125 F.3d 765 (9th Cir. 1997), 96-55358, Cedars-Sinai Medical Center v. Shalala
|Docket Nº:||96-55358, 96-55892.|
|Citation:||125 F.3d 765|
|Party Name:||97 Cal. Daily Op. Serv. 7269, 97 Daily Journal D.A.R. 11,753 CEDARS-SINAI MEDICAL CENTER; University of California San Francisco Medical Center; University of California Los Angeles Medical Center; University of California San Diego Medical Center; Adventist Health System/Sunbelt, Inc., d/b/a Florida Hospital Medical Center; Galen of Arizona, Inc.,|
|Case Date:||September 10, 1997|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
Argued and Submitted May 5, 1997.
[Copyrighted Material Omitted]
Christine N. Kohl, Assistant United States Attorney, Department of Justice, Washington, DC, for the defendant-appellant.
Donald R. Warren, Monaghan & Warren, San Diego, CA, for the defendant-appellant.
Harry R. Silver, Carol M. McCarthy and Leonard C. Homer, Ober, Kaler, Grimes & Shriver, Baltimore, MD, for the plaintiffs-appellees.
Appeals from the United States District Court for the Central District of California. John G. Davies, District Judge, Presiding. D.C. No. CV-95-02902-JGD.
Before BROWNING and SCHROEDER, Circuit Judges, and RESTANI, U.S. Court of International Trade Judge. [*]
SCHROEDER, Circuit Judge.
The Secretary of Health and Human Services appeals the district court's summary judgment in favor of Cedars-Sinai Medical Center and twenty-four other hospitals ("the Hospitals") in the Hospitals' declaratory judgment action challenging a 1986 Health Care Financing Administration ("HCFA") policy. The challenged policy provides that Medicare will not cover investigational medical devices that have not been approved for marketing by the Food and Drug Administration. The Hospitals claim, and the district court held, that the policy is invalid because it was not issued in accordance with the rulemaking requirements of the Administrative Procedure Act ("APA"), 5 U.S.C. § 553.
A qui tam relator ("the Relator"), who is the plaintiff in a False Claims Act (31 U.S.C. § 3729) case in the federal district court in Seattle, appeals the district court's denial of his motion to intervene and dismiss this action. In the qui tam action, which is under seal, the Relator alleges that 130 hospitals knowingly submitted false claims for payment to Medicare and Medicaid seeking reimbursement for non-FDA-approved medical devices, which are barred from Medicare coverage under the 1986 HCFA policy. The Relator argues that this declaratory action is an attempt by the Hospitals to forum-shop, and that the validity of the 1986 amendment should be litigated in the Seattle qui tam action, which was filed first.
We have jurisdiction under 28 U.S.C. § 1291. We affirm the district court's denial of the Relator's motion to intervene and to dismiss. We remand the case to the district court for the limited purpose of considering whether the Hospitals' claim is barred by the six-year statute of limitations codified at 28 U.S.C. § 2401(a).
I. The Qui Tam Relator's Motion to Intervene and to Dismiss
The Relator seeks to intervene as a matter of right under Fed.R.Civ.P. 24(a)(2). The denial of a motion to intervene as a matter of right is reviewed de novo. See Waller v. Financial Corp. of Am., 828 F.2d 579, 582 (9th Cir.1987).
Under this court's established test, a party may intervene as a matter of right if it meets four criteria:
(1) The party's motion must be timely; (2) the party must assert an interest relating to the property or transaction which is the subject of the action; (3) the party must be so situated that without intervention the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4)...
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