United States v. Univ. of Mass.
| Decision Date | 03 March 2016 |
| Docket Number | CIVIL ACTION NO. 4:13-CV-40066-TSH |
| Parties | United States of America and Commonwealth of Massachusetts, ex rel. Michael A. Willette, Plaintiffs, v. University of Massachusetts, Worcester a/k/a University of Massachusetts Medical School, the Estate of Leo Villani, and John Does, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Christine J. Wichers, United States Attorney's Office MA, George Zachos, Office of the Attorney General, Robert P. Patten, Attorney General's Office, Boston, MA, Allyson Hope Cohen, Cohen Law Services, LLC, Westborough, MA, Brian J. McCormick, Jr., Ross Feller Casey, LLP, Matthew C. Monroe, Sheller, P.C., Philadelphia, PA, for Plaintiffs.
John F. Shoro, Louis M. Ciavarra, Jared A. Fiore, Bowditch & Dewey LLP, Worcester, MA, Melissa E. Darigan, Partridge, Snow & Hahn LLP, Providence, RI, Deborah H. Dodge, Partridge Snow & Hahn LLP, Westborough, MA, for Defendants.
, DISTRICT JUDGE
Michael A. Willette brought this qui tam False Claims Act (FCA) suit, on behalf of the United States and the Commonwealth of Massachusetts, against the University of Massachusetts Medical School (UMass) and the estate of Leo Villani. Willette alleged that UMass and Villani violated the FCA, 31 U.S.C. §§ 3729
-3733, and the Massachusetts False Claims Act (MFCA), Mass. Gen. Laws ch. 12, § 5A –O , by committing various acts of Medicaid fraud.
Willette further alleged that Villani, an employee of UMass, had used his position in UMass's Estate Recovery Unit to misappropriate more than $3 million, the collection of which funds he had facilitated on behalf of the Commonwealth as healthcare reimbursements. Villani passed away in January of 2013, shortly before Willette discovered the misappropriation.
Willette alerted UMass of the misappropriation in January of 2013 and filed this lawsuit on June 5, 2013. The United States and the Commonwealth declined to intervene in the lawsuit. In early June of 2014, UMass repaid $3,807,166.46 to the Commonwealth, and the Commonwealth agreed to release UMass from any and all claims relating to Villani's misappropriation. (Docket No. 89-1 at 3-4.) Subsequently, in January of 2015, this Court granted UMass's motion to dismiss, on the ground that the FCA does not authorize qui tam suits by private relators against state agencies. This decision was affirmed on appeal. United States v. Univ. of Massachusetts, Worcester , 812 F.3d 35, 37–38 (1st Cir.2016)
. Willette filed the instant motion for a relator's share on October 16, 2015. The United States and the Commonwealth opposed the motion. On October 21, 2015, Willette stipulated to the dismissal of the estate of Villani, after learning that the estate was insolvent.
After hearing arguments on Willette's motion for a relator's share, this Court concluded that limited discovery would be necessary to determine whether Willette may be entitled to such a share pursuant to 31 U.S.C. § 3730(c)(5)
. Section 3730(c)(5), the so-called “alternate remedy provision,” preserves a qui tam plaintiff's right to a share of the proceeds when the government chooses to seek an alternate remedy rather than intervening as a plaintiff in the relator's qui tam suit. On January 11, 2016, this Court issued a preliminary order (Docket No. 100) granting the parties two months to conduct limited discovery regarding the circumstances under which UMass repaid the $3,807,166.46 to the Commonwealth and the circumstances of the Commonwealth's subsequent remittance, if any, to the United States. On January 29, 2016, the United States filed a motion for reconsideration of this Court's preliminary order allowing discovery. On February 2, 2016, UMass moved for a protective order to bar all discovery requests. On February 10, 2016, the Commonwealth also moved for a protective order to bar all discovery requests. The United States' motion for reconsideration (Docket No. 106) is denied on the grounds that the motion raises no new arguments. UMass's and the Commonwealth's motions for protective orders (Docket Nos. 107 and 109, respectively) are also denied , for the reasons set forth below.
