     13-1237 (L)
     Associates Against Outlier Fraud v. Huron Consulting Group, Inc., et al.


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 22nd day of May, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                GUIDO CALABRESI,
 8                DEBRA ANN LIVINGSTON,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       Associates Against Outlier Fraud,
13                Plaintiff-Appellant - Cross
14                -Appellee,
15
16       United States of America,
17                Plaintiff - Counter-
18                Claimant - Counter-
19                Defendant,
20
21       State of New York, ex rel. Associates
22       Against Outlier Fraud,
23                Plaintiff,
24
25                    -v.-                                  13-1237(L), 13-1328,
26                                                          13-1461
27

                                                  1
 1
 2   Huron Consulting Group, Inc., Huron
 3   Consulting Group, LLC., Huron
 4   Consulting Services, LLC., Empire
 5   Health Choice Assurance, Inc., DBA
 6   Empire Medicare Services,
 7            Defendants-Appellees -
 8            Cross-Appellants,
 9
10   Speltz and Weis, KMPG, Healthcare
11   Management Solutions, LLC.,
12            Defendants.
13
14   - - - - - - - - - - - - - - - - - - - -X
15
16   FOR APPELLANT:             PHILIP R. MICHAEL, Michael Law
17                              Group, New York, New York.
18
19   FOR APPELLEE:              ROBERT SALCIDO, Akin Gump
20                              Strauss Hauer & Feld LLP,
21                              Washington, D.C., for Appellees
22                              Huron Consulting Group, Inc.,
23                              Huron Consulting Group, LLC,
24                              Huron Consulting Services, LLC.
25
26                              MICHAEL D. LEFFEL (Michael J.
27                              Tuteur, on the brief), Foley &
28                              Lardner, LLP, Madison,
29                              Wisconsin, for Appellees Empire
30                              HealthChoice Assurance, Inc.
31                              d/b/a/ Empire Medicare Services.
32
33        Appeal from a judgment of the United States District
34   Court for the Southen District of New York (Rakoff, J.).
35
36        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
37   AND DECREED that the judgment of the district court be
38   AFFIRMED.
39
40        Plaintiff-relator Associates Against Outlier Fraud
41   (“relator”) appeals from the judgment of the United States
42   District Court for the Southern District of New York
43   (Rakoff, J.), granting summary judgment in favor of
44   defendants Huron Consulting Group, Inc., Huron Consulting
45   Group, LLC, and Huron Consulting Services, LLC
46   (collectively, “Huron”), Empire Health Choice Assurance,

                                  2
 1   Inc., and Empire Medicare Services (collectively, “Empire”).
 2   Relator alleged that Huron violated the False Claims Act, 31
 3   U.S.C. § 3729 (“FCA”), and the analogous New York False
 4   Claims Act, N.Y. State Fin. Law § 187 et seq., by submitting
 5   Medicare claims for certain “outlier payments” to which it
 6   was not entitled, and alleged that Empire, as fiscal
 7   intermediary, failed to properly review the claims before
 8   paying them. The district court granted summary judgment in
 9   favor of the defendants, on the grounds that no statute or
10   regulation prohibited Huron’s actions, and that Empire
11   complied with all the legal requirements of a fiscal
12   intermediary. On appeal, relator chiefly renews the
13   arguments raised below. In their cross-appeal, Empire and
14   Huron argue that the district court lacked subject matter
15   jurisdiction because the relator obtained the information in
16   his complaint from public disclosures and was not the
17   “original source” of the information contained in the
18   complaint. See 31 U.S.C. § 3730(e)(4). We assume the
19   parties’ familiarity with the underlying facts, the
20   procedural history, and the issues presented for review.
21
22        The district court’s denial of the defendants’ motion
23   to dismiss for lack of subject matter jurisdiction is
24   reviewed de novo. United States ex rel. Kirk v. Schindler
25   Elevator Corp., 601 F.3d 94, 103 (2d Cir. 2010), rev’d on
26   other grounds, 131 S. Ct. 1885 (2011). We conclude, for
27   substantially the same reasons set forth in the district
28   court’s February 16, 2012 order, that the district court had
29   subject matter jurisdiction over this case pursuant to 31
30   U.S.C. § 3730(e)(4).
31
32        We review the district court’s grant of summary
33   judgment de novo. See Gonzalez v. City of Schenectady, 728
34   F.3d 149, 154 (2d Cir. 2013). “Summary judgment is
35   appropriate if there is no genuine dispute as to any
36   material fact and the moving party is entitled to judgment
37   as a matter of law.” Id. In making this determination, we
38   “resolve all ambiguities and draw all permissible factual
39   inferences in favor of the party against whom summary
40   judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137
41   (2d Cir. 2003) (internal quotation marks and citation
42   omitted). Summary judgment is appropriate “[w]here the
43   record taken as a whole could not lead a rational trier of
44   fact to find for the non-moving party.” Matsushita Elec.
45   Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
46   (1986).
47

                                  3
 1        A review of the record confirms, as the district court
 2   concluded in its March 4, 2013 memorandum order, that
 3   relator has failed to identify any statute or regulation
 4   prohibiting Huron’s claim submission practices. Assuming
 5   arguendo that the relevant statutes and regulations prohibit
 6   increasing charges unrelated to costs, there is not
 7   sufficient evidence in the record to permit a rational
 8   factfinder to find that this occurred here.
 9
10        For the foregoing reasons, and finding no merit in
11   relator’s other arguments, we hereby AFFIRM the judgment of
12   the district court.
13
14                          FOR THE COURT:
15                          CATHERINE O’HAGAN WOLFE, CLERK
16
17
18
19




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