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Thursday, July 02, 2009

Ind. Decisions - Two today from the 7th Circuit

In Glaser v. Wound Care consultants (SD Ind., Judge McKinney), a 31-page opinion, Judge Sykes writes:

Carol Glaser received medical treatment from Wound Care Consultants and was later contacted by an attorney who told her that Wound Care might have improperly billed Medicaid for her treatment. She filed this qui tam action under the False Claims Act (“FCA”), 31 U.S.C. § 3730, seeking recovery as a relator for money the government paid as a result of alleged false or fraudulent Medicare and Medicaid claims submitted by Wound Care. But the government was already aware of the possible improprieties in Wound Care’s billing practices and had commenced an investigation more than four months before Glaser filed her lawsuit. Accordingly, the district court dismissed Glaser’s complaint for lack of subject-matter jurisdiction under 31 U.S.C. § 3730(e)(4), which blocks jurisdiction if the FCA action is “based upon” a “public disclosure” of the alleged fraudulent conduct “unless . . . the person bringing the action is an original source of the information.” Glaser appealed.

The district court correctly concluded that the jurisdictional bar of § 3730(e)(4)(A) applies to Glaser’s qui tam suit. The allegations in Glaser’s complaint about Wound Care’s billing practices are based upon publicly disclosed information, and Glaser has not shown she is an original source of the information used to support the allegations. We therefore AFFIRM the judgment of the district court dismissing the case for lack of subjectmatter jurisdiction.

In U.S. V. McGraw (ND Ind. Judge Springmann), a 15-page opinion, Judge Sykes writes:
While executing a search warrant for drugs inside a Fort Wayne, Indiana apartment building, police officers noticed that the building had several housing-code violations. Police called a neighborhood code-enforcement officer, who arrived and determined that the apartment building must be condemned. That determination required officers to go door-to-door and notify the building’s residents that they needed to leave their apartments. When Frank McGraw, the second floor tenant, arrived on the scene, officers instructed him to secure his dog and collect the belongings he would need for a few days. They also explained their need to inspect his apartment for housing-code violations and to search for potential stragglers. McGraw consented to the search three times before leaving the apartment building with his dog. During that search, police observed narcotics in plain view, and McGraw was charged with possession of crack cocaine.

McGraw moved to suppress the evidence, claiming that any consent he gave was not voluntary but instead constituted acquiescence to the officers’ display of authority. The district court denied the motion, finding that McGraw’s consent was voluntary. McGraw then entered into a conditional plea agreement, in which he waived his right to appeal sentencing determinations but preserved his right to appeal the court’s suppression ruling. At sentencing the district court classified McGraw as a career offender under the guidelines and sentenced him to 262 months’ imprisonment. On appeal McGraw challenges the court’s suppression ruling and its determination that he qualified as a career offender.

We affirm. The district court did not clearly err in finding that McGraw voluntarily consented to the officers’ search. The court analyzed the totality of the circumstances and determined that despite the way in which some of the officers phrased their request to search McGraw’s unit, McGraw voluntarily consented to their search. Because the court’s conclusion is entirely plausible in light of the record viewed in its entirety, the court properly denied McGraw’s motion to suppress. Further, we hold that McGraw waived his right to challenge the district court’s sentencing determination.

Posted by Marcia Oddi on July 2, 2009 12:15 PM
Posted to Ind. (7th Cir.) Decisions