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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 1, 2002 Decided February 7, 2003
No. 01-5265
UNITED STATES OF AMERICA EX REL. MARY R. HAMPTON,
APPELLANT
UNITED STATES OF AMERICA,
APPELLEE
v.
COLUMBIA/HCA HEALTHCARE CORP., ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(99cv03294)
Mike Bothwell argued the cause for appellant. With him
on the briefs was G. Mark Simpson.
Michael D. Granston, Attorney, U.S. Department of Jus-
tice, argued the cause for appellee United States of America.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
On the brief were Roscoe C. Howard, Jr., U.S. Attorney,
Douglas N. Letter, Litigation Counsel, U.S. Department of
Justice, and Michael F. Hertz and Jamie Ann Yavelberg,
Attorneys.
Richard P. Bress argued the cause for appellees Colum-
bia/HCA Healthcare Corp, et al. With him on the brief were
Roger S. Goldman, Adam S. Hoffinger, and Robert A. Saler-
no. Jennifer C. Archie entered an appearance.
Before: RANDOLPH and ROGERS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: Mary Hampton filed a complaint
in the Middle District of Georgia on February 12, 1999, under
the False Claims Act, 31 U.S.C. §§ 3729–3733. The Act
allows a private person (a relator) to bring a qui tam civil
action ‘‘in the name of the Government,’’ id. § 3730(b)(1), and
to receive part of any proceeds of the suit, id. § 3730(d).
Hampton’s complaint alleged that the defendants—Colum-
bia/HCA Healthcare Corp. (‘‘HCA’’), Clinical Arts Compre-
hensive Services, Inc. d/b/a Clinical Arts Homecare (‘‘Clinical
Arts’’) (a Georgia subsidiary of HCA), several Clinical Arts
employees, and others—had improperly billed the govern-
ment under the Medicare program for home health services.
In December 1999, the Judicial Panel on Multidistrict Litiga-
tion transferred Hampton’s case and twenty-nine others from
various districts to the District of Columbia under 28 U.S.C.
§ 1407 for consolidated pretrial proceedings.
The United States and HCA executed a partial settlement
agreement for thirteen of the complaints, including Hamp-
ton’s, on December 14, 2000. HCA agreed to pay the United
States more than $731 million and the United States agreed
to move to dismiss numerous claims against HCA, including
claims about the home health billing practices of more than
six hundred HCA subsidiaries (among them Clinical Arts) in
multiple states.
Pursuant to the agreement, on February 14, 2001, the
United States intervened in Hampton’s case with respect to
3
the improper billing claims against HCA and Clinical Arts,
but declined to intervene with respect to the claims against
the individual employees. One month later the government,
invoking the False Claims Act’s first-to-file rule for qui tam
actions, 31 U.S.C. § 3730(b)(5), moved to dismiss the claims in
which it had intervened. The government argued that
Hampton’s complaint against HCA and Clinical Arts was
barred because it was an action related to previously filed qui
tam suits, and that she was therefore not entitled to part of
the proceeds of the settlement. Also relying on the first-to-
file rule, HCA moved to dismiss Hampton’s entire complaint.
The district court granted the motions to dismiss, disposing of
the improper billing claims against HCA, Clinical Arts, and
the individual defendants. The court held that another rela-
tor had beaten Hampton to the courthouse by about eighteen
months.
There is reason to doubt our jurisdiction over Hampton’s
appeal. In general, a district court decision is final and
appealable within the meaning of 28 U.S.C. § 1291 only if it is
final with respect to all the parties and all their claims. Bldg.
Indus. Ass’n of Superior Cal. v. Babbitt, 161 F.3d 740, 742–43
(D.C. Cir. 1998); Franklin v. Dist. of Columbia, 163 F.3d 625,
628–29 (D.C. Cir. 1998). Some of the cases consolidated with
Hampton’s are still pending. Although FED. R. CIV. P. 54(b)
allows the entry of a final judgment in ‘‘an action’’ on ‘‘one or
more but fewer than all of the claims or parties’’ if the district
court expressly determines ‘‘that there is no just reason for
delay,’’ the court dismissed Hampton’s complaint without
issuing a Rule 54(b) certification.
Whether consolidated cases retain their separate identity
or become one case for purposes of appellate jurisdiction has
divided the courts of appeals, as is thoroughly discussed in
15A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H.
