United States Ex Rel. Vuyyuru v. Jadhav

337 abandoned, abated, or cannot be sus- are negli claim for on a prevail To Carolina, a matter of law. tained as in North supervision gent prove: must plaintiff which (1) act on negligent specific III. (2) incompe- ... is founded action reasons, therefore previous foregoing or we unfitness For the by inherent

tency, magistrate from which judgment negligence, acts of affirm specific (3) inferred; and may be judge. incompetency [employer] notice to actual

either AFFIRMED habits, con- or or bad unfitness such notice, showing that structive facts known the have could

[employer] oversight ordinary care he used

had (4) ...; supervision, from the of resulted complained

injury

incompetency proved. 587, Bass, S.E.2d 398 327 N.C. v.

Medlin (1990) v. Lumber

460, (quoting Walters (1913))

Co., S.E. 163 N.C.

(internal emphasis marks quotation omitted). ele- the third prove In order ex of America STATES UNITED ... notice, prove must ment, plaintiff “the VUYYURU, rel. Lokesh act, tortious] [employee’s prior to Plaintiff-Appellant, know reason to knew or had employer Barker employee’s incompetency.” v. N.C.App. Kimberly-Clark Corp., v. M.D.; JADHAV, Gopinath Southside (internal (2000) 821, 827 S.E.2d Limited; Associates, Gastroenterology omitted). marks quotation Randolph, Incor John Columbia/HCA allege any ba does not Cloaninger Compa Petersburg Hospital porated; would know or McDevitt upon which sis Foundation, LLC; ny, Cameron and Lo to know Parlier reason have were. corporation, De non-profit Virginia only acts of Parli incompetent because fendants-Appellees, are complaint alleged Lo er and March 9 and on which occurred those McDevitt, obvious employer, as Defendant 1; his em Sealed notice of Defendant prior not have

ly Sealed could 3; Defen 2; Sealed basis of Defendant on the incompetence Sealed ployees’ 5; Commu 4; Defendant act, incompetent if that act dant Sealed even present Systems Professional Cloaninger nity has Health Accordingly, alleged. Petersburg Services, Incorporated; any evidence allege present failed Defendants, Incorporated, Hospital, element required establish the could negligent supervi a claim of of notice fails as a claim therefore His sion.

of law. Movant; States United Sealed Reynolds, America; John Cloaninger’s state summary, all of

In Doctor, Movants. have they fail either because claims law United States of America ex rel. Vuyyuru,

Lokesh Plaintiff-

Appellant,

v.

Gopinath Jadhav, M.D.; Southside Gas

troenterology Associates, Limited; Randolph, John Incor

Columbia/HCA

porated; Petersburg Hospital Compa

ny, LLC; Foundation, Cameron

Virginia non-profit corporation, De

fendants-Appellees, 1;

Sealed Defendant Sealed Defendant

2; 3; Sealed Defendant Sealed Defen 4; 5;

dant Defendant Sealed Commu

nity Systems Health Professional

Services, Incorporated; Petersburg

Hospital, Incorporated, Defendants, Movant;

Sealed United States of

America; Reynolds, John

Doctor, Movants. 07-1455,

Nos. 07-1922.

United Appeals, States Court of

Fourth Circuit.

Argued: Oct. 2008.

Decided: Feb. Associates, P.C.,

Thomas H. Roberts & Richmond, Virginia, Appellant. for Martin Donlan, Jr., Pace, A. Benjamin W. Mullen, Richmond, Williams Virginia, for Jadhav, Appellees Gopinath M.D., and Associates, Southside Gastroenterology Limited; Davis, Rita Williams, Hunton & Richmond, Virginia, Appellees Peters- burg L.L.C., Hospital Company, and Cam- Foundation; eron Jeremy Byrum, S. Na- Kottkamp, McGuirewoods, L.L.P., than A. Richmond, Virginia, Appellee for Colum- John Randolph, Incorporated. bia/HCA KING, Before Judge, Circuit HAMILTON, Senior Judge, Circuit and REIDINGER, MARTIN K. United States Judge District for the Western District of Carolina, North sitting by designation. by published Affirmed opinion. Senior Judge HAMILTON wrote the opinion, in which Judge joined. KING Judge REIDINGER wrote dissenting opinion. OPINION HAMILTON, Senior Circuit Judge: (Relator Vuyyuru Lokesh B. Vuyyuru) appeals the district court’s dis- of, missal for lack of juris- diction, his Third Complaint, Amended complaint alleges various claims un- der the (FCA), False Claims Act 31 U.S.C. 3729-3733, §§ Virginia state law. He also challenges the district court’s award attorneys’ fees and costs to one of the defendants. We affirm. I. Chizewer,

ARGUED: David J. Kohn, Bell, Goldberg, Black, Rosenbloom On March Moritz, Ltd, & Chicago, Illinois, for Appel- filed qui tarn action under the FCA. Boland, lant. John William McGuire- After amending complaint times, three woods, L.L.P., Richmond, Virginia; Mi- ultimately Gopi- named Shebelskie, chael Randolph (Dr. Jadhav, Hunton & Jadhav), nath M.D. Southside Williams, Richmond, Virginia, Appel- for Associates, (the Gastroenterology Ltd. lees. Roberts, ON BRIEF: Practice), Thomas H. SGA Petersburg Hospital Com- Foundation, Regional Center2 Medical Southside L.L.C., The Cameron pany, (SRMC) Medical Cen- Randolph and John as Randolph, Inc. John and Columbia/HCA (JRMC), Practice. through SGA ter3 Defendants).1 (collectively defendants sole share- president is the Dr. Jadhav appeal, in present Of relevance part As of his Practice. holder of SGA Complaint, Third medical performed practice, Dr. Jadhav un- counts separate alleged three endosco- colonoscopies, procedures such count, Relator first In the the FCA. der duodonoscopies esophago gastro pies, “knowingly Defendants Vuyyuru alleged (EDG), gastrosto- endoscopic percutaneous presented to be or caused presented, (PEG place- tube my placements tube pay- filed, claim a false or fraudulent ment), biopsies. the United States approval with or ment court, note, as did the district We Government,” of 31 U.S.C. in violation inartfully Complaint is the Third Amended 3729(a)(1). In the second Nonetheless, with fair we state drafted. Defen- count, Vuyyuru alleged Vuyyu- crux of Relator assurance used caused “knowingly [or] made dants is that Defen- under the FCA ru’s claims or a false record made or to be used fraudulently government, billed dants or fraudulent get to false a statement pro- Medicaid through Medicare and by the Govern- approved paid or claim unnecessary incomplete grams, U.S.C. ment,” violation of in by Dr. Jad- performed procedures medical 139). (J.A. 3729(a)(2). In the third § to the nature respect hav. With De- count, Vuyyuru alleged that unnecessary procedures, alleged medical to defraud the United “conspired fendants (1) alleges: Complaint Amended the Third violation of 31 U.S.C. in government States Jadhav, 2005, Dr. while through March 3729(a)(3) false or fraudulent by getting § routinely took colonoscopies, performing of damage to the paid claims allowed or Ileocecal unnecessary biopsy an (J.A. government.” States’ the United (IC Valve) unable to when was Valve counts, 140). to these three respect With (2) unnecessarily Dr. polyp; a Jadhav find sought an undetermined and a patient on an EDG a performed fine in addition to a “duly trebled amount on consecutive replacement PEG tube $5,000 and per violation less than of not have could procedures the two days, when $10,000 together attor- more than a day for on the same performed been costs.” neys’ fees and (3) rate; during sometime lower an performed Dr. Jadhav Third Amended Com- first half of to the According biopsy of the colonoscopy unnecessary gastroenterologist, a Dr. Jadhav is plaint, female; old sixty-five year a Valve on Virginia at IC medicine practices who Company, Hospital (the Petersburg govern- defendant of America 1. The United States LLC, company then ment) liability it timely the district court that which limited notified plaintiff, during leav- the re- operated as thus to intervene SRMC declined owned proceed in the action ing Amended maining Third time relevant plaintiff. See U.S.C. sole as Complaint. 3730(b)(4)(B). § Complaint, 3.According Third to the Amended Complaint, According Amended to the Third Randolph, John defendant Columbia/HCA Foundation, Virgi- The Cameron defendant Inc., oper- corporation, owned Virginia corporation, is the successor non-profit nia to the during all relevant times ated JRMC City Authority Hospital interest Complaint. Third Amended authority oper- Petersburg, hospital which in or about 2003 SRMC until its sale ated (4) August performed Dr. Jadhav which he billed or caused to be billed to an unnecessary endoscopy seventy- on a the United States Government (5) female; year-old two on November though guidelines being CMS were performed Dr. an Jadhav unneces- met. sary biopsy on a seventy-two EDG with (J.A. 136).4 female, year days old and thirteen later Of relevance to the present issues performed unnecessary an colonoscopy appeal, 6, 2006, on October Defendants (6) with biopsy patient; on the same moved to dismiss the Third Amended 3, 2000, January on Dr. performed Jadhav Complaint under Federal Rule of Civil unnecessary colonoscopy an a seventy- on 12(b)(1), Procedure contending ju- year one respect old female. With to each risdictional bar set forth in 31 U.S.C. alleged unnecessary procedure medical 3730(e)(4) operated to bar Relator (2) just (6), listed in through the Third Vuyyuru’s FCA claims.5 Defendants at- Complaint alleges that Dr. Jad- evidentiary tached exhibits to their Consol- performed hav unnecessary proce- such idated Memorandum of in support Law dure “for purpose enhancing the sole motion, such they which exhibits asked the income and that of SRMC and JRMC.” district court to consider in resolving their (J.A. 133) added). (emphasis jurisdictional challenge. In part, relevant respect With procedures to the allegedly 3730(e)(4) provides as follows: Jadhav, not completed by Dr. but for (e) Certain Actions barred.— allegedly fraudulently Defendants billed government, the the Third Amended (4)(A) No court jurisdic- shall have Complaint offers no regarding information tion over an action under this section patients. Rather, individual it alleges in based upon public the disclosure of alle- general that “Dr. Jadhav frequently billed gations or transactions ... from the procedure for the of a colonoscopy and media, news unless ... the person upper-endoscopy when Dr. Jadhav failed bringing the action an original source (J.A. 134). to complete procedure.” the of the information. Moreover, aside, almost as an the Third (B) For purposes of this paragraph, Complaint Amended alleges: “original source” an means individual Defendant Dr. Jadhav for a period of who has direct independent knowl- nearly years failed to dictate the re- edge of the information on which the quired consult billing, note before mak- allegations are based voluntarily and has ing minor only chart, notations in the provided the information to the Govern- billing while for a level 3 to 5 consult. ment filing before an action under this (different At SRMC than practice his section which is based on the informa- JRMC) Dr. routinely Jadhav [] and in tion. most provide cases did not a dictation Id.

