UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROBERT H. GROSS,

Plaintiff, Civil Action No. 1:17-cv-01801 (JMC)

v.

U.S. INSPECTOR GENERAL, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Robert Gross pleaded guilty to defrauding federal and state healthcare

reimbursement programs. 1 As a result of his conviction, the Inspector General for the Department

of Health and Human Services was required to exclude Gross from participating in all federal

healthcare programs for at least five years. The Inspector General imposed a 28-year exclusionary

period due to the facts of Gross’s offense. That decision was upheld by an Administrative Law

Judge and a Departmental Appeals Board. Gross filed suit in this Court against the Inspector

General, U.S. Attorney General, and U.S. Attorney, alleging violations of the Administrative

Procedure Act (APA), 5 U.S.C. §§ et seq., and the Equal Protection Clause of the U.S. Constitution

for excluding him from all federal health care programs for an inordinately long period of time, as

well as other constitutional claims related to his conviction and sentencing. This Court holds that

Gross’s lengthy exclusionary period does not violate the APA or the Equal Protection Clause, and

that this District is not the appropriate venue for Gross to litigate his remaining challenges.

1 Unless otherwise indicated, the formatting of quoted materials has been modified throughout this opinion, for example, by omitting internal quotation marks and citations, and by incorporating emphases, changes to capitalization, and other bracketed alterations therein. All pincites to documents filed on the docket are to the automatically generated ECF Page ID number that appears at the top of each page.

1 Accordingly, the Court grants Defendants’ Motion for summary judgment and to dismiss,

respectively.

I. BACKGROUND

In October 2014, a federal grand jury in the Northern District of Texas charged Robert

Gross, a licensed therapist, with 52 counts of health care fraud in violation of

.

ECF 26-1 at 235–74. The indictment alleged that Gross used improper billing codes for more than

four years to secure greater reimbursement than was appropriate.

. For example, Gross

inflated the time he spent with patients and even sought reimbursement for services rendered to

deceased clients. See, e.g.,

at 242–43, 268. Gross entered into a plea agreement in which he

pleaded guilty to one count of violating

.

. Gross was sentenced to a 71-

month term of incarceration and ordered to pay a $100,000 fine.

. The sentencing

judge also ordered Gross to pay $1,832,869.21 in restitution to compensate for the damage caused

by his conduct.

. Later, the Texas Medical Board suspended Gross’s medical license

indefinitely.

at 294–95.

About two years later, on April 29, 2016, the Office of the Inspector General for the

Department of Health and Human Services sent Gross a letter informing him that he would be

excluded from all federal health care programs (including Medicare and Medicaid) because he had

been convicted “of a criminal offense related to the delivery of an item or service under the

Medicare or a State health care program.” ECF 26-1 at 20 (citing 42 U.S.C. § 1320a-7(a)). Pursuant

to the Social Security Act, Gross’s period of exclusion could not be less than five years. Id.; see

also 42 U.S.C. 1320a-7(c)(3)(B). But the Inspector General determined that Gross should be

excluded for more than five years because his offense implicated four aggravating factors: (1)

2 Gross’s offense caused a financial loss to a government agency of $5,000 or more; 2 (2) Gross’s

criminal acts were committed over a period of a year or more; (3) Gross’s sentence included

incarceration; and (4) Gross was the recipient of an adverse action taken by another governmental

agency—the Texas Medical Board had suspended his license. ECF 26-1 at 21. It excluded him for

a minimum period of 28 years. Id. at 20.

Gross appealed the decision. Id. at 19. On February 10, 2017, an Administrative Law Judge

(ALJ) upheld the Inspector General’s decision, citing the presence of the four aggravating factors

and the lack of any mitigating factors. Id. at 1–9. Gross appealed the ALJ’s decision, but a three-

judge panel in the Appellate Division of the Department of Health and Human Services’

Departmental Appeals Board affirmed it. Id. at 10–18.