COOPER, FEDERAL PRACTICE AND PROCEDURE § 3914.7, at 602–08
(2d ed. 1992 & Supp. 2002), from which we borrow. Some
circuits hold that consolidated cases remain separate actions
and no Rule 54(b) certification is needed to appeal the dis-
missal of any one of them. See Beil v. Lakewood Eng’g &
Mfg. Co., 15 F.3d 546, 551 (6th Cir. 1994); Albert v. Maine
4
Cent. R.R., 898 F.2d 5, 6–7 (1st Cir. 1990).1 Others treat
consolidated cases as a single action, see Spraytex, Inc. v.
DJS&T & Homax Corp., 96 F.3d 1377, 1382 (Fed. Cir. 1996);
Huene v. United States, 743 F.2d 703, 705 (9th Cir. 1984);
Trinity Broad. Corp. v. Eller, 827 F.2d 673, 675 (10th Cir.
1987), or presume that they are, Hageman v. City Investing
Co., 851 F.2d 69, 71 (2d Cir. 1988), allowing the presumption
to be overcome ‘‘ ‘[i]n highly unusual circumstances,’ ’’ Kam-
erman v. Steinberg, 891 F.2d 424, 429 (2d Cir. 1989) (quoting
Hageman, 851 F.2d at 71). Still other circuits apply no hard
and fast rule, but focus on the reasons for the consolidation to
determine whether the actions are one or separate. See Hall
v. Wilkerson, 926 F.2d 311, 314 (3d Cir. 1991); Eggers v.
Clinchfield Coal Co., 11 F.3d 35, 39 (4th Cir. 1993); Road
Sprinkler Fitters Local Union v. Cont’l Sprinkler Co., 967
F.2d 145, 149–51 (5th Cir. 1992); Brown v. United States, 976
F.2d 1104, 1107 (7th Cir. 1992); Tri-State Hotels, Inc. v.
FDIC, 79 F.3d 707, 711–12 (8th Cir. 1996); Lewis Charters,
Inc. v. Huckins Yacht Corp., 871 F.2d 1046, 1048–49 (11th
Cir. 1989).
While our decisions have not foreclosed the issue, they
suggest that our court falls into the last camp. We have held
that when a district court consolidates cases and treats them
as such ‘‘for all purposes,’’ an order deciding fewer than all
the claims of all the parties cannot be appealed without a
Rule 54(b) certification. Phillips v. Heine, 984 F.2d 489, 490
(D.C. Cir. 1993) (internal quotation marks omitted); see also
Cablevision Sys. Dev. Co. v. Motion Picture Ass’n of Am., 808
F.2d 133, 136 & n.3 (D.C. Cir. 1987). The clear implication is
that if the consolidation is not ‘‘for all purposes,’’ a judgment
entirely disposing of any one of the cases might be considered
final and appealable. Although Hampton’s case and twenty-
nine others were consolidated, they were consolidated only
for pretrial proceedings, the extent of consolidation autho-
rized by the statute. See 28 U.S.C. § 1407(a). At the
1 The First Circuit’s position may not be as firm as stated in the
text. See Cablevision Sys. Dev. Co. v. Motion Picture Ass’n of
Am., 808 F.2d 133, 136 n.3 (D.C. Cir. 1987).
5
conclusion of pretrial proceedings the cases were to be re-
manded to the districts from which they were transferred.
Id. When final judgments were then rendered, appeals
would lie in the courts of appeals for their respective districts.
Treating the consolidated cases as one action at this stage
would therefore not ensure only a single appeal—one of the
objectives of the final judgment rule. And to force Hampton
to await the outcome of the remaining cases before appealing
would risk needless complications in the event one or more of
the pending actions was transferred back to the district
where it began. Despite the consolidation, Hampton’s action
thus retained its separate status and the order dismissing it
was a final judgment, appealable without the need for a Rule
54(b) certification. See Brown, 976 F.2d at 1107.
On the merits, the dispute centers on the False Claims
Act’s first-to-file rule: ‘‘When a person brings [a qui tam
action], no person other than the Government may intervene
or bring a related action based on the facts underlying the
pending action.’’ 31 U.S.C. § 3730(b)(5). The district court
held that a qui tam action filed before Hampton’s by a relator
named Randal Boston barred Hampton’s improper billing
claims. Boston had filed his complaint against HCA on
August 8, 1997, in the Northern District of Texas, also
alleging that HCA submitted false claims to Medicare.
