Halasa v. ITT Educational Services, Inc. , 690 F.3d 844 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3305
JASON H ALASA,
Plaintiff-Appellant,
v.
ITT E DUCATIONAL S ERVICES, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:10-cv-00437-WTL-MJD—William T. Lawrence, Judge.
A RGUED JUNE 6, 2012—D ECIDED A UGUST 14, 2012
Before E ASTERBROOK, Chief Judge, and W OOD and SYKES,
Circuit Judges.
W OOD , Circuit Judge. ITT Educational Services is a
for-profit corporation that runs “ITT Technical Institutes”
in several locations throughout the United States,
including Lathrop, California. Plaintiff Jason Halasa was
the Lathrop Campus’s College Director for six months in
2009. The parties provide competing accounts of the
end Halasa’s tenure: ITT says that Halasa was fired for
2 No. 11-3305
exhibiting poor management skills and delivering inad-
equate results; Halasa alleges that he was fired in viola-
tion of the False Claims Act, 31 U.S.C. § 3730(h), after
identifying and reporting several irregularities in the
way ITT was handling its federally subsidized loans
and grants for students. We conclude that even if
Halasa did engage in protected conduct under the Act,
he has not shown that he was fired because of this con-
duct. Thus, we affirm the decisions of the district court
granting summary judgment and costs in ITT’s favor.
I
ITT is a for-profit corporation that operates Technical
Institutes throughout the country. Like many such for-
profit institutions, nearly three-quarters of its total
cash receipts come from the federal treasury by way of
student loans and grants. See S. Comm. On Health, Educ.,
Labor and Pensions, For Profit Higher Education: The
Failure to Safeguard the Federal Investment and Ensure
Student Success, S. P RT . N O . 112-37, at 30 (July 30, 2012).
Students enroll in ITT’s Institutes, and they often pay
for those programs with federally-funded student aid.
In order to qualify to receive this aid on behalf of its
students, ITT must comply with certain regulatory re-
quirements, some of which are incorporated into a Pro-
gram Participation Agreement (PPA) between ITT and
the U.S. Department of Education.
Drawing all inferences in Halasa’s favor, as we must
at this stage of the litigation, Chicago Reg’l Council of Car-
penters v. Village of Schaumburg, 644 F.3d 353, 356 (7th Cir.
No. 11-3305 3
2011), we summarize the events underlying this case.
On March 9, 2009, Halasa began employment at ITT’s
Lathrop Campus as its College Director. According to
Halasa, the campus was in disarray when he arrived. It
was undergoing a large remodeling project, and several
important leadership positions were vacant. Halasa
contends that this had created a vacuum of leadership.
In the absence of proper oversight, he said, some Lathrop
employees had begun engaging in a variety of unlawful
recruiting and reporting practices. Student recruiters
(that is, employees responsible for persuading prospec-
tive students to enroll in Institute programs) were
paid on an incentive basis—a scheme that is expressly
prohibited by the PPA. See 20 U.S.C. § 1094(a)(20) (prohi-
biting “commission, bonus, or other incentive payment
based directly or indirectly on success in securing enroll-
ments”). Other ITT employees were allegedly pressured
to change the entrance exam scores of prospective stu-
dents, to alter the grades of students to improve their
job prospects, and to misreport the employment
statistics of graduates. Halasa reported all these observa-
tions to his direct supervisor, Jeff Ortega. He also
reported some of them to Valory Hemphill, ITT’s
Regional Director of Recruitment, and Chris Carpentier,
its Director of Compliance.
Meanwhile, ITT was experiencing some problems of
its own with Halasa. ITT received several complaints
about Halasa’s behavior via its Ethics Alert Line. Ac-
cording to these complaints, Halasa smoked a hookah
pipe with other ITT employees in the campus parking
4 No. 11-3305
lot during a student orientation event. He also allegedly
referred to himself as the “King” and his colleagues as
the “Mafia.” (We have highlighted only a few such inci-
dents here. There are others. For example, Halasa
allegedly hatched an ill-advised plan to close all of the
restrooms on the Lathrop Campus simultaneously.
When employees needed to use those facilities, he pro-
posed that they to go to a nearby Arby’s fast-food restau-
rant.) Beyond these incidents, the Lathrop campus was
performing below expectations. During an operational
review conducted in May 2009, ITT Executive Vice Presi-
dent Gene Feichtner was unimpressed with the
campus’s development under Halasa’s management. A
few months later, in August 2009, the campus received
a low score in an internal audit, prompting ITT CEO
Kevin Modany to send an email to Halasa indicating
his “disappoint[ment]” with the campus’s progress.