for consults and perform failed to gener- al multi-system failing examinations support to In of their motion to dismiss for follow guidelines CMS since 1997 for lack of jurisdiction, Defen- time, CMS is an abbreviation for the Centers for 5. At the same Defendants moved to dis- Services, Medicare and Medicaid which is the miss the Third Complaint pursuant agency Department of Health and Hu- 12(b)(6). to Federal Rule of Civil Procedure man responsible administering Services Such motion is not at appeal. issue on program. the Medicare in a state given in the tion contended dants against action him and malpractice were derived Complaint Third Amended (own- Randolph, Inc. information, John disclosed Columbia/HCA publicly from JRMC) just days of ten operator er and carry his Vuyyuru did that Relator present qui tarn initially after he filed the entitled to establishing he was burden during deposition action. asked When exception “original source” provided or been a source whether he had 3730(e)(4)(A)’s jurisdic- disclosure public Times, Virginia articles in the for several tional bar. Vuyyuru responded: disclosure respect With No, if they may reporters, ask-the alle- issue, Defendants contended they they something, have don’t under- Complaint Third Amended gations something stand medicine or some- ap- numerous articles derived from were that, they may thing like ask me some newspaper Times Virginia pearing they may expertise, kind of medical ask filing initial prior to sometimes, but I don’t recall all the to the At all times relevant this action. know, details, I you have med- particular the Third Amended Com- allegations of But reporters. ical discussions with publisher Relator was plaint, time, these they publish most of the attached the Times. Defendants Virginia people, vari- talking articles to various exhibits to their Consolidated articles as and all this stuff. hospital people ous their support Memorandum of Law want, you go directly you If have 12(b)(1) motion, which memorandum Rule only that. I’m reporters about subject: following on the of law stated the publisher. 30, 2005, roughly year March On Complaint, Plaintiff filed before Vuyyuru’s response to Defen- Times Virginia newspaper published 12(b)(1) motion focused almost dants’ Rule “Alleged insur- article titled front-page original excep- source exclusively upon ance, at fraud SRMC.” quality-of-eare 3730(e)(4)(A)’s disclosure tion to (A Ex. is attached as copy of the article de- jurisdictional respect bar. his With G.) article, by Dorothy Row- The written Vuyyuru testimony, Relator ar- position newspaper, a writer for the ley, staff taking were such gued that Defendants fraudulent sce- allegedly described an far as extrin- testimony out of context. As procedures and involving nario IC-Valve Vuyyuru at- goes, Relator sic evidence allegedly performed colonoscopies of extrinsic evidence to tached two items Dr. by [at] than five minutes Jadhav less Notably, prior to response. his written Rowley SRMC. See id. Notably, Ms. hearing on subsequent of the morning “[n]ursing sources who worked cited 12(b)(1) motion, Relator Defendants’ Rule factual providing the with Jadhav” as discovery any Vuyyuru request did Id. in the article. details contained Defendants’ respond in order to kind flurry Virginia published Times also 12(b)(1)motion. Rule by fraud Dr. Jad- alleging other articles JRMC, hav, SRMC, all of which and Vuyyu- to Relator The first attachment Medic- improper Medicare and asserted his own sworn response was ru’s written are of the Articles billing. (Copies aid declaration, following state- in which the H.). Ex. attached as to es- arguably went to his burden ments (1) 174-75). jurisdiction: (J.A. subject matter pointed also tablish Defendants 30, 2005 front- “Long before the March excerpt deposi- from a court to an district insurance, jurisdiction, Vuyyuru ‘Alleged qual- titled served sub- article page SRMC’, speaking poenas pathologists seeking at I was on several rec- fraud ity-of-care colonoscopy biopsy several Assistant U.S. ords related to with ] FBI and [ with the government procedures, performed by and other or reviewed Dr. Attorney Generals respective pathologist scenario and the describing the fraudulent Jadhav officials 1, January and colo- procedures since 1997. Defendants moved involving IC-Valve alia, min- quash subpoenas, less than five inter on the noscopies performed (2) 363); “In by parties yet Dr. basis that the had not conduct- utes Jadhav.” 26(f) conference, spoke discovery I and around 2003 and ed Rule see 26(d), (f), Agents FBI Vanosten and Irons re- Fed.R.Civ.P. and on the basis improper procedures subpoenas improp- medical constituted an garding Jadhav, by Dr. er attempt and Medicaid Fraud SRMC to investi- (3) (J.A. 364); “Additionally, gate allegations his false claim and JRMC.” before es- spoke jurisdiction. I with tablishing in and around 2002 and As motion, Attorney repre- part requested with a General’s Office Defendants responsible investigating entry protective precluding sentative of a order Re- regarding improper attempts Medicaid Fraud lator “from further at discovery Dr. and bill- procedures obtaining prior medical Jadhav from source ” at and JRMC.... ing ruling fraud both SRMC to the Court’s on Defendants’ Mo- (4) Id.-, to ... the FBI ...” “alleged Vuyyuru’s] tions to Dismiss [Relator 12(b)(1) an performed pursuant that Dr. Jadhav had unnec- claims to Rules and (Relator 12(b)(6) 26(f) essary biopsy upon Vuyyuru’s) and the parties’ Rule confer- ” (J.A. 393-94). Case, patient F. and .... Donald Jr. “falsified ence (H P) by creating history physical response, & filed a requesting the motion be patient’s procedure,” reading chart after the A fair Vuyyu- denied. of Relator part of a con- response such “conduct was ru’s makes clear that he served pattern by resulting subpoenas sistent Dr. Jadhav on the pathologists order many support false claims to Medicare Medic- to seek evidence to the merits of (5) (J.A. 364-65); claims, aid....” “As di- his FCA not to seek evidence to JRMC, I endoscopy investigat- support rector of presented

ed Dr. Jadhav and the data in Third Complaint. multiple meetings from 2001 to in- During this back and forth over the ‘who,what, when, where, cluding and how" subpoenas, assigned this action was ” to at administration at JRMC.... Id. Judge United States District L. Richard Williams. As we can best discern from the The a copy appellate below, second attachment is of a briefs and the record Times, clerk) page Virginia publishing a Judge (through Williams his law letter, by April parties dated Donald F. informed the that he would not Case, Jr., Times, order, in which Virginia pretrial to the issue a which sets forth explains per- discovery Mr. Case that Dr. Jadhav deadlines for the merits action, a colonoscopy upon formed him without his until disposition after of the mo- permission. Notably, Mr. Case stated that tions to dismiss had occurred. ” (J.A. he was in his “50’s.... 26, 2007, January On approximately two

Approximately two months after Defen- and one-half months after Defendants had 12(b)(1)motion, dants Third moved to dismiss the Amend- filed their Rule complaint ed hearing for lack of court held a By on such motion. code) 99253, code, according which to Rela- time, had been transferred the case defined, alia, Vuyyuru, tor inter as “a Richard Judge District States from United examination; history; a detailed detailed States District to United L. Williams making of and medical decision low com- Thus, Judge Payne. E. Judge Robert (J.A. (4) 428); his plexity,” interviews hearing. Payne conducted billing performed individuals who services hearing, sup- morning of the On the the direction of Dr. Jadhav and his under Rule to Defendants’ opposition of his port Dr. records con- patient review of Jadhav’s 12(b)(1) motion, Vuyyuru submit- firmed that Dr. Jadhav “billed both Medic- his earlier declaration. supplement a to ted and Medicare and further aid commented that the district court After that he used was most common code CPT “[h]ard- declaration was supplemental such (J.A. (5) 99253,” 429); code based his timely,” stated ly practice, Dr. observation of Jadhav’s supplemental important part [the “most “investigation, including the review of his that was report comes from declaration] charts, determined that [Dr. Jadhav] [he] DMAS, the yesterday from the received provide required did not the services to of Medical Assistance Ser- Department for code 99253 as he patients bill CPT (J.A. 476) Virginia.” vices for the State (6) did,” id.; by reviewing Dr. Jadhav’s added). According sup- to the (emphasis charts, pattern he observed a patient declaration, administers DMAS plemental it patient polyp, if a did not have which money providers, including Medicaid regular practice per- was Dr. Jadhav’s Jadhav, report contains “infor- Dr. (7) IC-Valve; biopsy form a regarding billings [Dr. made mation Vuyyuru performed colonoscopies upon payments DMAS from and Jadhav] patients, of Dr. after Dr. several Jadhav’s (J.A. 427). [Dr. Jadhav].” from DMAS to already performed incomplete Jadhav had an report attached the patients, and colonoscopies upon such supplemental declaration. exhibit that Dr. polyps found and tumors Jadhav patient contains no names report (8) observe; billing failed to the DMAS lists, spreadsheet it in a ages; instead ninety-three billings from report shows format, relating to procedure codes various Dr. to 2005 for which Jadhav billed amounts and corre- colonoscopies, billed IC-Valves; biopsied for government paid. amounts sponding (9) he “observed investigation, in his biopsy at time did [Dr. Jadhav] no Vuyyuru’s supple- Additionally, when he was able to bill for IC-Valve that, in he mental declaration states legiti- removing polyp or AVM or other JRMC, endoscopy director of was the biop- evidencing that his pathology, mate men- later assistant director. Worth solely to in- was done sies of IC-Valve he also tioning purposes appeal, of this billing,” practice is reflected crease (1) was on the medical declared that: report. billing attached DMAS (2) 2004; 1997 until staff at SRMC from 430-31). 2005, through he monitored and from 1997 Vuyyuru, Dr. Jad- investigated performed hearing, work Relator During the (3) hav, charts; including reviewing time, his leave to con- requested for the first perform discovery jurisdictional Dr. failed to on the issues observed that Jadhav duct 12(b)(1)motion, history and in Defendants’ Rule comprehensive and record raised necessary to majority prove in an to the facts examinations on the effort physical pursuant claims of his FCA qualify would for use of avoid dismissal patients his who 3730(e)(4)(A)’s (CPT juris- disclosure public § terminology code to procedural current subsequent Specifically, In its order district court dismissed dietional bar. 12(b)(1) motion, Vuyyuru’s Rule granting pursuant Defendants’ FCA claims to 3730(e)(4)(A)’s jurisdic- § that ruled disclosure motion, to more time to Vuyyuru ruling was not entitled In on the tional bar. type required of evidence to gather expressly finding district court made a subject jurisdiction over establish matter in the Third Amended As its rationale for so claims, his FCA claims. to complaint, pertaining the FCA court stated: ruling, the district actually Virginia “were derived from” the (J.A. 560) (internal [Pjrior articles. January hearing quota- Times to the omitted). Moreover, ... [pursu- Motions tion marks the dis- on the defendants’ 12(b)(1) 12(b)(6), expressly trict court also that ant to Rules held request period specif- of dis- “has not demonstrated the plaintiff did not ic covery respond required grant in order to to mo- facts for the Court to tion, evidentiary hearing prove ‘original to him source’ status.” or an Id. The dis- jurisdiction.... Only Vuyyuru’s at the end of that trict court dismissed Relator re- failing provide any to lack hearing, spe- maining after state law claims for of federal response question jurisdiction, § cific in to the Court’s see 28 facts U.S.C. request hearing, diversity jurisdiction, to do so at the did and for lack of id. provide more time to plaintiff request 1332. Plaintiff, however, them. had over ten 11, 2007, April On Foun- Cameron provide months to such facts. He filed $100,112.50 dation moved for an award of a complaint. four different iterations of attorneys’ ground in fees and costs on the for over He also was on notice three Vuyyuru’s that Relator claim that the dis- challeng- that defendants were months subject possessed juris- trict court matter ing subject jurisdiction matter in this diction and the FCA claims themselves Plaintiff, therefore, ample had case.... frivolous, vexatious, clearly clearly were opportunity gather type to of evi- clearly brought primarily pur- for the required dence to demonstrate poses of harassment. Relator jurisdiction Court opposed the motion following on the gather exists this case. He did (1) grounds: proper neither his claim to any. relator status nor his FCA claims were 565 n. frivolous, vexatious, clearly clearly counsel, Through colloquy dis- harassment; brought purposes for the trict court was able to establish several (2) (3) excessive; sought the fees were significant during hearing, facts ability pay. May he lacked the On

were relevant to the issues of 2007, the district court ordered The Cam- 3730(e)(4)(A)-(B). fact under eron Foundation to submit a revised fee practicing withdrew from medi- application, itemizing attorneys’ fees in cine at SRMC March followed such a manner that only lists entries relat- suspension privi- SRMC’s official ing to the documenting FCA claims and leges practice facility medicine at its hourly “the reasonableness of the claimed Moreover, suspended March 2004. JRMC by proofs rate from sources outside the practice privileges law firm of which [The Cameron Founda- facility April medicine at its (J.A. 707). counsel are members.” tion’s] 28, 2007, On March district court The district court also ordered Relator 12(b)(1) granted Vuyyuru provide specific Defendants’ Rule motion. to financial infor-

347 Vuyyuru, he en- According attor- to Relator was inability pay detailing his mation subsequently viewing, a favorable because titled to such Relator neys’ fees. 3730(e)(4)’s upon” “original § and to have the district “based request his waived in jurisdictional condition in- his financial source” issues are issues consider court Founda- extricably with The Cameron intertwined with the merits of connection Moreover, application. according to tion’s fee his FCA claims. Vuyyuru, when the record evi- application, fee The Cam- In its revised 3730(e)(4)’s § “based regarding dence $68,228.75 in at- sought eron Foundation upon” “original and source” issues is court and costs. The district torneys’ fees light favorable to him viewed most this amount to be reasonable determined drawn in and all reasonable inferences are Accord- supported by the evidence. and favor, the conclusion looms his 27, 2007, the district court ingly, August on claims should have survived Defen- FCA The pay Cam- ordered Relator 12(b)(1) dants’ Rule motion. $68,228.75 attorneys’ Foundation eron costs under 31 U.S.C. fees specifically addressing Before 3730(d)(4). Vuyyuru’s arguments individual noted time- Vuyyuru separately forth, just and contentions as set we en court’s order of ly appeals of the district appropriate legal deavor to review the Those dismissal and its award. fees/costs must consider framework under which we our have consolidated for appeals been them. The district courts of United review. subject are courts of limited matter States jurisdiction. Corp. Exxon Mobil v. Alla II. Servs., Inc., 552, 546, 125 pattah U.S. Vuyyuru’s first address Relator We (2005). They L.Ed.2d 502 S.Ct. court’s dismissal challenge to the district only jurisdiction authorized possess subject mat- claims for lack of of his FCA by them the United States Constitution chal- Vuyyuru’s jurisdiction. ter Russell, v. federal statute. Bowles first contends lenge prongs. has two 2360, 2365, 127 S.Ct. 551 U.S. in the manner erred (2007) (“Within constitutional L.Ed.2d 96 the evidence. The second which it viewed bounds, cases the Congress decides what by ruling erred the district court contends jurisdiction to consid federal courts have 12(b)(1) motion Defendant’s Rule on the er.”); Ins. Co. Kokkonen v. Guardian Life opportunity him the affording without 375, 377, Am., 114 S.Ct. 511 U.S. of discovery is- conduct on (1994). Thus, when 128 L.Ed.2d 391 fact. Neither has merit. sues of jurisdic subject lacks matter district court prong In the first action, the action must’ be tion over an the district court’s Rule challenge to H Arbaugh Corp., v. Y & dismissed. 12(b)(1) claims, Rela- dismissal of his FCA 500, 506-07, 126 S.Ct. U.S. with the district tor takes issue (2006). L.Ed.2d 1097 3730(e)(4)’s deciding 31 U.S.C. court’s here, When, chal as a defendant “original source” issues upon” “based ju fact, lenges him the the existence giving a trier of without fact, bears the plaintiff evidence in the rec- risdiction viewing benefit the truth of such facts proving light most favor- burden ord on those issues of the evidence. See preponderance drawing him all reasonable able (4th Bain, 1213, 1219 697 F.2d in his favor. Adams inferences from such evidence 348

Cir.1982) (“The proving subject sity citizenship clearly of under the errone- burden of on a motion to dismiss jurisdiction describing ous standard of review and the matter ju party asserting the plaintiff, “plain”); is on the of applicability such standard as risdiction.”)- jurisdictional “the Unless Native American v. see also Distrib. Sene- with the facts central Co., facts are intertwined 1288, ca-Cayuga Tobacco 546 F.3d dispute,” to the merits of the (10th Cir.2008) (“Where, here, 1293 as sub- may go beyond allegations the then ject-matter jurisdiction question turns on a jurisdic the complaint and resolve fact, of we review the district court’s factu- dispute by considering tional facts in evi findings al for clear error and review its pleadings, the such as affida dence outside novo.”). legal juris- If conclusions de Id.; Arbaugh, see also 546 U.S. at vits. dictional facts “are so intertwined with the (“[I]n instances, 514, 126 if S.Ct. 1235 some facts which the ultimate on issues subject-matter jurisdiction turns on con resolved,” Adams, merits must be facts, judge may trial be author tested 1220, F.2d at dispute “the entire factual ized to review the evidence and resolve the appropriately only by proceed- resolved If of an dispute on her own. satisfaction merits,” ing on the id. at 1219. a claim essential element of for relief is hand, In the case at 31 U.S.C. however, issue, jury proper is the trier 3730(e)(4) jurisdictional sets forth the facts.”) (internal of contested citations facts of which Relator bore the omitted); Copenhaver, Garcia v. Bell & proving by burden of a preponderance of Assocs., M.D.’s, PA., 1256, 104 F.3d evidence order to survive Defen- (11th Cir.1997) (“Factual ... attacks chal 12(b)(1) dants’ Rule motion to dismiss for lenge subject juris the existence of matter subject jurisdiction. lack of Rock- fact, irrespective plead diction States, Corp. well Int’l v. United 549 U.S. ings, pleadings, and matters outside the 457, 468, 127 S.Ct. 167 L.Ed.2d 190 affidavits, testimony such are con (2007) (§ 3730(e)(4) “jurisdiction-re- is a sidered.”) (internal quotation marks omit moving provision”). Once Defendants ted); States, v. 50 F.3d Williams United challenged the district court’s mat- (4th Cir.1995) (district may “court jurisdiction 3730(e)(4), ter under when beyond scope consider the evidence light below, considered in of the record pleadings disputes to resolve factual first bore the burden of concerning [subject jurisdiction”). matter] proving allegations underpinning jurisdictional We review district court’s upon” FCA claims were not “based findings of fact on issues that are not Virginia Times articles. Id. If he carried intertwined with the facts central to the 3730(e)(4)(A)’s burden, § this public disclo- plaintiffs merits of the claims under the jurisdictional sure bar would not apply. clearly erroneous standard of review and However, if carry burden, he failed to any legal flowing conclusions therefrom de separate he then bore the and distinct novo. Velasco v. The Government In donesia, (4th Cir.2004) proving origi- burden of himself entitled to 370 F.3d (“We status, nal source required which burden review the district factual court’s prove him to jurisdiction that he was “an findings respect individual who has direct legal independent knowledge clear error and the conclusion that Doe, novo.”); Sligh flows therefrom de information on which the (4th 596 F.2d 1171 & 1171 n. the Third Complaint] [in are Cir.1979) (reviewing finding voluntarily district court’s based and has provided the parties fact that had diver- information to the Government fil- before Co., Inc., Engine Allison government. the section which under this an action ing Although at 2129. subsection 31 U.S.C. 128 S.Ct. on the information.” based Rockwell, (a)(2) 3730(e)(4)(B). it does requirement, also has no such § See (holding 471-72, a require proof 127 S.Ct. “that the defendant made at U.S. to which purpose the “information” or for the that false record statement 3730(e)(4)(B) the infor- refers to speaks, paid § ‘a false or claim getting of fraudulent ” allegations are by mation on which relator’s Alli- approved [gjovernment.’ or the based, on which upon Co., Inc., the information Engine son 128 S.Ct. trig- allegations publicly (a)(3), the disclosed where as respect to subsection With 3730(e)(4)(A)’s public disclosure § gered here, conspirators the “the conduct that based). are jurisdictional bar involved alleged agreed upon are to have statement, a or making the of false record of appellate review Hoping to avoid conspirators it shown that the had must be jurisdictional findings court’s the false record or purpose ‘getting’ the of standard, Re clearly under the erroneous bring [gjovern- the statement to about juris baldly lator asserts fraudulent payment ment’s false or a the issues are intertwined dictional Co., Inc., Engine 128 S.Ct. claim.” Allison the merits of his central to factual issues Moreover, under subsection at 2130. A com disagree. direct claims. We FCA (a)(3), they “it must be established jurisdictional of the nature parison that the false record or statement agreed the central to with the factual issues issues the have a effect on Gov- would material claims of Relator FCA merits pay decision to the false or ernment’s intertwining. any notion of such dispels Co., Engine claim.” fraudulent Allison claims arise under Vuyyuru’s FCA Inc., at 2130-31. 128 S.Ct. 3729(a)(l)-(3). seriatim, In § 31 U.S.C. (1) liability impose statutory any subsections whether Logic these dictates that presents, or “knowingly or caused person presented on who the Defendants ever govern to claim presented, [the causes to be a false or fraudulent presented to be (2) pay claim for a false or made a false record government, fraudulent ment] to 3729(a)(1), § “know getting id. approval,” purpose ment or or for the statement makes, uses, or approved or causes to be made or ingly paid or fraudulent claim false (3) used, get conspired record or statement by government, false or approved or or paid or fraudulent a false record purpose using false claim 3729(a)(2); or [gjovernment,” bring government’s id. about the statement claim, are [gjovernment defraud the fraudulent “conspires to of a false or payment (1) claim allowed a false or fraudulent with whether getting not issues intertwined 3729(a)(3). §id. Amended Com- paid,” or Third Virginia Times were based plaint Co., Inc. v. United Engine In Allison (2) Vuyyuru had direct articles — Sanders, U.S.-, ex rel. States Defendants’ knowledge of independent (2008), 170 L.Ed.2d 1030 S.Ct. liabili- rise to FCA alleged giving conduct the dif recently clarified Supreme Court i.e., In the issues. ty, substantive three requirements of these fering proof of the Third Circuit: words plain language of As subsections. 3729(a)(1) requirements liability under sub suggests, alle- whether the (a)(1) assessing involve that the defen FCA requires proof section constituting the gations and transactions actually or caused be presented dant publicly dis- the claims were bases of or fraudulent claim presented a false were, whether, they if committed.” United States v. United closed and Co., 395, 364, original meaning Gypsum States 333 U.S. 68 relator is an source— (1948). 525, independent S.Ct. 92 L.Ed. 746 that he has direct information. 31 knowledge of the jurisdictional finding The first of 3730(e)(4)(A)-(B). §§ If a relator U.S.C. is fact under review the district court’s hurdles, over these he must then gets finding allegations that the of the Third make his substantive case. Complaint pertaining Amended to the ex rel. Atkinson v. Pa. United States i.e., actually upon, FCA claims were based (3d Co., 506, 473 F.3d 515 Shipbuilding from, Virginia derived the Times articles. Cir.2007). proof required to establish ex rel. United States Siller Becton Dick of Relator the substantive elements (4th Co., inson & 21 F.3d 1348 Cir. 3729(a)(l)-(3) Vuyyuru’s § claims under 1994) (“[A] upon’ relator’s action is ‘based necessary wholly from that to sur- distinct allegations only disclosure of jurisdictional challenge vive Defendants’ actually where the relator has derived 3730(e)(4). Atkinson, under See allegations upon from that disclosure the States ex F.3d 515. See also United based.”). qui which his tam action is Af County rel. Wilson v. Graham Soil & Wa- reviewing ter the relevant on evidence Dist., ter Conservation 528 F.3d ourselves, issue we are not left with the (4th Cir.2008) qui tam action (remanding definite and firm conviction that a mistake district court with instructions make has been committed-far from it. The dis necessary jurisdictional findings the of fact correctly trict court many observed that of 3730(e)(4)’s jurisdictional pertaining to allegations the substantive the Third bar, “permit[ting] parties after to sub- Complaint pertaining Amended to the may mit additional evidence as be neces- similar substantially FCA claims were sary for the court to make the factual de- allegations newspaper article jurisdictional terminations which by reporter Dorothy written Rowley and turn”). questions published page on the front of Virginia juris Having determined that the year prior Times almost one to Relator Vuyyuru’s dictional issues are not intertwined with filing of this action. Given that: (1) the central merits of Relator the newspaper preceded article claims, now turn to review Vuyyuru’s filing FCA we this action almost a (2) findings year; district court’s denied under clearly fact under the erroneous standard oath that he had been a source for several deferential stan Virginia review. Under this articles in the Times and essen review, dard of we will not overturn a tially stated under oath only that he had district of fact finding “simply given court’s be ever news reporters background cause we would have decided the case medical only information and then did so Cromartie, differently.” Easley v. 532 when asked to help reporter under 234, 242, (3) issue; U.S. S.Ct. 149 L.Ed.2d stand a medical (2001) (internal quotation evidence, marks omit Vuyyuru offered no in the form ted). Rather, only otherwise, we will overturn a dis of a stating sworn affidavit or clearly trict fact finding court’s erro that he was the source of the March although neous “when there is newspaper by Dorothy evidence to 2005 article Rowley support it, reviewing articles, court on the en Virginia other Times tire with the evidence is left definite and the district court logically reasoned that firm that a conviction mistake has been remarkable “[t]he similarities between the points us to the fact that he contained allegations article and news an editorial in the published wrote and the Third 20 and 27 of [paragraphs 30, 2005, Virginia Times on March proof significant are Complaint] allega- editorial outlines some of the same from ‘actually derived’ the latter are against Dr. that he makes in tions Jadhav former.” Complaint. Relator his Third Amended dispute does not Vuyyuru complains that the district court’s 30, 2005 in the March the fact that he analysis ignored wrote Rowley are by Dorothy article newspaper Assuming arguendo editorial. that the alle- remarkably similar to the substantive analysis ignore did the fact district court’s claims. to his FCA pertaining gations editorial, wrote the that Relator Rather, with the district he takes issue such action is of no benefit that the remarkable sim- reasoning court’s appeal. cause on This is be- proof that the significant ilarities serve as says absolutely nothing cause the editorial to his allegations pertaining substantive defrauding govern- Dr. about Jadhav from the actually claims are derived FCA by presenting causing pre- or to be ment article, nothing in that is arguing “[t]here single sented even a false or fraudulent not a that was [he] the record show government, to the payment claim for (Relator Vuyyu- that article.” source for 3729(a)(1) § qua is the sin non of a Vuyyu- Br. at Opening ru’s v. violation. United States ex rel. Clausen logi- factually wrong is argument ru’s Am., Inc., 1301, Corp. 290 F.3d Lab. factually argument His is cally flawed. (11th Cir.2002); Westing- 1311 Harrison v. because, men- flawed, already we have Co., 776, house Savannah River 176 F.3d tioned, denied under oath (4th Cir.1999). Similarly, the editorial 785 a for several that he had been source says nothing about the Defendants know- Virginia Times and essen- articles ingly making, using, causing or to be made only that had tially stated under oath he used, get a or statement to or false record background medical reporters news given paid ap- or fraudulent claim or false only and then did so when information government anything nor proved understand a help reporter asked conspiring the Defendants to de- about deposition such tes- medical issue. While by getting a false or government fraud the evidence timony is not alone conclusive Thus, paid. claim allowed or fraudulent Rowley that he was not a source of the for Re- even under the best-case-scenario article, suggests that he was strongly it that Vuyyuru, lator which is some logi- Vuyyuru’s argument not. in his Third Amended Com- allegations flawed, ignores it the fact cally because were to the FCA claims plaint pertaining proving burden of that he bears the disclosure, e.g., public not based jurisdictional begs facts and necessary in less performed colonoscopies Dr. Jadhav why simply did not offer question as to they normally take than five minutes when district sworn statement to the his own minutes, cannot that he still show fifteen unequivocally stating that he was upon” finding is the district court’s “based Rowley article. source for the primary 3730(e)(4)(A)’s clearly erroneous. Section attacking In his shot at bar encom- public last disclosure upon pri- based finding passes partly factual that his substantive actions even court’s claims disclosures. See United States pertaining public to the FCA allegations Group, Healthcare public disclosure with- ex rel. Boothe Sun were derived from (10th Inc., n. 6 Cir. 3730(e)(4)(A), 496 F.3d meaning 3730(e)(4)(B).6 2007); reviewing ex rel. Kreindler & After the rele- United States ourselves, vant evidence on this issue we Technologies Corp., Kreindler v. United are not at all left with the and firm definite (2d Cir.1993); F.2d United conviction that a mistake has been commit- Indus., Precision Co. v. Koch States ex rel. ted. (10th Cir.1992). Inc., In 971 F.2d

