Selden Files 11th Circuit Brief Opposing DOJ on False Claims Case

Jack Selden

Jack Selden

On March 31, 2016, NAFUSA member Jack Selden and his firm, Bradley Arant Boult Cummings LLP, won summary judgment on behalf of AseraCare, Inc. in an important False Claims Act case. Judge Karon Bowdre held that the government’s second guessing of physicians’ medical judgment alone cannot prove false claims. Judge Bowdre struck down a $200 million FCA case against the hospice provider, holding that the government’s second guessing of physicians’ medical judgment alone cannot prove false claims.

On Monday, October 17, 2016, Selden and his team from Bradley, urged the Eleventh Circuit to preserve the AseraCare’s high-profile victory with its opening brief. As reported by Law360 on October 18, 2016:

Monday’s brief focused heavily on a pivotal ruling in which the judge limited the DOJ’s evidence in the trial’s first phase to expert testimony and patient records, which were meant to demonstrate objective falsity. On the eve of trial, the DOJ attempted to introduce more evidence, but the judge concluded that its attempt came too late.

According to AseraCare, the DOJ “severely limited its evidence” by not disclosing the evidence sooner, making the eventual grant of summary judgment “straightforward and inevitable.”

“Because of the government’s self-imposed limits on its evidence pertaining to the FCA’s falsity element, the government did not have sufficient evidence to create a jury question,” AseraCare wrote.

In its opening brief, the DOJ in August warned that health care providers could easily escape FCA liability under the district court’s reasoning simply by pointing to differences of opinion among doctors about appropriate treatment. But AseraCare pushed back on that assertion, arguing that its case only came down to differences of opinion because of the DOJ’s limited evidence.

“Although the district court made clear that, ‘without more,’ a difference of opinion among physicians would not be sufficient evidence of falsity, the government ignores the words ‘without more’ when it makes the specious argument that the district court’s holding would unduly impede the government’s ability to pursue fraud,” AseraCare wrote.

Terminal illness means that a patient is expected to have six months or less to live. Medicare patients who elect hospice care get treatment aimed at improving quality of life but also must give up Medicare coverage for potential lifesaving treatment.

In Monday’s brief, AseraCare also accused the DOJ of glossing over statutory language that says certifications of terminal illness should be based on physician judgment.

“The government completely ignores that Congress established a certifying physician’s clinical judgment as the sole criterion for a patient’s eligibility for the Medicare hospice benefit,” according to AseraCare.

The DOJ is also contending that the district judge conflated two required elements of FCA liability: a false claim and knowledge of falsity. Its reasoning was that differences of opinion are relevant only to knowledge of falsity — an element of FCA liability that was to be explored in a second trial phase that never took place.

But AseraCare on Monday said that the DOJ’s contention “misses the mark.” It argued that because evidence presented in the first trial phase was limited to objective falsity, the two elements therefore “could not have been conflated.”

Bart Daniel Named NAFUSA President

Bart Daniel

On October 8, 2016, at the NAFUSA annual conference in San Diego, E. Bart Daniel (District of South Carolina, 1989-1992) was elected president of NAFUSA by acclamation.

Daniel served as United States Attorney from 1989 to 1992. While U.S. Attorney Bart was appointed to the Attorney General’s Advisory Committee. He also directed the investigation and prosecution of Operation Lost Trust, one of the nation’s largest and most successful public corruption prosecutions. It resulted in 27 convictions, including 17 members of the South Carolina General Assembly along with other public officials. Bart served as Lead Counsel in 6 of the 8 jury trials, all resulting in convictions. In 1991 Bart was awarded the Attorney General’s Flag Award – the highest award given to a U.S. Attorney.

Bart graduated from The Citadel and University of South Carolina School of Law. He served as an Assistant Attorney General in its White Collar Crime Unit from 1980 to 1982. He was then appointed as an Assistant U. S. Attorney, prosecuting white collar and False Claims Act cases for 4 years. Thereafter, Bart opened his law practice defending government investigations and False Claims Act cases before being appointed U.S. Attorney in 1989.

