Case: 19-40906 Document: 00515928635 Page: 1 Date Filed: 07/07/2021
`
`United States Court of Appeals
`for the Fifth Circuit
`
`
`No. 19-40906
`
`
`United States of America, Ex Rel., Health Choice
`Alliance, L.L.C., on behalf of United States of America and
`31 States (AR; CA; CO; CT; DE; DC; FL; GA; HI; IL; IN; IA;
`LA; MD; MA; MI; MN; MT; NV; NH; NJ; NM; NY; NC; OK;
`RI; TN; TX; VT; VA; WA),
`
`
`United States Court of Appeals
`Fifth Circuit
`
`FILED
`July 7, 2021
`
`Lyle W. Cayce
`Clerk
`
`Plaintiffs—Appellants,
`
`
`
`versus
`
`
`Eli Lilly and Company, Incorporated; VMS
`BioMarketing; Covance, Incorporated; United
`BioSource Corporation; HealthSTAR Clinical
`Education Solutions, L.L.C.; Covance Market Access
`Services, Incorporated,
`
`
`Defendants—Appellees,
`
`
`United States of America,
`
`
`Appellee,
`
`
`______________________________
`
`United States of America, Ex Rel., Health Choice
`Group, L.L.C., on behalf of United States of America and 31
`States (AR; CA; CO; CT; DE; DC; FL; GA; HI; IL; IN; IA;
`LA; MD; MA; MI; MN; MT; NV; NH; NJ; NM; NY; NC; OK;
`RI; TN; TX; VT; VA; WA),
`
`
`

`

`Case: 19-40906 Document: 00515928635 Page: 2 Date Filed: 07/07/2021
`
`
`
`No. 19-40906
`
`versus
`
`Plaintiff—Appellant,
`
`
`Bayer Corporation; Amgen, Incorporated; Onyx
`Pharmaceuticals, Incorporated; AmerisourceBergen
`Corporation; Lash Group,
`
`
`Defendants—Appellees,
`
`
`United States of America,
`
`
`
`
`
`Appellee.
`
`Appeals from the United States District Court
`for the Eastern District of Texas
`USDC No. 5:17-CV-123
`USDC No. 5:17-CV-126
`
`
`
`Before Higginbotham, Elrod, and Haynes, Circuit Judges.
`Jennifer Walker Elrod, Circuit Judge:*
`
`The appellants Health Choice Alliance and Health Choice Group
`brought qui tam actions under the False Claims Act on behalf of the United
`States alleging violations of the Anti-Kickback Statute by pharmaceutical
`companies. The United States moved to dismiss the actions, and the district
`court granted the motion. Because the actions were properly dismissed, we
`AFFIRM.
`
`I.
`Health Choice Alliance and Health Choice Group (collectively Health
`Choice) are both entities created by the National Health Care Analysis Group
`
`
`* Judge Haynes concurs in the judgment only.
`
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`for the purpose of filing qui tam actions alleging instances of fraud in medicine
`and pharmaceuticals. Health Choice and affiliated entities brought eleven
`qui tam actions under the False Claims Act against a total of thirty-eight
`defendants alleging similar violations of the Anti-Kickback Statute. 31 U.S.C.
`§ 3730(b); 42 U.S.C. § 1320a-7b(b). This appeal concerns two of those qui
`tam cases, against Eli Lilly and Company and Bayer Corporation.1 The
`complaints in both the Eli Lilly and Bayer cases allege that the defendants
`illegally provided patient-education services to providers before a
`prescription had been written in violation of the Anti-Kickback Statute and
`certain state laws.
`
`Health Choice filed two similar complaints against Eli Lilly and
`(initially) four other defendants and against Bayer and four other defendants
`
`
`
`1 The nine cases which are not at issue in this appeal are: United States ex rel.
