July 7, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • Health Choice Alliance, L.L.C. v. Eli Lilly & Co., 19-40906, appeal from E.D. Tex.
    • Elrod, J., (Higginbotham, Elrod, Haynes), Higginbotham, J., concurring; False Claims Act, qui tam
    • Affirming dismissal of Health Choice entities’ qui tam actions under the False Claims Act, on the United States’ motion to dismiss the actions.
    • The Health Choice entities were “created by the National Health Care Analysis Group for the purpose of filing qui tam actions alleging instances of fraud in medicine and pharmaceuticals.” This appeal involves two such actions brought against Eli Lilly & Co. and Bayer Corporation under the Anti-Kickback Statute at 31 U.S.C. § 3730(b) and 42 U.S.C. § 1320a-7b(b). Health Choice conducted pre-suit notices to and met with attorneys from the U.S. Attorney’s office for the Eastern District of Texas, and post-filing meetings with officials at the Department of Justice. The U.S. did not intervene in either case.
    • The district court granted in part and denied in part motions to dismiss filed by Eli Lilly and Bayer. After Health Choice amended their complaints accordingly, about a year after it had declined to intervene in the cases the U.S. government moved to dismiss the complaints.
    • The Court first held that it had appellate jurisdiction, that without-prejudice voluntary dismissals of some of the defendants did not deprive the district court’s subsequent decision granting the government’s dismissal motion of finality.
    • On the merits of the dismissal, the Court held that the term “hearing” in § 3730(c)(2)(A)’s requirement of a hearing on the government’s motion to dismiss a False Claims Act claim “means what it says. It includes judicial involvement and action.” The Court held, however, that it need not determine the breadth of the government’s discretion to dismiss qui tam suits because “it is clear that Health Choice had a hearing and that dismissal was, in the very least, not arbitrary and capricious.” The Court found that the magistrate judge had conducted a hearing, that Health Choice participated in that hearing and had witnesses there ready to testify but that Health Choice chose not to put those witnesses on. “[T]here was no error because Health Choice declined to offer evidence at the hearing.”
    • The Court then held that the government showed a rational relation between dismissal and its cost-savings purpose based on the “substantial litigation burdens” of the large number of prescriptions, physicians, and Medicare beneficiaries at issue in the claims.
    • The Court then held that Health Choice did not meet its shifted burden to show that the government’s decision to dismiss was arbitrary or capricious, that Health Choice’s conclusory argument that the one-year delay between declining to intervene and moving to dismiss was not an indicator of arbitrariness.
    • Judge Higginbotham concurred, noting that, “[w]hile this appeal touches on an unsettled area of law, the outcome here is straightforward.”
  • Abram v. McConnell, 20-30199, appeal from W.D. La.
    • Smith, J. (Owen, Smith, Graves), habeas corpus
    • Affirming district court’s dismissal of § 2241 petition for lack of jurisdiction, where petitioner had sought via § 2241 to raise Rehaif issue of the failure of his indictment for possession of a firearm by a convicted felon to allege his knowledge of his felony status.
    • Petitioner had challenged his conviction for being a felon in possession of a firearm under a § 2255 petition, which was denied. Subsequently, the Supreme Court decided Rehaif, and the petitioner brought this § 2241 petition. The Court held that petitioner failed to carry his burden on the third factor of § 2255’s savings clause, which provides an exception to the rule that there can be no second shot at an argument via § 2241 after denial of a § 2255 petition where, inter alia, a retroactively applicable intervening Supreme Court decision “establishes that the petitioner may have been convicted of a nonexistent offense.”
    • Where petitioner did not contend that he was unaware of his felony status, “that’s fatal.” Here, petitioner’s “underlying felony was for possession of cocaine in 2001, and he doesn’t point to any facts or circumstances that would explain why–less than two years later–he forgot about or misapprehended the nature of that conviction.”

Unpublished

  • U.S. v. Clifton, 19-10947, appeal from N.D. Tex.
    • per curiam (King, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Sanchez, 20-10719, appeal from N.D. Tex.
    • per curiam (King, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Ruiz, 20-10807, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Higginson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Schrader v. Ruggles, 20-11257, appeal from N.D. Tex.
    • per curiam (King, Dennis, Ho), deliberate indifference
    • Affirming district court’s summary judgment dismissal of former pretrial detainee’s deliberate indifference claim against jail nurse.
  • LaVergne v. University of Texas Medical Branch, 20-20453, appeal from S.D. Tex.
    • per curiam (Higginbotham, Jones, Costa), employment discrimination
    • Affirming summary judgment dismissal of employment discrimination in failure to promote and termination of employment.
  • U.S. v. Ramirez-Ramirez, 20-40188, appeal from S.D. Tex.
    • per curiam (King, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Beall v. Talley, 20-50010, appeal from W.D. Tex.
    • per curiam (King, Costa, Ho), prisoner suit
    • Affirming summary judgment dismissal of claims regarding medical care on tuberculosis diagnosis, for failure to exhaust administrative remedies.
  • Clay v. Lumpkin, 20-50935, appeal from W.D. Tex.
    • per curiam (Southwick, Graves, Costa), habeas corpus
    • Dismissing as moot petitioner’s appeal from denial of certificate of appealability from dismissal of his § 2254 petition.
  • DeNucci Constructors, L.L.C. v. Occupational Safety and Health Review Commission, 20-60710, petition for review of order of the Occupational Safety and Health Review Commission
    • per curiam (Owen, Smith, Graves), administrative law, OSHA
    • Denying petitioner’s petition for review of final order of the OSHRC arising from issuance of citation and Notice of Penalty, on finding that ALJ’s fact findings were supported by substantial evidence and implicit credibility determination was not contradicted by incontrovertible documentary evidence or physical fact.
  • U.S. v. Rodriguez-Huitron, 21-10082, appeal from N.D. Tex.
    • per curiam (Jolly, Elrod, Graves), criminal, sentencing
    • Denying government’s motion for summary affirmance of 57-month sentence on defendant’s conviction of illegal reentry after removal from the United States, and ordering briefing of the underlying appeal.
  • McClanahan v. Wilson, 21-30106, appeal from M.D. La.
    • per curiam (Haynes, Willett, Ho), appellate jurisdiction
    • Dismissing for lack of appellate jurisdiction defendant’s appeal from denial of motion to dismiss for lack of subject matter jurisdiction, holding that the collateral order doctrine was inapplicable.