Notice of Appeal

En banc/cert issue alert

On Friday, the Eleventh Circuit issued a lengthy opinion about federal courts' jurisdiction to decide a petition for arbitration under the Federal Arbitration Act ("FAA"), and an even longer special concurrence by Judge Marcus discussing why the issue should be reviewed by the Eleventh Circuit en banc, or by the Supreme Court. The description that follows is lengthy, but the case contains some interesting and important issues.

The case, Community State Bank v. Strong, arises out of a Georgia payday loan class action against Georgia Cash America and affiliates.

Georgia Newly Enacted State False Medicare Claims Act, O.C.G.A. § 49-4-168

On April 13, 2007, the Georgia General Assembly passed a bill titled "State False Medicaid Claims Act" ("SFMCA"), HB 551, which is widely expected to be signed by Georgia Governor Sonny Perdue by mid-summer. The SFMCA will add a new statute (i.e., O.C.G.A. § 49-4-168) to Title 49, Chapter 4 of the Georgia Code, which relates to state public assistance.

Georgia’s SFMCA includes a qui tam provision that allows private citizens to file actions against any party that recklessly submits false or fraudulent claims for payment of Georgia Medicaid funds to the state or any other party handling such funds. As an incentive to bring an action under the act, the Georgia SFMCA allows these private plaintiffs -- commonly known as “relators,” see Cook County, Ill. v. U.S. ex rel. Chandler, 538 U.S. 119, 122 (2003) -- to recover a percentage of the proceeds obtained by the state government. In general, this percentage varies between 15-30% of the proceeds recovered by the state  depending on (1) whether the government intervenes in a case and handles the litigation (rather than the relator) and (2) the relator’s overall contribution to the action.

National Wave of Similar State False Claims Acts Passed in Response to the DRA

Georgia’s passage of a state false claims act targeting Medicaid fraud is part of a national wave of similar state enactments over the past 18 months.

1915(g)-plus?

Apologies for the delay in updating you on recent cases -- in part this is because I was preparing for oral argument yesterday in the 11th Circuit, before Judges Tjoflat, Black and visiting Judge Ebel from the 10th Circuit, in the case of Miller v. Donald.

The issues on appeal:

• whether the Southern District of Georgia's "sec. 1915(g)-plus" rule barring super-frequent-filers from filing anything IFP, even if they allege imminent danger of serious physical injury (the exception provided under 28 U.S.C. 1915(g)), unless they pay all prior filing fee debts (which, in my client's case, amounted to over $1300); and
• whether the district court could properly determine that a facially valid claim of imminent danger was actually frivolous, based on the plaintiff's prior filing history.

See Barber v. Attorney General, 458 F.Supp. 2d 1378 (S.D. Ga. 2006), for more details about the rule (as well as the 1915(g)-plus-plus rule and the 1915(g)-plus-plus-plus rule).

By way of background: the Eleventh Circuit previously found, in another case Miller brought, that his sec. 1983 and ADA injunctive relief claims survived summary judgment. It ultimately vacated the prior opinion and remanded the case so that Miller could file an amended complaint in light of the companion case of Goodman v. Georgia, which went up to the Supreme Court and reversed the Eleventh Circuit's holding that the 11th Amendment barred his ADA damages claims. (Disclaimer -- BME represented Miller in that 11th Circuit case, and I now represent Miller in the district court. Some good folks at Hunton & Williams now represent Goodman.)

Stay tuned for the outcome of this case...