                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 16a0620n.06

                                           No. 15-6280                               FILED
                                                                               Nov 22, 2016
                                                                           DEBORAH S. HUNT, Clerk
                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ex rel. JAMES )
DOGHRAMJI, SHEREE COOK, and RACHEL )
BRYANT,                                 )
                                        )
                                                               ON APPEAL FROM THE
     Relators-Appellees,                )
                                                               UNITED STATES DISTRICT
                                        )
                                                               COURT FOR THE MIDDLE
v.                                      )
                                                               DISTRICT OF TENNESSEE
                                        )
COMMUNITY HEALTH SYSTEMS, INC., et al., )
                                                                           OPINION
                                        )
     Defendants-Appellants.             )




       BEFORE:        BOGGS, ROGERS, and STRANCH, Circuit Judges.

       PER CURIAM. The False Claims Act (FCA) creates a civil cause of action against “any

person who . . . knowingly presents, or causes to be presented, a false or fraudulent claim for

payment” to the United States Government.        31 U.S.C. § 3729(a).     Claims for fraudulent

Medicare billing were brought against Community Health Systems, Inc. (CHS), and in 2014,

CHS, the Government, and seven “relators”—that is, private persons who bring civil actions for

violations of the FCA—reached a settlement agreement. This agreement concluded years of

investigation and litigation, during which time the relators performed thousands of hours of work

at the Government’s behest. CHS agreed to pay the Government and relators $88 million dollars

in exchange for dismissing their claims.
No. 15-6280, United States ex rel. Doghramji, et al. v. Community Health Systems, Inc., et al.


       This appeal centers on whether CHS failed to preserve its right to challenge the

entitlement of the seven relators to attorneys’ fees.           The district court adopted relators’

interpretation of the settlement agreement, concluding that it unambiguously restricted CHS’s

challenges to 31 U.S.C. § 3730(d), and thus limited CHS’s objections to the reasonableness of—

rather than entitlement to—appellees’ attorneys’ fees.          CHS appealed this decision, raising

various principles of contract interpretation. Because the settlement agreement is ambiguous, we

reverse the district court’s order and remand for further proceedings in the district court.

                                                  I.

       Causes of action authorized by the FCA under 31 U.S.C. § 3729 have the goal of

punishing and preventing fraudulent claims for payment from the U.S. Government. See United

States v. Bornstein, 423 U.S. 303, 309 n.5 (1976). The statutory scheme includes a qui tam

provision, under which a private person—a “relator”—may bring a civil action “in the name of

the Government.”      31 U.S.C. § 3730(b)(1).          After a relator files a sealed complaint, the

Government may “proceed with the action, in which case the action shall be conducted by the

Government,” or “notify the court that it declines to take over the action, in which case the

person bringing the action shall have the right to conduct the action.” Id. § 3730(b)(4).

       The qui tam provision is essential to achieving the FCA’s purpose “[b]ecause the scope

of fraud against the government is much broader than the government’s ability to detect it.”

United States v. Health Possibilities, P.S.C., 207 F.3d 335, 340 (6th Cir. 2000). The FCA thus

“provides private actors with a variety of incentives to bring qui tam actions, and significant

influence over the ensuing development of qui tam suits—including ‘the right to conduct the

action’ when the government decides not to intervene.” Id. The FCA also recognizes that

relators will not come forward (risking, in many cases, their livelihoods), and private attorneys

will not undertake the extensive work and expense necessary to represent relators, if they are not
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No. 15-6280, United States ex rel. Doghramji, et al. v. Community Health Systems, Inc., et al.


fairly compensated for doing so. The Act therefore provides that even if the Government takes

over the action, the relator is entitled to a share of “the proceeds of the action or settlement of the

claim” and his or her attorney is entitled to “reasonable attorneys’ fees and costs.” 31 U.S.C.

§ 3730(d)(1).

       This FCA case involves seven different qui tam complaints, all of which alleged that

CHS defrauded the Government by admitting Medicare patients for medically-unnecessary

emergency room visits. The first four complaints were filed under seal between 2009 and 2011

in Illinois, Indiana, and Texas. In early 2011, the Government first told the relators in these four

cases of the similarities among their qui tam suits, which had “triggered a nationwide

investigation on the part of the U.S.” The Government encouraged these relators “to work

together on the cases and share any proceeds that might result.” At the Government’s request,

these relators then reached a sharing agreement in April 2011.