Finally, on September 9, 2009, several vice presidents
and the CEO decided to terminate Halasa’s employment.
The parties disagree about what prompted this. ITT
asserts that it fired Halasa because it had lost “confidence
in his ability to lead the college.” Halasa contends that
ITT ended their relationship because he had identified
and reported violations of ITT’s legal obligations under
the PPA. Believing that this type of retaliation violates
the False Claims Act, Halasa filed suit in the U.S.
District Court for the Southern District of Indiana, where
ITT is headquartered. The district court granted sum-
mary judgment in favor of ITT. Halasa now appeals.
No. 11-3305 5
II
We review the district court’s grant of summary judg-
ment de novo. Village of Schaumburg, 644 F.3d at 356. In
opposing ITT’s summary judgment motion on his claim
for unlawful retaliatory discharge under the Act, Halasa
needed to point to evidence showing first that he
engaged in protected conduct and then that he was fired
“because of” that conduct. 31 U.S.C. § 3730(h)(1); Brandon
v. Anesthesia & Pain Mgmt. Assocs., 277 F.3d 936, 944
(7th Cir. 2002).
Section 3730(h)(1) protects two categories of conduct.
The statute has long prevented employers from terminat-
ing employment for conduct that is “in furtherance of
an action under this section.” In Brandon, we explained
that this language reached conduct that put an em-
ployer “on notice of potential [False Claims Act] litiga-
tion.” 277 F.3d at 945. In 2009, Congress amended the
statute to protect employees from being fired for under-
taking “other efforts to stop” violations of the Act, such
as reporting suspected misconduct to internal super-
visors. For the purposes of this appeal, we proceed on
the assumption that Halasa’s conduct falls within the
scope of the statute’s amended language. As we noted
above, recruiters at the Lathrop Campus were allegedly
compensated on the basis of their recruitment success
in violation of 20 U.S.C. § 1094(a)(20), a requirement that
was specifically incorporated into ITT’s PPA. See id. at
§ 1094(a). Furthermore, some prospective students
were allegedly receiving inappropriate assistance on
placement exams (so-called “ability to benefit” exams)
6 No. 11-3305
or had their scores altered post hoc so that they could
qualify to receive financial aid. See id. at § 1091(d)(1).
Halasa investigated these claims and reported his
findings to Ortega, Hemphill, and Carpentier, pre-
sumably to ensure that ITT ended these practices and
to prevent ITT from making any false certifications to
the U.S. Department of Education in connection with
its PPA. We are satisfied that Halasa’s evidence would
permit a trier of fact to find that he engaged in “efforts
to stop” potential FCA violations.
Even assuming that his conduct was protected by
the Act, however, Halasa faces a second hurdle. He
must show that his protected conduct was connected to
ITT’s decision to fire him. Practically, in order to avoid
summary judgment he must have evidence that would
support a finding that he was fired “because of” his
protected conduct. That is where his case founders. The
record is undisputed that the decision to fire Halasa
was made by Vice President Barry Simich and approved
by Senior Vice President Nina Esbin, Executive Vice
President Feichtner, and CEO Modany. Yet Halasa has
no evidence that any of these decisionmakers knew of
his protected conduct. Rather, the record shows that
Halasa reported his findings only to Ortega, Hemphill,
and Carpentier and there is no indication that any of
these people passed along Halasa’s findings to the
decisionmakers. Halasa’s best evidence is deposition
testimony stating that all formal ethics complaints are
required to be forwarded to Simich. But none of
Halasa’s False Claims Act-related reports was expressed
No. 11-3305 7
as a formal ethics complaint, and there is no evidence
either that any of these reports ever reached a deci-
sionmaker or that any of them otherwise learned
of Halasa’s protected activity.
Unable to prove causation as a factual matter, Halasa
argues that we should find causation as a matter of law.
He suggests that we impute to ITT (and its agents)
any knowledge that Ortega gained when Halasa
reported potential violations. This argument seriously
misunderstands the way liability rules work in the corpo-
rate setting. The broad (and unprecedented) doctrine
of constructive knowledge that Halasa urges would
defeat the specific statutory requirement that an em-
ployee’s termination be “because of” her protected con-
duct. The law is clear that it is the decisionmakers’ knowl-
edge that is crucial. Apart from narrow exceptions
like the one that has come to be called the “cat’s paw”
theory, see Staub v. Proctor Hospital, 131 S. Ct. 1186
(2011), which does not apply here, companies are not
liable under the False Claims Act for every scrap of
information that someone in or outside the chain of
responsibility might have.
