UNITED STATES
COURT OF APPEALS
FOR
THE FOURTH CIRCUIT
(804)771-2213
DOCKETING
STATEMENT
Caption of Case 4CCA Docket No. _____ Type of Action
X Civil
v. ____
Criminal/Prisoner
Gopinath
Jadhav, M.D. et al. ____
Cross Appeal
District Eastern District of Virginia Judge The Honorable Robert E. Payne
District Court Docket
Number 3:06cv180
Statute or other
authority establishing jurisdiction in the:
District Court 31 USCA § 3730(b)(1); 31 USCA § 3732(a);
and 28 U.S.C.A. § 1331.
Court of Appeals 28 U.S.C. § 1291
A. Timeliness of Appeal
1. Date
of entry of judgment or order appealed from
2. Date
this notice of appeal filed
3. Filing date of any post-judgment motion
filed by any party which tolls time under FRAP 4(a)(4)
or 4(b) N/A
4. Date
of entry of order deciding above post-judgment motion N/A
5. Filing
date of any motion to extend time under FRAP 4(a)(5),
4(a)(6) or 4(b) N/A
Time extended to N/A
B. Finality of Order of Judgment
1. Is
the order or judgment appealed from a final decision on the merits?
YES
– Dismissed for lack of federal jurisdiction, which under Qui Tam action goes
to merits.
2. If no, a) Did the district court order entry of
judgment as to fewer than all claims or all parties pursuant to FRCP 54(b)? NO
b) Is the order appealed from a collateral
or interlocutory order reviewable under any Exception to the finality rule? NO
(Criminal only)
3. Has
the defendant been convicted? N/A
4. Has
a sentence been imposed? N/A Term
N/A
5. Is
the defendant incarcerated? N/A
C. Has this case previously been appealed?
No
If
yes, give the case name, docket number and disposition of each prior appeal on
a separate sheet.
D. Based on your present knowledge:
Will this appeal involve a question
of first impression? No
If yes, please explain briefly on a
separate sheet. N/A
E. Are any
related cases or cases raising related issues pending in this Court, any
district court of this circuit, or the Supreme Court? No
F. State the
nature of the suit, the relief sought, and the outcome below. Attach additional page if necessary.
nature of the suit
Qui Tam action brought on behalf of
United States by Dr. Vuyyuru alleging, inter alia, defendants knowingly
presented, or caused to be presented and filed, false or fraudulent claims for
payment or approval with the United States Government related to Medicaid and
Medicare related to unnecessary medical procedures based upon the independent
and direct knowledge of Dr. Vuyyuru, the
relator, gained through his medical practice and positions at local hospitals,
concerning which he disclosed to government officials beginning in 1998/1999. Additionally, Dr. Vuyyuru sought pendent
jurisdiction for state claims alleging violations of § 18.2-499, pursuant to §
18.2-500. (Dr. Vuyyuru, individually
will not appeal the court decision to decline pendent jurisdiction for the
claims made by Vuyyuru in his individual capacity – Counts 4 and 5)
the relief sought
In the Qui Tam action, on behalf of
the United States, the relator sought judgment in an undetermined amount, on
the claims stated herein for violation of 31 U.S.C. § 3729(a)(1),
(2) and (3) sum duly trebled in addition to a fine of not less than $5,000 per
violation and not more than $10,000 together with attorneys’ fees and costs.
In the pendent claim that the court
declined Dr. Vuyyuru sought $95M. (Dr. Vuyyuru, individually will not appeal
the court decision to decline pendent jurisdiction for the claims made by
Vuyyuru in his individual capacity – Counts 4 and 5)
the outcome below
While Judge Williams had through his
clerk directed the parties that no discovery would be permitted until after the
court ruled on the motion to dismiss for lack of federal subject matter
jurisdiction, the court
considered more than the issue of a facial challenge to
jurisdiction but refused to permit testimony from the relator, Dr. Vuyyuru, or
to permit discovery and dismissed the case for lack of federal subject matter
jurisdiction and declined pendent jurisdiction for the state claim.
G. Issues to be raised on appeal. Attach additional page if necessary.
1.
Whether the court erred by considering
more than a facial challenge to federal subject matter jurisdiction without
affording the relator the opportunity to conduct discovery to obtain the actual
bills which existed based upon reasonable deductions and inferences from the
apparent circumstances.
2.
Whether the court erred by failing to
apply the standard for both 12(b)(1) or Rule 56 summary judgment motions which
require the court to view the evidence in the light most favorable to the
non-moving party, together with all reasonable inferences and deductions.
3.
Whether the court erred by summarily
finding Dr. Vuyyuru not to be an "original source", "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 this section which is based on the
information" pursuant to § 3730(e)(4)(B).
4.
Whether the court erred by summarily
finding that Dr. Vuyyuru did not qualify under the original-source exception to
the public-disclosure bar in a qui tam action.
5.
Whether the court erred by making
conclusions based upon logical flaws finding “remarkable
similarities between the news article and the allegations contained in these
paragraphs are significant proof that the latter are “actually derived” from
the former”, when
the “remarkable similarities” is just as likely to prove that the former are
actually derived from the latter. When
coupled with the other evidence,
including but not limited to Dr. Vuyyuru being the publisher of the
newspaper, Dr. Vuyyuru having complained to the government authorities since
1998/99, such a finding is at best pure speculation and no proof at all, let
alone “significant proof” and further is contrary to the evidence. Alone the remarkable similarities
is evidence of a relationship, but certainly not of which was derived
from the other.
