Gross v. United States Inspector General

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ROBERT H. GROSS,
Plaintiff, Civil Action No. 1:17-cv-01801 (JMC)
v.
U.S. INSPECTOR GENERAL, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Robert Gross pleaded guilty to defrauding federal and state healthcare
reimbursement programs. 1 As a result of his conviction, the Inspector General for the Department
of Health and Human Services was required to exclude Gross from participating in all federal
healthcare programs for at least five years. The Inspector General imposed a 28-year exclusionary
period due to the facts of Gross’s offense. That decision was upheld by an Administrative Law
Judge and a Departmental Appeals Board. Gross filed suit in this Court against the Inspector
General, U.S. Attorney General, and U.S. Attorney, alleging violations of the Administrative
Procedure Act (APA), 5 U.S.C. §§ et seq., and the Equal Protection Clause of the U.S. Constitution
for excluding him from all federal health care programs for an inordinately long period of time, as
well as other constitutional claims related to his conviction and sentencing. This Court holds that
Gross’s lengthy exclusionary period does not violate the APA or the Equal Protection Clause, and
that this District is not the appropriate venue for Gross to litigate his remaining challenges.
1
Unless otherwise indicated, the formatting of quoted materials has been modified throughout this opinion, for
example, by omitting internal quotation marks and citations, and by incorporating emphases, changes to capitalization,
and other bracketed alterations therein. All pincites to documents filed on the docket are to the automatically generated
ECF Page ID number that appears at the top of each page.
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Accordingly, the Court grants Defendants’ Motion for summary judgment and to dismiss,
respectively.
I. BACKGROUND
In October 2014, a federal grand jury in the Northern District of Texas charged Robert
Gross, a licensed therapist, with 52 counts of health care fraud in violation of 18 U.S.C. § 1347.
ECF 26-1 at 235–74. The indictment alleged that Gross used improper billing codes for more than
four years to secure greater reimbursement than was appropriate. Id. at 241. For example, Gross
inflated the time he spent with patients and even sought reimbursement for services rendered to
deceased clients. See, e.g., id. at 242–43, 268. Gross entered into a plea agreement in which he
pleaded guilty to one count of violating 18 U.S.C. § 1347. Id. at 282. Gross was sentenced to a 71-
month term of incarceration and ordered to pay a $100,000 fine. Id. at 276, 279. The sentencing
judge also ordered Gross to pay $1,832,869.21 in restitution to compensate for the damage caused
by his conduct. Id. at 279. Later, the Texas Medical Board suspended Gross’s medical license
indefinitely. Id. at 294–95.
About two years later, on April 29, 2016, the Office of the Inspector General for the
Department of Health and Human Services sent Gross a letter informing him that he would be
excluded from all federal health care programs (including Medicare and Medicaid) because he had
been convicted “of a criminal offense related to the delivery of an item or service under the
Medicare or a State health care program.” ECF 26-1 at 20 (citing 42 U.S.C. § 1320a-7(a)). Pursuant
to the Social Security Act, Gross’s period of exclusion could not be less than five years. Id.; see
also 42 U.S.C. 1320a-7(c)(3)(B). But the Inspector General determined that Gross should be
excluded for more than five years because his offense implicated four aggravating factors: (1)
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Gross’s offense caused a financial loss to a government agency of $5,000 or more; 2 (2) Gross’s
criminal acts were committed over a period of a year or more; (3) Gross’s sentence included
incarceration; and (4) Gross was the recipient of an adverse action taken by another governmental
agency—the Texas Medical Board had suspended his license. ECF 26-1 at 21. It excluded him for
a minimum period of 28 years. Id. at 20.
Gross appealed the decision. Id. at 19. On February 10, 2017, an Administrative Law Judge
(ALJ) upheld the Inspector General’s decision, citing the presence of the four aggravating factors
and the lack of any mitigating factors. Id. at 1–9. Gross appealed the ALJ’s decision, but a three-
judge panel in the Appellate Division of the Department of Health and Human Services’
Departmental Appeals Board affirmed it. Id. at 10–18.