sum, First, court’s find- although we hold district the Third Amended Dr. ing Complaint alleges of the Third Jadhav and billing SRMC carried on their fraudulent to the Complaint pertaining involving unnecessary biopsy scheme i.e., actually upon, FCA claims were based through of the IC Valve March Re- from, derived disclosure of alle- in- lator cannot be a direct and clearly gations from the news media is not dependent respect source with al- erroneous. legations of fraud involving SRMC or its The second and last 2003, because, by facilities after March finding of fact under review is the district time, Vuyyuru that Relator had with- finding Vuyyuru that Relator is not court’s practicing drawn from medicine at Rockwell, 474-75, original entitled to source status under SRMC.7 See 549 at U.S. position discovery 6. We note that the dissent takes the to conduct in order to obtain actual original court decided the purpose proving, district fraudulent bills for the evidence, opposed a through source issue in terms of facial as to extrinsic his entitlement to challenge subject jurisdic- a factual to original matter source status. 358, tion. Post at 360-61. A full review of transcript hearing dissenting colleague the 7. on the Rule Our asserts that 12(b)(1) presented motion and the district court’s Mem- district court was with evidence Opinion granting casting such timing Vuyyu- orandum motion make doubt on the of Relator abundantly departure clear the district court ulti- being ru’s from SRMC as March mately original (such decided the source issue Vuyyuru that Relator would no challenge subject terms of a factual to longer matter position gain be in a to direct and jurisdiction. example, For in its Memoran- independent knowledge any FCA-violative Opinion, dum the district court time). observed that by conduct SRMC after that We dis- Vuyyuru First, Relator below, agree. Vuyyuru Relator never disputed defense counsel's at ample opportunity supply statement has had to 12(b)(1) hearing specific on the Rule motion that Re- opposed Court with the facts—as to Vuyyuru "actually prac- lator showing mere withdrew from how and when conclusions— ticing independent medicine at he obtained direct and in March of '03.” [SRMC] knowl- Moreover, (J.A. 498). edge given alleges oppor- of the fraudulent acts that he when statement, complaint, tunity support appeal challenge in his on to those alle- to such has, Instead, gations competent proof. Vuyyuru with He Relator did not. in his however, utterly Opening appeal, failed to do so. Vuyyuru Brief on (J.A. 565) (internal citation, marks, stated, section, quotation in the Statement of the Facts omitted). ellipsis See also department 565 n. that he was "a member of the March, 28, Op.) District Court's 2007 Mem. medicine at [SRMC] from 1997 to 2003.” ("Plaintiff (Relator ample opportunity gath- ... had Vuyyuru's Opening Br. at Rela- statement, type required er the Vuyyuru again of evidence to demon- tor made this same Brief, subject juris- Argument strate to the Court that matter Opening section of his gather support diction exists in this case. He did argument not of his that the district any.”). irony ignored of the situation is that had court the fact that he first ob- Vuyyuru also views the district court's tained the information that was not available ruling original on the public by reviewing nonpublic source issue as one to the medical deciding evidentiary such issue in terms of a factual chal- support records. As statement, for such Indeed, lenge jurisdiction. paragraph cited Declaration, repeatedly argues that the district stating of his March 2006 "From refusing grant erred in him additional time on or about 1997 to I was a member of tion, ie., Case, (relator patient Donald F. was not to establish failed 127 S.Ct. and Relator of- eligible status because Medicare original source direct jury claims found fered no evidence to establish that he was only false af- discovered pondcrete insolid eligible any involved other federal health-care employment). left his ter relator any program assistance under which a claim upon Defendants could have made 3729(a)(1), Second, respect Vuyyuru’s fisc. Relator mere evidence to estab- glaring a lack of there is suspicion that there must be false or that, the time filed at lish lurking (or fraudulent claim around some- even on March this action carry his burden of simply where does the Third Amended Com- the time he filed 2006), original he had direct that he is entitled to August proving plaint on knowledge De- independent source status. presented had ever or fendant this case Moreover, not, analysis our does as the particular false presented caused to be contends, require dissent that Relator government claim to the or or fraudulent Vuyyuru “prove particulars of the indi- voluntarily provided gov- that he had vidual claims as a Medicare Medicaid fil- information before ernment with such proving condition to how he had direct and most, charac- action. At and this ing this independent knowledge giving of the facts stretch, terization is Rath- rise to those claims.” Post had on issue shows that he evidence er, logically, analysis requires, quite our that: independent knowledge and direct Vuyyuru prove that that he has Relator (1) and Medi- Dr. billed Medicaid Jadhav independent knowledge direct and of using CPT code general, care in often to his claims. giving facts rise FCA requires the doctor to have (a)(1) Therefore, claim in the case of an history; a a detailed medical performed defendant, analy- our against particular a examination; medical decision and detailed that he requires prove the relator to sis (2) Dr. Jadhav making complexity; of low knowledge that independent has direct and comprehen- record a perform failed to and presented had or caused to the defendant history perform physical and examina- sive or fraudu- presented particular be a false that majority patients on the of his tions government. claim the lent to 99253; of code qualify would for use CPT Third, evidentiary ex- Vuyyuru’s (3) performed Dr. an unneces- and Jadhav for the first time presented hibit which he (Relator Vuyyuru’s) sary biopsy upon his Rule hearing on Defendants’ day Case, a Donald F. Jr. and created patient 12(b)(1) dismiss, bill- to the DMAS motion chart history physical patient’s him no aid to whatsoever. ing report, is of The disconnect be- procedure. after was Assuming arguendo report that such Vuyyu- this information and Relator tween that Defen- probative evidence somehow establishing original of source ru’s burden fraudu- actually false or dants submitted Vuyyuru never status is obvious. Relator govern- payment lent claims for any knowledge underper- connected carry ment, nothing to such evidence does by care Dr. Jadhav formance of medical what Vuyyuru’s proving burden of by an actual claim fisc with knew, time he filed this action. at the Indeed, single any of the Defendants. Likewise, nothing does such evidence Vuyyuru identifies patient which Relator respect with carry proving, his burden of detailed informa- gives name and some (J.A. 251). gional Center.” at Re- Medical department dle of medicine Southside Defendants, that he in- to each of the contentions are with- any agency First, FBI or federal that formed the out merit. our review of the record presented such Defendant had or caused that Relator ample discloses had an actual false or fraudu- presented to be notice that Defendants’ attack on the basis payment government. claim to the lent juris- of the district court’s diction was a factual attack rather than a glaring also a lack of evidence There is facial one. multiple Defendants attached Vuyyuru’s original to establish Relator evidentiary exhibits their Memorandum respect allega- source status with to his 12(b)(1) in support of Law of their Rule 3729(a)(2) to his pertaining tions Vuyyuru acknowledged motion. Relator (a)(3) Co., Inc., Engine claims. Allison fact stating his Memorandum in say it 128 S.Ct. 2129. Suffice 12(b)(1) Opposition to Defendants’ Rule offered no more than has essentially motion that “[t]he [Defendants that he had scintilla evidence direct pleadings ask the court to look outside the independent knowledge any and then to view the light evidence actually Defendants this case made a most moving party....” favorable to the purpose false record or statement for the (J.A. 343). Moreover, fraudulent claim getting paid false or approved by government, evidentiary attached 31 U.S.C. two exhibits to his 3729(a)(2), nor more than a scintilla of Memorandum of in Opposition Law to De- indepen- 12(b)(1) motion-(l) evidence that he had direct and fendants’ Rule his own knowledge conspired (2) dent that Dr. Jadhav declaration; copy sworn of a of the Defendants to make a false Times, page of the Virginia publishing purpose record or statement with the Donald F. April Case’s 2005 letter to having bringing a material effect about Times-and, Virginia just prior to the government’s payment of a false or hearing district court’s on the Rule claim, 3729(a)(3); § fraudulent id. at Alli- 12(b)(1) motion, Vuyyuru Relator submit- Co., Inc., son Engine 128 S.Ct. at 2130-31. evidentiary ted two more in sup- exhibits port opposition of his to such motion. As In prong Vuyyu- the second of Relator Judge for Richard L. Williams’ order to challenge ru’s to the district court’s dis- up discovery hold until pretrial after the missal of his FCA claims for lack of sub- case, conference in the such order in no ject jurisdiction, Vuyyuru matter Relator way prevented Vuyyuru Relator from con- by contends the district court erred dis- ducting discovery jurisdictional on issues missing subject his entire action lack of for fact, of wholly separate which are from jurisdiction matter affording without him Indeed, issues of fact on the merits. if the opportunity discovery to conduct on Vuyyuru Relator was unclear as to wheth- jurisdictional fact. In sup- issues of er he needed to seek leave to contention, conduct port Vuyyuru of this discovery jurisdictional fact, on issues of further that when contends United States he could have Williams, requested clarification from Judge District Richard L. Court clerk, long district court before communicating through hearing his law or- 12(b)(1) motion, on Defendants’ Rule parties up discovery dered the to hold on Moreover, conference, until he did not do. pretrial after the it meant the district court did not abuse prohibited conducting refusing he was from its discretion discovery jurisdictional grant Vuyyuru on of issues fact additional time to necessary discovery jurisdictional to survive Defendants’ Rule conduct on the is- 12(b)(1)motion. sues of fact. may the court award to the defendant that Rela- arguendo if we assumed

Even attorneys’ ex- its reasonable fees and prevented Vuyyuru was somehow tor prevails if the penses defendant conducting from discov- fact, claim an action and the court finds that the such jurisdictional issues ery on person bringing the action was not advance Relator would assumption frivolous, vexatious, clearly clearly This is because appeal. case on identify any brought primarily purposes does not evi- Vuyyuru through harassment. have obtained might that he dence relevant to es- discovery, which would be reading Id. From our careful of the district in his favor. jurisdictional facts tablish August 2007 Memorandum court’s proffer Similarly, did addressing The Cameron Founda- Opinion that he was testimony any sworn below attorneys’ for an tion’s motion award on the stand at the hear- give prepared costs, convinced that the fees and we are have carried his burden ing which would attorneys’ district court based its fees/ jurisdictional facts under establishing the that The findings costs award its 3730(e)(4) also won- § in his favor. One ac- prevailed Foundation Cameron Vuyyuru would have why Relator ders tion, Vuyyuru’s claim of and that Relator discovery for ex- regarding, needed even subject jurisdiction matter over his FCA indepen- gained how he direct ample, clearly frivolous. claims was billings false knowledge alleged dent first attacks the dis- Defendants, in- because such submitted attorneys’ award on trict court’s fees/costs be his own custo- formation should within court erroneous- the basis that the district and control. dy in de- ly appropriate standard ignored sum, proper he was a relator termining the district court’s find- whether In we hold 3730(e)(4). regard, In this Rela- is- under ings respect 3730(e)(4) argu- much the same are not tor makes of fact under sues erroneous, thus, challenging that he made in clearly district ments 12(b)(1) court’s Rule dismissal of err as a matter of law district court did not Complaint. According Complaint the Third Amended dismissing the Third Amended the district court’s jurisdiction. Vuyyuru, Ac- to Relator for lack of standard ignoring appropriate action in cordingly, we affirm such dismissal. determining proper whether he was 3730(e)(4) § warrants rever- relator under III. order, reversal, the dismissal sal of Vuyyuru’s address Relator We next turn, the attor- “necessitates reversal of challenge to the district court’s award (Relator Vuyyuru’s ney fees award.” to The attorneys’ fees and costs Cameron then at Opening Br. Vuyyuru’s challenge Foundation. Relator that: goes argue on to is without merit. dismissal, a reversal of the even without in this case to it is error on the record by The Cameron Founda- Upon motion clearly had no reasonable tion, it find that [he] the district court awarded the sum that he had $68,228.75 proving chance of success attorneys’ fees and costs knowledge of the 3730(d)(4), independent § which statu- direct and under 31 U.S.C. that, on which where the information tory provides subsection voluntarily provided based and had with an FCA were government proceed does not before action, to the Government information claim and the relator conducts 356 Mikes, under the chance of success? 274 this action FCA based F.3d

filing information. (upholding attorneys’ award of fees under on the 3730(d)(4)’s clearly § frivolous element on Vuyyuru argues that Finally, Id.8 that plaintiffs allegations clearly the basis attorneys’ the amount fees/costs success, they had no chance of because regard, In Rela- award is excessive. any objective sup- were bereft of factual challenges the number of at- tor doubt, port). Without a we answer this torney credited the district court hours question in the affirmative. As we have district court’s determination already extensively outlined the momen- attorney billing Rita Davis’ rate of $310 failings Vuyyuru’s tous of Relator evidence per hour is reasonable. pertaining establishing to his burden of Vuyyuru’s each of Relator We address proper himself as a relator in order to turn, reviewing arguments 3730(e)(4)’s § juris- avoid disclosure decision to award The Cameron court’s bar, dictional we will reiterate such attorneys’ fees and costs under Foundation that, analysis say, it here. Suffice when 3730(d)(4) § and the amount of such award objec- the evidence in the record is viewed Straus, of discretion. Mikes v. abuse tively, Vuyyuru’s claim that he Cir.2001) (“We (2d re- F.3d qualified proper clearly as a relator had no view for abuse of discretion both the deci- sum, reasonable chance of In success. we grant attorneys’ sion to fees under hold the district court did not abuse its 3730(d)(4) § of the False Claims Act and deciding discretion in to award The Cam- amount.”). “Our review of the district eron attorneys’ Foundation fees and costs circumscribed; sharply court’s award is we 3730(d)(4). under recognized have that because a district court and intimate knowledge has close Turning question to the expended the efforts the value of ser- whether the district abused its dis rendered, vices the fee award must not be regarding cretion the amount of attorneys’ clearly wrong.” overturned unless it awarded, fees and costs that it we hold (4th Evatt, Plyler v. 902 F.2d 277-78 that such amount is not In excessive. Cir.1990) (internal al- quotation marks and calculating appropriate attorneys’ an fee omitted). terations award, a district court must first deter (reasonable mine the lodestar amount

The FCA does not define the term hourly frivolous,” multiplied by reasonably rate hours “clearly as that term is found in 3730(d)(4). expended), applying purposes appeal For of this Johnson/Barber making factors when its lodestar only, accept Vuyyuru’s sug we determi whether, Inc., gested nation. Barber v. definition and ask on the Kimbrell’s (4th Cir.1978) case, objective record in this when F.2d (adopting viewed ly, did Relator claim that twelve factor test set forth in Johnson v. qualified Inc., proper Georgia Highway as a relator under Express, F.2d 488 3730(e)(4), (5th 714, § clearly Cir.1974), have no reasonable 717-19 overruled on INS, (4th Cir.2001) appeal, For the first time in this v. 260 F.3d 326 fi Vuyyuru argues Reply (concluding petitioner in his Brief that The argu- that abandoned "prevail[]” appeal Cameron Foundation did not in ment on raised for the first time in action, reply this by failing opening as that term is used in brief to raise it in 3730(d)(4). brief); Goldsboro, argu- City We do not address this Edwards v. 178 F.3d ment, (4th Cir.1999) having (concluding because been raised for the first 241 n. 6 that appeal Vuyyuru's time Reply properly appellant's open- on in Relator claim not raised in Brief, abandoned). argument ing the is abandoned. See Youse- brief is deemed Application Fee documented the 489 vised Bergeron, v. Blanchard grounds, other actually by hourly paid rates The Cameron 103 L.Ed.2d 87, 109 S.Ct. U.S. Foundation, attorney provided evidence (1989)). practices, and billing Rita Davis’ actual the Johnson court has summarized This per hour for Rita established $310 (1) labor the time and to include: factors in of the stan- light Davis was reasonable (2) novelty difficulty and the expended; by law charges for like services the dard (3) raised; skill the questions the in firm Hunton & similar cases Williams perform legal the properly required customarily charged in the and for the fees (4) rendered; attorney’s op- services attorneys of Rita relevant market pressing in the instant costs portunity level. experience performance Davis’ and (5) customary fee for like litigation; (6) work; attorney’s expectations Vuyyuru at- Finally, although (7) time litigation; outset of the nitpick the number of hours the tempts client or cir- by attorneys imposed limitations court determined that district (8) cumstances; contro- the amount in reasonably Foundation for The Cameron (9) obtained; versy and the results expended defending against in his FCA ability of the reputation claims, and experience, review of the record discloses our (10) undesirability of the attorney; court not abuse its did community in legal regard.9 case within the in discretion this (11) arose; nature the suit IV. relation- length professional client; attorney and between ship conclusion, In we hold the district (12) in similar attorneys’ fees awards (1) by: dismissing the Third did not err cases. Complaint for lack of jurisdiction to Rule pursuant McDaniel, n. F.2d Spell (2) 12(b)(1); The awarding Cameron (4th Cir.1987). $68,228.75 attorneys’ in Foundation fees calculation, the making In its lodestar 3730(d)(4).10 costs under 31 U.S.C. fig- per hour district court used $310 AFFIRMED attorney sought by Rita Davis ure for review of the Foundation. Our Cameron REIDINGER, Judge, District district court did discloses that the record dissenting: using fig- not abuse its discretion I that the district court at- Because believe declarations and submissions ure. The finding that Relator clearly Re- erred Foundation’s tached to The Cameron Foundation application that The Cameron reject without merit 9. We also Petersburg Hospi- Vuyyuru’s challenge to the district court's defense of had assumed the Moreover, 928-29). mo- granting of The Cameron Foundation's Company LLC." tal sup- supplemental brief and to strike a tion were also in the time entries at issue ”[t]he porting filed declaration application and Plaintiff made no original fee 8, 2007, August various in which he made on (J.A. 929). objection to them." The Cameron Foundation’s assertions about Petersburg Hospital authority indemnify specifically ad- we have not 10. To the extent cogently Company, L.L.C. As the district court remaining argument dressed motion, ruling explained on the it never challenge court’s to the district file the brief granted Relator leave to Complaint or Amended dismissal of the Third were not raised in and the issues raised in it award, arguments we find such the fees/costs original opposition to The Camer- brief in merit. without attorneys’ fees motion for on Foundation’s costs, though clear in that "even it was affidavit, upon” depositions testimony were “based a or live Vuyyuru’s allegations and that he was not an public disclosure converting proceeding without the one to allegations, of these I “original source” summary judgment.” for Id. respectfully dissent. matter, problematic As a threshold it is

