United States District Court, District of Columbia
ROSEMARY M. COLLYER, UNITED STATES DISTRICT JUDGE.
say that diamonds are forever. Are contracts? The government
asks the Court to enforce a False Claims Act settlement that
it appears to have ignored for years. Douglas F. Greer, M.D.,
the counterparty, argues that the six-year statute of
limitations has long since passed. Both parties move for
summary judgment. Although the government is not entitled to
recover on all of its claims, the Court finds that this
lawsuit is timely, filed as it was within six years of Dr.
Greer's completion of his related criminal sentence, and
will grant in part and deny in part both motions for summary
3, 2007, Dr. Douglas F. Greer, an ophthalmologist, pled
guilty for himself and his medical practice, Douglas F.
Greer, M.D., P.C., to one count of Health Care Fraud, in
violation of 18 U.S.C. § 1347, and one count of Filing a
False Tax Return, in violation of 26 U.S.C. § 7206(1),
for submitting fraudulent claims for payment as a medical
doctor to Medicare and Federal Health Benefit programs for
services not rendered or not medically necessary and for
falsifying his business tax records. Minute Entry, United
States v. Greer, No. CR-07-095-01 (RJL) (D.D.C. May 3,
2007). As part of his sentence, Dr. Greer was ordered to pay
a $25, 000 fine on each count ($50, 000 in total), unpaid
taxes, and restitution totaling approximately $1.2 million.
Judgment at 5, United States v. Greer, No.
CR-07-095-01 (RJL) (D.D.C. July 26, 2007). He was also
sentenced to 18 months imprisonment and 24 months of
supervised release. Id. at 2-3. As special
conditions of his supervised release, Dr. Greer was required
to serve 180 days (6 months) in home detention with
electronic monitoring and to perform 500 hours of community
service within the 24-month period. Id. at 4. Thus,
he was ordered to serve a sentence of three-and-one-half
years in various degrees of confinement.
24, 2007, before his criminal sentencing, Dr. Greer and his
medical practice settled a parallel, $1 million civil suit
brought by the government under the False Claims Act (FCA),
31 U.S.C. § 3729, in return for the liquidation of
identified assets. See generally Ex. A, Def.'s
Mot. for Summ. J., Settlement Agreement (Agreement) [Dkt.
23-1]. Specifically, because he did not have the funds to pay
both the criminal penalties and the civil judgment, as part
of the Agreement, Dr. Greer agreed, inter alia, to
liquidate his retirement accounts, assessed at $1, 011, 747;
liquidate other assets, assessed at approximately $500, 000,
$189, 000 of which represented the limit of his Practice
Guard Insurance policy; and sell his second house at 1811
47th Place, NW, Washington, D.C., assessed at $536, 500.
Id. at 2. Funds collected from these liquidations,
net taxes, were allocated first to pay the criminal penalties
and then to pay the civil debt, except that the monies from
the insurance policy ($189, 000) could only be contributed
towards the civil debt. Id. ¶ 2.
September 11, 2007, Dr. Greer paid the government $189, 000
under the Agreement. Ex. 5, United States' Mot. for Summ.
J., Confirmation Notice of Receipt of FEDWIRE Electronic
Funds Transfer (EFT) by the NCIF [Dkt. 24-8]. Then, as
ordered by the sentencing judge, Dr. Greer reported to prison
on November 15, 2007. See Order, United States
v. Greer, No. CR-07-095-01 (D.D.C. Oct. 19, 2007). At
that time, he had not sold the house at 47th Place. The
government did not insist. On March 5, 2009, Dr. Greer was
released from prison to serve the duration of his sentence on
supervised release, i.e., until 2011. Federal Bureau
of Prisons Inmate Locator, https://www.bop.gov/inmateloc/
(last visited Jan. 8, 2019) (search for BOP Register Number
“29030-016”). He still did not sell the house. The
government still did not insist. This situation continued
until December 21, 2015, when the government sent Dr. Greer a
letter informing him that he had breached the Agreement. Ex.
6, United States' Mot. for Summ. J., Letter from Oliver
McDaniel, Assistant U.S. Attorney, to Alan Reider, Arnold
& Porter (Dec. 21, 2015) [Dkt. 24-9] (“Your client
is in breach of this agreement, having made no recent
demonstrated effort to make a payment or to discuss a payment
arrangement.”). Dr. Greer refused to pay and the
government filed the immediate Complaint on April 27, 2016,
seeking to enforce the Agreement by compelling liquidation of
Dr. Greer's existing retirement account and sale of the
house at 47th Place. Compl. at 5 [Dkt. 1]. Both parties now
move for summary judgement.
judgment may be granted if “the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). All reasonable inferences that may be
drawn from the facts placed before the court must be drawn in
favor of the non-moving party. Williams v.
Callaghan, 938 F.Supp. 46, 49 (D.D.C. 1996) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986)). However, the non-moving party must still make a
factual showing to create a genuine issue of material fact,
and assertions of fact must be properly supported. See
Id. (citing Harding v. Gray, 9 F.3d 150, 154
(D.C. Cir. 1993)).
district courts have the authority to enforce settlement
agreements entered into by the litigants before
them. See Samra v. Shaheen Bus & Inv.
Group, Inc., 355 F.Supp. 2d. 483, 493 (D.D.C. 2005).
