United States Ex Rel. Booker v. Pfizer, Inc.

United States Court of Appeals
For the First Circuit

No. 16-1805

UNITED STATES ex rel. ALEX BOOKER and EDMUND HEBRON,

Relators, Appellants,

STATE OF CALIFORNIA; STATE OF COLORADO; STATE OF CONNECTICUT;
STATE OF DELAWARE; STATE OF FLORIDA; STATE OF GEORGIA; STATE OF
HAWAII; STATE OF ILLINOIS; STATE OF INDIANA; STATE OF LOUISIANA;
STATE OF MARYLAND; STATE OF MICHIGAN; STATE OF MINNESOTA; STATE
OF MONTANA; STATE OF NEW HAMPSHIRE; STATE OF NEW JERSEY; STATE
OF NEW MEXICO; STATE OF NEW YORK; STATE OF NORTH CAROLINA; STATE
OF OKLAHOMA; STATE OF RHODE ISLAND; STATE OF TENNESSEE; STATE OF
TEXAS; STATE OF WISCONSIN; COMMONWEALTH OF MASSACHUSETTS;
COMMONWEALTH OF VIRGINIA; DISTRICT OF COLUMBIA,

Plaintiffs,

v.

PFIZER, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Lynch, Stahl, and Barron,
Circuit Judges.

Kevin J. Darken, with whom The Barry A. Cohen Legal Team,
Thomas N. Burnham, and Burnham International Law Office were on
brief, for appellants.
Kirsten V. Mayer, with whom Brien T. O'Connor, Emily J. Derr,
Nicholas S. Bradley, and Ropes & Gray LLP were on brief, for
appellee.

January 30, 2017

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 LYNCH, Circuit Judge. On August 31, 2009, the

pharmaceutical company Pfizer, Inc. settled various claims that it

had violated the False Claims Act ("FCA"), 31 U.S.C. §§ 3729 et

seq., with the U.S. Department of Justice ("DOJ"). As part of

that settlement, Pfizer entered into a Corporate Integrity

Agreement ("CIA") with the U.S. Department of Health and Human

Services ("HHS").

Less than a year after that settlement, relators Alex

Booker and Edmund Hebron, two former Pfizer sales representatives,

brought this qui tam action against Pfizer in federal district

court, alleging it was on behalf of the United States, more than

two dozen individual states, and the District of Columbia, and

asserting that despite the settlement, Pfizer had continued to

engage in conduct prohibited by the FCA and state analogues. None

of the sovereigns elected to intervene.

Relators filed their original complaint on July 13, 2010

and amended it several times before the district court denied their

motion for leave to file a sixth amended complaint. Primarily,

they alleged that Pfizer had continued to knowingly induce third

parties to file false claims for payment for Pfizer drugs with

government programs like Medicaid by (1) marketing the drug Geodon

for off-label uses, in violation of sections 331 and 355 of the

Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. §§ 301 et seq.;

and (2) paying kickbacks to doctors to compensate them for
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prescribing the drugs Geodon and Pristiq, in violation of the Anti-

Kickback Statute ("AKS"), 42 U.S.C. § 1320a-7b(b), (g).1 Relators

also alleged that Pfizer had violated the "reverse false claims"

provision of the FCA, see 31 U.S.C. § 3729(a)(1)(G), by failing to

pay the government money owed it under Pfizer's CIA with HHS.

Finally, relators alleged that Pfizer had violated the FCA's anti-

retaliation provision, see id. § 3730(h), by terminating Booker's

employment on January 6, 2010, purportedly in response to his

alleged whistleblowing activities.

All of these claims were resolved against relators, one

on a motion to dismiss and the rest on summary judgment. On March

26, 2014, the district court granted Pfizer's motion to dismiss

the claim under the reverse false claims provision (the "reverse

FCA claim") but allowed relators to proceed to discovery (with

limits) on the other claims. See U.S. ex rel. Booker v. Pfizer,

Inc. ("Booker I"), 9 F. Supp. 3d 34, 50, 60-61 (D. Mass. 2014).

