Petition for Writ of Certiorari — Ashwani Sheoran, Petitioner v. Walmart Stores East, LP, et al.

Supreme Court briefDec 23, 2021

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Supreme Court of tfje SJmteti States

FILED

DEC 2 3 2021

Ashwani Sheoran, RPh

Petitioner,

Wal-Mart Stores East, LP, et al.

Respondents.

On Petition For Writ Of Certiorari

To The United States Court of Appeals

for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

Ashwani Sheoran, RPh

462 Jacobsen Drive

Newark, DE 19702

(419) 285-6552

Petitioner

Received

APR 2 0 2022

lleiMEbSjggfflK

received

MAR 2 1 2022

SUPREME1COI^RT~MtoK

QUESTIONS PRESENTED

Whether Fed. R. Civ. P. 11 requires the specific

offending statements, if applicable, to be listed in the

show cause order to satisfy proper notice

requirements under the Due Process Clause.

Whether federal appellate courts can use the

federal district courts’ Fed. R. Civ. P. 11 to discipline

attorneys when the U. S. Supreme Court holds

otherwise.

Whether the U. S. Supreme Court should

reconcile the circuit split on how attorneys are

disciplined at the federal appellate level to provide

consistency and fairness across the circuits.

LIST OF PARTIES

Petitioner Ashwani Sheoran, RPh was the

plaintiff-relator in the district court, appellant in the

court of appeals, and petitioner in this Court.

The United States of America, although the

real party in interest in a qui tarn action, is not a party

to this litigation.

The State of Michigan, although the real party

in interest in a qui tarn action, is not a party to this

litigation.

Respondents listed below were defendants in

the district court, appellees in the court of appeals,

and respondents in this Court:

Wal-Mart Stores East, LP

Richard Lockard, M.D.

Toi Walker

Alfred Rodriguez

Doug Henger

Ill

RELATED PROCEEDINGS

Sheoran v. Wal-Mart Stores East, LP, et al. No.

21-1025 (U. S. Supreme Ct. filed November 8, 2021).

Sheoran v. Wal-Mart Stores East, LP, et al. No.

20-2128 (6th Cir. filed November 16, 2020); opinion

entered June 4, 2021 (Appx. A); petition for rehearing

enpanc denied and show cause order issued on August

9, 2021 (Appx. B).

Sanctions order entered on

September 24, 2021 (Appx. C).

Sheoran, et al., v. Wal-Mart Stores East, LP, et

al. No. 4:13-cv-10568, (E. D. Mich, filed February 11,

2013); judgment entered October 19, 2020 (Appx. D).

There are no other proceedings in state or

federal trial or appellate courts, or in this Court,

directly related to this case under Supreme Court

Rule 14.1(b)(iii).

TABLE OF CONTENTS

QUESTIONS PRESENTED...............................

LIST OF PARTIES.............................................

RELATED PROCEEDINGS...............................

TABLE OF CONTENTS.....................................

TABLE OF APPENDIX CONTENTS...............

TABLE OF AUTHORITIES...............................

PETITION FOR WRIT OF CERTIORARI.......

OPINIONS BELOW...........................................

STATEMENT OF JURISDICTION..................

STATUTORY AND

CONSTITUTIONAL PROVISIONS.................

STATEMENT OF THE CASE...........................

REASONS FOR GRANTING THE PETITION

I. The Sixth Circuit’s sanctions order is

invalid because it does not give proper

notice under Fed. R. Civ. P. 11..............

II. The Sixth Circuit’s sanctions order

is invalid because the Federal Rules

of Civil Procedure apply to district

courts not appellate courts under

U. S. Supreme Court precedent............. .

III. There is a circuit split on how to

discipline attorneys at the federal

appellate level. Clarification must

come from the U. S. Supreme Court to

provide consistency and fairness

across the circuits....................................

CONCLUSION....................................................

TABLE OF APPENDIX CONTENTS

APPENDIX A

(6th Cir. Opinion and Order,

June 4, 2021..........................

APPENDIX B

(6th Cir. Rehearing Denied

and Show Cause Order,

August 9, 2021)....................

15a

APPENDIX C

(6th Cir. Sanctions Order,

September 24, 2021)........

17a

APPENDIX D

(Judgment from the E. D. of Mich.,

October 19, 2020)............................

20a

APPENDIX E

(Petition for Rehearing en banc,

June 21, 2021).............................

23a

TABLE OF AUTHORITIES

CASES

Cooter & Gell v. Hartmarx Corp.,

496 U. S. 384 (1990)......................................

Crocket v. Complete Fitness Rehab., Inc.,

No. 16-2544, (6th Cir. 2018)

(unpublished).................................................

Fakorede v. Mid-South Heart Center, P.C.,

No. 16-5722 (6th Cir. 2017) (unpublished)

Indah v. USSEC,

661 F. 3d 914, 926 (6th Cir. 2011)..............

5, 6

STATUTES

28 U.S.C. § 1254(1)........................................

28 U.S.C. § 2072.............................................

31 U.S.C. § 3729 et seq.................................

False Claims Act...........................................

Michigan False Claim Act, 400.601 et seq

U. S. Constitution, Fifth Amendment......

2,7

1,2

RULES

Federal Rules of Appellate Procedure

Federal Rules of Civil Procedure........

Fed. R. App. P. 1(a)(1)...........................

Fed. R. Civ. P. 1.......................................

Fed. R. Civ. P. 11....................................

Fed. R. Civ. P. 11(b)...............................

Fed. R. Civ. P. 11(c)(1)...........................

Fed. R. Civ. P. 11(c)(3)...........................

Fed.R.Civ.P. 11(c)(4)..............................

Local Rule 38.0........................................

7,8

1, 3, 4, 7, 8, 9

4,5

4, 5,6

Vll

OTHER

Black’s Law Dictionary, 10th ed

PETITION FOR WRIT OF CERTIORARI

Ashwani Sheoran, RPh, petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Sixth Circuit.

OPINIONS BELOW

The Sixth Circuit entered its opinion on June 4,

2021 (Appx. A), which is not published in the Federal

Reporter. The Sixth Circuit’s order denying the

petition for rehearing en banc and to show cause

under Fed. R. Civ. P. 11 was entered on August 9,

2021 (Appx. B). The Sixth Circuit issued its sanctions

order on September 24, 2021 (Appx. C). The district

court’s opinion and order issued on August 20, 2019.

The district court’s opinion and order denying

Sheoran’s motion for reconsideration was entered on

September 28, 2020, and judgment was entered on

October 19, 2020 (Appx. D).

STATEMENT OF JURISDICTION

The Sixth Circuit entered its sanctions order on

September 24, 2021 (Appx. C). This Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Fifth Amendment of the United States

Constitution provides in relevant part: “No person

shall...be deprived of life, liberty, or property, without

due process of law; nor shall private property be taken

for public use, without just compensation.”

The Rules Enabling Act, 28 U. S. C. § 2072

provides in relevant part:

(a) The Supreme Court shall have the

power to prescribe general rules of

practice and procedure ... in the United

States

district

courts

(including

proceedings before magistrate judges

thereof) and courts of appeals.

(b) Such rules shall not abridge, enlarge

or modify any substantive right.

STATEMENT OF THE CASE

Petitioner and pharmacist Ashwani Sheoran

brought this opioid whistleblower case under the

False Claims Act, 31 U.S.C. § 3729(a)(1) et seq., and

the Michigan Medicaid False Claim Act, MCL 400.601

et seq., against Walmart for using government funds

to fill illegal opioid prescriptions and for firing him in

retaliation for his efforts to stop the illegal activity.

On June 21, 2021, Sheoran filed a petition for

rehearing en banc (Appx. E) in the Sixth Circuit,

which identified numerous mistakes in the panel’s

opinion.

