Fleming v. Medicare Freedom of Information Group ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RHONDA FLEMING,
Plaintiff,
v.
Civ. Action No. 15-1135 (EGS)
MEDICARE FREEDOM OF
INFORMATION GROUP, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Rhonda Fleming was sentenced to 360 months in
prison and ordered to pay $6.3 million in restitution after
being convicted on over sixty counts of healthcare fraud and
other related offenses in the Southern District of Texas. Ms.
Fleming now alleges that she was not provided with certain
Medicare records during her criminal trial. See Compl., ECF No.
1 at 1-2. 1 Proceeding pro se, Ms. Fleming brings suit against the
Medicare Freedom of Information Group — which the government has
construed as being against the Centers for Medicare and Medicaid
Services (“CMS”) — and others seeking those records pursuant to
the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”).
Because Ms. Fleming is a prolific filer, the Court required
her to obtain permission from the Court before making
1 When citing electronic filings throughout this opinion and
order, the Court cites to the ECF page number, not the page
number of the filed document.
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new filings in this case. Minute Order of Sept. 1, 2016. Pending
before the Court are Ms. Fleming’s objections to Magistrate
Judge Harvey’s Report and Recommendation dated July 24, 2018
(“R&R”), which recommends that the Court deny Ms. Fleming
permission to file a motion for relief from two judgments
pursuant to Rule 60(d)(3) and the All Writs Act. See R&R, ECF
No. 162. Defendants have not objected to the R&R. For the
reasons set forth below, and upon consideration of the R&R, Ms.
Fleming’s objections to the R&R, and the relevant law, the Court
accepts the findings and adopts the recommendations of
Magistrate Judge Harvey contained in the R&R and DENIES Ms.
Fleming permission to file the motion.
I. Factual Background
The Court will not restate the full factual background of
this case, which is set forth in detail in Magistrate Judge
Harvey’s prior R&R and reiterated in this Court’s Memorandum
Opinion adopting that R&R. See R&R, ECF No. 122 at 2-5; Mem.
Op., ECF No. 152 at 2–3. Briefly, at the center of this lawsuit
are FOIA requests made to CMS and the Executive Office for
United States Attorneys requesting documents “pertaining to Hi-
Tech Medical Supply and First Advantage Nursing,” which were the
companies from whom Ms. Fleming purchased supplier numbers in
her scheme to submit fraudulent claims to Medicare. See Compl.,
ECF No. 1 at 2; R&R, ECF No. 122 at 2-3. Ms. Fleming asserts
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that defendants failed to release records within the scope of her
FOIA request, and requests that the Court require production of
the records; enter a declaratory judgment against all defendants
for violating FOIA, obstructing justice, denying her access to
the courts, violating her due-process rights, and falsely
imprisoning her; and award her compensatory and punitive
damages. See Compl., ECF No. 1 at 4. Ms. Fleming initially filed
her suit in the District of Minnesota, which dismissed her due-
process and false-imprisonment claims pursuant to Heck v.
Humphrey, 512 U.S. 477 (1994). See R&R, ECF No. 15 at 3-4. The
case was then transferred to this district. Notice of Transfer,
ECF No. 56. Thereafter, this Court dismissed a bevy of Ms.
Fleming’s motions in its Memorandum Opinion dated June 6, 2018.
Mem. Op., ECF No. 152. Relevant to this motion, the Court
dismissed Ms. Fleming’s motion for partial summary judgment in
which she brought claims for fraud against the government. Id.
at 2–3. The sole claim remaining before this Court is her FOIA
Claim.
In her request for permission to file her motion for
relief, Ms. Fleming requests that the Court vacate two previous
judgments. The first is a judgment for civil forfeiture. United
States v. $670,706.55, No. 4:05-cv-00718 (S.D. Tex. Feb. 24,
2009), aff’d, 367 F. App’x 532 (5th Cir. 2010). See Pl.’s Mot.
for Relief, ECF No. 136 at 1. The second was her criminal
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conviction. United States v. Fleming, No. 4:07-cr-513-1 (S.D.
Tex. filed Dec. 13, 2007), aff’d, United States v. Arthur, 432
F. App’x 414 (5th Cir. 2011). Id. Ms. Fleming’s civil forfeiture
arose out of her conviction for health care fraud as the
government sought to seize the proceeds that were traceable to
that fraud. Fleming, 367 F. App’x at 533. She alleges both
judgments were fraudulently obtained by the government. See
Pl.’s Mot. for Relief, ECF No. 136 at 1–3.
The R&R recommends that the Court deny Ms. Fleming
permission to file the motion. The R&R found that Ms. Fleming’s
arguments supporting her motion to vacate the two judgments are
“nearly identical to those she raised in her previous motion for
partial summary judgment, which were rejected by [Magistrate
Judge Harvey] in the [November 2017 R&R], which was adopted by
[this Court]. R&R, ECF No. 162 at 4 (citing Mem. Op., ECF No.
152). Further, the R&R noted that “the District of Minnesota has
already dismissed all of Plaintiff’s Bivens claims based on
alleged attorney misconduct in connection with Plaintiff’s
criminal case as barred by Heck v. Humphrey.” Id. (citing Rep.
and Recommendation, ECF No. 15 at 3–4; Heck v. Humphrey, 512
U.S. 477, 486−87 (1994)). Therefore, the R&R recommends that the
Court deny permission to file the motion, which seeks to raise
claims previously rejected by this Court, as barred by the law
of the case doctrine. Id. at 5.