Bart has served as President of the Charleston County Bar, Chairman of the Salvation Army Advisory Board, and Chairman of the Finance Committee on the South Carolina Commission on Higher Education. He has at various times been appointed Special Counsel by the Governor, the South Carolina Securities Commission, and Lead Counsel by the South Carolina House of Representatives in a lengthy reapportionment trial before a three-judge federal panel.

Bart has authored numerous publications including Health Care Fraud and Collateral Consequences (2nd Edition), Federal and State Securities Enforcement, and Environmental Crimes and Corporate Liability (2nd Edition).

Since returning to private practice in 1992, Bart has primarily defended government investigations including alleged violations of the False Claims Act.

San Diego Conference Huge Success

NAFUSA’s annual conference was held last week at the Hotel del Coronado in San Diego. Nearly 200 NAFUSA members, spouses, guests, sponsors and speakers enjoyed three days of beautiful weather and the ambience of one of the world’s great hotels.

At the opening reception on Thursday night, NAFUSA honored Deputy Solicitor General Michael Dreeben on his 100 cases argued on behalf of the Department of Justice before the United States Supreme Court. In the photo below, President Greg Vega presents Dreeben with a San Diego Padres jersey to mark his achievement.

Michael Dreeben with Greg Vega

Greg Vega with Michael Dreeben

On Friday afternoon, a tour and picnic lunch was held on the USS Midway, the famous aircraft carrier from WWII. During the lunch, President Vega welcomed Debby  Margolis, wife of David Margolis, and Cheri Margolis, David and Debby’s daughter, who were the guests of NAFUSA for the entire conference. In the photo below, President Vega is presenting Debby with the American flag which was flown over the Department of Justice in David’s honor at the request of NAFUSA.

Greg Vega with Debby and Cheri Margolis

Greg Vega with Debby and Cheri Margolis

On Saturday morning, Vice President Doug Jones presented AUSA Adam Braverman, SDCAL, with this year’s J. Michael Bradford Award as the AUSA of the Year.

Doug Jones with Adam Braverman

Doug Jones with Adam Braverman

The conference closed on Saturday night, with the passing of the gavel from Greg Vega to Bart Daniel, the new president of NAFUSA. Bart announced that the 2017 conference will be held in Washington, DC at the Mayflower Hotel on October 17-21. New York Times Pulitizer Prize winning reporter Charlie Savage then delivered the keynote address.

Charlie Savage at the del Coronado

Charlie Savage at the del Coronado

Adam Braverman Named Bradford Award Winner

Adam Braverman

Adam Braverman

Each year, NAFUSA recognizes an Assistant U.S. Attorney for outstanding performance through the J. Michael Bradford Memorial Award. The award is named after J. Michael Bradford, who served as a U.S. Attorney in the Eastern District of Texas from 1994 to 2001. Bradford, who died in 2003, had a distinguished career in public service, including successfully defending the government against lawsuits stemming from the 1993 siege of the Branch Davidian’s compound in Waco, Texas. NAFUSA annually solicits nominations from current U.S. Attorneys for the Bradford Award. Typically, the recipient has handled a significant investigation and prosecution or series of prosecutions that has had a significant impact and merits special recognition.

Once again, a number of exceptional nominations were made by U.S. Attorneys around the country. The Michael Bradford Award Committee was chaired by NAFUSA Vice President Doug Jones. Its members included Karen Hewitt, Hal Hardin, Richard Roper, and Neil MacBride. This year, the Board voted to give the award to AUSA Adam L. Braverman of the Southern District of California, who was nominated by United States Attorney Laura Duffy, who wrote: “AUSA Braverman has become a nationally recognized expert in developing creative methods to investigate and prosecute the highest levels of the Sinaloa Cartel.” Braverman will be honored at the San Diego conference.


