On March 31, 2016, NAFUSA member Jack Selden and his firm, Bradley Arant Boult Cummings LLP, won summary judgment on behalf of AseraCare, Inc. in an important False Claims Act case. Judge Karon Bowdre held that the government’s second guessing of physicians’ medical judgment alone cannot prove false claims. Judge Bowdre struck down a $200 million FCA case against the hospice provider, holding that the government’s second guessing of physicians’ medical judgment alone cannot prove false claims.

On Monday, October 17, 2016, Selden and his team from Bradley, urged the Eleventh Circuit to preserve the AseraCare’s high-profile victory with its opening brief. As reported by Law360 on October 18, 2016:

Monday’s brief focused heavily on a pivotal ruling in which the judge limited the DOJ’s evidence in the trial’s first phase to expert testimony and patient records, which were meant to demonstrate objective falsity. On the eve of trial, the DOJ attempted to introduce more evidence, but the judge concluded that its attempt came too late.

According to AseraCare, the DOJ “severely limited its evidence” by not disclosing the evidence sooner, making the eventual grant of summary judgment “straightforward and inevitable.”

“Because of the government’s self-imposed limits on its evidence pertaining to the FCA’s falsity element, the government did not have sufficient evidence to create a jury question,” AseraCare wrote.

In its opening brief, the DOJ in August warned that health care providers could easily escape FCA liability under the district court’s reasoning simply by pointing to differences of opinion among doctors about appropriate treatment. But AseraCare pushed back on that assertion, arguing that its case only came down to differences of opinion because of the DOJ’s limited evidence.

“Although the district court made clear that, ‘without more,’ a difference of opinion among physicians would not be sufficient evidence of falsity, the government ignores the words ‘without more’ when it makes the specious argument that the district court’s holding would unduly impede the government’s ability to pursue fraud,” AseraCare wrote.

Terminal illness means that a patient is expected to have six months or less to live. Medicare patients who elect hospice care get treatment aimed at improving quality of life but also must give up Medicare coverage for potential lifesaving treatment.

In Monday’s brief, AseraCare also accused the DOJ of glossing over statutory language that says certifications of terminal illness should be based on physician judgment.

“The government completely ignores that Congress established a certifying physician’s clinical judgment as the sole criterion for a patient’s eligibility for the Medicare hospice benefit,” according to AseraCare.

The DOJ is also contending that the district judge conflated two required elements of FCA liability: a false claim and knowledge of falsity. Its reasoning was that differences of opinion are relevant only to knowledge of falsity — an element of FCA liability that was to be explored in a second trial phase that never took place.

But AseraCare on Monday said that the DOJ’s contention “misses the mark.” It argued that because evidence presented in the first trial phase was limited to objective falsity, the two elements therefore “could not have been conflated.”

NAFUSA members James Brady and Rich Rossman, joined by former U.S. Attorney Michael Dettmer, have authored an OpEd in the Detroit News on October 18, 2106, urging Michigan local prosecutors to follow the mandate of the United States Supreme Court.

Click here to view “Michigan prosecutors fail juvenile offenders”

 

 

 

The U.S. Supreme Court recently ruled in Montgomery v Louisiana that people serving mandatory life without parole sentences (LWOP) for crimes committed as children must be reviewed and given an opportunity for release if they can demonstrate rehabilitation.  Montgomery reinforced the 2012 ruling in Miller v Alabama that those sentences imposed on minors as if they were adults, “pos[e] too great a risk of disproportionate punishment” and must be limited to that “rare juvenile offender” who is incapable of reform.

The rulings do not mean that those youth must be set free. Instead, they require states to assess who the youth have become and provide them an opportunity to demonstrate their rehabilitation through a rigorous parole board review, stating  “Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment…Those prisoners who have shown an inability to reform will continue to serve life sentences. The opportunity for release will be afforded to those who demonstrate the truth of Miller’s central intuition—that children who commit even heinous crimes are capable of change.”
…most Michigan prosecutors are not following the spirit and letter of the law. They are not adhering to the Court’s warning that only the rare youth warranted a LWOP sentence and are conveniently ignoring the fact that the vast majority of youth have been rehabilitated.  Eighty-five percent of those serving LWOP sentences have been assigned the lowest security level allowed by prison officials.  Officials assess the security risk level of each inmate from Level 1 (lowest risk) to 5.  Those serving LWOP enter at Level 4 and, depending on their behavior, can move to a higher or lower risk level but cannot go below a Level 2.  When 85% behaved well enough in prison to be at Level 2, you might think they are the ones the Supreme Court had in mind when it wrote “that children who commit even heinous crimes are capable of change” and deserve the “opportunity for release”.
While thirty-eight states abolished juvenile LWOP or have less than 5 people serving that sentence, Michigan has the second highest number of people serving LWOP (363).  That’s partially because Michigan sentences children as young as 14 and those that never fired a weapon.  Where other states follow Supreme Court rulings and develop data-driven policies, Michigan sidesteps rulings and ignores data and facts.  And spends money doing so.  Michigan’s top prosecutor spent taxpayer resources unsuccessfully fighting Miller and Montgomery and now county prosecutors are willing to spend millions more to keep those youth who have long since been rehabilitated in prison.
As former U.S. Attorneys, we would have expected Michigan prosecutors to understand Montgomery’s central tenet that children are uniquely capable of growth and maturation and must be able to demonstrate their rehabilitation.  Instead, too many prosecutors are focusing on the crime committed by a troubled adolescent without exercising the judgement to recognize whether the adult before them today has rehabilitated himself. The first responsibility of a prosecutor in criminal litigation is to see that in each case, justice is done.  In failing to exercise a case by case review pursuant to the mandates of Miller and Montgomery, Michigan prosecutors not only fail our justice system, they fail all of us, the citizens of the State of Michigan.

