United States ex rel. Shannon Martin, M.D. v. Darren Hathaway

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 23a0056p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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UNITED STATES OF AMERICA ex rel. SHANNON

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MARTIN, M.D.; UNITED STATES OF AMERICA ex rel.

│

DOUGLAS MARTIN,

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Relators-Appellants, > No. 22-1463

│

│

v. │

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DARREN HATHAWAY, M.D.; SOUTH MICHIGAN │

OPHTHALMOLOGY, P.C.; ELLA E. M. BROWN │

CHARITABLE CIRCLE, dba Oaklawn Hospital, │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:19-cv-00915—Jane M. Beckering, District Judge.

Argued: March 8, 2023

Decided and Filed: March 28, 2023

Before: SUTTON, Chief Judge; SILER and MATHIS, Circuit Judges.

_________________

COUNSEL

ARGUED: Julie A. Gafkay, GAFKAY LAW PLC, Saginaw, Michigan, for Appellants. Mary

Massaron, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellees Darren

Hathaway, M.D. and South Michigan Ophthalmology, P.C. Jonathan S. Feld, DYKEMA

GOSSETT PLLC, Chicago, Illinois, for Appellee Ella E. M. Brown Charitable Circle. Daniel

Winik, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for United States

as Amicus Curiae. ON BRIEF: Julie A. Gafkay, GAFKAY LAW PLC, Saginaw, Michigan,

Floyd E. Gates, Jr., Christopher J. Zdarsky, BODMAN PLC, Grand Rapids, Michigan, for

Appellants. Mary Massaron, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellees

Darren Hathaway, M.D. and South Michigan Ophthalmology, P.C. Jonathan S. Feld, Mark J.

Magyar, Andrew T. VanEgmond, DYKEMA GOSSETT PLLC, Chicago, Illinois, Lisa A.

McNiff, SCHROEDER DEGRAW PLLC, Marshall, Michigan, for Appellee Ella E. M. Brown

No. 22-1463 United States ex rel. Martin, et al. v. Hathaway, et al. Page 2

Charitable Circle. Daniel Winik, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., Jessica L. Ellsworth, HOGAN LOVELLS US LLP, Washington, D.C., for

Amici Curiae.

SUTTON, C.J., delivered the opinion of the court in which SILER, J., joined in full, and

MATHIS, J., joined in part and in the judgment. MATHIS, J. (pg. 17), delivered a separate

opinion concurring in all but Section II.A. of the opinion.

_________________

OPINION

_________________

SUTTON, Chief Judge. The False Claims Act imposes civil liability for “knowingly

present[ing], or caus[ing] to be presented, a false or fraudulent claim [to the government] for

payment or approval.” 31 U.S.C. § 3729(a)(1)(A). The Act allows individuals with knowledge

of false claims to bring private lawsuits, known as qui tam lawsuits, on behalf of the government.

Id. § 3730(b). Among other types of false claims, the Act covers claims for “items or services

resulting from a violation” of the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(g), which

prohibits medical providers from making referrals “in return for” “remuneration,” id. § 1320a-

7b(b)(1)(A). At issue in this case is (1) whether a hospital’s decision not to hire an

ophthalmologist in return for a general commitment of continued surgery referrals from another

ophthalmologist for patients from the local community counts as the kind of “remuneration”

covered by the Anti-Kickback Statute and (2) whether claims from such continued referrals

“result[] from” violations of the statute. Id. § 1320a-7b(b)(1), (g). Because we agree with the

district court that this kind of claim does not establish a cognizable kickback scheme, we affirm

the dismissal of this qui tam complaint.

I.

Oaklawn Hospital is located in Marshall, Michigan, a small city in the southern part of

the State. When Oaklawn patients from Marshall need ophthalmology services, they have one

locally based option, South Michigan Ophthalmology, P.C. This practice group had two private

physicians, Dr. Darren Hathaway (the owner of the practice) and Dr. Shannon Martin (an

employee of the practice). When these two ophthalmologists referred patients from Marshall for

No. 22-1463 United States ex rel. Martin, et al. v. Hathaway, et al. Page 3

surgery, they tended to use the most convenient local option, Oaklawn. Oaklawn and South

Michigan have referred Marshall-based patients to each other for many years.

Friction in these business relationships developed in 2018. Dr. Hathaway, the sole

shareholder of South Michigan, began negotiating a merger with Lansing Ophthalmology, P.C.

(LO Eye), a larger practice based in the State’s Capitol. When Dr. Martin heard about the

merger, she asked whether she would be able to work with LO Eye. When that fell through, she

began negotiations with Oaklawn.

