United States Ex Rel. Don Hanks v. Florida Cancer Specialists ( 2020 )

18-3376
United States ex rel. Don Hanks v. Florida Cancer Specialists et al.
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2019
No. 18-3376
UNITED STATES OF AMERICA EX REL. DON HANKS,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA, REAL PARTY IN INTEREST,
Intervenor-Appellee,
FLORIDA CANCER SPECIALISTS, GULFCOAST ONCOLOGY ASSOCIATES, INTEGRATED
COMMUNITY ONCOLOGY NETWORK, LLC, UNITED STATES ONCOLOGY SPECIALTY,
LP, HEMATOLOGY AND ONCOLOGY ASSOCIATES OF THE TREASURE COAST,
MID-FLORIDA HEMATOLOGY AND ONCOLOGY CENTERS, PASCO HERNANDO
ONCOLOGY ASSOCIATES, P.A., CANCER INSTITUTE OF FLORIDA, P.A., COASTAL
ONCOLOGY PL, STUART ONCOLOGY ASSOCIATES, P.A., AYUB SOKOI, MATZKOWITZ,
AND SENNABAUM, DAVID DRESDNER, M.D., GEORGIA CANCER SPECIALISTS,
NORTHWEST GEORGIA ONCOLOGY CENTERS, PC, AUGUSTA ONCOLOGY ASSOCIATES,
CENTRAL GEORGIA CANCER CARE, SOUTHEAST GEORGIA HEMATOLOGY ONCOLOGY
ASSOCIATES, P.C.,
Defendants-Appellees. *
ARGUED: FEBRUARY 3, 2020
DECIDED: JUNE 3, 2020
---------------
*The Clerk of Court is respectfully requested to amend the official caption as set forth above.
1
Before: JACOBS, SULLIVAN, Circuit Judges, and FURMAN, District Judge. 1
Relator Don Hanks appeals the dismissal by the United States District
Court for the Eastern District of New York (Johnson, J.) of his Fifth Amended
Complaint, which asserts claims under the False Claims Act and related state
laws against (among others) certain healthcare providers, physician oncology
practices, and group purchasing organizations. Defendants-Appellees urge
dismissal of this appeal on the ground that, since the United States had ceased to
be a party to the action when the appeal was taken, the notice of appeal is
untimely under Federal Rule of Appellate Procedure 4(a)(1). We hold that
Hanks’ appeal was timely, but do not reach the merits of Hanks’ appeal.
Instead, we vacate and remand for the district court to determine whether the
False Claims Act’s public disclosure bar applies to Hanks’ claims--a jurisdictional
question the district court elided when it dismissed Hanks’ complaint on other
grounds.
____________________
1 Judge Jesse M. Furman, District Judge for the United States District Court for
the Southern District of New York, sitting by designation.
2
ROB HENNIG, Hennig Ruiz & Singh, P.C., Los
Angeles, CA, for Plaintiff-Appellant United States of
America ex rel. Don Hanks.
JULIE CIAMPORCERO AVETTA, (Bruce R. Ellisen, on
the brief) for Richard E. Zuckerman, Principal Deputy
Assistant Attorney General, Department of Justice,
Washington, DC, Richard P. Donaghue, United States
Attorney for the Eastern District of New York, of
counsel, for Appellee United States of America.
LAWRENCE M. KRAUSS, Foley & Lardner LLP,
Boston, MA, (Rachel Kramer, Michael P. Matthews, on
the brief) for Defendants-Appellees Florida Cancer
Specialists & Research Institute, LLC, Ayub, Sokol,
Matzkowitz and Sennabaum, M.D.s, P.A. d/b/a New
Hope Cancer Center, Coastal Oncology, P.L., J.
Paonessa, M.D., P.A. (Gulfcoast Oncology Associates),
and Pasco Hernando Oncology Associates, P.A.
JOSEPH R. PALMORE, Morrison & Foerster LLP,
Washington, DC, (Samuel B. Goldstein, Joshua Hill, Jr.,
Lena H. Hughes, on the brief) for Defendant-Appellee
U.S. Oncology Specialty, LP.
JEREMY P. BURNETTE, Akerman LLP, Atlanta, GA, for
Defendants-Appellees Central Georgia Cancer Care,
P.C., Georgia Cancer Specialists I, P.C., and Southeast
Georgia Hematology Oncology Associates, P.C.
JAMES W. BOSWELL, III, King & Spalding LLP,
Atlanta, GA, (Michael E. Paulhus, Jennifer S. Lewin, on
the brief) for Defendant-Appellee Northwest Georgia
Oncology Centers, P.C.
