The opinion
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0046p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
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Plaintiff-Appellee, │
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v. > Nos. 22-1409/23-1340
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MICHAEL ANGELO, │
Defendant-Appellant, │
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ORTHOPEDIC, P.C., et al., │
Defendants. │
┘
Appeal from the United States District Court for the Eastern District of Michigan at Port Huron.
No. 3:19-cv-10669—Robert H. Cleland, District Judge.
Argued: February 1, 2024
Decided and Filed: March 5, 2024
Before: SUTTON, Chief Judge; CLAY and BLOOMEKATZ, Circuit Judges.
_________________
COUNSEL
ARGUED: Samuel R. Simkins, AKEEL & VALENTINE, PLC, Troy, Michigan, for Appellant.
Matthew P. Allen, MILLER CANFIELD, PADDOCK AND STONE, PLC, Troy, Michigan, for
Appellee. ON BRIEF: Samuel R. Simkins, Shereef H. Akeel, Adam S. Akeel, Hayden
Pendergrass, AKEEL & VALENTINE, PLC, Troy, Michigan, for Appellant. Matthew P. Allen,
Thomas W. Cranmer, Caroline B. Giordano, MILLER CANFIELD, PADDOCK AND STONE,
PLC, Troy, Michigan, for Appellee.
Nos. 22-1409/23-1340 State Farm Mutual Auto Ins. Co. v. Angelo, et al. Page 2
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OPINION
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CLAY, Circuit Judge. Defendant Michael Angelo appeals several district court orders
enforcing a settlement agreement he entered into with Plaintiff State Farm Mutual Automobile
Insurance Company (“State Farm”) in this action alleging violations of the Racketeer Influenced
and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. The district court orders
compelled Angelo to solicit the government’s consent to dismiss his claims against State Farm in
a separate action under the False Claims Act (“FCA”), 31 U.S.C. § 3729 et seq. Angelo argues
that the district court orders violated the FCA, Sixth Circuit precedent, and his First Amendment
rights.
For the reasons set forth below, we AFFIRM the district court’s orders in full.
I. BACKGROUND
A. Factual Background
In March 2019, State Farm sued Angelo, alleging that Angelo submitted fraudulent bills
in violation of RICO (hereinafter “RICO Action”). State Farm claimed, in relevant part, that
Angelo was the “primary driver” of a “scheme” to “fraudulently obtain money from State Farm.”
Compl., R. 1, Page ID #2. According to State Farm, the scheme went something like this:
Angelo took advantage of Michigan’s “No-Fault insurance environment” by operating 1-800
numbers and advertisements in order “to reach potential patients who have been involved in
automobile accidents.” Id. at Page ID #2–3. Angelo then recruited doctors to prescribe for those
patients medically unnecessary opioids, which were frequently filled by a pharmacy Angelo
owned, and to require medically unnecessary urine testing, which was frequently conducted by a
lab Angelo owned. Following the unnecessary prescriptions and/or tests, Angelo would submit
bills for these services to State Farm, which alleged fraud because many of the billed-for services
were either not performed or were performed despite not being medically necessary.
Nos. 22-1409/23-1340 State Farm Mutual Auto Ins. Co. v. Angelo, et al. Page 3
In February 2021, the parties entered into a settlement agreement (hereinafter the
“Settlement Agreement”).1 Pursuant to the Settlement Agreement, Angelo avoided any potential
RICO liability by agreeing to take “all steps necessary” to release certain claims against State
Farm. R. 118-2, Page ID #6704. Accordingly, he dismissed 347 claims against State Farm.
A lingering 348th claim, however, is the subject of the instant appeal.
In July 2019, while the RICO Action was still being litigated and two years prior to the
Settlement Agreement, Angelo brought suit against State Farm under the FCA (hereinafter “FCA
Action”).2 Angelo’s FCA complaint alleged that State Farm exploited Michigan’s auto
insurance law “to avoid paying medical benefits to motor vehicle accident victims it insured,”
which caused “the government to pick up the expenses without being reimbursed by Defendant.”
R. 118-3, Page ID #6719. Because qui tam complaints must be filed under seal, State Farm was
unaware of the FCA Action until the complaint was unsealed and served on State Farm on April
6, 2021, six weeks after the Settlement Agreement was signed.
B. Procedural History
i. State Farm’s Motion to Enforce the Settlement Agreement
Shortly after receiving service in the unsealed FCA Action, State Farm moved in the
district court to enforce the Settlement Agreement, arguing that the Agreement’s dismissal and
release clauses required Angelo to dismiss the FCA Action. In response, Angelo argued that the
Settlement Agreement did not apply to the FCA Action because the FCA claims were unrelated
to the settled RICO claims. To underscore the differences between the RICO Action and the
FCA Action, Angelo then filed an amended complaint in the FCA Action, adding a new relator
(“MSP”), new qui tam causes of action, and new defendants, including other State Farm entities.
1
The parties agreed that the district court would retain jurisdiction to enforce any term of the Settlement
Agreement.
2
Section 3730 of the FCA permits private individuals, known as relators, to bring suits alleging fraudulent
claims on behalf of the government in the hopes of retaining a portion of the proceeds. United States ex rel. Bledsoe
v. Cmty. Health Sys., Inc., 342 F.3d 634, 640 (6th Cir. 2003). These qui tam complaints are filed under seal while
the government decides whether to intervene. Id. If the government does not intervene, the relator may still proceed
with the suit, and the government maintains some interest in the action. Id. In this case, the government elected not
to intervene in Angelo’s FCA Action.
