Derek Hoggett v. University of Phoenix ( 2017 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES and STATE OF                       No. 14-17492
    CALIFORNIA ex rel. DEREK HOGGETT
    and TAVIS GOOD,                                    D.C. No.
    Plaintiffs-Appellants,            2:10-cv-02478-
    MCE-EFB
    v.
    UNIVERSITY OF PHOENIX; APOLLO                      OPINION
    GROUP, INC.,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Eastern District of California
    Morrison C. England, Jr., District Judge, Presiding
    Argued and Submitted February 14, 2017
    San Francisco, California
    July 25, 2017
    Before: Ronald M. Gould and Marsha S. Berzon, Circuit
    Judges, and Marvin J. Garbis, * District Judge.
    Opinion by Judge Gould
    *
    The Honorable Marvin J. Garbis, United States District Judge for
    the District of Maryland, sitting by designation.
    2    U.S. EX REL. HOGGETT V. UNIVERSITY OF PHOENIX
    SUMMARY **
    Appellate Jurisdiction
    The panel dismissed as untimely relators’ appeal from
    the dismissal of their qui tam suit under the False Claims
    Act.
    The panel held that the relators’ post-judgment motion,
    styled as a motion to alter or amend the judgment under Fed.
    R. Civ. P. 59, was in substance a motion only to stay entry
    of judgment and therefore did not toll the time to file a notice
    of appeal under Fed. R. App. P. 4(a)(4).
    COUNSEL
    Daniel R. Bartley (argued), Bartley Law Offices, Campbell,
    California, for Plaintiffs-Appellants.
    Jonathan C. Bunge (argued), Quinn Emanuel Urquhart &
    Sullivan LLP, Chicago, Illinois; Leonid Feller, Kirkland &
    Ellis LLP, Chicago, Illinois; Todd Michael Noonan, DLA
    Piper LLP, Sacramento, California; for Defendants-
    Appellees.
    **
    This summary constitutes no part of the opinion of the court. It
    has been prepared by court staff for the convenience of the reader.
    U.S. EX REL. HOGGETT V. UNIVERSITY OF PHOENIX           3
    OPINION
    GOULD, Circuit Judge:
    Relators Derek Hoggett and Tavis Good (collectively
    “Relators”) appeal the district court’s dismissal of their qui
    tam lawsuit against the University of Phoenix and the Apollo
    Group (collectively “UOPX”). Relators allege that UOPX
    violated the False Claims Act (FCA), 31 U.S.C. §§ 3729–
    3733, and the California False Claims Act, Cal. Gov’t Code
    §§ 12650–12656, by knowingly submitting false
    certifications and making false statements to the government
    that it was complying with the recruiter incentive
    compensation ban in order to receive federal student
    financial aid funding under Title IV of the Higher Education
    Act (HEA). We conclude that their appeal is untimely, and
    we dismiss for lack of jurisdiction.
    I
    UOPX is one of the largest for-profit post-secondary
    education providers in the United States. It receives large
    amounts of money from the federal government in the form
    of Title IV student financial aid. In December 2009, UOPX
    entered into a settlement agreement for $67,500,000 with the
    United States and two relators, Mary Hendow and Julie
    Albertson, to settle a qui tam lawsuit involving allegations
    that UOPX violated the FCA by presenting claims to the
    government for payment in connection with Title IV
    programs. Settlement Agreement, United States ex rel.
    Hendow v. Univ. of Phoenix, No. 2:03-cv-00457-GEB-DAD
    (E.D. Cal. Dec. 16, 2009), ECF No. 345, Ex. A. The
    allegations asserted that UOPX falsely certified that it was
    in compliance with the HEA provision relating to incentive
    compensation, 20 U.S.C. § 1094(a)(20), and/or the
    4       U.S. EX REL. HOGGETT V. UNIVERSITY OF PHOENIX
    associated regulations, 34 C.F.R. § 668.14(b)(22). 
    Id. at 2.
    1
    The settlement covered the period from March 1997 to
    December 11, 2009, and did not include an
    acknowledgment, admission, or concession of wrongdoing.
    
    Id. at 2,
    13–15.
    Relators were enrollment counselors at UOPX during
    part of the time period covered by the Hendow settlement
    and after December 11, 2009. On September 15, 2010,
    Relators filed this suit, alleging that UOPX continued to
    knowingly violate the incentive compensation ban after the
    settlement period in Hendow. The government declined to
    intervene.
