Amicus Curiae Brief — Ron K. Elfenbein, Petitioner v. United States

No. 25-574

IN THE

Supreme Court of the United States

————

RON ELFENBEIN,

Petitioner,

v.

UNITED STATES,

Respondent.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

————

BRIEF OF AMICI CURIAE

EAGLE FORUM EDUCATION &

LEGAL DEFENSE FUND AND ASSOCIATION

OF AMERICAN PHYSICIANS AND SURGEONS

IN SUPPORT OF PETITIONER

————

ANDREW L. SCHLAFLY

939 Old Chester Road

Far Hills, NJ 07931

(908) 719-8608

aschlafly@aol.com

Counsel for Amici Curiae

December 9, 2025

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

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TABLE OF CONTENTS

Pages

Table of Contents ......................................................... ii

Table of Authorities .................................................... iii

Interests of Amici Curiae ............................................ 1

Summary of Argument ................................................ 2

Argument ..................................................................... 4

I. The Unchecked Conversion of a Mere Civil

Dispute into a Federal Prosecution Is

Particularly Unjustified Where, as Here, the

Defendant Reasonably Interpreted Ambiguous

Rules ...................................................................... 4

II. This Court’s Precedents in Ruan v. United

States and Wooden v. United States Support

Granting Cert ........................................................ 7

III. This Case Presents an Ideal Vehicle for

Reining in the Overuse of Federal

Prosecutorial Power .............................................. 9

Conclusion .................................................................. 11

iii

TABLE OF AUTHORITIES

Pages

Cases

Ass’n of Am. Physicians & Surgs. v. Clinton,

997 F.2d 898 (D.C. Cir. 1993) ................................1

Ass’n of Am. Physicians & Surgs. v. Mathews,

423 U.S. 975 (1975) ................................................1

Ass’n of Am. Physicians & Surgs. v. Tex. Med.

Bd., 627 F.3d 547 (5th Cir. 2010) ..........................1

Gonzales v. Oregon, 546 U. S. 243 (2006) ...................8

In re African-American Slave Descendants'

Litig., 272 F. Supp. 2d 755 (N.D. Ill. 2003) ...........6

Martin v. Ohio, 480 U. S. 228 (1987) ..........................8

Ruan v. United States,

597 U.S. 450 (2022) ......................... ii, 1, 7, 8, 9, 10

Smith v. United States, 568 U.S. 106 (2013) ..............8

The Adventure, 1 F. Cas. 202,

F. Cas. No. 93 (No. 93) (CC Va. 1812) ............... 7-8

United States v. Elfenbein,

144 F.4th 551 (4th Cir. 2025) .................................6

United States v. Jordan,

316 F.3d 1215 (11th Cir. 2003) ............................. 4

Wooden v. United States,

595 U.S. 360 (2022) ............................. ii, 7, 8, 9, 10

Statute

28 U.S.C. § 652(a) ....................................................... 6

Other Authorities

S.S. Beale, “Too many and yet too few: New

principles to define the proper limits of

federal criminal jurisdiction.” 46 Hastings

Law Journal 979 (1995) ................................... 9-10

iv

Neil Gorsuch and Janie Nitze, Over Ruled: The

Human Toll of Too Much Law (2024) ................... 5

Liz Komar, “Over-Federalization: Federal

Intrusion Into State Criminal Law,” The

Sentencing Project 4 (Oct. 1, 2025)

https://www.sentencingproject.org/policybrief/over-federalization-federal-intrusioninto-state-criminal-law/#footnote-43 .............. 9, 10

Oral argument Transcript in Trump v.

United States, Sup. Ct. No. 23-939 ....................... 4

“The 2025 Physician Workforce Crisis: An

International Perspective,” Dynamic Health

Staff (June 2, 2025)

https://dynamichealthstaff.com/blog/the-2025physician-workforce-crisis-an-internationalperspective/ ............................................................ 2

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INTERESTS OF AMICI CURIAE1

Amicus Eagle Forum Education & Legal Defense

Fund (“Eagle Forum ELDF”) was founded in 1981 by

Phyllis Schlafly. Eagle Forum ELDF has long opposed

overreach by the federal government, including

misuse of federal prosecutorial power for allegations

that could and should be handled in less costly and

oppressive ways.

Amicus Association of American Physicians and

Surgeons (“AAPS”) is a national association of

physicians, founded in 1943. AAPS is dedicated to

protecting the patient-physician relationship, and has

been a litigant in this Court and in other appellate

courts. See, e.g., Ass’n of Am. Physicians & Surgs. v.

Mathews, 423 U.S. 975 (1975); Ass’n of Am. Physicians

& Surgs. v. Tex. Med. Bd., 627 F.3d 547 (5th Cir. 2010);

Ass’n of Am. Physicians & Surgs. v. Clinton, 997 F.2d

898 (D.C. Cir. 1993). AAPS has repeatedly objected to

prosecutorial overreach in the past, as when its amicus

brief successfully urged reversal in connection with

the conviction of another physician. See Ruan v.

