United States ex rel. Keshner v. Nursing Personnel Home Care

794 F.3d 232, 2015 U.S. App. LEXIS 12676, 2015 WL 4477257
CourtCourt of Appeals for the Second Circuit
DecidedJuly 10, 2015
DocketDocket No. 14-251-cv
StatusPublished
Cited by22 cases

This text of 794 F.3d 232 (United States ex rel. Keshner v. Nursing Personnel Home Care) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States ex rel. Keshner v. Nursing Personnel Home Care, 794 F.3d 232, 2015 U.S. App. LEXIS 12676, 2015 WL 4477257 (2d Cir. 2015).

Opinion

POOLER, Circuit Judge:

Defendants-Appellants Nursing Personnel Home Care and its president Walter Greenfield (collectively, “Nursing Personnel”) appeal from a January 6, 2014 partial judgment of the United States District Court for the Eastern District of New York (Block, /.) awarding Plaintiff-Appel-lee Maurice Keshner $185,962.12 in attorneys’ fees pursuant to the attorneys’ fees provision of the False Claims Act, 31 U.S.C. § 3730(d)(1). On appeal, Nursing Personnel challenges time entries in Kesh-ner’s fee petition as unrelated to work performed in this lawsuit. We hold that Nursing Personnel waived its present challenge to these time entries in Keshner’s fee petition by failing to raise this objection before the district court. Accordingly, we affirm, and remand for the limited purpose of awarding Keshner appellate attorneys’ fees.

BACKGROUND

In 2006, Maurice Keshner asserted fraud claims on behalf of the United States against, inter alia, Nursing Personnel, a provider of home healthcare services to Medicare and Medicaid beneficiaries. Keshner’s federal False Claims Act complaint alleged fraud against both Medicare and Medicaid. The United States and the State of New York subsequently undertook a joint investigation of Keshner’s claims.

The parties ultimately settled the fraud claims in late 2009 and the federal settlement agreement stipulated, inter alia, that (1) Nursing Personnel pay the United States a settlement amount, and (2) the United States pay Keshner 18% of this settlement amount as a qui tarn award. The federal settlement agreement also explicitly preserved Keshner’s claim for attorneys’ fees and costs against Nursing Personnel. Under the False Claims Act, a [234]*234qui tam plaintiff who obtains a settlement with a defendant is entitled to an award of reasonable attorneys’ fees and costs. See 31 U.S.C. § 3730(d)(1).

After Nursing Personnel refused to pay Keshner’s requested attorneys’ fees, Kesh-ner filed a motion for attorneys’ fees before the district court. In opposing this motion, Nursing Personnel never contested the amount of attorneys’ fees claimed by Keshner. It disputed only Keshner’s entitlement to such fees. Specifically, Nursing Personnel raised two arguments: (1) Keshner was not a “prevailing party” entitled to fees under the False Claims Act, and (2) Keshner engaged in collusion, making an award of fees in any amount unreasonable. The district court rejected both of these arguments, and Nursing Personnel does not press either on appeal. The district court granted Keshner’s motion and directed Nursing Personnel to pay attorneys’ fees in the amount of $185,962.12.

Nursing Personnel subsequently appealed the award of attorneys’ fees to this Court. See Keshner v. Nursing Personnel Home Care, 747 F.3d 159 (2d Cir.2014) (tracing the procedural history of this appeal). On appeal, Nursing Personnel argues that the district court abused its discretion by failing to reduce the amount of attorneys’ fees claimed by Keshner, given that certain hours listed in Keshner’s fee petition were allegedly spent working not on the federal suit, but rather on parallel state court proceedings. Nursing Personnel never raised this argument in challenging Keshner’s attorneys’ fees motion before the district court.

DISCUSSION

“[I]t is a well-established general rule that an appellate court will not consider an issue raised for the first time on appeal.” Greene v. United States, 13 F.3d 577, 586 (2d Cir.1994). Before the district court, Nursing Personnel never took issue with any of the time entries claimed by Keshner’s counsel, nor did it raise its present argument that Keshner’s counsel was improperly seeking fees in the federal case for work performed in the state matter. Rather, Nursing Personnel consistently argued that “no amount of time or energy expended by attorneys in the prosecution of fraudulent claims, and no expenses incurred in doing so, can be ‘reasonable.’ ” App’x at 141 (emphasis in original). Since Nursing Personnel never raised its present argument before the district court, the contention falls within the ambit of our case law regarding unpreserved arguments.

However, the waiver rule is “prudential, not jurisdictional,” and we have exercised our discretion to entertain new arguments “where necessary to avoid a manifest injustice or where the argument presents a question of law and there is no need for additional fact-finding.” Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir.2006) (internal quotation marks and citation omitted). Scrutiny of individual fee entries, however, is a task akin to fact-finding, better reserved for a district court in the first instance. See Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 151 (2d Cir.2008) (noting that “what constitutes reasonable attorney’s fees in a given case” is “essentially [a] factual matter[ ].” (internal quotation marks omitted)). Moreover, we have noted that, “the circumstances normally do not militate in favor of an exercise of discretion to address new arguments on appeal where those arguments were available to the parties below and they proffer no reason for their failure to raise the arguments below.” In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 133 (2d Cir.2008) (internal quotation marks and alterations [235]*235omitted). Here, Nursing Personnel had numerous opportunities to raise its present argument before the district court. Indeed, Keshner’s attorneys specifically advised Nursing Personnel’s counsel that “[t]he only legitimate contest which ... Nursing Personnel can make is regarding how much in attorneys’ fees should be awarded.” App’x at 167 (emphasis added). Despite this admonition, Nursing Personnel never objected below to any specific time entry for Keshner’s attorneys, nor did it even argue that the amount of fees should be reduced. On appeal, Nursing Personnel provides no explanation for its failure to raise its present argument below. Accordingly, we decline to exercise our discretion to overlook its waiver.

. Nevertheless, Nursing Personnel makes several arguments as to why the waiver doctrine is inapplicable here. For the reasons discussed below, we do not find any of these arguments persuasive. First, Nursing Personnel argues that it was not required to object to specific time entries because Keshner bore the burden of showing his entitlement to reasonable fees. This argument is unavailing. The Supreme Court has recognized that in the context of fee-shifting litigation, “[t]he fee applicant ... must ... submit appropriate documentation to meet the burden of establishing entitlement to an award.” Fox v. Vice, 563 U.S. 826, 131 S.Ct. 2205, 2216, 180 L.Ed.2d 45 (2011) (internal quotation marks omitted); see also Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct.

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794 F.3d 232, 2015 U.S. App. LEXIS 12676, 2015 WL 4477257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-ex-rel-keshner-v-nursing-personnel-home-care-ca2-2015.