Nos. 22-1409/23-1340 State Farm Mutual Auto Ins. Co. v. Angelo, et al. Page 4
Angelo also argued that he could not dismiss his claims against State Farm in the FCA Action
because a provision in the FCA prohibited relators from doing so without the government’s
consent.
The district court granted State Farm’s motion, finding that the FCA Action was within
the scope of the Settlement Agreement. As a result, Angelo was contractually bound to take “all
steps necessary” to dismiss his FCA claims against State Farm. R. 149, Page ID #8078. While
the FCA requires government consent for a relator to dismiss claims in a qui tam case, the
district court held that there was nothing preventing it from ordering Angelo to request that
consent. But, the district court held, if the government does not consent to dismissal, “then that
is the end of the matter.” Id. at Page ID #8079. Specifically, the district court ordered “that
[Angelo], proceeding in good faith and undertaking no contrary or inconsistent acts, must
forthwith solicit the government’s consent to dismiss the instant [FCA] Action against” State
Farm. Id. at Page ID #8081.
Angelo moved for reconsideration, reiterating many of the arguments he made in
opposition to State Farm’s motion to enforce the Settlement Agreement. Angelo also contended,
for the first time, that the district court’s order amounted to unconstitutional compelled speech in
violation of his First Amendment rights. The district court denied this motion, and again
mandated that Angelo seek the government’s consent to dismiss Angelo’s claims against State
Farm from the FCA Action.
ii. Counsels’ Discussions with the AUSA
In an apparent effort to comply with the district court’s order, Angelo’s counsel called
John Postulka, the Assistant U.S. Attorney (“AUSA”) in charge of the FCA Action. Angelo’s
counsel “advised that State Farm is seeking dismissal of the Qui Tam claims,” and “advised the
government that Judge Cleland ruled that although Angelo cannot seek dismissal of the
government claims with the Court . . . Angelo is to request from the government the dismissal of
State Farm from the Qui Tam action.” R. 162, Page ID #8327-28. According to counsel, the
government responded that “Angelo has no authority to dismiss the government claims against
State Farm” and therefore withheld its consent to dismiss the case. Id.
Nos. 22-1409/23-1340 State Farm Mutual Auto Ins. Co. v. Angelo, et al. Page 5
State Farm, finding this conversation to be insufficient to satisfy Angelo’s obligations
under the Settlement Agreement and the enforcement order, filed a second motion to enforce.
In particular, State Farm argued that Angelo did not act in good faith when his counsel:
(1) erroneously stated that State Farm, rather than Angelo, sought dismissal of the FCA Action,
(2) erroneously stated that Angelo cannot seek dismissal of the government claims with the
court, and (3) erroneously requested the government’s dismissal of State Farm from the FCA
Action rather than affirmatively soliciting the government’s consent to dismiss Angelo’s claims
against State Farm. As a result, Angelo failed to take “all steps necessary” and act in good faith
as required by both the Settlement Agreement and the district court’s order enforcing the
Agreement. To ensure Angelo’s compliance, State Farm urged the district court to enter an order
requiring Angelo to file a motion to voluntarily dismiss its claims against State Farm in the FCA
Action, contingent on the government’s written consent to that motion.
Angelo’s counsel then filed another declaration with the district court, attesting to a
second conversation with the AUSA, in which “the Government pointed out that there is also
another, independent co-relator—MSP[]—who has not sought dismissal, and that the
Government again maintains its position to allow the Qui Tam matter to proceed against State
Farm.” R. 171, Page ID #8607.
Believing that Angelo’s counsel misled the AUSA, State Farm then initiated its own
conversation with AUSA. According to State Farm’s counsel, the AUSA stated that he was
unaware that MSP was an assignee of Angelo and that “the only basis for the United States to
even consider withholding dismissal consent in the [FCA] Action would be the objection of an
independent co-relator.” R. 175-2, Page ID #8750. Further, the government “agreed that filing a
dismissal request in a qui tam matter is the typical procedure used by a relator to solicit the
United States’ consent for dismissal” and, importantly, stated that “the United States would have
no objection to this Court directing Angelo to file such a dismissal request.” Id.
Nos. 22-1409/23-1340 State Farm Mutual Auto Ins. Co. v. Angelo, et al. Page 6
In response to this back-and-forth, the district court ordered a hearing between the parties
and supplemental briefing from State Farm as to MSP’s independence.3 State Farm argued that
MSP is not independent from Angelo because, among other reasons, MSP represented in the
FCA Action that it is the assignee of Angelo; Angelo’s counsel in the RICO Action also
represents MSP in the FCA Action; and MSP’s proposed second amended complaint includes
Angelo as a co-relator and is signed by “Attorneys for Relators MSP WB, LLC and Michael
Angelo.” R.175, Page ID #8735.