    After discovery, UOPX filed a motion to dismiss
    Relators’ complaint for lack of jurisdiction. On July 24,
    2014, the district court dismissed the case with prejudice,
    concluding that it did not have jurisdiction because of the
    1
    To receive funds under Title IV of the HEA, “schools must enter
    with the [Department of Education] into a Program Participation
    Agreement, in which they agree to abide by a host of statutory,
    regulatory, and contractual requirements.” United States ex rel. Lee v.
    Corinthian Colls., 
    655 F.3d 984
    , 989 (9th Cir. 2011). One of these
    requirements is the “recruiter-incentive compensation ban, which
    prohibits institutions from paying recruiters ‘incentive payments’ based
    on the number of students they enroll.” 
    Id. A safe
    harbor provision
    “provides that an educational institution may, without violating the ban
    on incentive compensation, provide ‘payment of fixed compensation,
    such as a fixed annual salary or a fixed hourly wage, as long as that
    compensation is not adjusted up or down more than twice during any
    twelve month period, and any adjustment is not based solely on the
    number of students recruited, admitted, enrolled, or awarded financial
    aid.’” 
    Id. (quoting 34
    C.F.R. § 668.14(b)(22)(ii)(A) (2010)). This safe
    harbor provision was eliminated effective July 2011, after this suit was
    filed. 
    Id. at 989
    n.1.
    U.S. EX REL. HOGGETT V. UNIVERSITY OF PHOENIX                  5
    public disclosure bar. 2 See 31 U.S.C. § 3730(e)(4). On
    August 21, 2014, Relators filed a post-judgment motion
    captioned “Relators’ Motion, Pursuant to FRCP Rule 59(e),
    to Stay the Order Dismissing and Final Judgment, Pending
    Ninth Circuit Court of Appeals Decision in the United States
    ex rel. Lee v. Corinthian Colleges.” The district court denied
    Relators’ motion on November 18, 2014. Relators filed a
    notice of appeal—as to both the dismissal of their case and
    the order denying their post-judgment motion—on
    December 14, 2014.
    II
    “A timely notice of appeal is mandatory and
    jurisdictional.” Bordallo v. Reyes, 
    763 F.2d 1098
    , 1101 (9th
    Cir. 1985). If an appeal is untimely, the Court of Appeals
    lacks jurisdiction and must dismiss the appeal. United States
    ex rel. Haight v. Catholic Healthcare W., 
    602 F.3d 949
    , 953
    (9th Cir. 2010). We conclude that we lack jurisdiction to
    consider this appeal because it is untimely.
    Ordinarily, if the government declines to intervene in a
    qui tam FCA action, the relator must file a notice of appeal
    within 30 days after the district court’s entry of final
    2
    The FCA’s public disclosure bar was amended by the Patient
    Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119,
    in March 2010. See Graham Cty. Soil & Water Conservation Dist. v.
    United States ex rel. Wilson, 
    559 U.S. 280
    , 283 n.1 (2010). Before those
    amendments, the public disclosure bar deprived federal courts of subject
    matter jurisdiction when the fraud had been publically disclosed, unless
    the relator was an “original source.” 31 U.S.C. § 3730(e)(4)(A) (2006).
    We recently held that the 2010 amendments transformed the public
    disclosure bar from a jurisdictional bar into an affirmative defense. See
    Prather v. AT&T, Inc., 
    847 F.3d 1097
    , 1103 (9th Cir. 2017). Because
    we dismiss this appeal as untimely, we do not reach and address any
    effect that Prather may have had on this case.
    6    U.S. EX REL. HOGGETT V. UNIVERSITY OF PHOENIX
    judgment. United States ex rel. Eisenstein v. City of New
    York, 
    556 U.S. 928
    , 937 (2009); Fed. R. App. P. 4(a)(1)(A).
    However, if a party files one of the motions listed in Federal
    Rule of Appellate Procedure (FRAP) 4(a)(4)(A), the time to
    file a notice of appeal is tolled during the motion’s pendency.
    Relevant here, FRAP 4(a)(4)(A) includes motions to alter or
    amend the judgment under Federal Rule of Civil Procedure
    (FRCP) 59 so long as the motion is filed no later than 28 days
    after the entry of judgment. See Fed. R. App. 4(a)(4)(A)(iv);
    Fed. R. Civ. P. 59(e). If an FRCP 59 motion to alter or
    amend the judgment is timely filed, the time to file a notice
    of appeal begins to run “from the entry of the order disposing
    of” the FRCP 59 motion. Fed. R. App. P. 4(a)(4)(A).