Other courts of appeals have interpreted the words of
§ 3730(b)(5)—‘‘related action based on the facts underlying
the pending action’’—to bar ‘‘actions alleging the same mate-
rial elements of fraud’’ as an earlier suit, even if the allega-
tions ‘‘incorporate somewhat different details.’’ United States
ex rel. Lujan v. Hughes Aircraft Co., 243 F.3d 1181, 1189 (9th
Cir. 2001); see also United States ex rel. LaCorte v. Smith-
Kline Beecham Clinical Labs., Inc., 149 F.3d 227, 232–34 (3d
Cir. 1998). Hampton does not object to this standard, and
there are good reasons for us to adopt it.
Congress added § 3730(b)(5) to the False Claims Act in
1986. We described the purpose of the 1986 amendments to
the Act in United States ex rel. Springfield Terminal Ry. v.
Quinn, 14 F.3d 645 (D.C. Cir. 1994), a decision interpreting
6
another provision—31 U.S.C. § 3730(e)(4)(A), which bars qui
tam suits ‘‘based upon the public disclosure of allegations or
transactions’’ in specified types of public proceedings, id.,
including legal proceedings. See Springfield, 14 F.3d at 652.
The history of the False Claims Act ‘‘qui tam provisions
demonstrates repeated congressional efforts to walk a fine
line between encouraging whistle-blowing and discouraging
opportunistic behavior. The 1986 amendments TTT must be
analyzed in the context of these twin goals of rejecting suits
which the government is capable of pursuing itself, while
promoting those which the government is not equipped to
bring on its own.’’ Id. at 651. Cf. United States ex rel.
Findley v. FPC–Boron Employees’ Club, 105 F.3d 675, 686–
88 (D.C. Cir. 1997). The Springfield and Findley decisions
interpreted the words ‘‘based upon TTT allegations or transac-
tions’’ in § 3730(e)(4)(A) to mean ‘‘ ‘material elements of the
fraudulent transaction.’ ’’ Findley, 105 F.3d at 687 (quoting
Springfield, 14 F.3d at 655). The language of § 3730(b)(5)
differs from that of § 3730(e)(4)(A), but the objectives of
§ 3730(b)(5)—encouraging whistle-blowing and discouraging
opportunistic behavior—are the same. The only possibly
relevant difference in the language of the two provisions is
the use of ‘‘facts’’ in § 3730(b)(5) versus ‘‘allegations or trans-
actions’’ in § 3730(e)(4)(A). In this case the difference is of
no consequence, since we are comparing complaints rather
than findings of fact. Cf. Lujan, 243 F.3d at 1189.
We therefore hold that § 3730(b)(5) bars any action incor-
porating the same material elements of fraud as an action
filed earlier. In doing so we reject another possible test, one
barring claims based on ‘‘identical facts.’’ It might be argued
that a single sentence from the legislative history, which
states that ‘‘private enforcement under the civil False Claims
Act is not meant to produce class actions or multiple separate
suits based on identical facts and circumstances,’’ S. REP. NO.
99–345, at 25 (1986), supports such a test. But § 3730(b)(5)
does not say that the later action must rest on identical facts,
and the purposes of the qui tam provisions are against such a
reading. See Lujan, 243 F.3d at 1188–89; LaCorte, 149 F.3d
at 232–34.
7
Even though Hampton does not contest the ‘‘same material
elements’’ standard, she argues that it does not support the
district court’s decision. To evaluate her argument it is
necessary to understand the elements of the fraud in ques-
tion. Hampton and Boston both alleged violations of § 3729
of the False Claims Act. One way of establishing a violation
of this section is to prove that the defendant presented or
conspired to present a claim to the government, that the
claim was false, and that the defendant knew that the claim
was false. See § 3729(a)(1)-(3);2 JOHN T. BOESE, CIVIL FALSE
CLAIMS AND QUI TAM ACTIONS § 2.01[A], at 2–8 (2d ed. Supp.
2002).