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Ms. Fleming timely filed her objections to the R&R, and
this motion is ripe for adjudication. Pl.’s Obj., ECF No. 165.
II. Legal Standard
Pursuant to Federal Rule of Civil Procedure 72(b), once a
magistrate judge has entered a recommended disposition, a party
may file specific written objections. The district court “must
determine de novo any part of the magistrate judge’s disposition
that has been properly objected to,” and “may accept, reject or
modify the recommended disposition.” Fed. R. Civ. P. 72(b)(3).
Proper objections “shall specifically identify the portions of
the proposed findings and recommendations to which objection is
made and the basis for objection.” Local Civ. R. 72.3(b). “As
numerous courts have held, objections which merely rehash an
argument presented to and considered by the magistrate judge are
not ‘properly objected to’ and are therefore not entitled to de
novo review.” Shurtleff v. U.S. Envtl. Prot. Agency, 991 F.
Supp. 2d 1, 8 (D.D.C. 2013).
III. Analysis
In her motion, Ms. Fleming argued that defendants committed
fraud on both the court that presided over her criminal case and
this Court. See Pl.’s Mot. for Relief, ECF No. 136 at 1. In the
R&R, Magistrate Judge Harvey rejected her claim on the grounds
that her allegations regarding fraud on the court in her
criminal case were barred under the law-of-the-case doctrine.
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Ms. Fleming disagrees.
“[T]he law-of-the-case doctrine [provides that] the same
issue presented a second time in the same case in the same court
should lead to the same result.” LaShawn A. v. Barry, 87 F.3d
1389, 1393 (D.C. Cir. 1996); see id. (noting that
“[i]nconsistency is the antithesis of the rule of law” and that
“[f]or judges, the most basic principle of jurisprudence is that
we must act alike in all cases of like nature” (internal
quotation marks omitted)). The doctrine is applicable to
“questions decided ‘explicitly or by necessary implication.’”
Id. at 1394 (citation omitted). Indeed, “the law of the case
[doctrine] turns on whether a court previously ‘decide[d] upon a
rule of law’ . . . [,] not on whether, or how well, it explained
the decision.” Christianson v. Colt Indus. Operating Corp., 486
U.S. 800, 817 (1988).
These principles also apply to rulings of coordinate courts
on matters before a current Court. “A decision of a court of
coordinate status is entitled to be considered ‘law of the
case.’” Hill v. Henderson, 195 F.3d 671, 678 (D.C. Cir.
1999)(quoting Christianson, 486 U.S. at 817 (1988)). “Once a
prior decision has become the law of the case, it should not be
disturbed by a court of coordinate jurisdiction.” U.S. ex rel.
Pogue v. Diabetes Treatment Centers of America, Inc., 238 F.
Supp. 2d 258, 262 (D.D.C. 2002) (internal quotation marks and
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citation omitted). This “promotes the finality and efficiency of
the judicial process by protecting against the agitation of
settled issues.” Christianson, 486 U.S. 816 (internal quotation
marks and citation omitted). Accordingly, reconsideration of the
law of the case is only appropriate where there are “exceptional
circumstances” or where it is necessary to prevent a “grave
injustice.” U.S. ex rel. Pogue, 238 F. Supp. 2d at 262. Here,
the District of Minnesota dismissed Ms. Fleming’s Bivens claims
based on prosecutorial misconduct in her criminal case prior to
transferring the case to this district. R&R, ECF No. 122 at 20.
Ms. Fleming argues that the law of the case doctrine does
not apply to this case because the Court’s decision was
interlocutory and because there is no final judgment in this
case, and therefore her Rule 60 claims are not barred. However,
her judgments in the cases she asks this Court to overturn, the
judgment of civil forfeiture and criminal conviction, are indeed
final judgments. See infra at 3-4. In any event, even if the
judgments were not final, the decision to revisit a prior ruling
is discretionary. See Moses H. Cone Mem'l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 12 (1983)(“every order short of a
final decree is subject to reopening at the discretion of the
district judge.”). And as this Court stated in its prior
opinion, Ms. Fleming has provided “no compelling reason to
disturb the District of Minnesota’s findings here.” Mem. Op.,
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ECF No. 152 at 6.
Ms. Fleming also argues that the Court has never considered
her evidence supporting fraud in this Court. Pl.’s Obj., ECF No.
165 at 2. However, the Court's prior ruling in this case clearly
explained that the evidence supporting her argument for fraud on
the Court was insufficient to save her claims. Mem. Op., ECF No.
152 at 7. The Court was clear that it considered the evidence
cited in Ms. Fleming’s motion, and that evidence was not enough
to show by “clear evidence that a fraud was perpetrated on this
Court.” Id. (citing Pl.’s Mot. for Relief, ECF No. 136 at 1).
Ms. Fleming’s arguments are the same as those she presented in
her motion for partial summary judgment. The law of the case
applies. The Court therefore adopts the R&R’s recommendation to
deny Ms. Fleming permission to file a motion for relief from two
judgments. See R&R, ECF No. 162.
IV. Conclusion and Order
For the foregoing reasons, it is hereby ORDERED that Ms.
Fleming’s request to file a motion for relief from two judgments
pursuant to Rule 60(d)(3) and the All Writs Act is DENIED.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
June 13, 2019
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