United States of America et al v. Planned Parenthood Federation of America Inc et al
Filing
121
MEMORANDUM OPINION & ORDER denying 82 MOTION for Reconsideration re 71 Memorandum Opinion and Order, Or, In the Alternative, Certification for Interlocutory Appeal, filed by Planned Parenthood Gulf Coast Inc, Planned Parenthood San Antonio Inc, Planned Parenthood South Texas Inc, Planned Parenthood Cameron County Inc, Planned Parenthood of Greater Texas Inc, Planned Parenthood Federation of America Inc. (Ordered by Judge Matthew J. Kacsmaryk on 7/13/2022) (nht)
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
UNITED ST ATES OF AMERICA, et al.,
Plaintiffs,
V.
PLANNED PARENTHOOD FEDERATION
OF AMERICA, INC., et al.,
Defendants.
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2:2 l-CV-022-Z
MEMORANDUM OPINION & ORDER
Before the Court is Defendants' 1 Motion for Reconsideration, or, in the Alternative,
Certification for Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) ("Motion") (ECF No. 82),
filed on May 24, 2022. Having considered the parties' briefing and relevant law, the Court finds
Defendants' Motion should be and hereby is DENIED.
BACKGROUND
The Court's earlier Order describes the facts and circumstances leading to this lawsuit and
the reasons for granting in part and denying in part Defendants' Motions to Dismiss Relator Alex
Doe's and the State of Texas's ("Plaintiffs" collectively) Complaints. See generally ECF No. 71.
Rather than reiterate the history of this case and the Court's reasoning, the Court will include only
the information necessary to rule on the instant Motion.
Relator filed the instant qui tam action against Defendants, seeking civil penalties and
treble damages under the False Claims Act ("FCA"), the Texas Medicaid Fraud Prevention
1
Defendants are Planned Parenthood Federation of America, Inc., Planned Parenthood Gulf Coast, Inc., Planned
Parenthood of Greater Texas, Inc., Planned Parenthood of South Texas, Inc., Planned Parenthood of Cameron County,
Inc., and Planned Parenthood of San Antonio, Inc. The Court will refer to all Planned Parenthood entities as
"Defendants" collectively.
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Act ("TMFPA"), and the Louisiana Medical Assistance Programs Integrity Law ("LMAPIL") on
behalf of the United States, Texas, and Louisiana. See generally ECF No. 2. Texas elected to
intervene in the suit, the United States declined to intervene, and Louisiana neither elected nor
declined to intervene. See generally ECF Nos. 16, 18. On February 14, 2022, Defendants moved
to dismiss Plaintiffs' Complaints for improper service of process and on a variety of grounds. See
generally ECF Nos. 44, 46, 48, 50. Parties informed the Court service was properly affected and,
therefore, the Court denied the Motions to Dismiss on that ground. ECF No. 69.
The Court then considered the Parties' written arguments, concluding Defendants' Motions
to Dismiss must be granted in part and denied in part. See generally ECF No. 71. The Court
dismissed Relator's federal conspiracy to commit health-care fraud claim and denied dismissal of
Plaintiffs' remaining claims. Id. In particular, the Court found the following:
1. Plaintiffs' Complaints comply with Federal Rule of Civil Procedure 12(b )(6). Relator
plausibly pleads the elements of a "reverse false claim" under the FCA, TMFP A, and
LMAPIL, and Texas plausibly pleads the elements of a "reverse" TMFP A violation.
Id. at4-16.
2. Plaintiffs' Complaints comply with Federal Rule of Civil Procedure 9(b), as Plaintiffs
plausibly plead fraud with particularity. Id. at 17-23.
3. The FCA' s, TMFP A's, and LMAPIL' s "public disclosure bars" do not prohibit Counts
I-IV of Relator's Complaint because Relator's Complaint is not based on publicly
disclosed information and Relator qualifies as an "original source." Id. at 23-29.
4. Judicial estoppel does not bar Texas's "reverse false claim." Id. at 29-32.
5. TMFPA's "government-action bar" does not require dismissal of Plaintiffs' claims
under Texas law. Id. at 33-34.
ANALYSIS
Defendants now ask the Court to reconsider on three grounds. See generally ECF No. 82.