Gross then sued the Inspector General, Attorney General, and an unnamed United States

Attorney in this Court. ECF 4. His Amended Complaint includes three claims. First, Gross alleges

that the decisions by the ALJ and the Departmental Appeals Board were arbitrary and capricious

in violation of the Administrative Procedure Act. Id. at 2–3. Second, Gross alleges that the

Defendants violated the Sixth Amendment by “refus[ing] to allow Plaintiff’s constitutional right

to counsel” before he entered into his plea agreement. Id. at 1. Finally, Gross’s Amended

Complaint alleges that Defendants violated the Fifth and Fourteenth Amendment by using false

evidence, applying the wrong sentencing guidelines, and illegally seizing retirement funds. ECF 4

at 2.

While these allegations do not make clear the full basis for his legal argument related to

the length of his exclusion, Gross’s Response to Defendants’ Motion for Summary Judgment

2 This aggravating factor was later amended to increase the amount of loss from $5,000 to $50,000. See

(b)(1). But the Final Rule amending the amount had an effective date of February 13, 2017, which was after the Inspector General issued its decision. See

, 4103, 4112 (Jan. 12, 2017).

3 offers some clarity. There, he argued that the 28-year exclusion period violated the Equal

Protection Clause, and supported his argument by identifying doctors who had received shorter

periods of exclusion. ECF 14 at 11–16. Reading Gross’s pleadings together, the Court construes

his claim to be an Equal Protection violation alleging that he received dissimilar treatment than

other convicted doctors, in addition to his APA claim.

Defendants moved for summary judgment on Gross’s claims related to the length of his

period of exclusion and moved to dismiss his remaining claims under Rule 12(b)(3) for improper

venue. ECF 10. Gross responded, ECF 13, and Defendants replied, ECF 20.

II. LEGAL STANDARD

Normally, summary judgment is appropriate if the moving party “shows that there is no

genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). But in APA cases, “the summary

judgment standard functions slightly differently, because the reviewing court generally . . . reviews

the agency’s decision as an appellate court addressing issues of law.” Ashtari v. Pompeo,

, 467 (D.D.C. 2020). A district court can review an administrative action to determine

whether it was arbitrary and capricious, contrary to law, or unsupported by substantial evidence.

. To pass arbitrary and capricious review, the administrative body “must examine the

relevant data and articulate a satisfactory explanation for its action including a rational connection

between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of United States, Inc. v.

State Farm,

(1983).

Whether venue is proper “depends exclusively on whether the court in which the case was

brought satisfies the requirements of federal venue laws.” Atl. Marine Constr. Co., Inc. v. U.S.

Dist. Court,

(2013). “In considering a Rule 12(b)(3) motion, the court accepts the

plaintiff’s well-pled factual allegations regarding venue as true, draws all reasonable inferences

from those allegations in the plaintiff’s favor, and resolves any factual conflicts in the plaintiff’s

4 favor.” Haley v. Astrue,

(D.D.C. 2009). However, the burden is on the

plaintiff to establish that venue is proper, see, e.g., Williams v. GEICO Corp.,

(D.D.C. 2011), and the Court is not obligated to accept the plaintiff’s legal conclusions, Haley,

.

III. ANALYSIS

A. APA and Equal Protection Claims

Gross challenges the decisions by the ALJ and Departmental Appellate Board upholding

the Inspector General’s 28-year exclusionary period. ECF 13 at 5–16. He argues that these

decisions violated the APA and the Equal Protection Clause. After reviewing the statutory

backdrop that informed the two decisions, the Court grants summary judgment to Defendants.

Individuals (like Gross) who have been excluded from participation in federal health care

programs can seek judicial review of the exclusion after exhausting their administrative remedies.

42 U.S.C. § 1320a-7(f)(1). But the reviewing court applies a deferential standard of review—it

will affirm an Appeals Board decision as long as it was “based on substantial evidence in the record

and correctly applie[d] the relevant legal standards.” Friedman v. Sebelius,

(D.C. Cir. 2012). If the decision departs from prior agency precedent, then the agency must also

satisfy the APA’s arbitrary and capricious standard by providing a reasoned explanation for the

departure.

at 826–27.

The Appeals Board applied the correct legal standards, based its decision on evidence in

the record, and provided a reasoned explanation for its action. The governing regulations identify

nine aggravating factors that can justify lengthening a period of exclusion beyond the five-year

minimum. The Appeals Board found that four of them applied to Gross’s case: Gross’s offense

caused a financial loss to a government agency of $5,000 or more; Gross’s criminal acts were

5 committed over a period of a year or more; Gross’s sentence included incarceration; and Gross

was the recipient of an adverse action taken by another governmental agency.