Halasa has not shown that ITT fired him because of any
protected conduct. The district court therefore properly
granted summary judgment in ITT’s favor, because
Halasa failed to respond with evidence on one of the
essential elements of his claim for retaliatory discharge
in violation of the Act.
8 No. 11-3305
III
Halasa also appeals from district court’s decision re-
quiring him to pay costs in the amount of $33,401.04
pursuant to 28 U.S.C. § 1920, and another $2,975.00
under Federal Rule of Civil Procedure 26(b)(4)(E)(i) for
the deposition fees of an expert witness, Dr. Gerald
Lynch. We first address our appellate jurisdiction over
this part of the case, and then the merits of the two orders.
A
As always, we must ensure that our jurisdiction is
secure before addressing the merits of a question. See
Blue v. International Bhd. of Elec. Workers Local Union 159,
676 F.3d 579, 582 (7th Cir. 2012). Halasa’s notice of
appeal predates the district court’s order for costs and is
thus not effective as to that order. See Ackerman v. North-
western Mut. Life Ins. Co., 172 F.3d 467, 468 (7th Cir.
1999) (“The notice of appeal from the order dismissing
their suit could not bring up an order entered later.”).
The notice of appeal, however, is not the only docu-
ment that can satisfy the requirements of Appellate
Rules 3 and 4. As the Supreme Court stated in Smith v.
Barry, 502 U.S. 244, 248-49 (1992), “[i]f a document filed
within the time specified by Rule 4 gives the notice re-
quired by Rule 3, it is effective as a notice of appeal.” See
also In re Turner, 574 F.3d 349, 354 (7th Cir. 2009)
(“[R]equirements for perfecting an appeal that do not
involve deadlines are not jurisdictional”). Thus in Smith
the Court ruled that a timely filed appellate brief sub-
No. 11-3305 9
stituted for a properly filed notice of appeal. Here,
Halasa’s opening appellate brief was filed within 30 days
of the district court’s costs order, and it clearly gives
notice of his intent to contest that ruling. We therefore
have jurisdiction over this aspect of Halasa’s appeal.
B
Halasa’s appeal from the costs order presents a novel
question: How should we reconcile provisions in the
federal rules providing for the cost-shifting of expert
discovery with statutes that impose limits on payable
fees for expert witnesses? Formally, this requires us to
consider whether the payment provisions of Federal
Rule of Civil Procedure 26(b)(4)(E) supersede, by force
of the Rules Enabling Act, 28 U.S.C. § 2072(b), the rules
set forth in 28 U.S.C. § 1821, which governs witness
expenses. The costs ITT would like to have reimbursed
are for Lynch’s deposition preparation, travel to and
from his deposition, and time spent reviewing his dep-
osition transcript.
The Rules Enabling Act authorizes the Supreme Court
to “prescribe general rules of practice and procedure,”
28 U.S.C. § 2071, and further provides that “[a]ll laws
in conflict with such rules shall be of no further force
or effect.” Id. at § 2072(b). In order to ascertain the com-
bined effect of Rule 26(b)(4)(E) and § 1821, we must first
determine whether the payment provisions in Rule 26
postdate the relevant provisions of 28 U.S.C. § 1821. See
Jackson v. Stinnett, 102 F.3d 132, 135 (5th Cir. 1996) (The
supersession clause trumps “only statutes passed before
10 No. 11-3305
the effective date of the rule in question.”). If this part
of Rule 26 went into effect after the statute was passed,
then we must decide whether there is a conflict between
the rule and the statute. See Collins v. Gorman, 96 F.3d
1057, 1059 (7th Cir. 1996). If there is such a conflict, then
under the supersession clause, the rule controls; if there
is no conflict, then we must determine how to apply
both the rule and the statute.
The first question is readily answered. As the Supreme
Court explained in Crawford Fitting Co. v. J.T. Gibbons,
Inc., 482 U.S. 437, 439-40 (1987), Congress in 1793
“enacted a general provision linking some taxable costs . . .
to the practice of the court of the State in which the
federal court sat.” Dissatisfied with the widely divergent
practices that persisted through the mid-nineteenth
century, Congress passed the Act of Feb. 26, 1853, 10 Stat.
161, which comprehensively regulated fees and costs in the
federal courts. Crawford Fitting, 482 U.S. at 440; see also
Taniguchi v. Kan Pac. Saipan, Ltd., 132 S. Ct. 1997, 2001
(2012). Those “sweeping reforms” have “carried forward
to today,” with occasional modifications by Congress.