See related editorial in the September 10, 2016, New York Times: Michigan Prosecutors Defy Supreme Court; http://nyti.ms/2cAbWoW and article from Detroit Free Press: After 50 years in prison, juvenile-lifer may see freedom within months.  http://on.freep.com/2d5LhCM

 

 

 

 

 

Four former U.S. Attorneys from the Western District of Washington have filed an amicus brief in support of Microsoft Corp.’s lawsuit against the U.S. Department of Justice regarding government searches of customer email. Microsoft’s complaint seeks to strike down a law that prevents the company, and others like it, from timely informing its customers when the government seeks their data.

The former U.S. Attorneys joining the brief are: Jeffrey Sullivan (who was USA from 2007 to 2009); NAFUSA member John McKay (2001 to 2007); Kate Pflaumer (1993 to 2001); and NAFUSA Foundation President Mike McKay (1989 to 1993). They were joined by Charles Mandigo, who was the FBI Special Agent in Charge in Seattle from 1999 to 2003.

In their brief, the former federal law enforcement officials observed they have “a combined 80 years of real-life experience fulfilling their obligation to keep the public safe while operating within the bounds of the Constitution. They have a unique perspective on how to achieve the balance between public safety and personal liberty, particularly with respect to government searches and seizures of private information.” They argued that “law enforcement can function effectively—even in the cloud—while following the Fourth Amendment’s requirement of notice to individuals whose private information has been searched.”

As reported by The Seattle Times, all of the former officials have experience seeking secrecy orders but are concerned about the increasing use of the orders.

“Because of the nature of the cloud, the government has gotten lazy and is no longer making specific showings of need as to why secrecy orders should be granted,” John McKay told the Times

McKay is now in private practice at Davis Wright Tremaine, which is representing Microsoft in the case, but his involvement in the brief was in his personal capacity, he said.

NAFUSA member Tim Purdon will represent the Standing Rock Sioux tribal leaders who have been sued by Dakota Access LLC in federal court in Bismarck, North Dakota, for protesting the pipeline construction. As reported on August 29, NAFUSA member Bill Leone is representing Dakota Access in the related litigation in federal court in Washington, DC where the tribe is suing the U.S. Army Corps of Engineers, and Dakota Access is an intervenor.

The tribe is protesting the pipeline’s route passing through ancestral lands, threatening burial grounds, sacred sites and other historical significant areas. The Bismarck complaint alleges the tribal leaders tried to block Dakota Access from entering and exiting the construction site. U.S. District Judge Daniel Hovland granted a temporary restraining order against the tribal leaders and others. A hearing is set for September 8 to determine if a preliminary injunction should issue.

Purdon served as the U.S. Attorney for the North Dakota until last year when he resigned and is now a partner in the Bismarck office of Robbins Kaplan, where he is co-chair of the American Indian Law and Policy Group.

 

 

Law 360 reported on August 24, 2016 Sioux Tribe Says ‘Cultural Survival’ At Stake In Pipeline Row, that “the Standing Rock Sioux Tribe urged a D.C. federal judge to block construction on the $3.8 billion crude oil pipeline slated to run through what it considers the tribe’s ancestral lands, calling the Dakota Access Pipeline a threat to its ‘cultural survival’ that was not adequately reviewed by the federal government before its approval”.

The tribe urged U.S. District Judge James E. Boasberg to grant a preliminary injunction saying  “it was important to hear from tribe members themselves about the importance of the various sites.”

Law 360 reported that the tribe argued that the pipeline’s route passes through ancestral lands, threatening burial grounds, sacred sites and other historically significant areas. The cultural surveys done for the project were done by out-of-state consultants and without the participation of the tribe, it said.