Gross then sued the Inspector General, Attorney General, and an unnamed United States
Attorney in this Court. ECF 4. His Amended Complaint includes three claims. First, Gross alleges
that the decisions by the ALJ and the Departmental Appeals Board were arbitrary and capricious
in violation of the Administrative Procedure Act. Id. at 2–3. Second, Gross alleges that the
Defendants violated the Sixth Amendment by “refus[ing] to allow Plaintiff’s constitutional right
to counsel” before he entered into his plea agreement. Id. at 1. Finally, Gross’s Amended
Complaint alleges that Defendants violated the Fifth and Fourteenth Amendment by using false
evidence, applying the wrong sentencing guidelines, and illegally seizing retirement funds. ECF 4
at 2.
While these allegations do not make clear the full basis for his legal argument related to
the length of his exclusion, Gross’s Response to Defendants’ Motion for Summary Judgment
2
This aggravating factor was later amended to increase the amount of loss from $5,000 to $50,000. See 42 C.F.R. §
1001.102(b)(1). But the Final Rule amending the amount had an effective date of February 13, 2017, which was after
the Inspector General issued its decision. See 82 Fed. Reg. 4100, 4103, 4112 (Jan. 12, 2017).
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offers some clarity. There, he argued that the 28-year exclusion period violated the Equal
Protection Clause, and supported his argument by identifying doctors who had received shorter
periods of exclusion. ECF 14 at 11–16. Reading Gross’s pleadings together, the Court construes
his claim to be an Equal Protection violation alleging that he received dissimilar treatment than
other convicted doctors, in addition to his APA claim.
Defendants moved for summary judgment on Gross’s claims related to the length of his
period of exclusion and moved to dismiss his remaining claims under Rule 12(b)(3) for improper
venue. ECF 10. Gross responded, ECF 13, and Defendants replied, ECF 20.
II. LEGAL STANDARD
Normally, summary judgment is appropriate if the moving party “shows that there is no
genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). But in APA cases, “the summary
judgment standard functions slightly differently, because the reviewing court generally . . . reviews
the agency’s decision as an appellate court addressing issues of law.” Ashtari v. Pompeo, 496 F.
Supp. 3d 462, 467 (D.D.C. 2020). A district court can review an administrative action to determine
whether it was arbitrary and capricious, contrary to law, or unsupported by substantial evidence. 5
U.S.C. § 706. To pass arbitrary and capricious review, the administrative body “must examine the
relevant data and articulate a satisfactory explanation for its action including a rational connection
between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of United States, Inc. v.
State Farm, 463 U.S. 29, 43 (1983).
Whether venue is proper “depends exclusively on whether the court in which the case was
brought satisfies the requirements of federal venue laws.” Atl. Marine Constr. Co., Inc. v. U.S.
Dist. Court, 571 U.S. 49, 55 (2013). “In considering a Rule 12(b)(3) motion, the court accepts the
plaintiff’s well-pled factual allegations regarding venue as true, draws all reasonable inferences
from those allegations in the plaintiff’s favor, and resolves any factual conflicts in the plaintiff’s
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favor.” Haley v. Astrue, 667 F. Supp. 2d 138, 140 (D.D.C. 2009). However, the burden is on the
plaintiff to establish that venue is proper, see, e.g., Williams v. GEICO Corp., 792 F. Supp. 2d 58,
62 (D.D.C. 2011), and the Court is not obligated to accept the plaintiff’s legal conclusions, Haley,
667 F. Supp. 2d at 140.
III. ANALYSIS
A. APA and Equal Protection Claims
Gross challenges the decisions by the ALJ and Departmental Appellate Board upholding
the Inspector General’s 28-year exclusionary period. ECF 13 at 5–16. He argues that these
decisions violated the APA and the Equal Protection Clause. After reviewing the statutory
backdrop that informed the two decisions, the Court grants summary judgment to Defendants.
Individuals (like Gross) who have been excluded from participation in federal health care
programs can seek judicial review of the exclusion after exhausting their administrative remedies.
42 U.S.C. § 1320a-7(f)(1). But the reviewing court applies a deferential standard of review—it
will affirm an Appeals Board decision as long as it was “based on substantial evidence in the record
and correctly applie[d] the relevant legal standards.” Friedman v. Sebelius, 686 F.3d 813, 818
(D.C. Cir. 2012). If the decision departs from prior agency precedent, then the agency must also
satisfy the APA’s arbitrary and capricious standard by providing a reasoned explanation for the
departure. Id. at 826–27.