The Sixth Circuit denied the petition for

rehearing en banc on August 9, 2021, and issued a

show cause order under Fed. R. Civ. P. 11 (Appx. B)

for “multiple specious allegations of judicial

corruption.” Sheoran did not respond to the improper

order issued under Rule 11. On September 24, 2021,

the Sixth Circuit issued a sanctions order, which

states in relevant part (Appx. C):

Ann Marie Stinnett and The Stinnett

Law Group, PLC are thus ORDERED to

pay $2,500 to this Court within sixty (60)

days of this Order. See Fed. R. Civ. P. 11

(c)(4). Ann Marie Stinnett is further

hereby SUSPENDED from the rolls [sfc]

of counsel of this Court for a period of one

year.

JOAN L. LARSEN, Circuit Judge,

concurring in part and dissenting in

part. I concur in the monetary sanctions

pursuant to the Fed. R. Civ. P. 11 only.

Sanctions Order, Appx. C, p. 18a.

This petition for writ of certiorari focuses on the

Sixth Circuit’s improper imposition of sanctions under

Fed. R. Civ. P. 11 entered on September 24, 2021.

Sheoran filed a separate petition for writ of certiorari

for other errors on November 8, 2021.

REASONS FOR GRANTING THE PETITION

The Sixth Circuit’s sanctions order is

invalid because it does not give proper notice

under Fed. R. Civ. P. 11.

On August 9, 2021, the Sixth Circuit denied the

petition for rehearing en banc and issued the following

show cause order (Appx. B):

The petition, brought by PlaintiffAppellant, included multiple specious

allegations of judicial corruption.

Plaintiff-Appellant’s counsel cites to no

evidence

substantiate

these

inappropriate allegations.

PlaintiffAppellant’s counsel is ORDERED to

show cause as to why she should not be

sanctioned for violating Federal Rule of

Civil Procedure 11(b) within twenty-one

(21) days following the filing of this

order. See Fed. R. Civ. P. 11(c)(1), (3).

Show Cause Order, Appx. B, p. 16a.

The 5th Amendment of the U. S. Constitution

guarantees the right to due process. Sufficient notice

is a bedrock of this constitutional guarantee. Fed. R.

Civ. P. 11 requires specificity to ensure sufficient

notice is given before issuing sanctions. See Fed. R.

Civ. P. 11(c)(3) (requiring “conduct specifically

described in the order.” emphasis added).

In addition, Sixth Circuit case law echoes Rule

ll’s specificity requirement:

The identification of the specific

conduct that is allegedly sanctionable is

critical to a finding of a Rule 11

violation.... where a court acts sua

sponte, it must first issue a show-cause

order requiring the alleged violator “to

show cause why conduct specifically

described in the order has not violated

Rule 11(b).” FED. R. CIV. P. 11(c)(3).

Indah v. USSEC, 661 F. 3d 914, 926 (6th

Cir. 2011), emphasis added.

In this case, the alleged offending conduct was

not specifically described in the order because

“multiple specious allegations of judicial corruption”

is not specific. It is general, and, frankly, unclear.

Which statements are causing the issue? The actual

offending statements must be included in the show

cause order to satisfy the specificity requirements of

Rule 11, assuming, arguendo, that an appellate court

can even invoke Rule 11. Indah v. USSEC, 661 F. 3d

914, 926 (i6* Cir. 2011); Fed. R. Civ. P. 11(c)(3).

Further, Sheoran’s counsel, Ann Marie

Stinnett, took steps to ensure that the filing was

appropriate by calling the Michigan Ethics hotline

before filing the petition for rehearing en banc. She

was told that her writing style can be blunt and direct.

With this guidance, she removed a portion of the

petition.1 What was left was blunt, direct, and did not

deserve sanctions.2 SeeAppx. E.

In this case, the Sixth Circuit did not give

Sheoran proper notice in its show cause order because

it did not list which statements it found to be

“specious.” Black’s Law Dictionary, 10th ed., defines

“specious” as “(f)alsely appearing to be true, accurate,

or just <specious arguments” There is nothing

specific about what constitutes “specious” by its

definition, and the Sixth Circuit did not cite what it

determined to be specious in its order. Specificity is

required by case law and Rule 11 itself. Indah v.

USSEC, 661 F. 3d 914, 926 (6* Cir. 2011); Fed. R. Civ.

P. 11(c)(3). By not being specific in its order, the Sixth

Circuit is breaking the very rule it seeks to enforce.

1 Stinnett will identify what was removed from the petition

for rehearing if the Court desires.

2 Judge McKeague (author), Judge Clay, and Judge Larsen

were the 3-judge panel in this case. In 2017, Judge McKeague

authored the unpublished opinion in Fakorede v. Mid-South

Heart Center, P.C., No. 16-5722 (6th Cir. 2017) and used the

updated post-2010 amendment law for a retaliation claim under

the False Claims Act. In 2018, Judge McKeague was part of the

three-judge panel in Crockett v. Complete Fitness Rehab., Inc.,

No. 16-2544 (6th Cir. 2018) (unpublished), which also used the

updated post-2010 amendment law. Thus, Judge McKeague

used the updated law in 2017, 2018, but not in this case in 2021.

As stated in the petition for rehearing that garnered sanctions:

“Judicial integrity requires that this Court address all the

relevant facts....” As the author of the opinion in this case, using

outdated law to deny Sheoran’s claim (when Judge McKeague

undeniably used the updated law in the past) strikes at the heart

of justice.

No burden-shifting local rule or operating procedure

can overcome this lack of sufficient notice.3

For these reasons, the Sixth Circuit’s sanctions

order under Fed. R. Civ. P. 11 is invalid for lack of

proper notice, assuming arguendo, that Rule 11 even

applies.

The Sixth Circuit’s sanctions order is

II.

invalid because the Federal Rules of Civil

Procedure apply to district courts not appellate

courts under U. S. Supreme Court precedent.

Most attorneys familiar with federal court

litigation, and especially federal judges, know that the

Federal Rules of Civil Procedure only apply to district

courts and not appellate courts. See, Fed. R. Civ. P. 1

(“These rules govern the procedure in all civil actions

and proceedings in the United States district

courts....”) (emphasis added). Thus, Fed. R. Civ. P.

11 only applies to district courts. Id. The federal

appellate courts, like the Sixth Circuit, have their own

rules called the Federal Rules of Appellate Procedure.

See, Fed. R. App. P. 1(a)(1) (“These rules govern

procedure in the United States courts of appeals”).

Thus, the Federal Rules of Appellate Procedure

govern the Sixth Circuit, not the Federal Rules of Civil

Procedure, and specifically not Fed. R. Civ. P. 11.

3 The Rules Enabling Act, 28 U. S. C. § 2072(b) states the

Court has no authority to enact rules that “abridge, enlarge or

modify any substantive right.” This includes the constitutional

rights to due process and sufficient notice.

The U.S. Supreme Court makes this distinction

clear:

On its face, Rule 11 does not apply to

appellate proceedings. Its provision

allowing the court to include “an order to

pay to the other party or parties the

amount of the reasonable expenses

incurred because of the filing of the

pleading, motion, or other paper,

including a reasonable attorney’s fee”

must be interpreted in light of Federal

Rule of Civil Procedure 1, which

indicates that the Rules only “govern the

procedure in the United States district

courts.” Neither the language of Rule 11

nor the Advisory Committee Note

suggests that the Rule could require

payment for any activities outside the

context of district court proceedings.

Cooter & Gell v. Hartmarx Corp., 496

U.S. 384, 406 (1990).

It naturally follows that if Rule 11 does not

apply to appellate courts, then the sanctions against

Stinnett and The Stinnett Law Firm, PLC are invalid.

Id. Specifically, the $2,500 payment to the Court is

invalid. Id. (there is no “payment for any activities

outside the context of district court proceedings,” and

“We believe Rule 11 is more sensibly understood as

permitting an award only of those expenses directly

caused by the filing, logically, those at the trial level”).

Further, the one-year suspension from the role of

counsel in the Sixth Circuit is also invalid. Id. (“Rule

11 does not apply to appellate proceedings”).

