United States v. Douglas Greer ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 28, 2020 Decided February 16, 2021
No. 19-5070
UNITED STATES OF AMERICA,
APPELLEE
v.
DOUGLAS F. GREER, M.D. AND DOUGLAS F. GREER, M.D.,
P.C., DOING BUSINESS AS DOWNTOWN OPHTHALMOLOGY
CENTER,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-00789)
Suraj Kumar argued the cause for appellants. With him
on the briefs was Steven M. Cady.
Oliver W. McDaniel, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief was R. Craig
Lawrence, Assistant U.S. Attorney.
Before: WILKINS, KATSAS and WALKER, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALKER.
2
WALKER, Circuit Judge: In 2007, Dr. Douglas Greer
agreed to pay the government a settlement of up to $1 million.
In 2016, the government sued to collect.
Pointing to a six-year statute of limitations, Greer argued
that his breach of the settlement occurred more than six years
before the government sued to collect. The government
pointed to facts suggesting Greer’s breach was later, and thus
within six years of its 2016 suit. The result was a material and
disputed question of fact.
The district court granted summary judgment for the
government. But we conclude the parties’ material and
disputed fact question should have been answered later, only
after a bench trial. We therefore reverse and remand for that
trial.
I
Dr. Douglas Greer defrauded the government out of more
than $1 million. As early as 1999, Greer, an ophthalmologist,
performed needless medical procedures on his patients and
asked Medicare to foot the bill.1 The government finally grew
wise to Greer’s schemes and indicted him for health care fraud.
In 2007 he pled guilty and was sentenced to 18 months’
imprisonment, followed by 24 months of supervised release.
Moreover, Greer had to pay back taxes, $50,000 in fines, and
$1.2 million in restitution.
That same year, the government claimed Greer had
committed civil violations of the False Claims Act, 31 U.S.C.
§ 3729 et seq. Two days before his criminal sentence was
handed down, Greer settled his potential civil liability under
1
He also billed for procedures that he never performed.
3
the Act. In exchange for the government not pursuing a civil
suit, Greer agreed to liquidate his retirement accounts and other
assets, sell a rental home that he owned in Washington, D.C.,
and pay the government up to $1 million (depending on how
much he had left after first satisfying the financial obligations
of his guilty plea).
In September 2007, Greer liquidated an insurance policy
and paid the resulting $189,000 to the government toward the
civil settlement. 2 Two months later, he started serving his
prison sentence. He was released in March 2009 and
completed his supervised release program in March 2011.
Greer’s case sat dormant until December 2015, when the
government sent him a letter demanding that he make
payments on his settlement balance. After Greer refused, the
government brought a breach-of-contract suit against him in
April 2016, seeking specific performance — i.e., the sale of
Greer’s rental house.
The parties cross-moved for summary judgment. Greer
argued (among other things) that the government brought its
April 2016 suit after the six-year statute of limitations had
elapsed. The question was thus whether Greer breached his
obligations under the contract before or after April 2010.
Greer puts the breach before April 2010. Under his
theory, he breached as early as January 2008 (when he did not
sell his rental house within six months of the settlement) but no
later than 2009 (when he was released from prison).
2
By that point, Greer had presumably liquidated his retirement
accounts and used those funds to pay off his criminal penalties.
4
The government puts Greer’s breach after April 2010.
Under its theory, the contract did not anticipate that Greer
would sell his house before 2012. Thus, Greer’s failure to sell
it before 2012 was not a breach.
The district court granted summary judgment to the
government on this question.
Greer appealed.
II
We review the district court’s grant of summary judgment
de novo. Katopothis v. Windsor-Mount Joy Mutual Insurance
Co., 905 F.3d 661, 667 (D.C. Cir. 2018). Summary judgment
is appropriate only if “there is no genuine dispute as to any
material fact.” Fed. R. Civ. P. 56(a). It is not appropriate
when “a reasonable jury could return a verdict for the
nonmoving party.” See Thompson v. District of Columbia,
967 F.3d 804, 813 (D.C. Cir. 2020).
A
Greer argues that the settlement contract is unenforceable
because the parties omitted essential terms. “Vagueness of
expression, indefiniteness and uncertainty as to any of the
essential terms of an agreement, have often been held to
prevent the creation of an enforceable contract.” 1 A. Corbin,
CORBIN ON CONTRACTS § 95, at 394 (1963); see also
RESTATEMENT (SECOND) OF CONTRACTS § 33(a) (1981).