       Appellees are three relators who were not involved in the original four cases. Appellees

met with officials from the U.S. Department of Justice in Washington, D.C., U.S. Attorney’s

Office for the Eastern District of Pennsylvania, and U.S. Attorney’s Office for the Middle

District of Tennessee between February 2011 and April 2011. They disclosed the results of their

investigation, begun in October 2010, which included “an original, robust statistical analysis of

CHS admission practices” and an “extensive factual investigation.” Their statistical analysis

covered 74 different hospitals. To develop the facts of CHS’s alleged fraud, they “contacted

approximately 100 current and former doctors and nurses at approximately 20 CHS facilities in

nine states.”

       In May 2011, these three relators (hereinafter Tennessee Relators) filed suit under seal in

the Middle District of Tennessee. The Government then partially unsealed the four other qui tam



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No. 15-6280, United States ex rel. Doghramji, et al. v. Community Health Systems, Inc., et al.


complaints to the Tennessee Relators for their review and requested that they “actively

participate in its investigation, which was led by the U.S. Attorney’s Office in Nashville, on an

on-going basis.” Counsel for relators thereafter engaged in a “collaborative effort” involving

“bi-monthly calls with the Government.”          “The Government lawyers mapped out the

investigation and assigned work to all relators’ counsel in an organized manner,” with “the

majority of the assignments [being] made without regard to the individual complaint.” At the

Government’s request, from 2011 to 2014 the Tennessee Relators’ counsel organized and

analyzed thousands of documents produced by CHS, drafted letters and memoranda related to

these documents, created lists of witnesses, drafted outlines for questioning witnesses, and

conducted extensive legal and factual research. All told, they calculated their work on the case at

nearly 7,000 billable hours.

       Three years later, in the spring of 2014, the Government informed relators of a

“handshake” deal with CHS. Because CHS required that, as part of settlement, all of the qui tam

complaints—now seven in total—be dismissed with prejudice, the Government urged the

Tennessee Relators to join the original relators’ sharing agreement. After private mediation in

early May 2014, relators in all seven cases reached a sharing agreement.

       The Government intervened in each of the relators’ actions on July 24, 2014. The

Government filed a notice of settlement on August 4, 2014, and the district court unsealed the

case. The settlement agreement provided that the Government and the seven relators would

dismiss their claims upon payment by CHS of $88 million. As provided in § 3730(d), the

Government awarded 19 percent of the total recovery to the relators, or about $16.4 million. See

31 U.S. § 3730(d) (“If the Government proceeds with an action brought by a person under

subsection (b), such person shall . . . receive at least 15 percent but not more than 25 percent of



                                                -4-
No. 15-6280, United States ex rel. Doghramji, et al. v. Community Health Systems, Inc., et al.


the proceeds of the action or settlement of the claim . . . .”). This sum was split among all the

individual relators in the various cases according to the sharing agreement that relators had

reached before the settlement was finalized. The Tennessee Relators collectively received a

14 percent share, or about $2.3 million.

       Pursuant to the settlement agreement, the district court dismissed the claims in October

2014, but retained jurisdiction to decide “statutory attorneys’ fees and costs pursuant to

31 U.S.C. § 3730(d).” Between October 2014 and January 2015, three district courts in Texas

and Indiana transferred their cases to the Middle District of Tennessee for resolution of fee

disputes. In February 2015, the court consolidated the fee disputes in the four cases before it.

The court subsequently ordered the parties to brief “whether all or some of the relators are

precluded from recovery of attorneys’ fees and costs by the first-to-file rule provided in

31 U.S.C. § 3730(b)(5) and/or by the public disclosure bar.”

       CHS argued that Term 8 of the agreement preserved its right to make first-to-file and

public-disclosure challenges. The relevant sentence in Term 8 reads as follows: “All Parties

agree that nothing in this Paragraph or this Agreement shall be construed in any way to release,

waive or otherwise affect the ability of CHS to challenge or object to Relators’ claims for

attorneys’ fees, expenses, and costs pursuant to 31 U.S.C. § 3730(d).” Tennessee Relators

argued that the phrase “pursuant to 31 U.S.C. § 3730(d)” limited the scope of CHS’s objections

to those listed in that provision. Because first-to-file and public-disclosure challenges are located

in § 3730(b)(5) and § 3730(e)(4) respectively, not § 3730(d), Tennessee Relators reasoned that

CHS failed to preserve those challenges with the relevant language in Term 8.




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No. 15-6280, United States ex rel. Doghramji, et al. v. Community Health Systems, Inc., et al.