Thus, the Sixth Circuit defied U. S. Supreme

Court precedent by issuing sanctions under Fed. R.

Civ. P. 11 and should be reversed.

III. There is a circuit split on how to discipline

attorneys at the appellate level. Clarification

must come from the U.S. Supreme Court to

provide consistency and fairness across the

circuits.

It is unsettling that the same 3-judge panel who

issued the Sixth Circuit’s faulty opinion can then

sanction the attorney who pointed out their faults

without any apparent oversight whatsoever. Further,

they used a rule that does not apply to appellate

courts.

This judicial behavior affects Sheoran’s

attorney-client contractual relationship in terms of

who is responsible for paying the assessed fee under

the contract, wasted precious resources and time that

should have been devoted to the main appeal, and left

Sheoran without counsel of record for this appeal.4

If the Sixth Circuit’s procedure for issuing

sanctions appears unfair, that is because it is

4 Unlike the 6th Circuit Bar, in order to represent a litigant

at the U.S. Supreme Court level, an attorney must be a member

of the Supreme Court Bar, which prohibits attorneys who have

been sanctioned from becoming a bar member until three (3)

years after the date of the sanction.

compared to some other circuits. For example, the

Second Circuit forms a Committee to address attorney

discipline. The Committee consists not only of judges

but also members of the bar. It decides whether to

bring charges against an attorney and brings those

charges against the attorney personally,

This

procedure makes sense given the attorney is the

named party in the sanctions order and not the

litigant. The attorney is allowed to be represented by

counsel throughout the entire proceeding, and a

finding of misconduct must be made by clear and

convincing evidence. The Second Circuit’s procedure

sounds more appropriate than what the Sixth Circuit

has done in this case.

The First Circuit has Local Rule 38.0, which is

similar to Fed. R. Civ. P. 11 but does not provide for

the law firm to be sanctioned. It allows just fourteen

(14) days to respond to a show cause order. The Sixth

Circuit allowed twenty-one (21) days. Even though

the First Circuit allows a shorter time to respond than

the Sixth Circuit, the First Circuit and Sixth Circuit

both use provisions that are similar to Fed. R. Civ. P.

11, if not Fed. R. Civ. P. 11 itself.

The Third Circuit has a dedicated section on

attorney discipline. When suspension is considered, it

has a Standing Committee, consisting of three (3)

circuit judges at least two (2) of whom are active. The

Chief Judge appoints the circuit judges for three-year

terms. The Standing Committee creates a Report and

Recommendation that it gives to the attorney prior to

sanctioning, and the attorney has the opportunity to

respond. This also sounds much fairer than what the

Sixth Circuit has done.

Granting this petition will allow the Supreme

Court to resolve the circuit split on how to handle

attorney discipline at the appellate level, so that what

occurred to Sheoran in the Sixth Circuit does not

happen to future litigants and attorneys.

CONCLUSION

This petition for a writ of certiorari should be

granted.

Respectfully submitted,

s/Ashwani Sheoran

Ashwani Sheoran, RPh

462 Jacobsen Drive

Newark, DE 19702

(419) 285-6552

Petitioner

March 16, 2022

APPENDIX A

NOT RECOMMENDED FOR PUBLICATION

File Name: 21a0275n.06

Case No. 20-2128

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES

OF AMERICA and

STATE OF MICHIGAN,

ex rel.,

Plaintiffs-Relators,

ASHWANI SHEORAN, RPh,

Plaintiff-Relator/

Appellant,

)

ON APPEAL

FROM THE

UNITED

STATES

DISTRICT

COURT

FOR THE

EASTERN

DISTRICT

OF MICHIGAN

)

WAL-MART STORES

EAST, LP, TOI WALKER;

DOUG HENGER;

ALFRED RODRIGUEZ;

RICHARD LOCKARD, M.D.,

Defendants-Appellees.

)

OPINION

BEFORE: CLAY, McKEAGUE, and LARSEN,

Circuit Judges.

McKEAGUE, Circuit Judge. In 2013,

Ashwani Sheoran filed a sealed complaint under the

False Claims Act and the Michigan Medicaid False

Claims Act alleging that a doctor was writing

improper prescriptions for high dosages of opiates and

that Walmart was filling those prescriptions. After

five years, the United States and State of Michigan

declined to intervene and prosecute the case on

Sheoran’s behalf, and the district court unsealed the

complaint. The district court granted the defendants’

motions to dismiss and denied Sheoran’s motion for

reconsideration. Sheoran challenges the district

court’s grant of the motions to dismiss, its alleged

failure to address claims under the Michigan

Medicaid False Claims Act, and its decision not to hold

oral argument for the motions.

We find Sheoran’s arguments to be without

merit and AFFIRM the judgment of the district court.

In April 2012, Sheoran began working as a full

time floater pharmacist for Walmart in Michigan,

which meant that he would work at different

pharmacies around the state. In July 2012, Sheoran

arrived to work at a Walmart in Bad Axe, Michigan

and observed a line of roughly ten customers waiting

for the pharmacy to open, all of whom were patients

of Dr. Richard Lockard. Sheoran claims that they all

presented prescriptions for very high doses of opiates,

so high that one patient would have died had he or she

“actually taken” the prescription.

Then, in August 2012, while working at the

same Walmart, Sheoran claims he received large

numbers of opiate prescriptions from Dr. Lockard’s

office and declined to fill them due to their high doses.

Sometime afterwards, Sheoran obtained one

unidentified patient’s “Medical Expenses Summary,”

which listed that patient’s prescriptions and costs over

a five-year period. Sheoran concluded that because

the cost to the patient was $1-2 for many of the

prescriptions, they must have been submitted to

Medicare or Medicaid for payment, which would

potentially trigger liability under the False Claims

Act. Claiming that this Medical Expenses Summary

was one example of thousands, he brought his

concerns to his supervisor. Walmart investigated and

found that the pharmacy was not following Walmart’s

internal procedures for filling faxed prescriptions but

did not conclude that any laws or regulations were

violated. After a meeting where Sheoran was

reprimanded for stealing the Medical Expenses

Summary (later attached to his complaint) in violation

of Walmart’s policies, he was fired on January 21,

2013.

On February 11, 2013, about a month after he

was terminated, Sheoran filed a complaint under seal

alleging False Claims Act (“FCA”) violations against

Walmart, three individual employees of Walmart, and

three doctors. After amending his complaint, Sheoran

alleged (1) presentation of false claims under the FCA

and Michigan Medicaid False Claims Act (“MMFCA”);

(2) use of false records under the FCA and MMFCA;

(3) conspiracy to violate the FCA; and (4) retaliation

under the FCA by Walmart. After five years, the

United States and State of Michigan declined to

intervene in the case, so the district court unsealed

the complaint on March 7, 2018. The Walmart

defendants and one of the doctors, Dr. Lockard, moved

to dismiss, and the district court granted their

motions on August 20, 2019. Sheoran moved for

reconsideration, which the district court denied on

September 28, 2020. This appeal followed.

Sheoran challenges the decisions below in three

ways. The bulk of his briefing focuses on whether the

district court was incorrect in granting the motions to

dismiss. He also argues that that the district court

erred by failing to include his MMFCA claims in its

summary of claims in the orders and that the district

court abused its discretion by waiving oral argument

on the motions. We address each argument in turn.1

1 Sheoran’s statement of issues does not address whether the

district court correctly granted the motions to dismiss, and

instead addresses only his MMFCA and oral argument claims.

