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United States ex rel. Hanks v. United States

United States Court of Appeals for the Second Circuit

February 3, 2020, Argued; June 3, 2020, Decided

No. 18-3376

Opinion

Dennis Jacobs, Circuit Judge:

Relator Don Hanks brings this qui tam action [*3]  asserting claims on behalf of the United States under the False Claims Act, 31 U.S.C. § 3729 et seq. (the "FCA"), and on behalf of certain states under state law analogs. Appeal is taken from the dismissal of the Fifth Amended Complaint, which (like the earlier complaints) alleges that certain healthcare providers, physician oncology practices, and group purchasing organizations (collectively, "Defendants-Appellees"3 ), and others, conspired with pharmaceutical company Amgen, Inc. ("Amgen") to purchase Amgen drugs at discounted rates with knowledge that Amgen would fail to report the discounts to government agencies. It is alleged that these unreported discounts resulted in: (1) increased sales of Amgen products; and (2) inflated reimbursements to healthcare providers who prescribed--and in some cases over-prescribed--those products.

The United States District Court for the Eastern District of New York (Johnson, J.) dismissed the claims, without prejudice, under the FCA's first-to-file rule, 31 U.S.C. § 3730(b)(5), on the ground that the core allegations had been raised in earlier lawsuits by other plaintiffs. In the alternative, the district court held that the claims were barred by Federal Rule of Civil Procedure 9(b) for failure to allege fraud with sufficient [*4]  particularity. But in reaching its decision the district court elided the issue of whether the FCA's public disclosure bar, 31 U.S.C. § 3730(e)(4), deprived the court of jurisdiction. Because federal courts are not generally permitted to assume the existence of subject-matter jurisdiction, we vacate and remand for the district court to determine whether the public disclosure bar applies to Hanks' claims. The other issues in the case will abide a further appeal in the event the district court has jurisdiction to decide them.

] But we must first establish the existence of appellate jurisdiction, which Defendants-Appellees contest on the basis that Hanks' notice of appeal was untimely. See Williams v. KFC Nat'l Mgmt. Co., 391 F.3d 411, 415 (2d Cir. 2004) (holding that filing of a timely notice of appeal is "mandatory and jurisdictional" (internal quotation marks omitted)). We conclude in Point I that appellate jurisdiction exists.

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2020 U.S. App. LEXIS 17445 *

UNITED STATES OF AMERICA EX REL. DON HANKS, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, REAL PARTY IN INTEREST, Intervenor-Appellee, FLORIDA CANCER SPECIALISTS, GULFCOAST ONCOLOGY ASSOCIATES, INTEGRATED COMMUNITY ONCOLOGY NETWORK, LLC, UNITED STATES ONCOLOGY SPECIALTY, LP, HEMATOLOGY AND ONCOLOGY ASSOCIATES OF THE TREASURE COAST, MID-FLORIDA HEMATOLOGY AND ONCOLOGY CENTERS, PASCO HERNANDO ONCOLOGY ASSOCIATES, P.A., CANCER INSTITUTE OF FLORIDA, P.A., COASTAL ONCOLOGY PL, STUART ONCOLOGY ASSOCIATES, P.A., AYUB SOKOI, MATZKOWITZ, AND SENNABAUM, DAVID DRESDNER, M.D., GEORGIA CANCER SPECIALISTS, NORTHWEST GEORGIA ONCOLOGY CENTERS, PC, AUGUSTA ONCOLOGY ASSOCIATES, CENTRAL GEORGIA CANCER CARE, SOUTHEAST GEORGIA HEMATOLOGY ONCOLOGY ASSOCIATES, P.C., Defendants-Appellees.1

Prior History: Relator Don Hanks appeals the dismissal by the United States District Court for the Eastern District of New York (Johnson, J.) of his Fifth Amended Complaint, which asserts claims under the False Claims Act and related state laws against (among others) certain healthcare providers, physician oncology practices, and group purchasing organizations. Defendants-Appellees urge dismissal of this appeal on the ground that, since the United States had ceased to be a party to the action when the appeal was taken, the notice of appeal is untimely under Federal Rule of Appellate Procedure 4(a)(1) [*1] . We hold that Hanks' appeal was timely, but do not reach the merits of Hanks' appeal. Instead, we vacate and remand for the district court to determine whether the False Claims Act's public disclosure bar applies to Hanks' claims--a jurisdictional question the district court elided when it dismissed Hanks' complaint on other grounds.

United States ex rel. Hanks v. U.S. Oncology Speciality, LLP, 336 F. Supp. 3d 90, 2018 U.S. Dist. LEXIS 158093 (E.D.N.Y., Sept. 12, 2018)

CORE TERMS

intervened, subject-matter, disclosure, notice, Setoff

Civil Procedure, Appeals, Notice of Appeal, Appellate Jurisdiction, Evidence, Burdens of Proof, Allocation, Governments, Federal Government, Claims By & Against, Labor & Employment Law, False Claims Act, Scope & Definitions, Jurisdictional Bar, Preponderance of Evidence, Constitutional Law, The Judiciary, Case or Controversy, Jurisdiction, Jurisdiction, Subject Matter Jurisdiction, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim