U.S. ex rel. Haight v. Catholic Healthcare West
| Decision Date | 04 February 2010 |
| Docket Number | No. 07-16857.,07-16857. |
| Parties | UNITED STATES of America ex rel. Patricia HAIGHT and In Defense of Animals, Plaintiffs-Appellants, v. CATHOLIC HEALTHCARE WEST; Catholic Healthcare West Arizona; St. Joseph's Hospital and Medical Center; Barrow Neurological Institute; and Michael Berens, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jeremy L. Friedman, Law Office of Jeremy L. Friedman, Oakland, CA, for the plaintiffs-appellants.
Dale A. Danneman, Lawrence A. Kasten and Brian J. Pollock, Lewis and Roca LLP, Phoenix, AR, for defendants-appellees.
Appeal from the United States District Court for the District of Arizona, Frederick J. Martone, District Judge, Presiding. D.C. No. CV-01-02253-FJM.
Before: B. FLETCHER, WILLIAM C. CANBY, JR., and SUSAN P. GRABER, Circuit Judges.
Plaintiffs filed a notice of appeal in this qui tam action 51 days after the district court granted summary judgment in favor of Defendants. We must dismiss this appeal for lack of jurisdiction because Plaintiffs filed the notice of appeal more than 30 days after the entry of judgment. Fed. R.App. P. 4(a)(1)(A). When the notice of appeal was filed, this appeal was timely under then-controlling circuit law that gave Plaintiffs 60 days to file an appeal, but dismissal is now required by an intervening Supreme Court decision ruling that the allowable time is 30 days.
Defendant Michael Berens is a scientist who applied for and received funding from the National Institutes of Health to research brain cancer using beagle dogs. Plaintiffs Patricia Haight and In Defense of Animals assert that Berens made false and misleading statements in his grant application. They allege that he failed to disclose data showing a high rate of failure in preliminary trials, made false statements about the extent of his success with the research, stated a goal for the grant project that he did not believe could actually be accomplished, and misrepresented another researcher's involvement with the project. Consequently, Plaintiffs brought this qui tam action against Defendants Berens, Barrow Neurological Institute, St. Joseph's Hospital and Medical Center, Catholic Healthcare West Arizona, and Catholic Healthcare West under the False Claims Act, 31 U.S.C. § 3729. The United States has a statutory right to intervene in such a suit, id. § 3730(b)(2), but declined to intervene in this one.
The first issue arising in this litigation was whether the False Claims Act's "public disclosure" jurisdictional bar, id. § 3703(e)(4), precluded the suit. In an earlier appeal, we held that the suit was not barred by the fact that Plaintiffs had obtained Berens' grant application pursuant to a Freedom of Information Act request. United States v. Catholic Healthcare W., 445 F.3d 1147, 1152 (9th Cir. 2006). On remand, the district court granted summary judgment in favor of Defendants, ruling that Plaintiffs had failed to produce evidence that the statements at issue were objectively false.
The district court entered judgment for Defendants on August 14, 2007. Plaintiffs filed a notice of appeal 51 days later, on October 4, 2007. We stayed the appeal pending Supreme Court review of United States ex rel. Eisenstein v. City of New York, 540 F.3d 94 (2d Cir.2008). The Supreme Court has issued its decision, ___ U.S. ___, 129 S.Ct. 2230, 173 L.Ed.2d 1255 (2009), and we now consider Defendants' motion to dismiss this appeal as untimely. We review de novo the existence of jurisdiction over an appeal. Perez-Martin v. Ashcroft, 394 F.3d 752, 756 (9th Cir.2005).
Under Federal Rule of Appellate Procedure 4(a)(1), a party in a civil suit has 30 days from the entry of judgment within which to file a notice of appeal, unless "the United States or its officer or agency is a party." If the United States is a party, Rule 4(a)(1)(B) allows a 60-day period within which to take an appeal. For purposes of Rule 4(a), we previously held that the United States is a "party" to a qui tam action even if it declines to intervene. United States ex rel. Haycock v. Hughes Aircraft Co., 98 F.3d 1100, 1102 (9th Cir. 1996). Thus, when the district court entered judgment for Defendants, our circuit precedent gave the plaintiffs in a case such as this one 60 days to file a notice of appeal.
Relying on Haycock, Plaintiffs filed their notice of appeal 51 days after the entry of judgment. At that time, we would have deemed their appeal timely. But while this appeal was pending, the Supreme Court held that, for the purposes of the filing deadlines of Rule 4(a), the United States is not a party to a qui tam action under the False Claims Act in which it declines to intervene and plaintiffs in such cases have only 30 days to appeal. Eisenstein, 129 S.Ct. at 2236-37. We therefore recognize that Eisenstein overruled our holding to the contrary in Haycock.
