). Unless extended, the time to file a petition for a writ of certiorari will expire on February 2, 2026. This application is being filed more than ten days before a petition is currently due. See Sup. Ct. R. 13.5. The jurisdiction of this Court would be invoked under 28 U.S.C. § 1254(1). 2. This case presents an important question that is worthy of this Court’s review: what test should be used to determine whether a qui tam suit is “substantially the same” as a previous public disclosure so as to trigger the public disclosure bar of the False Claims Act. 3. The public disclosure bar requires the dismissal of gui tam suits if “substantially the same” allegations or transactions were previously disclosed in qualifying federal hearings, reports or investigations, or in the news media. 31 U.S.C. § 3730(e)(4)(A). The bar applies when a prior disclosure would be “likely to put the Federal Government on notice of a potential fraud.” Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 291 (2010). This Court has not yet articulated a more specific test, but most of the federal circuits agree that “the operative question is whether the public disclosures were sufficient to set the government on the trail of the alleged fraud without [the relator’s] assistance.” United States ex rel. Reed v. KeyPoint Gov't Sols., 923 F.3d 729, 744 (10th Cir. 2019) (internal quotation and citation omitted); see also United States ex rel. O’Connor v. USCC Wireless Investment, Inc., 128 F.4th 276, 285 (D.C. Cir. 2025); United States ex rel. Maur v. Hage-Korban, 981 F.3d 516, 524 (6th Cir. 2020); United States ex rel. Lager v. CSL Behring, L.L.C., 855 F.3d 935, 944 (8th Cir. 2017); Piacentile v. U.S. Oncology, Inc., No. 22-18, 2023 WL 2661579, at *2 (2d Cir. Mar. 28, 2023); United States ex rel. Winkelman v. CVS Caremark Corp., 827 F.3d 201, 209 (1st Cir. 2016). Indeed, the Ninth Circuit, itself, previously has applied this test. See United States v. Alcan Elec. & Eng’s, Inc., 197 F.3d 1014, 1019 (9th Cir. 1999); United States ex rel. Solis v. Millennium Pharms., Inc., 885 F.3d 623, 626 (9th Cir. 2018). 4, In this case, however, the Ninth Circuit abandoned the established test and substituted a new inquiry: whether the relator’s complaint “provided genuinely new and material information” when it is “viewed with the appropriate level of generality.” Exhibit A at 25. 5. Not only does this new test conflict with the test used in other federal circuits, it flouts the congressional design of the public disclosure bar. The statute provides that allegations that are “substantially the same” as previous disclosures are barred “unless ... the person bringing the action is an original source of the information.” 31 U.S.C. § 8730(e)(4)(A) (emphasis added). In 2010, Congress expanded the definition of an “original source” by allowing a relator who “materially adds” to the publicly disclosed information to qualify. 31 U.S.C. § 3730(e)(4)(B). Thus, under the terms of the statute, the issue of whether a relator “materially adds” to a public disclosure does not arise unless it has first been determined that the qui tam complaint is “substantially the same” as the disclosure. 6. The Ninth Circuit’s decision erroneously transposes the “materially adds” inquiry into the thr