          After briefing and oral argument, the district court adopted relators’ interpretation of the

agreement. It observed that the Government’s reservation of FCA challenges in Term 7 included

specific statutory references:

          Defendants could easily have specified that they intended to raise a challenge to
          Plaintiffs’ entitlement to fees under the first-to-file or public disclosure
          provisions, or, at a minimum, simply cited Section 3730(b)(5) and (e)(4), much
          like the Government reserved specific statutory rights and negotiated a carve-out
          for those provisions.

“Given the stakes,” the court reasoned, “it is difficult to believe that failure to mention the FCA’s

first-to-file provision . . . anywhere in the 16-page Settlement Agreement was unintentional.”

Indeed, the court added, § 3730(d) is referenced “at least six times,”1 but not once is “either the

first-to-file rule or the public disclosure bar” so much as mentioned. This was telling, in the

court’s view, because “the fact remains that the government did proceed with all seven of the

underlying cases[,] . . . intervened in all, and settled each case,” and under a “straight forward

reading of [§ 3730(d)],” the Government’s conduct would entitle relators to attorneys’ fees.

          After the district court ruled that CHS had failed to preserve its right to make first-to-file

and public-disclosure challenges, CHS and the Tennessee Relators jointly moved for a stipulated

award of $2,650,000 in fees, which the court granted. CHS then appealed.

                                                   II.

          We review the district court’s interpretation of the settlement agreement de novo. See

Orrand v. Scassa Asphalt, Inc., 794 F.3d 556, 560-61 (6th Cir. 2015). The settlement agreement

provides that it is “governed by the laws of the United States.” We thus “apply ‘general rules’ of

contract law as part of the federal common law.” Cassidy v. Akzo Nobel Salt, Inc., 308 F.3d 613,

615 (6th Cir. 2002). “The federal common law may draw upon state law principles, but state law

is not controlling authority.” Id.
1
    Eight times, by our count, and nine if one counts the reference to § 3730(d)(3).
                                                   -6-
No. 15-6280, United States ex rel. Doghramji, et al. v. Community Health Systems, Inc., et al.


        “Where a contract’s meaning is clear on its face, that meaning controls.” In re AmTrust

Fin. Corp., 694 F.3d 741, 750 (6th Cir. 2012). To determine whether a contract’s meaning is

clear on its face, we “consider the language of the agreement, the context in which that language

appears and other traditional canons of construction.” Prater v. Ohio Educ. Ass’n, 505 F.3d 437,

441 (6th Cir. 2007); see also Gallo v. Moen Inc., 813 F.3d 265, 273-74 (6th Cir. 2016)

(“The first and best way to divine the intent of the parties is from the four corners of their

contract and from traditional canons of contract interpretation.”). “If, after applying these rules

of interpretation, the contract remains ambiguous,” then the parties’ original understanding of the

contract’s terms may be ascertained through extrinsic evidence.         Prater, 505 F.3d at 441.

A contractual provision is ambiguous if it “is subject to two reasonable interpretations.” In re

AmTrust Fin. Corp., 694 F.3d at 750 (citation omitted).

       This appeal centers on Term 8 of the settlement agreement. The relevant sentence of

Term 8 provides that “nothing in this paragraph or this Agreement shall be construed in any way

to release, waive or otherwise affect the ability of CHS to challenge or object to Relators’ claims

for attorneys’ fees, expenses, and costs pursuant to 31 U.S.C. § 3730(d).” CHS argues that this

sentence preserves its ability to challenge or object to the relators’ claims for attorneys’ fees on

any basis.   Tennessee Relators contend that this sentence restricts CHS’s challenges and

objections to those grounded in 31 U.S.C. § 3730(d). If both interpretations are reasonable, then

Term 8 is ambiguous and the parties’ original understanding may be ascertained by also

considering extrinsic evidence.

       A.      Interpretation of CHS.

       Two principles of contract interpretation, the last-antecedent presumption and the

consistent-usage presumption, underlie CHS’s interpretation of Term 8. The last-antecedent

presumption instructs that “a limiting clause or phrase . . . should ordinarily be read as modifying
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No. 15-6280, United States ex rel. Doghramji, et al. v. Community Health Systems, Inc., et al.


only the noun or phrase that it immediately follows.” United States v. Hayes, 555 U.S. 415, 425

(2009) (omissions in original) (quoting Barnhart v. Thomas, 540 U.S. 20, 26 (2003)); see also

Lockhart v. United States, 136 S. Ct. 958, 963 (2016) (observing that the Supreme Court “has

applied the rule from our earliest decisions to our more recent”).2 The district court read the

limiting phrase in Term 8—“pursuant to 31 U.S.C. § 3730(d)”—as applying to “the ability of

CHS to challenge or object” to the attorneys’ fees. The last-antecedent presumption, CHS

argues, supports a reading that applies the limiting phrase to the phrase that immediately

precedes it—“[r]elators’ claims for attorneys’ fees, expenses, and costs.” Accordingly, CHS

concludes, the last-antecedent presumption supports its assertion that the settlement agreement

preserves CHS’s right to challenge the relators’ claims for attorneys’ fees under the first-to-file

and public disclosure rules.