On May 23, 2016, the district court granted Pfizer's motion for

summary judgment on the remaining claims. See U.S. ex rel. Booker

v. Pfizer, Inc. ("Booker II"), 188 F. Supp. 3d 122, 140 (D. Mass.

1 Off-label uses of a drug that are medically "essential"
or recognized in certain medical compendia, for which Medicaid
does reimburse, see 42 U.S.C. § 1396r-8(a)(3), (g)(1)(B)(i),
(k)(6), are not at issue in this case. See U.S. ex rel. Rost v.
Pfizer, Inc., 507 F.3d 720, 723 n.1 (1st Cir. 2007), abrogated on
other grounds by Allison Engine v. U.S. ex rel. Sanders, 553 U.S.
662 (2008).
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2016). Relators appeal the dismissal, the grant of summary

judgment, and certain of the district court's intervening

discovery rulings. We affirm the district court's merits decisions

and find no error in its management of discovery.

We rely on the district court's two thorough opinions

for a basic recounting of the case. See Booker I, 9 F. Supp. 3d

34; Booker II, 188 F. Supp. 3d 122. We give only that background

information needed for this appeal.

I. ANALYSIS

A. Appeal from Dismissal of Reverse FCA Claim

1. Appellate Jurisdiction

Pfizer wrongly suggests that we have no jurisdiction to

review the district court's March 26, 2014 order dismissing

relators' reverse FCA claim due to defects in relators' notice of

appeal. See Fed. R. App. P. 3(c)(1)(B) (a "notice of appeal must[]

designate the judgment, order, or part thereof being appealed").

Specifically, we reject the contention that there is no

jurisdiction because relators' notice of appeal did not explicitly

mention the dismissal order. While the notice did specify certain

other orders issued by the district court, it also specified the

court's May 26, 2016 final judgment disposing of the case, and "it

has been uniformly held that a notice of appeal that designates

the final judgment encompasses not only that judgment, but also

all earlier interlocutory orders that merge in the judgment."
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John’s Insulation, Inc. v. L. Addison & Assocs., Inc., 156 F.3d

101, 105 (1st Cir. 1998); see also Ocasio-Hernández v. Fortuño-

Burset, 777 F.3d 1, 6 n.12 (1st Cir. 2015).

2. Merits of Dismissal of Reverse FCA Claim

We affirm the district court's dismissal of relators'

reverse FCA claim on de novo review, albeit on grounds different

from those relied on by the district court.2 See Otero v.

Commonwealth of P.R. Indus. Comm'n, 441 F.3d 18, 20 (1st Cir.

2006). We take no position on whether the district court's

reasoning was correct.

The reverse false claims provision of the FCA imposes

liability on anyone who "knowingly conceals or knowingly and

improperly avoids or decreases an obligation to pay . . . money

. . . to the Government." 31 U.S.C. § 3729(a)(1)(G). The term

"obligation" is defined by the statute as "an established duty,

2 The district court reasoned that relators failed to
plead that Pfizer ever had an "obligation" to pay the government
because they failed to plead that HHS exercised its right to demand
payment under the CIA. Booker I, 9 F. Supp. 3d at 50. Relators
insist that an "obligation" to pay the government arises under the
CIA as soon as HHS is entitled to demand payment and that they
pled that Pfizer had such an obligation by virtue of pleading that
Pfizer failed to report a Reportable Event. They note that two
district courts have come to this conclusion as to when an
"obligation" arises under CIAs materially identical to the one at
issue here. See Ruscher v. Omnicare Inc., No. 4:08-CV-3396, 2014
WL 4388726, at *5-6 (S.D. Tex. Sept. 5, 2014); U.S. ex rel. Boise
v. Cephalon, Inc., No. 08-287, 2015 WL 4461793, at *3-7 (E.D. Pa.
July 21, 2015).
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whether or not fixed, arising from an express or implied

contractual . . . relationship." Id. § 3729(b)(3).

