Justia U.S. 7th Circuit Court of Appeals Opinion SummariesArticles Posted in Government Contracts
United States v. UCB, Inc.
The False Claims Act, 31 U.S.C. 3729–3733, authorizes relators to file qui tam suits on behalf of the U.S. government. If such an action is successful, the relator receives part of the recovery. The Act prohibits presenting to a federal healthcare program a claim for payment that violates the Anti-Kickback Statute, 42 U.S.C. 1320a-7b(b), Venari formed 11 daughter companies, each for the purpose of prosecuting a separate qui tam action, alleging essentially identical violations of the False Claims Act by pharmaceutical companies. CIMZNHCA, a Venari company, filed suit alleging illegal kickbacks to physicians for prescribing Cimzia to treat Crohn’s disease in patients who received federal healthcare benefits. The government did not exercise its right “to intervene and proceed” as the plaintiff but moved to dismiss the action, representing that it had investigated the Venari claims and found them to lack merit. The court denied that motion, finding the government’s general evaluation of the Venari claims insufficient as to CIMZNHCA and that the decision to dismiss was “arbitrary and capricious.”The Seventh Circuit reversed with instructions to dismiss, construing the government’s motion as a motion to both intervene and dismiss. By treating the government as seeking to intervene, a court can apply Federal Rule of Civil Procedure 41, which provides: “The Government may dismiss the action” without the relator’s consent if the relator receives notice and opportunity to be heard. View "United States v. UCB, Inc." on Justia Law
Acheron Medical Supply, LLC v. Cook Medical Inc.
In 2014, Cook Medical entered a five-year agreement for Acheron to serve as the distributor of Cook medical devices and products to VA and Department of Defense Medical Centers. Sales to Defense are primarily made through a Distribution and Pricing Agreement (DAPA); sales to the VA require a Federal Supply Schedule (FSS). Cook already had a DAPA, but not an FSS; the agreement required Acheron to obtain an FSS. Cook refused to submit to a required audit of its commercial sales records as required by 48 CFR 515.408(b)(5) to obtain an FSS and refused to deactivate its DAPA, preventing Acheron from selling Cook products to Defense through Acheron’s own DAPA. Cook sent notice that Acheron was in material breach and terminated the agreement 30 days later due to Acheron’s failure to cure. Acheron filed suit.The district court granted Cook summary judgment; Acheron materially breached its obligation to obtain an FSS but owed no damages because the breach was excused by the force majeure clause. The Seventh Circuit affirmed. The Agreement does not expressly obligate Cook to submit to the VA audit or to deactivate its DAPA. The duty of good faith requires that a party perform its obligations under the contract in good faith but does not require a party to undertake a new, affirmative obligation. Neither party actively sought to sabotage the other party’s performance to escape its own obligations or obtain an unfair advantage. View "Acheron Medical Supply, LLC v. Cook Medical Inc." on Justia Law
Stop Illinois Health Care Fraud, LLC v. Sayeed
HCI, on behalf of the Illinois Department of Aging, coordinates services for low-income seniors in an effort to keep them at home. HCI sometimes referred clients who needed in-home healthcare services to home healthcare companies owned by MPI. Qui tam claims against MPI, its home healthcare companies, and HCI, alleged that they orchestrated an illegal patient referral scheme that violated the Anti-Kickback Statute, 42 U.S.C. 1320a-7b(g), and, by extension, the state and federal False Claims Acts, 31 U.S.C. 3730(b)(1). The district court entered judgment for the defendants.The Seventh Circuit reversed. The evidence showed that MPI made monthly payments to HCI in return for access to the non-profit’s client records and used that information to solicit clients. The Anti-Kickback Statute definition of a referral is broad, encapsulating both direct and indirect means of connecting a patient with a provider. It goes beyond explicit recommendations; the inquiry is a practical one that focuses on substance, not form. The plaintiff’s theory was that MPI’s payments to HCI under the Management Services Agreement constituted kickbacks intended to obtain referrals in the form of receiving access to the HCI files that the defendants then exploited to solicit clients. A factfinder applying an erroneously narrow understanding of "referral "might find those facts, devoid of an explicit direction of a patient to a provider, to fall outside its scope. View "Stop Illinois Health Care Fraud, LLC v. Sayeed" on Justia Law