       CHS also relies on the consistent-usage presumption, which is the presumption that

words and phrases have the same meaning throughout a contract. See U.S. Nat’l Bank of Or. v.

Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 460 (1993) (applying the presumption of consistent

usage to a statute); 11 Williston on Contracts § 32:6 (4th ed. 2015) (“Generally, a word used by

the parties in one sense will be given the same meaning throughout the contract in the absence of

countervailing reasons.”); Thompson v. Amoco Oil Co., 903 F.2d 1118, 1121 (7th Cir. 1990)

(applying Illinois law); McLane & McLane v. Prudential Ins. Co. of Am., 735 F.2d 1194, 1195-

96 (9th Cir. 1984) (applying Arizona law). Here, the relevant phrase in Term 8 is “pursuant to

31 U.S.C. § 3730(d).” Two other provisions in the settlement agreement, Term 3 and Term

2
  Although the last-antecedent presumption is often used for statutory interpretation, we have
also employed the presumption in contract interpretation. See Crestwood Farm Bloodstock v.
Everest Stables, Inc., 751 F.3d 434, 446 (6th Cir. 2014); see also Lloyd v. J.P. Morgan Chase &
Co., 791 F.3d 265, 271 (2d Cir. 2015); WPP Lux. Gamma Three Sarl v. Spot Runner, Inc., 655
F.3d 1039, 1051 n.3 (9th Cir. 2011); Viera v. Life Ins. Co. of N. Am., 642 F.3d 407, 418 (3d Cir.
2011); In re Airadigm Commc’ns, Inc., 616 F.3d 642, 655 (7th Cir. 2010).
                                               -8-
No. 15-6280, United States ex rel. Doghramji, et al. v. Community Health Systems, Inc., et al.


15(c)(1), also use this phrase after the phrase “claims Relators may have for reasonable

attorneys’ fees, expenses, and costs.” What distinguishes Term 3 and Term 15(c)(1) from Term

8, CHS argues, is the absence of other language to which the limiting phrase could attach; the

only language to which the limiting phrase can attach in Term 3 and Term 15(c)(1) is “claims

Relators may have for reasonable attorneys’ fees, expenses, and costs.” Term 3 provides that

“[a]ll Parties agree that nothing in this Paragraph or this Agreement shall be construed in any

way to release . . . any claims Relators may have for reasonable attorneys’ fees, expenses, and

costs pursuant to 31 U.S.C. § 3730(d) . . . .” Likewise, Term 15(c) provides

       that the following claims shall not be dismissed, unless they are settled,
       adjudicated, or otherwise resolved, and any required consent by the United States
       is obtained, and the Courts are so informed: (1) Any claims Relators may have
       for reasonable attorneys’ fees, expenses, and costs pursuant to 31 U.S.C.
       § 3730(d) . . . .3

Thus, CHS reasons, given that the limiting phrase must attach to “claims Relators may have for

reasonable attorneys’ fees, expenses, and costs” in Term 3 and Term 15(c)(1), the consistent-

usage presumption supports a reading of Term 8 that attaches the limiting phrase to that language

as well. That is to say, CHS’s reading.

       B.      Interpretation of the Tennessee Relators.

       We now turn to the Tennessee Relators’ interpretation of the settlement agreement.

Tennessee Relators read Term 8 as limiting CHS’s ability to challenge or object to relators’

claims for attorneys’ fees to arguments grounded in § 3730(d). They argue that the settlement

agreement contains two indicia of meaning that support this interpretation.