Dr. Martin’s discussions with Oaklawn had a promising start, perhaps facilitated by her

husband, Douglas Martin, who served as the Director of Finance for Oaklawn Hospital. On

October 17, Oaklawn extended her a tentative offer to be a physician based at the hospital,

subject to board approval. Consistent with the offer, the Board heard a rumor that Dr. Hathaway

planned to move South Michigan’s surgeries elsewhere—an Ambulatory Surgery Center located

in Battle Creek, about a thirty-minute drive from Marshall—after his merger with LO Eye,

making it sensible for South Michigan to hire an internal ophthalmologist.

An Oaklawn employee told Dr. Hathaway about the pending offer and conveyed

Oaklawn’s impression that Dr. Hathaway intended to move his surgeries to another hospital.

Dr. Hathaway met with Oaklawn’s interim CEO, Gregg Beeg, on October 22. Dr. Hathaway

told Beeg that in fact he did not have any plans to pull his surgeries from Oaklawn, that he

wanted to continue referring his Marshall patients who needed surgery to Oaklawn, and that he

actually “expect[ed] business to increase” in the future. R.64-4 at 9. Dr. Hathaway told him

that, if the Board approved the offer, it would be the “death knell” of his practice because

Oaklawn’s future patient referrals would go to Dr. Martin, the new, internal ophthalmologist.

R.64 ¶ 23. Beeg encouraged Dr. Hathaway to speak to other board members.

In the coming days, Dr. Hathaway spoke with at least four board members.

Dr. Hathaway also drafted a letter to the Board reiterating these points and explaining that his

merger with LO Eye would allow LO Eye to take over his administrative duties and, with “more

efficient operations” after the merger, he expected that he could increase business for Oaklawn.

R.64-5 at 3. If Oaklawn hired Dr. Martin, Dr. Hathaway argued, that would be a lose-lose

No. 22-1463 United States ex rel. Martin, et al. v. Hathaway, et al. Page 4

situation because it would cost Oaklawn “hundreds (plural) of thousands of dollars” to set up an

internal ophthalmology line while it would “force” Dr. Hathaway “against [his] will (because [he

had] no desire to pull out whatsoever), to pull out [his] cases and take them elsewhere.” Id. at 3–

4. LO Eye confirmed Dr. Hathaway’s account in a letter to the Board, stating that it

“anticipate[d] the surgical volume of the practice will be greater in this new model, and [it had]

no intention of taking that volume elsewhere.” Id. at 5.

The Board met on October 26. Before the vote, several board members expressed

concern about losing business if they hired Dr. Martin. The Board voted not to hire Dr. Martin.

The Board Chairman called Dr. Hathaway to let him know about the decision. Another member

texted Dr. Hathaway that Oaklawn “appreciate[d] all of [his] support,” wanted to “continue that

partnership,” and that she was “[l]ooking forward to increased surgical volume.” R.64 ¶ 47.

Dr. Hathaway responded, “[i]t’s coming.” Id. As it turns out, the LO Eye merger with South

Michigan fell through. And as things eventually played out, Dr. Hathaway continued as sole

proprietor of South Michigan, and Dr. Martin set up her own practice in Marshall.

All of this did not sit well with Dr. Martin. She and her husband sued Dr. Hathaway,

South Michigan, and Oaklawn Hospital in this qui tam action under the federal False Claims Act,

31 U.S.C. §§ 3729(a), 3730(b), and Michigan’s Medicaid False Claims Act, Mich. Comp. Laws

§ 400.601. The Martins claimed that Dr. Hathaway and Oaklawn engaged in an illegal

fraudulent scheme under the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b, and that claims for

Medicare and Medicaid reimbursement resulting from the kickbacks violated the False Claims

Act. The Martins sought between $5,000 and $10,000 for each fraudulent claim plus treble

damages. After receiving notice of the lawsuit, the United States declined to intervene. The

district court dismissed the Martins’ complaint with leave to amend because it did not

particularly allege any false claims that Oaklawn or Dr. Hathaway submitted to the government.

The Martins filed an amended complaint, adding 22 claims that Oaklawn and South

Michigan submitted for reimbursement based on referrals. Oaklawn and Dr. Hathaway again

moved to dismiss. The district court granted the motion, rejecting each of the federal claims as a

matter of law and declining to exercise supplemental jurisdiction over the state law claims.

No. 22-1463 United States ex rel. Martin, et al. v. Hathaway, et al. Page 5

II.

Each of the allegations in the complaint turns on a variation on a theme—that Oaklawn

Hospital’s rejection of Dr. Martin’s employment in return for Dr. Hathaway’s commitment to

continue sending local surgery referrals violated the Anti-Kickback Statute. At the motion to

dismiss stage of a case, we must accept as true all plausible factual allegations in the complaint.

