U.S. ex rel. Hopper v. Anton

• Decision Date: 31 July 1996
• Docket Number: 95-55374,Nos. 95-55273,s. 95-55273
• Citation: 91 F.3d 1261
• Parties: 111 Ed. Law Rep. 676, 96 Cal. Daily Op. Serv. 5657, 96 Daily Journal D.A.R. 9201 UNITED STATES of America ex rel., Sheila HOPPER, Plaintiff-Appellant, v. William ANTON; Los Angeles Unified School District; Leonard Britton; Paul Carr; Phillip Callison; James Esterle; Deanne Neiman; Benita Chaum; Carol Albright; Jackie Thompson, Defendants-Appellees. UNITED STATES of America ex rel., Sheila HOPPER, Plaintiff-Appellee, v. William ANTON; Leonard Britton; Paul Carr; Phillip Callison; James Esterle; Deanne Neiman; Benita Chaum; Carol Albright, Defendants, and Jackie Thompson; Los Angeles Unified School District, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1261

91 F.3d 1261

111 Ed. Law Rep. 676, 96 Cal. Daily Op. Serv. 5657,

96 Daily Journal D.A.R. 9201

UNITED STATES of America ex rel., Sheila HOPPER, Plaintiff-Appellant, v. William ANTON; Los Angeles Unified School District;

Leonard Britton; Paul Carr; Phillip Callison; James

Esterle; Deanne Neiman; Benita Chaum; Carol Albright;

Jackie Thompson, Defendants-Appellees.

UNITED STATES of America ex rel., Sheila HOPPER, Plaintiff-Appellee, v. William ANTON; Leonard Britton; Paul Carr; Phillip

Callison; James Esterle; Deanne Neiman; Benita

Chaum; Carol Albright, Defendants,

and

Jackie Thompson; Los Angeles Unified School District,

Defendants-Appellants.

Nos. 95-55273, 95-55374.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 3, 1996.

Decided July 31, 1996.

James H. Fosbinder, and Rhonda M. Fosbinder, Fosbinder & Fosbinder, Venice, California, for plaintiff-appellant.

Bonifacio B. Garcia and Alex M. Moisa, Barbosa, Garcia & Barnes, Los Angeles, California, for defendants-appellees.

Appeals from the United States District Court for the Central District of California, Harry L. Hupp, District Judge, Presiding. D.C. No. CV-93-02441-HLH.

Before FARRIS, FERNANDEZ and THOMAS, Circuit Judges.

THOMAS, Circuit Judge:

Sheila Hopper ("Hopper") appeals the district court's entry of summary judgment against her qui tam False Claims Act ("FCA" or "Act") claim against the Los Angeles Unified School District ("LAUSD" or "School District"). The School District cross-appeals the district court's refusal to enter judgment as a matter of law after trial on Hopper's FCA employment retaliation claim under 31 U.S.C. § 3730(h).

We AFFIRM the grant of summary judgment and REVERSE the denial of the School District's motion for judgment as a matter of law after trial.

I. BACKGROUND

Hopper has been employed by the School District as a special education teacher for more than 20 years. Beginning in April of 1989, Hopper began complaining to her superiors that the School District was failing to comply with federal and state laws regarding the handling of special education children. Specifically, she alleged that the School District conducted Individualized Education Program ("IEP") evaluations ¹ of potential special education students with special education teachers rather than the students' classroom teachers. She contended this procedure violated California Education Code § 56341(b)(2) ² and the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. (1994). ³

Finding her superiors unrepentant, she reported the matter to the California State Department of Education ("CDOE") on May 15, 1989. The CDOE issued a compliance report on July 14, 1989 agreeing with Hopper that the School District was failing to comply with the California Education Code. When the School District continued to exclude classroom teachers from IEP evaluations, ⁴ Hopper renewed her complaint to the CDOE in December 1989 and January 1990. On February 16, 1990, the CDOE again found the School District out of compliance with § 56341. ⁵ The CDOE warned that continued failure to comply could result in a recovery of state funds from or a curtailment of state funds to the School District. The CDOE and the School District engaged in negotiations over the course of the next two years to solve the problem. During this period, Hopper continued reporting to the CDOE that classroom teachers were not permitted to attend IEP evaluations, filing complaints in November 1990 and February 1991. On January 14, 1992, the CDOE again found the School District out of compliance.

Hopper filed a discrimination complaint with the U.S. Department of Education Office for Civil Rights on January 21, 1990, contending that special education students were not being serviced. On June 15, 1990, the agency found that the School District was in violation of federal law because of its delay in placing students eligible for special education into qualified programs. It also found that the School District had not harassed or retaliated against Hopper because of her complaints of LAUSD's noncompliance, as Hopper had alleged.