       First, Term 7 of the agreement explicitly states that the Government retains the ability “to

contend that provisions in the False Claims Act, including 31 U.S.C. §§ 3730(d)(3) and 3730(e),


3
 In addressing the relator’s share, furthermore, the settlement agreement uses the limiting phrase
“under § 3730(d)” in a similar manner.
                                               -9-
No. 15-6280, United States ex rel. Doghramji, et al. v. Community Health Systems, Inc., et al.


bar Relators from sharing in the proceeds of [the] [a]greement.” In contrast, Term 8 does not

explicitly state that CHS can challenge the relators’ claims for attorneys’ fees under the first-to-

file rule set forth in § 3730(b)(5) or the public disclosure bar set forth in § 3730(e)(4). Tennessee

Relators argue that “when one party specifically reserves certain rights and another party does

not, the natural, proper reading of that agreement is to conclude that the party that did not make

its reservation explicit has in fact made no reservation at all.” Unlike the Government, CHS did

not include the statutory references for the challenges it wished to preserve. Accordingly,

Tennessee Relators contend, CHS’s failure to expressly preserve its right to challenge the

relators’ claims for attorneys’ fees under § 3730(b)(5) and § 3730(e)(4) supports reading the

settlement agreement to limit CHS’s objections to those listed in § 3730(d).

       The Tennessee Relators also point to Recital G. Recital G provides that “Relators and

their counsel claim entitlement under 31 U.S.C. § 3730(d) . . . to Relators’ reasonable expenses,

attorneys’ fees and costs.” This expectation arises from § 3730(d), which requires the payment

of reasonable attorneys’ fees whenever the Government proceeds with a qui tam action. Here,

Tennessee Relators argue, the Government not only proceeded with the Tennessee Relators’ qui

tam actions, but assigned their attorneys thousands of hours of work, yielding an $88 million

recovery for the United States. Because CHS would agree to a settlement only if it included all

seven relators, the Government asked the Tennessee Relators to dismiss their claims, suggesting

that they reach a separate agreement with the other relators, which they did, for a portion of the

proceeds. The Tennessee Relators infer from this that, in light of their contributions to the case,

they at least claimed that settlement would entitle them to attorneys’ fees.

       The Tennessee Relators also refer to the contrast between Recital G and other recitals in

the settlement agreement; for instance, Recitals C and D set forth the Government’s allegations



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regarding CHS’s conduct, and Recital F sets forth CHS’s denial of these allegations.              By

contrast, CHS does not set forth a counter-recital denying Recital G, which relators argue

indicates tacit acceptance of the recital. It would be strange, however, for CHS to tacitly accept

Recital G if it intended to raise first-to-file and public-disclosure challenges. Thus, Tennessee

Relators conclude, CHS’s silence in response to Recital G supports an inference that it did not

intend to raise such challenges.4

       C.      CHS’s responsive arguments.

       CHS makes a number of arguments against Tennessee Relators’ interpretation of the

settlement agreement. Even if the Tennessee Relators’ interpretation of Term 8 is correct, CHS

argues, their interpretation of the agreement permits first-to-file challenges, and CHS is therefore

permitted to make this challenge. We address these arguments separately.

               1.      Arguments related to Term 8.

       CHS first argues that it is anomalous to interpret the reservation of rights in Term 8 as a

waiver of rights. Earlier in Term 8, however, there is a broad waiver of rights, from which the

last sentence of Term 8 is an exception. In pertinent part, Term 8 provides that

       CHS . . . fully and finally release[s], waive[s], and forever discharge[s] each of
       the Relators . . . from any and all manner of claims, controversies, actions, causes
       of actions, demands, torts, damages, costs, attorneys’ fees, moneys due on
       account, obligations, judgments or liabilities of any kind whatsoever in law or
       equity, arising out of agreement or imposed by statute, common law or otherwise,
       from the beginning of time to the date this Agreement is signed, whether or not
       known now, anticipated, unanticipated, suspected or claimed, fixed or contingent,
       whether yet accrued or not and whether damage has resulted from such or not.
       All Parties agree that nothing in this Paragraph or this Agreement shall be
       construed in any way to release, waive or otherwise affect the ability of CHS to
       challenge or object to Relators’ claims for attorneys’ fees, expenses, and costs
       pursuant to 31 U.S.C. § 3730(d).

4
  CHS argues that Term 8 functions as a response to Recital G. But that assumes the conclusion.
That is, Term 8 can function as a counter-recital only if we assume that Term 8 reserves
challenges to relators’ entitlement to attorneys’ fees—the very issue in dispute. We reject this
circular reasoning.
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No. 15-6280, United States ex rel. Doghramji, et al. v. Community Health Systems, Inc., et al.



The first sentence in Term 8 effectuates a broad waiver of CHS’s ability to raise “any and all

manner of claims, controversies, actions, [and] causes of actions . . . arising out of agreement or

imposed by statute.” The second sentence in Term 8 then limits the scope of that waiver by

providing that CHS reserves the right to “challenge or object to Relators’ claims for attorneys’

fees, expenses, and costs pursuant to 31 U.S.C. § 3730(d).” The Tennessee Relators claim

entitlement to attorneys’ fees pursuant to § 3730(d) in Recital G of the settlement agreement.