6.
Whether the court erred by failing to
follow the rule in Rockwell Int'l Corp.
v. United States, 127 S. Ct. 1397 (U.S. 2007), where the Supreme Court
stated to “bar a relator with direct and independent knowledge of information
underlying his allegations just because no one can know what information
underlies the similar allegations of some other person [in this case Dorothy
Rowley and The Virginia Times] simply makes no sense.”
7.
Whether the court erred and its
decisions run contrary to the intent of Congress to encourage more private
enforcement suits since the government lacks the resources to adequately
address the growing problem of fraud upon the Government. 1986
H. Is settlement being discussed? No
I. Is disposition on motions, memoranda,
or abbreviated briefing schedule appropriate?
No
If yes, explain on a separate
sheet.
Is
oral argument necessary? Yes
J. Were there any in-court proceedings
below? Yes
Is a transcript necessary for this
appeal? Yes
If yes, is transcript already on
file with district court? Yes
If transcript is not already on
file, attach copy of transcript order. N/A
K. List each
adverse party to the appeal. If no
attorney, give address and telephone number of the adverse party. Attach additional sheets if necessary.
1 & 2. Adverse party: Gopinath Jadhav, M.D.
Adverse party:
Southside Gastroenterology Associates, Ltd.
Attorneys
for Adverse Parties 1 and 2:
Martin A. Donlan,
Jr., Esquire
W. Benjamin Pace, Esq
Firm
Williams
Mullen
P.O,.
Telephone
(804) 783-6932
3
& 4 Adverse party: Petersburg
Hospital Company, LLC
Adverse party: The Cameron Foundation
Attorneys for Adverse Parties 3 and 4:
Michael R. Shebelskie, Esq.
Rita Davis, Esq.
Firm: Hunton
& Williams, LLP
Address:
Telephone: (804) 788-8200
(804) 788-8218 f
5 Adverse party: Columbia/HCA John Randolph, Inc.
Attorneys: J. William Boland, Esq.
Charles Wm. McIntrye, Jr.,Esq.
Nathan A. Kottkamp, Esq.
Firm: McGuire Woods, LLP
Address:
Telephone: (804) 775-1000
(804) 775-1061 f
FYI: Notice to
Debra Prillaman,
Assistant
Paul McNulty, USAG
Eastern District of Virginia
(804) 819-5400
(804) 771-2316 f
L. If appellant is proceeding without
assistance of counsel, give: N/A
Appellant(s) Name
If incarcerated, give identification
number
Address (if incarcerated, give
institution address)
Telephone
If appellant is proceeding with
counsel, give:
Attorney’s name Thomas H. Roberts, Esquire
Firm Thomas H. Roberts & Associates, P.C.
Address
804-783-2000
804-783-2105 f
Names
of each appellant you are representing on appeal
Will
you be handling the appeal? (In criminal cases counsel below will handle the
appeal unless relieved by this court.) Yes
FRAP
12(b) provides that each attorney who files a notice of appeal must file with
the clerk of the court of appeals a statement naming each party represented on appeal
by that attorney. Any additional counsel
must attach the requisite statement to this form.
Signature
________________________________
Date _____________
ATTACH:
1. ADDITIONAL PAGES CONTAINING EXTENDED
ANSWERS TO QUESTIONS ON THIS FORM.
2. THE NOTICE OF APPEAL.
3. THE DISTRICT COURT DOCKET SHEET.
4. A COPY OF THE ORDER OR JUDGMENT FROM
WHICH THE APPEAL IS TAKEN.
5. ANY OPINION OR FINDINGS.
6. ANY OPINION,
FINDINGS, OR RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE, AN
ADMINISTRATIVE LAW JUDGE, A SOCIAL SECURITY APPEALS COUNCIL, OR A BANKRUPTCY
COURT.
7. A COPY OF THE TRANSCRIPT ORDER, IF ANY.
8. A CERTIFICATE OF SERVICE FOR THIS
DOCKETING STATEMENT.
I certify that on this 11th day of May 2007, I caused a true and accurate copy of the foregoing to be served on the following opposing counsel/party and the United States Attorney General as indicated below:
[] via facsimile [X] via U.S. Mail [] via hand
Martin A. Donlan, Jr., Esquire
W. Benjamin Pace, Esq.
Williams Mullen
Two James Center
804-783-6932
804-783-6507 f
(Counsel for Gopinath Jadhav, M.D. and Southside Gastroenterology Associates, Ltd.)
Michael R. Shebelskie, Esq.
Rita Davis, Esq.
Hunton & Williams, LLP
(804) 788-8200
(804) 788-8218 f
(Counsel for Petersburg Hospital Company, LLC & The Cameron Foundation)
J. William Boland, Esq.
Charles Wm. McIntrye, Jr.,Esq.
Nathan A. Kottkamp, Esq.
McGuire Woods, LLP
(804) 775-1000
(804) 775-1061 f
(Counsel for Columbia/HCA John Randolph, Inc.)
And
Debra J. Prillaman, Assistant
Paul McNulty, USAG
Eastern District of Virginia
(804) 819-5400
(804)
771-2316 f