State Farm’s ultimate argument boiled down to this: if the only thing stopping the
government from consenting to the dismissal of Angelo’s claims against State Farm was the
existence of an independent co-relator in MSP, and if the AUSA knew that MSP was in fact not
independent from Angelo, then the government would consent to Angelo’s voluntary dismissal
of his claims against State Farm.4 And if Angelo misled the government as to MSP’s
independence, then he was in noncompliance with the order’s mandate to act in good faith in
dismissing the FCA Action against State Farm.
iii. The District Court’s Order Requiring Angelo to Move for Voluntary Dismissal
The district court granted State Farm’s second motion to enforce due to Angelo’s dubious
compliance with the enforcement order and the Settlement Agreement. Finding sufficient
evidence to doubt whether MSP was independent from Angelo and whether Angelo acted in
good faith, and viewing “any further attempts to attain consent informally to be futile,” the
district court ordered Angelo to file in the FCA Action a proposed motion for voluntary
dismissal consistent with the suggested filing that State Farm attached as an exhibit to its
briefing. R. 176, Page ID #8860–61.
3
Angelo argues that it was an abuse of discretion for the district court to allow State Farm to file
supplemental briefing on the issue of MSP’s independence without allowing Angelo to respond. We disagree.
State Farm’s supplemental briefing covered no new ground regarding MSP’s independence, which the parties
debated in great detail at the hearing. Angelo therefore had an opportunity to respond to State Farm’s arguments
regarding MSP’s independence at that hearing. Further, “[m]atters of docket control and conduct of discovery are
committed to the sound discretion of the district court.” In re Air Crash Disaster, 86 F.3d 498, 516 (6th Cir. 1996)
(citation omitted).
4
State Farm also persuasively argued that Angelo’s counsel’s discussion with the AUSA did not and could
not provide the required opportunity for state governments like Michigan to “appear and oppose” dismissal, and
therefore a formal motion of voluntary dismissal was required. Mich. Comp. Laws § 400.610a(1).
Nos. 22-1409/23-1340 State Farm Mutual Auto Ins. Co. v. Angelo, et al. Page 7
Angelo timely appealed the district court’s enforcement orders. To avoid complying with
them pending appeal, Angelo moved for an administrative stay from this Court. We denied
Angelo’s request, finding that the Settlement Agreement appeared to cover the FCA Action and
seeing no merit in Angelo’s First Amendment arguments. Finally out of cards to play, Angelo
subsequently filed a notice of voluntary dismissal of his claims against State Farm in the FCA
Action. The government consented to the dismissal of Angelo’s claims against State Farm (and
associated entities), but specified that such consent is “limited only to the dismissal of Relator
Angelo’s claims against the State Farm Defendants in this case.” FCA Action, No. 2:19-cv-
12165, R. 468, Page ID #8143.5 Specifically, the government stated that it “previously has not
taken and currently takes no position on the merits of any arguments regarding the other relator
in this case, MSP[].” FCA Action, No. 2:19-cv-12165, R. 480, Page ID #8262. The FCA court
has yet to rule on that motion. If the district court were to grant Angelo’s dismissal motion,
MSP’s claims against State Farm, and Angelo’s claims against other FCA defendants, would
likely continue.
II. DISCUSSION
A. Mootness
As a preliminary matter, we must address whether we have jurisdiction over Angelo’s
challenge to the district court’s enforcement orders. See Watkins v. Healy, 986 F.3d 648, 657
(6th Cir. 2021). The issue is whether this case was rendered moot by Angelo’s eventual
compliance with the district court’s orders—and, importantly, by the government’s consent to
the dismissal of Angelo’s FCA claims against State Farm. After careful consideration, we find
this case justiciable. The FCA court has yet to rule on Angelo’s voluntary dismissal notice. A
favorable ruling from this Court that the district court’s orders were in error would enable
Angelo to withdraw his motion and pursue his claims against State Farm. Because we can grant
the relief that Angelo seeks, we can hear his claims. See Chafin v. Chafin, 568 U.S. 165, 172
(2013) (“A case becomes moot only when it is impossible for a court to grant any effectual relief
5
Michigan also consented to the voluntary dismissal of Angelo’s claims against State Farm.
Nos. 22-1409/23-1340 State Farm Mutual Auto Ins. Co. v. Angelo, et al. Page 8
whatever to the prevailing party. . . . As long as the parties have a concrete interest, however
small, in the outcome of the litigation, the case is not moot.” (cleaned up)).
B. The Settlement Agreement’s Application to the FCA Action
We next consider whether the Settlement Agreement encompasses the FCA Action such
that Angelo was required to dismiss his FCA claims against State Farm. We review the
interpretation of a settlement agreement de novo. In re Auto. Parts Antitrust Litig., 997 F.3d 677,
681 (6th Cir. 2021). However, where “contractual language is unclear or susceptible to multiple
meanings, interpretation becomes a question of fact subject to review for clear error.” Id.
(citation omitted).
The Settlement Agreement’s dismissal clause reads as follows:
In addition, within seven (7) days of the date this Confidential Agreement is
signed, the Michael Angelo Entities shall take all steps necessary to settle,
discontinue with prejudice, and to secure the discontinuance of, any lawsuits,
arbitrations, appeals, claims, and other proceedings brought by any Michael
Angelo Entity pending against State Farm Mutual and/or any individual insured
by State Farm Mutual (“State Farm Mutual Insured”), in any forum, arising from
(a) the allegations asserted or that could have been asserted in the Litigation;
and/or (b) MVA Related Health Care Services, as hereinafter defined, provided
by any Michael Angelo Entity(s) to any State Farm Mutual Insured on or before
the Effective Date, and to waive all rights to all remedies and costs relating to
such matters, including attorney’s fees.
