United States ex rel. Hoggett v. Univ. of Phx.

• Decision Date: 25 July 2017
• Docket Number: No. 14-17492,14-17492
• Citation: 863 F.3d 1105
• Parties: UNITED STATES and State of California EX REL. Derek HOGGETT and Tavis Good, Plaintiffs–Appellants, v. UNIVERSITY OF PHOENIX; Apollo Group, Inc., Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

863 F.3d 1105

UNITED STATES and State of California EX REL. Derek HOGGETT and Tavis Good, Plaintiffs–Appellants,

v.UNIVERSITY OF PHOENIX; Apollo Group, Inc., Defendants–Appellees.

No. 14-17492

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 14, 2017 San Francisco, California

July 25, 2017

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.

Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Marvin J. Garbis,^** District Judge.

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 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 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 judgment. United States ex rel. Eisenstein v. City of New York , 556 U.S. 928, 937, 129 S.Ct. 2230, 173 L.Ed.2d 1255 (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' postjudgment 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, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989) (quoting White v. N.H. Dep't of Emp't Sec. , 455 U.S. 445, 451, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982) ); see also Buchanan v. Stanships, Inc. , 485 U.S. 265, 268–69, 108 S.Ct. 1130, 99 L.Ed.2d 289 (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 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

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...