author: HOWARD, Chief Judge.

text:
    Anthony MOORE, Petitioner, Appellant, v. Thomas DICKHAUT, Respondent, Appellee.
    No. 14-1400
    United States Court of Appeals, First Circuit.
    November 22, 2016

      Edward J. O’Brien, with whom O’Donnell, Trossello & O’Brien, LLP, Quincy, MA, was on brief, for appellant.
    Argie K. Shapiro, Assistant Attorney General, Criminal Appeals Division, with whom Maura Healey, Attorney General, was on brief, for appellee.

      Before HOWARD, Chief Judge, TORRUELLA and BARRON, Circuit Judges.
   HOWARD, Chief Judge.

Appellant Anthony Moore filed the instant habeas petition seeking to set aside his 2006 Massachusetts conviction for unarmed robbery. See 28 U.S.C. § 2254. Moore’s sole contention on appeal is that the admission of certain identification evidence at his trial violated due process. Because the Massachusetts Appeals Court’s adjudication of this issue did not constitute an unreasonable application of Supreme Court precedent, we affirm the district court’s denial of Moore’s petition.

I.

Moore was convicted in connection with the robbery of a Sovereign Bank branch located on Causeway Street in Boston. Shortly after Moore’s arrest on this charge, law enforcement arranged for several bank employees to view a photo array. The array included Moore’s photograph, as well as seven other photos selected by a computerized imaging system for their resemblance to Moore. Two witnesses provided a positive identification of Moore.

About two months later, law enforcement conducted a lineup for bank employees. A police officer who was not part of the investigation selected seven “fillers” to be included along with Moore. Defense counsel attended the lineup and made no objection to the process. Four bank employees positively identified Moore.

Moore filed a motion seeking to preclude the Commonwealth from introducing evidence of these pre-trial identifications, as well as in-court identifications by the same witnesses. After an evidentiary hearing, the state trial court denied Moore’s motion. With respect to the array, the court found that the “photos all appear similar enough to each other so that no single individual stands out.” Along the same lines, the court also concluded that the eight individuals in the lineup were “all similar in appearance.” In connection with both the array and the lineup, the court found “that the police did not do or say anything” to influence the witnesses to identify Moore. For these reasons, it held that the identification procedures were not suggestive and allowed the evidence to go to the jury, Ultimately, the jury returned a guilty verdict.

The Massachusetts Appeals Court affirmed Moore’s conviction, rejecting the claim that the identification procedures violated his constitutional rights. It held that those procedures were “not so impermissi-bly suggestive as to give rise to a very substantial likelihood of irreparable mis-identification.” Commonwealth v. Moore, 929 N.E.2d 1001, 2010 WL 2773260, at *2 (Mass. App. Ct. July 15, 2010) (unpublished table decision) (citation omitted). The Massachusetts Supreme Judicial Court subsequently denied review. See 458 Mass. 1104, 934 N.E.2d 826 (2010) (unpublished table decision).

The federal district court subsequently denied Moore’s § 2254 habeas petition, and we granted a certificate of appealability. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22.

II.

We review the district court’s denial of Moore’s petition-de novo. See Teti v. Bender, 507 F.3d 50, 56 (1st Cir. 2007). But, like the district court, we must afford a high degree of deference to the Massachusetts Appeals Court’s decision. Indeed, under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), we may grant Moore’s petition only if we find that the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Williams v. Taylor, 529 U.S. 362, 376, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (quoting 28 U.S.C. § 2254(d)(1)). Because Moore develops no argument that the challenged decision was “contrary to” Supreme Court precedent, we restrict our inquiry to the issue of unreasonable apphcation.

A state court unreasonably applies federal law where it “identifies the correct governing legal rule ... but unreasonably apphes it to the facts of the particular state prisoner’s case.” Id at 407, 120 S.Ct. 1495. Under this “highly deferential” standard, it is not enough for the state court to have reached a decision that is “incorrect or erroneous.” Teti, 507 F.3d at 56-57. Rather, the error must be clear “beyond any possibility for fairminded disagreement.” White v. Woodall, — U.S. -, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698 (2014) (citation omitted). Critically, state courts do not act unreasonably by declining to extend Supreme Court precedent. Id. at 1706. Where, as here, the highest state court, namely, the Massachusetts Supreme Judicial Court, denies review, we “look through to the last reasoned decision” issued by the Massachusetts Appeals Court. Clements v. Clarke, 592 F.3d 45, 52 (1st Cir. 2010) (citation omitted).

In ruling on Moore’s petition, we must also defer to the state court’s fact-finding, meaning its determination of “basic, primary, or historical facts, such as witness credibility and recitals of external events.” Sleeper v. Spencer, 510 F.3d 32, 38 (1st Cir. 2007) (citation omitted). This deference extends to factual determinations made by a trial court and affirmed on direct appeal. See John v. Russo, 561 F.3d 88, 91 n.4 (1st Cir. 2009). While the Supreme Court has yet to clarify the relationship between the two AEDPA subsections relating to factual findings, see 28 U.S.C. § 2254(d)(2) and (e)(1), both “express the same fundamental principle of deference.” John, 561 F.3d at 92 (citation omitted). For purposes of this appeal, we accept Moore’s position that the challenged factual findings are merely reviewed for reasonableness under § 2254(d)(2). See Wood v. Allen, 558 U.S. 290, 300-01, 130 S.Ct. 841, 175 L.Ed.2d 738 (2010); cf. 28 U.S.C. § 2254(e)(1) (establishing presumption of correctness that may be rebutted only by clear and convincing evidence).

In an effort to avoid the narrow constraints of AEDPA review, Moore suggests that the deferential standards outlined above do not apply because his claims were not “adjudicated on the merits” in state court. 28 U.S.C. § 2254(d). A claim is “adjudicated on the merits” so long as “there is a decision finally resolving the parties’ claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground.” Clements, 592 F.3d at 52 (citation omitted). In other words, AEDPA requires only “adjudication, not explanation.” Id. at 55.

Here, Moore argues that the Massachusetts Appeals Court only considered his state constitutional claims and did not adjudicate the federal constitutional claims raised in his petition. Where a state court is presented with both state and federal claims and “does not expressly apply the federal standard but resolves the issue under a state law standard that is more favorable to defendants,” we “presume the federal law adjudication to be subsumed within the state law adjudication.” Sleeper, 510 F.3d at 38 (citation omitted); see also Johnson v. Williams, — U.S. -, 133 S.Ct. 1088, 1096, 185 L.Ed.2d 105 (2013) (“[I]f the state-law rule ... is at least as protective as the federal standard ... then the federal claim may be regarded as having been adjudicated on the merits”). Here, the Massachusetts Supreme Judicial Court has expressly described the state standard for due process challenges to identification procedures as “more favorable” to defendants than the federal standard discussed below. See Commonwealth v. Walker, 460 Mass. 590, 953 N.E.2d 195, 205 n.13 (2011). Accordingly, we presume that the Massachusetts court adjudicated Moore’s federal claims and review its decision under AEDPA’s deferential standard.

III.

Moore principally argues that the pretrial identification procedures were imper-missibly suggestive because he was the only person -in the photo array or lineup with a facial scar. Moore does not point to any additional physical or other features that set him apart from the other participants. We have little difficulty concluding that the Massachusetts Appeals Court did not unreasonably apply Supreme Court precedent in rejecting this claim.

The Supreme Court has held that pre-trial identifications resulting from procedures “so impermissibly suggestive as to give rise to a very substantial likelihood of ... misidentification” may offend due process. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); see also Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Where the likely mistake is “irreparable,” subsequent courtroom identifications may be- similarly prohibited. Simmons, 390 U.S. at 384, 88 S.Ct. 967. But, even where this standard is met, the federal constitution does not require automatic exclusion of the identification. Rather, “if the indicia of reliability are strong enough to outweigh the corrupting effect of the ... suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth.” Perry v. New Hampshire, 565 U.S. 228, 132 S.Ct. 716, 720, 181 L.Ed.2d 694 (2012).

It bears emphasis that the issue of reliability “comes into play only after the defendant establishes improper police conduct.” Id. at 726. Absent unnecessarily suggestive procedures, reliability is ensured through traditional trial protections, such as “the presence of counsel at postin-dictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.” Id. at 721; see also United States v. Melvin, 730 F.3d 29, 34 (1st Cir. 2013) (“Jurors should not be treated as gullible dupes, and ... identification evidence should be withheld from them only in extraordinary cases.” (citations omitted)). In the present case, for the reasons discussed below, the Massachusetts Appeals Court reasonably concluded that the procedures used were not impermissibly suggestive. Accordingly, we need not consider the reliability of the identifications.

The Supreme Court has applied its rule against suggestive identification procedures to restrict the “practice of showing suspects singly to”-witnesses rather than showing them “as part of a lineup.” Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 1967; see also Biggers, 409 U.S, at 195-99, 93 S.Ct. 375 (implying that one-man “showup,” in which the police walked the defendant by the victim, may have been suggestive); Manson v. Brathwaite, 432 U.S, 98, 107-09, 97 S.Ct. 2243, 63 L.Ed.2d 140 (1977) (noting state’s concession that “display of a single photograph” of the defendant was suggestive). The Court has, however, suggested that, in some circumstances, the rule may extend beyond one-man showups or the use of single photos. See Simmons, 390 U.S. at 383, 88 S.Ct. 967 (noting that the danger of misidentification is also increased where witnesses are shown “the pictures of several persons among which the photograph of a single such individual recurs or is in some, way emphasized”); Foster v. California, 394 U.S. 440, 442-43, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969) (holding that series of identification procedures, including a three-person, lineup where the defendant “stood out” due to his height and leather jacket, a subsequent “one-to-one confrontation” between the witness and the defendant, and a third lineup, was impermissibly suggestive).

The facts of the present case are far removed from these Supreme Court precedents. Indeed, rather than a showup or presentation of a single photo, the police conducted a photo array and a lineup, each involving Moore and seven other individuals. The Massachusetts trial court expressly found that all of the participants genei*ally had a similar appearance, and Moore does not seriously challenge this finding on appeal. With respect to the photo array, our review of the record confirms the state court’s conclusion. Moore and the other seven individuals depicted all appear to be African-American males with comparable ages, skin tones, and hairstyles. Moore’s facial scar, while visible, is relatively small. The Massachusetts court also found that Moore’s scar “is a characteristic which is difficult to replicate in individuals who otherwise resemble the defendant.” Again, Moore makes no effort to challenge this factual determination.. Indeed, a scar is different than other potentially distinguishing features that can be easily removed or changed (e.g., clothing or accessories). While the police could conceivably have made efforts to conceal Moore’s scar, this practice might itself have undermined the reliability of the identification by artificially altering Moore’s facial features. In any event, we need not opine on the permissibility or advisability of such precautions. For present purposes, it suffices that the state court reasonably concluded that the police were not required to conceal Moore’s scar. See, e.g., United States v. Holliday, 457 F.3d 121, 126 (1st Cir. 2006) (rejecting challenge to photo array based on the defendant’s distinctive “skin discoloration”); United States v. Moore, 115 F.3d 1348, 1360 (7th Cir. 1997) (finding that photo array was not suggestive despite the defendant’s “distinctive eyebrow”); Taylor v. Swenson, 458 F.2d 593, 596-98 (8th Cir. 1972) (holding that lineup was admissible even where the defendant stood out because of a facial scar and a “filed down” tooth).

Moore relies almost exclusively on United States Court of Appeals decisions to argue that his facial' scar rendered the identification procedures, impermissibly suggestive^ As an initial matter, to the extent these lower federal court rulings stray beyond the applicable Supreme Court precedents, they are insufficient to demonstrate an unreasonable application of federal law under 28 U.S.C. § 2254(d)(1). See Lopez v. Smith, — U.S. -, 135 S.Ct. 1, 4, 190 L.Ed.2d 1 (2014). In any event, the cases Moore cites are largely distinguishable. See, e.g., United States v. Castro-Caicedo, 775 F.3d 93, 98 (1st Cir. 2014) (noting that the defendant was “far older” and had “darker skin” than anyone else in the photo array and was the only person whose “sagging belly” (matching the witness’s , description) was shown); Raheem v. Kelly, 257 F.3d 122, 137 (2d Cir. 2001) (finding lineup suggestive where the defendant was ■ the only participant wearing a leather coat, which was “the most prominent feature” of the witnesses’ prior descriptions). ,

Moore’s other contentions are meritless. First, he argues that the identification procedures were unduly' suggestive because he was the only person to appear in both the photo array and lineup. But we have held on direct appeal that “[a] suspect’s inclusion in two photospreads ... is hot constitutionally impermissible.” United States v. Maguire, 918 F.2d 254, 263 (1st Cir. 1990). It follows that Moore’s inclusion in both the photo array and the lineup similarly does not offend due process. Next, Moore points to evidence that the police described the array to witnesses as “photos of suspects.” Again, Maguire forecloses his claim. See id. at 264 (noting that we have “condone[d] ... suggesting that the suspect is one of those shown in the array”). Third and finally, Moore contends that the identifications were impermissibly suggestive because he was number six in both the array and the lineup. This argument is contradicted by the state trial court’s express finding that “[n]one. of the witnesses paid attention to the order in which the photos or the individuals in the lineup were presented.” Moore’s record citations fail to convince us that this determination was unreasonable.

IV.

For the foregoing reasons, we AFFIRM the denial of Moore’s § 2254 petition.

      . Any argument on this point would, in any event, be unavailing. Moore appears to concede that the Massachusetts court applied the correct legal standard, and he points to no Supreme Court precedent involving facts "materially indistinguishable" from those at issue here. Williams, 529 U.S. at 405, 120 S.Ct. 1495.

      . Moore also suggests that the Massachusetts Appeals Court's decision was limited to the photo array and did not consider the lineup. This contention is belied by the opinion’s express acknowledgement that Moore’s challenge applied to both identification procedures. See Moore, 929 N.E.2d 1001, 2010 WL 2773260, at *2 n.3.

      . It is on this point that Massachusetts law diverges from the federal standard. Under the state constitution, identifications resulting from impermissibly suggestive procedures are "per se excluded.” Walker, 953 N.E.2d at 205 n.13.


source: Caselaw Access Project

author: STAHL, Circuit Judge'.

license: Public Domain

text:
    UNITED STATES, EX REL. Julio ESCOBAR; Carmen Correa, administratrix of the Estate of Yarushka Rivera, Plaintiffs, Appellants, Commonwealth of Massachusetts, Plaintiff, Amicus Curiae, v. UNIVERSAL HEALTH SERVICES, INC., Defendant, Appellee.
    No. 14-1423
    United States Court of Appeals, First Circuit.
    November 22, 2016

      Michael Tabb, with whom Thomas M. Greene, Boston, MA, Elizabeth Cho, Greene LLP, were on brief for appellants.
    Mark T, Stancil, with whom Donald Burke, Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Washington, DC, and Mark W. Pearlstein, Evan D. Panich, Laura McLane, McDermott Will & Emery LLP, Boston, MA, were on brief for appellee.
    Maura Healey, Attorney General of Massachusetts, with whom Robert Patten and Jeffrey Walker, Assistant Attorneys General, were on brief for amicus curiae Commonwealth of Massachusetts.
    Charles S. Scarborough, Attorney, Appellate Staff, with whom Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Carmen M. Ortiz, United States Attorney, and Michael S. Raab, Attorney, Appellate Staff, were on brief for amicus curiae United States of America.
    Jennifer M. Verkamp, Morgan Verkamp LLC,' Cincinnati, OH, and Jacklyn N. De-Mar, on brief for amicus curiae Taxpayers Against Fraud Education Fund.
    Jeremy W. Meisinger, Boston, MA, Thomas R. Barker, Washington, DC, Kris-tyn M. DeFilipp, Boston, MA, and Foley Hoag,' LLP, on brief for amicus curiae National Association of Psychiatric Health Systems.
    Lawrence M. Kraus, Lawrence W. Ver-naglia, Jason L. Drori, and Foley & Lardner LLP, Boston, MA, on brief for amicus curiae Massachusetts Hospital Association.
    John P. Elwood, Craig D. Margolis,- Jeremy C. Marwell, Tirzah S. Lollar, Christian D. Sheehan, Vinson & Elkins LLP, Washington, DC, Kathryn Comerford Todd, Steven P, Lehotsky, and U.S. Chamber Litigation Center, on brief for amicus curiae Chamber of Commerce of the United States of America.
    Before HOWARD, Chief Judge,, STAHL and BARRON, Circuit Judges.
   STAHL, Circuit Judge'.

Yarushka Rivera died of a seizure in 2009 after receiving mental health treatment at Arbour Counseling Services in Lawrence, Massachusetts, a facility owned and operated by Defendant-Appellee Universal Health Services (“UHS”). UHS submitted reimbursement claims for these services to MassHealth, the state’s Medicaid agency.

Following Yarushka’s death, her mother and stepfather learned that Arbour had employed unlicensed and unsupervised personnel, in violation of state regulations—many of whom were involved in treating their daughter during the years leading up to her death. Relators subsequently brought a qui tarn action against UHS under the False Claims Act (FCA), alleging that Arbour had employed unlicensed and unsupervised personnel, in violation of state regulations, and that UHS had fraudulently submitted reimbursement claims to the Commonwealth, despite knowing that they were in violation of relevant state regulations dealing with mental health and counseling facilities. This is a theory of FCA liability known' as the “implied false certification theory.”

The district court granted defendant’s motion to dismiss, concluding that the regulatory violations were conditions for participation in the state Medicaid program, but were not conditions of payment as required for a claim to be actionable under the FCA. We reversed, holding that the regulatory violations in question were, in fact, conditions for payment and that the Relators’ complaint had “properly pleaded that the condition of payment at issue was a material one,” given the ubiquity of the licensing and supervision requirements throughout- the MassHealth regulations governing the state’s Medicaid program with respect to mental health services. United States and Commonwealth of Mass. ex rel. Escobar v. Universal Health Servs., Inc., 780 F.3d 504, 514 (1st Cir. 2015) (“Escobar I”).

UHS sought review in the Supreme Court, the Court granted certiorari, and ruled that the implied false certification theory can be a basis for FCA liability. However, the Supreme Court vacated our judgment and remanded the case for further consideration of whether Relators’ complaint sufficiently alleged that the regulatory violations in question were material to the government’s payment decision, a requirement for an actionable FCA claim. Universal Health Servs., Inc. v. United States and Commonwealth of Mass. ex rel. Escobar, — U.S. -, 136 S.Ct. 1989, 2004, 195 L.Ed.2d 348 (2016) (“Escobar II").

• Applying the Supreme Court’s guidance on the question of whether UHS’s misrepresentations were material, we again find that Relators’ complaint sufficiently states a claim under the FCA. We therefore REVERSE the district court’s grant of UHS’ Motion to Dismiss and REMAND for further proceedings consistent with this opinion.

I. Facts and Background

Having previously had occasion to discuss the underlying facts that gave rise to this litigation, see Escobar I, 780 F.3d at 508-510, we briefly recount the most salient facts before proceeding to an analysis of-the materiality of the misrepresentations alleged in Relators’ Second Amended Complaint.

A. The False Claims Act Generally

The False Claims Act, 31 U.S. § ■■ 3729 et seq., was ■ enacted in 1863 to address the “massive frauds perpetrated by large contractors during the Civil War,” United States v. Bornstein, 423 U.S. 303, 309, 96 S.Ct. 523, 46 L.Ed.2d 514 (1976), which hampered the United States’ war effort. The Act imposes civil penalties on “any person who .., knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval” to the government. 31 U.S.C. § 3729(a). The Act contains qui tarn provisions authorizing private individuals to sue on behalf of the United States to recover monies that were obtained from the government by fraudulent misrepresentations. 31 U.S.C. § 3730. To be actionable, a false claim must be material to the government’s decision to pay the claim. See, e.g., Escobar II, 136 S.Ct. at 2001; see also United States ex rel. Loughren v. Unum Grp., 613 F.3d 300, 307 (1st Cir. 2010). The Act itself defines “material” to mean “having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.” § 3729(b)(4).

B. Regulatory Framework

This case arose in the context of reimbursement claims submitted to MassH-ealth, the Massachusetts Medicaid program. The applicable Massachusetts Code of Regulations at issue in this case, and operative at the time of the events in question, required dependent satellite programs to employ at least two full-time equivalent professional staff members from separate nonphysician core disciplines. 130 Mass. Code Regs. § 429.422(D). The satellite program’s staff must meet the qualifications for core disciplines as outlined in 130 Mass. Code Regs. § 429.424. For example, § 429.424 requires that staff psychiatrists must be either board certified or applying for such certification, or be licensed physicians in their second year of an accredited psychiatric residency. Id. § 429.424(A)(l)-(2). Staff psychologists must have completed a recognized doctoral program or be enrolled in such a program. Id. § 429.424(B). Social workers must be either licensed or applying for such a license, and all social workers (other than the chief social worker in a particular facility) must be under the “direct and continuous supervision of an independent clinical social worker.” Id. § 429.424(C). While mental health counselors are not required to be licensed, they “must be under the direct and continuous supervision of a fully qualified professional staff member.” Id. § 429.424(E)(1).

If the satellite program’s staff do not meet the qualifications for core disciplines as described in 130 Mass. Code Regs. § 429.424, the staff must receive supervision from qualified core staff professionals of the same discipline at the parent center. Id. § 429.422. There are also supervision requirements for less experienced personnel at satellite programs, with the regulations providing that “[e]ach staff member must receive supervision appropriate to the person’s skills and level of professional development^] Supervision must occur within the context of a formalized relationship providing for frequent and regularly scheduled personal contact with the supervisor.” Id. § 429.422(D) (incorporating supervision requirements of § 429.438(E)).

When submitting claims to MassHealth, UHS used numerical codes corresponding to the particular types of services rendered, in this case individual therapy, family therapy, and group therapy. The definition of each of these types of services, for billing purposes, in Section 601 of MassH-ealth’s then-operative Mental Health Center Manual requires that they be performed “by [a] professional staff member as defined in 130 CMR 429.424.”

C. Facts Pertinent to Relators’ Claim against UHS

Relators allege that unbeknownst to Ya-rushka Rivera’s family in the years leading up to her death, UHS’s Arbour facility was in flagrant non-compliance with these regulations. According to the allegations in Relators’ Second Amended Complaint, of the five specific individuals who treated Yarushka—Maria Pereyra, Diana Casado, Anna Fuchu, Maribel Ortiz and Anna Ca-bacoff—only one of them (Cabacoff) had the proper license or was under the proper supervision to deliver treatment to- Ya-rushka. Neither Pereyra nor Casado, the counselors assigned to Yarushka, had a professional license and at no time during their treatment of Yarushka were they supervised by anyone that did. Fuchu, despite being held out to Yarushka’s parents as an experienced “doctor” and representing herself as a psychologist with a Ph.D, in fact only had received her psychological instruction from an unaccredited internet college and had her application for licen-sure rejected by the Board of Licensure of the Commonwealth several years before the treatment giving rise to this lawsuit.

Ortiz was referred to Relators as a psychiatrist, when in fact she was a nurse, without a license to practice psychiatry. Ortiz prescribed Trileptal to Yarushka, a medication to which Yarushka had an adverse reaction. This medication was prescribed despite the fact that Ortiz could prescribe medications only if properly supervised by a board certified psychiatrist (she was not). Yarushka ultimately suffered a seizure, her second while receiving treatment at Arbour, and died. Through-nut this course of treatment, UHS regularly sought and received reimbursement for these mental health services from MassH-ealth.

Finally, UHS’s staff members at Arb-our, like any health care practitioner who bills under - Medicaid, received National Provider Identification (“NPI”) numbers which identify the practitioner’s ■ level of expertise and whether the practitioner is, in fact, licensed. One of UHS’s unlicensed counselors, Maria Pereyra, had a fraudulently-obtained NPI, having misrepresented her background and education. Relators uncovered information that an additional 22 UHS employees had obtained false NPI numbers that misrepresented their status as licensed social workers or licensed mental health counselors.

Following Yarushka’s death, Relators learned that most of the individuals who had provided care for their daughter were not properly licensed or supervised. With this knowledge, they then filed complaints with several state agencies, including the Disabled Persons Protection Committee (“DPPC”), Division of Professional Licen-sure (“DPL”), and the Department of Public Health (“DPH”). These complaints eventually culminated in the DPH conducting on-the-ground inspections at Arbour during the spring of 2012, during which time they learned that Arbour was using unlicensed and unsupervised personnel. DPH issued a report in July of 2012 detailing its findings.

D, Procedural Background

On July 1, 2011, while the DPH investigation against Arbour was still pending, Relators brought suit against UHS in the United States District Court for the District of Massachusetts, arguing that by submitting claims for reimbursement to MassHealth, UHS had impliedly certified that its services were in conformity with the applicable licensing and supervision requirements, and that its failure to disclose or correct the violations made these reimbursement claims fraudulent under the FCA. Relators’ Second Amended Complaint was filed in February of 2013. The district court dismissed the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), holding that Relators had failed to state a claim because the regulations in question were preconditions for participation in the state’s Medicaid program, rather than preconditions to reimbursement—and that only the latter could be used to establish the falsity of a claim under the FCA.

We reversed in relevant part and remanded, finding that a violation is material to payment if “the defendant, in submitting a claim for reimbursement, knowingly misrepresented compliance with a material precondition of payment.” Escobar I, 780 F.3d at 512. We found that “[compliance with the regulations at issue pertaining to staff supervision and core staffing at satellite centers is a condition of payment by MassHealth,” and noted that at the core of Relators’ complaint was the allegation “[t]hat supervision at Arbour was , either grossly inadequate or entirely lacking” and that Relators’ daughter “died after receiving treatment that was out of compliance with over a dozen regulations.” Id. at 517. We therefore found that the Second Amended Complaint had adequately stated a claim under the FCA.