R. 118-2, Page ID #6704. The Settlement Agreement also includes a release provision:
The Michael Angelo Entities hereby release and discharge State Farm Mutual
from any and all judgments, claims, demands, losses, liabilities, costs, actions,
causes of action, or suits of any kind whatsoever, whether in law or equity, known
or unknown, foreseen or unforeseen, that any Michael Angelo Entity has now or
may have had against State Farm Mutual, arising from (a) the allegations asserted
or that could have been asserted in the Litigation; and/or (b) MVA Related Health
Care Services provided by any Michael Angelo Entity(s) to any State Farm
Mutual Insured on or before the Effective Date.
Id. at Page ID #6706–07. “MVA Related Health Care Services” refers to bills to State Farm for
“any good or service related to any accidental bodily injury arising out of the ownership,
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operation, maintenance, or use of a motor vehicle as a motor vehicle as defined under the
Michigan No-Fault Automobile Insurance Act.” R. 149, Page ID #8066 n.1.
This language clearly encompasses the FCA Action. The Settlement Agreement required
Angelo to dismiss any claim that involved a bill to State Farm for a service related to an injury
arising out of the use of a vehicle, as defined under the Michigan insurance law. The FCA
Action specifically alleged that State Farm improperly and fraudulently refused to pay such bills,
forcing the government to pick up the tab. The FCA Action therefore falls squarely within the
Settlement Agreement’s express language, meaning Angelo was required to take “all steps
necessary” to “secure the discontinuance of” that claim. R. 118-2, Page ID #6704.
Angelo’s first argument to the contrary maintains that there could have been no “meeting
of the minds” as to the inclusion of the FCA claims in the Settlement Agreement. Appellant Br.,
ECF No. 44, 14. Angelo claims that because the FCA Action was under seal and therefore
unknown to State Farm when the Settlement Agreement was executed, the parties could not enter
into an agreement that applied to the FCA Action. But the release clause contemplates claims
“known or unknown,” making State Farm’s awareness of a potentially covered claim irrelevant.
R. 118-2, Page ID #6706.
Angelo next argues that the FCA claims do not “arise from” the claims defined in the
Settlement Agreement because they do not originate or stem from “bills to State Farm.”
Appellant Br., ECF No. 44, 17–18. Angelo characterizes the FCA Action as “involv[ing]
fraudulent submissions to the Government, not claims involving bills” to State Farm. Id. at 19.
But this is a distinction without a difference. Contrary to Angelo’s characterization, the alleged
fraudulent submissions are bills to State Farm. The FCA complaint references “claims
submitted by Mr. Angelo” for “accident-related medical expenses” that State Farm “summarily
denied.” R. 145, Page ID # 7871, ¶ 471. These claims that State Farm denied are
unquestionably bills to State Farm, and “accident-related medical expenses” is encompassed by
the “MVA Related Health Care Services” language in the Settlement Agreement. R. 149, Page
ID #8066 n.1. The FCA Action therefore involves the exact claims covered by the dismissal and
release clauses. The district court did not err in holding that the Settlement Agreement applied to
the FCA Action.
Nos. 22-1409/23-1340 State Farm Mutual Auto Ins. Co. v. Angelo, et al. Page 10
C. The First Enforcement Order
Having concluded that the dismissal clause required Angelo to take “all steps necessary”
to secure the dismissal of the FCA Action, R. 118-2, Page ID #6704, we next proceed to what the
language “all steps necessary” requires. The district court found that “all steps necessary”
required Angelo to seek the government’s consent, as mandated by the FCA, to dismiss his FCA
claims against State Farm, and accordingly ordered him to do so.
We review a district court’s decision on a motion to enforce a settlement agreement for
an abuse of discretion. Therma-Scan, Inc. v. Thermoscan, Inc., 217 F.3d 414, 419 (6th Cir.
2000). “A district court abuses its discretion when it applies the incorrect legal standard,
misapplies the correct legal standard, or relies upon clearly erroneous findings of fact.” In re
Auto. Parts Antitrust Litig., 997 F.3d at 681 (citation omitted). And we review a district court’s
interpretation of a statute de novo. United States v. Health Possibilities, P.S.C., 207 F.3d 335,
338 (6th Cir. 2000).
The district court ordered Angelo to “proceed[] in good faith and undertak[e] no contrary
or inconsistent acts” and to “solicit the government’s consent to dismiss the instant Qui Tam
Action against” State Farm. R. 149, Page ID #8081. On appeal, Angelo makes three arguments
that this decision was in error. First, Angelo reiterates his claim below that this Court’s decisions
in United States v. Health Possibilities, P.S.C., 207 F.3d 335 (6th Cir. 2000), and United States
ex rel. Smith v. Lampers, 69 F. App’x 719, 722 (6th Cir. 2003), prohibit the district court from
granting such relief. In Health Possibilities, this Court held that, under § 3730 of the FCA, a
relator cannot unilaterally settle FCA claims without the government’s consent, even after the
government’s 60-day intervention period had elapsed. 207 F.3d at 339. In Lampers, we
reiterated the government consent requirement and held that it superseded the district court’s
finding that the relator had adequately represented the government’s interests. 69 F. App’x at
722–23.