Crawford Fitting, 482 U.S. at 440. Notably for our pur-
poses, Congress amended § 1821 in 1959 specifically to
include “the taking of a deposition pursuant to any rule
of a court of the United States.” Thus, since 1959 the
limitations on reimbursement set forth in § 1821 have
applied not only to trial witnesses, but also to deposition
witnesses. (This disposes of the timing issue that the
parties have debated: if § 1821 applies, then it would
govern any award of fees, whether the motion was
made at the pre-trial stage, during the trial, or post-trial.)
No. 11-3305 11
By contrast, the provisions now appearing in Civil
Rule 26(b)(4)(E) for the payment of expert witnesses
in discovery were added after the 1959 amendment to
§ 1821. Subsection (b)(4) to Rule 26 was introduced
with the 1970 amendments to the Civil Rules; it required
a court to issue an order “that the expert be paid a rea-
sonable fee for time spent in responding to discovery”
and “that the party whose expert is made subject to
discovery be paid a fair portion of the fees and expenses . . .
incurred.” See F ED. R. C IV. P. 26, adv. comm. n. (1970
Amendment). These provisions took on their current
form in 1993, after a major set of revisions, and were
then renumbered as subsection (b)(4)(E) in the 2010
amendments. FED. R. C IV. P. 26, adv. comm. nn. (1993
Amendments, 2010 Amendments). In short, because the
relevant statutory provision was enacted in 1959 and
the relevant rule was promulgated in 1970 (and revised
in 1993), the rule prevails over any inconsistent part of
the statute.
But is there a conflict? There is surprisingly little law
on this issue. The case that comes closest to addressing
this issue is from the D.C. Circuit, but that court never
squarely confronted the question now before us. It
noted that Ҥ 1821(b) does in fact limit witness fees to
$40 per day,” Haarhuis v. Kunnan Enter., Ltd., 177
F.3d 1007, 1015 (D.C. Cir. 1999), but then it went on to
assume the answer to the question before us: whether
that limit carries over to an award made under Rule 26
(then Rule 26(b)(4)(C)). After noting that the expert
there was seeking fees under Rule 26, it apparently
found that § 1821 was irrelevant, and then went on to
12 No. 11-3305
conclude that the award of a fee based on the expert’s
normal charge of $300 per hour for the time he spent
“responding to the opposing party’s discovery request”
was “reasonable.” Id.; see also Trepal v. Roadway Express,
Inc., 266 F.3d 418, 426-27 (6th Cir. 2001); Anderson v. City
of St. Louis, 220 F.3d 898, 905 (8th Cir. 2000); Louisiana
Power & Light Co. v. Kellstrom, 50 F.3d 319, 332-33 (5th
Cir. 1995). The district courts have taken different ap-
proaches to the way in which § 1821 applies to motions
for costs under Rule 26(b)(4)(E) when those particular
items are also addressed in § 1821. Compare, e.g., United
States v. Davis, 87 F. Supp. 2d 82, 91 (D.R.I. 2000) (“no
need to depart from th[e] rule” set out in Crawford
Fitting in the context of Rule 26, and therefore limiting
attendance fees to $40 per day); Hm v. City of Creve Coeur,
No. 4:07-CV-00946, 2010 WL 1816693 at *2 (E.D. Mo.
May 4, 2010) with Jorden v. Steven J. Glass, MD, No. 09-
1715, 2010 WL 3023347 at *3 (D.N.J. July 23, 2010) (dis-
tinguishing between fee payable to deposition witness
under § 1821 and fee payable to expert deposition
witness under Rule 26(b)(4)).
There are respectable arguments both for reconciling
the rule and the statute and for finding a conflict that
would require giving precedence to the rule. The
former conclusion would flow from literal adherence
to Crawford Fitting, under which one would find that
Rule 26 authorizes recoupment of expenses and § 1821
simply caps the amount that may be awarded. Crawford
Fitting involved the computation of costs taxable
under Rule 54; in that context, the Court found a way to
harmonize the rule and the statute. It held that the effect
No. 11-3305 13
of the “language and interrelation” of § 1821 and Rule 54
(directing the entry of costs for a prevailing party) was
(1) that the rule “provides that the cost shall be taxed
against the losing party,” (2) that another statute—28
U.S.C. § 1920—directs that witness fees were among
the costs that could be taxed, and finally, (3) that Ҥ 1821
specifies the amount of the [witness] fee that must be
tendered.” 482 U.S. at 441. Although Rule 54 and Rule 26
provide distinct avenues of cost recovery, Chambers v.