Relators' reverse FCA claim was predicated on Pfizer's

alleged breach of its obligations under its August 31, 2009 CIA

with HHS. The CIA imposed on Pfizer an ongoing duty to report its

"probable" violations of the FCA to HHS. Specifically, the CIA

defined as a "Reportable Event," inter alia, "a matter that a

reasonable person would consider a probable violation of . . .

laws applicable to any FDA requirements relating to the promotion

of Government Reimbursed Products." And the CIA provided that

"[i]f Pfizer determines (after a reasonable opportunity to conduct

an appropriate review or investigation of the

allegations) . . . that there is a Reportable Event, Pfizer shall

notify [HHS] . . . within 30 days after making the determination."3

Elsewhere, the CIA stated that Pfizer's failure to meet the

"obligations . . . set forth [above] may lead to the imposition

of . . . [a] Stipulated Penalty of $2,500 . . . for each day

Pfizer" is in breach. The CIA explained that, if HHS finds "that

Pfizer has failed to comply with [the aforementioned]

obligations," and if HHS thereafter "determin[es] that Stipulated

Penalties are appropriate, [HHS] shall notify Pfizer of . . .

3 The CIA also provided that "Pfizer shall submit to [HHS]
annually a report [that] shall include," inter alia, "a summary of
Reportable Events . . . identified."
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[HHS's] exercise of its contractual right to demand payment of the

Stipulated Penalties."

In their complaint, relators allege that a January 5,

2010 email sent by Booker to Pfizer's Corporate Compliance

Department, purportedly claiming that Booker's manager was

instructing his subordinates to engage in off-label promotion,

constituted a "Reportable Event" under the CIA. Because Pfizer

did not report this email to HHS, relators allege, Pfizer illegally

avoided its "obligation" to pay the CIA’s "stipulated penalt[y]"

of $2,500 per day for failure to report a "Reportable Event."

Pfizer argues -- as it did before the district court --

that relators fail to state a claim for reverse FCA liability

because Booker's email to the Corporate Compliance Department did

not constitute a "Reportable Event." Pfizer points out that the

"CIA does not require Pfizer to report all complaints" it receives.

Under the CIA, conduct becomes a "Reportable Event" only "if Pfizer

determines," after a chance to investigate, that the conduct is a

"probable violation" of a specific class of laws. As Pfizer

explains, nowhere in their much amended complaint do relators

allege that Pfizer ever determined Booker's complaint to be in any

way credible and therefore a "Reportable Event."4

4 Nor did relators seek reconsideration after discovery.
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 On the record in this case we affirm. We do not decide

if, under the CIA, Pfizer's authority to determine whether a

"Reportable Event" occurred is subject to an implicit

reasonableness limitation that prevents Pfizer from shutting its

eyes to conduct that it abides but that a "reasonable person" would

think is a "probable violation" of relevant law. Relators did not

assert before the district court, nor do they assert on appeal,

that the agreement should be construed that way and that Pfizer

acted unreasonably in not determining that Booker's complaint

constituted a "Reportable Event," so the point is waived. As

relators fail to allege that Pfizer determined that a "Reportable

Event" occurred, their complaint fails to state a claim for relief.

We affirm the dismissal on that basis.

B. Appeal from Summary Judgment on the Remaining FCA Claims

Relators next appeal the district court's grant of

summary judgment for Pfizer on their off-label promotion and

retaliation claims under the FCA.5 After reviewing those decisions

de novo, "drawing all reasonable inferences in [relators'] favor,"

Feliciano de la Cruz v. El Conquistador Resort & Country Club, 218

F.3d 1, 5 (1st Cir. 2000), we affirm both.

5 Relators do not directly appeal the grant of summary
judgment on their AKS-based FCA claim. Instead, they bring
challenges to some of the district court's discovery rulings that
were germane to that claim. For reasons we explain later, those
challenges fail.
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 1. Off-Label Promotion FCA Claim

Relators sought to prove that after Pfizer resolved its

FCA liability with the DOJ in 2009 for, inter alia, knowingly

inducing false claims through off-label promotion in violation of

31 U.S.C. § 3729(a)(1)(A), Pfizer continued to induce false claims

by promoting Geodon for three off-label uses.6 Those three uses

were (1) as a treatment for children and adolescents, (2) as a

bipolar maintenance monotherapy drug, and (3) as a treatment for

any condition at excessive dosages. Without deciding whether

relators had provided sufficient evidence of continued off-label

promotion to survive summary judgment, see Booker II, 188 F. Supp.