3
DENNIS JACOBS, Circuit Judge:
Relator Don Hanks brings this qui tam action asserting claims on behalf of
the United States under the False Claims Act, 31 U.S.C. § 3729 et seq. (the
“FCA”), and on behalf of certain states under state law analogs. Appeal is taken
from the dismissal of the Fifth Amended Complaint, which (like the earlier
complaints) alleges that certain healthcare providers, physician oncology
practices, and group purchasing organizations (collectively,
“Defendants-Appellees” 2), and others, conspired with pharmaceutical company
Amgen, Inc. (“Amgen”) to purchase Amgen drugs at discounted rates with
knowledge that Amgen would fail to report the discounts to government
agencies. It is alleged that these unreported discounts resulted in: (1) increased
sales of Amgen products; and (2) inflated reimbursements to healthcare
providers who prescribed--and in some cases over-prescribed--those products.
2 Defendants-Appellees include the following parties: Florida Cancer Specialists,
Gulfcoast Oncology Associates, Integrated Community Oncology Network, LLC,
United States Oncology Specialty, LP, Hematology and Oncology Associates of
the Treasure Coast, Mid-Florida Hematology and Oncology Centers, Pasco
Hernando Oncology Associates, P.A., Cancer Institute of Florida, P.A., Coastal
Oncology PL, Stuart Oncology Associates, P.A., Ayub Sokoi, Matzkowitz, and
Sennabaum, David Dresdner, M.D., Georgia Cancer Specialists, Northwest
Georgia Oncology Centers, PC, Augusta Oncology Associates, Central Georgia
Cancer Care, and Southeast Georgia Hematology Oncology Associates, P.C.
4
The United States District Court for the Eastern District of New York
(Johnson, J.) dismissed the claims, without prejudice, under the FCA’s first-to-file
rule, 31 U.S.C. § 3730(b)(5), on the ground that the core allegations had been
raised in earlier lawsuits by other plaintiffs. In the alternative, the district court
held that the claims were barred by Federal Rule of Civil Procedure 9(b) for
failure to allege fraud with sufficient particularity. But in reaching its decision
the district court elided the issue of whether the FCA’s public disclosure bar, 31
U.S.C. § 3730(e)(4), deprived the court of jurisdiction. Because federal courts are
not generally permitted to assume the existence of subject-matter jurisdiction, we
vacate and remand for the district court to determine whether the public
disclosure bar applies to Hanks’ claims. The other issues in the case will abide a
further appeal in the event the district court has jurisdiction to decide them.
But we must first establish the existence of appellate jurisdiction, which
Defendants-Appellees contest on the basis that Hanks’ notice of appeal was
untimely. See Williams v. KFC Nat'l Mgmt. Co., 391 F.3d 411, 415 (2d Cir. 2004)
(holding that filing of a timely notice of appeal is “mandatory and jurisdictional”
(internal quotation marks omitted)). We conclude in Point I that appellate
jurisdiction exists.
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I
Hanks filed a notice of appeal on November 7, 2018, 51 days after the
district court entered judgment on September 18 . While parties ordinarily have
30 days from the entry of judgment to file a notice of appeal, Federal Rule of
Appellate Procedure 4(a)(1)(B) requires that notice be filed within 60 days “if one
of the parties is . . . the United States.” In December 2012, the United States
intervened with respect to Hanks’ claims against Amgen, and it orchestrated the
settlement of those claims, which were formally dismissed by a so-ordered
stipulation on November 21, 2013. The United States has never formally
withdrawn as a party, and has continued to monitor the case, as reflected in its
efforts to protect an alleged tax-related interest in a setoff of funds owed to
Hanks under the government’s settlement with Amgen.
The motion to dismiss emphasizes that the United States intervened in this
case for a limited purpose that was accomplished by the Amgen settlement; it
later declined to intervene after the filing of a third amended complaint; and it
took no further position through the subsequent iterations, including the Fifth
Amended Complaint from which this appeal is taken. Relying on United States
ex rel. Eisenstein v. City of New York, Defendants-Appellees argue that
6
monitoring--which the government may do for every qui tam action--is
insufficient to make the United States a party. See 556 U.S. 928, 935-36 (2009)
(holding that the government’s statutory entitlement to receive pleadings and
deposition transcripts in FCA cases in which it does not intervene does not
confer party status on the United States).
The Federal Rules of Appellate Procedure do not define “party,” but the
motion to dismiss is defeated by precedent and the plain wording of the rule.