In the context of allegations of “fraud,” Rule 9(b) of the Federal Rules of Civil Procedure

requires the claimant to state with “particularity the circumstances constituting fraud.” Fed. R.

Civ. P. 9(b). That means qui tam plaintiffs must “adequately allege the entire chain—from start

to finish—to fairly show defendants caused false claims to be filed.” United States ex rel. Ibanez

v. Bristol-Myers Squibb Co., 874 F.3d 905, 914 (6th Cir. 2017). The complaint thus must

specify the “who, what, when, where, and how” of the alleged fraudulent scheme. Sanderson v.

HCA-The Healthcare Co., 447 F.3d 873, 877 (6th Cir. 2006) (quotation omitted).

This complaint contains two legal flaws under the Anti-Kickback Statute and the False

Claims Act. It does not turn on a cognizable theory of remuneration, and it fails to establish

causation.

A.

Remuneration. The Anti-Kickback Statute establishes criminal and civil liability for

“knowingly and willfully offer[ing] or pay[ing] any remuneration (including any kickback,

bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind to any person to

induce such person . . . to refer an individual to a person for the furnishing . . . of any item or

service” that is reimbursable under a federal health care program. 42 U.S.C. § 1320a-

7b(b)(2)(A) (emphasis added). The statute applies to solicitations and receipts of such payments:

Anyone who “solicits or receives any remuneration . . . in return for referring an individual”

under the same circumstances will also face criminal and civil liability. Id. § 1320a-7b(b)(1)(A).

The statute does not define remuneration. At stake is whether it covers just payments and

other transfers of value or any act that may be valuable to another. For the reasons that follow, it

covers just payments and other transfers of value.

No. 22-1463 United States ex rel. Martin, et al. v. Hathaway, et al. Page 6

Congress first penalized the offer of “remuneration” in return for patient referrals in 1977

when it amended the Social Security Act. Medicare-Medicaid Anti-Fraud and Abuse

Amendments, Pub. L. 95-142, § 4(a), (b), 91 Stat. 1179, 1181 (1977). Dictionaries around that

time consistently described remuneration as a form of payment. See, e.g., Remuneration,

Webster’s Third New International Dictionary 1921 (1976) (“an act or fact of remunerating,”

further defined as “to pay an equivalent for (as a service, loss, expense)”); Remuneration,

Webster’s New Twentieth Century Dictionary 1530 (2d ed. 1975) (similar); Remuneration, The

American Heritage Dictionary of the English Language 1101 (1975) (similar); Remunerate, The

Oxford Universal Dictionary Illustrated 1702 (3d ed. rev. 1970) (similar); see also

Remuneration, Black’s Law Dictionary 1165 (5th ed. 1979) (“Reward; recompense; salary;

compensation.”).

Other uses of remuneration by Congress around the same time treated remuneration as

something “paid” or transferred. See, e.g., Tax Treatment Extension Act of 1977, Pub. L. 95-

615, § 209, 92 Stat. 3097, 3109 (1978) (applying a wage withholding amendment to

“remuneration paid after the date of enactment”); Social Security Amendments of 1977, Pub. L.

95-216, § 103, 91 Stat. 1509, 1513 (1977) (determining contribution and benefit base “with

respect to remuneration paid”); id., § 355, 91 Stat. at 1555 (allowing employers to take certain

tax deductions if they “pa[id] to an employee cash remuneration”).

Context points in a similar direction. In the relevant sentence, the statute refers to

remuneration in “cash” or in “kind,” two words that suggest payments or transfers of some sort.

The statute also offers three non-exhaustive examples of remuneration: kickbacks, bribes, and

rebates. Kickbacks and bribes usually involve payments of money or transfers of specific items

of value, and rebates customarily involve amounts of money owed. As the Supreme Court

recently confirmed, other federal laws that prohibit bribery require more than acts that may be of

value to another. They bar “quid pro quo corruption—the exchange of a thing of value for an

‘official act.’” McDonnell v. United States, 579 U.S. 550, 574 (2016).

In exempting some payments and transfers from remuneration, Congress conveyed a

similar impression. The statute excludes several financial exchanges from potential criminal

penalty, confirming that Congress thought these practices otherwise counted as remuneration.