These cases stand for the proposition that the FCA statute demands government consent
before a qui tam relator can dismiss an FCA claim—something neither party disputes. But
neither these cases nor other Sixth Circuit case law prevents a relator from seeking the required
Nos. 22-1409/23-1340 State Farm Mutual Auto Ins. Co. v. Angelo, et al. Page 11
consent or prohibits a district court from ordering a relator to seek such consent. Further, unlike
in the instant case, the government in both Health Possibilities and Lampers objected to the
dismissal of the qui tam actions. Angelo, meanwhile, was required to merely seek the
government’s consent—rather than dismiss his claims in the absence of such consent, which
would violate § 3730—and the government ultimately granted such consent. Our case law
would therefore seem to endorse, rather than prohibit, the district court’s order in this case.
Angelo next raises the argument that release agreements executed after the filing of an
FCA case are per se unenforceable. See, e.g., United States ex rel. Stipe v. Powell Cty. Fiscal
Ct., No. 5:16-CV-446, 2018 WL 3078764, at *3 n.1 (E.D. Ky. June 21, 2018) (“It is undisputed
that a post-filing release of qui tam claims is unenforceable.”). But we have not adopted that
rule, and have no cause to do so here.
Establishing such a rule would read words into the FCA that are not there. The plain text
of the statute does not state that all release agreements entered into after the filing of an FCA
action are per se unenforceable against that action. Instead, the statute mandates that the action
“may be dismissed only if the court and the Attorney General give written consent to the
dismissal and their reasons for consenting.” 31 U.S.C. § 3730(b)(1). Notably, the statute is
silent on the issue of settlement agreements. We will not embellish the text of the statute to
create a broad rule that such agreements are per se unenforceable against qui tam actions. See
Bates v. United States, 522 U.S. 23, 29 (1997) (“[W]e ordinarily resist reading words or elements
into a statute that do not appear on its face.”); Keene Corp. v. United States, 508 U.S. 200, 208
(1993) (observing that courts have a “duty to refrain from reading a phrase into the statute when
Congress has left it out”).
Last, Angelo claims that enforcing the Settlement Agreement in this case would violate
the public policy rationale behind the FCA. Generally, we will find a promise unenforceable if
“the interest in its enforcement is outweighed in the circumstances by a public policy harmed by
enforcement of the agreement.” Town of Newton v. Rumery, 480 U.S. 386, 392 (1987); see also
United States v. Northrop Corp., 59 F.3d 953, 962–68 (9th Cir. 1995) (applying this test to the
question of whether a settlement agreement should be enforced against an FCA claim). But the
Nos. 22-1409/23-1340 State Farm Mutual Auto Ins. Co. v. Angelo, et al. Page 12
enforcement mechanism in this case—an order requiring Angelo to seek the government’s
consent to dismiss his claims—poses no threat to the FCA’s policy.
The primary goals of the FCA are to incentivize private individuals to bring suit and to
alert the government to potential fraud. See, e.g., Health Possibilities, 207 F.3d at 340;
Northrop, 59 F.3d at 963. Some courts consider whether enforcement of settlement agreements
against qui tam claims would disincentivize potential relators from bringing FCA suits, thereby
undermining a key goal of the FCA. See, e.g., Northrop, 59 F.3d at 965 (holding that enforcing a
prefiling release of a qui tam claim would “dilute significantly the incentives” of the FCA and
deprive a party of the “right or reason to file a qui tam claim”). Courts have also recognized that
where, as in this case, the government has pre-existing knowledge of the fraud, then no risk to
the FCA’s goals exists. See, e.g., United States ex rel. Hall v. Teledyne Wah Chang Albany, 104
F.3d 230, 233 (9th Cir. 1997) (noting that the federal government’s awareness of the FCA
allegations meant that enforcement of an agreement did not impair the public interest in
whistleblowing); United States v. Purdue Pharma L.P., 600 F.3d 319, 330–33 (4th Cir. 2010).
The FCA is especially unimpeded where the government had knowledge of the fraud at the time
the release was signed. See Hall, 104 F.3d at 233 (enforcing a release clause where the federal
government had already investigated the allegations prior to the settlement); United States ex rel.
Ritchie v. Lockheed Martin Corp., 558 F.3d 1161, 1170 (10th Cir. 2009) (same); Cf. United
States ex rel. McNulty v. Reddy Ice Holdings, Inc., 835 F. Supp. 2d 341, 360 (E.D. Mich. 2011)
(“[T]he issue is not what the government knew at the time the qui tam action was filed but what
the government knew at the time the release was signed.”).
In this case, State Farm brought its RICO claims against Angelo in March 2019. Angelo
filed his FCA Action, under seal, against State Farm in July 2019. Nearly two years later, State
Farm and Angelo subsequently signed a Settlement Agreement in February 2021. The
government had been investigating the alleged fraud for over a year before Angelo signed the
Settlement Agreement.
Given this timeline, the district court’s order did not upset any FCA policy. First, the
order of events makes it unlikely, if not impossible, that Angelo was deterred from bringing his
FCA claim as a result of the Settlement Agreement. Angelo filed the FCA complaint prior to
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signing the Settlement Agreement and its applicable release clause; he could not have been
deterred from performing a task he had already completed.6 The general concern that enforcing
settlement agreements against FCA claims might deter potential relators from sounding the alarm
on fraud therefore is not applicable to this case. If anything, had Angelo predicted that the
district court would require him to seek the government’s consent to dismiss the FCA Action, he
may have been deterred from settling, which would undermine a different but frequently
recognized policy goal of the federal courts. See Ford Motor Co. v. Mustangs Unlimited, Inc.,
487 F.3d 465, 469 (6th Cir. 2007) (quoting Aro Corp. v. Allied Witan Co., 531 F.2d 1368, 1372
(6th Cir. 1976)) (“Public policy strongly favors settlement of disputes without litigation. . . .
