Thursday, February 04, 2010

Haight v. Catholic Healthcare West (9th Cir. - Feb. 4, 2010)

Sometimes being smart is a bad thing.

Here, for example, Oakland attorney Jeremy Friedman files a potentially lucrative qui tam suit against Catholic Heathcare West, alleging that a big federal grant that scientist Michael Berens got from the NIH to study brain cancer in beagles was based upon false statements. Friedman litigates the case for many years, including a successful appeal before the Ninth Circuit that gets the case remanded back down, only to see summary judgment granted against his client.

So Friedman appeals, and files his notice of appeal 51 days after the trial court granted summary judgment. Which seems fine to Friedman, since although the usual rule is 30 days, because qui tam cases are technically filed on behalf of the government, there's a Ninth Circuit case on point that says the 60-day rule applies, even if the government declines to intervene.

Which was, indeed, the law. And Friedman knew it.

But here's the catch. After the appeal was filed, the Supreme Court decided a case that held that the Ninth Circuit was wrong, and that the 30-day rule applies, not the 60-day rule. Which then makes Friedman's appeal untimely. Plus, the Supreme Court declined to make its holding only apply prospectively, saying that this was always the law.

Which totally hoses Friedman. He then makes a million arguments to the Ninth Circuit about how he reasonably relied on the Ninth Circuit's express holding, and how the court should thus allow him to make various procedural moves to save his appeal, but Judge Graber -- although sympathetic -- rightly rejects all of them. They just don't work. Sometimes equity has to be subordinate to the law, and this is one of those cases.

So I started this post with the concept that it sometimes doesn't pay to be smart; here, rather than follow the typical 30-day rule, Friedman was smart enough to know about the exception in qui tam cases under Ninth Circuit precedent that gave him another 30. If he'd have been less bright, and simply thought the regular 30-day rule applied, ironically, he'd have done better.

But, more accurately, I might say that the real lesson to be learned is not that it doesn't pay to be smart, but rather that it sometimes pays to be either dumb or very smart -- moderation in intelligence here is the thing that gets ya. Friedman either needed to be stupid and not know about the Ninth Circuit case or very smart and realize that even though there was a case on point, even that's not necessarily the law, since there's a higher court. And acted accordingly -- and conservatively -- by filing his notice of appeal within 30 days rather than 60. Which would have been quite easy to do.

So get smart or get stupid; that's the lesson of the day. Or at least be careful.