No doubt the contract here leaves much to be desired when
it comes to details. As Greer rightly points out, the settlement
agreement does not say for how much Greer must sell his rental
5
house. Nor does it say when he must do so (more on that to
come).
But notwithstanding its shortcomings, the contract
imposes clear obligations on Greer. It says, in no uncertain
terms, that Greer must sell the house. The contract states that
Greer “shall liquidate” certain specified assets, including his
rental house. He had to use the proceeds first to settle his
criminal liabilities, then to pay the government up to $1 million
as part of his civil settlement.
Moreover, Greer clearly understood those obligations.
He partially fulfilled them, liquidating an insurance policy and
paying the government $189,000. And he acknowledged the
other obligations at his criminal sentencing hearing. There, he
conceded he had “agreed to give up . . . his one rental property”
and argued that he should receive a lighter sentence in light of
the “draconian” settlement contract. He cannot now reverse
course and claim the settlement contract is so vague that he did
not understand his obligations. His argument thus fails.
B
Greer also argues that the district court should have
granted him summary judgment because the government
brought its suit too late. The government had six years to sue
for a breach of contract. 28 U.S.C. § 2415(a). It filed suit in
April 2016. If Greer breached the contract before April 2010,
then Greer is correct and the government’s suit was untimely.
To determine when Greer breached the contract, we start
with the contract’s text. Bode & Grenier, LLP v. Knight, 808
F.3d 852, 862 (D.C. Cir. 2015). Unfortunately, the contract
here says nothing about when Greer needed to sell his home.
When a contract does not specify when parties must perform,
6
courts assume parties must act “within a reasonable time.”
Clayman v. Goodman Properties, Inc., 518 F.2d 1026, 1033
n.44 (D.C. Cir. 1973).
In some situations, the question of how much time was
“reasonable” is a question of law. That’s the case for
“commercial transactions which happen in the same way, day
after day, and present the question of reasonable time on the
same date in continually recurring instances.” Hamilton v.
Phoenix Insurance Co. of Hartford, 61 F. 379, 390 (6th Cir.
1894) (Taft, J.).
At other times, however, a court cannot define a
“reasonable” period of time for contract compliance without a
jury trial or a bench trial. There, “the answer to the question
is one dependent on many different circumstances which do not
constantly recur in other cases of like character.” Id. It thus
“is one of fact for the jury.” Id.; accord Cocker v. Franklin
Hemp & Flax Manufacturing Co., 5 F. Cas. 1152, 1153 (C.C.D.
Mass. 1839) (Story, J.).
Greer’s case fits within the second category. As any
homeowner knows, the purchase and sale of property does not
“happen in the same way, day after day.” A lot of “different
circumstances” determine how fast a real estate transaction can
close.
On the one hand, Greer says he could have sold his rental
house within six months, and he pointed to some evidence
supporting that contention.
On the other hand, the government says it’s entirely
unreasonable to expect that a 67-year-old could have sold a
home in Washington, D.C., mere months before an impending
prison sentence. Instead, the government points to text in the
7
contract that arguably suggests a longer timeframe for
performance. Specifically, the contract obligated Greer to
“provide to the United States specific documentation exactly
detailing the monies obtained from the liquidation of” Greer’s
assets, and failure to do so would “be grounds for the United
States to file a false claims act lawsuit regarding the allegations
settled herein,” with the “statute of limitations for those claims
. . . waived.” The statute of limitations for some of the
“allegations settled herein” would not have run until 2012 —
indicating, the government contends, that performance could
have lasted at least that long. And if Greer had at least until
2012 to perform, he could not have breached the contract until
then, making the government’s 2016 suit timely.
At the end of the day, we’re left with a material and
disputed fact question — one that for two centuries jurists have
said a jury should decide, and one that requires someone to
“weigh the evidence and determine the truth [i.e., the
reasonableness] of the matter.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). It thus would have been best
for the district court to resolve that issue after a bench trial as a
question of fact.
* * *
We reverse the district court’s grant of summary judgment
and remand for a bench trial.