US Ex Rel. Arlene Cohen v. City of Palmer, Alaska

FILED
NOT FOR PUBLICATION
AUG 12 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES ex rel. ARLENE No. 15-35236
COHEN
D.C. No. 3:11-cv-00199-SLG
Plaintiff - Appellant,
v. MEMORANDUM*
CITY OF PALMER, ALASKA, A
Political Subdivision of the State of
Alaska,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Argued and Submitted August 3, 2016
Anchorage, Alaska
Before: FISHER, PAEZ and HURWITZ, Circuit Judges.
Arlene Cohen appeals from the district court’s dismissal of her qui tam suit
against the City of Palmer, Alaska. She alleges that, in applying for and submitting
reimbursement requests for government stimulus funds, Palmer falsely certified it
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
had complied with certain laws, regulations and contractual provisions. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Each of Cohen’s claims fails for the same reason: Cohen has not plausibly
alleged that Palmer’s “failure to disclose noncompliance with material statutory,
regulatory, or contractual requirements” made any of its statements “misleading
half-truths.” Universal Health Servs., Inc. v. United States ex rel. Escobar, 136 S.
Ct. 1989, 2001 (2016).
1. Cohen has not plausibly alleged Palmer was prohibited from using
force-account labor on its construction projects. None of Cohen’s authorities
required Palmer to contract out the labor through a competitive bidding process.
The American Recovery and Reinvestment Act of 2009 (ARRA), Pub. L. No. 111-
5, 123 Stat. 115, for example, requires competitive bidding if a locality contracts
out the labor but does not prohibit a locality from performing the work itself. See
§ 1554, 123 Stat. at 302. Palmer’s grant applications and the terms and conditions
of those grants similarly require compliance with ARRA, but do not independently
bar the use of force-account labor. Other provisions Cohen cites apply only to
highway construction projects or procurement – not the water distribution and
treatment projects Palmer undertook. See 23 U.S.C. § 112; 23 C.F.R. 635, Subpart
B (2016); 29 C.F.R. 97.36(d)(2) (2016).
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2. Cohen also has not plausibly alleged that Palmer was prohibited from
paying its employees Davis-Bacon wages. We agree Palmer was not statutorily
required to pay such wages. See ARRA § 1606, 123 Stat. at 303 (requiring Davis-
Bacon wages for “all laborers and mechanics employed by contractors [on ARRA-
funded projects]”); 29 C.F.R. § 5.2(h) (2016) (“A . . . local Government is not . . . a
contractor . . . where construction is performed by its own employees.”). But
Cohen has pointed to no authority prohibiting Palmer from doing so; each of
Cohen’s authorities suggests only that Davis-Bacon wages were not required.
3. Cohen has not plausibly alleged Palmer was required to create private-
sector jobs. The purposes of ARRA do not require the creation of private-sector
jobs to the exclusion of public-sector jobs. See § 3(a)(1), 123 Stat. at 116 (“[t]o
preserve . . . jobs and promote economic recovery”); § 3(a)(5), 123 Stat. at 116
(“[t]o stabilize State and local government budgets”). Although Palmer certified it
would use grant funds “to create jobs and promote economic growth,” that
certification did not require Palmer to create exclusively private-sector jobs.
AFFIRMED.
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