United States ex rel. Coffman v. City of Leavenworth
| Decision Date | 23 March 2018 |
| Docket Number | Case No. 14–2538–JAR |
| Parties | The UNITED STATES of America EX REL. Michele COFFMAN, Plaintiff–Relator, v. The CITY OF LEAVENWORTH, KANSAS, Defendant. |
| Court | U.S. District Court — District of Kansas |
Heather J. Schlozman, Mark V. Dugan, Dugan Schlozman LLC, Overland Park, KS, Robert K. Collins, Collins Law Office, LLC, Olathe, KS, for Plaintiff–Relator.
Jon P. Fleenor, Robin R. Anderson, Office of United States Attorney, Kansas City, KS, for Plaintiff–Relator, United States of America.
Andrew D. Holder, Terelle A. Mock, Fisher, Patterson, Sayler & Smith, LLP, Topeka, KS, for Defendant.
Plaintiff–Relator Michele Coffman filed this qui tam action against Defendant the City of Leavenworth, Kansas ("the City"), alleging that it committed fraud on the federal government by making a false claim for reimbursement to the Federal Emergency Management Agency ("FEMA") and fraudulently billing federal agencies for sewage service. This matter is before the Court on the parties' cross motions for summary judgment (Docs. 92 and 94). The motions are fully briefed and the Court is prepared to rule. For the reasons stated below, the Court denies Plaintiff's motion for partial summary judgment and grants in part the City's motion for summary judgment.
Summary judgment is appropriate if the moving party demonstrates "that there is no genuine dispute as to any material fact" and that it is "entitled to judgment as a matter of law."1 In applying this standard, the Court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.2 "There is no genuine [dispute] of material fact unless the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party."3 A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim."4 A dispute of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way."5
The moving party initially must show the absence of a genuine dispute of material fact and entitlement to judgment as a matter of law.6 In attempting to meet this standard, a movant who does not bear the ultimate burden of persuasion at trial need not negate the nonmovant's claim; rather, the movant need simply point out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.7
Once the movant has met the initial burden of showing the absence of a genuine dispute of material fact, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial."8 The nonmoving party may not simply rest upon its pleadings to satisfy its burden.9 Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant."10 In setting forward these specific facts, the nonmovant must identify the facts "by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein."11 To successfully oppose summary judgment, the nonmovant must bring forward more than a mere scintilla of evidence in support of his position.12 A nonmovant may not create a genuine issue of material fact with unsupported, conclusory allegations."13
Finally, summary judgment is not a "disfavored procedural shortcut"; on the contrary, it is an important procedure "designed to secure the just, speedy, and inexpensive determination of every action."14 "Where, as here, the parties file cross-motions for summary judgment, [the Court is] entitled to assume that no evidence needs to be considered other than that filed by the parties, but summary judgment is nevertheless inappropriate if disputes remain as to material facts."15 The Court considers cross-motions separately: the denial of one does not require the grant of the other.16 "To the extent the cross-motions overlap, however, the Court may address the legal arguments together."17 The material facts are undisputed in this case, and the legal issues asserted in both motions overlap. The Court will therefore address those issues together.
The following material facts are either uncontroverted or, if controverted, are construed in the light most favorable to the nonmovant.
The City is a municipal government in the State of Kansas. It operates a wastewater treatment plant (the "WTP") that provides sewage and wastewater treatment services for its residents. It also provides wastewater treatment services to the Veterans Administration ("VA"), the United States Army ("Army"), and the United States Department of Justice Bureau of Prisons ("BOP") pursuant to contracts it has with these federal agencies. The City entered into contracts with the Army and the BOP for sewage service in 1974, and with the VA in 1978.
At all times relevant to this litigation, Charles Klingler was the WTP's Superintendent, Michael McDonald was the City Engineer and Director of Public Works ("Public Works Director"), and Scott Miller was the City Manager. Chad Lough was the WTP's Assistant Superintendent from July 22, 2010 until June 20, 2012.
Plaintiff worked at the WTP from 2010 to 2013. She began as a Class I Operator, rose to the rank of Assistant Superintendent, and resigned after being demoted to a Class II Operator. She filed this qui tam action, alleging, inter alia , she was constructively discharged after she began asking questions about billing irregularities.
The Clean Water Act prohibits "the discharge of any pollutant by any person" into waters of the United States, except in accordance with certain provisions of the Act.18 To comply with the Act, pollutant dischargers can obtain a permit through the National Pollutant Discharge Elimination System ("NPDES") permit program, administered by the Environmental Protection Agency ("EPA") and authorized states.19 "NPDES permits impose limitations on the discharge of pollutants, and establish related monitoring and reporting requirements, in order to improve the cleanliness and safety of the Nation's waters."20 "Noncompliance with a permit constitutes a violation of the Act."21
The EPA delegated to the Kansas Department of Health and Environment ("KDHE") the authority to regulate wastewater discharge in the state of Kansas.22 The KDHE issues the NPDES permits in Kansas and monitors compliance with the permits.
During the relevant period, the City held two NPDES permits, one effective from 2008 through 2012, and the other effective from January 2013 through 2017. These permits allowed the City to discharge treated effluent from its wastewater treatment plant into the Missouri River. Under both NPDES permits, the City was required to report all bypasses to KDHE. A "bypass" is an intentional or unintentional diversion of a waste stream from any portion of a treatment facility.
Standard Condition 8 of the City's 2008 NPDES permit required the City to "at all times maintain in good working order and efficiently and effectively operate all treatment, collection, control systems or facilities to achieve compliance with the terms of this permit...."23 Standard Condition 6 of the 2013 permit required the City to "at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) which are installed or used by the permittee to achieve compliance with the requirements of this permit and Kansas and Federal Law."24
On or around August 25, 2010, WTP operators discovered a break in a sewer line that crosses Five–Mile Creek in front of the WTP, between manholes AAB and ABA (also referred to as manholes 4284 and 4268). Then Assistant Superintendent Chad Lough reported the break to KDHE on August 25, 2010. His report stated: "Erosion caused large sections of concrete to slide down the hill and damage [the] pipe crossing the creek."25 Under "Date Bypass Ended," Lough marked "N/A."26
In response to the break, Superintendent Klingler directed operators to place an inflatable plug into the pipe inlet at Manhole AAB to stop backflow from the manhole from entering the line and escaping into the creek. The inflatable plug ruptured at some point and was replaced by sandbags.
On August 27, 2010, EPA representative Mike Boeglin called Public Works Director McDonald to discuss a citizen complaint about the broken line. McDonald told him the City was aware of the break, had reported it to KDHE, and had already undertaken efforts to plug the line.
On August 28, 2010, KDHE environmental scientist Vic Montgomery met with Superintendent Klingler at the WTP to inspect the broken pipe. Montgomery directed Klingler to discharge treated effluent from the final clarifiers into the creek to improve the smell and color of the creek. Montgomery considered the effluent discharge not a violation of the City's NPDES permit.
On or about October 8, 2010, KDHE district engineer Helen Holm inspected the WTP for compliance with the City's NPDES permit.27 In her inspection report, she indicated, in pertinent part, that: 1) the laboratory data indicated compliance with permit effluent limitations since the last inspection, and 2) the City had reported all bypasses properly.28
On November 17, 2010, KDHE representative Chris Seeds sent Assistant Superintendent Lough an e-mail asking about the status of the broken line. Lough responded:
The bypass report dated ... 8/25/10 was for the creek crossing located at the east side of our facility. This bypass was not a planned bypass. The pipe that crosses the creek is damaged. Flow from that line upstream is minimal (only one business on that service and it's an asphalt...
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