3d at 133 n.4, the district court concluded that relators' proffer

was fatally devoid of evidence that an "actual false claim" had

resulted from any such promotion, id. at 129. We agree.

It is well settled that "[e]vidence of an actual false

claim is 'the sine qua non of a False Claims Act violation.'" U.S.

ex rel. Karvelas v. Melrose-Wakefield Hosp., 360 F.3d 220, 225

(1st Cir. 2004) (citation omitted), abrogated on other grounds by

Allison Engine, 553 U.S. 662. That is, even when a relator can

prove that a defendant engaged in "fraudulent conduct affecting

6 Geodon is approved by the Food and Drug Administration
("FDA") pursuant to the FDCA as a treatment for "schizophrenia, as
monotherapy for the acute treatment of bipolar manic or mixed
episodes, and as an adjunct to lithium or valproate for the
maintenance treatment of bipolar disorder."
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the government," FCA liability attaches only if that conduct

resulted in the filing of a false claim for payment from the

government. Rost, 507 F.3d at 727. Because claims of fraud are

involved, even at the pleading stage relators are required under

Fed. R. Civ. P. 9(b) "to set forth with particularity [at least]

the who, what, when, where, and how of" an actual false claim

alleged to have been filed because of the defendant's actions.

Lawton ex rel. U.S. v. Takeda Pharm. Co., 842 F.3d 125, 130 (1st

Cir. 2016) (citations omitted). And at the summary judgment stage,

relators must produce competent evidence of an actual false claim

made to the government.

When FCA liability is predicated on a defendant's

alleged off-label promotion of drugs to medical providers, that

generally means the "specific medical provider[] who allegedly

submitted [the] false claim[], the rough time period[],

location[], and amount[] of the claim[], and the specific

government program[] to which the claim[] [was] made." Id. at 131

(citations omitted). This court has made clear that where relators

offer only "aggregate expenditure data by the government for" the

drug at issue, "with[out] identify[ing] specific entities who

submitted claims . . . much less times, amounts, and

circumstances," their claim falls "far short." U.S. ex rel. Ge v.

Takeda Pharm. Co., Ltd., 737 F.3d 116, 121, 124 (1st Cir. 2013).

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Relators argue that this is an impossible standard for qui tam

relators to meet and that we should change our law. We disagree.

After six years of litigation, relators' only proffered

evidence of actual false claims was aggregate data reflecting the

amount of money expended by Medicaid for pediatric Geodon

prescriptions (an off-label use) between January 2008 and March

2012, according to the National Disease and Therapeutic Index's

survey research. See Booker II, 188 F. Supp. 3d at 129-30. We

have previously held comparable data insufficient on its own to

support an FCA claim, even at the motion to dismiss stage. See,

e.g., Lawton, 842 F.3d at 132; Ge, 737 F.3d at 124; cf. U.S. ex

rel. Kelly v. Novartis Pharms. Corp., 827 F.3d 5, 13-14 (1st Cir.

2016) ("Merely alleging that a scheme was wide-ranging [and] that

a [false] claim was presumably submitted . . . will not suffice.").

Ultimately, "summary judgment . . . is 'the put up or

shut up moment in litigation,'" and a relator certainly must make

a greater showing than is required in a pleading in order "to get

in front of a jury." Jakobiec v. Merrill Lynch Life Ins. Co., 711

F.3d 217, 226 (1st Cir. 2013) (quoting Goodman v. Nat'l Sec.

Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010); see also U.S. ex

rel. Quinn v. Omnicare Inc., 382 F.3d 432, 440 (3d Cir. 2004)

("Without proof of an actual claim, there is no issue of material

fact to be decided by a jury. [Relator's] theory that the claims

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'must have been' submitted cannot survive a motion for summary

judgment.").

Relators rely on this court's Neurontin cases for the

proposition that their aggregate data is sufficient for them to

establish that false claims were submitted. See In re Neurontin

Mktg. & Sales Practices Litig. (Harden), 712 F.3d 60 (1st Cir.