Defendants assert: (1) "Defendants' alleged obligation to repay was contingent on future events,
Simoneau.,--c controls and mandates dismissal of Plaintiffs' reverse FCA and TMFPA claims"; (2)
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" [t]he Court should reconsider its ruling on scienter and dismiss Plaintiffs' reverse FCA/TMFPA
claims for failure to plead that essential element"; and (3) "the Court should reconsider its decision
as to the public disclosure bar" as the Court ' s decision "mistakenly relies on an incorrect legal
standard contrary to Fifth Circuit precedent," and because "Relator has pled no details regarding
his alleged disclosures to the government" to qualify as an "original source." ECF No. 83 at 7-10.
In response, Plaintiffs note "Defendants' Motion contains no new facts, evidence, or argument
demonstrating that the Court's ruling denying Defendants' Motions to Dismiss was erroneous."
ECF No. 95 at 6. Alternatively, Defendants request the Court certify four questions for
interlocutory appeal under 28 U.S .C. § 1292(b). ECF No . 83 at 25 . The Court has received
Defendants' Reply -
ECF No. 110 -
and the Motion is ripe for the Court' s decision.
A. District Courts Grant Motions to Reconsider in Limited Circumstances
The Federal Rules of Civil Procedure do not officially provide for a motion for
reconsideration. Shepherd v. Int 'I Paper Co., 372 F.3d 326, 328 n.1 (5th Cir. 2004). A request to
reconsider an interlocutory order has been construed to fall under Federal Rule of Civil
Procedure 54(b). Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 n.92 (5th
Cir. 1990), abrogated on other grounds by Little v. Liquid Air Corp., 3 7 F.3d 1069, 1075 n.14 (5th
Cir. 1994) (en bane). Rule 54(b) states: "any order or other decision, however designated, that
adjudicates fewer than all the claims or rights and liabilities of fewer than all the parties .. . may
be revised at any time before the entry of a judgment adjudicating all the claims."
"Although the precise standard for evaluating a motion to reconsider under Rule 54(b) is
unclear, whether to grant such a motion rests within the discretion of the court." Dos Santos v. Bell
Helicopter Textron, Inc., 651 F. Supp. 2d 550, 553 (N.D. Tex. 2009). " [C]onsiderations similar to
those under Rule 59 and 60 inform the Court' s analysis." Id. The Fifth Circuit has held Rule 54(b)
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is "less stringent" and "more flexible" than Rule 59 (e). Austin v. Kroger Tex., L.P., 864 F.3d 326,
336-37 (5th Cir. 2017) (citing Cobell v. Jewell, 802 F.3d 12, 25-26 (D.C. Cir. 2015)). "For the
Courts to [grant a motion to reconsider], a movant must demonstrate that the motion is necessary
to (1) correct manifest errors of law or fact upon which the judgment is based; (2) allow for
consideration of newly discovered or previously unavailable evidence; (3) prevent a manifest
injustice, such as that arising from serious misconduct by counsel; or (4) address an intervening
change in controlling law." Planned Parenthood of Greater Tex. Surgical Health Servs. v. City of
Lubbock, Tex., No. 5-21-CV-l 14, 2021 WL 4775135, at* 2 (N.D. Tex. 2021). A manifest error is
an "error that is plain and indisputable, and that amounts to a complete disregard of the controlling
law." Id. (internal marks omitted).
However, "the mere fact that that Rule 54(b) provides for a more flexible approach to
reviewing motions for reconsideration does not mean that such motions should automatically be
granted." Halprin v. Fed. Deposit Ins. Corp., Civ. A. No. 5:13-CV-1042, 2017 WL 9808438, at
*2 (W.D. Tex. Oct. 17, 2017). "[A] district court's broad discretion under [R]ule 54(b) must be
exercised sparingly in order to forestall the perpetual reexamination of orders and the resulting
burdens and delays." Turk v. Pershing LLC, Civ. A. No. 3:09-CV-2199-N, 2019 WL 13074701,
at *1 (N.D. Tex. Aug. 1, 2019). A motion to reconsider may not be used to relitigate old matters
or to present evidence or arguments that should have been offered before judgment was entered.
11 C. Wright, A. Miller, & M. Kane, FEDERAL PRACTICE AND PROCEDURE § 2810.1. 157-62 (3d
ed. 2012).
