Notice Of Appeal Winter 2022

Published date14 January 2022
Subject MatterLitigation, Mediation & Arbitration, Criminal Law, Trials & Appeals & Compensation, White Collar Crime, Anti-Corruption & Fraud
Law FirmCozen O'Connor
AuthorMr Stephen Miller and Catherine Yun

Precedential Opinions of Note

Defendants Cannot Move for Compassionate Release Based Solely on Post-Sentencing Cooperation

United States v. Claude (October 27, 2021), No. 20-3563
Unanimous decision: Rendell (writing), Jordan, and Porter


Defendant sought compassionate release to reduce his sentence based on his alleged cooperation with the Government in the prosecution of another. The district court denied the request and concluded that, because his motion centered on his alleged substantial assistance to the Government, Federal Rule of Criminal Procedure 35 governed the issue. The district court then determined that Rule 35 relief may only be granted after the Government has moved for relief on the Defendant's behalf.


The Court affirmed the decision. It determined the First Step Act ' which altered the procedures related to motions for compassionate release ' otherwise left Federal Rule of Criminal Procedure 35 undisturbed. And Rule 35 requires a Government motion before a court may reduce a sentence for post-sentencing cooperation.


"As Congress chose, in passing the First Step Act, to change the procedure relating to motions for compassionate release but chose not to change the procedure around motions for a reduction in sentence based on substantial assistance, we must give effect to and 'respect that choice.' 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 260 (2009)." (Slip Op. at 9.)

Government May Dismiss False Claims Act Cases Over Relator's Objection

Polansky v. Executive Health Resources, Inc. (October 28, 2021), No. 19-3810
Unanimous decision: Krause (writing), Jordan, and Restrepo


Relator filed a qui tam action alleging that Defendant caused hospitals to bill the federal government for medically unnecessary inpatient services. The Government initially declined to intervene in the case, and Relator pursued the action on his own. After years of litigation, the Government moved to dismiss the action entirely. The district court granted the Government's motion to dismiss over Relator's objection.


The Court affirmed. First, agreeing with the Sixth and Seventh Circuits, the Court determined the Government must intervene before seeking to dismiss an action, but it can do so at any point in the litigation after showing good cause. Second, the Court determined the Government must meet the standard for dismissal under Federal Rule of Civil Procedure 41(a) when seeking such dismissal, which, under the circumstances, the Government had done.


"[W]e conclude that the Government is required to intervene before moving to dismiss and that its motion must meet the standard of Federal Rule of Civil Procedure 41(a)." (Slip Op. at 5.)

En BancCourt Again Holds Commentary to...

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