Settlement agreements should therefore be upheld whenever equitable and policy considerations
so permit.”).
Nor could enforcement, by this timeline, threaten the other primary goal of the FCA—
protecting the government’s interest in prosecuting fraud. The government had knowledge of the
fraud and ample time to investigate before the district court ordered Angelo to comply with the
Settlement Agreement and take “all steps necessary” to dismiss his FCA claims. Moreover,
enforcing the Settlement Agreement would be problematic only to the extent that private parties
would be permitted to bargain away the government’s ability to prosecute fraud upon the
government. But the district court’s order required Angelo only to seek the government’s
consent, not to unilaterally dismiss the case. The order could not and did not threaten the
government’s interest in prosecuting fraud because, according to the order’s terms, any action
was predicated upon the government’s consent. Further, because the government was obviously
not bound by the Settlement Agreement, the government could still bring claims under the FCA
against State Farm. See Hall, 104 F.3d at 233 (“The government, of course, was not a party to
the release, and is therefore not barred by it from pursuing a claim against [the qui tam
defendant].”).
6
One can even envision a scenario in which enforcing a settlement agreement against an FCA claim that
postdates the agreement does not deter a relator from bringing an FCA claim. The FCA’s government consent
requirement would still apply, limiting enforcement to, as in this case, soliciting the government’s consent. In that
case, an undeterred relator may be inclined to roll the dice, bring the claim, solicit the required consent, and hope
that the government does not consent. Both the FCA claim and the policy rationale encouraging whistleblowing
would survive enforcement in such a case.
Nos. 22-1409/23-1340 State Farm Mutual Auto Ins. Co. v. Angelo, et al. Page 14
Angelo’s assertion that enforcing the Settlement Agreement would upset the policy goals
of the FCA by encouraging malfeasance on the part of FCA defendants is similarly unavailing.
Angelo argues that upholding the district court’s decision would “incentivize potential FCA
defendants to ‘smoke out’ qui tam actions by suing potential relators and then quickly settling
those private claims with the sole purpose of subsequently relying on that settlement to bar a qui
tam action.” Appellant Br., ECF No. 44, 25 (quoting United States ex rel. Charte v. Am. Tutor,
Inc., 934 F.3d 346, 353 (3d Cir. 2019)). This speculative chain of events strains credulity.
Angelo’s theory relies on a qui tam defendant anticipating an FCA suit against it—despite the
requirement that FCA claims are filed under seal—and then manufacturing a private suit against
a potential qui tam relator. Even further, the manufactured suit must be meritorious enough to
secure the signing of a settlement agreement with a release clause that would apply to a pending
or future FCA suit. This hypothetical situation seems unlikely to occur, and this case illustrates
why. The requirement that qui tam complaints are filed under seal makes it improbable that any
“smoking out” occurred. State Farm had no knowledge of the FCA Action until the FCA court
lifted the seal in April 2021, six weeks after the Settlement Agreement was signed and more than
two years after State Farm originally brought suit against Angelo. State Farm could not have
known that a qui tam suit was lying in wait, or that it should immunize itself with a settlement
agreement.
Angelo asks us to allow him to enjoy the benefit of the Settlement Agreement (the
dismissal of State Farm’s RICO claims against him) without providing the bargain (the dismissal
of his FCA claims against State Farm). The policy behind the FCA does not require us to reach
such a result—particularly when the district court’s order only required Angelo to seek the
government’s consent, a relatively minor burden compared to the complete dismissal of the
RICO claims against him. When ordering enforcement of a release agreement poses no threat to
the goals of the FCA but failing to do so would undermine other policy goals, courts favor
enforcement. See Hall, 104 F.3d at 233; Ritchie, 558 F.3d at 1171. Therefore, we affirm the
district court’s order enforcing the Settlement Agreement with respect to Angelo’s FCA claims
against State Farm and requiring him to seek the government’s consent to dismiss those claims.
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D. The Second Enforcement Order
The first enforcement order, unfortunately, was not the end of the story. Angelo’s
subsequent attempts to comply with the order, State Farm alleged, violated Angelo’s duty to act
in good faith. The district court agreed and, per State Farm’s request, ordered Angelo to file a
formal notice of voluntary dismissal of his claims against State Farm in the FCA Action,
contingent on the government’s consent. Angelo argues that this was an abuse of discretion, but
we disagree.
Angelo first contests the district court’s finding that Angelo’s counsel’s first conversation
with the AUSA was deficient. But the district court was correct. The district court’s first
enforcement order required Angelo to “proceed[] in good faith and undertak[e] no contrary or
inconsistent acts” and “solicit the government’s consent to dismiss the instant [FCA] Action
against” State Farm R. 149, Page ID #8081. Angelo failed to do so when he attributed the desire
to dismiss the action to State Farm, rather than himself. Further, Angelo’s counsel attributed to
Judge Cleland the misleading statement that “Angelo cannot seek dismissal of the government
claims with the Court.” R. 162, Page ID #8328. Angelo may not be able to unilaterally dismiss
a qui tam suit under the FCA, as discussed ad nauseum, but Angelo could seek the government’s
consent to dismiss his own claims against State Farm. Angelo’s misstatement of this authority
amounts to a failure to act in good faith. Finally, as the district court noted, Angelo’s counsel’s
statement that “Angelo is to request from the government the dismissal of State Farm from the
[FCA] action,” also misrepresented Angelo’s clearly prescribed duty under the Settlement
Agreement: to request the government’s consent for him to dismiss the claims he was bringing
against State Farm. Id.; R. 176, Page ID #8860. Given these misrepresentations, the district
court did not err in holding that Angelo’s counsel’s first conversation with the AUSA failed to
meet Angelo’s burdens under the Settlement Agreement and the first order to enforce, because
the misrepresentations violated Angelo’s duty to act in good faith in soliciting such consent.