UMass seeks an order protecting it from all discovery requests on the basis of Eleventh Amendment sovereign immunity. Willette has asserted the following requests of UMass: eleven interrogatories, twenty requests for production of documents, and five depositions of UMass employees. UMass asserts that these requests are akin to a “suit” for purposes of sovereign immunity. As a threshold matter, UMass is not currently a party to this lawsuit. Although the procedural nature of this case is convoluted at best, UMass was dismissed from the suit in January of 2015, and this decision was affirmed by the First Circuit in January of 2016. Thus, any discovery requests relating to UMass should proceed as nonparty discovery pursuant to Rule 45 of the Federal Rules of Civil Procedure
.
U.S. ex rel. Touhy v. Ragen , 340 U.S. 462, 467, 71 S.Ct. 416, 95 L.Ed. 417 (1951).
UMass cites to two appellate cases, from the Eight and Tenth Circuits, in which the courts held that nonparty subpoenas were “suits” for purposes of tribal immunity. See Bonnet v. Harvest (U.S.) Holdings, Inc. , 741 F.3d 1155, 1156 (10th Cir.2014)
; Alltel Commc'ns, LLC v. DeJordy , 675 F.3d 1100, 1102 (8th Cir.2012). However, the holdings of these cases do not apply to the case at hand, because UMass is asserting state sovereign immunity pursuant to the Eleventh Amendment. Tribal immunity and Eleventh Amendment immunity are related but importantly distinct concepts. See
Kiowa Tribe v. Mfg. Techs., Inc. , 523 U.S. 751, 753–59, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998) ; Hans v. Louisiana , 134 U.S. 1, 11–15, 10 S.Ct. 504, 33 L.Ed. 842 (1890).
UMass also cites to a case from the Eastern District of California, in which the estate of a deceased correction officer brought a suit under 42 U.S.C. § 1983
against various individuals who were employed by the state department of corrections. Estate of Gonzalez v. Hickman , 466 F.Supp.2d 1226, 1226–27 (E.D.Cal.2006). The plaintiff served subpoenas on the nonparty department of corrections, and the District Court held that the department could not be compelled to respond to the subpoenas because it enjoyed sovereign immunity from suit in federal court. Id. at 1227, 1229–30.
Two years later, however, a different judge within the same district expressly rejected the finding in Estate of Gonzalez
, concluding that the Eleventh Amendment does not preclude discovery from a nonparty State agency. Allen v. Woodford , 544 F.Supp.2d 1074, 1079 (E.D.Cal.2008). The Allen court confronted the issue of “whether issuance and required compliance with a third-party subpoena by State custodians of records in an action in which the State is not a party constitutes 'any suit in law or equity, commenced or prosecuted against one of the United States' within the meaning of the Eleventh Amendment.” Id. at 1078. In ascertaining the definition of “suit” in the context of sovereign immunity, the Allen court quoted Chief Justice Marshall in Cohens v. Virginia , 19 U.S. 264, 407–08, 6 Wheat. 264, 5 L.Ed. 257 (1821) :
We understand [a suit] to be the prosecution, or pursuit, of some claim, demand, or request. In law language, it is the prosecution of some demand in a Court of justice. The remedy for every species of wrong is, says Judge Blackstone, 'the being put in possession of that right whereof the party injured is deprived.' ... To commence a suit, is to demand something by the institution of process in a Court of justice; and to prosecute the suit, is, according to the common acceptation of language, to continue that demand.
court then reiterated the Supreme Court's general rule that “a suit is against the sovereign if 'the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration.”' Dugan v. Rank , 372 U.S. 609, 620, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963) (quoting Land v. Dollar , 330 U.S. 731, 738, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947) ). Also relevant is whether “the effect of the judgment would be 'to restrain the Government from acting, or to compel it to act.”' Id. (quoting Larson v. Domestic & Foreign Commerce Corp. , 337 U.S. 682, 704, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949) ). The court found that these principles do not apply to nonparty discovery subpoenas, which will not result in a judgment or relief of any kind requiring...
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