`CIMZNHCA v. UCB, Inc., 970 F.3d 835, 852, 854 (7th Cir. 2020) (remanding and
`instructing the district court to dismiss the case on the government’s motion and stating
`that “[w]herever the limits of the government’s power lie, this case is not close to them”),
`remanded to No. 3:17-CV-765 (S.D. Ill. Sept. 28, 2020), cert. denied, No. 20-1138, 2021 WL
`2637991 (June 28, 2021); United States ex rel. SMSPF, LLC v. EMD Serono, Inc., 370 F.
`Supp. 3d. 483, 491 (E.D. Pa. 2019) (granting government’s motion to dismiss); United
`States ex rel. NHCA-TEV, LLC v. Teva Pharm. Prods. Ltd., No. 17-CV-2040, 2019 WL
`6327207, at *6 (E.D. Pa. Nov. 26, 2019) (granting government’s motion to dismiss); United
`States ex rel. SAPF, LLC v. Amgen, Inc., No. 16-CV-5203 (E.D. Pa. Feb. 11, 2019)
`(dismissing case on voluntary consent of the government and relators); United States ex rel.
`SCEF, LLC v. AstraZeneca PLC, No. 17-CV-1328, 2019 WL 5725182, at *4 (W.D. Wash.
`Nov. 5, 2019) (granting government’s motion to dismiss); United States ex rel. Miller v.
`AbbVie, Inc., No. 16-CV-2111 (N.D. Tex. May 09, 2019) (dismissing case on voluntary
`consent of relator and the government); United States ex rel. Carle v. Otsuka Holdings Co.,
`No. 17-CV-966 (N.D. Ill. Jan. 29, 2019) (dismissing case on voluntary consent of the
`government and relators); United States ex rel. SMSF, LLC v. Biogen, Inc., No. 16-CV-11379
`(D. Mass. Dec. 17, 2018) (granting defendant’s unopposed motion to dismiss for failure to
`state a claim); United States ex rel. Health Choice Advocates, LLC v. Gilead, et al., No. 5:17-
`CV-121 (E.D. Tex. July 27, 2018) (dismissing case on voluntary consent of relator and the
`government).
`
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`in the United States District Court for the Eastern District of Texas.2 Prior
`to filing these complaints, Health Choice submitted pre-filing notices to and
`met with attorneys from the United States Attorney’s Office for the Eastern
`District of Texas. After filing the complaints, Health Choice met with
`officials at the Department of Justice Civil Division in Washington, D.C. The
`United States declined to intervene in either case.
`
`Health Choice then amended each of its complaints. Shortly
`thereafter, Eli Lilly, Bayer, and the other defendants filed motions to dismiss
`for failure to state a claim. See Fed. R. Civ. P. 9(b), 12(b)(6). The magistrate
`judge held a consolidated hearing on the motions to dismiss in both cases.
`The magistrate judge recommended the motions be denied in part and
`granted in part, and the district court adopted these recommendations.
`Health Choice amended its complaints once more to address the pleading
`deficiencies identified by the district court.
`
`In October of 2018, approximately a year after declining to intervene
`in the Eli Lilly and Bayer cases, the government sent notice to Health Choice
`that it intended to move to dismiss the complaints. See 31 U.S.C.
`§ 3730(c)(2)(A). Over the next two-and-a-half months, Health Choice and
`the government conferred by meeting, letter, and teleconference to discuss
`the government’s stated concerns about the case. During a teleconference
`with Health Choice, the government identified four specific concerns about
`
`
`
`2 In its negotiations with the government, Health Choice agreed to voluntarily
`dismiss its claims against the non-pharmaceutical defendants in the Eli Lilly case in order
`to “streamline” the case and reduce the administrative burden on the government. In
`January of 2019, Health Choice dismissed its claims, without prejudice, against all the
`defendants except Eli Lilly in the Eli Lilly case. Health Choice did not voluntarily dismiss
`any claims
`in
`the Bayer case.
` Amgen,
`Inc., Onyx Pharmaceuticals,
`Inc.,
`AmerisourceBergen Corp., and Lash Group remain codefendants in the Bayer case. For
`simplicity, we refer only to Eli Lilly and Bayer.
