Ruckh v. CMC II, LLC et al

Filing 456

ORDER denying #453--the United States' motion to submit a "statement of interest." Signed by Judge Steven D. Merryday on 4/26/2017. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA
AND STATE OF FLORIDA
ex rel. ANGELA RUCKH,
Plaintiffs,
v.

CASE NO. 8:11-cv-1303-T-23TBM

SALUS REHABILITATION, et al.,
Defendants.
____________________________________/
ORDER
Nearly six years ago, the relator sued the defendants in this False Claims Act
qui tam action. After twice moving successfully to extend the time within which to
intervene and after solemnly deliberating for nine months, the United States deferred
to the relator — represented by counsel expert in qui tam litigation — to conduct the
action in the United States’ behalf. (Doc. 10) Through years of discovery and a
six-week trial, the United States attended other matters. The relator won
$347,864,285. Attempting to overturn that result, the defendants move for judgment
as a matter of law, and in a thorough response the relator opposes the motion.
Despite the relator’s spectacular result, the United States moves (Doc. 453) for
leave to submit a “statement of interest” and cites 28 U.S.C. § 517, which provides:
The Solicitor General, or any officer of the Department of Justice, may
be sent by the Attorney General to any State or district in the United
States to attend to the interests of the United States in a suit pending in

a court of the United States, or in a court of a State, or to attend to any
other interest of the United States.

1. Section 517 provides no right to submit a “statement of interest.”
Title 28, Part II (in which Section 517 resides), organizes the Department of
Justice. Section 517 says nothing about a “statement of interest” — in a district
court, in a qui tam action, or otherwise — but permits the Attorney General to
dispatch the forces of the Solicitor General or another attorney at the Department of
Justice to any federal or state court to attend to an “interest of the United States.”
One of several provisions in Chapter 31 that authorize the Attorney General to
deploy a subordinate in place of the Attorney General, Section 517 contributes to the
supervised exercise of delegated responsibility. Nothing about Section 517 supports
an intent to create in the Solicitor General the right to appear and submit argument in
any case in which the United States articulates a generic interest in the
“development” and the “correct application” of the law.
The United States assumes that Congress obliquely provided in Section 517 the
special opportunity to submit a “statement of interest.” But throughout Title 28, for
example, in Chapter 161, Congress unambiguously identifies the circumstances in
which the United States can participate in an action. Within Chapter 161, 28 U.S.C.
§ 2403(a) empowers the United States to intervene in any federal-court action that
questions the constitutionality of an “Act of Congress affecting the public interest.”
The clarity with which Congress establishes elsewhere the right to participate in an
action belies the assumption that Congress conceals in an organizational chapter the

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purported right to submit a “statement of interest” and to intervene-in-fact without
formally intervening in accord with the False Claims Act.
2. The United States identifies no interest inadequately protected by the relator.
Even if Section 517 permits a “statement of interest” in some unspecified
circumstance in an effort to preserve some inadequately protected interest, the United
States fails to identify an interest inadequately protected by the relator. First, the
United States asserts a “specific interest in . . . the development of law applicable to
complex FCA cases” (Doc. 453 at 3), an interest manifest in this action (and every
other qui tam action) from the outset. The United States presumedly maintains an
enlivened interest in the development of all federal law, and little, if anything,
distinguishes this action from all the others, except the prospect of the lion’s share of
$350 million. Understanding a party’s interest in money requires no additional
briefing. Second, the United States asserts a “keen interest” in the “correct”
application of the False Claims Act. But the United States proffers no explanation
why the relator’s counsel, who successfully represented the relator in United Health
Services., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016), cannot adequately
interpret Escobar. And the United States’ involvement in Escobar suggests, and the
United States identifies, no unique insight into the correct interpretation and
application of the False Claims Act. In Escobar, the United States urged affirming the
lower court’s decision; Escobar unanimously vacates the lower court’s decision.
Although in this instance the United States’ proposed “statement of interest”
appears calculated to duplicate the relator’s argument about the interpretation of
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Escobar, in another circumstance the United States’ participation might have offered a
distinct perspective. For example, the defendants moved (Doc. 447) to stay
execution, which threatened to “jolt the nursing market and [] jeopardize the health
of several thousand vulnerable patients.” (Doc. 451 at 2) Arguing that the “public
interest” favored a stay of execution, the defendants explained that denying the stay
might unnecessarily disrupt the operation of more than a hundred skilled-nursing
facilities. (Doc. 447 at 10) As the public’s representative, the United States might
have explained whether and why the “public” favored or opposed the defendants’
motion. Instead, the United States declined to consent to the defendants’ motion for
a stay but sought no opportunity to submit a brief. (Doc. 447 at 10)
3. The False Claims Act specifies the circumstances in which the United States can
participate in a qui tam action.
Even if Section 517 authorizes a “statement of interest” and even if the United
States identifies an interest inadequately represented by the relator, Section 517
appears inapplicable in an action under the False Claims Act. Because the United
States declined to intervene, Section 3730(c)(3) of the False Claims Act specifically
limits the United States’ participation to receiving a pleading and a transcript of a
deposition. See Nguyen v. United States, 556 F.3d 1244, 1253 (11th Cir. 2009) (“[A]
specific statutory provision trumps a general one.”); see also United States v.
Whyte, --- F.Supp.3d --- , 2017 WL 377949 at *4 (W.D. W. Va. Jan. 26, 2017)
(Kiser, J.) (“[I]f the government elects not to intervene . . . it is entitled to receive
pleadings and deposition transcripts, but no more.”). The United States’ invoking
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Section 517 to proffer argument about the interpretation of the False Claims Act
impermissibly circumvents the narrow role prescribed in Section 3730(c)(3).
CONCLUSION
Five years and one day after declining to intervene and deferring to the relator,
the United States requests leave to submit a “statement of interest” — a euphemism
for an advocate’s brief. But Section 517, an organizational statute, says nothing
about a judge’s receiving a post-judgment “statement of interest.” Even if
Section 517 establishes some opportunity to submit a “statement of interest,” the
United States can identify no interest inadequately represented by the relator. If the
United States decides that the relator inadequately represents the United States’
interest, under Section 3730(c)(3) the United States can move at any time to intervene
and to conduct the litigation. But absent intervention, the United States cannot
gratuitously compound the post-judgment argument by belatedly “weighing in” on
behalf of the relator (and the $350 million). The motion (Doc. 453) for leave to
submit a “statement of interest” is DENIED.
ORDERED in Tampa, Florida, on April 26, 2017.

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