United States, 597 U.S. 450, 467 (2022).

Amici thereby have strong interests in this Petition

for a Writ of Certiorari to advocate against federal

1 Amici file this brief after providing the requisite ten days’

advance written notice to counsel for all the parties.

Pursuant to Rule 37.6, counsel for amici curiae authored

this brief in whole, no counsel for a party authored this brief

in whole or in part, and no such counsel or a party made a

monetary contribution intended to fund the preparation or

submission of this brief. No person or entity – other than

amici, their members, and their counsel – contributed

monetarily to the preparation or submission of this brief.

2

prosecutions when reasonable minds can differ as to

the interpretation of a requirement and a civil remedy

is readily available to the government for the dispute.

SUMMARY OF ARGUMENT

This misguided prosecution of Dr. Elfenbein

exemplifies the misuse of federal power, and presents

an ideal vehicle for reining in the federal overreach.

This is a mere billing dispute concerning the use of

ambiguous codes that permit leeway in their

interpretation and use. This coding system is owned

by a private entity, the American Medical Association

(AMA), which filed an amicus brief in the Fourth

Circuit

explaining

that

the

government’s

interpretation of its codes does not justify this criminal

prosecution. The district judge correctly found no

criminality here.

It is overreach in federal power to prosecute

someone over a mere billing dispute where, as here,

there is no dispute that underlying services were

provided. If services were never rendered, then that

would be criminal fraud actionable under federal law.

But the services were rendered. Government has in

other situations declined to pay physicians’ bills or has

“clawed back” amounts that were retroactively

considered to have been overpaid. The U.S. faces a

crisis

shortage

of

physicians,2 and

criminal

prosecution is not appropriate in disputes about levels

of coding and reimbursement. Where the government

2 See, e.g., “The 2025 Physician Workforce Crisis: An

International Perspective,” Dynamic Health Staff (June 2,

2025) https://dynamichealthstaff.com/blog/the-2025physician-workforce-crisis-an-international-perspective/

(viewed Dec. 8, 2025).

3

has entered medical care as a participant, as it does

with the Medicare program, government should

handle its disagreements about billing as private

companies do, without abusing federal power by

prosecuting those with whom it disagrees. Dr.

Elfenbein saved money for the Medicare program in

keeping his patients out of hospitals during Covid by

treating them early, and should not be prosecuted for

doing so.

The federal government is increasingly resorting to

prosecutorial power to assert control as its own fiscal

integrity spirals downward. A pattern of unjustified

prosecutions followed by presidential pardons has

become commonplace. Many good physicians fear

becoming the next target of an overzealous federal

prosecution, not for any wrongdoing but for a different

interpretation of regulations that can be reasonably

construed in different ways. This climate of

overzealous prosecution, which creates the need for

nearly weekly pardons, undermines public confidence

in federal institutions and distracts physicians from

focusing on their jobs.

The Petition here presents an ideal vehicle for this

Court to rein in federal prosecutions that should be

handled as civil matters. These prosecutions lack a

constitutional basis or any other justification. It is this

Court that has the supervisory duty to curb

prosecutorial power. Certiorari should be granted to

establish a much-needed precedent that civil disputes

such as this should not be prosecuted as federal

crimes, just as the district judge found a lack of

criminality after the trial below.

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ARGUMENT

I. The Unchecked Conversion of a Mere Civil

Dispute into a Federal Prosecution Is

Particularly Unjustified Where, as Here, the

Defendant

Reasonably

Interpreted

Ambiguous Rules.

Our constitutional system is one of carefully crafted

checks and balances. But federal prosecutions

currently have no real limit. As Chief Justice Roberts

commented during oral argument in a federal

prosecution of our future President, “Now you know

how easy it is in many cases for a prosecutor to get a

grand jury to bring an indictment, and reliance on the

faith – good faith of the prosecutor may not be enough

in … some cases.” (Trump v. United States, Sup. Ct.

No. 23-939, Tr. 74:22-75:1)3

After presiding over a full trial with the benefit of

viewing the testimony first-hand, the district judge

below concluded that the evidence did not support a

federal criminal conviction. There should be more

decisions like this in district court, and they should not

be so frequently reversed on appeal. Yet the Fourth

Circuit’s reversal of the trial court’s dismissal is alltoo-common, perhaps because of a tendency for federal

appellate courts to give federal prosecutors the benefit

of every doubt. The Eleventh Circuit typically reverses

dismissals by trial courts of federal prosecutions. See,

e.g., United States v. Jordan, 316 F.3d 1215 (11th Cir.

