United States v. Peter MacKby
Opinion
Opinion
Fletcher, J.
ORDER
Appellee’s request for publication, filed June 10, 2003, is GRANTED.
This court’s Memorandum disposition, filed June 3, 2003, is hereby withdrawn and replaced with the following opinion.
Appellant’s petition for panel rehearing and petition for rehearing en banc, filed July 7, 2003 are denied as moot.
OPINION
In 1999, the United States won a civil judgment under the False Claims Act (“FCA”), 31 U.S.C. §§ 3729-3733 , against Peter Mackby, the owner and managing director of a physical therapy clinic, for submitting false Medicare claims. We affirmed Mackby’s liability but remanded for a determination of whether $729,454.92 in civil penalties and treble damages violated the Excessive Fines Clause of the Eighth Amendment. United States v. Mackby, 261 F.3d 821 (9th Cir.2001) [hereinafter Mackby I]. On remand, the district court upheld the full judgment, concluding that it was not grossly disproportional to the gravity of Mackby’s offense. United States v. Mackby, 221 F.Supp.2d 1106 (N.D.Cal.2002)[hereinafter Mackby II]. We now affirm.
I. Background
Mackby, who is neither a physician nor a physical therapist, managed and owned the Asher Clinic, a physical therapy clinic in…