The Supreme Court granted certiorari to resolve a disagreement among U.S. Courts of Appeals over the validity and scope of the implied certification theory. The Court upheld the validity of the implied certification theory, holding that “[w]hen, as here, a defendant makes representations in submitting a claim but omits its violations of statutory, regulatory, or contractual requirements, those omissions can be a basis for liability if they render the defendant’s representations misleading with respect to the goods or services provided.” Escobar II, 136 S.Ct. at 1999. In order for False Claims Liability to attach, these misleading omissions must be material to the government’s decision to pay the claim. Whether the regulatory, statutory or contractual requirement in question is a precondition for payment was not necessarily dispositive of whether the requirement is material to the decision to pay, the Court concluded. Id. at 2001. Rather, “[w]hat matters is ... whether the defendant knowingly violated a requirement that the defendant knows is material to the Government’s payment decision.” Id. at 1996. The Supreme Court “remand[ed] the case for reconsideration of whether [Rela-tors] have sufficiently pleaded a False Claims Act violation.” Id. at 2004.

E. The Materiality Test

The language that the Supreme Court used in Escobar II makes clear that courts are to conduct a holistic approach to determining materiality in connection with a payment decision, with no one factor being necessarily dispositive. As the Court observed, “materiality cannot rest ‘on a single fact or occurrence as always determinative.’ ” Escobar II, 136 S.Ct. at 2001 (quoting Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27, 39, 131 S.Ct. 1309, 179 L.Ed.2d 398 (2011)). Because the materiality requirement in the Act descends from “common-law antecedents,” id. at 2002 (quoting Kungys v. United States, 485 U.S. 759, 769, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988)), under both the FCA and under the common law, materiality “look[s] to the effect on the likely or actual behavior of the recipient of the alleged misrepresentation.” Id at 2002-03 (citing Williston on Contracts § 69:12 (4th ed. 2003) and the Restatement (Second) of Torts, § 538). Materiality is more likely to be found where the information at issue goes “to the very essence of the bargain,” Escobar II, 136 S.Ct. at 2003, n. 5 (quoting Junius Constr. Co. v. Cohen, 257 N.Y. 393, 400, 178 N.E. 672 (1931) (Cardozo, C.J.))

“The materiality standard is demanding,” as the False Claims Act is not “‘an all-purpose antifraud statute’ or a vehicle for punishing garden-variety breaches of contract or regulatory violations.”Id. at 2003 (internal citation omitted). Materiality “cannot be found where noncompliance is minor or insubstantial.” Id. “Nor is it sufficient for a finding of materiality that the Government would have the option to decline to pay if it knew of the defendant’s noncompliance.” Id.

The Court then laid out several specific factors that might contribute to determining materiality:

[p]roof of materiality can include, but is not necessarily limited to, evidence that the defendant knows .that the Government consistently refuses to pay claims in the mine run of cases based on noncompliance with the particular statutory, regulatory, or contractual requirement. Conversely, if the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated, that is very strong evidence that those requirements are not material. Or, if the Government regularly pays a particular type of claim in full despite actual knowledge that certain requirements were violated, and has signaled no change in position, that is strong evidence that the requirements are not material.

Id. at 2003-04. In a case decided after (and citing) Escobar II, this Court concluded that in assessing materiality in connection with a different section of the False Claims Act, the fundamental inquiry is “whether a piece of information is sufficiently important to influence the behavior of the recipient.” United States ex rel. Winkelman et al. v. CVS Caremark Corp., 827 F.3d 201, 211 (1st Cir. 2016). These standards of materiality guide this Court’s analysis in Relators’ case on remand.

II. Analysis

Applying the holistic approach to determining materiality laid out by the Supreme Court, we have little difficulty in concluding that Relators have sufficiently alleged that UHS’s misrepresentations were material. We reach this conclusion for three reasons. First, Relators have alleged in their Second Amended Complaint that regulatory compliance was a condition of payment—itself a “relevant” though “not dispositive” factor' in determining materiality. Escobar II, 136 S.Ct. at 2001. Second, the centrality of the licensing and supervision requirements in the MassH-ealth regulatory program, which go to the “very essence of the bargain,” id. at 2003, n. 5, of MassHealth’s contractual relationships with various healthcare providers under the Medicaid program, is strong evidence that a failure to comply with the regulations would be “sufficiently important to influence the behavior” of the government in deciding whether to pay the claims. Winkelman, 827 F.3d at 211. And third, while the Supreme Court observed that “if the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated, that is very strong evidence that those requirements are not material,” Escobar II, 136 S.Ct. at 2003-04, the Court did not state that such knowledge is dispositive. In any case, the factual allegations contained in Relators’ Second Amended Complaint are limited to reimbursement claims filed by UHS during the course of their daughter’s treatment and prior to the filing of the litigation in July of 2011,.and there is no evidence in the record that MassHealth paid those claims to UHS despite knowing of the violations.

•A. The-Regulatory Requirements

Looking “to the effect on the likely or actual behavior of the recipient of the alleged misrepresentation,” id. at 2002, we first note that the government conditioned MassHealth’s payments on compliance with the licensing and professionalism regulations. See 130 Mass Code Reg. § 429.441(A). While not automatically “dis-positive,” such a designation is “relevant to ... the materiality inquiry.” Escobar II, 136 S.Ct. at 2001.

Additionally, in this case, regulatory compliance is not merely a condition of payment; rather, MassHealth’s decision to have a series of regulations in place to ensure that clinical mental health counselors, psychiatrists and psychologists are of sufficient professional caliber to treat patients strongly counsels in favor of a finding that compliance with these regulations is central to the state’s Medicaid program and thus material to the government’s payment decision. In describing Relators’ Second Amended Complaint, the Supreme Court noted that the Relators “have alleged that Universal Health misrepresented its compliance with mental health facility requirements that are so central to’ the provision of mental health counseling that the Medicaid program would not have paid these claims had it known of these violations.” Escobar II, 136 S.Ct. at 2004. The Supreme Court concluded that “[ajnyone informed that a social worker at a Massachusetts mental health clinic provided a teenage patient with individual counseling services would probably—but wrongly— conclude that the clinic had complied with core Massachusetts Medicaid requirements,” Escobar II, 136 S.Ct. at 2000, and we suggested a similar conclusion in our first encounter with this case. See Escobar I, 780 F.3d at 514 (“The express and absolute language of the regulation in question, in conjunction with the repeated references to supervision throughout the regulatory scheme, ‘constitute dispositive evidence of materiality.’ ”) (internal citations omitted).

We reaffirm our previous conclusion on this score. MassHealth has made it clear in its regulations that it expects that individuals in the business of providing mental health services in the Commonwealth have adequate training and professional credentials. Compliance, or ' lack thereof, with these regulations seem to us the textbook example of representations that would “likely ... induce a reasonable person to manifest his assent,” Escobar II, 136 S.Ct. at 2003 (citing Restatement (Second) of Contracts, § 162(2)), in determining whether to pay for the healthcare services. Indeed, we struggle to think of a misrepresentation-by-omission that would give rise to a breach more material to the government’s decision to pay. ’

While we recognize that the FCA is not “a vehicle for punishing garden-variety breaches of contract. or regulatory violations,” Escobar II, 136 S.Ct. at 2003, UHS’s alleged misrepresentations were not garden-variety breaches. At the core of the MassHealth regulatory program in this area of medicine is the expectation that mental health services are to be performed by licensed professionals, not charlatans. To use the Civil War-era example cited at oral argument in Escobar II, UHS’s violations in the instant case are as central to the bargain as the United States ordering and paying for a shipment of guns, only to later discover that the guns were incapable of firing. Id. at 2001.

E. The Government’s Actions

The defendant’s primary argument on remand is that the government continued to pay the claims at issue despite knowledge that UHS was not in compliance with the applicable regulations in the manner alleged. Citing the Supreme Court’s ruling in the present dispute, they argue that, while not dispositive, such payment practices constitute “strong evidence” of non-materiality. Id. at 2004. We find defendant’s ' argument to be unconvincing for two reasons.

First, reviewing the factual allegations in the Second Amended Complaint and accepting them as true, as we must for purposes of evaluating a 12(b)(6) motion, we see no evidence that MassHealth continued to pay claims despite actual knowledge of the violations. Relators’ Second Amended Complaint only cites reimbursements paid up to “the filing of this litigation” on July 1, 2011. It would appear that DPH did not conclusively discover the extent of the violations until March of 2012, well after the commencement of the litigation. Even assuming, on the most generous reading of the Second Amended Complaint for UHS, that various state regulators had some notice of complaints against Arbour in late 2009 and 2010, mere awareness of allegations concerning noncompliance with regulations is different from knowledge of actual noncompliance. Additionally, there is no evidence in the complaint that MassHealth, the entity paying Medicaid claims, had actual knowledge of any of these allegations (much less their veracity) as it paid UHS’s claims. Because we find no evidence that MassHealth had actual knowledge of the violations at the time it paid the claims at issue, we need not decide whether actual knowledge of the violations would in fact be sufficiently strong evidence that the violations were not material to the government’s payment decision so as to support a motion to dismiss in this case.

Second, the specific claims identified by Relators only pertain to Yarushka’s treatment, which ended with her death in October 2009. Their allegations plausibly make out a claim that those payments, for the unlicensed and unsupervised treatment their daughter received, were fraudulent. We see no reason to require Relators at the Motion to Dismiss phase to learn, and then to allege, the government’s payment practices for claims unrelated to services rendered to the deceased family member in order to establish the government’s views on the materiality of the violation. Indeed, given applicable federal and state privacy regulations in the healthcare industry, it is highly questionable whether Relators could have even accessed such information.

III. Conclusion

While it may be the case that MassH-ealth continued to pay claims to UHS despite becoming aware that they were not in compliance with the pertinent regulations at the Arbour facility, and this information may come to light during discovery, at this time Relators have stated a claim under the FCA sufficient to survive a Motion to Dismiss. Applying the Supreme Court’s holistic approach to determining materiality, we conclude that UHS’s alleged misrepresentations were material when looking “to the effect on the likely or actual behavior of the recipient of the alleged misrepresentation.” Escobar II, 136 S.Ct. at 2002.

We therefore REVERSE the district court’s grant of UHS’s Motion to Dismiss the Second Amended Complaint and REMAND to the district court for further proceedings.

      .This case arises from Defendant-Appellee UHS’s Motion to Dismiss Relators’ Second Amended Complaint. Following our ruling in Escobar I, but prior to the Supreme Court’s grant of certiorari, the District Court allowed the filing of a Third and Fourth Amended Complaint. These rulings were proper, as the mere act of filing a petition for certiorari does not deprive the district court of jurisdiction over the case. See United States v. Sears, 411 F.3d 1240, 1241-42 (11th Cir. 2005); see also 28 U.S.C. § 2101(f) (noting that the trial court or the Supreme Court may issue a stay pending disposition of a petition for certiorari). However, since our original ruling in this case and the Supreme Court opinion in Esco-bar II were both based on the factual allegations .in the Second Amended Complaint, this Court and the parties all agree that it is that complaint that is the operative pleading at this stage.

      . Because this appeal follows the granting of a motion to dismiss, we recite the relevant facts as they appear in Relators’ Second Amended Complaint. See Hochendoner v. Genzyme Corp., 823 F.3d 724, 728 (1st Cir. 2016).

      . The regulations at issue were in effect from 2008 to 2014, but have since been amended, with minor revisions. References to the state regulations and billing codes included herein are therefore to the then-operative provisions, a copy of which are attached to MassHealth Transmittal Letter MHC-39 and accessible at http://www.mass.gov/eohhs/docs/masshealth/ transletters-2009Anhc-39.pdf.

      . We note that the record does not firmly establish whether Arbour, die facility where Yarushka received treatment, was a “dependent” or "autonomous” satellite facility for purposes of the MassHealth regulations. Compare 130 Mass. Code Regs.§ 429.422(D) (laying out staff composition requirements for dependent facilities) with id. § 429.422(F) (imposing more stringent staffing requirements for autonomous facilities, including more ‘full-time personnel and greater emphasis on licensing, rather than supervision). In their Second Amended Complaint, as the district court noted, Relators “do not allege that the Arbour location in Lawrence is an autonomous satellite program,” U.S. ex rel. Escobar v. Universal Health Servs., Inc., No. CIV.A. 11-11170-DPW, 2014 WL 1271757, at *8 (D. Mass. Mar. 26, 2014). Relators, for their part, argued before the district court and in their briefing to this Court during our first encounter with the case that' without the benefit of discovery, they were unable to verify whether Arbour fit the definition of a "dependent” or "autonomous” facility. We therefore assume, without deciding, that the applicable regulations'are those governing dependent satellite ■ facilities.

      . The now-operative provisions no longer include an explicit requirement for each billing code that the therapy be provided "by [a] professional staff member as defined in 130 CMR 429.424,” but instead provide that "MassHealth pays for the services represented by the codes listed in Subchapter 6 in effect at the time of service, subject to all conditions and limitations in MassHealth regulations. at 130 CMR 429,000 and 450.000.” A copy of the now-operative regulations are attached to MassHealth Transmittal Letter MHC-48, and can be accessed at http://www, mass.gov/eohhs/docs/masshealtb/servicecodes/ sub6-mhc.pdf.


author: SELYA, Circuit Judge.

text:
    Kenneth NEVOR, Plaintiff, Appellee, v. MONEYPENNY HOLDINGS, LLC, Defendant, Appellant.
    Nos. 16-1302
    16-1565
    United States Court of Appeals, First Circuit.
    November 22, 2016

      Robert P. Powers, Boston, MA, with whom Michael R. Byrne and Melick & Porter, LLP were on brief, for appellant.
    Maurice J. Cusick, with whom Vincent M. Morgera was on brief, for appellee.
    Before BARRON, SELYA and STAHL, Circuit Judges.
   SELYA, Circuit Judge.

In this maritime personal injury case, the district court awarded the plaintiff compensatory damages for past and future harms totaling nearly $1,500,000. Adding insult to injury, the court tacked on prejudgment interest at the Rhode Island state rate of 12% per annum and entered judgment in the plaintiffs favor for $2,318,487. The defendant appeals, challenging both the damages award and the prejudgment interest increment.

After careful consideration, we find the award of damages to be unimpugnable. The award of prejudgment interest, though, presents greater complications: with respect to that award, we tackle a question of first impression within this circuit and, following the resolution of that question, affirm the interest award in part and reverse it in part. The tale follows.

I. BACKGROUND

We rehearse the relevant facts as found by the district court, see Nevor v. Moneypenny Holdings, LLC, 2016 WL 183906 (D.R.I. Jan. 14, 2016), consistent with record support. Plaintiff-appellee Kenneth Nevor was once a professional sailor. His experience included sailing, racing, and transporting racing yachts. His skillset extended to maintaining and repairing sailboats, their mechanical equipment, and their electronic gear.

Nevor began sailing as a boy and—by the age of 35—had participated in a number of elite racing events worldwide. At the time of the mishap giving rise to this action, Nevor was an employee of defendant-appellant . Moneypenny Holdings, LLC (Moneypenny), which owned a 52-foot sailing vessel called the Vesper and a 35-foot motor support vessel called the Odd Job.

In March of 2011, Nevor was part of a crew preparing the Vesper for a regatta in the Caribbean. The Vesper was travelling in the British Virgin Islands when the members of the crew learned that they— but not the boat—needed to return to St. Thomas to clear customs. To facilitate this process, the Odd Job met the Vesper with a view toward carrying some crewmem-bers back to shore. When the Odd Job pulled up alongside the Vesper, the Vesper’s captain directed some of the crew (including Nevor) to transfer from the Vesper to the Odd Job. The wind was blowing at between eight and twelve knots—normal for that time of year—but the sea was choppy. Still, the captain did not lash the Odd Job and Vesper together before proceeding with the transfer.

As Nevor disembarked the Vesper to board the Odd Job, the boats separated. Nevor slipped, grasping the Vesper’s lifeline as he reached for the Odd Job with his foot. He was able to complete the transfer, but the stress on his right arm caused his bicep to tear from the bone.

Nevor stayed with the Vesper for two weeks after his injury to assist with race preparations. He then returned stateside to undergo surgery. Once the operation was performed, he completed six months of physical therapy. Even after he had finished the prescribed course of therapy, his treating physician found residual atrophy in the reattached muscle. Several months later, Nevor visited another specialist who determined that Nevor’s right arm remained weaker than his left and was unlikely to improve. This specialist concluded that Nevor could not do the heavy lifting that his previous job demanded.

In June of 2013, Nevor invoked admiralty jurisdiction, see 28 U.S.C. § 1333, and sued Moneypenny'in Rhode Island’s federal district court. His complaint alleged negligence under the Jones Act, see 46 U.S.C. §§ 30101-30106, and unseaworthiness under general maritime law.

Following a four-day bench trial, the district court wrote a thorough and closely reasoned rescript stating its findings of fact and conclusions of law. The court awarded Nevor $1,460,458 in damages ($710,458 for loss of earnings and loss of future earning capacity and $750,000 for pain, suffering, and mental anguish). See Nevor, 2016 WL 183906, at *7. The court subsequently granted • Nevor’s motion to add prejudgment interest to the damages award. This increment, which totaled $858,029, brought the aggregate judgment to $2,318,487 (plus costs).