    Here, Relators filed a post-judgment motion—styled as
    a FRCP 59(e) motion—within 28 days after the entry of
    judgment, and filed the notice of appeal within 30 days after
    the district court denied that motion. Nonetheless, UOPX
    argues Relators’ appeal was untimely. UOPX asserts that
    Relators’ post-judgment motion, although styled as a Rule
    59(e) motion, was in substance a motion only to stay the
    entry of judgment, which does not toll the time to file a
    notice of appeal. We agree.
    A motion’s “nomenclature is not controlling.” Miller v.
    Transamerican Press, Inc., 
    709 F.2d 524
    , 527 (9th Cir.
    1983) (quoting Sea Ranch Ass’n v. Cal. Coastal Zone
    Conservation Comm’ns, 
    537 F.2d 1058
    , 1061 (9th Cir.
    1976)). Instead, we “construe [the motion], however styled,
    to be the type proper for the relief requested.” 
    Id. (construing a
    motion styled as an FRCP 59(e) motion as an FRCP 60(a)
    motion because the court’s amendment memorialized a prior
    oral ruling, and was thus a correction of a clerical error
    properly addressed under FRCP 60(a)). We must therefore
    look to the substance, not simply the title, of Relators’ post-
    U.S. EX REL. HOGGETT V. UNIVERSITY OF PHOENIX           7
    judgment motion to determine whether it is in substance a
    motion to alter or amend the judgment.
    “[A] postjudgment motion will be considered a Rule
    59(e) motion [to alter or amend the judgment] where it
    involves ‘reconsideration of matters properly encompassed
    in a decision on the merits.’” Osterneck v. Ernst & Whinney,
    
    489 U.S. 169
    , 174 (1989) (quoting White v. N.H. Dep’t of
    Emp’t Sec., 
    455 U.S. 445
    , 451 (1982)); see also Buchanan v.
    Stanships, Inc., 
    485 U.S. 265
    , 268–69 (1988) (concluding
    that a post-judgment motion for costs styled as a motion to
    alter or amendment the judgment was not an FRCP 59(e)
    motion because “[a]ssessment of such costs [predicated on
    FRCP 54(d)] does not involve reconsideration of any aspect
    of the decision on the merits”). “[T]o alter or amend the
    judgment . . . requir[es] a ‘substantive change of mind by the
    court.’” 
    Bordallo, 763 F.2d at 1102
    (quoting 
    Miller, 709 F.2d at 527
    ). A motion that does not request a substantive
    change of mind by the court is not an FRCP 59(e) motion to
    alter or amend the judgment. See 
    id. Here, Relators’
    motion did not argue for a substantive
    change in the district court’s decision. Relators did not
    contend that the district court clearly erred, present the
    district court with newly discovered evidence, or assert an
    intervening change in the controlling law. See Wood v.
    Ryan, 
    759 F.3d 1117
    , 1121 (9th Cir. 2014). In other words,
    Relators presented no ground upon which the district court
    could grant a motion to alter or amend its judgment. See 
    id. (“A district
    court may grant a Rule 59(e) motion if it ‘“is
    presented with newly discovered evidence, committed clear
    error, or if there is an intervening change in the controlling
    law.”’” (emphasis omitted) (quoting McDowell v. Calderon,
    
    197 F.3d 1253
    , 1255 (9th Cir. 1999) (en banc) (per
    curiam))). Instead, Relators said they were asking the
    8       U.S. EX REL. HOGGETT V. UNIVERSITY OF PHOENIX
    district court to “amend” the order and judgment, but
    actually only asked for a stay until this court decided the
    then-pending appeal in United States ex rel. Lee v.
    Corinthian Colleges, Court of Appeals No. 13-55700. 3 We
    will “not strain to characterize artificially” a motion as
    something it is not, simply to keep an appeal alive. Munden
    v. Ultra-Alaska Assocs., 
    849 F.2d 383
    , 386 (9th Cir. 1988).
    Relators’ motion was not, in substance, an FRCP 59(e)
    request to alter or amend the judgment; it was a request to
    stay.