`
`4
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`the Eli Lilly and Bayer cases: “(1) whether there [was] sufficient factual and
`legal support to prove violations of the Anti-Kickback Statute, 42 U.S.C.
`§ 1320a-7b(b) (AKS); (2) the substantial costs and burdens for the United
`States if the qui tam actions were to continue; (3) certain policy interests of
`Medicare and other federal healthcare programs; and (4) the investigative
`methods employed by ‘National Healthcare Analysis Group,’” Health
`Choice’s parent organization.
`
`On December 17, 2018, the government notified Health Choice that it
`intended to proceed with its motions to dismiss, and it filed those motions
`the same day. In its notice to Health Choice, the government cited to its own
`two-year investigation and the supplemental information provided by Health
`Choice—including documents purportedly supporting Health Choice’s
`theory of the cases and letters from Health Choice concerning the merits and
`costs and benefits of the cases—as the basis of its decision to seek dismissal.
`
`In response to the government’s motions to dismiss, Health Choice
`first asserted that the government supported its motions primarily with “ad
`hominem attacks” against Health Choice. Health choice then argued that the
`district court should not afford the government unfettered discretion to
`dismiss and instead should hold that the government has not made the
`“proper showing” to warrant dismissal.
`
`In reply, the government said it had “concluded that, not only do the
`allegations lack factual and legal support, but further litigation will impose
`burdens and costs on the government that are not justified and will
`undermine practices that benefit federal healthcare programs by providing
`patients with greater access to product education and support.”
`
`On May 14, 2018, the magistrate judge held a consolidated hearing on
`the government’s motions to dismiss both cases. The magistrate judge
`recommended that the district court grant both motions. The district court
`
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`adopted the recommendations and granted the government’s motions to
`dismiss. Health Choice timely appealed.
`
`II.
`Before turning to the merits, we must determine whether we have
`jurisdiction to hear this case. The district court had federal question
`jurisdiction over Health Choice’s federal claims and supplemental
`jurisdiction over its state law claims. See 28 U.S.C. §§ 1331, 1367(a). Both
`Health Choice and the United States contend that appellate jurisdiction
`exists because the orders below are “final decisions” of the district court. 12
`U.S.C. § 1291. Still, we have an independent obligation to assure ourselves
`of jurisdiction. Green Valley Special Util. Dist. v. City of Schertz, 969 F.3d 460,
`468 (5th Cir. 2020) (en banc).
`
`We have “jurisdiction of appeals from all final decisions of the district
`courts of the United States.” 28 U.S.C. § 1291. “[T]here is no final decision
`if a plaintiff voluntarily dismisses a defendant without prejudice, because the
`plaintiff ‘is entitled to bring a later suit on the same cause of action.’”
`Williams v. Taylor Seidenbach, Inc., 958 F.3d 341, 343 (5th Cir. 2020) (en banc)
`(quoting Ryan v. Occidental Petroleum Corp., 577 F.2d 298, 302 (5th Cir.
`1978)). “And in a suit against multiple defendants, there is no final decision
`as to one defendant until there is a final decision as to all defendants.” Id.;
`see Fed. R. Civ. P. 54(b).
`
`There is a potential jurisdictional issue concerning the chronology of
`two events: the plaintiff’s voluntary dismissal and the district court’s
`granting of a motion to dismiss. Health Choice voluntarily dismissed,
`without prejudice, its claims against certain defendants in the lawsuit against
`Eli Lilly. Eight months later, the district court granted the United States’
`motion to dismiss and entered final judgment. This circuit has not decided
`how the finality rule of “Williams and Ryan would apply where the
`
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`[voluntary, without-prejudice] dismissal occurred before the adverse,
`interlocutory order.” Firefighters’ Ret. Sys. v. Citco Grp. Ltd., 963 F.3d 491,
`492 n.1 (5th Cir. 2020). This case squarely presents that question. We
`decline to create a circuit split and conclude that the prior without-prejudice
`dismissals did not deprive the district court’s subsequent decision of finality.
