Davis v. U.S. Dep't of Health & Human Servs. & U.S. Dep't of Justice

• Decision Date: 16 September 2013
• Docket Number: Civil Action No. 12–1246 (JDB).
• Citation: 968 F.Supp.2d 176
• Parties: Michael L. DAVIS, Plaintiff, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES and United States Department of Justice, Defendants.
• Court: U.S. District Court — District of Columbia

968 F.Supp.2d 176

Michael L. DAVIS, Plaintiff,

v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICESandUnited States Department of Justice, Defendants.

Civil Action No. 12–1246 (JDB).

United States District Court, District of Columbia.

Sept. 16, 2013.

Michael L. Davis, Washington, DC, pro se.

Addy R. Schmitt, Peter Rolf Maier, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

This matter involves two qui tam actions brought by plaintiff Michael Davis against the District of Columbia. In the first action, United States ex rel. Davis v. District of Columbia, No. 06–489 (D.D.C. filed Mar. 15, 2006) (“the 489 action”), Davis brought suit as a relator on behalf of the United States under the False Claims Act, alleging that the District violated the Act by making a false claim for Medicaid reimbursement, making or using false records or statements to get a false claim for Medicaid reimbursement approved, and conspiring to defraud the federal government through a false or fraudulent claim. In the second action, United States ex rel. Davis v. District of Columbia, No. 06–629 (D.D.C. filed Apr. 4, 2006) (“the 629 action”), Davis, again on behalf of the United States, alleged that the District violated the Act by submitting a Medicaid reimbursement claim without maintaining adequate supporting documentation. In both actions, the United States declined to intervene. Davis, proceeding pro se, now brings suit against the federal government and its attorneys based on their conduct in connection with his qui tam actions. The government has moved to dismiss Davis's complaint on various grounds. For the reasons set forth below, the Court concludes that Davis fails to state a claim upon which relief can be granted, and hence will grant the government's motion.

BACKGROUND

Davis's allegations here are based on his discontent with the government's handling of the qui tam actions, one of which remains pending. The False Claims Act prohibits false or fraudulent claims for payment from the United States, and authorizes private individuals, known as “relators,” to bring suit in the government's name to remedy such fraud. See31 U.S.C. §§ 3729(a), 3730(b)(1); United States ex rel. Davis v. District of Columbia (“Davis III”), 679 F.3d 832, 835 (D.C.Cir.2012). The circumstances under which relators may bring suit are limited, however. The version of the Act applicable to Davis's qui tam claims bars actions that are “based upon the public disclosure of allegations or transactions ... unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.” 31 U.S.C. § 3730(e)(4)(A) (2006). ¹ An original source is “an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under [the Act] which is based on the information.” Id. § 3730(e)(4)(B).

Davis's first qui tam action, the 489 action, was dismissed for lack of subject matter jurisdiction because the allegations in his complaint had previously been publicly disclosed and Davis had not shown that he qualified as an original source. See United States ex rel. Davis v. District of Columbia (“Davis I”), 413 Fed.Appx. 308, 309–11 (D.C.Cir.2011). Specifically, Davis did not timely show that he had provided the relevant information to the federal government before filing his qui tam complaint, as is required by § 3730(e)(4)(B), “despite multiple opportunities to do so.” See id. at 310. The dismissal was affirmed on appeal. See id. at 309–10. The 629 action was also dismissed for lack of subject matter jurisdiction, because there was no evidence that Davis had provided the information supporting his fraud allegations to the government before the public disclosure of that information. See United States ex rel. Davis v. District of Columbia (“Davis II”), 773 F.Supp.2d 21, 32–34 (D.D.C.2011) (relying on United States ex rel. Findley v. FPC–Boron Emps.' Club, 105 F.3d 675 (D.C.Cir.1997)). But the D.C. Circuit reversed that dismissal, concluding that Davis was not required to provide his information to the government before any public disclosure and that he had satisfied the requirements for being an original source under § 3730(e)(4)(B). See Davis III, 679 F.3d at 838–39 (finding that Findley's reading of the False Claims Act had been rejected by the Supreme Court in Rockwell International Corp. v. United States, 549 U.S. 457, 127 S.Ct. 1397, 167 L.Ed.2d 190 (2007)). The case was remanded, and the parties have now filed cross-motions for summary judgment on the merits. See Docket Entries 101, 102, Davis, No. 06–629.

