Johnson v. Golden Gate National Senior Care, L.L.C.

Background

This qui tam action was filed in 2008. Ricia Johnson and Health Dimensions Rehabilitation, Inc. alleged that Golden Gate National Senior Care, L.L.C.; GGNSC Holdings, L.L.C.; GGNSC Wayzata, L.L.C.; and Aegis Therapies, Inc. violated the False Claims Act by submitting false Medicare claims related to physical and occupational therapy services provided to nursing-home patients.

The court divided the case into two phases because the complaint addressed two time periods. In December 2016, the court granted in part and denied in part the defendants’ motion for summary judgment as to Phase I. In May 2020, after additional briefing, the court denied the defendants’ motion for summary judgment as to the remaining Phase II claims and theories in its entirety.

The Defendants’ Motion

The defendants moved under 28 U.S.C. § 1292(b) for certification of five questions for an interlocutory appeal, meaning an appeal before the case reaches a final judgment. The questions concerned whether reasonable disagreements among clinical experts could establish falsity under the False Claims Act; the requirements for an implied false-certification theory under Universal Health Services, Inc. v. United States ex rel. Escobar; whether the government’s failure to seek repayment affected materiality; whether falsity had to be proved for individual transactions rather than through general corporate practices; and whether the relators could pursue a reverse-false-claim theory without specific facts showing that the defendants knowingly and improperly concealed or avoided an obligation to repay an overpayment.

The defendants also asked the court to stay, or pause, the proceedings while any appeal was considered. The relators and the United States opposed both requests. The relators argued, among other things, that some issues involved factual questions and that two of the proposed questions had not been raised in the summary-judgment motions. The United States argued that the defendants had not identified exceptional legal issues warranting immediate review.

Court’s Analysis

Section 1292(b) permits certification only when an order involves a controlling question of law, there is substantial ground for disagreement about that question, and an immediate appeal may materially advance the end of the litigation. The court explained that this procedure is reserved for extraordinary cases and that the party seeking certification bears a heavy burden.

The court found that the defendants had not shown that any of the proposed questions was a controlling question of law. The court recognized that the defendants disagreed with its prior rulings, but stated that interlocutory appeal is not meant merely to provide review of difficult rulings in hard cases. The court also concluded that, after more than twelve years of litigation, further delay would not advance the interests of justice. It further noted that the fourth and fifth proposed questions were raised for the first time in the certification motion and therefore were inappropriate for certification.

Disposition

The court denied the defendants’ motion for certification of an interlocutory appeal. Because it denied certification, the court did not address the defendants’ request for a stay. The final order states that the defendants’ motion to stay proceedings and for certification of interlocutory appeal was DENIED.