`See Schoenfeld v. Babbitt, 168 F.3d 1257, 1265–66 (11th Cir. 1999) (holding that
`this sequence of events results in a final decision).
`
`Unlike Ryan, this case involves a final decision. In Ryan, the district
`court granted a motion to dismiss certain paragraphs of plaintiff’s complaint
`against the lone defendant. See Ryan, 577 F.2d at 300. Then, the plaintiff
`voluntarily dismissed without prejudice the remaining substantive allegation
`and requested certification under Federal Rule of Civil Procedure 54(b).
`This court saw the plaintiff’s actions for what they were: a transparent
`attempt to obtain immediate appellate review over rulings that did “not
`amount to a termination of the litigation between the parties.” Id. at 302.
`This case, by contrast, involves the plaintiff dismissing all claims against
`certain defendants “without prejudice before the district court entered the
`order [granting the government’s motion to dismiss] and entered a final
`judgment.” See Schoenfeld, 168 F.3d at 1265. Instead of manufacturing an
`appealable decision like the plaintiff in Ryan, Health Choice’s dismissal
`brought about a swifter termination of the litigation.
`
`The district court’s order on the motion to dismiss was final because
`it “adjudicated all the claims against all the remaining parties in the action at
`the time it was entered.” Id. at 1266; cf. Cook v. City of Tyler, 974 F.3d 537,
`539 (5th Cir. 2020) (“For purposes of Section 1291 a decision is final only if
`it ‘ends the litigation on the merits and leaves nothing for the court to do but
`execute the judgment.’” (quoting Sealed Appellant 1 v. Sealed Appellee, 199
`F.3d 276, 278 (5th Cir. 2000))). The prior voluntary dismissal does not alter
`that conclusion.
`
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`III.
`Satisfied that we have appellate jurisdiction, we now turn to the merits
`of Health Choice’s appeal.
`
`Health Choice brought its Anti-Kickback claims against Eli Lilly and
`Bayer on behalf of the government under the False Claims Act. 31 U.S.C.
`§ 3730(b); 42 U.S.C. § 1320a-7b(b). The False Claims Act states that “[a]
`person may bring a civil action for a violation of [31 U.S.C. §] 3729 for the
`person and for the United States Government. The action shall be brought
`in the name of the Government.” 31 U.S.C. § 3730(b). This provision
`authorizes individuals—relators—to bring qui tam lawsuits alleging a “false
`or fraudulent claim” for payment from the United States. Id. §§ 3729(a),
`3730(b); United States ex rel. Spicer v. Westbrook, 751 F.3d 354, 364 (5th Cir.
`2014). Relators are entitled to a portion of the proceeds from a successful qui
`tam lawsuit.3 31 U.S.C. § 3730(d).
`
`The Anti-Kickback Statute proscribes “offer[ing] or pay[ing] any
`remuneration (including any kickback, bribe, or rebate) . . . to refer an
`individual to a person for the furnishing or arranging for the furnishing of any
`item or service for which payment may be made in whole or in part under a
`Federal health care program.” 42 U.S.C. § 1320a-7b(b)(2)(A). Health
`Choice alleges that Eli Lilly and Bayer illegally provided free product-
`education services from nurses in order to induce health care providers to
`prescribe Eli Lilly and Bayer products. The Anti-Kickback Statute makes
`such an allegation actionable by a qui tam relator by defining a violation of
`
`
`3 Amicus curiae, the Chamber of Commerce, criticizes the False Claims Act for
`incentivizing relators to bring qui tam lawsuits by offering them a portion of the recovery.
`Such a policy objection to Congress’s chosen incentive structure is irrelevant to our
`construction of the statute. See Tolbert v. RBC Capital Markets Corp., 758 F.3d 619, 627 n.6
`(5th Cir. 2014) (“We decline, however, to engage in any policy debate that would affect
`how we interpret this statute.”).