The other nominees were:

George S. Cardona, CD of CA
AUSA Cardona was the lead AUSA in the FIRREA litigation against Standard & Poor’s rating Services for fraudulently inflating ratings of Residential Mortgage Backed Securities and Collaterallized Debt Obligations resulting in a $1.375 billion settlement.
Grant Rabenn, ED of CA
AUSA Rabenn has led the Central California Financial Crimes Task Force. In that role he developed an innovative approach to analyzing Suspicious Activity Reports (SARs) to develop criminal investigations with particular emphasis on public corruption, money laundering and drug offense.  He successfully prosecuted a number of significant cases, including one involving an FBI supervisory agent, using the SARs analysis.
Lois A. Foster-Sterrs, SD of FL
AUSA Foster-Steers prosecuted some the district’s most important fraud cases included five individuals in an $8,000,000 mortgage fraud scheme that targeted the Haitian-American community and the president and CFO of a south Florida company that defrauded investors of $60-$70 million for their personal use.
Mary Jane Stewart and Bill Toliver, ND of GA
AUSAs Stewart and Toliver were nominated for their efforts in implementing and improving the training program for new AUSAs  and SAUSAs. All new AUSAs written work is reviewed and their court appearances personally supervised.  They provided weekly lectures on various topics by experienced AUSAs and guest experts as well as weekly discussion groups designed to encourage AUSAs to share experiences that benefit the entire office.
Randall E. Kromm, District of MA

AUSA Kromm was nominated for his outstanding work and success in numerous appellate cases including among others the conviction and life sentence for James “Whitey” Bulger, the conviction of an individual for the arson of a predominantly African-American church in Springfield and the appeal brought by a news reporter of the district court’s erroneous sealing of a number of materials at the request of defense counsel.

Matthew R. Molten, District of Nebraska

AUSA Molten was nominated for his efforts in coordinating the investigation and RICO prosecution of two groups of Crisp gang members in Omaha, including defendants who the Omaha Police Department has described as the “who’s who” of violent gang members in Omaha.  This investigation and prosecution is ongoing.
Louis E. Valencia, District of New Mexico
AUSA Valencia was nominated for his extensive contributions to the USAO in New Mexico including the extradition and 2015 conviction of Francisco Melgar-Cabrerra, his brother Jose and two other Salvadoran nationals on charges of armed robbery, Hobbs Act and felony murder.  The case represented the first time that Salvadoran nationals were successfully extradited to the United States.
Doug Squires, SD of Ohio
AUSA Squires has been the lead public corruption AUSA in the SD of Ohio since 2009.  In 2015 he successfully prosecuted a charter school kickback scheme in which the school superintendent and board members bilked taxpayers out of ore than $500,000 disguise as consulting fees.  He also orchestrated the first successful extradition of a defendant, a former Ohio Deputy Treasurer, from Pakistan, which resulted in the defendant’s conviction on bribery charges.
Ernest Gonzalez, EDof TX
Beginning in 2010 AUSA and a team of federal, state and local law enforcement agents targeted Dallas area Los Zetas Cartel distributor Jose Vasquez and in his network.  The investigation ultimately resulted in 28 indictments of 157 individuals that dismantled a drug organization that had been responsible for annually importing over 60 tons of cocaine into the U.S.
Michael Collyer, ND of Ohio
AUSA Collyer is the healthcare fraud coordinator and Deputy Chief of the Major Fraud and Corruption unit in the ND of Ohio.  Last year he successfully prosecuted Dr. Harold Persuade, a renowned cardiologist, for performing medically unnecessary catheterizations, tests and stent insertions as part of a scheme to defraud Medicare and other insurers of nearly $6M.  He also secured on appeal the conviction of a violent drug dealer for the arson murder of eight children and one adult at a sleepover birthday party in 2005.
Bill Campbell, WD of KY
AUSA Campbell was nominated for his efforts in successfully completing a False claims Act case filed in 1999 against Lockheed Martin for failing to identify and report hazardous waste produced and stored at the Paducah Gaseous Diffusion Plant and that it failed to properly handle and dispose of the waste.  After 17 years of hard fought litigation Lockheed agreed to pay $5M to resolve the case.
James McGovern, ED of NY
AUSA McGovern served in the ED of NY for 11 years after serving 5 years in the District of Columbia office, repeatedly distinguishing himself prosecuting high profile hedge fund managers for securities fraud and insider trading while also prosecuting crimes of violence.  He served the ED of NY by supervising the Business and Securities Fraud Section before finishing his career as Chief of the Criminal Division.  He was described by US Attorney Robert Capers as representing “the very best of the Department of Justice” and a “model of intelligence, professionalism and fairness.”