Therefore, we could restrict our analysis to those two claims

alone because Federal Rule of Appellate Procedure 28(a)(5)

specifies that “[t]he appellant’s brief must contain” the issues

presented in the statement of issues; therefore, issues not

A. Dismissal for failure to state a claim

We review a district court’s dismissal for failure

to state a claim de novo. Yuhasz v. Brush Wellman,

Inc., 341 F.3d 559, 562 (6th Cir. 2003). To survive a

motion to dismiss, a complaint must contain more

than “labels and conclusions,” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007), and we may reject

“mere assertions and unsupported or unsupportable

conclusions.” Sanderson v. HCA-The Healthcare Co.,

447 F.3d 873, 876 (6th Cir. 2006). Complaints brought

under the FCA require plaintiffs to satisfy the

particularity requirements of Federal Rule of Civil

Procedure 9(b). Yuhasz, 341 F.3d at 563. This

heightened standard requires that the plaintiff “allege

the time, place, and content of the alleged

misrepresentation ...[;] the fraudulent scheme; the

fraudulent intent of the defendants; and the injury

resulting from the fraud.” United States ex rel. Bledsoe

v. Cmty. Health Sys., Inc., 342 F.3d 634, 643 (6th Cir.

included may be dismissed as forfeited. See United States v.

Calvetti, 836 F.3d 654, 664 (6th Cir. 2016). Nonetheless, given its

importance on appeal, we will address whether the district court

correctly granted the motions to dismiss. To the extent that

Sheoran’s briefing raises other arguments, many of which are

undeveloped and presented in only a paragraph or two, we deem

them forfeited because of Sheoran’s perfunctory treatment of

them and because they were not included in Sheoran’s statement

of issues. See id.; United States v. Johnson, 430 F.3d 383, 397

(6th Cir. 2005); United States v. Burton, 828 F. App’x 290, 293

n.l (6th Cir. 2020); Barrett v. Detroit Heading, LLC, 311 F. App’x

779, 796 (6th Cir. 2009).

2003) (quoting Coffey v. FoamexL.P., 2 F.3d 157, 161—

62 (6th Cir. 1993)).

1. False claims and false records

Sheoran’s first two counts allege that the

defendants knowingly presented false claims to the

government and knowingly made false records for use

in those claims. To establish a claim under the FCA, a

plaintiff must allege that (i) the defendant presented

a claim of payment to the government, (ii) the claim

was false or fraudulent, (iii) the defendant knew it was

false or fraudulent, and (iv) the false claim was

material to the government’s payment. See United

States ex rel. Sheldon v. Kettering Health Network,

816 F.3d 399, 408 (6th Cir. 2016). Sheoran’s complaint

falls short on all four elements.

a. Presentment

A critical component of an FCA complaint is the

allegation that a claim for payment was presented to

a government entity. See Sanderson, 447 F.3d at 878

(describing presentment as the “sine qua non of a

False Claims Act violation”). Under Rule 9(b),

specifics on presentment are required, such as the

types of employees involved and the “specific dates”

underlying the claims. United States ex rel. Bledsoe v.

Cmty. Health Sys., Inc., 501 F.3d 493, 515 (6th Cir.

2007); Sanderson, 447 F.3d at 877-78.

the

Sheoran claims that Exhibit A of the complaint,

Medical Expenses Summary, establishes

presentment, but that exhibit is simply a summary of

one unidentified patient’s prescriptions and expenses.

Nothing about the document indicates that any of the

entries were presented to a government agency.

Sheoran argues that because some of the payments

were for $1-2, the patient must have received

government reimbursement through Medicare or

Medicaid. But Rule 9(b) requires far more than mere

speculation. See Sanderson, 447 F.3d at 877 (noting

that plaintiffs cannot simply allege that claims “must

have been submitted, were likely submitted, or should

have been submitted to the Government”) (quoting

United States ex rel. Clausen v. Lab’y Corp. of Am.,

Inc., 290 F.3d 1301, 1311 (11th Cir. 2002)). As the

district court noted, many reasons could exist for the

low costs to the patient, such as subsidizing by private

insurance companies. Because this bare-bones

assertion must be rejected, Sheoran cannot satisfy the

presentment element of his FCA claims.

b. Falsity

The second element of an FCA claim is that the

claim submitted must be “false or fraudulent.” 31

U.S.C. § 3729(a)(1)(A), (B). Again, Sheoran relies

solely on Exhibit A to satisfy this element, claiming

that the “high doses” listed “would kill the person” if

taken as prescribed. But we must reject mere

“conclusions” and “naked assertions” in a complaint.

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Exhibit

A simply lists one patient’s prescriptions and

expenses and contains no other medical information,

and Sheoran offers none in his complaint. It is

impossible to evaluate whether the doses were too

high without more information regarding the patient’s

medical history or needs. Therefore, there is no way to

conclude that Exhibit A establishes falsity.

c. Knowledge

Next, Sheoran must sufficiently allege that the

defendants “knowingly” presented false claims or

“knowingly” created false records for false claims. 31

U.S.C. § 3729(a)(1)(A), (B); see id. § 3729(b)(1). This is

a high bar, requiring “that a defendant knows of, or

‘acts in deliberate ignorance’ or ‘reckless disregard’ of,

the fact that he is involved in conduct that violates a

legal obligation to the United States.” United States ex

rel. Harper v. Muskingum Watershed Conservancy

Dist., 842 F.3d 430, 437 (6th Cir. 2016) (quoting 31

U.S.C. § 3729(b)). Once again, even assuming that the

prescriptions in Exhibit A were submitted to the

government, nothing in those prescriptions would

indicate to Walmart that they were illegal, false, or

fraudulent. Sheoran’s complaint does not describe

how Walmart could have concluded the prescriptions

were false or fraudulent in some way, so he fails to

satisfy this element.

d. Materiality

Finally, Sheoran must show that the alleged

misrepresentation made to the government was

“material” to the government’s decision to reimburse

the claim. Universal Health Servs., Inc. v. United

States, 136 S. Ct. 1989, 2001 (2016). This "demanding”

standard should go "to the very essence of the

bargain,” as the FCA was not enacted to punish

“garden-variety” violations. Id. at 2001-03 & n.5.

Assuming that Walmart actually submitted the

claims in Exhibit A to the government, the

government would have had access to the same

knowledge that Walmart had regarding the allegedly

"high doses” of controlled substances prescribed. Even

if we accept as true Sheoran’s representation that the

prescriptions in Exhibit A were submitted to the

government and that the exhibit, on its face, shows

false or fraudulent claims, then the government’s

decision to pay those claims despite that knowledge

“is very strong evidence that those requirements are

not material.” Id. at 2003. Therefore, Sheoran fails to

satisfy this element.

2. Conspiracy

Sheoran’s third count of FCA conspiracy

against Walmart falls with the two preceding

substantive claims. Conspiracy under the FCA is

derivative of the substantive claims of submitting a

false claim to the government or creating a false

record. See 31 U.S.C. § 3729(a)(1)(C); United States ex

rel. Crockett v. Complete Fitness Rehab., Inc., 721 F.

App’x 451, 459 (6th Cir. 2018). As we have concluded

in the preceding section, Sheoran’s first two counts

failed to meet the pleading standards of Rules 12(b)(6)

and 9(b), which means his conspiracy claim fails as

well. See Crockett, 721 F. App’x at 459 (holding that

10a

the plaintiffs “inability to show that false claims were

actually submitted to the government means that her

... false-claims-conspiracy counts are likewise subject

to dismissal, because the existence of such false claims

is a precondition to [this] theory”).

3. Retaliation

Finally, the district court correctly dismissed

Sheoran’s retaliation claim. FCA retaliation claims

are not subject to Rule 9(b)’s heightened standards,

see id. at 460, but “a plaintiff must show: (1) he

engaged in a protected activity; (2) his employer knew

that he engaged in the protected activity; and (3) his

employer discharged or otherwise discriminated

against the employee as a result of the protected

activity.” Yuhasz, 341 F.3d at 566. Sheoran’s

retaliation claim fails because he failed to plead that

Walmart knew he was pursuing an FCA action.