No. 22-1463 United States ex rel. Martin, et al. v. Hathaway, et al. Page 7

Notably, each exemption has a payment quality. The safe harbor exemptions range from certain

discounts or reductions in price and vendor payments to provisions of “goods, items, services,

donations, loans, or a combination thereof” to health center entities serving underserved

populations. 42 U.S.C. § 1320a-7b(b)(3)(I); cf. Arellano v. McDonough, 143 S. Ct. 543, 548–49

(2023) (drawing structural inference from a list of sixteen statutory exceptions). At the same

time, Congress also directed the Secretary of the Department of Health and Human Services to

promulgate regulations adding any other safe harbors “specifying payment practices that shall

not be treated as a criminal offense under [the Anti-Kickback Statute].” 42 U.S.C. § 1320a-

7d(a)(1)(A)–(B) (emphasis added). A common theme links each of these regulatory safe

harbors: a transfer of value from one to another. See generally 42 C.F.R. § 1001.952; see also

HollyFrontier Cheyenne Refin., LLC v. Renewable Fuels Ass’n, 141 S. Ct. 2172, 2177 (2021)

(concluding that “extension” had a temporal character because other listed “extensions” shared

the same quality).

A cousin of the Anti-Kickback Statute—the civil penalties section of the Social Security

Act—also indicates that remuneration requires a payment or transfer of value to another. It

imposes fines on any person who “offers [] or transfers remuneration to any individual eligible

for benefits” to influence the individual’s choice of medical providers. Health Insurance

Portability and Accountability Act of 1996, Pub. L. 104-191, § 231, 110 Stat. 1936, 2014 (1996);

see 42 U.S.C. § 1320a-7a(a)(5). Congress defined “remuneration” to “includ[e] the waiver of

coinsurance and deductible amounts . . . and transfers of items or services for free or for other

than fair market value.” § 231, 110 Stat. at 2014; 42 U.S.C. § 1320a-7a(i)(6). Our circuit has

assumed twice before that this definition—one that entails a “transfer”—applies to the Anti-

Kickback Statute and the Social Security Act. See Miller v. Abbott Labs., 648 F. App’x 555, 561

(6th Cir. 2016) (per curiam); Jones-McNamara v. Holzer Health Sys., 630 F. App’x 394, 400

(6th Cir. 2015).

Other statutes across the legal landscape refer to different types of remuneration yet none

of them changes the essence of remuneration as a payment or transfer. The Railroad Retirement

Tax Act’s reference to “money remuneration” excludes stock options because elsewhere in the

U.S. Code Congress referred to “all remuneration.” Wis. Cent. Ltd. v. United States, 138 S. Ct.

No. 22-1463 United States ex rel. Martin, et al. v. Hathaway, et al. Page 8

2067, 2071–72 (2018). The Social Security Act offers a range of settings: “[W]ages” in one

context is “remuneration paid,” 42 U.S.C. § 409(a); services in another are activities “performed

for remuneration or gain,” id. § 422(c)(2); and in another “rebates, discounts, [and] price

concessions” are described as forms of remuneration, id. § 1395w-115(f)(3)(A)(i). The same

goes for other federal laws. See, e.g., 8 U.S.C. § 1324c(e) (criminalizing the failure to disclose

that a person received a “fee or other remuneration” for assisting with false applications for

immigration benefits); 10 U.S.C. § 974(b) (prohibiting military musicians from receiving

additional “remuneration for an official performance”); 22 U.S.C. § 1641p (using remuneration

to describe payments to agents, attorneys, and representatives); 26 U.S.C. § 4960(c)(3) (defining

remuneration as wages); 29 U.S.C. § 1185n(a)(9) (requiring group health plans to annually

submit a report on “[a]ny impact on premiums by rebates, fees, and any other remuneration paid

by drug manufacturers to the plan”).

The Office of Inspector General seems to accept this approach. See 42 U.S.C. § 1320a-

7d. Its advisory opinions define “remuneration” as “the transfer of anything of value, directly or

indirectly, overtly or covertly, in cash or in kind.” U.S. Dep’t of Health & Hum. Servs, Off. of

Inspector Gen., Advisory Op. No. 22-14, at 5 (June 29, 2022) (provision of continuing education

programs); see also U.S. Dep’t of Health & Hum. Servs, Off. of Inspector Gen., Advisory Op.

No. 99-8 (July 13, 1999) (provision of free physician consultations). The Office’s guidance

sticks to the same trail. It describes the Anti-Kickback Statute as a “criminal prohibition against

payments (in any form, whether the payments are direct or indirect) made purposefully to induce

or reward the referral.” OIG Supplemental Compliance Program Guidance for Hospitals, 70

Fed. Reg. 4858, 4863–64 (Jan. 31, 2005) (emphasis added). In issuing a special fraud alert, the

Office focused on potentially illegal incentives that hospitals may offer to physicians. The

variety of flagged practices all entail exchanges of financial value, such as the “use of free or

significantly discounted office space,” “free or significantly discounted billing, nursing or other

staff services,” “interest-free loans,” and low-cost “[c]overage on hospitals’ group health

insurance plans.” Publication of OIG Special Fraud Alerts, 59 Fed. Reg. 242 (Dec. 19, 1994).