CHS’s attempts to challenge the Tennessee Relators’ entitlement to attorneys’ fees under the

first-to-file and public disclosure rules are therefore “claims, controversies, actions, [or] causes

of action” that “aris[e] out of agreement or [are] imposed by statute.” Accordingly, the first

sentence in Term 8 operates to waive CHS’s ability to challenge the Tennessee Relators’

entitlement to attorneys’ fees under the first-to-file and public disclosure rules unless the second

sentence in Term 8 preserves CHS’s ability to raise these challenges.

       Second, CHS argues that Tennessee Relators’ interpretation is unreasonable because it

“needlessly brings Term 8 into conflict with Term 15(c)(1).” Term 15(c)(1), CHS observes, says

that “[a]ny claims Relators may have for reasonable attorneys’ fees, expenses, and costs pursuant

to 31 U.S.C. § 3730(d)” shall not be dismissed “unless they are settled, adjudicated, or otherwise

resolved.”   CHS contends that this provision “contemplates that, even if a relator seeks

reasonable fees, his or her claim may be challenged,” including with regard to “the issue of

entitlement.” We disagree. A term that reserves a right to bring a claim and a term that

circumscribes the types of challenges that may be brought against the claim are not mutually

exclusive. Term 15(c)(1) simply excludes relators’ claims for attorneys’ fees from the set of

claims being dismissed under the settlement agreement; it does not set forth the challenges

available to CHS.

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No. 15-6280, United States ex rel. Doghramji, et al. v. Community Health Systems, Inc., et al.


                2.        Arguments related to Recital G.

        CHS first argues that reliance on Recital G is “misplaced” because “many authorities

hold that recitals cannot create legal obligations and are entitled to little weight in interpreting

the operative provisions of a contract.” It is true that recitals “generally do not create binding

obligations.”       17A C.J.S. Contracts § 403 (updated 2016).       But recitals can establish “the

background of a contract, that is, the purposes and motives of the parties.” 17A Am. Jur. 2d

Contracts § 373 (updated 2016). They also “may have a material influence in construing the

contract and determining the intent of the parties,” for if an operative section of a contract is

ambiguous, “the recitals govern the construction.” Id.; see also 17A C.J.S. Contracts § 403

(observing that although recitals “do not control over the express provisions of a contract, they

may be read in conjunction with the contract’s operative portions to ascertain the parties’

intention, where the operative clauses are ambiguous” (footnote omitted)); McKissick v. Yuen,

618 F.3d 1177, 1186 (10th Cir. 2010) (observing that recitals “may be looked to in determining

the proper construction of the contract and the parties’ intention” (quoting Ferrell Constr. Co. v.

Russell Creek Coal Co., 645 P.2d 1005, 1009 (Okla.1982))). Thus, even though Recital G does

not itself create a binding obligation, it may guide interpretation of the binding obligation in

Term 8, but only if that term is ambiguous in the first place.

        CHS is correct that Recital G does not expressly bar CHS from challenging relators’

entitlement to fees and, accordingly, does not render Term 8 unambiguous. But CHS’s silence in

response to Recital G still supports Tennessee Relators’ interpretation, even if it does not

conclusively establish this interpretation. Had CHS intended to raise first-to-file and public-

disclosure challenges, one might have expected CHS to deny Recital G and to record its belief

that relators are not entitled to attorneys’ fees, just as relators’ recorded their belief that they are

entitled to fees.
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No. 15-6280, United States ex rel. Doghramji, et al. v. Community Health Systems, Inc., et al.


               3.     The impact of Tennessee Relators’ interpretation on first-to-file
                      challenges.

       CHS argues that even if the settlement agreement restricts its challenges and objections to

those in § 3730(d), because § 3730(d) refers to § 3730(b)—for the purpose of identifying the

FCA claim to which § 3730(d) applies (i.e., qui-tam claims rather than Attorney-General-

initiated claims)—§ 3730(d) incorporates the first-to-file rule. We are unpersuaded.         If the

preserved fee challenges are restricted to the limits contained in § 3730(d), it would be

anomalous to interpret that section to incorporate limits that engulf the restriction. Accordingly,

if Tennessee Relators’ interpretation is correct, then CHS is precluded from making a first-to-file

challenge.