In this case, Davis is suing the Department of Health and Human Services (“HHS”) and the Department of Justice (“DOJ”), as well as attorneys of those agencies and others, under the Administrative Procedure Act (“APA”). See Am. Compl. No. 3 [ECF 23] (“Second Am. Compl.”) 2; ² Am. Compl. [ECF 19] 1, 15. As Davis makes clear, this case is not about the fraud alleged in his qui tam complaints. See, e.g., Am. Compl. 14, 19; Pl.'s Opp'n to Defs.' MTD [ECF 25] (“Pl.'s Opp'n”) 8. Rather, this case is about the actions taken—and, more pointedly, not taken—by attorneys for the United States after they were apprised of his allegations.

Essentially, Davis asserts the following.³ Before filing the qui tam suits, Davis informed HHS and DOJ of the fraud alleged in his complaints, met with attorneys representing those agencies and others, and was interviewed at length by FBI agents. See Am. Compl. 14, 16, 18. Consequently, attorneys for the United States knew that the District of Columbia had in fact committed civil and criminal offenses against the federal government and “was knowingly engaged in a ‘fraud on the Court,’ ” and yet the attorneys did not intervene in the qui tam cases, provide the Court with “vital and ‘material’ ” information in their possession, or otherwise take steps to prevent the District from defending against Davis's claims. See id. at 16–19, 24. And by remaining on the sidelines of the qui tam litigation, the federal government attorneys themselves engaged in unlawful conduct, including, among other things, failure to enforce the fraud provisions of the Social Security Act, “fraud on the court,” and violation of professional conduct rules. See id. at 2, 19.

STANDARD OF REVIEW

“[I]n passing on a motion to dismiss ... for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); see also Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Therefore, the factual allegations must be presumed true, and plaintiffs must be given every favorable inference that may be drawn from the allegations of fact. See Scheuer, 416 U.S. at 236, 94 S.Ct. 1683;Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.Cir.2000). However, the Court need not accept as true “a legal conclusion couched as a factual allegation,” nor inferences that are unsupported by the facts set out in the complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C.Cir.2006) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)).

To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “ ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); accord Erickson, 551 U.S. at 93, 127 S.Ct. 2197. Although “detailed factual allegations” are not necessary, to provide the “grounds” of “entitle[ment] to relief,” plaintiffs must furnish “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555–56, 127 S.Ct. 1955 (internal quotation marks omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955);accord Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C.Cir.2009).

The pleadings of pro se litigants are “to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson, 551 U.S. at 94, 127 S.Ct. 2197 (citation and internal quotation marks omitted). “[A]lthough a court will read a pro se plaintiff's complaint liberally,” such a complaint nevertheless “must present a claim on which the Court can grant relief.” Chandler v. Roche, 215 F.Supp.2d 166, 168 (D.D.C.2002) (citing Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C.Cir.1981)).

DISCUSSION

The government moves to dismiss Davis's claims under Federal Rule of Civil Procedure 12(b)(6). It argues, among other things, that Davis is seeking relief based on decisions that are committed to agency discretion, and that Davis's allegations of fraud on the court and other violations of law do not state a claim upon which relief can be granted.⁴

I. Failure to Enforce

The government argues that Davis may not assert claims challenging the decisions of HHS and DOJ, and the actions of attorneys who carried out those decisions, regarding whether and how to proceed in Davis's qui tam actions, because such matters are committed to agency discretion. See Defs.' MTD 10–11. The Court agrees.

Davis brings suit under the APA, 5 U.S.C. §§ 701–06, which provides a cause of action for...