“The stated criterion [for the 60-day deadline] is whether the United States is a
party to the action . . . and not whether the United States is concerned with the
particular order sought to be appealed . . . .” United States v. Am. Soc’y of
Composer, Authors and Publishers (“ASCAP”), 331 F.2d 117, 119 (2d Cir. 1964)
(citing the former Fed. R. Civ. P. 73(a), the predecessor to Rule 4(a)(1)(B)). See
Cohen v. Empire Blue Cross & Blue Shield, 176 F.3d 35, 40 (2d Cir. 1999) (noting
similarly). ASCAP deemed it “undesirable to read into a procedural statute or
rule, fixing the time within which action may be taken, a hidden exception or
qualification that will result in the rights of clients being sacrificed when capable
counsel have reasonably relied on the language.” Id. Accordingly, we have
stated--albeit arguably in dicta--that “the 60–day deadline is applicable if the
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United States was a party to the action at any stage of the litigation.” Cohen, 176
F.3d at 40 (emphasis added).
Here, in the qui tam context, we decline to read into Rule 4(a)(1)(B) a trap
that snaps when the United States: (1) has formally intervened in the matter; (2)
has not formally withdrawn as a party; and (3) has continued to participate in
proceedings before the district court, by monitoring or otherwise. In United
States ex rel. Eisenstein v. City of New York, we held that the United States is not
a “party” for purposes of Rule 4(a)(1)(B) in a qui tam action in which it never
intervened. 540 F.3d 94, 101 (2d Cir. 2008), aff'd sub nom. United States ex rel.
Eisenstein v. City of New York, New York, 556 U.S. 928 (2009). In such
circumstances, we reasoned, “[a]ll parties [are] aware the government [has]
disclaimed any participation in the suit.” Id. (quoting United States ex rel.
Petrofsky v. Van Cott, Bagley, Cornwall, McCarthy, 588 F.2d 1327, 1329 (10th Cir.
1978)). By the same token, the parties here are aware that the government
intervened and did not withdraw.
Intervention without withdrawal enables the government to continue
active participation in the ongoing proceedings. Thus here, after the filing of
the Fifth Amended Complaint and the government’s decision to decline
8
intervention, the government participated actively: it moved the court to permit
setoff of funds owed to Hanks pursuant to the government’s settlement with
Amgen, in order to satisfy certain outstanding federal tax liabilities (the “Setoff
Motion”). Moreover, although the United States need not have “ha[ve] an
interest in the appeal” to qualify as a party for purposes of Rule 4(a)(1)(B),
Cohen, 176 F.3d at 40, the United States has actively participated in this appeal,
urging a partial remand for the district court to address the Setoff Motion, which
had yet to be resolved when the district court dismissed the action.
Defendants-Appellees focus on the government’s decision not to intervene
with respect to the Fifth Amended Complaint, and cite the principle that “[t]he
Court cannot . . . designat[e] the United states a ‘party’ even after it has declined
to assume the rights and burdens attendant to full party status.” Eisenstein, 556
U.S. at 934. But, as the Ninth Circuit observed, the Supreme Court in Eisenstein
“did not call for a claim-by-claim analysis, or otherwise indicate that party-status
is contingent on anything other than whether [the government] ‘intervenes in
accordance with the procedures established by federal law.’” United States ex
rel. Bennett v. Biotronik, Inc., 876 F.3d 1011, 1020 (9th Cir. 2017) (quoting
Eisenstein, 556 U.S. at 933). Accordingly, under the circumstances of this case,
9
we hold that the United States was a “party” for purposes of Rule 4(a)(1)(B) and
that the notice of appeal was therefore timely.
II
We do not review the grounds stated for dismissal of this suit by the
district court because we conclude that jurisdiction in the district court has not
been settled. See, e.g., U.S. ex rel. Kirk v. Schindler Elevator Corp., 601 F.3d 94,
102 (2d Cir. 2010) (“[T]he first question for an appellate court ordinarily is that of
its jurisdiction and the jurisdiction of the lower court in the cause under
review.”), rev’d on other grounds, 563 U.S. 401 (2011); see also United States ex
rel. Chorches for Bankruptcy Estate of Fabula v. Am. Medical Response, Inc., 865
F.3d 71, 79 (2d Cir. 2017) (“[E]very federal appellate court has a special obligation
to satisfy itself not only of its own jurisdiction, but also [of] that of the lower
courts in a cause under review.” (citation omitted)). While the FCA’s public
disclosure bar has since been amended, the version applicable to Hanks’ action,
filed in 2008, is explicitly jurisdictional:
No court shall have jurisdiction over an action under [the FCA]
based upon the public disclosure of allegations or transactions in a
criminal, civil, or administrative hearing, in a congressional,
administrative, or Government Accounting Office report, hearing,
audit, or investigation, or from the news media, unless the action is
10
brought by the Attorney General or the person bringing the action is
an original source of the information.
