Law Project for Psychiatric Rights Ex Rel. United States v. Matsutani

FILED
NOT FOR PUBLICATION OCT 25 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

LAW PROJECT FOR PSYCHIATRIC No. 10-35887
RIGHTS, ex rel. United States of
America; DANIEL I. GRIFFIN, ex rel. D.C. Nos. 3:09-cv-00080-TMB
United States of America, 3:09-cv-00246-TMB

Plaintiffs - Appellants,
MEMORANDUM *
v.

OSAMU H. MATSUTANI, MD;
WILLIAM HOGAN, individually and
as Commissioner of the Department of
Health and Social Services; TAMMY
SANDOVAL, individually and as
Director of the Alaska Office of
Children’s Services; STEVE
MCCOMB, individually and as Director
of the Alaska Division of Juvenile
Justice; WILLIAM STREUR,
individually and as Director of the
Alaska Division of Health Care
Services; JUNEAU YOUTH
SERVICES, INC., an Alaskan non-
profit corporation; PROVIDENCE
HEALTH & SERVICES, an Alaskan
non-profit corporation; ELIZABETH
BAISI, MD; JAN KIELE, MD; LINA
JUDITH BAUTISTA, MD; RUTH

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
 page 2

DUKOFF, MD; KERRY OZER, MD;
CLAUDIA PHILLIPS, MD;
SAFEWAY, INC.; FRED MEYER
STORES, INC.; SOUTHCENTRAL
FOUNDATION, an Alaskan non-profit
corporation; SHEILA CLARK, MD;
LUCY CURTIS; BARTLETT
REGIONAL HOSPITAL, an agency of
the City and Borough of Juneau,
Alaska; HEIDI F. LOPEZ-
COONJOHN, MD; ROBERT D.
SCHULTS, MD; MARK H.
STAUFFER, MD; RONALD A.
MARTINO, MD; IRVIN ROTHROCK,
MD; FAIRBANKS PSYCHIATRIC
AND NEUROLOGIC CLINIC, PC;
ALTERNATIVES COMMUNITY
MENTAL HEALTH SERVICES, DBA
Denali Family Services; ANCHORAGE
COMMUNITY MENTAL HEALTH
SERVICES, an Alaskan non-profit
corporation; PENINSULA
COMMUNITY HEALTH SERVICES
OF ALASKA, INC.; THOMSON
REUTERS (HEALTHCARE) INC.;
WAL-MART STORES, INC.;
FRONTLINE HOSPITAL, LLC, DBA
North Star Hospital; FAMILY
CENTERED SERVICES OF ALASKA,
INC., an Alaska corporation,

Defendants - Appellees.

Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
 page 3

Argued and Submitted October 12, 2011
Seattle, Washington

Before: KOZINSKI, Chief Judge, BEEZER and PAEZ, Circuit Judges.

1. “[T]he public disclosure originated in . . . sources enumerated in the”

False Claims Act, 31 U.S.C. § 3730(e)(4)(A). A-1 Ambulance Serv., Inc. v.

California, 202 F.3d 1238, 1243 (9th Cir. 2000). In light of our case law’s broad

construction of “investigation” in this statute, see Seal 1 v. Seal A, 255 F.3d 1154,

1161 (9th Cir. 2001), the Utah Attorney General’s correspondence qualifies as an

enumerated source.

2. Relators’ suit is “‘based upon’ . . . prior public disclosure.” United States

ex rel. Meyer v. Horizon Health Corp., 565 F.3d 1195, 1199 (9th Cir. 2009).

“[T]he evidence and information in the possession of the United States at the time

the False Claims Act suit was brought was sufficient to enable it adequately to

investigate the case and to make a decision whether to prosecute.” United States

ex rel. Found. Aiding the Elderly v. Horizon West Inc., 265 F.3d 1011, 1016 (9th

Cir. 2001) (internal quotation marks omitted). The Medicaid records relators

obtained from their Alaskan FOIA requests already were required by statute to be

supplied to the federal government. See Centers for Medicare & Medicaid

Services, Medicaid Statistical Information Statistics (MSIS): Overview (July 21,
 page 4

2011, 12:56:22 PM), http://www.cms.gov/MSIS/01_Overview.asp. Unlike in

United States ex rel. Aflatooni v. Kitsap Physician Services, 163 F.3d 516, 523

(9th Cir. 1999), this suit doesn’t involve “separate allegations of fraud against two

distinct groups of defendants,” so the public disclosure bar applies here to all

defendants. And, unlike in United States ex rel. Baltazar v. Warden, 635 F.3d 866,

869 (7th Cir. 2011), relators here haven’t provided “vital facts that were not in the

public domain.”

3. Relators’ suit concerns ongoing conduct, not specific and discrete time

periods as in United States ex rel. Bly-Magee v. Premo, 470 F.3d 914 (9th Cir.

2006). The public disclosure bar thus applies here to all claims at issue, including

those made after the relevant disclosures.

AFFIRMED.