These consolidated appeals ensued. In them, Moneypenny concedes liability but challenges several of the monetary components of the judgment.

II. ANALYSIS

Moneypenny’s claims of error fall into two broad categories. First, it offers various reasons why the award of damages should be deemed excessive. Second, it assails the prejudgment interest award as totally inappropriate and, alternatively, says that no prejudgment interest should accrue on damages for future harm. We address these claims sequentially.

A. Damages.

As an opening salvo, Moneypenny blasts the district court’s stated basis for awarding economic damages (lost wages and prospective loss of earning capacity). In its words, the court’s factual findings were “clearly erroneous” and “premised on inadmissible speculation.”

In the aftermath of a bench trial, we review the district court’s factual findings for clear error. See Reliance Steel Prods. Co. v. Nat’l Fire Ins. Co., 880 F.2d 575, 576 (1st Cir. 1989). We will set aside those findings “only if, on the entire evidence, we are left with the definite and firm conviction that a mistake has been committed.” Id. (citation omitted). Whether we would have reached the same result as the district court is not the issue: “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be. clearly erroneous.” Id. at 577 (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)).

This deferential standard of review applies with unabated force when a district court’s findings depend wholly or in part on expert testimony. When judges act as factfinders, they are given “considerable leeway in choosing among the views of experts and in determining the weight and value to be assigned to the opinions of each expert.” Reilly v. United States, 863 F.2d 149, 167 (1st Cir. 1988).

At trial, the parties presented detailed information about the sailing industry, as well as expert testimony about Nevor’s physical limitations, projected wages, past and future earning capacity, vocational capabilities, and work-life expectancy. With respect to Nevor’s projected wages and lost earning capacity—the focal points of the district court’s economic damages calculation—Nevor's experts testified that at the time of the accident he was “at the cusp” of joining the ranks of the ultra-elite sailors who earned between $100,000 and $120,000 per year. This evidence was consistent with the fact that, in the first three months of 2011 (the year of his injury), Nevor already had earned just shy of $30,000 working for Moneypenny. The experts went on to explain that Nevor was one of “only maybe a thousand people” competing internationally at an elite level and that he had the skills and strength required to advance. Similarly, they opined that, but for the injuries sustained in the accident, Nevor could have remained employed as a top-echelon sailor for several decades.

Of course, this evidence did not go unre-butted. Moneypenny presented expert testimony that Nevor sustained virtually no loss in earning capacity as a result of the accident and that, even if not injured, he was unlikely to earn more than $100,000 per year as a sailor.

The district court sided with Nevor’s experts. It concluded that, but for the injuries sustained in the accident, Nevor “would have continued to be employed in high-level sailing” and “would have advanced as a professional sailor in his chosen field if he had not been injured.” Nevor, 2016 WL 183906, at *6. In reaching these conclusions, the court found persuasive the testimony voiced by Nevor’s witnesses regarding his vocational capabilities, earning capacity, and work-life expectancy.

In this venue, Moneypenny asseverates that the compiled record offered “no reliable means of predicting the duration of Nevor’s sailing career, the positions which he may have held, or. the income which he might have earned.” And although Money-penny concedes that it might have been “possible” for Neyor to reach sailing’s upper echelon and earn the wages commensurate with sailing at that level, it insists that the evidence fell well short of the “rehable demonstration” benchmark set by the Supreme Court. See Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 534-35, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983) (explaining that “[although it may be difficult to prove when, and whether, a particular injured worker might have received [ ] wage increases, .... they may be reliably demonstrated for some workers”). -

Contrary to Moneypenny’s im-portunings, a reliable demonstration does not demand proof positive. Forecasting future losses necessarily requires the trier to sift through the projections of experts, gauge the credibility of witnesses, and draw reasonable inferences from the facts. See Johnson v. Watts Regulator Co., 63 F.3d 1129, 1138 (1st Cir. 1995); Reliance Steel, 880 F.2d at 576. While robes, and gavels, not tea leaves or crystal balls, are the tools of a trial judge’s trade, some degree of speculation is inherent in. any such forecast. A reliable demonstration demands only that the court’s prediction is reasonable, given the facts in the record. Here, we must give due weight to the court’s determinations of witness credibility, its findings as to the relative persuasiveness of various experts, and its appraisal of competing facts. See Reliance Steel, 880 F.2d at 576.

Viewed through this prism, we find plentiful support in the record for the court’s determination that Nevor had in prospect a top-flight racing career that was likely to be long and successful and lost it due to the injuries sustained in the accident. Consequently, we decline Moneypenny’s invitation to second-guess the district court’s founded determination that the evidence reliably demonstrated that Nevor was.likely to move further, up the ranks. In the last analysis, that determination depended upon a weighing of conflicting evidence, and such an appraisal falls peculiarly within the trial- court’s ken. See Reilly, 863 F.2d at 167.

Moneypenny next argues that Nevor’s failure to attend a specialized vocational rehabilitation program constituted a breach of his duty to mitigate damages and should have reduced his damages award. The district court saw the matter differently and did .not reduce the award on this account.

At the threshold, we note that mitigation is in the nature of an affirmative defense. See Allied Int’l, Inc. v. Int’l Longshoremen’s Ass’n, 814 F.2d 32, 38-39 (1st Cir. 1987). Thus, Moneypenny bore the burden to prove by a preponderance of the evidence that Nevor “failed to take reasonable steps to hold down [his] losses.” Id. As the proponent of an affirmative defense, Moneypenny also bore “the risk of equipoise." O’Neal v. McAninch, 513 U.S. 432, 444, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995).

• On appeal, Moneypenny ascribes two errors to the district court’s refusal to credit its mitigation defense. We start with its suggestion that the district court was obligated to give a fuller explanation of its ruling.

The Civil Rules provide that, after a bench trial, “the court must find .the facts specially and state its conclusions of law separately.” Fed. R. Civ. P. 52(a)(1). This rule, however, has practical limits. A “district court [is] not required to make findings on every detail, [is] not required to discuss all of the evidence that supports each of the findings made, and [is] not required to respond individually to each evidentiary or factual contention made by the losing side.” Addamax Corp. v. Open Software Found., Inc., 152 F.3d 48, 55 (1st Cir. 1998). The court’s findings are adequate as long as they “make plain the basis for its disposition of the case.” Valsamis v. González-Romero, 748 F.3d 61, 63 (1st Cir. 2014).

Here, the district court explained in considerable detail the basis for its findings on liability, concluding that Money-penny was liable under both the Jones Act (for negligence) and general maritime law (for unseaworthiness). See Nevor, 2016 WL 183906, at *4-5. It then set forth (again, in considerable detail) the basis for its calculation of damages. See id. at *5-7. Those calculations rejected, albeit implicitly, Moneypenny’s mitigation defense. The upshot is that the court found the facts with particularity, stated its legal conclusions plainly, and explained in no uncertain terms its disposition of the case. No more was exigible to satisfy the requirements of Rule 52(a). See Damon v. Sun Co., 87 F.3d 1467, 1480 (1st Cir. 1996); see also Banerjee v. Bd. of Trs. of Smith Coll., 648 F.2d 61, 66 (1st Cir. 1981).

The second branch of Moneypen-ny’s mitigation defense is its claim that the evidence required a finding of failure to mitigate. We disagree: the district court’s implicit conclusion that Moneypenny’s mitigation defense did not hold water is adequately supported in the record.

The relevant facts are susceptible to succinct summarization. Moneypenny introduced evidence that one of Nevor’s doctors prescribed a round of vocational rehabilitation sessions that Nevor did not attend. Nevor countered that he was never notified about this proposed regimen. He also introduced evidence that, even if he had been notified, the therapy was unavailable—the rehabilitation center that he was directed to attend treated only injuries (unlike Nevor’s) arising under state workers’ compensation law. We think it a commonsense proposition that a plaintiff cannot be charged with a failure to mitigate damages when the suggested mitigation meásure is unavailable to him.

What is more, the record is replete with testimony that, far from avoiding therapy, Nevor avidly sought it out. On one occasion, he asked his doctor to refer him for an additional round of physical therapy. At other times, he sought therapy on his own.

The short of it is that the district court faced a fact-sensitive determination on the mitigation issue, couched in evidence that lent itself to multiple interpretations. Where, as here, “the conclusions of the [trier] depend on its election among conflicting facts or its choice of which competing inferences to draw from undisputed basic facts, appellate courts should defer to such fact-intensive findings, absent clear error.” Reliance Steel, 880 F.2d at 576 (alteration in original) (quoting Irons v. FBI, 811 F.2d 681, 684 (1st Cir. 1987)). Such deference is appropriate in this instance, and we discern no clear error in the court’s implicit conclusion that Nevor was not guilty of failing to mitigate his damages.