B. Defendants Fail to Demonstrate a Manifest Error of Law or Fact
Defendants seek reconsideration on three "discrete issues" which the Court will address in
tum. ECF No. 83 at 7. For each of these issues, Defendants argue the Court misapplied relevant
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law and precedent. See id. at 7-10. Nowhere do Defendants argue the Court should reconsider its
previous Order based on newly discovered or unavailable evidence, to prevent a manifest injustice,
or because of some intervening change in controlling law. And the Court agrees these three
circumstances are not prevalent here . Therefore, the Court will only grant the Motion to correct a
manifest error of law or fact in its previous Order. In short, because the Court finds that it did not
manifestly err in its previous Order, the Court DENIES Defendants' Motion to Reconsider.
1. The Court will not reconsider its determination that Plaintiffs adequately pied the
existence of a repayment obligation.
Defendants first request the Court reconsider its determination Plaintiffs adequately alleged
the existence of a repayment obligation. ECF No . 83 at 12-16. Defendants aver the Court made
several mistakes in making this finding. First, Defendants argue the Court incorrectly reasoned
Plaintiffs sufficiently alleged Defendants are liable for the Medicaid funds received under a latervacated injunction. They contend the Court improperly relied on the principle that "a party against
whom an erroneous judgment or decree has been carried into effect is entitled, in the event of a
reversal, to be restored by his adversary to that which he has lost thereby." Arkadelphia Milling
Co. v. St. Louis Sw. Ry. Co., 249 U.S. 134, 145 (1919). Specifically, Defendants argue no court based on this principle -
"has held that the vacatur of an injunction automatically triggers
repayment." ECF No. 83 at 12. Because neither Texas nor Louisiana took "affirmative steps" nor
" initiated recoupment proceedings," Defendants state they "were under no obligation to repay the
Medicaid funds they received under the injunctions." Id. at 13-14.
The Court will not reconsider its earlier Order on these points because a Rule 54(b) motion
is not the instrument to "relitigate issues that were resolved to the movant' s dissatisfaction." See
Forsythe v. Saudi Arabian Airlines Corp. , 885 F.2d 285 , 289 (5th Cir. 1989). As pointed out by
Plaintiffs, the Court already considered these arguments and was well briefed on the applicable
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case law by all parties. Compare ECF No. 83 at 12-16, with ECF No . 65 at 9; also compare ECF
No. 83 at 12-16, with ECF No. 49 at 31, andECF No. 51 at 23, andECF No. 65 at 7, 13, 15, and
ECF No. 66 at 8, 10. Furthermore, Plaintiffs were only required to plausibly plead the existence
of an obligation at the motion-to-dismiss stage, and Plaintiffs easily satisfied that burden here.
Also, Defendants already argued -
and the Court considered -
whether Texas was
required to initiate an administrative recoupment action before filing suit. Defendants rely heavily
on the rule in US ex rel. Simoneaux v. E.I. duPont de Nemours & Co., holding that an obligation
to repay arises only where there is an "established" duty. 843 F.3d 1033 , 1036-40 (5th Cir. 2016).
But the Fifth Circuit also recognized "the fact that further governmental action is required to collect
a fine or penalty does not, standing alone, mean that a duty is not established." Id. at 1040. And as
the Court previously found, Relator plausibly pied the existence of an obligation in their allegation
of a reverse false claim. ECF No. 71 at 6-9. Specifically, Relator plausibly pled that Defendant's
obligation arose under the Affordable Care Act's ("ACA") 60-Day Rule. Id. at 6-7.
Though never raised in their Reply, Defendants now aver the ACA' s "60-Day Rule" does
not apply in this situation to create a repayment obligation, citing a Centers for Medicare and
Medicaid Services ("CMS") response to public comments made concerning the proposed 60-Day
Rule. See ECF No. 83 at 14-16. This new argument is irrelevant. Defendants selectively extract
from the relevant CMS response. Yes, CMS "agree[d] that payments that were proper at the time
payment was made do not become overpayments at a later time." 81 Fed. Reg . 7654, 7658 (2016).
However, CMS also noted "[p ]roviders and suppliers should analyze the facts and circumstances
present in their situation to determine whether an overpayment exists." Id. Ultimately, the Court
agrees with Plaintiffs: "this comment and response illustrate that while changes in coverage
decisions may not retroactively render a payment an overpayment, overpayments are identified by
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the facts and circumstances present in providers' and suppliers' specific situations." ECF No. 95
at 14. Defendants' arguments do not warrant reconsideration.
2. The Court will not reconsider its determination that Plaintiffs adequately pied
scienter for their reverse FCA and TMFP A claims.