       D.      Evaluation of the Parties’ Interpretations.

       CHS and the Tennessee Relators have each advanced a reasonable interpretation of the

settlement agreement. CHS’s interpretation is supported by the last-antecedent rule and the

presumption of consistent usage.      However, they are just that—presumptions—and, as the

Supreme Court has observed with regard to the last-antecedent rule, “can assuredly be overcome

by other indicia of meaning.” Hayes, 555 U.S. at 425 (quoting Barnhart, 540 U.S. at 26). The

Tennessee Relators have pointed to two “indicia of meaning” that support their interpretation:

CHS’s failure to expressly preserve the first-to-file and public-disclosure challenges in Term 8,

and CHS’s silence in response to Recital G.           Term 8 is thus “subject to two reasonable

interpretations,” rendering it ambiguous. In re AmTrust Fin. Corp., 694 F.3d at 750 (citation

omitted).

       Accordingly, extrinsic evidence may be used to ascertain the parties’ original

understanding of its terms. Prater, 505 F.3d at 441. “It is not within [the panel’s] purview to

resolve these ambiguities.”     Lemley v. Ford Motor Co., 36 F.3d 1097 (6th Cir. 1994)


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No. 15-6280, United States ex rel. Doghramji, et al. v. Community Health Systems, Inc., et al.


(unpublished table decision (per curiam), 1994 WL 483901 at *4. Where the district court holds

that a contract is unambiguous and thus does not reach the extrinsic evidence, as here, remand is

appropriate. See Sault Ste. Marie Tribe of Chippewa Indians v. Granholm, 475 F.3d 805, 816

(6th Cir. 2007) (observing that although “[t]he admissibility of extrinsic evidence is a question of

law and is properly within [the court’s] province to determine . . . [,] the amount of weight to

accord extrinsic evidence is a question of fact and must be determined by a trier of fact”); Fed.

Sav. & Loan Ins. Corp. v. Fed. Deposit Ins. Corp., 780 F.2d 1020 (6th Cir. 1985) (unpublished

table opinion) (per curiam), 1985 WL 13960 (concluding that “the magistrate erred in failing to

consider extrinsic evidence of such intent” and “remand[ing] for the consideration of such

evidence”).

                                                III.

       For the foregoing reasons, we reverse the district court’s order and remand for

proceedings consistent with this opinion.




                                               -15-
No. 15-6280, United States ex rel. Doghramji, et al. v. Community Health Systems, Inc., et al.


       STRANCH, Circuit Judge, concurring. I find it a close call whether Term 8 of the

Settlement Agreement is ambiguous or, as determined below, unambiguous. Nevertheless, I

concur with the lead opinion. I agree that it is appropriate to remand the case for consideration

of the extrinsic evidence, including those parts of the Agreement itself, such as recitals, that aid

in construing the contract and determining the parties’ intentions.


       This appeal grows out of the Agreement governing the global settlement that required

dismissal of all seven qui tam cases, including Appellees’ cases. At issue is whether CHS must

pay attorney fees for the nearly 7,000 billable hours of work performed by counsel for these

relators, primarily work that the Government assigned them to do. I write separately to address

the purposes and goals of the False Claims Act, which set the perspective through which the

courts (and the government) should view all FCA litigation.


       Health care fraud is rampant in the United States. Some estimate that fraud costs

Medicare and Medicaid between $30 billion and $98 billion annually. See Donald M. Berwick

& Andrew D. Hackbarth, Eliminating Waste in U.S. Health Care, 307 J. Am. Med. Ass’n 1513,

1514 (2012). In one way or another, we all pay for this fraud through higher health insurance

premiums, co-payments, and taxes.


       The FCA is one of the Government’s most effective tools for combatting health care

fraud. “To date, the FCA has helped the government recover more fraudulently spent Medicare

dollars than any other mechanism within the federal government.” Joshua A. Levy, Lessons

from the Private Enforcement of Health Care Fraud, 53 Am. Crim. L. Rev. 117, 135 (2016). In

2014, for instance, while the Government recovered only $454 million through the Department

of Health and Human Services’ fraud prevention system, id. at 124, it recovered $2.3 billion


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No. 15-6280, United States ex rel. Doghramji, et al. v. Community Health Systems, Inc., et al.


from health care FCA cases, id. at 127. In addition, evidence provided by FCA whistleblowers

“has resulted in dozens of criminal convictions and administrative exclusions that otherwise may

not have occurred.” Id. at 127.


       Most of these recoveries would not be possible without the FCA’s qui tam provision.

“Of the $21 billion recovered by the government between 1986 and 2008 under the Act, over 63

percent, or $13.7 billion, was recovered in cases filed under the FCA’s qui tam provisions.”

