The False Claims Act (FCA) allows the government to pursue any “alternate remedy available” if the government chooses not to intervene in a qui tam action. See 31 U.S.C. § 3730(c)(5). However, if the government pursues an “alternate remedy,” the FCA gives the qui tam plaintiff the “same rights” in the “alternate” proceeding that the plaintiff would have had if the qui tam action “had continued.” Id. In U.S. v. Couch et al., the question before the United States Court of Appeals for the Eleventh Circuit was whether the FCA allows a qui tam plaintiff to intervene in a criminal forfeiture proceeding when the government chooses to prosecute fraud rather than intervene in the qui tam plaintiff’s action. No. 17-13402 (Oct. 17, 2018). The Eleventh Circuit held that criminal forfeiture law bars qui tam plaintiffs from intervening in related forfeiture proceedings.

Background

The suit stemmed from a qui tam action brought by Lori Carver, a former employee of an Alabama-based pain management company. During her employment, Carver allegedly discovered that the two doctors that ran the clinic, John P. Couch and Xiulu Ruan, submitted false claims to federal health care programs. Carver took her information to the US Attorney’s office, which encouraged her to bring a qui tam action against the doctors and the clinic. Carver brought the qui tam action in 2013 and the case remains pending. Carver is litigating the case herself, because the government chose not to intervene.

With Carver’s information, the government began investigating Dr. Couch and Dr. Ruan. Two years after Carver brought her qui tam action, the government criminally charged both doctors with conspiracy to distribute controlled substances and conspiracy to commit health care fraud. The charges in the indictment partially overlapped with Carver’s qui tam complaint. Thereafter, more defendants and charges were added to the criminal case in subsequent, superseding indictments. A jury ultimately convicted Couch on all charges and Ruan on all but one charge, which resulted in the judge issuing a preliminary forfeiture order.

Carver moved to intervene in the forfeiture proceedings, asserting a right to some of the forfeited assets. Carver primarily argued that the alternate-remedy provision allows her to intervene to claim a share of the assets she would be entitled to if the government had intervened in her qui tam action.

In response, the government argued that Carver did not have standing to intervene under the alternate-remedy provision because her qui tam case is pending—meaning that Carver has not yet established a right to a relator’s share. The government also argued that the FCA does not permit intervention in criminal cases.

The district court denied Carver’s motion to intervene and ruled that the alternate-remedy provision does not permit intervention in criminal cases.

Appeal Before Eleventh Circuit

The Eleventh Circuit took issue with the government’s jurisdictional arguments. The Eleventh Circuit concluded that Carver had standing to assert that the alternative-remedy provision gives her a right to intervene in criminal forfeiture proceedings and claim an interest in the forfeited property.

The Eleventh Circuit rejected the government’s claim that Carver’s potential property interest in the forfeited assets was too “speculative.” While the Eleventh Circuit agreed that no court had yet adjudicated whether Carver was entitled to a relator’s share, it noted that if this were enough to deprive the panel of jurisdiction, “no person claiming a property interest would ever get into federal court.”

Turning to the substantive issues, the Eleventh Circuit noted that whether a criminal fraud prosecution is an “alternate remedy” is an open question. Applying statutory construction to interpret the alternate-remedy provision of the FCA, the Eleventh Circuit held that the three criminal forfeiture statutes at issue each expressly bar third parties from intervening in forfeiture proceedings to claim an interest in property subject to forfeiture: “these criminal forfeiture statutes speak to the precise issue raised in this appeal, and they make plain that [Carver] has no right to intervene.”

The Eleventh Circuit noted that its ruling will not prevent Carver from getting her relator’s share, with the government having provided a related assurance to the court that if Carver is successful in her FCA case, she will be entitled to her share of the judgment, including the restitution already paid, which can be offset against the FCA judgment.