    Relators’ argument that they properly urged the district
    court to amend the substance of its decision by incorporating
    the arguments set forth in an amicus brief (filed in Lee) that
    Relators attached to their post-judgment motion is
    unpersuasive. The post-judgment motion states: “As
    reflected in [the attached] 30-page amicus curiae brief, the
    public disclosure bar is a strongly contested issue in the
    Corinthian Colleges case. In its subject amicus brief filed in
    Lee, DOJ asserts, inter alia, that the lawsuits with similar
    allegations filed against other schools should not trigger the
    public disclosure bar.” Relators did not explain how the
    arguments made in the amicus brief applied to the district
    court’s order, how that brief showed an intervening change
    in the law, or how those arguments or legal authorities
    showed that the district court erred. 4
    3
    This court issued a memorandum disposition in United States ex
    rel. Lee v. Corinthian Colleges on June 9, 2016, affirming the district
    court’s dismissal for lack of subject matter jurisdiction. 652 F. App’x
    503 (9th Cir. June 9, 2016).
    4
    To the extent Relators assert that the amicus brief itself constitutes
    new legal authority presented to the district court, we reject this
    argument. A brief—amicus or otherwise—is not legal authority.
    U.S. EX REL. HOGGETT V. UNIVERSITY OF PHOENIX                   9
    III
    We recognize that by looking to the substance of the
    motion and the relief requested, we place the burden “upon
    the party seeking to appeal the obligation to determine for
    itself whether a motion denominated as a[n FRCP] 59(e)
    motion does in fact fall within the parameters for which that
    rule is designed.” Fincher v. Keller Indus., Inc., 
    905 F.2d 691
    , 693 (3d Cir. 1990) (holding that a motion filed “as a
    Rule 59(e)” was not a motion to alter or amend the judgment
    and did not toll the time to file an appeal because the “motion
    for costs was wholly collateral to the judgment on the
    merits”). This result, however, is required by precedent from
    the Supreme Court and our circuit. See, e.g., 
    Buchanan, 485 U.S. at 266
    –69; 
    Miller, 709 F.2d at 527
    .
    Relators had options other than incorrectly calling a
    motion to stay a “Motion[] Pursuant to FRCP Rule 59(e).” 5
    If Relators wanted the district court to consider our decision
    in Lee, they could have filed a motion in the district court
    seeking a stay of the case pending Lee before the district
    court entered its judgment. 6 See Leyva v. Certified Grocers
    of Cal., Ltd., 
    593 F.2d 857
    , 863–64 (9th Cir. 1979) (“A trial
    court may, with propriety, find it is efficient for its own
    docket and the fairest course for the parties to enter a stay of
    an action before it, pending resolution of independent
    5
    Although we note various courses of action Relators could have
    taken, we take no position on whether these motions, if filed, would have
    or should have been granted.
    6
    The appeal in Lee was docketed more than a year before the district
    court entered its order and judgment in Relators’ case. Indeed, the
    amicus brief that Relators wanted the district court to consider was filed
    almost eight months before the district court entered its order and
    judgment.
    10 U.S. EX REL. HOGGETT V. UNIVERSITY OF PHOENIX
    proceedings which bear upon the case. This rule . . . does
    not require that the issues in such proceedings are
    necessarily controlling of the action before the court.”). The
    district court could have entered a stay under its authority to
    control its own docket “to provide for a just determination of
    the cases pending before it.” 
    Id. at 864.
    Alternatively, after the district court entered its order and
    judgment, Relators could have filed a timely notice of appeal
    and then filed a motion in this court to stay the appeal
    pending Lee. They could also, of course, have simply
    allowed their appeal to proceed and argued that we should
    take Lee into consideration, once it was decided. 7
    Relators did not exercise any of these options. Because
    their post-judgment motion did not ask for a substantive
    change to the district court’s decision, it was not an FRCP
    59(e) motion to alter or amend the judgment, regardless of
    its title. Instead, it was a motion to stay, which does not toll
    the time for filing a notice of appeal. See Fed. R. App. P.
    4(a)(4)(A). Relators filed their notice of appeal as to the
    dismissal of their case almost four months too late. We lack
    jurisdiction to consider it. 8
    DISMISSED.
    7
    If our decision in Lee issued after briefing concluded, Relators
    could have brought it to our attention by filing a 28(j) letter. See Fed. R.
    App. P. 28(j).
    8
    Relators did not raise any arguments relating to the denial of their
    post-judgment motion in their Opening Brief. They have therefore
    waived any argument related to the district court’s denial of that motion.
    See, e.g., Alaska Ctr. for Env’t v. U.S. Forest Serv., 
    189 F.3d 851
    , 858
    n.4 (9th Cir. 1999) (“Arguments not raised in opening brief are
    waived.”).