“An agreement to settle a legal dispute is a contract[,
] . . . [and] [t]he enforceability of settlement agreements
is governed by familiar principles of contract law.”
Village of Kaktovik v. Watt, 689 F.2d 222, 230 (D.C.
Cir. 1982). “An action to enforce a settlement
agreement is, at bottom, an action seeking the equitable
remedy of specific performance of a contract.”
Samra, 355 F.Supp.2d at 493. Therefore, a district
court may summarily enforce a completed settlement
agreement-i.e., one as to which there is no dispute
as to “the material facts concerning the existence or
terms of an agreement to settle.” Wilson v.
Wilson, 46 F.3d 660, 666 (7th Cir. 1995); see also
Autera v. Robinson, 419 F.2d 1197, 1202-03 (D.C. Cir.
to and rights of the United States under its contracts are
governed exclusively by federal law.” Boyle v.
United Tech. Corp., 487 U.S. 500, 504 (1988).
“Courts must therefore apply the federal common law of
contracts to the interpretation of contracts with the federal
government.” Red Lake Band of Chippewa Indians v.
Dep't of Interior, 624 F.Supp.2d 1, 12 (D.D.C. 2009)
(citing Wright v. Foreign Serv. Grievance Bd., 503
F.Supp.2d 163, 180 (D.D.C. 2007)); see also United States
v. Kearns, 595 F.2d 729, 732 (D.C. Cir. 1978) (noting
that “it is by now accepted that federal common law
provides remedies in many situations, ” including
“[g]overnment contracts”). To state such a claim,
a party must show: “(1) a valid contract between the
parties; (2) an obligation or duty arising out of the
contract; (3) a breach of that duty; and (4) damages caused
by the breach.” Red Lake Band of Chippewa
Indians, 624 F.Supp.2d at 12 (citation omitted).
“A breach of contract is simply the non-performance of
a contractual duty.” Kasarsky v. Merit Sys. Prot.
Bd., 296 F.3d 1331, 1336 (Fed. Cir. 2002) (citing
Restatement (Second) of Contracts § 235(2) (1981)). When
a contract does not specify a period for performance,
“the law imposes an obligation to act within a
reasonable period of time.” Essex Electro
Eng'rs, Inc. v. Danzig, 224 F.3d 1283, 1291 (Fed.
Cir. 2000) (quoting Specialty Assembling & Packing
Co. v. United States, 355 F.2d 554, 565 (Ct. Cl. 1966)).
“That period is determined ‘by the reasonable
expectations of the parties in the special circumstances in
which they contracted.'” Id. (quoting
Commerce Int'l Co. v. United States, 338 F.2d
81, 87 (Ct. Cl. 1964)). The statute of limitations for the
United States to sue for a breach of contract normally runs
after six years. 28 U.S.C. § 2415(a).
Amount Owed Under the Agreement and Performance
preliminary matters need discussion. First, the Complaint
alleges that Dr. Greer agreed to pay $1 million to settle the
FCA lawsuit, see Compl. ¶ 9, and that, having
already paid $189, 000 towards that amount, he has an
outstanding balance of $811, 000, plus interest, to be paid
by liquidation of his current retirement account and sale of
the house at 47th Place. See id. at 5. This claim
overstates the obligation. In the Agreement, the government
“asserted a demand against Dr. Greer” for payment
of $1, 000, 000, ” based upon his admitted crimes and
false claims, see Agreement at 1; Dr. Greer
represented that he could not pay such a judgment, see
Id. at 2; the parties, “to avoid the delay,
inconvenience and expense of protracted litigation, ”
agreed that Dr. Greer would liquidate certain assets in
satisfaction of the FCA liabilities, see Id. ¶
2; and the parties recognized that any amount raised by
liquidating the specific assets-except the $189, 000 from the
insurance policy-would first go towards the criminal
penalties, see id. The Agreement does not contain
terms for future payment, such as by wage garnishment or the
like. Further, while the Agreement made clear that, no matter
the total value of his assets, Dr. Greer was obligated
“to make full restitution under the terms of the
[criminal] Plea Agreement, ” id., no such
statement was included regarding the $1 million demand
asserted. Thus, performance of the civil Agreement was to be
satisfied by liquidation of specified assets (and
documentation of the same) but not the payment of a specified
amount, and in this context the government's FCA demand
of $1 million serves as a cap to the funds the government can
receive from Dr. Greer.
it appears that Dr. Greer has already partially performed
under the Agreement by liquidating some of the specified
assets: $189, 000 was paid to the government, which it
clearly believes came from the insurance policy. See
Greer Dep. 50:19-20, 65:22-66:6. Dr. Greer also liquidated
his retirement accounts in 2007 and paid the proceeds to the
government, see id. at 24:5-18, 51:14-19, and the
government does not allege that he failed to liquidate the
“other assets” worth $500, 000. Compl. ¶ 9.
The government argues that, notwithstanding the liquidation
of assets, no other payments were made under the Agreement,
and seeks to force Dr. Greer to liquidate current retirement
accounts that were not otherwise discussed in the Agreement;
the Court notes that the Agreement required Dr. Greer to use
the settlement funds to pay the criminal penalties first,
about which the government makes no complaint. Because the
Agreement does not require Dr. Greer to use assets ...