January 7, 2008
This matter was determined to be suitable for decision without oral argument. L.R. 78-230(h).
Defendant moves to have language included in the Order filed August 17, 2007 ("Order") which would authorize Defendant to pursue an interlocutory appeal of that Order in this qui tam action. The Relators oppose the motion.
An order may be certified for interlocutory appeal when it "involves a controlling question of law as to which there is substantial ground for difference of opinion and an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b).
Defendant argues the Order conflicts with the Ninth Circuit's decision in United States ex rel. Barajas v. United States, 258 F.3d 1004 (9th Cir. 2001), and the Sixth Circuit's decision inUnited States ex rel. Bledsoe v. Cmty. Health Sys., Inc., 342 F.3d 634 (6th Cir. 2003). The Order states in pertinent part: "Since the [settlement agreement negotiated between Defendant and the Department of Education ("Settlement Agreement")] did not constitute an `election' of an `alternate remedy' by the `Government' within the meaning of the [False Claims Act ("FCA")], the Relators' action is not moot." (Order at 3:23-4:1.) At issue is whether the Settlement Agreement effectively settled the FCA claims in the pending action.
The Relators in the pending action point to language in the Settlement Agreement which explicitly excluded the pending FCA claims from the settlement. (Relators' Opp'n to Def.'s Mot. for Interloc. App. at 8.) Therefore, Defendant has not shown that the Order conflicts with either Barajas or Bledsoe. In Barajas, the government declined to intervene, but the Air Force subsequently entered into a settlement agreement "for precisely the same problem" involved in that qui tam action. Barajas, 258 F.3d at 1011. Barajas concluded that "[u]nder the circumstances . . . construing [the settlement] as an `alternate remedy' under the FCA [was] inconsistent with both the plain language and the purpose of the statute." Id. at 1013-14. Additionally, in Bledsoe the court held that the settlement in that qui tam action concerned "the same FCA claims," and therefore constituted an "`alternate remedy' for purposes of 31 U.S.C. § 3730(c)(5)."Bledsoe, 342 F.3d at 649.
Since Defendant has not shown that the Order involves a controlling question of law as to which there is substantial ground for difference of opinion, the motion is denied.
IT IS SO ORDERED.