Employees “must make clear their intentions of

bringing or assisting in an FCA action” to show

retaliation. Id. at 568. Sheoran claims that he told his

superiors about the allegedly false prescriptions, but

that is not enough. Even when an employee tells their

employer that they have witnessed illegal conduct and

that other companies have incurred FCA liability for

similar conduct, that fails to establish that an

employee is pursuing an FCA action. Id. at 567;

McKenzie v. BellSouth Telecomms., Inc., 219 F.3d 508,

518 (6th Cir. 2000) (noting that telling an employer

about their alleged regulatory violations was not

11a

sufficient to satisfy this requirement). Therefore,

Sheoran’s retaliation claim was properly dismissed.

B. Michigan Medicaid False Claims Act

Next, Sheoran claims that the district court

erred by failing to address his MMFCA claims when it

summarized Sheoran’s claims in its order. But first,

contrary to Sheoran’s assertions on appeal, two of the

four claims in his complaint were not brought under

the MMFCA at all. Sheoran’s conspiracy and

retaliation claims referenced only federal FCA

provisions. There can be no error in the district court’s

failure to discuss claims that did not exist.

Second, the district court addressed the other

two claims, recognizing that Sheoran brought them

under “the Michigan Medicaid False Claims Act” as

well as the federal FCA. The district court’s analysis

applied to both sets of claims, and it dismissed the

state law claims along with the federal ones.

To the extent Sheoran argues that the MMFCA

claims should have been analyzed differently than the

federal FCA claims, that argument is contradicted by

both the proceedings below as well as precedent.

Neither the complaint nor the motion to dismiss

briefing identified any distinctions between the FCA

and MMFCA in this case. And that makes sense,

because the FCA and MMFCA are identical in every

relevant respect here and are frequently analyzed in

tandem. See, e.g., Hendricks v. Bronson Methodist

Hosp., Inc., No. l:13-CV-294, 2014 WL 3752917, at

12a

*2-7 (W.D. Mich. July 30, 2014) (analyzing FCA and

MMFCA claims together). The federal FCA prohibits

“knowingly presenting]” a “false or fraudulent claim”

as well as “knowingly makfing]” a “false record”

“material” to such a claim, 31 U.S.C. § 3729(a)(1), and

the MMFCA contains two substantially similar

provisions, see Mich. Comp. Laws § 400.607(1), (2);

Hendricks, 2014 WL 3752917, at *2. Therefore, there

was no error in the district court analyzing both sets

of claims the same way.

C. Oral argument

Sheoran suggests that the district court issued

“confusing” orders, dismissed his claims “without a

hearing or clear understanding of the factual and legal

issues,” and thereby erred in waiving oral argument

for the motions. We review whether a district court

impermissibly decided a motion without oral

argument for an abuse of discretion. Mann v. Conlin,

22 F.3d 100, 103 (6th Cir. 1994).

We see no abuse of discretion here. The Federal

Rules of Civil Procedure and the district court’s local

rules expressly permit deciding motions without oral

argument. Fed. R. Civ. P. 78(b); E.D. Mich. Loc. R.

7.1(f). And doing so serves many valuable functions for

the judiciary, such as allowing district courts to

“effectively manage very crowded case dockets,”

especially in instances where “the legal issues are

abundantly clear and . . . firmly settled.” Yamaha

Corp of Am. v. Stonecipher’s Baldwin Pianos &

13a

Organs, Inc., 975 F.2d 300, 301 n.l (6th Cir. 1992).

Deciding motions on the briefs also “encourages

improved brief writing” and “forces the parties to

thoroughly research the legal basis on which their

positions rest.” Id. We routinely approve of a district

court’s decision to decide motions without oral

argument and see no reason to reject the court’s

decision to do so here.

In response, Sheoran claims the orders were

“very confusing” and that the district court failed to

“understand the complex issues in this case.” But as

the analysis above demonstrates, this was a

straightforward FCA case that was properly decided

on the briefs. And the specific claims that Sheoran

makes regarding the district court’s allegedly

“confusing” analysis do not show an abuse of

discretion. For example, Sheoran claims that the

district court failed to note that FCA liability can be

established if claims are submitted “to certain third

parties acting on the Government’s behalf’ and not

just to the government itself. Sheoran’s statement of

the law is accurate, see Cochise Consultancy, Inc. v.

United States ex rel. Hunt, 139 S. Ct. 1507, 1510

(2010), but irrelevant. Sheoran did not claim that the

payments were submitted to third parties, so the

district court had no reason to discuss that aspect of

the law. Later, Sheoran claims that the district court’s

use of the phrase “appears to allege” was an

“admission” that confirmed “the district court was not

confident” about what Sheoran’s complaint was

14a

alleging and that oral argument was necessary “to

clear up the court’s confusion.” We reject Sheoran’s

invitation to parse the words of the district court so

finely or conclude that the district court was confused

based on its use of that phrase. In sum, Sheoran’s

arguments have no merit and fail to show an abuse of

discretion in the district court’s decision to decide the

motions without oral argument.

Ill

We AFFIRM the judgment of the district court.

Dated: June 4, 2021

15a

APPENDIX B

Case No. 20-2128

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES

OF AMERICA and

STATE OF MICHIGAN,

ex rel.,

Plaintiffs-Relators,

)

ORDER

)

ASHWANI SHEORAN, RPh,

Plaintiff-Relator/

Appellant,

)

WAL-MART STORES

EAST, LP, TOI WALKER;

DOUG HENGER;

ALFRED RODRIGUEZ;

RICHARD LOCKARD, M.D.,

Defendants-Appellees.

)

BEFORE: CLAY, McKEAGUE, and LARSEN,

Circuit Judges.

16a

The court received a petition for rehearing en

banc. The original panel has reviewed the petition for

rehearing and concludes that the issues raised in the

petition were fully considered upon the original

submission and decision of the case. The petition then

was circulated to the full court.* No judge has

requested a vote on the suggestion for rehearing en

banc.

Therefore, the petition is denied.

The petition, brought by Plaintiff-Appellant,

included multiple specious allegations of judicial

corruption. Plaintiff-Appellant’s counsel cites to no

evidence to substantiate these inappropriate

Plaintiff-Appellant’s counsel is

allegations.

ORDERED to show cause as to why she should not be

sanctioned for violating Federal Rule of Civil

Procedure 11(b) within twenty-one (21) days following

the filing of this order. See Fed. R. Civ. P. 11(c)(1), (3).

ENTERED BY ORDER

OF THE COURT

s/Deborah S. Hunt

Deborah S. Hunt, Clerk

Dated: August 9, 2021

*Judges White, Readier, and Murphy, recused themselves from

participation in this ruling.

17a

APPENDIX C

Case No. 20-2128

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES

OF AMERICA and

STATE OF MICHIGAN,

ex rel.,

Plaintiffs-Relators,

)

ORDER

)

. ASHWANI SHEORAN, RPh,

Plaintiff-Relator/

Appellant,

)

WAL-MART STORES

EAST, LP, TOI WALKER;

DOUG HENGER;

ALFRED RODRIGUEZ;

RICHARD LOCKARD, M.D.,

Defendants-Appellees.

)

BEFORE: CLAY, McKEAGUE, and LARSEN,

Circuit Judges.

18a

In denying Plaintiff-Appellant’s petition for

rehearing en banc, we ordered Plaintiff-Appellant’s

counsel to show cause as to why she should not be

sanctioned for violating Federal Rule of Civil Procedure

11(b). Order Denying Reh’g En Banc 1, United States ex

rel. v. Wal-Mart Stores East, LP, No. 20-2128 (6th Cir.

June 4, 2021). We noted that the petition brought by

Plaintiff-Appellant’s counsel included “multiple specious

allegations of judicial corruption” for which she cited no

evidence. Id.

Having received no response from PlaintiffAppellant’s counsel to our show cause order, we confirm

our imposition of sanctions. See Fed. R. Civ. P. 11(c)(1)

(“If, after notice and a reasonable opportunity to

respond, the court determines that Rule 11(b) has been

violated, the court may impose an appropriate sanction

on any attorney, law firm, or party that violated the rule

or is responsible for the violation.”) See also Fed. R. App.

