Woo-hoo! The Ninth Circuit has published nothing for nearly a week. Nothing last Friday. Nothing on Monday and Tuesday. A brief order yesterday that simply took a case en banc. (To Judge Kozinski's likely chagrin.)
It's been slim pickings.
But today, there's finally a published opinion. And even a dissent!
Only one opinion, mind you. But one is better than none. (At least in this context.)
It's a fairly straightforward case. Perhaps a difficult one, to be sure: there's even a circuit split on the issue. But straightforward nonetheless.
Here's Judge Murguia's perspective:
"Patrick Sogbein ran a conspiracy to defraud Medicare by
providing power wheelchairs to people who did not need
them. Sogbein’s wife, Adebola Adebimpe, participated in the
conspiracy by supplying many of the wheelchairs through a
medical equipment company that she owned. Sogbein and
Adebimpe challenge the district court’s application of a twolevel
upward adjustment under section 3B1.3 of the
Sentencing Guidelines, after finding the defendants abused a
position of trust with respect to Medicare. We hold that
medical equipment suppliers can have the requisite 'professional or managerial discretion' for the abuse-of-trust
adjustment to apply, if they are responsible for determining
the need for the equipment they provide and personally
certify the validity of their claims to Medicare."
By contrast, here's Judge Paez's take:
"In my view, DME suppliers do not
exercise substantial professional or managerial discretion
within Medicare’s reimbursement scheme because
Medicare’s rules and regulations confine them to a ministerial
role and leave all critical determinations of medical need to
the beneficiary’s physician."
Judge Murguia gets Judge Hurwitz's vote, so her take is now the law of the Ninth Circuit.
Some published law. An innovation. At least for the Ninth Circuit during the past week.