While other appellate courts have not faced this precise issue, they define remuneration in

the same way, one that entails a payment or transfer. See Wis. Cent. Ltd., 138 S. Ct. at 2071

No. 22-1463 United States ex rel. Martin, et al. v. Hathaway, et al. Page 9

(A statute that taxed “‘any form of money remuneration,’ . . . indicate[d that] Congress wanted to

tax monetary compensation.”); United States v. Greber, 760 F.2d 68, 71 (3d Cir. 1985)

(“Remunerates” covers efforts “to pay an equivalent for service.” (quotation omitted)); Guilfoile

v. Shields, 913 F.3d 178, 189 (1st Cir. 2019) (“Essentially, the [Anti-Kickback Statute] targets

any remunerative scheme through which a person is paid in return for referrals to a program

under which payments may be made from federal funds.” (quotation omitted)); Pfizer, Inc. v.

HHS, 42 F.4th 67, 75 (2d Cir. 2022) (“‘Remuneration’ means [p]ayment; compensation,

esp[ecially] for a service that someone has performed, and the modifier ‘any’ further broadens

the scope of the phrase.” (alteration in original) (quotation omitted)).

The setting of this statute also supports this reading. Recall that the same language

creates civil and criminal liability. In the context of dual-application statutes like this one, we

give the same interpretation to the same words, whether applied in a civil or criminal setting.

That means that, if ambiguity exists over the meaning of a provision, the rule of lenity favors the

narrower definition. Barber v. Thomas, 560 U.S. 474, 488 (2010); Leocal v. Ashcroft, 543 U.S.

1, 11 n.8 (2004); United States v. Thompson/Ctr. Arms Co., 504 U.S. 505, 518 n.10 (1992)

(plurality); id. at 519 (Scalia, J., concurring in judgment); Carter v. Welles-Bowen Realty, Inc.,

736 F.3d 722, 727 (6th Cir. 2013).

There is one other problem with the broader definition. It lacks a coherent end point.

Consider the hospital that opens a new research center, purchases top of the line surgery

equipment, or makes donations to charities in the hopes of attracting new doctors. Or consider

the general practitioner who refuses to send patients for kidney dialysis treatment at a local

health care facility until it obtains more state-of-the-art equipment. Are these all forms of

remuneration? Unlikely at each turn.

Measured by this definition, the complaint fails to allege a cognizable kickback scheme.

The complaint’s key theory of remuneration turns on the Oaklawn Board’s refusal to hire

Dr. Martin in return for Dr. Hathaway’s general commitment to continue sending surgery

referrals for his patients to Oaklawn. But Oaklawn’s decision not to hire someone does not

entail a payment or transfer of value to Dr. Hathaway. While Oaklawn’s decision may have

No. 22-1463 United States ex rel. Martin, et al. v. Hathaway, et al. Page 10

benefitted Dr. Hathaway—it prevented Oaklawn’s patient referrals from being sent to an

ophthalmologist who worked at the hospital—Oaklawn never offered Dr. Hathaway anything at

all. Oaklawn’s decision not to hire or support Dr. Martin, it is true, helped Dr. Hathaway

continue his practice as before and perhaps helped him to further negotiations to merge with LO

Eye. But that is not remuneration by any standard definition of the term. The long and the short

of it is that this business dispute ended as it began: Dr. Hathaway continued to treat patients in

Marshall and continued to refer them to Oaklawn for any needed surgeries.

Even under an anything-of-value definition of remuneration, moreover, it is doubtful that

the Martins allege a cognizable referrals-for-referrals scheme. Consider how vague, how non-

concrete, the alleged agreement was. It had no time frame. It had no specific volume

requirement. It applied only to patients from the same town in which the hospital was located

and only if the hospital offered the surgery service—thus applying only when it was most natural

to refer patients in each direction. It had no condition on use of certain services at the hospital—

say use of a certain type of medical equipment based on how many referrals a doctor made. And

it did not come with any other guarantees. While it is difficult to imagine a statute with criminal

application applying to something as vague as “anything of value,” we suspect that any such

application would be ironed out with more specific requirements, conditions, and commitments.

Any such refinements are not found in this complaint or the briefs of the parties. Nor for similar

reasons, we suspect, have we found any cases treating a decision not to hire someone as

remuneration covered by the Anti-Kickback Statute.

The Martins and the government, as amicus curiae, resist this conclusion. They note that

the law prohibits “any” remuneration, a word of expansion, not confinement. United States v.

Gonzales, 520 U.S. 1, 5 (1997). But that reality proves only that the statute covers remuneration

of any type (cash, services, goods), not that Congress altered its customary meaning.

The Martins and the government point out that the 1972 precursor to the Anti-Kickback

Statute made it a misdemeanor to solicit, offer, or receive kickbacks, bribes, and rebates,

suggesting that the 1977 addition of remuneration to the statute expanded coverage of the law.

