With less than two weeks until the Status Conference in the Rigsby, I wasn’t expecting to find anything on the docket unless it was required by Judge Senter’s Order. Of course, none of us should ever be surprised by anything State Farm does in litigation – particularly now that a lot of law firms are struggling in the post-Katrina economy.
Hardly a week goes by that I don’t hear a rumor about layoffs at a big or medium size firm, get a phone call about a lawyer looking for work or hear a story about a former law grad delivering pizzas.
Even then, I didn’t think things would be going slow for State Farm’s big guns – but, given the ” illusory authority” of the case cited as the “Authority”, I can’t help but believe this comment more than idle gossip. After all, someone has to keep the lights on:
my neighbor who is a partner with Butler, Snow et. al. just wanders around wondering why he has soooo little to do.
It definitely took some wandering and wondering to come up with the money-hungry-looking-Notice of Intervening Authorities on “the Rigsbys’ Repeated and Calculated Violation of this Court’s Seal Order” as it really doesn’t intervene in anything at all except the Court’s time.
The “Authority” cited is the Sixth Circuit’s decision on the Appeal of Summers v HLC Group, Inc. – the incredible case of a Relator who did not file her qui tam Complaint under seal! The District Court granted the Defendant’s Motion to Dismiss and, as Top Legal News reported, the court later denied “a plaintiff’s motion under Fed. R. of Civ. Proc. 59(e) to alter an earlier judgment of dismissal”:
In affirming the judgment, the court held that violations of the procedural requirements that qui tam actions be filed under seal, imposed on qui tam plaintiffs under the False Claims Act, preclude plaintiff from asserting qui tam status.
Business might also have been be a little slow when the Sixth Circuit decided to take the case up on appeal. However, there’s always something to keep a court busy when it has a who-dat-judge-Martin Feldman look-alike -activist judge such as Danny Julian Boggs – graded “F” on ABA Guideline 5.2: Integrity and Impartiality:
Boggs has pretensions to be a Junior Scalia or a want to be Posner. He lacks the intellect and wit to be either. His decisions are guided by his politics. He is the type of judge who gives conservatives a bad name. Unlike Scalia and the plain meaning school of interpretaters, Boggs is a complete political judge.
Boggs, who wrote the Summers decision for the Sixth, “was appointed to a newly-created seat on that court on January 29, 1986 by President Ronald Reagan. From 1983 to 1986, he was Deputy secretary, Department of Energy. Prior to that appointed, 1981-1983, he was special assistant to the President, Executive Office of the President. Wow!
After he began with a somewhat logical analysis of the distinctions between Erickson (ex rel Erickson v Am. Institute of Biological Sciences, 1986), the precedent case on failure to file a qui tam complaint under seal, and Lujan (ex rel Lugan v Hughes Aircraft, 1995), the precedent case on disclosure of a qui tam case under seal, Boggs amazing decided there was no comparison before wandering off into deep Lujan – and there he became totally lost when he strayed from the basic principle of the cannons of construction for statutory interpretation:
In analyzing a statute’s text, the Court is guided by the basic principle that a statute should be read as a harmonious whole, with its separate parts being interpreted within their broader statutory context in a manner that furthers statutory purpose.
Evidently, politics was his compass, or Boggs would have followed the government’s directions, recognized the government’s statutory right to provided those directions, and stopped where he was safe in Lujan. Instead he mapped out a path and then circled back with to a contradictory interpretation of his initial misapplication of the cannon of legislative intent and got totally lost:
For its part, the Government has filed a brief asserting that the Lujan test “properly captured how these violations should be handled.” Its discussion of this issue, however, is primarily limited to support for the particular factors considered by the Lujan court; it does not make a developed argument with respect to the predicate question of whether a balancing test ought to be applied in the first instance…Relatedly, we note that although the Government designated itself as an appellee in this case, and in fact was permitted to share time at oral argument with LHC Group, it appears that its real interest in this case is more closely aligned with that of the appellant. Accordingly, we have reformed the party designations as indicated on the above caption.
As it has not been argued on appeal, we deliberately refrain from deciding at this time whether the Government has standing to appear as a party on appeal when it has declined to participate in an FCA case in the district court.
State Farm, obviously, wants Judge Senter to get lost:
The Rigsbys have asked this Court to reconsider its prior scheduling order and to reopen and exponentially expand discovery in this case…State Farm respectfully submits that this dispositive legal issue is ripe for review and should be decided before the Rigsbys’ motion for reconsideration is taken up and before this case goes to trial.
However, State Farm’s team of buckin’ fuzzards at little-slow-Butler-Snow was more than a little slow launching this effort to detail Judge Senter’s December 1 Status Conference with the Rigsbys’ motion on the agenda.
The Sixth’s decision on Summers was issued October 4th and out on the legal news services before the close of business the next day, October 5th – but State Farm waited a full month and two-plus weeks to bring the matter to the Court’s attention.
Without knowing who and how many Butler Snow partners are wandering and wondering instead of working, SLABBED applies Hanlon’s Razor – certain that both the Rigsbys’ counsel and Judge Senter will give the Notice a close shave – and, unlike Boggs’ who reached his decision with a political compass, Judge Senter’s moral compass will guide him to a logical and lawful decision.