During the hearing, NAFUSA member William J. Leone of Norton Rose Fulbright US LLP, an attorney for intervenor defendant Dakota Access, insisted that those surveys were completed by “qualified archeologists” and subsequently shared with the tribes.
That the surveys were completely unsupervised is “simply not true,” Leone said.
Leone said it would be “horribly unfair” to the developers, laborers and their families to issue an injunction and “change the rules” at the last minute.

 

NAFUSA’s newest life member, Michael Moore, joined Pope McGlamry in its Atlanta office in December 2015. Moore’s practice focuses in the areas of qui tam/false claims litigation, significant fraud and tort cases, and white collar matters.

Moore was appointed by President Obama in 2010 to serve as the United States Attorney for the Middle District of Georgia. As U.S. Attorney, Mr. Moore targeted violent crimes, human trafficking, and public corruption. During his time as the chief federal prosecutor, he oversaw the prosecution of national food safety cases, resulting in record-setting prison sentences for corporate executives and the largest criminal fine ever imposed against a corporation for food safety violations. Mr. Moore took an active role in civil rights matters, overseeing numerous cases involving the brutal mistreatment of arrestees and prison inmates and personally mediated a landmark settlement guaranteeing adequate representation for children and individuals in the Superior Courts.

Moore is credited with growing the false claims practice in the Middle District of Georgia, increasing recoveries for the Government by over 8000 percent during his tenure. His efforts resulted in multi-million dollar settlements and made the Middle District of Georgia a leader in combatting health care fraud.

As United States Attorney, Moore served on the Terrorism and National Security Subcommittee, the Health Care Fraud Working Group, the Criminal Practice Subcommittee, and the White Collar/Fraud Subcommittee, all part of the Attorney General’s Advisory Committee.

Prior to his service with the Department of Justice, and following his time as a state prosecutor, Moore practiced privately, representing clients in both civil and criminal matters throughout the state.

Moore is a former member of the Georgia Senate, where he served on the Appropriations, Judiciary, Transportation, and Defense Committees.

Gibson, Dunn & Crutcher LLP announced today that NAFUSA member Benjamin Wagner, former U.S. Attorney for the Eastern District of California, will join the firm as a partner in the Palo Alto office.  Wagner’s practice will focus on government investigations and white collar defense. He will join fellow NAFUSA members Chuck Stevens, Ted Olson and Debra Yang at Gibson.

“Ben will be an outstanding addition to the firm,” said Ken Doran, Chairman & Managing Partner of Gibson Dunn.  “He enjoys a very strong reputation within the Department of Justice and is well-connected in the U.S. Attorneys’ community.  He is widely recognized for his superb trial and advocacy skills, his eloquent writing, his sound judgment and his integrity.  With his 24 years in government, capped by six-plus years as the U.S. Attorney, Ben has incredible depth in both criminal and civil litigation and investigations.  He brings experience and gravitas that will reinforce our ability to demonstrate to clients that we can field the strongest team of white collar lawyers with a profound understanding of, and years of experience in, criminal investigations and litigation necessary to resolve their matters effectively.”

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NAFUSA member Richard Pocker has been elected vice president of the Nevada State Bar. Pocker is the administrative partner for the Nevada office of Boies, Schiller & Flexner LLP. His practice includes civil and criminal litigation, as well as employment law.  He was selected for inclusion in Best Lawyers in America for 2010, 2011, 2012, 2013, 2014 and 2015.

After his graduation from the University of Virginia Law School in 1980, Pocker’s career began with service in the U.S. Army Judge Advocate General’s Corps with the Seventh Infantry Division, followed by a six-year stint with the U.S. Attorney’s Office for the District of Nevada. Beginning as an assistant U.S. attorney in 1985,  Pocker rose through the ranks to become first the chief assistant U.S. attorney, and ultimately the United States Attorney in 1989.

After departing the U.S. Attorney’s Office, Pocker entered private practice, where he was a partner in the Las Vegas law firm of Dickerson, Dickerson, Consul & Pocker from 1991 to 2005. He joined Boies, Schiller & Flexner in 2005.

In 1996, he returned briefly to government service, serving as chief counsel to the Select Subcommittee on the United States Role in the Iranian Arms Transfers to Croatia and Bosnia, leading a congressional investigation of national security intelligence and foreign policy issues on behalf of the International Relations Committee of the United States House of Representatives. He served as chair of the Federal Litigation Section of the Federal Bar Association (2007 to 2010),

Back home in Nevada, he served on the Southern Nevada Disciplinary Board for the Nevada State Bar from 1993 to 2003, the last four years as the Board’s chair.  In 2006, he was honored as a patron of the Nevada Law Foundation, an organization dedicated to the provision of legal services to the indigent. In May 2011 he was elected to the Nevada State Bar’s Board of Governors, and has served on that Board continuously since then, reelected a third term in 2015. In 2015 he was awarded the State Bar of Nevada’s Medal of Justice Award, for his service on the board of the Nevada Bar Foundation.