2003). The Petition here should be granted to clarify

3

https://www.supremecourt.gov/oral_arguments/argument_

transcripts/2023/23-939_3fb4.pdf (viewed Dec. 6, 2025).

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important checks and limits on federal prosecutorial

power.

Restraints on federal prosecution are necessary to

rein in unfettered federal prosecutions of disputes that

should be handled in more reasonable ways. See Neil

Gorsuch and Janie Nitze, Over Ruled: The Human Toll

of Too Much Law (2024). The toll on defendants of

these prosecutions is severe, as lamented in that book,

and there is also a toll on the federal government. The

overzealous prosecutions have created a childlike

game of political ping-pong, necessitating numerous

pardons for the victims of federal criminal charges

that never should have been asserted in the first place,

as in this case.

The developer and owner of the coding procedures

at issue here, the American Medical Association

(AMA), urged the Fourth Circuit to recognize that

there was no crime in how Dr. Elfenbein used the

AMA’s codes. That should negate any assertion of

criminality by the federal government in Dr.

Elfenbein’s billing. The government would remain free

to pursue recovery as a civil matter, but this is plainly

not a provable criminal case given that the AMA itself,

as the expert on its codes used here, declared in its

amicus brief in the Fourth Circuit that the conduct at

issue should not be considered criminal.

Congress does not want federal courts clogged with

cases that should not be there. Congress has, for

example, required courts to shift their caseload to

alternative dispute resolution methods that are more

efficient and productive than full-blown trials, not to

mention a second trial sought by the government in

this case. “Congress enacted the ADR Act to promote

the use of alternative dispute resolution methods in

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the federal courts. The ADR Act specifically promotes

the use of mediation, early neutral evaluation, minitrials and arbitration.” In re African-American Slave

Descendants' Litig., 272 F. Supp. 2d 755, 758-59 (N.D.

Ill. 2003) (citing 28 U.S.C. § 652(a)).

The government lacks any inherent expertise over

the meaning of the privately developed and managed

coding system, the Current Procedural Terminology

(CPT), which is at issue here. As the Fourth Circuit

recounted but failed to recognize as dispositive:

The government relied on an expert witness,

Stephen Quindoza, who explained the CPT code

system to the jury. Quindoza also opined that levelfour codes were generally too high for the quick and

easy task of testing someone for COVID-19. But

Quindoza did not specifically testify that

Elfenbein’s coding was improper, and he admitted

on cross-examination that he was unfamiliar with

the latest, pandemic-era coding rules.

United States v. Elfenbein, 144 F.4th 551, 558 (4th Cir.

2025).

There is no valid criminal case here, in light of the

above testimony by the government’s own expert.

Instead, this is a garden-variety civil dispute over

billing and payment, unsuitable for criminal

prosecution. The government has available to it an

efficient way of resolving this dispute, by litigating

this matter as private parties do. The government can

also audit the physician under the Medicare program

and withhold future payments from him. The

government can exclude the physician entirely from

the Medicare program, and administrative procedures

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are available to both sides for appealing any such

decision.

II. This Court’s Precedents in Ruan v. United

States and Wooden v. United States Support

Granting Cert.

In reversing the case of Dr. Xiulu Ruan, this Court

highlighted the problem of ambiguous regulatory

language in criminal prosecutions. Yet alleged crimes

continue to be prosecuted based on mere

interpretations of federal regulations which are at

odds with how others, including Dr. Elfenbein and the

AMA, reasonably construe unclear or ambiguous

requirements. These cases should be handled by the

government in administrative proceedings or civil, not

criminal, litigation.

In Wooden v. United States, this Court reversed 90 an interpretation by the Sixth Circuit of a federal

gun control law that had resulted in locking up a nonviolent defendant for a minimum of 15 years in prison.

595 U.S. 360 (2022). That case illustrated how

overzealous federal prosecutions have become, as

upheld by courts of appeals; the threshold test of three

separate felonies for sentencing under Armed Career

Criminal Act was found to be satisfied by someone who

merely burglarized ten storage units on the same

night. Years later, Wooden granted an officer’s request

to enter his home because it was cold outside, and

Wooden was then arrested when the officer observed

firearms in his home as a felon. Id. at 364.

In a portion of his concurrence joined by Justice

Sotomayor, Justice Gorsuch explained that “penal

laws should be construed strictly.’” Id. at 388

(Gorsuch, J., concurring) (quoting The Adventure, 1 F.

8

Cas. 202, 204, F. Cas. No. 93 (No. 93) (CC Va. 1812)

(Marshall, C.J.)) “Because reasonable minds could

differ (as they have differed) on the question whether

Mr. Wooden’s crimes took place on one occasion or

many, the rule of lenity demands a judgment in his

favor.” 595 U.S. at 388 (Gorsuch, J., concurring).

