US EX REL. HAIGHT v. Catholic Healthcare West

• Decision Date: 04 February 2010
• Docket Number: No. 07-16857.,07-16857.
• Citation: 602 F.3d 949
• 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

602 F.3d 949

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.

No. 07-16857.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 3, 2009.

Filed February 4, 2010.

Amended April 21, 2010.

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, AZ, for defendants-appellees.

Before: B. FLETCHER, WILLIAM C. CANBY, JR., and SUSAN P. GRABER, Circuit Judges.

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 follows:

On slip opinion page 2063, line 2, 594 F.3d at 697, of the last paragraph, change the comma to a period after "`inequitable.'"; on line 9, 594 F.3d at 697, after "harsh consequences.'" insert:

Notwithstanding the Supreme Court's guidance, Plaintiffs urge us to follow George v. Camacho, 119 F.3d 1393 (9th Cir.1997) (en banc), in which we refused to apply retroactively our decision to shorten the time period for filing a notice of appeal from the Northern Mariana Islands. But our premise in George was that the Supreme Court's admonition that "`a jurisdictional ruling may never be made prospective only' . . . has never been applied as broadly and inflexibly as both its language and our dissenting colleagues suggest." Id. at 1397 (quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981)). Eisenstein itself now represents just such a broad and inflexible application of that principle. We are bound, then, to follow the Supreme Court's clear directive to apply Eisenstein retroactively, no matter how inequitable the result.

Also on line 9, 594 F.3d at 697, start a new paragraph with "A claim that this result violates due process is equally unavailing."

On slip opinion page 2065, line 8, 594 F.3d at 698, of the first full paragraph, after "under Rule 4," insert the following as a footnote:

When In re Hoag announced that Rule 4 did not authorize such an action by the court of appeals, Rule 26 did not contain the exception cross-referencing Rule 4. In 1988, Rule 26(b) provided:

The court for good cause shown may upon motion enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time; but the court may not enlarge the time for filing a notice of appeal, a petition for allowance, or a petition for permission to appeal.

Rule 26 was amended in 1998. However, the 1998 amendments to Rule 26(b) were "intended to be stylistic only." 28 U.S.C. app., Fed. R.App. P. 26 advisory committee's notes (1998 amendment); see also Mitchell v. Burt Vetterlein & Bushnell PC (In re Stein), 197 F.3d 421, 424 n. 7 (9th Cir.2000) (noting that the 1998 amendments to Federal Rule of Appellate Procedure 4(a)(5) were "strictly stylistic"). Thus, the 1998 amendments did not abrogate In re Hoag. Nor are the amendments irreconcilable with In re Hoag. By its terms, Rule 26(b) still applies to "the court." The statement that "the court" may grant extensions of time "as authorized by Rule 4" recognizes the power of the district court to grant extensions under Rule 4, but not beyond the limitations of Rule 4. Thus, the phrase "as authorized by Rule 4" is not surplusage, even though the court of appeals has no power to grant extensions under Rule 4.

On slip opinion page 2066, 594 F.3d at 699, last line, after the citation to Pettibone, insert the following as a footnote:

Like In re Hoag, Pettibone survives the 1998 amendments to Rule 26(b).

With these amendments, the panel has voted to deny the petition for rehearing. Judge Graber has voted to deny the petition for rehearing en banc, and Judges B. Fletcher and Canby have so recommended.

The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on it.

The petition for rehearing and petition for rehearing en banc are DENIED. No further petitions for rehearing will be entertained.

OPINION

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.

FACTUAL AND PROCEDURAL HISTORY

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 ex rel. Haight 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).

DISCUSSION

A. Untimely Notice of Appeal

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). 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 deprives 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...