31 U.S.C. § 3730(e)(4)(A) (1994).
In the district court, several defendants brought a factual challenge to
subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1),
proffering evidence that the core allegations underlying Hanks’ lawsuit had
previously been publicly disclosed in related lawsuits and media reports. As
the district court stated, this imposed on Hanks the burden to show by a
preponderance of the evidence that the FCA’s public disclosure bar did not
deprive the district court of jurisdiction. United States ex rel. Hanks v. U.S.
Oncology Speciality, LLP, 336 F. Supp. 3d 90, 109 (E.D.N.Y. 2018) (citing Mantena
v. Johnson, 809 F.3d 721, 727 (2d Cir. 2015)). Finding that Hanks’ suit was based
in substantial part on allegations or transactions that were publicly disclosed, id.
at 112, the district court moved on to consider whether Hanks was an “original
source” of the information underlying his claims. 31 U.S.C. § 3730(e)(4)(A)
(1994). But the district court stopped short of deciding the “original source”
question, explaining that, because the complaint “lumps all of the FCA claims
together in a single cause of action” and fails to plead the distinct claims with
11
sufficient particularity, the court “c[ould] [not] adjudicate the jurisdictional
argument at this juncture.” Hanks, 336 F. Supp. 3d at 113.
It is hard to fault the district court’s critique of the pleading. Still, it
remains a “fundamental precept” that “federal courts are courts of limited
jurisdiction” and “[t]he limits upon federal jurisdiction, whether imposed by the
Constitution or by Congress, must be neither disregarded nor evaded.” Owen
Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). “Article III generally
requires a federal court to satisfy itself of its jurisdiction over the subject-matter
before it considers the merits of a case.” Ruhrgas AG v. Marathon Oil Co., 526
U.S. 574, 583 (1999) (citing Steel Co. v. Citizens for a Better Env’t., 523 U.S. 83
(1998)). “For a court to pronounce upon [the merits] when it has no jurisdiction
to do so is . . . for a court to act ultra vires.” Steel Co., 523 U.S. at 101–102.
It is “hardly novel for a federal court to choose among threshold grounds
for denying audience to a case on the merits.” Ruhrgas, 526 U.S. at 585. There
are a few recognized exceptions to the otherwise “solid rule” that subject-matter
jurisdiction must be decided first. Id. at 577. Ruhrgas held that, when a case is
removed from state court to federal court, a district court may choose to dismiss
the case for lack of personal jurisdiction without first resolving a “difficult and
12
novel” challenge to the court’s subject-matter jurisdiction. Id. at 588. Nor do
district courts “overstep Article III limits when they decline jurisdiction of
state-law claims on discretionary grounds without determining whether those
claims fall within their pendent jurisdiction . . . or abstain under Younger v.
Harris, 401 U.S. 37 (1971), without deciding whether the parties present a case or
controversy.” Id. at 585 (citations omitted). Similarly, a district court may
dismiss on forum non conveniens without first deciding subject-matter
jurisdiction. Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422,
432 (2007). Sinochem reasoned that “[t]he critical point . . . rendering a forum
non conveniens determination a threshold, nonmerits issue in the relevant
context, is simply this: Resolving a forum non conveniens motion does not entail
any assumption by the court of substantive ‘law-declaring power.’” Id. at 433
(quoting Ruhrgas, 526 U.S. at 584).
Defendants-Appellees urge that the FCA’s first-to-file rule is another
“threshold, nonmerits issue,” and that the district court therefore had power to
decide it without first deciding the jurisdictional question raised under the FCA’s
public disclosure bar. However, that argument is foreclosed by Second Circuit
precedent: the first-to-file rule “is not jurisdictional and instead bears on the merits of
13
whether a plaintiff has stated a claim.” United States ex rel. Hayes v. Allstate Ins.
Co., 853 F.3d 80, 85 (2d Cir. 2017) (emphasis added).
A federal court may assume jurisdiction “where the jurisdictional
constraints are imposed by statute, not the Constitution, and where the
jurisdictional issues are complex and the substance of the claim is . . . plainly
without merit.” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 338 n.2 (2d Cir.
2006). But here, the jurisdictional question is relatively straightforward:
whether Hanks was an original source of the information underlying his claims.
If, as the district court suggested, Hanks’ allegations have failed to show that he
is an original source with respect to any particular claim, that may settle the
matter: it is Hanks’ burden to establish subject-matter jurisdiction over his claims
by a preponderance of the evidence. However, we leave it to the district court
to make that determination in the first instance.
Accordingly, we VACATE the judgment of the district court dismissing
Hanks’ claims, and REMAND for the district court to consider the jurisdictional
question under the FCA’s public disclosure bar and the government’s Setoff
Motion.
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