P. 46(b)(1); 6 Cir. R. 46(c)(3).

Ann Marie Stinnett and The Stinnett Law Group,

PLC are thus ORDERED to pay $2,500 to this Court

within sixty (60) days of this order. See Fed. R. Civ. P.

11(c)(4). Ann Marie Stinnett is further hereby

SUSPENDED from the rolls of counsel of this Court for

a period of one year.

JOAN L. LARSEN, Circuit Judge, concurring

in part and dissenting in part. I concur in the

monetary sanctions pursuant to Federal Rule of Civil

Procedure 11 only.

19a

ENTERED BY ORDER

OF THE COURT

s/Deborah S. Hunt

Deborah S. Hunt, Clerk

Dated: September 24, 2021

20a

APPENDIX D

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF

AMERICA and the

STATE OF MICHIGAN, ex rel.

ASHWANI SHEORAN, RPh,

Plaintiff-Relator,

WAL-MART STORES EAST, LP, d/b/a

WALMART, a foreign corporation,

TOI WALKER, DOUG HENGER,

ALFRED RODRIGUEZ,

RICHARD LOCKARD, M.D.,

NAVEED MAHFOOZ, M.D., and

TAREK EZZEDDINE, M.D.,

Defendants.

JUDGMENT

Civil Case No.

13-10568

Hon. Linda V.

Parker

21a

Plaintiff-Relator Ashwani Sheoran, RPh

(“Relator”), on behalf of himself, the United States and

the State of Michigan, initiated this lawsuit on

February 11, 2013, by filing a qui tam complaint

under seal against Defendants Walmart, Toi Walker,

Doug Henger, and Alfred Rodriguez (collectively

“Walmart Defendants”), as well as Defendants

Richard Lockard, M.D., Naveed Mahfooz, M.D., and

Tarek Ezzeddine, M.D. (ECF No. 1.) On December 7,

2018, Relator filed his Second Amended Complaint

(“SAC”), alleging (i) presentation of false claims in

violation of the False Claims Act (“FCA”) (31 U.S.C. §

3729(a)(1)(A)), Fraud Enforcement Recovery Act of

2009 (“FERA”), and Michigan Medicaid False Claims

Act (“MMFCA”); (ii) a false record or statement

material to a false claim in violation of the FCA (31

U.S.C. § 3729(a)(1)(B)), FERA, and MMFCA; (iii)

conspiracy to defraud in violation of the FCA (31

U.S.C. § 3729(a)(1)(C)); and (iv) retaliation in violation

of the FCA (31 U.S.C. § 3730(h)). (ECF No. 57.) The

first two claims are against the Walmart Defendants.

(Id. at Pg. ID 589-92.) The third claim is against the

Walmart Defendants and Dr. Lockard. (Id.) The

fourth claim is against Walmart only. (Id.)

Dr. Lockard and the Walmart Defendants

subsequently filed motions to dismiss all counts

against them. (ECF Nos. 58, 61.) In an Opinion and

Order entered on August 20, 2019, the Court granted

both motions, dismissing Dr. Lockard and the

22a

Walmart Defendants from this suit with prejudice.1

(ECF No. 68.) On October 15, 2020, Relator filed a

Joint Motion to Dismiss Mahfooz and Ezzeddine

Under Rule 21. (ECF No. 78.) The Court granted the

motion, dismissing Drs. Naveed Mahfooz and Tarek

Ezzeddine from this suit without prejudice. (ECF No.

79.)

Accordingly,

IT IS ORDERED, ADJUDGED, AND DECREED

that Relator’s SAC is DISMISSED.

s/ Linda V. Parker

LINDA V. PARKER

U.S. DISTRICT JUDGE

Dated: October 19, 2020

1 The Court also noted that any dismissal of Relator’s SAC shall

be without prejudice as to the United States. (ECF No. 68 at Pg.

ID 814.)

23a

APPENDIX E

No. 20-2128

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ) Appeal from the

STATE OF MICHIGAN, ex rel.

) United States

Plaintiffs-Relators,

) District Court

ASHWANI SHEORAN, RPh

) for the Eastern

Plaintiff-Relator-Appellant,

) District of

) Michigan

) (Flint)

)

WAL-MART STORES

EAST, LP, dba Walmart,

a foreign corporation;

TOI WALKER;

DOUG HENGER;

ALFRED RODRIGUEZ;

RICHARD LOCKARD, M.D.

Defendants-Appellees.

) Case No.

) 4:13-cv-10568

)

) Hon. Linda. V.

) Parker

)

APPELLANT’S PETITION

FOR REHEARING EN BANC

Ann Marie Stinnett

The Stinnett Law Group, PLC

101 W. Big Beaver Rd., Suite 1400

Troy, Michigan 48084

248-687-1536

Attorney for Appellant

24a

INTRODUCTION

When can a party, who did not file an appeal,

get to choose the issues for the appeal? When does the

Sixth Circuit rule on issues brought by the wrong

party? Answer: When it is Walmart. Appellant

Sheoran did not address the noise introduced by

Walmart’s response brief. Sheoran’s two issues were

clear. This Court, on the other hand, not only

entertained Walmart’s noise but also addressed

Walmart’s issues at length while glossing over

Sheoran’s issues—the proper party to identify the

issues in this appeal.

This opioid whistleblower case has been

pending since 2013. It was brought by registered

pharmacist Ashwani Sheoran, a former Walmart

employee on behalf of the United States of America

and the State of Michigan. Since this case was filed,

laws have changed, counsel have come and gone, even

the Assistant U.S. Attorney assigned to this case, Ms.

Dodge, has retired. The Sixth Circuit itself has

evolved and now issues more unpublished opinions,

which sometimes contain confusing law, like the False

Claims Act and its various interpretations in the Sixth

Circuit.

As discussed below, the district court erred

when it decided not to have oral argument in this case.

Many facts that Sheoran identified on this issue were

not addressed or even acknowledged by this Court in

its opinion. Justice suffers when judges look the other

25a

way and ignore facts that harm their desired

conclusions.

When the district court and the appellate court

both refuse to address or even acknowledge the fact

that the district court confused milligrams with the

number of tablets in its analysis, there is no judicial

integrity. When the Sixth Circuit refuses to address or

even acknowledge the fact that the district court used

the wrong legal standard for a 12(b)(6) motion by

requiring evidence six (6) times, there is no judicial

integrity. When the Sixth Circuit rules that Sheoran’s

claims under the Michigan Medicaid False Claim Act,

MCL 400.601 et seq., which Walmart forgot to include

in its motion to dismiss, can now magically be

dismissed at the appellate level, there is no judicial

integrity—nor is there notice or an opportunity to be

heard—the bedrock of our judicial system.

The right thing to do in this case would be to

address the facts that have been ignored, rule that the

district court erred by not having oral argument

because it did, and remand this case to the district

court for oral argument and a determination of

Sheoran’s state law claims. At that time, any

procedural pleading concerns can be addressed based

upon the proper law.

Judicial integrity demands accountability by its

very nature. The district court should be held

accountable for the numerous mistakes it made by

issuing error-filled opinions without a hearing.

26a

Accountability also includes correcting errors that are

brought to the court’s attention. In this case, the

district court waited over a year before ruling on

Sheoran’s motion for reconsideration. The resulting

second opinion conveniently ignores the mistakes in

its first opinion, introduces new errors, and thwarts

accountability of any kind. How is that justice?

Correcting errors—not covering them up—restores

justice to the affected party while removing bad law

from the pool of federal case law.

What is worse than a court that does not

address or correct its own mistakes? A higher court

that tries to cover them up. When judicial integrity is

compromised, it opens up all possibilities as to the

reasons why. Federal court judges are appointed for

life to avoid the perception of improper influence.