In addition, Angelo contests the district court’s characterization of the second
conversation, particularly the district court’s discussion of its doubts surrounding MSP’s
independence. The district court expressed “concern that Angelo mischaracterized the
‘independent’ nature of MSP in his conversations with AUSA Postulka,” rendering him
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noncompliant with the enforcement orders. R. 176, Page ID #8860. To be clear, the district
court made no specific finding on MSP’s independence, and we need not either. Rather, the
question of MSP’s independence is relevant to the extent that Angelo’s statements to the
government violated his obligations under the order and Settlement Agreement.
State Farm presents several reasons to doubt MSP’s independence, including but not
limited to the fact that MSP represented itself as Angelo’s assignee and that the same attorneys
represent MSP and Angelo in the FCA Action. Angelo does not persuasively deny these
allegations; he argues only that the assignment agreement between Angelo and MSP is
“irrelevant.” Appellant Br., ECF No. 44, 41. Even if true, this claim alone is insufficient to
defeat State Farm’s well-taken allegations that Angelo and MSP are not as independent as
Angelo represented and as the government apparently believed when it withheld consent. The
AUSA wrote to Angelo’s counsel that “if Relator Angelo moved to dismiss and there was no
other valid relator who wanted to continue with the case, then the government would likely
consent to dismissal.” R.178-2, Page ID #8917. And if an independent co-relator was the only
thing stopping the government from consenting—as State Farm argued and as the government
averred—then Angelo’s misrepresentations about the independent co-relator were misleading
about a material fact. The government’s apparent lack of awareness about MSP’s status as an
assignee gave the district court reason to doubt that Angelo was acting in good faith—especially
when coupled with his counsel’s other misrepresentations to the government. Against this
backdrop of confusion and misrepresentation, an order requiring a formal motion, less
susceptible to miscommunication, was an appropriate remedy. We therefore find that the district
court did not abuse its discretion in finding that Angelo was noncompliant, nor in ordering a
clearer consent solicitation as a result.
Angelo next opposes this second enforcement order on the grounds that it misapplied the
FCA statute. While § 3730 mandates that a qui tam “action may be dismissed only if the court
and the Attorney General give written consent to the dismissal,” Angelo argues that this
provision does not require that the relator seek such consent through a formal filing. 31 U.S.C.
§ 3730(b)(1). This argument misinterprets the district court’s order. The district court never
claimed that the statute required a formal filing. Instead, the district court correctly noted that
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nothing in Sixth Circuit case law interpreting the statute prohibited seeking consent through a
formal filing. The district court only required that Angelo seek consent formally because
Angelo’s counsel’s informal solicitations had proven “futile.” R. 176, Page ID #8861.
As State Farm correctly points out, courts can and have allowed a relator to seek the
government’s consent to dismiss qui tam claims via formal filing. See, e.g., United States v.
PNC Fin. Servs. Grp., Inc., No. 1:14-CV-1097, 2016 WL 1637440 (W.D. Mich. Apr. 26,
2016), aff’d sub nom. United States ex rel. Tingley v. PNC Fin. Servs. Grp., Inc., 705 F. App’x
342 (6th Cir. 2017); United States ex rel. Quesenberry v. Alarm Mgmt., II, et al., No. 2:20-cv-
12561 (E.D. Mich. Sept. 7, 2021). Angelo, in response, points to cases where relators have
informally sought the government’s consent and then filed joint stipulations of voluntary
dismissal with the government. See, e.g., United States ex rel. Barrett v. Premier Med. and
Rehab. Grp., et al., No. 17-cv-13215 (E.D. Mich. Sept. 10, 2021); United States ex rel. Henson
v. Midwest Fam. Prac., PLC, et al., No. 2:13-cv-14579 (E.D. Mich. Sept. 21, 2016). But, as far
as the FCA is concerned, one method is not more appropriate or more lawful than the other.
Where one remedy has led to such confusion as to lead the district court to deem it “futile,” it is
not an abuse of discretion to order the other.
Angelo also argues that seeking consent through a motion for voluntary dismissal
violated Sixth Circuit precedent. Angelo points to Health Possibilities’ statement that “the
relator’s obligation to receive the Attorney General’s consent is a precondition that must be
satisfied before a voluntary dismissal motion is properly presented to the court.” 207 F.3d at
344. Angelo argues that this sentence requires the government to consent to dismissal before the
relator even makes a motion before the court. As a result, Angelo claims the district court’s
remedy ordering such a motion before Angelo received the government’s consent was improper.
But three points counsel against invoking Health Possibilities for this proposition.