2013), cert. denied, 134 S. Ct. 786 (Mem.) (2013) (denying

certiorari in all three Neurontin cases); In re Neurontin Mktg. &

Sales Practices Litig. (Aetna), 712 F.3d 51 (1st Cir. 2013); In re

Neurontin Mktg. & Sales Practices Litig. (Kaiser), 712 F.3d 21

(1st Cir. 2013). But in those cases, we held that plaintiffs could

use aggregate data together with strong circumstantial evidence to

overcome summary judgment on the distinct issue of whether there

was a causal link between fraudulent marketing and demonstrated

off-label prescriptions in the distinct context of a civil RICO

case -- not that such proof could be used to demonstrate the

existence of false claims in an FCA case. See, e.g., Harden, 712

F.3d at 68. Relators' data is woefully inadequate to support their

FCA claim.7 We affirm entry of summary judgment for Pfizer on this

core FCA argument.

7 As the district court noted, relators' proffer may have
a further shortcoming. See Booker II, 188 F. Supp. 3d at 130-31.
Pfizer asserts, and relators do not dispute, that several state
Medicaid programs do reimburse for the off-label uses of Geodon at
issue here. Id. at 131. Thus, even accepting relators' aggregate
data as proof that claims for reimbursement for off-label uses of
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 2. Booker's FCA Employment Retaliation Claim

Relators also contend that Pfizer terminated Booker's

employment on January 6, 2010 in retaliation for two instances in

which Booker complained to his superiors that the company was

continuing to promote Geodon for off-label uses after the

settlement.

Under the FCA's anti-retaliation provision, an employer

is prohibited from retaliating against an employee for any "lawful

acts done . . . in furtherance of an [FCA] action . . . or other

efforts to stop . . . violations of [the FCA]." 31 U.S.C.

§ 3730(h)(1). We have defined the type of conduct protected under

this provision as "limited to activities that 'reasonably could

lead' to an FCA action; in other words, investigations, inquiries,

testimonies or other activities that concern the employer's

Geodon were filed with a Medicaid program, relators' inability to
show that any such claim was filed in any non-reimbursing state
might render them unable to demonstrate the falsity of any claim
filed. Id.; see U.S. ex rel. Banigan v. Organon USA Inc., 883 F.
Supp. 2d 277, 294 (D. Mass. 2012) ("[I]f a state Medicaid program
chooses to reimburse a claim for a drug prescribed for off-label
use, then that claim is not 'false or fraudulent,' and [FCA]
liability cannot therefore attach [upon] reimbursement.").
However, whether state Medicaid programs actually have the
discretion to reimburse for off-label uses of a drug under the
Medicaid statute "is up for debate." Id. Because we find that
relators' claim easily fails on other grounds, we leave this issue
for another day.
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knowing submission of false or fraudulent claims for payment to

the government."8 Karvelas, 360 F.3d at 237 (citation omitted).

Relators rely on Booker's deposition testimony about two

instances in which Booker objected to directions from his

supervisor, District Manager Jon Twidwell. Those directions, they

say, were that Booker and other sales representatives promote sales

based on Geodon's effect on certain conditions, such as depression

and overt anger, though Geodon is not FDA-approved for those uses.

Booker II, 188 F. Supp. 3d at 139.

We affirm the grant of summary judgment for Pfizer on

this claim, but on different grounds than those relied on by the

district court.9 See Tutor Perini Corp. v. Banc of Am. Sec. LLC,

8 While Karvelas interpreted this provision before it was
amended to refer to "other efforts to stop . . . violations of
[the FCA]," rather than only "acts done . . . in furtherance of an
[FCA] action," see Pub. L. No. 111–203, § 1079A(c), 124 Stat. 1376,
2079 (2010), that addition has no effect on Karvelas's application
to this case. Courts have understood the amendment as having
clarified that the provision covers not only steps in the
litigation process, such as investigating or testifying, but also
measures, such as internal reporting or objecting to employer
directives, which might not be taken in direct furtherance of an
actual lawsuit. See, e.g., Halasa v. ITT Educ. Servs., Inc., 690
F.3d 844, 847–48 (7th Cir. 2012); Miller v. Abbott Labs., 648 F.
App'x 555, 560 (6th Cir. 2016) (unpublished opinion). Karvelas
construed the pre-amendment provision as covering such activities.
See 360 F.3d at 238. And the amended provision maintains the
requirement, noted in Karvelas, that even those activities must
pertain to violations of the FCA, meaning the submission of false
claims. See id. at 237.
9 The court concluded that the undisputed facts were that
Booker had not in fact objected to off-label promotion. Booker
II, 188 F. Supp. 3d at 139. The court reasoned that the supposed
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842 F.3d 71, 84 (1st Cir. 2016) ("[W]e may affirm the summary-