Three Former U.S. Attorneys Question Michigan Prosecutors Defiance of Supreme Court- Updated 10/18/2016

Jim Brady

Jim Brady

NAFUSA members James Brady and Rich Rossman, joined by former U.S. Attorney Michael Dettmer, have authored an OpEd in the Detroit News on October 18, 2106, urging Michigan local prosecutors to follow the mandate of the United States Supreme Court.

Click here to view “Michigan prosecutors fail juvenile offenders”




The U.S. Supreme Court recently ruled in Montgomery v Louisiana that people serving mandatory life without parole sentences (LWOP) for crimes committed as children must be reviewed and given an opportunity for release if they can demonstrate rehabilitation.  Montgomery reinforced the 2012 ruling in Miller v Alabama that those sentences imposed on minors as if they were adults, “pos[e] too great a risk of disproportionate punishment” and must be limited to that “rare juvenile offender” who is incapable of reform.

The rulings do not mean that those youth must be set free. Instead, they require states to assess who the youth have become and provide them an opportunity to demonstrate their rehabilitation through a rigorous parole board review, stating  “Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment…Those prisoners who have shown an inability to reform will continue to serve life sentences. The opportunity for release will be afforded to those who demonstrate the truth of Miller’s central intuition—that children who commit even heinous crimes are capable of change.”
…most Michigan prosecutors are not following the spirit and letter of the law. They are not adhering to the Court’s warning that only the rare youth warranted a LWOP sentence and are conveniently ignoring the fact that the vast majority of youth have been rehabilitated.  Eighty-five percent of those serving LWOP sentences have been assigned the lowest security level allowed by prison officials.  Officials assess the security risk level of each inmate from Level 1 (lowest risk) to 5.  Those serving LWOP enter at Level 4 and, depending on their behavior, can move to a higher or lower risk level but cannot go below a Level 2.  When 85% behaved well enough in prison to be at Level 2, you might think they are the ones the Supreme Court had in mind when it wrote “that children who commit even heinous crimes are capable of change” and deserve the “opportunity for release”.
While thirty-eight states abolished juvenile LWOP or have less than 5 people serving that sentence, Michigan has the second highest number of people serving LWOP (363).  That’s partially because Michigan sentences children as young as 14 and those that never fired a weapon.  Where other states follow Supreme Court rulings and develop data-driven policies, Michigan sidesteps rulings and ignores data and facts.  And spends money doing so.  Michigan’s top prosecutor spent taxpayer resources unsuccessfully fighting Miller and Montgomery and now county prosecutors are willing to spend millions more to keep those youth who have long since been rehabilitated in prison.
As former U.S. Attorneys, we would have expected Michigan prosecutors to understand Montgomery’s central tenet that children are uniquely capable of growth and maturation and must be able to demonstrate their rehabilitation.  Instead, too many prosecutors are focusing on the crime committed by a troubled adolescent without exercising the judgement to recognize whether the adult before them today has rehabilitated himself. The first responsibility of a prosecutor in criminal litigation is to see that in each case, justice is done.  In failing to exercise a case by case review pursuant to the mandates of Miller and Montgomery, Michigan prosecutors not only fail our justice system, they fail all of us, the citizens of the State of Michigan.

Rich Rossman

Rich Rossman

See related editorial in the September 10, 2016, New York Times: Michigan Prosecutors Defy Supreme Court; and article from Detroit Free Press: After 50 years in prison, juvenile-lifer may see freedom within months.