`
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`No. 19-40906
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`§ 1320a-7b as a “false or fraudulent claim for purposes of” the False Claims
`Act. Id. § 1320a-7b(g). Thus, Health Choice’s Anti-Kickback Statute claims
`are properly brought on behalf of the United States under the False Claims
`Act.
`
`In this case, as with every False Claims Act qui tam lawsuit, the “real
`party in interest” is the United States. 31 U.S.C. § 3730(c)(2)(A); United
`States ex rel. Eisenstein v. City of New York, 556 U.S. 928, 930 (2009)
`(describing the United States as the “real party in interest” in any False
`Claims Act lawsuit). The claims here ultimately belong to the United States,
`not Health Choice. See Vt. Agency of Nat. Res. v. United States ex rel. Stevens,
`529 U.S. 765, 773 (2000) (regarding the False Claims Act as “effecting a
`partial assignment of the Government’s damages claim”). The False Claims
`Act allows the government to assert control over qui tam litigation through a
`number of procedural mechanisms, such as intervention, settlement, and
`“[t]he power to veto voluntary settlements.” Searcy v. Philips Elecs. N. Am.
`Corp., 117 F.3d 154, 160 (5th Cir. 1997); accord 31 U.S.C. § 3730(c).
`
`The government moved to dismiss Health Choice’s claims in the Eli
`Lilly and Bayer cases, and the district court granted both motions. Health
`Choice challenges the dismissals on appeal. To address Health Choice’s
`arguments, first, we lay out the tests other circuits have adopted to assess a
`motion by the government to dismiss a qui tam action. Second, we construe
`the term “hearing” in 31 U.S.C. § 3730(c)(2)(A) to require something more
`than a forum for a relator to convince the government not to dismiss. Third,
`we determine that Health Choice got a hearing as required by
`§ 3730(c)(2)(A). And fourth, we conclude that dismissal of the Eli Lilly and
`Bayer cases was proper even under the test most favorable to Health Choice.
`
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`No. 19-40906
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`A.
`At oral argument, Health Choice focused mainly on the hearing
`requirement attendant to the government’s right to “dismiss the action
`notwithstanding the objections of the person initiating the action.” 31 U.S.C.
`§ 3730(c)(2)(A). The government may move to dismiss once two conditions
`have been met. Id. First, the government must give notice to the qui tam
`relator of the government’s motion to dismiss; second, the court must
`provide the relator with “an opportunity for a hearing on the motion.” Id.
`
`Health Choice argues that the district court erred by not affording it
`an evidentiary hearing before dismissing both cases. Health Choice further
`contends that a hearing necessarily entails the exercise of judicial power, and
`so the district court must engage is some meaningful review of the
`government’s decision to dismiss.
`
`We have not yet had an opportunity to determine what is required for
`the government to dismiss a case under § 3730. Four other circuits, however,
`have done so, and there is a deeply entrenched circuit split. Compare Swift v.
`United States, 318 F.3d 250, 252 (D.C. Cir. 2003) (giving the government
`unfettered discretion to dismiss qui tam lawsuits), with United States ex rel.
`Sequoia Orange Co. v. Baird-Neece Packing Corp., 151 F.3d 1139, 1145 (9th Cir.
`1998) (adopting a rational-relation test for reviewing the government’s
`motion to dismiss a qui tam lawsuit), and Ridenour v. Kaiser-Hill Co., 397 F.3d
`925, 936 (10th Cir. 2005) (adopting Sequoia Orange’s rational-relation test).
`But see United States ex rel. CIMZNHCA v. UCB, Inc., 970 F.3d 835, 839 (7th
`Cir. 2020) (viewing the “choice between the competing standards as a false
`
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`one” and applying a standard “informed by Federal Rule of Civil Procedure
`41”).4
`
`In Swift, the D.C. Circuit read § 3730(c)(2)(A) as “giv[ing] the
`government an unfettered right to dismiss an action” brought by a relator
`under the False Claims Act. Swift, 318 F.3d at 252. “The section states that
`‘The Government’—meaning the Executive Branch, not the Judicial—‘may
`dismiss the action.” Id. (quoting 31 U.S.C. § 3730(c)(2)(A)). The D.C.