Western Illinois Service Coordination v. Illinois Department of Human Services
States may provide certain home-based services through Medicaid's Home and Community Based Waiver program, 42 U.S.C. 1396n(c). Illinois operates a waiver under which it contracts with non-profit organizations (ISCs) to provide case management services for adults with developmental disabilities receiving home- and community-based services as part of Medicaid. Illinois awarded 17 ISC contracts through a non-competitive, annual renewal process. The plaintiffs had received contracts for at least 25 years. In 2018, the state announced a new competitive bidding process to begin on July 1, 2019. The plaintiffs submitted bids but learned in January that their contracts would not be renewed. They sued under 42 U.S.C. 1983, alleging violations of Medicaid’s free-choice-of-provider provision, 42 U.S.C. 1396a(a)(23). On June 5, 2019, with new contracts to go into effect in less than 30 days, they sought a preliminary injunction. The district court denied their motion on June 25, reasoning that ISCs were not “qualified providers” under the statute. The plaintiffs appealed that same day. Four days later, they sought emergency injunctive relief pending appeal, which the Seventh Circuit denied. Months later, at oral argument, plaintiffs’ counsel acknowledged that vacating the new contracts would be too disruptive. The Seventh Circuit dismissed the appeal. With the plaintiffs no longer challenging the denial of their preliminary injunction, it is unnecessary to address the meaning of “qualified providers” or determine what kinds of services the plaintiffs provide. The passage of time has rendered the issue moot. View "Western Illinois Service Coordination v. Illinois Department of Human Services" on Justia Law
Alarm Detection Systems, Inc. v. Orland Fire Protection District
Four Illinois Villages passed ordinances that require commercial buildings to send fire-alarm signals directly to the local 911 dispatch center through one alarm-system provider, Tyco, which services the area pursuant to an exclusive agreement with the dispatch center. An alarm-system competitor, ADS, sued, citing the Illinois Fire Protection District Act, the Sherman Act, and the Fourteenth Amendment. The district court granted the defendants summary judgment. The Seventh Circuit affirmed. The Sherman Act claims fail because they are premised on the unilateral actions of the Villages, which ADS did not sue. The court noted that ADS can compete for the contract now held by Tyco. ADS’s substantive due process claim asserted that the district acted arbitrarily and irrationally by going with an exclusive provider rather than entertaining ADS’s efforts at alternative, methods. The ordinances effectively require the district to work with an exclusive provider and there was thus a rational basis to choose an exclusive provider. View "Alarm Detection Systems, Inc. v. Orland Fire Protection District" on Justia Law
Mittelstadt v. Perdue
Mittelstadt’s Richland County, Wisconsin land was enrolled in the Conservation Reserve Program (CRP), administered by the Department of Agriculture (USDA), from 1987-2006. CRP participants agree to remove environmentally sensitive land from agricultural production in return for annual rental payments from the USDA. In 2006, the agency denied Mittelstadt’s application to re-enroll. After exhausting his administrative appeals, he sued under the Administrative Procedure Act, 5 U.S.C. 701, and asserting a breach of contract. The district court entered judgment in favor of the agency. The Seventh Circuit affirmed. Under the regulations governing the CRP, the USDA has broad discretion to evaluate offers of enrollment in the program on a competitive basis by considering the environmental benefits of a producer’s land relative to its costs. Given the agency’s wide latitude, the Farm Services Agency did not abuse its discretion when it denied re-enrollment of Mittelstadt’s land under a new definition of “mixed hardwoods.” Because he never entered a new contract with the agency, there was no breach of contract. View "Mittelstadt v. Perdue" on Justia Law
Berkowitz v. Automation Aids, Inc.