The Appeals Board correctly applied these aggravating factors based on the evidence in

the record. As part of his plea agreement, Gross agreed to pay $1,832,869.21 in restitution for his

actions, a sum that far exceeds the $5,000 threshold. ECF 26-1 at 287. Gross committed his actions

over a period of approximately five years. Id. at 6. Gross was sentenced to 71 months incarceration

because of the severity of his conduct. Id. And the Texas Medical Board revoked Gross’s medical

license indefinitely because of his conviction. Id. at 294–95. This evidentiary record firmly

supports the Appeals Boards’ application of the four aggravating factors.

To the extent that Gross’s exclusionary period is longer than other periods of exclusion,

the Appeals Board provided a reasoned explanation for the departure. The Appeals Board observed

that Gross’s case involved a mandatory exclusion, which carries a longer minimum period of

exclusion than the permissive exclusion at issue in at least one of the cases that Gross cited in his

challenge. ECF 26-1 at 15. It also considered its precedent—even reviewing non-binding ALJ

decisions that Gross relied upon—and sufficiently explained that Gross’s case caused a far greater

financial loss (often more than double), involved criminal acts that occurred over a longer time

span, and resulted in a lengthier period of incarceration than prior cases. Id. at 16–17. Thus, the

Appeals Board adequately considered precedent—including the cases identified by Gross—and

justified the lengthy exclusionary period that it imposed on Gross.

Finally, the Appeals Board’s decision did not violate the Equal Protection Clause. Such a

claim would require Gross to allege that he had been “intentionally treated differently from others

similarly situated and that there is no rational basis for the difference in treatment.” Zahl v. New

Jersey Dep’t of L. and Pub. Safety Div. of Consumer Affs., 428 Fed. App’x 205, 209 (3d Cir. 2011)

6 (quoting Engquist v. Or. Dep’t of Agric.,

(2008)). In his Response to

Defendants’ Motion for Summary Judgment, Gross identified a few cases in which convicted

healthcare providers received shorter exclusionary periods. ECF 13 at 5–11. But the length of an

exclusionary period is an individualized question that turns on the facts of any given situation.

Factual differences explain why Gross received a lengthier exclusionary period than the healthcare

providers in the cases he cited: Gross was ordered to pay more money in restitution than those

providers because his conduct caused more significant financial loss and sentenced to a longer

term of imprisonment because of the severity of his conduct, providing a rational basis for the

Appeals Board to determine that a greater exclusionary period was appropriate in his case.

Additionally, there is no evidence in the record that the Appeals Board acted with animus toward

Gross or that any difference in treatment was related to anything other than the facts of his case.

The Court therefore grants Defendants’ Motion for Summary Judgment as to Gross’s APA and

Equal Protection claims.

B. Constitutional Claims Related To Gross’s Conviction and Sentence

The Defendants argue that this Court is an improper venue to litigate Gross’s Sixth, Fifth,

and Fourteenth Amendment claims related to his underlying conviction and sentence, and that the

named Defendants are improper parties for those claims. ECF 10-1 at 6–7. Gross does not

meaningfully dispute this assertion, and the Court agrees with Defendants. The Fifth Circuit is the

appropriate jurisdiction for any appeals related to Gross’s conviction. See

. And

if Gross meant to collaterally attack his underlying conviction, then he must bring a habeas action

against “the person who has custody over him.” See 28 U.S.C. 2242; see also Rumsfeld v. Padilla,

7

(2004). 3 The Court grants Defendants’ Motion to Dismiss under Fed. R. Civ.

P. 12(b)(3) as to Gross’s constitutional claims.

IV. CONCLUSION

For the foregoing reasons, the Court grants Defendants’ Motion for Summary Judgment as

to Gross’s APA and Equal Protection Claims, as well as their Motion to Dismiss his constitutional

claims purporting to challenge his conviction and sentence for improper venue.

DATE: August 9, 2023

Jia M. Cobb U.S. District Court Judge

3 The Court does not opine on the merits of any such habeas action. It finds only that Gross’s claims are more appropriately raised in a habeas petition rather than in this litigation.

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