This brings us to Moneypen-ny’s claim that the award of non-economic damages (for pain and suffering, mental anguish, and the like) is excessive and unsupported by the evidence. The court’s ultimate conclusion—the monetization of Nevor’s non-economic harms—is assayed for abuse of discretion. See Limone v. United States, 579 F.3d 79, 103 (1st Cir. 2009) (describing such a conclusion as a “classic example of a judgment call”). Such an award will stand unless it “shock[s] our collective conscience or raise[s] the specter of a miscarriage of justice.” Id. at 84.

We conclude that the district court’s non-economic damages award finds sufficient purchase in the record. Nevor offered ample evidence showing that he underwent significant pain and suffering, that his quality of life was reduced, and that he experienced lasting physical and emotional distress long after the accident. He submitted to a painful surgery,' endured a lengthy recovery, attended months of physical therapy sessions, and was forced to limit his physical activities. Moreover, Nevor faces the prospect of lasting consequences because his injuries (including some residual scarring) have been found to be permanent.

Non-economic damages are notoriously difficult to quantify. “[T]here is no scientific formula or measuring device which can be applied to place a precise dollar value” on pain, suffering, and other items of intangible harm. Limone, 579 F.3d at 105 (quoting Wagenmann v. Adams, 829 F.2d 196, 216 (1st Cir. 1987)). Given what Nevor has experienced and what he -predictably faces, we find the district court’s award to be within the wide universe of reasonable awards. Though generous, the award is proportional to the weight of the evidence and is neither conscience-shocking nor a harbinger of a miscarriage of justice. Indeed, it is consistent with awards in analogous cases. See, e.g., Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72, 80-82 (1st Cir. 2010) (affirming award of over $2,000,000 in non-economic damages where plaintiff sustained painful foot injury that resulted in disability).

For these reasons, the district court’s damages award must be affirmed in full.

B. Interest.

Moneypenny’s interest-related assignments of error can be divided into two tranches. First, Moneypenny submits that the successful Jones Act claim should have precluded any award of prejudgment interest. Second, Moneypenny submits that— even apart from his Jones Act argument— the district court should not have granted Nevor any prejudgment interest with respect to damages for future harm. We address these matters one by one, affording de novo review to questions of law and abuse-of-discretion review to judgment calls. See Limone, 579 F.3d at 102.

We preface our discussion of specific issues with a synopsis of the applicable legal doctrine. A seaman injured during the course of his employment may recover damages under a variety of statutory and common-law theories, including (as pertinent here) the Jones Act and general maritime law. The Jones Act provides a cause of action for a seaman injured through his employer’s negligence. See 46 U.S.C. §§ 30101-30106, Whether a plaintiff is entitled to prejudgment interest on an award of damages under the Jones Act, however, is open to question. The prevailing view appears to be that, in pure Jones Act suits, recovery of prejudgment interest is not permitted. See Petersen v. Chesapeake & Ohio Ry. Co., 784 F.2d 732, 740 (6th Cir. 1986). Our court has not squarely addressed this issue.

The situation is quite different with respect to general maritime law. Under that body of law, there is a common-law cause of action for injuries resulting from the unseaworthiness of a vessel on which a seaman was employed. See Poulis-Minott v. Smith, 388 F.3d 354, 366 (1st Cir. 2004). In that context, “[p]rejudgment interest is generally available.” Borges v. Our Lady of the Sea Corp., 935 F.2d 436, 443 n.1 (1st Cir. 1991).

There is a split of authority about whether an injured seaman who prevails on fully aligned claims under both the Jones Act and the unseaworthiness rubric may be awarded prejudgment interest. For example, some courts of appeals have held that a seaman is not entitled to prejudgment interest when he prevails on parallel Jones Act and unseaworthiness claims. See Petersen, 784 F.2d at 741; see also Wyatt v. Penrod Drilling Co., 735 F.2d 951, 956 (5th Cir. 1984) (noting that “[i]f the court may not award prejudgment interest on the Jones Act claim, there is no separate pure admiralty item on which to allow interest” (internal alteration and citation omitted)). The Second Circuit has viewed the matter differently. When a seaman prevails on both Jones Act and unseaworthiness claims and there are no exceptional circumstances militating against an award of prejudgment interest, that court has held that the seaman is entitled to prejudgment interest on the total amount of the award. See Magee v. U.S. Lines, Inc., 976 F.2d 821, 822 (2d Cir. 1992). That rule is preferable, the court reasoned, because it permits the plaintiff to “be paid under the theory of liability that provides the most complete recovery.” Id.

It is in this stormy sea that we must anchor our analysis. Moneypenny, though, attempts to circumnavigate the issue entirely. It claims that the district court’s damages award was based solely on a finding of Jones Act negligence and, thus, cannot bear the weight of prejudgment interest. The record belies this claim.

In its separate written order awarding prejudgment interest, the district court explicitly found that Nevor was entitled to prejudgment interest because the damages award was, at least in part, under general maritime law (that is, for unseaworthiness). The language of the district court’s earlier rescript supports this characterization. There, the court found that Money-penny’s failure to apply a non-skid product to the Odd Job’s slippery side “made the [boat] unseaworthy and substantially contributed to” Nevor’s injuries. Nevor, 2016 WL 183906, at *5. Additionally, the court found that Moneypenny’s failure either to provide proper training to its crew or to implement appropriate safety procedures rendered both the Vesper and the Odd Job unseaworthy and further contributed to Nevor’s injuries. See id.

The 'district court’s conclusion that, the damages award was based in part on a finding of unseaworthiness was not clearly erroneous. To begin, a district court’s characterization of its own findings is entitled to some deference. See Martha’s Vineyard Scuba Headquarters, Inc. v. Unidentified, Wrecked & Abandoned Steam Vessel, 833 F.2d 1059, 1066-67 (1st Cir. 1987) (acknowledging the “special role played by the writing judge in elucidating the meaning and intendment of an order which he authored”). The court below, sitting without a jury, was entitled to weigh the evidence and to draw reasonable inferences. See Reliance Steel, 880 F.2d at 576-77. In the circumstances of this case, we conclude, without serious question, that the damages award was a “mixed” award.

Struggling to right a sinking ship, Mon-eypenny asserts that even if the lack of non-skid product rendered the Odd Job unseaworthy, the record does not establish that this particular unseaworthiness contributed to Nevor’s injuries. We need not probe this point too deeply because, even assuming (albeit without deciding) that Moneypenny’s assertion may have some force, it would not change our conclusion. The district court’s findings regarding Moneypenny’s failure to provide proper training and to implement appropriate safety procedures are well-documented, and those findings are alone sufficient to show that the damages award was based at least in part on a viable theory of unseaworthiness. See Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 427, 79 S.Ct. 445, 3 L.Ed.2d 413 (1959) (explaining that “[ujnseaworthiness extends not only to the vessel but to the crew”); Cape Fear, Inc. v. Martin, 312 F.3d 496, 500 (1st Cir. 2002) (explaining that procedures crewmembers employ may render ship unseaworthy).

Having established that the damages award straddles both a successful Jones Act claim and a successful unseaworthiness claim, we turn to Moneypen-ny’s contention that the presence of the Jones Act claim poisons the well and precludes an award of prejudgment interest. We assume for argument’s sake—but do not decide—that a successful' Jones Act claim, standing alone, would not bear prejudgment interest. Even so, we reject Moneypenny’s contention. We hold that when a court, in • a bench trial, awards damages based on mixed Jones Act and unseaworthiness claims, prejudgment interest is available. We explain briefly.

To begin, we lay to rest a diversion. Moneypenny asserts that our analysis is controlled by the Supreme Court’s decision in Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990). There, the Court considered whether the estate of a deceased seamán could recover the seaman’s future lost earnings under general maritime law. See id. at 21, 111 S.Ct. 317. The Court observed that even if it were to create an exception to the traditional rule that unseaworthiness claims do not survive a seaman’s death, it would nevertheless bar the recovery of the deceased seaman’s lost wages because the Jones Act—which does include a limited survival right—already prohibits such a recovery. Thus, there was no principled basis for expanding the remedies available in a general maritime action based on strict liability. See id. at 33-36, 111 S.Ct. 317.

