Bryan v. White ( 2021 )

Case: 19-11309 Document: 00515959655 Page: 1 Date Filed: 07/30/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 30, 2021
No. 19-11309 Lyle W. Cayce
Clerk
Christopher Sean Capshaw,
Plaintiff,
versus
Bryan K. White, M.D., Individually,
Defendant,
______________________________
United States of America, ex rel., Kevin Bryan; Franklin
Brock Wendt,
Plaintiffs—Appellants,
Boyd & Associates; Marchand & Rossi, L.L.P., now known as
Marchand Law, L.L.P.,
Appellants,
versus
Bryan K. White, M.D., Individually; Be Gentle Home
Health, Incorporated, doing business as Phoenix Home
Health Care; Suresh Kumar, R.N., Individually; Goodwin
Home Health Services, Incorporated; Vinayaka
Associates, L.L.C., doing business as A&S Home Health Care;
Goodwin Hospice, L.L.C.; North Texas Best Home
Case: 19-11309 Document: 00515959655 Page: 2 Date Filed: 07/30/2021
Healthcare, Incorporated; Excel Plus Home Health,
Incorporated; Phoenix Hospice, Incorporated; One
Point Home Health Services, L.L.C., formerly known as One
Point Home Health, L.L.C.; Home Health Plus,
Incorporated; International Tutoring Services, L.L.C.,
formerly known as International Tutoring Services,
Incorporated, doing business as Hospice Plus; Curo Health
Services, L.L.C., formerly known as Curo Health Services,
Incorporated; Hospice Plus, L.P.,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:12-CV-4457
USDC No. 3:13-CV-3392
Before Jolly, Stewart, and Oldham, Circuit Judges.
Per Curiam:*
Qui tam relator Christopher Capshaw sued Bryan White, Suresh
Kumar, and other defendants under the False Claims Act (“FCA”), 31
U.S.C. § 3729 et seq. In addition to violations of the FCA, Capshaw alleged
violations of the Federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b, and a
federal statute known as the Stark Law, 42 U.S.C. § 1395nn. Specifically, he
alleged that White and Kumar “knowingly set up a system of kickbacks and
illegal referrals” between American Physician House Calls (“APH”) and
health care companies that White and Kumar owned. This enabled White
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 19-11309
and Kumar to “substantially bill” and “receive payment from” Medicare—
but only after falsely certifying they had complied with all applicable laws.
Nine months later, Appellants Kevin Bryan and Franklin Wendt filed
a similar action against the same and similar defendants. They too alleged
violations of the FCA, the Anti-Kickback Statute, and the Stark Law. They
too alleged that White and Kumar “directed and committed . . . illegal
kickbacks in order to increase [their] . . . number of patients.” And they too
alleged that APH was “an important source of patient referrals.” But Bryan
and Wendt’s complaint was not completely identical to Capshaw’s. In
addition to seeking relief under the FCA, they relied on “analogous Texas
statutes” like the Texas Medicaid Fraud Prevention Act (“TMFPA”). And
in addition to describing a kickback scheme involving APH, they alleged that
White and Kumar offered kickbacks to nursing homes, assisted living
facilities, and hospitals too.
The district court dismissed Bryan and Wendt’s claims under the
FCA’s first-to-file bar, which prohibits relators from bringing “a related
action based on the facts underlying” a pending FCA qui tam action. 31
U.S.C. § 3730(b)(5). The court determined that Bryan and Wendt’s
“add[itional] factual details” and “analog[ous]” TMFPA claims were not
sufficient to render their action “unrelated” to Capshaw’s. So the first-to-
file bar applied. The district court subsequently denied Bryan and Wendt’s
motion for reconsideration.
Despite the district court’s dismissal, Bryan and Wendt entered a
settlement agreement that released the defendants from their FCA and
TMFPA claims and reserved the right “to assert their claims for reasonable
expenses, attorney’s fees, and costs.” Bryan and Wendt later filed three
motions for attorney’s fees. The district court denied all of them because the
first-to-file bar meant Bryan and Wendt were not proper parties to the qui
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tam action. Bryan and Wendt filed a motion for reconsideration, which the
district court also denied. This appeal followed.
We affirm “for essentially the reasons stated by the district court.”
Razvi v. Guarantee Life Ins., 254 F.3d 1080 (5th Cir. 2001) (per curiam)
(unpublished). The district court thoroughly examined the issues in five
separate decisions and faithfully applied the statutory text and our precedent
in doing so. We see no reason to disturb or expound upon its rulings.
AFFIRMED.
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