Social Security Amendments of 1972, Pub. L. 92-603, §§ 242(c), 278(b)(9), 86 Stat. 1329, 1419,

1454 (1972). Maybe so. The new law, it is true, covered “any remuneration (including any

No. 22-1463 United States ex rel. Martin, et al. v. Hathaway, et al. Page 11

kickback, bribe, or rebate)”—and made the improper transfer a felony to boot. But, again, this

does not show that Congress rejected the traditional meaning of remuneration. It shows only that

payments in any form in this context—“directly or indirectly, overtly or covertly, in cash or in

kind”—would not escape criminal penalty. See Greber, 760 F.2d at 72 (“By adding

‘remuneration’ to the statute . . . Congress sought to make it clear that even if the transaction was

not considered to be a ‘kickback’ for which no service had been rendered, payment nevertheless

violated the Act.”).

What of the statute’s purpose—to dissuade medical providers from making patient

recommendations with an eye toward financial motives rather than medical necessity? But

statutory purpose is best gleaned from the four corners of the statute. While the word

remuneration may be broad, it customarily requires a payment or transfer of some kind. “[E]ven

the most formidable argument concerning the statute’s purposes could not overcome the clarity

[of] the statute’s text.” Kloeckner v. Solis, 568 U.S. 41, 55 n.4 (2012). In this instance, there is

no evidence that anyone paid anyone anything or changed the value or cost of any services that

otherwise would have been received.

The Martins and the government insist that Oaklawn Hospital’s decision not to hire

Dr. Martin amounted to an offer of referrals to Dr. Hathaway. But that’s not what happened. In

refusing to hire Dr. Martin, Oaklawn simply left things where they were. Taken to its no-

stopping-point conclusion, Dr. Martin’s theory of liability might make her liable for referrals

from Oaklawn before these negotiations began in connection with her referral of surgery patients

to Oaklawn. Nothing in the complaint, moreover, shows that physicians at Oaklawn lacked

authority to refer their patients to whatever ophthalmologists they wished.

The reader may recall that the False Claims Act uses the word “payment” and the Anti-

Kickback Statute uses the word “remuneration,” prompting the question whether remuneration

means something broader. Compare 31 U.S.C. § 3729(a)(1)(A) (prohibiting the presentment of

false claims “for payment or approval”), with 42 U.S.C. § 1320a-7b(b)(1)–(2) (prohibiting the

solicitation or receipt of “remuneration” in exchange for referrals). Two problems face this

argument. One is that it is unclear whether the words capture any difference in meaning. Keep

in mind that the relevant dictionaries defined “remuneration” as “payment.” See, e.g.,

No. 22-1463 United States ex rel. Martin, et al. v. Hathaway, et al. Page 12

Remuneration, Webster’s Third New International Dictionary 1921 (1976). The other is that

payment in this context amounts to nothing more than the cash form of remuneration. That’s

because the False Claims Act takes aim at cash reimbursements from the government, while the

Anti-Kickback Statute targets more types of payments, including those made “in cash or in

kind.” 42 U.S.C. § 1320a-7b(b)(1)–(2).

B.

Causation. The claimants face another problem: Neither Oaklawn nor Dr. Hathaway

submitted claims for Medicare or Medicaid reimbursement for “items or services resulting from

[the] violation” of the Anti-Kickback Statute. Id. § 1320a-7b(g). When it comes to violations of

the Anti-Kickback Statute, only submitted claims “resulting from” the violation are covered by

the False Claims Act. Id. The ordinary meaning of “resulting from” is but-for causation. See

Burrage v. United States, 571 U.S. 204, 210–11 (2014). That understanding applies unless

strong “textual or contextual indication[s]” indicate a “contrary” meaning. Id. at 212. None

exists. As in Burrage, Congress added the “resulting from” language in 2010, against the

backdrop of a handful of cases that observed similar language as requiring but-for causation.

Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (“because of”); Safeco Ins. Co. of Am.

v. Burr, 551 U.S. 47, 63 (2007) (“based on”); Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258,

265–68 (1992) (“by reason of”). Our cases embrace a similar approach. United States v.

Volkman, 797 F.3d 377, 392 (6th Cir. 2015) (applying Burrage); United States v. Miller, 767

F.3d 585, 591–92 (6th Cir. 2014) (“because of”); Lewis v. Humboldt Acquisition Corp., 681 F.3d

312, 321 (6th Cir. 2012) (en banc) (“because of”); see also Wild Eggs Holdings, Inc. v. State

Auto Prop. & Cas. Ins. Co., 48 F.4th 645, 649 (6th Cir. 2022) (“resulting from” in insurance

policy); Nicholas v. Mut. Benefit Life Ins. Co., 451 F.2d 252, 256–57 & n.3 (6th Cir. 1971)

(“results from” in insurance policy).