The Appeals Board applied the correct legal standards, based its decision on evidence in
the record, and provided a reasoned explanation for its action. The governing regulations identify
nine aggravating factors that can justify lengthening a period of exclusion beyond the five-year
minimum. The Appeals Board found that four of them applied to Gross’s case: Gross’s offense
caused a financial loss to a government agency of $5,000 or more; Gross’s criminal acts were
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committed over a period of a year or more; Gross’s sentence included incarceration; and Gross
was the recipient of an adverse action taken by another governmental agency.
The Appeals Board correctly applied these aggravating factors based on the evidence in
the record. As part of his plea agreement, Gross agreed to pay $1,832,869.21 in restitution for his
actions, a sum that far exceeds the $5,000 threshold. ECF 26-1 at 287. Gross committed his actions
over a period of approximately five years. Id. at 6. Gross was sentenced to 71 months incarceration
because of the severity of his conduct. Id. And the Texas Medical Board revoked Gross’s medical
license indefinitely because of his conviction. Id. at 294–95. This evidentiary record firmly
supports the Appeals Boards’ application of the four aggravating factors.
To the extent that Gross’s exclusionary period is longer than other periods of exclusion,
the Appeals Board provided a reasoned explanation for the departure. The Appeals Board observed
that Gross’s case involved a mandatory exclusion, which carries a longer minimum period of
exclusion than the permissive exclusion at issue in at least one of the cases that Gross cited in his
challenge. ECF 26-1 at 15. It also considered its precedent—even reviewing non-binding ALJ
decisions that Gross relied upon—and sufficiently explained that Gross’s case caused a far greater
financial loss (often more than double), involved criminal acts that occurred over a longer time
span, and resulted in a lengthier period of incarceration than prior cases. Id. at 16–17. Thus, the
Appeals Board adequately considered precedent—including the cases identified by Gross—and
justified the lengthy exclusionary period that it imposed on Gross.
Finally, the Appeals Board’s decision did not violate the Equal Protection Clause. Such a
claim would require Gross to allege that he had been “intentionally treated differently from others
similarly situated and that there is no rational basis for the difference in treatment.” Zahl v. New
Jersey Dep’t of L. and Pub. Safety Div. of Consumer Affs., 428 Fed. App’x 205, 209 (3d Cir. 2011)
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(quoting Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 601 (2008)). In his Response to
Defendants’ Motion for Summary Judgment, Gross identified a few cases in which convicted
healthcare providers received shorter exclusionary periods. ECF 13 at 5–11. But the length of an
exclusionary period is an individualized question that turns on the facts of any given situation.
Factual differences explain why Gross received a lengthier exclusionary period than the healthcare
providers in the cases he cited: Gross was ordered to pay more money in restitution than those
providers because his conduct caused more significant financial loss and sentenced to a longer
term of imprisonment because of the severity of his conduct, providing a rational basis for the
Appeals Board to determine that a greater exclusionary period was appropriate in his case.
Additionally, there is no evidence in the record that the Appeals Board acted with animus toward
Gross or that any difference in treatment was related to anything other than the facts of his case.
The Court therefore grants Defendants’ Motion for Summary Judgment as to Gross’s APA and
Equal Protection claims.
B. Constitutional Claims Related To Gross’s Conviction and Sentence
The Defendants argue that this Court is an improper venue to litigate Gross’s Sixth, Fifth,
and Fourteenth Amendment claims related to his underlying conviction and sentence, and that the
named Defendants are improper parties for those claims. ECF 10-1 at 6–7. Gross does not
meaningfully dispute this assertion, and the Court agrees with Defendants. The Fifth Circuit is the
appropriate jurisdiction for any appeals related to Gross’s conviction. See 28 U.S.C. § 1291. And
if Gross meant to collaterally attack his underlying conviction, then he must bring a habeas action
against “the person who has custody over him.” See 28 U.S.C. 2242; see also Rumsfeld v. Padilla,
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542 U.S. 426, 434 (2004). 3 The Court grants Defendants’ Motion to Dismiss under Fed. R. Civ.
P. 12(b)(3) as to Gross’s constitutional claims.
IV. CONCLUSION
For the foregoing reasons, the Court grants Defendants’ Motion for Summary Judgment as
to Gross’s APA and Equal Protection Claims, as well as their Motion to Dismiss his constitutional
claims purporting to challenge his conviction and sentence for improper venue.
DATE: August 9, 2023
Jia M. Cobb
U.S. District Court Judge
3
The Court does not opine on the merits of any such habeas action. It finds only that Gross’s claims are more
appropriately raised in a habeas petition rather than in this litigation.
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