Likewise here. Dr. Elfenbein’s interpretation of the

CPT codes and application of them to his services may

be subject to disagreement by the government, but is

not properly subject to prosecution. As a matter of law,

Dr. Elfenbein lacked fair notice that he would be

prosecuted for this. “[T]he regulatory language

defining an authorized prescription is, we have said,

‘ambiguous,’ written in ‘generalit[ies], susceptible to

more precise definition and open to varying

constructions.’” Ruan, 597 U.S. at 459 (quoting

Gonzales v. Oregon, 546 U.S. 243, 258 (2006)).

In Ruan v. United States, this Court reversed and

remanded due to concerns over a lack of proof of an

element of the charges against a physician, and that

burden of proof cannot be shifted to a physician such

as Dr. Elfenbein to require him to prove his innocence.

“[G]overnments are ‘foreclosed from shifting the

burden of proof to the defendant … when an

affirmative defense ... negates an element of the

crime.’” Id. at 477 (Alito and Thomas, JJ., concurring,

quoting Smith v. United States, 568 U.S. 106, 110

(2013), and Martin v. Ohio, 480 U. S. 228, 237 (1987),

Powell, J., dissenting, cleaned up).

There was a full trial below, and Dr. Elfenbein

testified candidly in his defense. The presiding trial

judge properly concluded that the government failed to

prove its case, as was its burden, and ordered the

dismissal of this prosecution (and, in the alternative if

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reversed, a new trial). The Fourth Circuit’s

interference with that ruling should be reversed here.

III. This Case Presents an Ideal Vehicle for

Reining in the Overuse of Federal

Prosecutorial Power.

This case is an ideal vehicle for trimming back the

overuse of federal prosecutorial power, because there

is a clean trial record and thoughtful opinions by the

district and appellate courts that frame the issue

perfectly. Moreover, the agreement between the

Fourth Circuit and district court that the jury verdict

should be overturned begs the question of whether a

retrial is appropriate. It plainly is not, due to generally

applicable principles that this Court could clarify by

granting the Petition here.

The reversals by this Court in Wooden and Ruan,

as discussed above, lacked a generally beneficial

impact because of the relatively uncommon facts

presented in those cases. The manifest injustice in the

sentence initially imposed in the Wooden case is

common in many ongoing prosecutions in federal

courts today, but the unusual facts in Wooden lacked

the generality needed for its holding to help curb this

problem.

One attorney properly decries “the tendency of

federal sentences to be longer and carry higher

mandatory minimums than their state counterparts”

such that “over-federalization can lengthen sentences

and increase incarceration.” Liz Komar, “OverFederalization: Federal Intrusion Into State Criminal

Law,” The Sentencing Project 4 (Oct. 1, 2025) (citing

S.S. Beale, “Too many and yet too few: New principles

to define the proper limits of federal criminal

10

jurisdiction.” 46 Hastings Law Journal, 979, 998-99

(1995)).4 Ms. Kumar, as Sentencing Reform Counsel,

added, “Over-federalization increases the lengths of

sentences as well as the population of federal prisons.”

Id.

The Petition presents an issue of general

applicability better than in the Wooden and Ruan

cases, which makes this an ideal vehicle for the Court

to clarify the guiding principles that sparked separate

opinions in those prior decisions.

Here the government misuses prosecutorial power

to enforce its view of a billing dispute for which it was

one of the parties. Private entities cannot engage in

collection by criminal prosecution from those with

whom they disagree on a mere billing matter, and this

Court can delineate in this case when a matter should

be brought by the government as a civil lawsuit rather

than a criminal one.

Where the government enters a market as a

participant, as it has in funding medical care for senior

citizens under Medicare, there are inevitable

disagreements that will arise as to the complexity and

reimbursement levels for services. Rarely is there

sufficient evidence to establish all the elements of

criminality, and the invocation of the immense

machinery of federal prosecutorial power is especially

inappropriate when the government’s own expert is

unsure. Due process and the rule of lenity should

safeguard the innocent, including Dr. Elfenbein.

4 https://www.sentencingproject.org/policy-brief/over-

federalization-federal-intrusion-into-state-criminallaw/#footnote-43 (viewed Dec. 6, 2025).

11

Other situations could present harder cases if the

government lacks an alternative remedy for its

grievances. Here, as explained above, multiple

satisfactory means of recovery are available to the

government to pursue rather than resorting to the

blunt, costly instrument of federal prosecutorial

power.

CONCLUSION

For the foregoing reasons and those stated in the

Petition, the Court should grant the requested Writ of

Certiorari.

Respectfully submitted,

ANDREW L. SCHLAFLY

939 OLD CHESTER ROAD

FAR HILLS, NJ 07931

(908) 719-8608

aschlafly@aol.com

Counsel for Amici Curiae

Dated: December 9, 2025