`Circuit read no intent to create judicial review in § 3730(c)(2)(A). Id. Nor
`did the D.C. Circuit credit the relator’s argument that a relator’s “right to a
`hearing” gives the judiciary authority to review the government’s decision to
`dismiss. Id. at 253. A § 3730(c)(2)(A) hearing, according to Swift, is simply
`“a formal opportunity to convince the government not to end the case,” and
`possibly to establish fraud on the court. Id. Swift gives the government nearly
`unfettered discretion to dismiss a False Claims Act qui tam action.
`
`Conversely, Sequoia Orange articulates a rational-relation test to
`scrutinize motions to dismiss filed by the government. Recognizing that
`“[t]he qui tam statute itself does not create a particular standard for
`dismissal,” the Ninth Circuit approved of the “two step” burden-shifting
`test applied by the district court in that case. Sequoia Orange Co., 151 F.3d at
`1145. First, the government must identify: (1) “a valid government
`purpose”; and
`(2) “a
`rational
`relation between dismissal and
`accomplishment of that purpose.” Id. Second, if the government satisfies its
`burden, “the burden switches to the relator ‘to demonstrate that dismissal is
`fraudulent, arbitrary and capricious, or illegal.’” Id. (quoting United States
`
`
`
`4 UCB is one of the eleven cases brought by entities affiliated with Health Choice.
`See supra note 1 and accompanying text. The Seventh Circuit decided UCB after initial
`briefing and oral argument in this case. Both parties submitted supplemental letters to
`address UCB. See Fed. R. App. P. 28(j).
`
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`ex rel. Sequoia Orange Co. v. Sunland Packing House Co., 912 F.Supp. 1325,
`1347 (E.D. Cal. 1995)).
`
`The Tenth Circuit adopted this rational-relation test from Sequoia
`Orange because it “construe[d] the hearing language of § 3730(c)(2)(A) to
`impart more substantive rights for a relator” than the D.C. Circuit
`recognized in Swift. Ridenour, 397 F.3d at 935.
`
`The Seventh Circuit has also weighed in on this issue, refusing to
`wholly adopt either the Sequoia Orange rational-relation test or the
`unfettered-discretion standard from Swift, criticizing both. UCB, 970 F.3d
`at 839, 850, 853. Instead, the Seventh Circuit treated the government’s
`motion to dismiss as a motion to intervene and then “appl[ied] a standard for
`dismissal informed by Federal Rule of Civil Procedure 41.” Id. at 839. The
`Seventh Circuit used the phrase “[s]ubject to . . . any applicable federal
`statute” to apply § 3730(c)(2)(A) to the government’s motion. Id. at 850
`(quoting Fed. R. Civ. P. 41(a)(1)(A)). The Seventh Circuit concluded that
`the government has an “absolute” right to dismiss, so long as it serves notice
`under Rule 41(a) and there is a hearing under § 3730(c)(2)(A). Id. at 849–50.
`Because there is no dispute in this case that Health Choice received notice of
`the government’s motion to dismiss, application of the Seventh Circuit’s
`approach reduces to the question of whether Health Choice “took its
`opportunity to be heard.” Id. at 850.
`
`Health Choice urges us to adopt the rational-relation test from Sequoia
`Orange and argues that the district court erred in dismissing the Eli Lilly and
`Bayer cases. In doing so, however, it focuses on the relator’s burden and
`insists that the Sequoia Orange test “marches under the banner of arbitrary
`and capricious review, a foundational limitation on government action.” The
`government, conversely, urges us to adopt the unfettered discretion standard
`from Swift and argues that both the Eli Lilly and Bayer cases were properly
`
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`dismissed. Alternatively, the government contends that the district court
`was correct in concluding that the government satisfied both the unfettered-
`discretion standard from Swift and the more burdensome Sequoia Orange
`standard.