judgment holding on any grounds supported by the record, even if

not relied on by the district judge."). Even accepting that

Booker's objections to the directions were concerned with off-

label promotion, such objections, without more, are not enough

under Karvelas. See 360 F.3d at 237. Evidence that an employee

objected to or reported receipt of instructions to promote a drug's

off-label use, absent any evidence that those objections or reports

concerned FCA-violating activity such as the submission of false

claims, cannot show at the summary judgment stage that the employee

engaged in conduct protected by the FCA.

As we stated in Karvelas, the FCA protects only conduct

that concerns the "knowing submission of false . . . claims"

because only such conduct "'reasonably could lead' to an FCA

action." 360 F.3d at 237; see also Rost, 507 F.3d at 727 ("FCA

liability does not attach to violations of federal law[s] or

"off-label conditions" at the center of Booker's protests -- such
as depression and overt anger -- were actually either symptoms of
conditions for which Geodon is an on-label treatment, like
schizophrenia, or side effects associated with such on-label uses
of the drug. Id. Thus, the court explained, when Booker objected
to the directive to discuss them, he was objecting to a particular
manner of purely on-label promotion, which, bearing no connection
to the submission of false claims, could not reasonably lead to an
FCA action. Id. at 140; see also Karvelas, 360 F.3d at 237.
Relators say there is a dispute of material fact about this issue.
Our ruling renders it immaterial.

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regulations, such as marketing of drugs in violation of the FDCA,

that are independent of any false claim [for payment filed with

the government]."). Thus, we have rejected, at even the motion to

dismiss stage, an FCA retaliation claim to the extent that it was

based on an employee's allegations that he had reported "to his

superiors" that his employer was "fail[ing] to meet regulatory

standards . . . required for reimbursement by Medicare and

Medicaid." Karvelas, 360 F.3d at 237. We held that the employee

had not alleged protected conduct because he had alleged only that

he reported "regulatory failures but . . . not [that he]

investigat[ed] or report[ed] . . . false . . . claims knowingly

submitted to the government." Id. We reasoned that "[a]lthough

'[c]orrecting regulatory problems may be a laudable goal,'" those

problems were "not actionable under the FCA in the absence of

actual fraudulent conduct," and so reporting them fell outside the

purview of the FCA's anti-retaliation provision. Id. (second

alteration in original) (citations omitted). Other circuits

agree. See, e.g., McKenzie v. BellSouth Telecomms., Inc., 219

F.3d 508, 516 (6th Cir. 2000) ("Although internal reporting may

constitute protected activity, the internal reports must allege

fraud on the government."); U.S. ex rel. Yesudian v. Howard Univ.,

153 F.3d 731, 740 (D.C. Cir. 1998) ("[It is not enough that] an

employee[] investigat[ed] . . . his employer's non-compliance with

federal or state regulations. . . . [T]he [employee's]
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investigation must concern 'false or fraudulent' claims."

(citations omitted)); U.S. ex rel. Hopper v. Anton, 91 F.3d 1261,

1269 (9th Cir. 1996) (rejecting a retaliation claim where the

relator "was not investigating fraud" or "trying to recover money

for the government" but "was merely attempting to get [her

employer] to comply with Federal and State regulations").

Relators do not assert that the disagreements between

Booker and his supervisor concerned the submission of false claims.

They thus have no trial-worthy claim of retaliation under the

FCA.10

C. Discovery Rulings

Relators challenge the district court's rulings on their

two motions to compel the production of documents and their motion

to defer summary judgment and compel further production under Fed.

