In yet another demonstration of the benefits of lifetime tenure, a federal judge in Florida has told the Department of Justice to take a hike. It happened when the DOJ asked for permission to submit a “statement of interest” in a gigantic False Claims Act case—but only after having declining to intervene in the case and sitting on the sidelines for six years. What caused the DOJ’s sudden interest in the case? The relator, represented by private attorneys unaided by the DOJ, won a $348 million verdict.
If you look up sarcasm in the dictionary, next to the definition you may find a reprint of Judge Merryday’s April 26 opinion. It oozes with contempt for DOJ’s action—after six years of conspicuous inaction—in trying to climb aboard the relator’s horse after it had already won the race and done so spectacularly.
Judge Merryman ruled that the statute relied on by the government, 28 USC § 517, didn’t provide a right to submit a “statement of interest”—only a right to dispatch attorneys “to attend to the interests” of the government. He also found that those interests were adequately protected by relator’s private attorneys, noting that those same attorneys had prevailed before the US Supreme Court in the leading FCA case, UHS v. Escobar, and “the United States’ proposed ‘statement of interest’ appears calculated to duplicate the relator’s argument about the interpretation of Escobar ….”
The judge speculates on the true reason for the government’s newfound “keen interest” in the case: “the prospect of the lion’s share of $350 million.”
It’s easy to understand the judge’s attitude toward the government’s post-victory embrace of the relator’s cause, but his ruling leaves a nagging question: what would it have hurt to accept the DOJ’s statement of interest? Perhaps the judge’s answer can be inferred from his pithy observation that “[u]nderstanding a party’s interest in money requires no additional briefing.”
The case is US ex rel. Ruchk v. Salus Rehab, No. 8-cv-1303-T-23TBM (M.D. Fla., Apr. 26, 2017).