Then why did the federal judges in this case ignore so

many facts that support Sheoran? Did Walmart pay

off the Attorney General or the judges? Is Walmart

threatening them or their families? Is there a political

motive? A self-serving motive? Are federal courts

biased against foreign-born citizens? Was Walmart

clairvoyant when it hired Justice McKeague’s former

law clerk, now an attorney at a prominent law firm,

before anyone publicly knew that Justice McKeague

would write this Court’s opinion? Are the federal

courts working with the Attorney General to bring its

own case against Walmart under the Controlled

Substances Act to prevent Sheoran from sharing in

the proceeds?1 None of these may be true, and the

27a

hope is that none of them are true, but compromising

judicial integrity leaves the door open for these

conclusions.

Unfortunately, this case has turned into a case

study for law students to learn how the Sixth Circuit

ignored facts to subvert justice when the subject

matter is opioid abuse, the defendant is Walmart, and

the year is 2021.

Opioid abuse is at the highest level it has ever

been in this country, according to the U.S. Centers for

Disease Control and Prevention.2 If the federal courts

are going to foreclose a first line of defense—the

pharmacist—from bringing opioid abuse cases under

the False Claims Act,3 then they should do so on the

merits with judicial integrity.

1 See the nationwide lawsuit that contains similar accusations of

pharmacist-driven opioid concerns against Walmart in United

States of America v. Walmart, Case No. l:20-cv-01744-CFC, filed

on December 22, 2020 in the District of Delaware.

2 Opioids are behind about % of the overdose cases currently.

Opioids Rip Through U.S. Workforce, With Deaths at Record

Levels, Katia Dmitrieva and Reade Pickert, Bloomberg News,

June 17, 2021.

3 Walmart acknowledges that False Claims Act violations exist

in the opioid industry and is trying to seek nationwide

declaratory relief from “alleged violations of the CSA [Controlled

Substances Act] and the False Claims Act,” which would most

likely include this case. Walmart v. US. Dept, of

28a

Anything less compromises the very judicial system

that judges, attorneys, and other legal professionals

strive to uphold.

II. STATEMENT PURSUANT

TO FED, R. APP. P. 35(b)(1)

The panel decision conflicts with a decision of

the United States Supreme Court and consideration

by the full court is therefore necessary to secure and

maintain uniformity of the court’s decisions. Namely,

the panel dismissed a state law claim without due

process of law as described in Section III(B) of this

petition.

III. ARGUMENT

The District Court Abused Its Discretion

By Deciding Not To Have Oral Argument.

Sections II and III of the Appellant’s Brief

detail numerous mistakes of fact and law from the

district court’s opinions. This Court did not address

any of these mistakes of fact and law in its analysis of

this issue. Justice requires that these facts are

addressed before this Court rules that the district

court did not abuse its discretion when it decided not

to have oral argument.

3 Cont... Justice, et al., Case No. 4:20-cv-00817, Complaint for

Declaratory Relief, Document 1, p. 52,174, filed on October 22,

2020. The Eastern District of Texas denied Walmart’s request for

declaratory judgment, and Walmart is appealing the decision to

the Fifth Circuit.

29a

An abuse of discretion requires just one of the

four events below. In reality, more than one of these

events occurred in this case.

An abuse of discretion occurs if the

district court relies on clearly erroneous

findings of fact, applies the wrong legal

standard, misapplies the correct legal

standard when reaching a conclusion, or

makes a clear error of judgment.

In re Whirlpool Corp. Front-Loading Washer Prods.

Liability Litig., 678 F.3d 409, 416 (6th Cir. 2012).

The District Court Relied Upon

Clearly Erroneous Findings of Fact.

Sections 11(B) and 11(C) of the Appellant’s Brief

address the district court’s mistake when it confused

the number of milligrams with the number of tablets

in its analysis. Corrected Appellant Brief, R. 21, Page

ID ## 12-14. This resulted in an incorrect conclusion

that there were no over prescriptions in this case,

which permeated the court’s opinion. As explained in

the Appellant’s Brief, the facts show that over

prescriptions did occur but for the district court’s mixup of milligrams vs. the number of tablets.

Unfortunately, this opinion is still good law in the

Eastern District of Michigan when it is clearly

erroneous. Neither this Court nor the district court

addressed this factual mix-up in any of their opinions.

This factual issue needs to be addressed by this Court

30a

before concluding that no abuse of discretion occurred.

In re Whirlpool Corp., 678 F.3d 409, 416.

The District Court Used the

Wrong Legal Standard By

Confusing Summary Judgment

Law with Rule 12(b)(6) Law.

Section 11(G) of the Appellant’s Brief discusses

the district court’s mistake by requiring evidence for

a Rule 12(b)(6) motion. Corrected Appellant Brief, R.

21, Page ID ## 19-20. Neither this Court nor the

district court addressed this factual issue in any of

their opinions. As explained in the Appellant’s Brief,

the district court asked for “evidence,” “evidentiary

support,” or “evidence to support” six (6) times

throughout its opinion. Sheoran even responded with

an affidavit from another pharmacist to satisfy the

Court’s improper evidence requirements. The district

court used an incorrect and more stringent legal

standard in this case, and that mistake permeated the

court’s opinion. Unfortunately, this opinion is still

good law in the Eastern District of Michigan, citable

by other cases, but blatantly incorrect.

In this case, the district court did not apply the

correct legal standard for a 12(b)(6) motion. This court

ignored this fact in its opinion by not addressing it at

all. This fact should be considered in this Court’s

analysis as to whether the district court abused its

discretion by not hearing oral argument. In re

Whirlpool Corp., 678 F.3d 409, 416.

31a

The District Court and This Court

Used the Wrong Legal Standard

by Relying on Sheldon.

Section 11(E) of the Appellant’s Brief discusses

the district court’s mistake by relying on United States

ex rel. Sheldon v. Kettering Health Network, 816 F. 3d

399 (6th Cir. 2016) for the elements of an FCA claim.

Corrected Appellant Brief, R. 21, Page ID ## 10-12.

Sheldon is the wrong legal standard to use in this case

for two reasons.

First, Sheldon was decided three (3) years after

this complaint was filed. A plaintiff cannot be

expected to plead the elements of a claim based on a

future case that occurs three (3) years after the

plaintiff filed its case. Sheldon was decided in 2016.

This case was filed in 2013. For this reason, both the

district court and this Court used the wrong legal

standard in this case to define the elements of an FCA

claim. This fact is one of the four reasons for this Court

to conclude that an abuse of discretion occurred when

the district court decided not to have oral argument.

In re Whirlpool Corp., 678 F.3d 409, 416.

The second reason that Sheldon is the wrong

legal standard is because it only represents one of the

two prongs for an FCA claim. An FCA violation can be

a false or fraudulent claim under 31 U.S.C. §

3729(a)(1)(A) or a false record or statement under 31

U.S.C. § 3729(a)(1)(B). Sheldon lays out the elements

of an FCA claim, but it does not clearly indicate which

32a

prong it is for—(a)(1)(A) false claim or (a)(1)(B) false

record or statement. The district court and this Court

wrongly assumed that Sheldon applies to both prongs.

It does not.

Sheldon relies upon U.S. ex rel. SNAPP, Inc. v.

Ford Motor Co., 618 F.3d 505, 509 (6th Cir.2010)

(“SNAPP II”).for the elements of an FCA claim. SNAP

II defined the elements of an FCA claim as it relates

to today’s version of 31 U.S.C. § 3729(a)(1)(B). It does

not define the elements of an FCA claim under 31

U.S.C. § 3729(a)(1)(A).

Sheoran sued under both prongs. Relying on

Sheldon to dismiss all of Sheoran’s claims is error

because Sheldon does not list the elements for a false

claim under 31 U.S.C. § (a)(1)(A). For these reasons,

the district court and this Court used the wrong legal

standard to deny Sheoran’s FCA claims. Using the

wrong legal standard is one of the four reasons to find

an abuse of discretion for not having a hearing before

issuing a ruling. In re Whirlpool Corp., 678 F.3d 409,

416.

The District Court Misapplied the

Correct Legal Standard By Not

Considering Facts Argued by

Sheoran for His Retaliation Claim.