The Eighth Circuit took this approach in this precise setting. United States ex rel. Cairns

v. D.S. Medical L.L.C. reasoned that context could not overcome the ordinary meaning of the

text—that “resulting from” means but-for causation. 42 F.4th 828, 834–36 (8th Cir. 2022). The

government argued that several pre-2010 false certification cases did not require a causal link

between the kickback scheme and the claim presented. As the government saw it, the 2010

No. 22-1463 United States ex rel. Martin, et al. v. Hathaway, et al. Page 13

statutory amendment had “simply codified” the holdings of those cases. Id. at 836 (quotation

omitted). The Eighth Circuit responded that Congress could have codified those cases by using

language that did so. Id. “[T]ainted by” or “provided in violation of,” for example, would have

set out an alternative causation standard. Id. But Congress used “resulting from,” an

“unambiguously causal” standard even in the face of these pre-amendment cases. Id. Where a

statute “yields a clear answer, judges must stop.” Food Mktg. Inst. v. Argus Leader Media,

139 S. Ct. 2356, 2364 (2019).

The Martins have not plausibly alleged but-for causation. The problem for the Martins is

that the alleged scheme did not change anything. Before any of the alleged misconduct took

place, Oaklawn was the only hospital in Marshall, and South Michigan was the only local

ophthalmology group. The two entities naturally referred Marshall-based patients to each

other—in one direction for eye check-ups and the like, in the other direction for surgeries. When

Oaklawn decided not to establish an internal ophthalmology line at the hospital, the same

relationship continued just as it always had. There’s not one claim for reimbursement identified

with particularity in this case that would not have occurred anyway, no matter whether the

underlying business dispute occurred or not.

While the Martins identify 14 different surgeries for which Oaklawn submitted

reimbursement claims to Medicare or Medicaid after the Board’s decision, Dr. Martin notably

performed 11 of those surgeries. Yet the Martins pleaded that Oaklawn’s hiring decisions

induced Dr. Hathaway to refer surgeries back to Oaklawn. They did not plead that Oaklawn’s

hiring decision induced Dr. Martin to make the same choice with her patients. Nor did the

Martins plead that Dr. Hathaway ordered or required Dr. Martin to perform her surgeries at

Oaklawn. And as for the three surgeries that Dr. Hathaway performed, two of those patients

were first referred to Dr. Martin after the Board’s decision, and only later went to Dr. Hathaway.

Dr. Martin’s independent decisions break any plausible chain of causation.

That leaves one surgery that Dr. Hathaway performed after the Board’s decision for

which Oaklawn sought reimbursement. But Dr. Hathaway performed that surgery in June 2019,

over seven months after the Board’s decision. Temporal proximity by itself does not show

causation, and seven months would create few inferences of cause and effect anyway.

No. 22-1463 United States ex rel. Martin, et al. v. Hathaway, et al. Page 14

See United States ex rel. Greenfield v. Medco Health Sols., Inc., 880 F.3d 89, 100 (3d Cir. 2018)

(“It is not enough . . . to show temporal proximity between [the] alleged kickback plot and the

submission of claims for reimbursement.”); see also Boshaw v. Midland Brewing Co., 32 F.4th

598, 605 (6th Cir. 2022) (three-month time lapse between protected activity and an adverse

employment action indicated lack of a causal link). Just how far into the future should the

Board’s alleged inducement extend? We can’t say because the Martins don’t tell us. The same

problem that casts a pall over their remuneration theory exists here: No identifiable exchange of

value occurred to anchor the scheme in time or place. In the Martins’ and “the [g]overnment’s

view, nearly anything a [doctor] accepts . . . counts as a quid; and nearly anything a [doctor

refers] . . . counts as a quo.” McDonnell, 579 U.S. at 574–75. But that simply is not the law.

The Martins also identify eight claims that Dr. Hathaway’s practice submitted for

Medicare or Medicaid reimbursement after the Board’s decision. According to the Martins,

these claims resulted from Oaklawn’s referrals. But the Oaklawn Board only decided not to hire

an internal ophthalmologist. Oaklawn’s individual physicians ultimately decided to whom they

would refer patients. Because the Martins failed to allege that Oaklawn could control or direct

the referral decisions of its physicians, their independent choices doom the chain of causation

here, too.

The government, as amicus curiae, argues that, because Congress did not require but-for

causation in the Anti-Kickback Statute, there’s no reason why it would have done the same for a

corresponding claim under the False Claims Act. But the “resulting from” language applies to

all kinds of fraud claims without regard to whether the underlying claim has a causation

component. The government also relies on legislative history that indicates the sponsors of the

bill hoped to overrule a then-recent district court decision that had dismissed a False Claims

action because the wrongdoer did not personally submit the resulting claim. 155 Cong. Rec.