R. Civ. P. 56(d). We review a district court's denial of both

10 Because relators lack evidence that Booker engaged in
FCA-protected conduct, we do not reach Pfizer's alternative
argument that relators' retaliation claim fails, in any event,
because they lack evidence that "Pfizer's proffered nonretaliatory
reason for firing Booker -- his poor sales performance -- was a
pretext." Booker II, 188 F. Supp. 3d at 140; see also Harrington
v. Aggregate Indus. Ne. Region, Inc., 668 F.3d 25, 31 (1st Cir.
2012). However, the ample evidence that Booker had a long history
of negative performance reviews, had been placed on a series of
remedial performance plans, and had been notified of his failure
to comply with the requirements of his "Final" plan weeks before
his termination -- coupled with relators' failure to argue this
point in their opening brief -- further supports our conclusion
that relators' retaliation claim is without merit.
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types of motions for abuse of discretion. See Wells Real Estate

Inv. Tr. II, Inc. v. Chardon/Hato Rey P'ship, S.E., 615 F.3d 45,

58 (1st Cir. 2010) (motion to compel); Hicks v. Johnson, 755 F.3d

738, 743 (1st Cir. 2014) (Rule 56(d) motion). We intervene "only

upon a clear showing of manifest injustice, that is, where the

[district court's decision] was plainly wrong and resulted in

substantial prejudice." Bogan v. City of Bos., 489 F.3d 417, 423

(1st Cir. 2007) (citation omitted). We find no error.

1. Motions to Compel

Relators challenge on appeal the district court's

handling of their two motions to compel in no more than a

perfunctory one-paragraph section of their brief. They argue that

the court denied both motions "wholesale," "with the sole exception

of ordering Pfizer to produce" one particular class of documents.

The record flatly refutes the suggestion that the district court

did not pay appropriate attention to relators' requests. The

district court was admirably attentive to the many issues in this

case. Relators rely on Danny B. ex rel. Elliott v. Raimondo, 784

F.3d 825 (1st Cir. 2015), and cite its statement that "a district

court may not impose discovery restrictions that preclude a suitor

from the legitimate pursuit of evidence supporting her cause of

action." Id. at 835.

Raimondo is inapposite. There, we found that the

district court had abused its discretion when it upheld a
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magistrate judge's protective order, which categorically precluded

the plaintiffs from seeking "all policy or custom discovery." Id.

at 837. That suit was one "to impose liability upon official-

capacity state defendants under section 1983," and "[i]n such a

suit, it is black letter law that the plaintiffs must prove that

a policy or custom of the State contributed to the alleged

violations of federal law in order to prevail." Id. at 834. Thus,

the district court had abused its discretion because it barred the

plaintiffs from conducting any discovery germane to an essential

element of their claim. Not so here.

2. Rule 56(d) Motion

Relators also challenge the district court's denial of

their Rule 56(d) motion to defer summary judgment on their AKS-

based FCA claim until Pfizer produced a subset of the documents

relators had sought in their second motion to compel. We put aside

possible waiver by relators for failure to develop any legal

argument on appeal and find no error.

"Rule 56(d) relief is not to be granted as a matter of

course," and a court "is entitled to refuse a Rule 56(d) motion if

it concludes that the [movant] is unlikely to garner useful

evidence from supplemental discovery." Hicks, 755 F.3d at 743.

Relators were unable to uncover evidence supporting any of the

possible bases for their kickback claim after six years of

investigating. See Booker II, 188 F. Supp. 3d at 133-34. And a
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full year after the court denied their second motion to compel but

invited them to proffer further support for their requests at the

summary judgment stage, the district court found that relators

could muster only "an anecdotal report of possibly coincidental

changes in prescription trends" to justify their Rule 56(d) motion.

Id. at 135 n.6. We cannot say that the court was "plainly wrong"

to conclude that further discovery would likely be fruitless. See

Bogan, 489 F.3d at 423.

II. CONCLUSION

The district court reached the proper outcome as to each

of the merits issues before us on appeal, and we find no abuse of

discretion in its management of discovery. We affirm the judgment

in full. Costs are awarded to Pfizer.

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