Hampton thinks her complaint differs significantly from
Boston’s because it named different defendants. Boston sued
only HCA. Hampton sued not only HCA but also HCA’s
subsidiary Clinical Arts and several Clinical Arts employees.
As Hampton sees it, Boston’s complaint cannot possibly have
covered fraud by Clinical Arts and its employees because it
(1) fails to name Clinical Arts or its employees as defendants
and (2) specifically mentions fraud at HCA home health care
subsidiaries in six states that do not include Georgia. But
these are not differences in the material elements of the
fraud. Boston was a senior manager in HCA’s home care
group. He alleged a corporate-wide problem, revealed
2 Section 3729(a) provides, in relevant part:
Any person who—
(1) knowingly presents, or causes to be presented, to an
officer or employee of the United States Government or a
member of the Armed Forces of the United States a false or
fraudulent claim for payment or approval;
(2) knowingly makes, uses, or causes to be made or used, a
false record or statement to get a false or fraudulent claim
paid or approved by the Government; [or]
(3) conspires to defraud the Government by getting a false
or fraudulent claim allowed or paid;
TTTT
is liable to the United States Government for a [specified]
civil penaltyTTTT
8
through internal audits, in which HCA perpetrated fraud in
providing home health care services through numerous sub-
sidiaries. It is true that Boston’s complaint mentioned in-
stances of fraud at particular home health agencies in only six
specific states, not including Georgia. But Boston’s complaint
described these as ‘‘examples’’ and ‘‘samplings’’ of ‘‘a huge
number of illegal payments from Medicare TTT received by
Columbia/HCA’s 550 home health locations in 37 states.’’
Given Boston’s broad allegations based on his position as an
HCA insider, Hampton’s naming Clinical Arts—a specific
HCA subsidiary—and naming individual employees of Clinical
Arts were merely variations on the fraud Boston’s complaint
described.
Hampton also distinguishes her suit from Boston’s on the
basis that HCA’s subsidiaries rather than its corporate head-
quarters perpetrated the fraud (except for concealment of the
subsidiaries’ actions), and that fraud at any given HCA home
health care subsidiary occurred independently of fraud at any
other one. Because of this, the nature and extent of Medi-
care fraud in the provision of home health services varied
greatly among different subsidiaries, as did the type and
percentage of improperly billed visits.
We see no substantial difference between the claims.
Hampton alleged that she learned of HCA and Clinical Arts’
fraudulent Medicare billing practices while they were provid-
ing home health care for her mother beginning in 1994. She
claimed that HCA and Clinical Arts submitted improper bills
for services for her mother and other patients: the companies
billed for services that were miscoded; already paid for;
performed by others; never administered; or supposedly
administered to Hampton’s mother after she died in 1996.
Hampton also claimed that HCA and Clinical Arts submitted
bills for supplies and medications that were unnecessary or
never received; and that they billed for services to patients
who did not qualify under the Medicare guidelines, did not
need treatment, or were not charged required copayments.
The companies submitted false or inaccurate documentation
9
to the government and, so she alleged, shredded documents
in order to destroy evidence of the fraud.
Boston’s allegations were along very much the same lines.
He asserted that HCA home health subsidiaries billed the
government for services that did not meet the Medicare
eligibility criteria, for undocumented services, and for ser-
vices not medically necessary. He also alleged that they
submitted false or inaccurate Medicare documentation and
destroyed documents.
Hampton also raises an issue about the difference in the
time periods covered by the two complaints. Hampton’s
complaint covered Clinical Arts services beginning in 1994.
Boston’s covered Clinical Arts services during its status as a
subsidiary of HCA. Hampton says in her brief that HCA did
not acquire Clinical Arts until 1996. If Hampton is right
about the timing of the acquisition, she might have a valid
argument that part of her complaint covered a different set of
facts: fraud allegedly committed by Clinical Arts before it
became an HCA subsidiary. But nothing in the record
establishes when the acquisition occurred. And in any event,
Hampton did not make this argument to the district court.
Arguments not presented to the district court will not be
heard on appeal absent exceptional circumstances, District of
Columbia v. Air Florida, Inc., 750 F.2d 1077, 1084–85 (D.C.
Cir. 1984), and there are none in this case.
In short, Hampton’s action was related to and based on the
same underlying facts as Boston’s within the meaning of the
first-to-file rule and the district court correctly dismissed it.
Affirmed.