Defendants next ask the Court to reconsider its determination that Plaintiffs adequately
alleged scienter for their reverse FCA and TMFP A claims. ECF No. 83 at 16. They state, "the
Court did not consider whether the government's knowledge of, and failure to take any action to
recover, the alleged overpayments defeats scienter under the reverse false claim provisions of the
FCA and TMFPA." Id. Defendants argue that such circumstances prevented Plaintiffs from
pleading an improper avoidance of an obligation to pay money to the government as required under
the FCA and TMFPA. See 31
U.S.C.
§ 3729(a)(l)(G); see also TEX.
HUM.
R.Es .
CODE§ 36.002(12).
Defendants rely heavily on the legislative history of the FCA in arguing the meaning of the
term "improperly" since the statute does not provide a definition. ECF No. 83 at 11-12. Of
relevance are the statements of Senator Jon Ky! and the Senate Report that accompanied the
passage of the FCA. Senator Kyl explained that the statute was meant to punish persons who acted
with "improper motives" or "inherently improper means." 155 Cong. Rec. S453 l-O l at 4540.
"Improper means" -
according to Senator Ky! -
means conduct that is "inherently wrongful and
constitute[s] an independent tort." Id. Based on this understanding, Defendants argue Plaintiffs
could not plead the requisite "improperly" requirement, as "[b ]oth Louisiana and Texas knowingly
made payments to Affiliate Defendants under the injunctions and were obviously aware of the
Fifth Circuit's November 2020 decision that Plaintiffs allege created the repayment obligation."
ECF No. 83 at 19. Therefore -
Defendants argue -
Plaintiffs do not allege any improper action
by Defendants to avoid a repayment obligation. Id.; see also ANTONIN SCALIA & BRYAN A.
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CiAR:--Jrn. READING LAW: THE INTERPRETATION
OF
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LEGAL TEXTS 383 (2012) ("[W]e are governed
not by unexpressed or inadequately expressed 'legislative goals' but by the lcrw.'').
This argument is well briefed, but ultimately unresponsive. First, the Court hesitates to rely
on the legislative statements cited by Defendants ... [l]nquiries into legislative motives arc a
hazardous matter. .. Dohhs r. Jackson Women's !Iea/th Org. No. 19-1392, 597 U.S.
. 2022
WL 2276808, at * 18 (2022) (internal marks omitted). This Court joins other courts in their
reluctance to attribute the statements of a legislator to the whole legislative body because ··[w ]hat
motivates one legislator to make a speech about a statute is not necessarily what motivates scores
of others to enact it." Id.
Second, Defendants again rehash arguments already considered -
and rejected -
when
the Court adjudicated their Motions to Dismiss. Compare ECF No. 83 at 17-19, with ECF No. 65
at 17-19. And based on the applicable law and facts, the Court is convinced Plaintiffs adequately
pied Defendants "knowingly and improperly'" avoided a repayment obligation. Plaintiff'> pied
Defendants knew by February 1, 2017, their provider terminations were effective, and were
therefore not entitled to retain reimbursements for services provided on or after that date. ECF No.
2 at 5-6. 36-37, 39-40. Plaintiffs also pied Defendants improperly avoided the obligation to repay
the government by failing to return reimbursements for those services within the statutory 60-day
period. Id at 36-37.
In their reply, Defendants assert .. the Court did not address this issue when Defendants
raised it in their initial briefing ... ECF 110 at 8. Far from it. The Court acknowledged "Relator also
alleges Defendants knew they improperly received Medicaid overpayments." ECF No. 71 at 9-10
(emphasis added). The Court then listed eight instances in Relator"s complaint forming the
bulwark of Relator"s ''improperly .. allegation. Id at l 0. As with Defendants· first request, the
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Court will not permit Defendants to relitigate an issue which was resolved to their dissatisfaction
at the motion-to-dismiss-stage.
3. The Court will not reconsider its rulings on the Public Disclosure Bar.
In its Order, the Court determined (1) the Public Disclosure Bar does not apply; and
(2) even if it did apply, Relator qualifies as an "original source." Defendants now ask the Court to
reconsider those determinations. The Court stands by its original findings.
a. Application of Public Disclosure Bar.
