Berdick v. United States

• Decision Date: 12 December 1979
• Docket Number: No. 493-78-495-78.,493-78-495-78.
• Citation: 612 F.2d 533
• Parties: Kenneth BERDICK v. The UNITED STATES.
• Court: U.S. Claims Court

612 F.2d 533

Kenneth BERDICK v. The UNITED STATES.

Nos. 493-78-495-78.

United States Court of Claims.

December 12, 1979.

Eugene C. Heiman, Miami, Fla., attorney of record, for plaintiff. Heiman, Krieger, Freidin & Silber, Miami, Fla., of counsel.

Thomas W. Trigg, U. S. Dept. of Justice, with whom was Acting Asst. Atty., Gen. Alice Daniel, Washington, D. C., for defendant.

Before FRIEDMAN, Chief Judge, KASHIWA and KUNZIG, Judges.

OPINION

KUNZIG, Judge:

This case arises from the medical practice of plaintiff Kenneth Berdick, a physician in Florida who treated, almost exclusively, patients insured under the Supplemental Medical Insurance Program, 42 U.S.C. § 1395jj (1976), (Medicare). In 1976, Berdick was convicted before a Federal District Court on charges that he made false statements to the Government in violation of 18 U.S.C. § 1001 (1976).¹ Berdick subsequently became a plaintiff in this court seeking, among other things, recovery of Medicare reimbursements on claims other than those on which he was convicted. The Government has counterclaimed, alleging that in the course of submitting the false claims, Berdick also violated the False Claims Act² and is now subject to its penalties.

The case is before us on (1) the Government's motion to dismiss portions of Berdick's petitions which defendant alleges are outside our jurisdiction, and (2) the Government's motion for partial summary judgment on its counterclaim No. 2 (the second of 10).³

The court agrees with the Government on both motions.

We dismiss those portions of plaintiff's petitions which state claims on which this court can grant no relief. We further hold that the indisputable facts adduced at plaintiff's criminal trial also establish his liability under the False Claims Act, and we grant the Government's motion for partial summary judgment on its second counterclaim.⁴

The main surviving issues in the case—whether the Government wrongfully withheld Medicare reimbursement payments from Berdick, and whether the Government is entitled to recover amounts already paid—remain to be resolved at trial.⁵

History of the Case

In July 1976, a Federal grand jury in Miami handed down a 119-count indictment charging Berdick with knowingly making false statements on Medicare claim forms submitted to the Government. Essentially, the Government charged Berdick with requesting payment from the United States for medical tests on patients though those tests never were performed.

Evidence was presented at his criminal trial that, of the more than 30,000 patients Berdick treated in the five years prior to his conviction, over 25,000 were covered by Medicare.

After a lengthy trial, a jury convicted Berdick of submitting 42 false "Requests for Medicare Payment,"⁶ (Under the Medicare program, patients assigned to Berdick their right to payment by Medicare after treatment by Berdick. He then filed a reimbursement form and was paid by the local Medicare insurance carrier, Group Health, Incorporated.) The District Court for the Southern District of Florida entered judgment on December 20, 1976, sentencing Berdick to 42 concurrent two-year prison terms and imposing a $45,000 fine. On appeal, the conviction was upheld. United States v. Berdick, 555 F.2d 1329 (5th Cir. 1977), cert. denied, 434 U.S. 1010, 98 S.Ct. 721, 54 L.Ed.2d 753 (1978).

When the investigation into Berdick's possible criminal conduct became known to Group Health, Incorporated, they immediately suspended all payments to Berdick. Group Health, Incorporated, continued to pay directly those patients who were treated and then billed by Berdick, but refused to pay on any claim assigned to Berdick by a patient.

In 1977, after his conviction, Berdick filed three actions in the United States District Court for the Southern District of Florida, seeking payment of money withheld and other relief. The District Court dismissed all three complaints for lack of subject matter jurisdiction and ordered the cases transferred here. Subsequently, plaintiff timely filed three petitions in this court, Nos. 493-78, 494-78, and 495-78. The petitions were consolidated on March 16, 1979, by the trial judge.

Government's Motion to Dismiss—Lack of Jurisdiction

As a preliminary matter and for the sake of clarity in the instant suit, we shall first address the Government's motion to dismiss certain portions of the petitions. This should serve to clear out a great deal of the underbrush that clutters this case.