The ease at hand, however, is a different kettle of fish. The Miles plaintiff wanted the Court to create a general maritime law remedy that was previously unavailable. Here, however, Nevor seeks to have us retain a remedy—prejudgment interest on damages awarded in connection with admiralty torts—that was available long before the passage of the Jones Act. See City of Milwaukee v. Cement Div., Nat’l Gypsum Co., 515 U.S. 189, 195 & n.7, 196, 115 S.Ct. 2091, 132 L.Ed.2d 148 (1995). Seen in this light, this case fits much more closely with Atlantic Sounding Co. v. Townsend, 557 U.S. 404, 129 S.Ct. 2561, 174 L.Ed.2d 382 (2009), in which the Court concluded that the passage of the Jones Act did not implicitly deprive plaintiffs of their longstanding right to recover those damages historically available under general maritime law. See id. at 408, 129 S.Ct. 2561 (holding that the Jones Act did not preclude plaintiffs from seeking punitive damages in combined Jones Act and general maritime law cases); id. at 420, 129 S.Ct. 2561 (noting that “[u]nlike the situation presented in Miles, both the general maritime cause of action ... and the remedy ... were well established before the passage of the Jones Act”). .

With this potential distraction laid to rest, we return to the question of whether the intertwining of Jones Act and unseaworthiness claims precludes Nevor from any access to prejudgment interest. We approach this conundrum mindful that “prejudgment interest traditionally has been considered part of the compensation due plaintiff.” Osterneck v. Ernst & Whinney, 489 U.S. 169, 175, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989). The “essential rationale for awarding prejudgment interest is to ensure that an injured party is fully compensated for its loss,” and “[f]ull compensation has long been recognizéd ás a basic principle of admiralty law.” City of Milwaukee, 515 U.S. at 195-96, 115 S.Ct. 2091. Put simply, an award of prejudgment interest helps achieve the laudable goal of making an injured plaintiff whole. See id. at 196, 115 S.Ct. 2091. It follows that adopting Moneypenny’s grudging approach to prejudgment interest would prevent many prevailing plaintiffs from recovering damages generally considered part of their due compensation. See Osterneck, 489 U.S. at 175, 109 S.Ct. 987.

To be sure, a plaintiff who recovers damages for a general maritime law claim, such as an unseaworthiness claim, may lose his right to prejudgment, interest if “exceptional circumstances” make an award of interest inequitable. City of Milwaukee, 515 U.S. at 194-95, 115 S.Ct. 2091 (citation omitted). Such circumstances might include, say, undue delay by the prevailing party, exorbitant overestimation of damages, or bad faith. See Anderson v. Whittaker Corp., 894 F.2d 804, 809 (6th Cir. 1990) (citation omitted); Alkmeon Naviera, S.A. v. M/V Marina L, 633 F.2d 789, 797-98 (9th Cir. 1980) (collecting cases). But the record here evinces no such disabling circumstance: Nevor has prosecuted his case forcefully, but not unreasonably so.

Even though our court has not decided the precise question with which we are confronted, a persuasive analogy exists. We have held that when a plaintiff raises claims under parallel causes of action (both federal and state, for example) and receives a damages award straddling both of those fully aligned claims, the defendant may not cite the presence of a more restricted remedy on one claim to deny the plaintiff á more expansive remedy on the other claim. See Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 146 (1st Cir. 2009) (explaining that “a successful plaintiffs right to a particular remedy under federal law does not trump his right to a more advantageous remedy under state law”)- Thus, “[w]hen federal and state claims overlap, the plaintiff may choose to be awarded damages based on state law if that law offers a more generous outcome than federal law.” Id.; accord Freeman v. Package Mach. Co., 865 F.2d 1331, 1345 (1st Cir. 1988) (noting that although a prevailing plaintiff in such a situation is “entitled to only a single slice of the pie[,] ... the choice of the slice [is] his”).

This same paradigm seems altogether appropriate where, as here, a plaintiff has prevailed on fully aligned Jones Act and unseaworthiness claims. After all, the plaintiff is entitled to interest on the unseaworthiness claim and there is no logical reason why his broader success should strip him of that entitlement.

There is yet another leg to our voyage. Although we hold that the district court was correct in awarding some prejudgment interest (due to the successful unseaworthiness claim), we nonetheless agree with Moneypenny that the court went too far: in fashioning an award of prejudgment interest, the court should first have set to one side the damages attributable to future harm.

In this circuit, the law is well-established that “prejudgment interest should not be awarded on damages for future loss, either liquidated or unliquidat-ed.” Borges, 935 F.2d at 444-45 (collecting cases). This is a reflection of the commonsense notion that interest should not accrue before the harm itself has occurred. See id. at 445.

The law of the circuit doctrine requires this court (and, by extension, all lower courts within this circuit) to respect, in the absence of supervening authority, the decisions of prior panels on the same issue. See San Juan Cable LLC v. P.R. Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010). “Once we have decided a legal question and articulated our reasoning, there is usually no need for us to repastinate the same soil when another case presents essentially the same legal question.” Vander Luitgaren v. Sun Life Assur. Co. of Canada, 765 F.3d 59, 61 (1st Cir. 2014). Although there are a few exceptions to this rule, see San Juan Cable, 612 F.3d at 33 (describing narrow exceptions to law of the circuit doctrine), none applies here. We conclude, therefore, that the district court was bound to follow Borges, and its failure to do so constitutes reversible error.' Prejudgment interest must be limited to items of loss that were in the rear-view mirror at the time of the damages award and the concomitant entry of judgment (e.g., wages and earning capacity already lost, pain and suffering already experienced, and the like). Correspondingly, the award of prejudgment interest must omit items of loss not yet accrued as of that date (e.g., future loss of wages and earning capacity, future pain and suffering, and the like). On remand, the district court must reformulate its award of prejudgment interest in accordance with these principles.

III. CONCLUSION

We need go no further. For the reasons elucidated above, we affirm the damages award; affirm the award of prejudgment interest in part and reverse it in part; and remand for the entry of an amended judgment, nunc pro tunc, consistent with this opinion. The amended judgment shall, of course, carry post-judgment interest at the federal rate, see 28 U.S.C. § 1961(a), which will commence to run (by virtue of the nunc pro tunc provision) from the date of the original judgment, see Fiorentino v. Rio Mar Assocs. LP, SE, 626 F.3d 648, 652 (1st Cir. 2010).

Affirmed in part, reversed in part, and remanded. Two-thirds costs shall be taxed in favor of the plaintiff.

      . Nevor’s complaint named James R. Swartz, Moneypenny’s principal, as a codefendant. Nevor subsequently dropped Swartz as a party, though, and we make no further mention of him.

      . Nevor’s hospital and medical expenses were paid separately as part of the shipowner’s obligation of maintenance and cure. See Whitman v. Miles, 387 F.3d 68, 71-72 (1st Cir. 2004).

      .Moneypenny filed notices of appeal on two separate occasions. For simplicity’s sake, we treat the appeals as a unit.

      . In the court below, Moneypenny , made several unsuccessful attempts to strike- the testimony of Nevor's vocational expert (Michael LaRaia), On appeal, it complains of these denials in but a single sentence in its opening brief: a conclusory assertion that the district court abused its discretion in refusing to strike the testimony. We thus deem the argument undeveloped and consider it waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to' in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.”).

      . There is no question, though, that the district court did in fact consider the mitigation defense. At trial, the court acknowledged that the parties had "thoroughly covered” and "valiantly argued” the issue, and vouchsafed that it would "take [the mitigation defense] into consideration.”

      . There is, however, some play in the joints. Compare Wyatt v. Penrod Drilling Co., 735 F.2d 951, 955 (5th Cir. 1984) (noting that the Fifth Circuit has “disapproved the award of prejudgment interest in a Jones Act case tried •to a jury”), with Williams v. Reading & Bates Drilling Co., 750 F.2d 487, 491 (5th Cir. 1985) (holding that when a federal court sits in admiralty jurisdiction, the judge may exercise his discretion to award prejudgment interest on a Jones Act claim).

      . We take no view as to the appropriate interest rate to be applied. The court below borrowed the Rhode Island state rate for prejudgment interest in tort actions, see R.I. Gen. Laws § 9-21-10, and Moneypenny has not contested the court's use of that rate.

      . The mere fact that Nevor elected to sue simultaneously under both the Jones Act and general maritime law is not itself an exceptional circumstance. See McAllister v. Magnolia Petrol. Co., 357 U.S. 221, 224-25, 78 S.Ct. 1201, 2 L.Ed.2d 1272 (1958) (explaining that if a seaman "is to sue for both unseaworthiness [under general maritime law] and Jones Act negligence, he must do so in a single proceeding” and that such an injured seaman will "rarely forego” his right to seek relief under both causes of-action).

      . ,At oral argument, Nevor insisted that our opinion in Rivera v. Rederi A/B Nordstjernan, 456 F.2d 970 (1st Cir. 1972), supports his receipt of prejudgment interest on damages for future harms. This is magical 'thinking: Rivera held that trial judges have discretion to award prejudgment interest in some cases, but it did not address the propriety of awarding such interest with respect to damages for future harms. See id. at 976.