Defendants make two arguments why the Court should reconsider its determination that
the Public Disclosure Bar does not apply. First, citing US ex rel. Solomon v. Lockheed Martin
Corp., 878 F.3d 139 (5th Cir. 2017), Defendants argue it was already publicly disclosed
Defendants submitted claims for payment under Medicaid, and Defendants' alleged violation of
state and federal laws rendered them unqualified to bill for Medicaid services in Texas and
Louisiana. ECF No. 83 at 15-16. But the Court already determined- after thorough examination
of the Complaint and the motion-to-dismiss briefing-the "public disclosures cited by Defendants
do not detail any false certifications made by Defendants." ECF No. 71 at 14. Furthermore, the
Court agrees with Plaintiffs that Solomon supports the Court's earlier determination, as "before
Relator filed the complaint, there was no prior public disclosure of a 'misrepresented state of facts'
and a 'true state of facts' that would give rise to an inference of fraud under the FCA." ECF No.
95 at 19 (citing Solomon, 878 F.3d at 144-45).
Second, Defendants aver their "retention of Medicaid funds after the Fifth Circuit's
November 2020 en bane decision ... was publicly disclosed" by a Texas state court temporary
restraining order ("TRO") enjoining the State of Texas from terminating Affiliate Defendants from
Medicaid. ECF No. 83 at 22. Yet, this argument fares no better than Defendants' arguments that
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the Texas and Louisiana termination letters and the en bane Fifth Circuit opinion from November
2020 also publicly disclosed Defendants' retention of overpayments. As with those alleged
disclosures, the TRO does not "form[] the basis of Relator's reverse false claim." ECF No. 71
at 14. Instead, Relator' s theory is based on " Defendants ' alleged obligation to repay Medicaid
funds received under the preliminary injunction and improper avoidance of that obligation." Id.
Again, the Court will not reconsider its prior Order based on rehashed arguments presented and
rejected at the motion-to-dismiss stage.
b. The Original Source Exception.
Defendants ' only argument regarding reconsideration of the application of the "original
source" exception is the Court did not hold Relator to the high bar established by US. ex rel. King
v. SolvayPharms. , Inc. , 871 F.3d 318, 326-27 (5th Cir. 2017). Specifically, Defendants assert
Relator failed to suggest an FCA violation because Relator did not "plead any details about the
information he allegedly disclosed to the federal government." ECF No. 83 at 23-24. Therefore
-
Defendants argue -
Relator's complaint failed to materially add to any information already in
the public domain. Id. at 25 .
Defendants again raise the same argument made in their Motions to Dismiss. And, again,
the Court rejects the argument because "Relator's investigation put the federal and state
governments 'on the trail' of Defendants ' allegedly fraudulent conduct. " ECF No. 71 at 29.
Defendants have brought forward no new facts or law concerning the "original source" exception,
and the Court will not reconsider its earlier decision.
C. The Court Will Not Certify Any Matter for Interlocutory Appeal
Alternatively, Defendants ask the court to certify four questions for interlocutory appeal
pursuant to 28 U.S .C. § 1292(b). See ECF No. 83 at 25 . A district court may certify an order for
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interlocutory appeal when the order: (1) involves a controlling question of law; (2) "as to which
there is a substantial ground for difference of opinion"; and (3) that immediate appeal "may
materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). Interlocutory
appeals are disfavored. Thibodeaux v. Vamos Oil & Gas Co., 487 F.3d 288, 292 (5th Cir. 2007).
An interlocutory appeal "is not a vehicle to question the correctness of a district court's ruling or
to obtain a second, more favorable opinion." Ryan v. Flowserve Corp., No. 3:03-CV-1769-B, 444
F. Supp. 2d 718, 722 (N.D. Tex. 2006) (internal marks omitted). Here, Defendants' questions do
not meet all the requirements set under 28 U.S.C. 1292(b). Therefore, the Court will not certify
them for interlocutory appeal.
1. Defendants' first, third, and fourth questions do not present a "controlling
question of law."
A "controlling question of law" "at the very least means a question of law the resolution
of which could materially advance the ultimate termination of the litigation- thereby saving time
and expense for the court and the litigants." Flowserve, 444 F. Supp. 2d at 723. A question of law
is "controlling" when the "reversal of the district court's opinion would result in dismissal of the
action" or "the certified issue has precedential value for a large number of cases." Id. But the
determination of such a question "should not require the appeals court to go hunting through the
record to see whether a genuine issue of material fact may be lurking there." Id. at 722 (internal
marks omitted).