`
`B.
`The meaning of the term “hearing” holds the key to the question of
`the court’s role in assessing the government’s decision to dismiss under
`§ 3730(c)(2)(A). Because this is a question of statutory interpretation, our
`review is de novo. See Dresser v. Meba Medical & Benefits Plan, 628 F.3d 705,
`708 (5th Cir. 2010). We are persuaded by Health Choice’s argument that the
`term “hearing” means what is says. It includes judicial involvement and
`action.
`
`Congress introduced the hearing requirement in § 3730(c)(2)(A) in
`1986. False Claims Amendments Act of 1986, P.L. 99-562, 100 Stat. 3153.
`The fifth edition of Black’s Law Dictionary gives the primary definition of
`“hearing” as a “[p]roceeding of relative formality . . . , generally public, with
`definite issues of fact or law to be tried, in which witnesses are heard and parties
`proceeded against have right to be heard, . . . and may terminate in final
`order.” Hearing, Black’s Law Dictionary (5th ed. 1979) (emphasis added).
`Similarly, the tenth edition of Merriam-Webster’s Collegiate Dictionary defines
`“hearing” in the relevant legal sense as “a listening to arguments.” Hearing,
`Merriam-Webster’s Collegiate Dictionary (10th ed. 1993); see also Hearing
`Webster’s Second International Dictionary (1934) (“A listening to arguments
`or proofs and arguments in interlocutory proceeding.”).5
`
`
`
`5 See Antonin Scalia & Bryan A. Garner, A Note on the Use of Dictionaries, 16 Green
`Bag 2d 419, 423, 426, 427 (2013) (“Dictionaries tend to lag behind linguistic realities . . . .
`
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`The Black’s definition hinges on the issues tried at the hearing, and
`the Webster’s definition hinges on the argument or proofs presented at the
`hearing. Both definitions, then, necessarily involve something to be decided.
`These definitions cast doubt on
`the government’s notion of a
`§ 3730(c)(2)(A) hearing as merely an opportunity for the government to
`publicly broadcast its reasons for dismissal and for the relator to convince the
`government to change its mind. Such a limited notion of a hearing that leaves
`nothing for the court to decide or do is inconsistent with the notion that the
`function of federal courts is to decide actual cases and controversies. Cf. U.S.
`Const. art. III § 2; DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340–41
`(2006). Simply put, courts do not exist to provide a forum for press
`announcements.
`
`While some type of actual hearing is required, we need not decide the
`precise bounds of the government’s discretion to dismiss qui tam lawsuits.
`Cf. United States v. Gonzales, 520 U.S. 1, 11 (1997) (“We are hesitant to reach
`beyond the facts of this case to decide a question that is not squarely
`presented for our review.”). For the reasons explained below, it is clear that
`Health Choice had a hearing and that dismissal was, in the very least, not
`arbitrary and capricious.
`
`C.
`At oral argument, counsel for Health Choice repeatedly stressed that
`there had been an absence of “an evidentiary hearing, as required by
`procedural due process” and § 3730(c)(2)(A). See, e.g., Oral Argument at
`1:45, 2:50. Health Choice thus states both statutory and constitutional bases
`for affording it an evidentiary hearing.
`
`
`
`If you are seeking to ascertain the meaning of a term in an 1819 statute, it is generally quite
`permissible to consult an 1828 dictionary.”).
`
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`Case: 19-40906 Document: 00515928635 Page: 15 Date Filed: 07/07/2021
`
`No. 19-40906
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`Health Choice’s statutory argument fails because a review of the
`record demonstrates that Health Choice did get a hearing, and the magistrate
`judge did not prevent Health Choice from presenting evidence at that
`hearing. Health Choice simply chose not to present its evidence.6 Counsel
`for Health Choice admitted as much at oral argument:
`
`We said, “We are prepared to prove our case,” but we felt,
`honestly . . . that there was no need for an evidentiary hearing
`because the government’s affidavits and declarations had been
`thoroughly rebutted. But now that we are where we are we
`would like an evidentiary hearing to show that—
`. . . .