Berkowitz's company, Complete Packaging, holds a General Service Administration (GSA) multiple award schedule contract, under which it sells office supplies to government agencies. The defendants hold competing GSA schedule contract. Vendors with GSA schedule contracts must comply with the Trade Agreements Act (TAA), 19 U.S.C. 501, which requires that a vendor only offer and sell U.S.-made or other designated country end products to governmental agencies. Federal Acquisition Regulations identify the designated countries and require that a vendor’s GSA agreement contain a “Trade Agreements Certificate,” certifying that each end product is compliant and listing the other products that are not. Vendors with GSA schedule contracts upload their price lists to the GSA Advantage online portal, GSA’s shopping system. Berkowitz claims that other vendors offered and sold products from non-designated countries, such as China or Thailand, although they filed Trade Agreements Certificate and that any invoices they submitted to the government for TAA noncompliant products constitute material false statements under the False Claims Act (FCA), 31 U.S.C. 3730. The Seventh Circuit affirmed the dismissal of his FCA suit. Berkowitz cannot allege that the defendants made any express misrepresentations; his claims are premised on an implied false certification theory and do not allege specific facts demonstrating what occurred at the individualized transactional level. That defendants may have sold non-compliant products in violation of the TAA does not equate to making a knowingly false statement in order to receive money from the government. View "Berkowitz v. Automation Aids, Inc." on Justia Law
Posted in: Government Contracts
Linear v. Village of University Park
University Park hired Linear as its Village Manager through May 2015, concurrent with the term of its Mayor. In October 2014 the Village extended Linear’s contract for a year. In April 2015 Mayor Covington was reelected. In May, the Board of Trustees decided that Linear would no longer be Village Manager. His contract provides for six months’ severance pay if the Board discharges him for any reason except criminality. The Village argued that the contract’s extension was not lawful and that it owes Linear nothing. The district court agreed and rejected Linear’s suit under 42 U.S.C. 1983, reasoning that 65 ILCS 5/3.1-30-5; 5/8-1-7 prohibit a village manager's contract from lasting beyond the end of a mayor’s term. The Seventh Circuit affirmed on different grounds. State courts should address the Illinois law claims. Linear’s federal claim rests on a mistaken appreciation of the role the Constitution plays in enforcing state-law rights. Linear never had a legitimate claim of entitlement to remain as Village Manager. His contract allowed termination without cause. His entitlement was to receive the contracted-for severance pay. Linear could not have a federal right to a hearing before losing his job; he has at most a right to a hearing to determine his severance pay--a question of Illinois law. View "Linear v. Village of University Park" on Justia Law
Rosenberg v. Redflex Traffic Systems, Inc.
RTSI produces and maintains traffic safety systems. Rosenberg was RTSI’s Vice President of Sales. RTSI contracted to manage Chicago's automated red light enforcement program. In 2012, the Chicago Tribune published articles, disclosing an improper relationship between a city employee (Bills) and RTSI. The city removed RTSI’s bid for the new contract. The City Office of Inspector General (OIG) investigated the bribery scheme. RTSI conducted an independent investigation and provided OIG with information. OIG advised Rosenberg that he had a duty to cooperate and that his statements would not be used against him in a criminal proceeding. Rosenberg described the bribery scheme between RTSI and Bills. RTSI terminated Rosenberg’s employment.The Tribune reported that RTSI courted Bills with thousands of dollars in free trips. Rosenberg sued RTSI under the qui tam provision of the City’s False Claims Ordinance, alleging that RTSI engaged in bribery and other illegal activities to obtain a city contract. The city intervened, making additional claims. The court dismissed Rosenberg as relator. The remaining parties settled and moved for dismissal with prejudice. Rosenberg unsuccessfully sought an award of a relator’s share of the settlement and attorney’s fees for his lawyer’s contributions to the case. The Seventh Circuit affirmed, noting that Rosenberg helped to perpetrate the fraud and referring to Rosenberg’s “audacity.” Rosenberg was neither the original source of the information nor was he a volunteer under the ordinance. View "Rosenberg v. Redflex Traffic Systems, Inc." on Justia Law
United States v. Talaga
Brown, the manager of a company that provided home physician visits, and Talaga, who handled the company’s billing, were convicted of conspiracy to commit health-care fraud, 18 U.S.C. 1349; six counts of health-care fraud, 18 U.S.C. 1347; and three counts of falsifying a matter or providing false statements, 18 U.S.C. 1035(a). The district court sentenced Mr. Brown to 87 months’ imprisonment, 34 months below the Guidelines’ range, stating that a significant sentence was warranted because of the duration of the scheme, the amount of the fraud, the need for general deterrence, and Brown’s failure to accept responsibility. Ms. Talaga was sentenced to 45 months. The Seventh Circuit affirmed, rejecting Brown’s argument that the court’s assumptions about the need for general deterrence were unfounded and constituted procedural error and Talaga’s arguments that the court calculated the amount of loss for which she was responsible by impermissibly including losses that occurred before she joined the conspiracy. The district court was under no obligation to accept or to comment further on Brown’s deterrence argument. Talaga, as a trained Medicare biller, knew that that the high-volume billings were fraudulent. View "United States v. Talaga" on Justia Law