Under Eisenstein, Plaintiffs' notice of appeal was untimely when filed. The Supreme Court knew that Eisenstein could affect pending appeals. Indeed, Plaintiffs in this case filed an amicus brief with the Supreme Court asking that it prohibit retroactive application of its decision in Eisenstein. Brief for Patricia Haight and In Defense of Animals as Amici Curiae Supporting Respondents, United States ex rel. Eisenstein v. City of New York, ___ U.S. ___, 129 S.Ct. 2230, 173 L.Ed.2d 1255 (2009) (No. 08-660). Despite acknowledging that its decision would have "harsh consequences" for some plaintiffs and "unfairly punish those who relied on the holdings of courts adopting the 60-day limit in cases in which the United States was not a party," the Court expressly refused to limit its decision to prospective application. Eisenstein, 129 S.Ct. at 2236 n. 4. Those harsh consequences are now concretely before us: Plaintiffs' appeal is untimely and must be dismissed.
A timely notice of appeal is a jurisdictional prerequisite. Browder v. Dir., Dep't of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978). Congress has set a statutory limit of 30 days on appeals in cases to which the United States is not a party. 28 U.S.C. § 2107(a). A would-be appellant's "failure to file his notice of appeal in accordance with the statute therefore deprive[s] the Court of Appeals of jurisdiction." Bowles v. Russell, 551 U.S. 205, 213, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). Because the notice of appeal in this case was filed after the 30-day deadline, we lack jurisdiction and this appeal must be dismissed. Id.; United States v. Curry, 47 U.S. (6 How.) 106, 113, 12 L.Ed. 363 (1848).
It is a serious understatement to call this result "inequitable," Bowles, 551 U.S. at 214, 127 S.Ct. 2360. Plaintiffs reasonably relied on Ninth Circuit precedent that gave them 60 days to file a notice of appeal. But the Supreme Court has instructed us that concerns of equity must give way before the "rigorous rules" of statutory jurisdiction. Id.; see also Eisenstein, 129 S.Ct. at 2236 n. 4 (). A claim that this result violates due process is equally unavailing. "As [the Supreme Court's] decisions have emphasized time and again, the Due Process Clause grants the aggrieved party the opportunity to present his case. . . ." Logan v. Zimmerman Brush Co., 455 U.S. 422, 433, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (emphasis added). Plaintiffs do not have a due process right to a late appeal, even if they effectively had our court's permission under Haycock to file after Rule 4's deadline, any more than Mr. Bowles had the right to a late appeal when he had the district court's express permission to do likewise. Bowles, 551 U.S. at 207, 127 S.Ct. 2360.
Plaintiffs correctly note that the Supreme Court's holding in Eisenstein does not foreclose the theoretical possibility that other parts of the Federal Rules of Appellate Procedure could provide an avenue of relief. We consider their suggestions below, but conclude that none is viable.
On February 6, 2009, Plaintiffs filed a motion with us for extension of time within which to file a notice of appeal. Plaintiffs ask us to grant this motion under Federal Rule of Appellate Procedure 4(a)(5). That rule authorizes a district court to grant an extension of time under certain circumstances, but is silent as to the authority of a court of appeals. We have held that Rule 4(a)(5) grants no power to a court of appeals. Hoag Ranches v. Stockton Prod. Credit Ass'n (In re Hoag Ranches), 846 F.2d 1225, 1229 (9th Cir. 1988) (order).1
Furthermore, Rule 4(a)(5)(A)(i) requires that a party move for extension of time "no later than 30 days after" the expiration of the time allotted for an appeal. Plaintiffs' motion for an extension of time is itself almost four months late. Rule 4 does not authorize late motions. Thus, even if we had the power to grant motions for extensions of time under Rule 4(a)(5), we would still have to deny Plaintiffs' motion because the motion itself is untimely.
Nor may we, under Rule 26, grant an extension of time to file the notice of appeal. Rule 26 generally gives us the power to extend any of the deadlines prescribed by the Federal Rules of Appellate Procedure. However, that rule specifically provides that "the court may not extend the time to file . . . a notice of appeal (except as authorized in Rule 4)." As already explained, courts of appeals are not authorized to grant extensions under Rule 4 and, even if we were, Plaintiffs' motion cannot be granted because it is untimely. Therefore, Rule 26 does not allow us to extend the time for Plaintiffs to file their notice of appeal.
Similarly, we may not, under Rule 26(b), extend the time to file the motion seeking an extension. Rule 4(a)(5)(A)(i) requires a motion "no...
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US EX REL. HAIGHT v. Catholic Healthcare West
...ORDER AND AMENDED OPINION GRABER, Circuit Judge: ORDER The opinion filed on February 4, 2010, slip opinion page 2057, and appearing at 594 F.3d 694, is amended as On slip opinion page 2063, line 2, 594 F.3d at 697, of the last paragraph, change the comma to a period after "`inequitable.'"; ......