`I want to be very precise. We asked—We represented to the
`court we have John Mininno here prepared to testify. The
`magistrate judge did not respond at all. That was our
`submission. And why was that our submission? Because the
`fundamental thrust of the motion to dismiss was “NHCA
`[Health Choice’s parent organization] is bad” and “NHCA”
`which is wrong . . . and the second thing that we said is the
`
`
`6 In that hearing, Health Choice split its argument into two parts, delivered by two
`different attorneys. In the first portion of its argument, Health Choice urged the magistrate
`judge to reject the D.C. Circuit’s unfettered-discretion approach from Swift and instead
`adopt the rational-relation test from Sequoia Orange used by the Ninth and Tenth Circuits
`as the standard of review of the government’s decision to dismiss. In the second portion of
`its argument, Health Choice asserted that the totality of the circumstances shows the
`government’s decision to dismiss the Eli Lilly and Bayer cases was arbitrary and capricious.
`Health Choice’s standard-of-review argument at the hearing centered around the
`need for “an authentic and meaningful hearing with law to apply.” Health Choice stressed
`at this hearing that “we want a hearing . . . and a meaningful hearing.” Health Choice told
`the magistrate judge that a witness, John Mininno, was present at the hearing and that
`“[h]e’s prepared to answer any questions that the Court might have, and the Court has the
`benefit of his declaration, which really is not contested by the Government.” Health
`Choice, however, did not move to put John Mininno on the stand, nor did it offer any other
`evidence at the hearing. There is no indication in the record that the magistrate judge
`prevented Health Choice from examining John Mininno or presenting other evidence.
`
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`Case: 19-40906 Document: 00515928635 Page: 16 Date Filed: 07/07/2021
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`No. 19-40906
`
`Anti-Kickback statute is so vitally important and the challenge
`that was mounted in the motion to dismiss to our methodology
`with respect to interviewing witnesses is wrong. And the
`magistrate judge did not respond to that.
`. . . .
`I want to be very clear with the court. We did not say to the
`court in open court “We need an evidentiary hearing.” But
`please don’t suggest that in any way contemplates or suggests
`waiver. The government hasn’t argued it, and if that is the
`case, then the government has waived a waiver argument.
`Oral Argument at 7:55–8:15, 8:40–9:45, 11:00–20.
`Waiver is not at issue in this case. Rather, the oral argument aptly
`demonstrates why there was no error here. Health Choice had a hearing
`before the magistrate judge.7 It had a witness available to testify at that
`hearing, and the witness was not prohibited from testifying. Health Choice
`declined to call the witness to testify and the magistrate judge did not prevent
`Health Choice from presenting the witness. Health Choice’s statements at
`oral argument suggest that it consciously and strategically chose not to offer
`evidence because it believed it had already won the motion. Oral Argument
`at 8:15–30. Even assuming that § 3730(c)(2)(A) requires the hearing to be an
`evidentiary hearing, there was no error because Health Choice declined to
`offer evidence at the hearing. See Chang v. Child.’s Advoc. Ctr. of Del. Weih
`Steve Chang, 938 F.3d 384, 387 (3d Cir. 2019) (“An ‘opportunity for a
`hearing,’ however, requires that relators avail themselves of the
`‘opportunity.’”).
`
`Health Choice’s constitutional argument also fails. Health Choice
`argues that procedural due process entitled it to an evidentiary hearing, citing
`
`
`7 Health Choice does not argue that the hearing needed to be before the district
`court instead of the magistrate judge.
`
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`No. 19-40906
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`to Hamdi v. Rumsfeld, Goldberg v. Kelly, and Thibodeaux v. Bordelon for
`support. Oral Argument at 6:10; 56:04; 542 U.S. 507 (2004); 397 U.S. 254
`(1970); 740 F.2d 329 (5th Cir. 1984). In Health Choice’s view—and in its
`own words—“a qui tam relator surely should enjoy