In March of 1990, a parent of one of Hopper's students complained to Jackie Thompson, principal of Nestle Elementary School, that Hopper had pushed and hurt his son. Thompson notified the police, as she is required to do under California Penal Code § 11166. The police determined that no crime had been committed. However, based in part on reports by Hopper's teaching assistant Olivia Ruiz and other students, Thompson concluded that Hopper had used impermissible corporal punishment in her classroom.

At approximately the same time, Thompson learned that a student was coming late to school on a regular basis without Thompson's knowledge or permission. The student's mother had met with the classroom teacher and Hopper. The three agreed it would be in the student's best interest for the student to come to school late. The mother felt she had received permission to bring her son late to school, and she began to do so.

Hopper contended she did not give the parent such permission. Thompson held Hopper and the classroom teacher responsible and recommended that both teachers be given written reprimands. The charges against Hopper included permitting a student to arrive late to school without proper authority and using improper corporal punishment inside and outside her classroom. Thompson's superiors felt more severe discipline was warranted and decided to suspend Hopper for 15 days. ⁶

Hopper filed her first amended complaint in the district court on October 15, 1993, asserting two causes of action: one under the qui tam provisions of the FCA and another under § 3730(h) of the FCA for retaliation in employment for FCA-protected activity. For her qui tam action, Hopper alleged that the School District conducted evaluations of potential special education students without classroom teachers in violation of California Education Code § 56341(b)(2) and 34 C.F.R. § 300.344(a) and prolonged the evaluation process to avoid placing eligible students into special education classes in violation of state and federal law. Hopper argued these violations of state and federal law entitled her to bring a qui tam action under the FCA for recovery of IDEA funds provided to the School District. For her claim under § 3730(h), Hopper alleged LAUSD, Thompson, and others retaliated against her in several ways, including filing false child abuse charges against her, suspending her for 15 days, encouraging the filing of false assault charges against her by her assistant, failing to transfer her to an opening as full-time teacher at one school and maintaining her in two part-time positions at two schools.

The parties jointly moved for a continuance to permit additional discovery, but the district court denied the motion. LAUSD then moved for summary judgment on both causes of action. Hopper argued for additional discovery before a ruling on the motion. The district court refused the request and granted the School District's motion for summary judgment on Hopper's qui tam action, holding that a violation of law or regulations without a false statement is not sufficient to support a cause of action under the FCA. The court denied summary judgment as to the § 3730(h) retaliation claim.

A jury trial ensued, resulting in a special verdict that Thompson had retaliated against Hopper for FCA-protected activity but that all other defendants were innocent of any wrongdoing. The School District moved for judgment as a matter of law after trial on the § 3730(h) claim, arguing that no reasonable jury could conclude that Thompson retaliated against Hopper or that Hopper was engaged in FCA protected activity. The district court denied the motion. Hopper timely appealed the order granting summary judgment against her qui tam action, and LAUSD timely cross-appealed the district court's refusal to enter judgment as a matter of law on the § 3730(h) claim. Hopper also contends on appeal that the district court erred in refusing to permit her additional discovery before ruling on the summary judgment motion.

II. SUMMARY JUDGMENT ON THE FALSE CLAIMS ACT CLAIM

A. OVERVIEW

We review a district court's grant of summary judgment de novo. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996). We must "determine whether the evidence, viewed in a light most favorable to the non-moving party, presents any genuine issues of material fact and whether the district court [properly] applied the law." Id.

Hopper contends that the School District submitted false claims actionable under the FCA by (1) annually submitting reports to CDOE reconciling actual enrollment with the School District's predicted enrollment; (2) cashing checks received from CDOE for special education, a portion of which was derived from federal funding; and (3) submitting a triennial certificate to CDOE certifying that LAUSD "will meet all applicable requirements of state and federal law and regulations," including "general compliance" with the IDEA.

B. CLAIM OF REGULATORY VIOLATIONS

Hopper's first two contentions originate from her assertion that LAUSD's regulatory violations create a viable cause of action under the FCA. Hopper contends that the School District committed actionable fraud against the government by annually submitting "J-50" and "J-380" forms to the CDOE indicating the number of special education students in the district. Hopper argues that because the School District was not in regulatory compliance, submission of these forms constitutes an actionable false claim. She also contends that by cashing checks received from CDOE, LAUSD was committing actionable fraud because the School District was not in compliance with IDEA regulations.

In granting summary judgment, the district court found that Hopper had not met the FCA's...