Defendant's motion to dismiss addresses: (I) all but the first count of the petition in 493-78⁷; (II) all of the petition in 494-78⁸; and (III) paragraphs 26 and 27 together with precatory paragraphs A, C, D, and E of Count 1⁹; paragraph 34 and precatory paragraphs B, C, D, and E of Count 2¹⁰; along with all of Count 4 of the petition in No. 495-78.¹¹

Plaintiff argues that the Government cannot now move to dismiss his petitions on jurisdictional grounds because his case was transferred here by order of the United States District Court for the Southern District of Florida.

Plaintiff contends that the District Court's order compels us to rule on the merits of all matters in the petitions. We cannot agree. We may evaluate our own jurisdiction at any time. Louisville & Nashville RR. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908); Mansfield, Coldwater & Lake Michigan Rly. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 28 L.Ed. 462 (1884); Rule 38(b), (h).

The governmental consent to be sued in this court has always been narrowly construed, United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969); Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957), and no amount of transferring from another court will create jurisdiction here when none existed previously.

The claims defendant seeks here to have dismissed, in the main, clearly sound in tort, ask for equitable relief, or seek damages against private persons. As outlined in detail below, we have no jurisdiction to grant such relief.

All but the first count of the petition in No. 493-78 concern plaintiff's claims exclusively against private individuals (named defendants include Group Health, Incorporated and the President of Group Health) and/or tort claims against the Government. Plaintiff also claims damages from those individuals and for the Government's alleged defamation, intentional infliction of emotional distress, tortious interference with business relationships, and conspiracy. Clearly each of these latter claims sounds in tort, and we have no jurisdiction to hear such claims. Algonac Mfg. Co. v. United States, 192 Ct.Cl. 649, 428 F.2d 1241 (1970); Eastport Steamship Corp. v. United States, 178 Ct.Cl. 599, 372 F.2d 1002 (1967); 28 U.S.C. § 1491 (1976). As to the former, we have jurisdiction to render only judgments on claims "against the United States." 28 U.S.C. § 1491 (1976). While the claims naming Joseph Califano, former Secretary of Health, Education and Welfare, may possibly be construed as against the United States, the counts naming private individuals are clearly outside our jurisdiction.

Plaintiff styles his petition in 494-78 "Petition for Injunctive Relief" and alleges that defendant and others pursued a "course of conduct . . . designed to harass, humiliate, and to economically destroy the Plaintiff . . . ." He seeks an injunction to force cessation of such activity. We have no jurisdiction to hear cases seeking injunctive relief. United States v. Jones, 131 U.S. 1, 9 S.Ct. 669, 33 L.Ed. 90 (1889). Plaintiff also asks for a declaratory judgment outlining his rights under the Medicare Act. We have no jurisdiction to issue declaratory judgments in cases other than those arising under section 7428 of the Internal Revenue Code of 1954. United States v. King, supra.¹²

The counts of the petition in No. 495-78 are mainly repetitious, again, naming private individuals as defendants, alleging violation of plaintiff's civil rights under 42 U.S.C. § 1983 (1976) or seeking numerous declaratory orders and injunctions. We have no such jurisdiction.

As outlined in (I), (II), and (III) above, the Government's motion to dismiss must be granted in its entirety.¹³

At this point, plaintiff has only fragments of his original petitions remaining in this court. He now seeks solely reimbursements under the Medicare program which plaintiff thinks were wrongfully withheld. This is the kind of petition which we can entertain and on which we can properly grant relief if relief is warranted. Whitecliff, Inc. v. United States, 210 Ct.Cl. 53, 536 F.2d 347 (1976), cert. denied, 430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 361 (1977). Plaintiff is free to litigate this claim in our trial division.

Government's Motion for Partial Summary Judgment—False Claims Act Counterclaim

Most damaging to Berdick is the Government's second of 10 counterclaims,¹⁴ filed February 26, 1979. Defendant has now moved for summary judgment on that counterclaim, which alleges that Berdick, in the course of filing the Medicare claims that led to his conviction, also violated the False Claims Act. 31 U.S.C. §§ 231-35 (1976). The Government is seeking the $2,000 statutory penalty set out in the False Claims Act for each of the 36 false Medicare reimbursement claims submitted by Berdick. It further seeks an adjudication of liability and return of sums where already paid by the Government (doubled in accordance with the law).

There is no doubt that our jurisdiction extends to the Government's False Claims Act counterclaim. Brown v. United States, 207 Ct.Cl. 768, 524 F.2d 693 (1975); 28 U.S.C. § 1503 (1976). The only issue presented here on defendant's motion for summary judgment is whether Berdick's criminal conviction with regard to the 36 claims (the subject of this counterclaim) establishes his liability as a matter of law with regard to the same 36 claims under the False Claims Act. We hold that the facts developed at Berdick's trial, which...