I. to ascertain whether the district court un- states, dertook to conduct a facial factual majority correctly re- As 3730(e)(4)(A) “jurisdiction-removing ais challenge subject view of the matter citing Rockwell International provision,” jurisdiction in majority this case. The States, 457, 468, 549 U.S. Corp. v. United readily concludes that the district court’s (2007). 167 L.Ed.2d 190 S.Ct. 354-55). factual. (Opinion review was at may A chal- (Opinion defendant this, I compelled disagree With feel in subject jurisdiction a lenge matter of FCA part. question As to the of whether Rela- 12(b)(1) claim via a Rule motion to dismiss Vuyyuru’s allegations upon” tor are “based First, ways. in one of a defendant two disclosure, public the district court con- may complaint simply “that a contend fails consisting sidered extrinsic evidence of the subject allege upon facts matter articles, Virginia Times clearly and thus based,” Bain, jurisdiction can be Adams v. undertook a factual review. When it (4th Cir.1982), i.e., a 697 F.2d moved to the question of whether Relator attack,” Copenhaver, “facial Bell Garcia “original was an source” of the P.A., Associates, ’s, & M.D. F.3d giving allegations, information rise to the Cir.1997). (11th a defen- 1260-61 When however, the district court was not so clear dant makes a facial attack a com- as to whether it undertook a factual or plaint subject jurisdic- lack matter facial review. The district tion, repeated- alleged complaint “all the facts ly are true and the plaintiff, allegations assumed to be refers to the found in the effect, procedural is afforded the same (Third “complaint” or the “TAC” Amended protection he would receive under a Complaint) asserting while that Relator 12(b)(6) Adams, Rule consideration.” 697 Vuyyuru “consistently provide has failed to Alternatively, F.2d at 1219. the defendant specific facts” about allegations. these may complaint’s jurisdic- contend (J.A. 562). Ultimately, the district court true, id., simply tional are allegations light generalities holds “[i]n i.e., attack,” Garcia, a “factual 104 F.3d at conclusory permeate statements that made, a factual attack is When Complaint] [Third TAC plaintiff prove burden is on the plaintiffs jurisdictional briefs on the jurisdiction. existence of issue, the Court cannot making [sic] Richmond, Fredericksburg & Potomac finding that plaintiff had ‘direct’ knowledge States, R.R. Co. v. United 945 F.2d apart the TAC from (4th Cir.1991). aWhen defendant appeared what domain well challenges the factual basis of a com- (J.A. 564). before the TAC was filed.” plaint’s jurisdictional allegations, the dis- on this language, only Based one can con- may “go beyond trict court the allegations clude that the district court made its deci- in an complaint evidentiary sion on the allegations based rather than hearing determine if there are facts to the evidence and only thus conducted support allegations.” Adams, regarding facial examination at 1219. In the issues of doing, 697 F.2d so “may district court consider evidence whether Relator had “direct and independent knowledge interpretation of the information Court’s upon” “based allegations requirement on which the are based.” 31 differs from other circuits. 3730(e)(4)(B).1 (“We U.S.C. Id. are ... aware that other circuits have not embraced this interpretation of having The district court undertaken the phrase, assuming instead that an ac- not, itself, hybrid may such a review tion is upon public based disclosure of error, it at requires constitute but least allegations if allegations its are identical or portions that the review of these similar to those already publicly dis- district court’s order be conducted inde- closed.”). While other may circuits dis- another, pendently applying one the dif- agree approach, with this Siller remains ferent of review under standards Adams. the law in this circuit. Accordingly, I II. would hold that the district court commit- ted clear error in finding that the similari- This Court has held that “a relator’s ties between Relator allegations upon’ public action is ‘based disclosure of and the newspaper articles constituted allegations only where the relator ac- has proof allegations that were “based tually derived that disclosure the from upon” a prior public disclosure. allegations upon qui which his tarn action is based.” United States ex rel. Siller v. agree I also do not majority’s with the Co., 350-51) Becton & suggestion Dickinson F.3d (Opinion at that (4th Cir.1994) added). (emphasis “significant The overcome this proof’ Relator majority concludes that “the district court produce had to evidence to show logically was, fact, reasoned that ‘[t]he remarkable that he the source of the similarities between Siller, the news article and newspaper articles. Under whether allegations contained in [paragraphs 20 Relator was the source of the and 27 of Complaint] the Third Amended newspaper relevant; articles is not what significant are proof that the latter are matters is he produced whether has evi- ” ‘actually derived’ from the former.’ allegations dence to show that his were not 350) 558) (Opinion at (quoting (empha- “actually J.A. public derived from” this disclo- added). disagree. Moreover, sis I sure. imposing this require- appears ment a relator at odds with finding Siller instructs that allegations the Supreme Court’s decision in Rockwell. to be upon” public “based disclosure 470-72, See 549 at at U.S. 127 S.Ct. 1397 requires more than a finding similarity (holding phrase “information on public between the disclosure and the com- allegations are based” refers to informa- plaint’s allegations. “[I]t is self-evident tion on allegations which the relator’s are that a suit that allegations includes based, publicly not information on which (even identical) happen to be similar based). disclosed are disclosed, already publicly those but were actually derived from those Vuyyu- dis- The district court concluded that closures, not, sense, simply para- “consistently ru provide spe- has failed to noted, sitic.” Id. As the Siller Court cific facts about how obtained knowl- however, majority quite reasonably 1. The disposition buttresses its of that issue that is review, view of the nature disposi- of the district court's re- before this Court for and that by pointing view out that Opinion. tion is found in the I Memorandum argues also Opinion district court's review believe Memorandum re- 6), (Opinion was factual in nature at 352 n. flects that the nature of the district court's transcript and that proceedings hybrid inappropriate decision was an of a is, supports below this conclusion as well. It facial and factual review. obser- upon personal was based in the alleged acts fraudulent edge of the 562). vation, him provided information Complaint].” [Third families, staff, patients, patients’ medical court held that the district It significant In his review of medical records. and his provide” Vuyyuru “failed that Relator declaration, Vuyyuru Relator supplemental finding his evidence evidence, than rather knowledge of further clarifies the basis demonstrates This unpersuasive. to be separate and complaint’s allegations that Rela- court concluded that the district disclosure of these apart public from the facie prima to make a failed Vuyyuru tor Specifically, in the media. he testi- claims jurisdic- support showing through per- from 1997 he fies that the evidence error because was tion. This Dr. investigated and sonally monitored sufficient to court was before Vuyyuru makes work. Relator Jadhav’s Vuyyuru that Relator a conclusion support Dr. personally that he reviewed Jad- clear demonstrating carried his burden had ob- specifically charts and hav’s medical alleged fraudu- knowledge of that his Dr. from this review that Jadhav served upon” public “based dis- was not lent acts un- practice regularly performing had a closure. Rela- necessary biopsies of the IC-valve. Complaint sets Third Amended in further testifies that his Vuyyuru tor Vuyyu- Relator face a basis for forth on its medical investigation of Dr. Jadhav’s from separate apart knowledge ru’s charts, never he observed that Dr. Jadhav Relator Specifically, disclosure. performed a of the IC-valve when biopsy learned that Dr. alleges that he Vuyyuru removing polyp able to bill for was unnecessary biop- performed had Jadhav practice legitimate pathology, other medical reviewing Dr. Jadhav’s sies Vuyyuru contends consti- who had from medical staff records and of the IC- biopsies tutes evidence that the practices. Relator Dr. Jadhav’s observed solely billing. to increase valve were done alleges that he discovered Vuyyuru further Vuyyuru further testifies that he colonos- complete failed to that Dr. Jadhav pathologists at both JRMC interviewed billing for com- (despite copy procedures SRMC, who confirmed Dr. Jadhav’s through his review of procedures) plete biopsies. practices regarding IC-valve through his own Dr. charts Jadhav’s supplemental Vuyyuru also states a number of examinations of subsequent Dr. declaration that he learned about Jad- Vuyyuru patients. Dr. Jadhav’s allegedly billing fraudulent from his hav’s during exam- alleges that these specifically the individuals who personal interviews of lesions, inations, polyps, and he discovered billing for Dr. Jadhav performed services been detected which would have cancer subsequent colonos- through as well as complete performed Dr. in fact had Jadhav Vuyyuru per- copy procedures Relator colonoscopy procedures. patients formed on several of Dr. Jadhav’s tumors during polyps which he found the dis- Vuyyuru presented also have had that Dr. Jadhav would observed include trict court with declarations been complete colonoscopy procedures manner significant regarding evidence patients. on these performed knowl- in which obtained edge alleged regarding fraudulent acts this evidence Based example, For ob- Complaint. Third Amended manner which Relator acts knowledge of his of the fraudulent support in a declaration filed tained Complaint, I alleged testi- in the Third Amended original complaint, Relator that the district court erred complaint’s would hold knowledge fies that his concluding allegations in the Third have been sufficient to show that he ac- Complaint upon” were “based quired knowledge alleged Amended of the fraudulent disclosure. “through efforts, acts own with- [and]