Ingram, 858 F.2d 351, 360-61 (7th Cir. 1988), the same
methodology might apply to both, especially because
nothing in § 1821 limits its rules to awards to prevailing
parties. Under this view, one would say that
Rule 26(b)(4)(E) directs a district court to “require” the
payment of a reasonable or fair fee to compensate
the expert for time spent in responding to discovery,
F ED . R. C IV. P. 26(b)(4)(E), but that the amount
recoverable for certain components of the expert’s
expenses is dictated by statute. Section 1821 sets a man-
datory cap on certain specified costs related to the
taking of a “deposition pursuant to any rule or order of
a court of the United States.” 28 U.S.C. § 1821(a)(1).
Those costs include an attendance fee of $40, actual
expenses of travel, and a subsistence allowance con-
sistent with federal law. See id. § 1821(b), (c), (d).
The other approach would reject such a close analogy
to Crawford Fitting and Rule 54. To begin with, the lan-
guage of the two rules is different. Rule 54(d) refers
to “costs” generically, while Rule 26(b)(4)(E)(i) says that
“[u]nless manifest injustice would result, the court must
require that the party seeking discovery . . . pay the expert
14 No. 11-3305
a reasonable fee . . . .” (Emphasis added.) This amounts to
a much more explicit expense-shifting mandate, and it
also provides some guidance on the amount of costs
(i.e., a “reasonable” fee). In Collins, we observed that the
1993 amendments to the rules were “designed to
reduce the expense of litigation without altering who
must bear that expense.” 96 F.3d at 1060. See also Gwin
v. American River Transp. Co., 482 F.3d 969, 975 (7th
Cir. 2007) (stating that the relevant language of Rule 26,
then in subpart (b)(4)(C), required only that “the expert’s
fees must be reasonable.”) The Committee Notes that
accompanied the addition of subpart (4)(E) confirm this
view, stating that “[c]oncerns regarding the expense of
such depositions [meaning those of experts, whether
testifying or just for trial preparation] should be
mitigated by the fact that the expert’s fees for the dep-
osition will ordinarily be borne by the party taking
the deposition.” FED. R. C IV. P. 26, adv. comm. nn. (1993
Amendments, Subdivision (b)).
In choosing between these two approaches, we think
it important to pay heed to the differences between
Rule 54 and Rule 26. Both rules direct the court to
shifts some costs; but as we have noted, unlike Rule 54,
Rule 26 sets out a substantive standard—a reasonable
fee for time spent in responding to discovery. We think
it unrealistic in the extreme to assume that $40 is
by definition a “reasonable” fee. Rule 26’s flexible rea-
sonableness standard is “irreconcilabl[e]” with the
hard-and-fast schedule embodied in § 1821. Henderson v.
United States, 517 U.S. 654, 663 (1996). This is not a
case where the statute and the rule both contain
No. 11-3305 15
flexible standards that can easily be read together. United
States v. Microsoft, 165 F.3d 952, 959-60 (D.C. Cir. 1999).
Rather, the rule operates to give courts the discretion
to award a fee that appropriately compensates an
expert witness, while application of the statute “ex-
tinguish[es] all discretion.” Crawford Fitting, 482 U.S.
at 446 (Marshall, J., dissenting). Importantly, § 1821 ac-
knowledges that other laws may override its terms: it
begins with the phrase “[e]xcept as otherwise provided
by law.” 28 U.S.C. § 1821(a)(1). Rule 26, the later-enacted
of the two, does “otherwise provide[].” Although
we consider it a close call, we conclude that the flexible
authorization for a reasonable fee contained in Rule 26
supersedes the specific schedule outlined in § 1821(b).
This means, as the district court held, that certain
expenses and fees associated with experts are not
capped by § 1821 when recovered under Rule 26.
ITT identified several items relating to Dr. Lynch for
which it was seeking reimbursement: (1) deposition
preparation, (2) travel to and from the deposition, and
(3) time spent reviewing his deposition transcript. We
agree with the district court that the fact that ITT did
not seek these fees until it filed its bill of costs is of no
moment; its request was timely. On the merits, we
further find no abuse of discretion in the district court’s
conclusion that Dr. Lynch’s total fee of $2,975.00 was
reasonable, or in its award of costs in the amount
of $33,401.04.
We A FFIRM the judgment of the district court.
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