Defendants' first question does not amount to a "controlling question of law." Noted in
Plaintiffs' Response, Defendants' first question focuses solely on the effect of an injunction in a
Medicaid provider's obligation to return an overpayment. ECF No . 95 at 25 . Fixated on the effect
of the cited injunctions, Defendants fail to consider how "Plaintiffs' causes of action rely on the
interplay between several sources that give rise" to Defendants' alleged obligation, including the
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Texas Medicaid Provider Agreement, the Texas Medicaid Provider Manual, various Texas laws,
and the cited injunctions. Id. Resolving the first question would only resolve a small portion of the
various program requirements at issue here. Therefore, certification of question one would not
materially advance the ultimate termination of the litigation -
and thus it is not a "controlling
question of law. "
Defendants ' third and fourth questions fare no better. The Court agrees with Plaintiffs:
resolution of these questions would require an in-depth, fact-intensive inquiry by the appeals court.
An inquiry of this sort would "require the appeals court to go hunting through the record," at least
of every alleged disclosure. Flowserve, 444 F. Supp. 2d at 722. Therefore, Defendant's third and
fourth questions are not "controlling questions of law."
2. Defendants' first and second questions are not questions as to which there is a
substantial difference of opinion.
Courts have found "substantial ground for difference of opinion" where:
a trial court rules in a manner which appears contrary to the rulings of all Courts of
Appeals which have reach the issue, if the circuits are in dispute on the question
and the Court of Appeals of the circuit has not spoken on the point, if complicated
questions arise under foreign law, or if novel and difficult questions of first
impression are presented.
Id. at 724 (citing 4 AM. JuR. 2d Appellate Review § 128 (2005)). "But simply because a court is
first to rule on a question or counsel disagrees on applicable precedent does not qualify the issue
as one over which there is substantial disagreement. " Id. at 724. Substantial disagreement does not
arise from a party's claim the district court ruled incorrectly. Id.
There is no "substantial ground for difference of opinion" as to Defendants' first question.
Defendants argue they "are aware of no court ever to hold that the vacatur of an injunction
automatically triggers a repayment obligation or . .. that it retroactively converts funds lawfully
received under an injunction into overpayments for purposes of the ACA's 60-Day Rule. "
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ECF No. 83 at 26 (internal marks omitted). Again though, simply because a court is first to rule
on a question does not mean there exists "substantial ground for difference of opinion."
As for the second question: it can't be a question as to which there is a substantial difference
of opinion because the Texas Supreme Court has foreclosed the issue. Defendants' second question
asks:
Whether a plaintiff can plausibly plead that an overpayment was 'knowing and
improperly' retained under the reverse false claim provisions of the False Claims
Act and the Texas Medicaid Fraud and Prevention Act where the government is on
notice of the alleged overpayment and takes no action.
ECF No. 83 at 25. Yet the Supreme Court of Texas has previously held the States' conduct is
irrelevant to a finding of liability under TMFPA. See Nazari v. State, 561 S.W.3d 495,507 (Tex.
2018). And the same court has also held "TMFPA adopts no other fault-mitigation mechanism,"
which Plaintiffs argue includes "shifting blame onto the State." In re Xerox Corp., 555 S.W.3d
518, 536 (Tex. 2018) (orig. proceeding); ECF No. 95 at 27. Because this issue is settled under
Texas law, there is "no substantial ground for difference of opinion."
3. Immediate appeal would not materially advance the ultimate termination of this
litigation.
The "materially advance" requirement of Section 1292(b) seeks to avoid protracted and
expensive litigation. LaFarge v. Kyker, No. 1:08-CV-185-SA-JAD, 2009 WL 4110887, at *l
(N.D. Miss. Nov. 2009). The Court's concern is whether interlocutory appeal will speed up the
litigation. Flowserve, 444 F. Supp. 2d at 723. The Court finds interlocutory appeal in this instance
will do the opposite.
Defendants argue "immediate appeal would materially advance the ultimate termination of
the litigation because it would result in the dismissal of some or all claims." ECF No. 83 at 27. But
this dispute is already on its way to speedy resolution. Dispositive motions are to be filed by
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December 27, 2022 - a date only six months away- and trial scheduled another four months on
for April 24, 2023. 2 Interlocutory appeal here would only delay resolution of this case. Following
final judgment in this case, any party can seek appellate review.
CONCLUSION
For the reasons stated above, Defendant's Motion for Reconsideration, or, in the
Alternative, Certification for Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) is DENIED.
SO ORDERED.
July 13_, 2022
SMARYK
!STRICT JUDGE
2
The Court has adjudicated Defendants' Motion for Extension of Schedule (ECF No. I 07) and these dates are
consistent with the Court's Amended Scheduling Order.
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