Mackby

MEMORANDUM ***

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 former owner and managing director of the Asher Clinic, a physi *777 cal therapy clinic in Larkspur, California, for submitting false Medicare claims. In United States v. Mackby, 261 F.3d 821 (9th Cir.2001), 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. On remand the district court upheld the full $729,454.92 judgment, concluding that it was not grossly disproportional to the gravity of Mackby’s offense. We review the question of whether a fine is constitutionally excessive de novo, United States v. Bajakajian, 524 U.S. 321 , 337 n. 10, 118 S.Ct. 2028 , 141 L.Ed.2d 314 (1998), and we affirm.

A fine violates the Excessive Fines Clause “if it is grossly disproportional to the gravity of a defendant’s offense.” Id. at 334 . The essence of Mackby’s offense was his use of someone else’s Medicare personal identification number to procure Medicare payments for which he was not eligible. Although not…