First, Health Possibilities involved a district court, over the government’s opposition,
granting a voluntary dismissal based on an erroneous interpretation of the FCA. But no such
governmental opposition occurred here, and in fact the government later consented to the
dismissal on the FCA Action docket. It would therefore be misguided to apply dicta from Health
Possibilities to a case with inapposite facts. Second, even after Health Possibilities, courts have
Nos. 22-1409/23-1340 State Farm Mutual Auto Ins. Co. v. Angelo, et al. Page 18
allowed voluntary dismissal motions to be filed before the government grants or denies consent,
because district courts can grant or deny such motions based on the government’s reply.
See, e.g., PNC, 2016 WL 1637440, at *3; United States v. Bon Secours Cottage Health Servs.,
665 F. Supp. 2d 782, 783 (E.D. Mich. 2008). We decline to overread Health Possibilities to
establish a rule that would call into question the motions in these cases, which were proper at the
time they were filed and remain so today. Third, the district court, though it was under no
obligation to do so, tried to comply with the order of operations contemplated in Health
Possibilities by, in its first order, requiring Angelo to seek the government’s consent before filing
any motion. It was only when Angelo’s counsel’s communications with the government proved
ambiguous and misleading that the district court required a formal motion, which itself was
contingent on the government’s consent, as contemplated by Health Possibilities’ holding.
Therefore, the district court did not err in ordering Angelo to file a motion to voluntarily
dismiss his FCA claims against Angelo contingent on the government’s consent. The defects in
Angelo’s counsel’s second conversation with the AUSA raised doubts about the adequacy of that
method of soliciting the government’s consent, as required by the Settlement Agreement and the
FCA. And neither the FCA nor Sixth Circuit precedent prohibits seeking government consent
via a formal filing. It is difficult to see how the district court’s order somehow ran afoul of the
FCA or our precedent, particularly where the government eventually consented to dismissal of
the claims. We therefore affirm the district court’s second enforcement order.
E. Angelo’s First Amendment Claim
The final issue before us concerns Angelo’s claim that the district court’s first
enforcement order was “unconstitutional for violating the First Amendment Compelled Speech
Doctrine.” R. 150, Page ID #8108. Because Angelo raised this claim for the first time on a
motion for reconsideration, we must first consider whether his claim is forfeited. We conclude
that it was, so we need not reach the merits of his claim.
We review a district court’s denial of a motion for reconsideration for an abuse of
discretion. Jones v. Caruso, 569 F.3d 258, 265 (6th Cir. 2009). Motions for reconsideration are
“not an opportunity to re-argue a case,” and “should not be used liberally to get a second bite at
Nos. 22-1409/23-1340 State Farm Mutual Auto Ins. Co. v. Angelo, et al. Page 19
the apple.” Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir.
1998) (citation omitted); United States v. Lamar, No. 19-cr-20515, 2022 WL 327711, at *1 (E.D.
Mich. Feb. 3, 2022) (citation omitted).
The district court did not abuse its discretion in denying Angelo’s motion for
reconsideration. The district court made no mistake in noting that Angelo could have raised this
claim earlier, and there was no intervening change in the law or new facts since the decision.
Still seeking to raise his First Amendment argument before us, Angelo concedes that
“[a]rguments raised for the first time in a motion for reconsideration are untimely and forfeited
on appeal,” but he points out that this Court deviates from this general rule when certain factors
are satisfied. Appellant Br., ECF No. 44, 29 (quoting Johnson v. Ford Motor Co., 13 F.4th 493,
503 (6th Cir. 2021)). Those factors are “(1) whether the issue newly raised on appeal is a
question of law, or whether it requires or necessitates a determination of facts; (2) whether the
proper resolution of the new issue is clear and beyond doubt; (3) whether failure to take up the
issue for the first time on appeal will result in a miscarriage of justice or a denial of substantial
justice; and (4) the parties’ right under our judicial system to have the issues in their suit
considered by both a district judge and an appellate court.” Johnson, 13 F.4th at 504 (citation
omitted).
We “rarely exercise[]” our discretion to excuse forfeiture, and this case presents us with
no reason to do so. Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir. 2008). While
Angelo’s First Amendment claim is undoubtedly a question of law, its “proper resolution” is not
“beyond doubt.” Id. (citation omitted). Though we decline to rule on the what the “proper
resolution” of this claim might be, we note briefly that our case law establishes that a party’s
First Amendment rights are not violated where that party voluntarily enters into a bargained-for
agreement that happens to implicate some burden on speech. See Ostergren v. Frick, 856 F.
App’x 562, 569 (6th Cir. 2021) (collecting cases). Therefore, the “resolution” that Angelo urges
is far from clear. And failing to hear Angelo’s untimely First Amendment claim will not result
in a miscarriage of justice for much the same reason.
Nos. 22-1409/23-1340 State Farm Mutual Auto Ins. Co. v. Angelo, et al. Page 20
Because we hold that Angelo has forfeited his First Amendment claim by failing to raise
it in a timely fashion, we need not proceed to consider whether his claim succeeds on the merits.
See Johnson, 13 F.4th at 503. We therefore affirm the district court’s rejection of Angelo’s First
Amendment claim.
III. CONCLUSION
For the above reasons, the district court did not err in in enforcing the parties’ Settlement
Agreement with respect to Angelo’s FCA claims against State Farm, nor did it err in requiring
him to seek the government’s consent to dismiss such claims. We also affirm the district court’s
rejection of Angelo’s First Amendment claim. We therefore AFFIRM the district court’s orders
in full.