S10,853 (daily ed. Oct. 28, 2009) (Sen. Kaufman). But we generally do not consider legislative

history in construing a statute with criminal applications, the idea being that no one should be

imprisoned based on a document or statement that never received the full support of Congress

and was presented to the President for signature. United States v. R.L.C., 503 U.S. 291, 307–10

(1992) (Scalia, J., concurring); United States v. Brock, 501 F.3d 762, 770–71 (6th Cir. 2007),

No. 22-1463 United States ex rel. Martin, et al. v. Hathaway, et al. Page 15

abrogated on other grounds by Ocasio v. United States, 578 U.S. 282 (2016); Carter, 736 F.3d at

735 (Sutton, J., concurring). For that reason, the Third Circuit’s contrary conclusion offers little

assistance because it turns primarily on legislative history. See Greenfield, 880 F.3d at 96–97.

All in all, reading causation too loosely or remuneration too broadly appear as opposite

sides of the same problem. Much of the workaday practice of medicine might fall within an

expansive interpretation of the Anti-Kickback Statute. Worse still, the statute does little to

protect doctors of good intent, sweeping in the vice-ridden and virtuous alike. Cf. McDonnell,

579 U.S. at 581 (rejecting “boundless” interpretation of bribery based on similar concerns in the

political context). Examples clarify the point. Take the doctor concerned with outdated surgical

equipment who tells a hospital that she will send referrals only if the hospital upgrades its

facilities. That’s a promised referral on one side. And if the other side is remuneration just

because it’s valuable, that’s an Anti-Kickback Statute violation at the outset and a False Claims

Act violation down the road for any claims resulting from those referrals. That’s so even if the

doctor’s only motivation is ensuring the highest quality equipment for her patients. Or take the

rural county that uses incentives to bring a hospital or a physician to its isolated community.

Or take the hospital board that believes hiring one internal ophthalmologist would be worse for

patient care than referring the work to several outside doctors.

A faithful interpretation of the “remuneration” and “resulting from” requirements still

leaves plenty of room to target genuine corruption. Interpreted as a transfer of value,

remuneration potentially encompasses a range of payments: consulting contracts, United States

v. McClatchey, 217 F.3d 823, 827 (10th Cir. 2000), inflated rent payments, McNutt ex rel. United

States v. Haleyville Med. Supplies, Inc., 423 F.3d 1256, 1258 (11th Cir. 2005), bogus salaries,

United States v. Borrasi, 639 F.3d 774, 777 (7th Cir. 2011), “bonuses,” United States ex rel.

Parikh v. Brown, 587 F. App’x 123, 126 (5th Cir. 2014), speaking fees, Lawton ex rel. United

States v. Takeda Pharm. Co., 842 F.3d 125, 129 (1st Cir. 2016), “referral fees,” Guilfoile,

913 F.3d at 184, commission payments to a romantic partner, Cairns, 42 F.4th at 831, and the

opportunity to purchase company stock, id. So long as proof exists that the referrals would not

have been made without the remuneration, and that claims would not have been submitted to the

No. 22-1463 United States ex rel. Martin, et al. v. Hathaway, et al. Page 16

government without those referrals, causation for False Claims lawsuits would be satisfied too.

Id. at 836–37.

III.

Two considerations remain. Because the Martins failed to allege a cognizable claim

under the Anti-Kickback Statute, the district court did not abuse its discretion when it declined to

exercise supplemental jurisdiction over the Martins’ remaining state law claim. See Robert N.

Clemens Tr. v. Morgan Stanley DW, Inc., 485 F.3d 840, 853 (6th Cir. 2007). And because the

Martins failed to allege a cognizable claim, we need not address whether the district court should

have considered Oaklawn’s and Dr. Hathaway’s motions to strike material from the Martins’

complaint.

We affirm.

No. 22-1463 United States ex rel. Martin, et al. v. Hathaway, et al. Page 17

_________________

CONCURRENCE

_________________

MATHIS, Circuit Judge, concurring in part and concurring in the judgment. I concur in

the majority opinion, except as to Section II.A. As the majority opinion thoroughly explains,

Dr. Shannon Martin and Douglas Martin failed to plausibly allege that the claims identified in

their qui tam complaint “result[ed] from” a violation of the Anti-Kickback Statute. 42 U.S.C.

§ 1320a-7b(g). This dooms their claim brought under the False Claims Act. I would save the

interpretation and analysis of “remuneration” for another day because even under the Martins

and the government’s broad interpretation, the allegations in the complaint fail to show

causation.