out an intervening agency.” United States Grayson Tech., ex rel. Mgmt. Advanced III. Inc., (4th Cir.2000) 221 F.3d Next, majority holds that the district (quoting United States ex rel. Detrick v. finding not err in that Relator court did Inc., Young, Daniel F. F.Supp. Vuyyuru “original not an was source” (E.D.Va.1995)). Therefore, the dis- allega- Complaint’s the Third Amended trict dismissing court’s order this action disagree tions. I for a number of reasons. 12(b)(1) pursuant to Rule was in error. analysis The district court limited its on in allegations Furthermore, this issue to a review of the had the district court un- Thus, Complaint. the Third Amended dertaken to conduct a review and factual court it though even the district had before considered the presented by evidence Re- purporting support evidence Relator Vuyyuru, lator pre- sufficient evidence was Vuyyuru’s origi- contention that he was an sented for Vuyyuru Relator to have car- source, nal the district concluded ried demonstrating his burden of that he jurisdiction that did not lie original allegations. was an source of the analysis pleadings. based on a facial above, Vuyyuru As detailed pre- court, however, The district failed to con- sented the district court with declarations allegations strue the the Third Amended significant that include regarding evidence Complaint as true and did not afford the manner in Vuyyuru obtained Vuyyuru any protections of the other avail- independent direct and knowledge of the 12(b)(6) able under a Rule review. See alleged fraudulent acts in the Third Adams, (stating 697 F.2d at 1219 that Complaint.2 Amended made, when facial attack is “all the facts The district court further found that Re- alleged complaint are assumed to be Vuyyuru’s allegation lator in the Third effect, plaintiff, true and the is afforded Complaint that gov- he “notified procedural protection the same as he non-specific ernment authorities” to 12(b)(6) be would receive under a Rule consid- eration”). conclusory and thus insufficient to show Had the district court’s facial voluntarily provided that he this informa- analysis been conducted accordance Adams, tion filing to the Government before with and Relator alle- (J.A. 564). true, Again, action. gations allegations been taken as Complaint conducting in the Third Amended court found torn would itself between Moreover, majority Vuyyu- transcript hearing 2. The concludes that Relator re- independent Vuyyuru's ru could not be “a direct that counsel stated veals respect any allegations suspended source with of fraud that he was from SRMC in March involving SRMC or its facilities after March while it was the counsel Defendants’ 2003, because, time, who that dismissed asserted was practicing had withdrawn medicine at from SRMC in March I would not hold from 352). (Opinion majority respond during attorney SRMC.” at The such a failure to an colloquy notes that the district court learned this infor- to amount to a concession. In addi- counsel,” (id. tion, through “colloquy Vuyyuru’s supplemental mation declara- tion, 346), significantly, majority majority (Opin- but as the which was cited 7), 345), points (Opinion the medical out at 352-53 n. there is ion at states that he was on conflicting point. "until evidence submitted on this staff at SRMC 2004.” wanting. it analysis by trict court but still finds analysis and a factual a facial majority glaring that “there is a allegations pleaded concludes only to the looking that, at the analysis stan- lack of evidence to establish the factual applying while ..., filed this action failed to treat as time The district court dard. gov- independent knowledge he had direct and of notice to the true had ever ernment, analyzed allega- Defendant this case rather but presented presented and or caused to be they were evidence though tions as particular false or fraudulent claim to the inadequate, while not consider- found them voluntarily pro- or that he had by government submitted Relator declarations ing the informa- government In his declaration vided the with such this issue. Vuyyuru on 2006, filing (Opinion action.” at 24, Vuyyuru as- tion before of October majority the concludes Specifically, these of reported that he serts (J.A. 364) (“[i]n and that “Relator never connected his FBI fraud to the 2003, 2004, 2002, spoke knowledge any underperformance and I with of around by care Dr. with actual regarding and Irons medical Jadhav an Agents FBI Vanosten procedures by and claim the fisc of the improper medical the 353) (Id. (emphasis by Fraud Dr. Jad- Defendants.” Medicaid and Medicare short, majority In JRMC”); Attorney original). requires hav, and SRMC (J.A. 364) (“in prove particulars that the Relator and around General’s Office the individual Medicare or Medicaid claims 2003, Attorney I with the spoke 2002 and prove order to how he had direct and representative re- Office with General’s independent knowledge giving of the facts investigating Medicaid Fraud sponsible for question rise to those claims. The improper proce- medical regarding the however, knowledge, separate is source by billing Dr. and fraud at dures Jadhav underlying from the merits. Whether a JRMC”); both and Center SRMC “ultimately claim FCA is flawed on (J.A. 364) (“in Quality for Health Care analytically question is an merits distinct complaint I filed a Board of from the one mandated for FCA regarding un- against Medicine Dr. Jadhav jurisdiction.” v. establishing Kennard necessary procedures, but was directed to Resources, Inc., Comstock 363 F.3d Care”). Quality Health This Center (10th Cir.2004) (quoting United declaration alone is sufficient to establish rel. Int’l Corp., States ex Stone Rockwell “voluntarily provid- that Relator (10th Cir.2002)). 282 F.3d In- be- ed the information to Government deed, Vuyyuru’s to hold that Relator Third filing an action under this section fore lack Complaint fails for of sub- based on the information.” 31 is ject jurisdiction matter because he has not 3730(e)(4)(B).3 U.S.C. pled speci- his claims with sufficient FCA IV. ficity jurisdictional would mean that Vuyyu- majority analyzes question necessarily is intertwined with independent majority ru’s evidence of his direct and the merits of the case. If the is correct, very differently from the dis- of the knowledge sufficient evidence facts Vuyyu- Attorney subsequent 3. A declaration discussions with the United States ru, ruling on the October FBI filed after the district court's 1998 and with several met dismiss, agents provides even more detail from to 2005. He asserts motion to further government given providing regarding with the that in a letter his contact was regarding allegations. "protections” coop- him certain these related his (J.A. 662). began government. that he eration with the states in this declaration ” clearly must be frivolous.... underlying FCA claims U.S.C. 3730(d)(4). all for the relator to be For of the reasons set order presented above, possess came to such forth I simply to show how he do believe that able jurisdictional is knowledge, allega- then the issue “clearly” with the factual issues tions are frivolous. in fact intertwined claims, underlying and the district question There no that the record jurisdiction to assume required court was presented to the district court was convo- to decide the case on the proceed luted, due in no part small the volumi- a factual attack on merits. “When inartfully nous oftentimes drafted fil- jurisdiction involves the merit of it ings, appeared and must have at times course of action for the dispute, proper this action was little more than a jurisdiction court ... is to find district grudge match between Relator and the objection and deal with the as exists presentation Defendants. The of the facts plaintiffs the merits of the direct attack on awkward, may may have been and there Carolina, v. North case.” United States be some well substantive flaws the Rela- (4th Cir.1999) (quoting F.3d bottom, however, At tor’s claims. this is a Assocs., Bell & Copenhaver, Garcia physician case about a who undertook to (11th M.D.’s, P.A., 1256, 1261 104 F.3d investigate procedures the medical Cir.1997)) (internal marks and quotation billing practices physician of another omitted). alterations the medical at which he facilities worked the substantive deficiencies identi- Given may and found what well constitute Medi- majority, may it well be that fied care and Medicaid fraud. Even if such Vuyyuru’s claims would not with- may ultimately prove to claims be frivo- 12(b)(6) scrutiny. appeal, Rule This stand lous, such frivolousness falls short of the however, require the does not Court being standard of “clear” based on this decide whether Relator has stat- would, therefore, I record. vacate the grant- relief can ed a claim be attorneys’ having an award of fees been ed, only the basic but rather to review abuse of discretion. subject ju- threshold assessment of matter 3730(e)(4). risdiction under If we allow VI. this to cause to set the case such as us high, legitimate bar too then Accordingly, I would vacate the orders may go FCA claims without redress and dismissing action of the district court may go even unfiled. subject jurisdiction for lack of matter attorneys’ awarding the Defendants fees V. and would remand this matter for further Because I believe that proceedings. error, I

court’s dismissal was would also vacate the district court’s award of attor- Moreover,

neys’ fees to the Defendants. if finding

even of a lack of sustained, jurisdiction were I would attorneys’

still the award of fees. reverse

Attorneys’ may fees be awarded under 3730(d)(4) claim upon finding “that the person bringing the action was

Case Details

Case Name: United States Ex Rel. Vuyyuru v. Jadhav

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Feb 12, 2009

Citation: 555 F.3d 337

Docket Number: 07-1455, 07-1922

Court Abbreviation: 4th Cir.