Matthew S. Brockmeier, Pulling the Plug on Health Care Fraud: The False Claims Act After

Rockwell and Allison Engine, 12 DePaul J. Health Care L. 277, 278–80 (2009). Brockmeier

explains that if courts lose sight of the legislative intent behind the FCA and restrict

opportunities for qui tam plaintiffs to succeed under the FCA, “the incidence of health care fraud

against the government can only be expected to increase” and thereby increase health care costs

“to a public already struggling to pay some of the highest health care prices in the industrialized

world.” Id. at 302–03. He concludes that it is crucial to approach the Act “with its primary goal

of preventing fraud in mind,” id., which underscores the need to support and encourage qui tam

plaintiffs in their use of the FCA.


       Without a doubt, relators and their attorneys play a vital role in rooting out health care

fraud and obtaining recovery of the public monies that were intended to be spent for providing

health care to veterans and poor, elderly, and disabled citizens. Fostering such recoveries under

the FCA must include recognition that these actions are not without economic risks and other

dangers to relators and their counsel. A relator takes very real risks in coming forward to report

fraud—an action that often includes obtaining and providing evidence against his/her employer

that involves substantial sums of money and potential criminal liability. And providing that

evidence is just the beginning. Attorneys then must undertake the substantial investigative work

                                               -17-
No. 15-6280, United States ex rel. Doghramji, et al. v. Community Health Systems, Inc., et al.


and expense of putting together a case for their relators then present it to government officials to

determine if the government is willing to proceed with the litigation.          Counsel routinely

undertake this work without knowing whether other qui tam complaints have been filed under

seal elsewhere. If the government decides that the information provided would be useful to it in

vindicating society’s interests, it may share information about other qui tam cases and create a

group of counsel to do the work that is necessary to prosecute the case. This work often takes

years during which the government runs the sealed case, including assigning tasks to various

counsel and approaching the defendant about the claims and monetary settlement.                  To

consummate any settlement it negotiates, the government intervenes in and unseals the qui tam

complaints filed by relators on its behalf. Though the government’s bargain sets the basic terms

of the settlement agreement, the timetable, and resolves payment to the relators; counsel are

often left to negotiate the terms governing payment of attorney fees—even for the considerable

work accomplished by counsel at the government’s behest. Much is at stake because these

negotiations may determine whether a defendant—which took public money through health care

fraud—must pay a relator’s counsel for their work in forcing the return of that money. There are

practical reasons for this framework but it also entails practical problems: negotiations are often

rushed, counsel for the various relators may have differing opportunity to draft agreement terms,

and they do not have the leverage that the government has.


       The goal of the FCA to use qui tam complaints to increase the recovery of public monies

will be impacted if relators’ counsel are assigned work and not paid for doing it. As scholarly

literature argues and legislative amendments confirm, the courts and government should

approach FCA cases in ways that support and do not stifle the Act’s goals and purposes. To

achieve those, it seems to me that the government’s litigation activity should encourage citizens


                                               -18-
No. 15-6280, United States ex rel. Doghramji, et al. v. Community Health Systems, Inc., et al.


to come forward and report fraud and attorneys to take their claims and put in the time and

money it takes to make the case against those who defraud the public. If both parties are not

fairly compensated, there is no incentive for relators to run the risks of blowing the whistle or for

attorneys to put in the significant time and make the large expenditures necessary to prove a

case. This is especially true (and particularly complicated) in the massive fraud cases that

frequently include a number of relators and their separate counsel. But that is the nature of

finding and proving frauds that operate on a large or national scale, a goal of the FCA. Those are

the cases that should be nurtured because they are the type of suits that have returned billions of

dollars to the public coffers and have served to deter future fraud.


       The facts before us are well set out in the lead opinion and the case is appropriately

remanded to the district court for resolution, which begins with contract construction. On

remand, “[t]he admissibility of extrinsic evidence is a question of law and is properly within [the

court’s] province to determine . . . [,] the amount of weight to accord extrinsic evidence is a

question of fact and must be determined by a trier of fact.” Sault Ste. Marie Tribe of Chippewa

Indians v. Granholm, 475 F.3d 805, 816 (6th Cir. 2007). “If a contract contains ambiguities, it

generally becomes the task of the fact-finder to use extrinsic evidence to determine the intent of

the parties. . . . it is for the jury to determine the meaning of the terms” Royal Ins. Co. of Am. v.

Orient Overseas Container Line Ltd., 525 F.3d 409, 422 (6th Cir. 2008) (applying federal

common law). “Where there is no genuine issue of material fact appropriate for resolution by a

fact-finder, however, a court may rely on extrinsic evidence to aid in contract interpretation.” Id.




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