Section 11(F) of the Appellant’s Brief addresses

the district court’s analysis of Sheoran’s retaliation

claim. Corrected Appellant Brief, R. 21, Page ID## 1719. Both the district court and this Court are correct

33a

in holding that Yuhasz v. Brush Wellman, Inc., 341

F.3d 559 (6th Cir. 2003) is the controlling law to

determine when an FCA retaliation claim exists. Both

courts, however, reached the wrong conclusion in

applying Yuhasz because they did not consider all the

facts offered by Sheoran in his Appellant’s Brief.

Briefly, both courts ignored the following:

Both Courts did not address the fact

that Sheoran told his supervisor and

upper management personnel to contact

the Drug Enforcement Agency about

Walmart

filling

illegal

narcotics

prescriptions.

Both Courts did not address the fact

that Sheoran contacted the Taylor Police

Department and filed a police report for

Walmart’s illegal narcotics prescriptions

then notified his supervisor of the police

report.

Lastly, although this was not included

in the Appellant’s Brief, this Court made

a factual finding—without a hearing—

that included the word “stealing.”

“After a meeting where Sheoran was reprimanded for

stealing the Medical Expenses Summary (later

attached to his complaint) ... he was fired.”

Opinion, p. 2.

34a

Such an accusation never appeared in the

district court record. If this Court chooses to make

these crude accusations against Sheoran, without a

hearing, then this Court can include this accusation

in its analysis of whether Walmart was put on notice

that Sheoran would file an FCA claim. In other words,

because this Court held that Walmart was concerned

that Sheoran was taking documents to support an

FCA claim, then Walmart was put on notice that

Sheoran would be filing an FCA claim under Yuhasz.

For these reasons, the district court and this

Court misapplied Yuhasz by failing to address all the

facts set forth by Sheoran in this fact-driven analysis.

Once this Court considers all the facts together, then

this Court can make a valid determination as to

whether Walmart was put on notice under Yuhasz. At

a minimum, this Court needs to address the facts in

(a), (b), and (c) above in order to make a fair decision.

For these reasons, the district court and this Court

misapplied the correct legal standard, which is a basis

for this Court to find an abuse of discretion for not

having oral argument. In re Whirlpool Corp., 678 F.3d

409, 416.

The District Court Made a

Clear Error of Judgment by Making

Factual Findings About Sheoran’s

Knowledge Without a Hearing.

Section 11(H) of the Appellant’s Brief discusses

the district court’s clear error of judgment when

35a

making conclusions about Sheoran’s knowledge.

Corrected Appellant Brief, R. 21, Page ID ## 20-23.

Again, neither this Court nor the district court

addressed this factual issue in any of their opinions.

The district court apparently used its own

judgment for the benefit of Walmart when it made

three (3) incorrect factual determinations about

Sheoran’s knowledge, without a hearing, as described

in the Appellant’s Brief. These three (3) factual

determinations were ignored in this Court’s opinion.

As a registered pharmacist, Sheoran must take

continuing education classes every two (2) years in

Michigan. Continuing education includes identifying

when narcotics are being overprescribed. Pharmacists

are trained to identify the illegal diversion of narcotics

and are the first line of defense against the opioid

crisis as a gatekeeper for the public’s safety.

Pharmacists cannot fill prescriptions they believe

were written for illegal purposes. In addition, Sheoran

is a licensed pharmacist in ten (10) states, unlike most

pharmacists, and took a separate examination for all

ten (10) states. Each examination required him to

identify when narcotics are being overprescribed. A

pharmacist can get into trouble with the police, the

Drug Enforcement Agency, and/or the State Board of

Pharmacy if he or she filled prescriptions that they

were trained to know are illegal. Thus, the district

court made a clear error of judgment when it ruled

that Sheoran does not know when narcotics are being

36a

overprescribed. Further, the district court made this

factual determination without a hearing.

In addition, the district court used its own

judgment for the benefit of Walmart when it ruled

that Sheoran cannot possibly know how billing works

for Medicare and Medicaid. This is another

impermissible finding of fact without a hearing. As a

pharmacist, Sheoran’s pharmaceutical responsibility

is to make sure patients pay by Medicare or Medicaid,

if eligible, before releasing medication to them.

Further, unlike most pharmacists, Sheoran was a

Pharmacy Manager at two locations and even owned

a pharmacy. He has knowledge about billing Medicare

and Medicaid from all his experiences. Thus, the

district court made a clear error of judgment by ruling

that Sheoran did not have the knowledge to know

when Medicare or Medicaid was being used or when

patients are being overprescribed. These facts are

clear errors of judgment, which is a basis for this

Court to find an abuse of discretion for not having a

hearing. In re Whirlpool Corp., 678 F.3d 409, 416.

Further, Walmart has the data for the

individual in the Medical Expenses Summary.

Walmart never argued that Medicare or Medicaid was

not being used. Rule 9(b) should not be read to

“reintroduce formalities to pleading... A complaint

sufficiently pleads the time, place, and content of the

alleged misrepresentation so long as it ensures that

the defendant possesses sufficient information to

37a

respond to an allegation of fraud.” Sheldon, 816 F. 3d

399, 408 citations and quotations omitted.

This Court Wrongfully Denied

Sheoran’s State Law Claims.

The most egregious action by this Court is to

choose carefully parsed words to describe what

occurred when Walmart forgot to include the

Michigan Medicaid False Claim Act (hereinafter,

“MMFCA”) in its motion to dismiss. See Walmart’s

Motion to Dismiss the Second Amended Complaint, R.

61, Page ID ## 704-734.

The parties never briefed Sheoran’s MMFCA

claims because they were never brought up. This

Court affirmed the judgment against Sheoran on his

MMFCA claims when he was not provided any notice

or an opportunity to be heard.

Notice and an opportunity to be heard have

been the bedrock principles of our judicial system for

over a hundred years.

“The fundamental requisite of due

process of law is the opportunity to be

heard.” Grannis v. Ordean, 234 U. S.

385, 394 (1914). The hearing must be “at

a meaningful time and in a meaningful

manner.” Armstrong v. Manzo, 380 U. S.

545, 552 (1965). In the present context

these principles require that a recipient

have timely and adequate notice

38a

detailing the reasons for a proposed

termination,

and

effective

opportunity to defend by confronting any

adverse witnesses and by presenting his

own arguments and evidence orally.

Goldberg v. Kelly, et ah, 397 U.S. 254, pp. 267-268

(1970).

This Court’s treatment of this issue, which

protects Walmart, is alarming. It is the main reason

that Sheoran decided to file this motion for

reconsideration en banc.

Further, the one case relied upon by this Court

to deny Sheoran his due process rights actually did

provide notice and an opportunity to be heard. The

second issue in that motion to dismiss was for

MMFCA claims. Walmart’s motion to dismiss did not

include MMFCA claims at all.

For these reasons, this Court should remand

this case to the district court for a proper

determination of Sheoran’s MMFCA claims.

39a

IV.

CONCLUSION

For all these reasons, the district court abused

its discretion when it decided not to have oral

argument before issuing its opinions. In re Whirlpool

Corp., 678 F.3d 409, 416. Judicial integrity requires

that this Court address all the relevant facts

identified above in order to reach a just result and

treat Sheoran fairly.

By ignoring the facts favorable to Sheoran, this

Court fails to hold the district court accountable for its

mistakes, jeopardizes judicial integrity, muddies the

body of law other courts rely upon, and rubber stamps

improper judicial behavior.

Sheoran asks this Court to vacate the judgment

and all the opinions in this case and remand this case

to the district court for a hearing on the Rule 12(b)(6)

motions and for a proper determination of Sheoran’s

state law claims.

Respectfully submitted,

Isl Ann Marie Stinnett

Ann Marie Stinnett

The Stinnett Law Group, PLC

101 W. Big Beaver Rd., Ste. 1400

Troy, Michigan 48084

Phone: 248-687-1536

Attorney for Appellant

Dated: June 21, 2021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.