Petition for Writ of Certiorari — United States ex rel. O'Connell v. Chapman University

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Supremes Court, U.S.

FILED

oe 19-810 bec 17 2010

ac as ,

OFFICE OF THE CLERK

IN THE

Supreme Court of the Gnited States

UNITED STATES AND CALIFORNIA EX REL

O'CONNELL AND MOYERS,

Petitioners,

CHAPMAN UNIVERSITY,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court of Appeals

For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

DANIEL ROBERT BARTLEY GLEN D. NAGER

BARTLEY LAW OFFICES Counsel of Record

4040 Civic Center Drive HASHIM M. MOoPPAN

Suite 200 JONES DAY

San Rafael, CA 94903 51 Louisiana Avenue, NW

(415) 898-4741 Washington, DC 20001

(202) 879-3939

gdnaper@jonesday.com

Counsel for Petitioners

QUESTION PRESENTED

Petitioners’ notice of appeal was timely under

controlling circuit precedent, but that precedent was

later abrogated. The Ninth Circuit then reluctantly

concluded that it was required to dismiss Petitioners’

appeal due to this Court's bitterly contested 5-4

decision in Bowles v. Russell, 551 U.S. 205, 209-15

(2007), which held that noncomphance with the time

limit in 28 U.S.C. § 2107 is a jurisdictional bar that

cannot be equitably excused by a circuit court.

But in Bowles, neither the parties nor this Court

considered whether a circuit court that lacks “power

to proceed with the appeal” on the merits may at

least “exercise ... 1ts supervisory appellate power

[to] dispos|e] of the case as justice requires” in a way

that prospectively cures the noncomphance with

§ 2107. Walling v. James V. Reuter, Inc., 321 U.S.

671, 676 (1944). Bowles thus overlooked this Court's

longstanding equitable practice of “vacat{ing] ... and

remand{ing] ... [for] ent[ry] [of] a fresh decree from

which ... a timely appeal” may be “perfect[ed]”-—a

practice it uses where § 2107's time for appealing to

the circuit court has elapsed because the appellant

reasonably took a jurisdictionally improper direct

appeal to this Court instead. See, e.g., PAullips v.

United States, 312 U.S. 246, 254 (1941). That

traditional practice has been uniformly apphed by

this Court for at least 60 years, in 50 cases, by 30

Justices, including a majority of the current Court.

The question presented is whether the Courts of

Appeals, when justly disposing of an appeal that. is

jurisdictionally untimely due to a judicial error, may

vacate and remand for entry of a fresh judgment

from which a timely appeal may be taken.

PARTIES TO THE PROCEEDING

Petitioners in this case ire Dr Katherine |]

()'Connell and Dr. Chms Mover who were Plaintiff

\ppellants below

Respondent is Chapmar

the Defendant App llee bel

Daniel Robert Bartley . Wa I

} ’ A

I (*} by low W ai } } ‘

TABLE OF CONTENTS

Question Presented

Parties to the Proceeding

Table of Authorities \

Petition for a Writ of Certiorari |

Opinions Below

Jurisdiction

Statutory Provisions Involved

Statement of the Case

Reasons for Granting the Petition.

I Appellate Courts Possess The Equitable

Power To Dispose Of A Jurisdictionally

Untimely Appeal By Vacating And

Remanding For Entry Of A’ Fresh

Judgment From Which A Timely Appeal

Can Be Noticed.

\ Bowles Relied On ‘Tradition In

Holding That An Untimely Civil

Appeal Is A Jurisdictional Bar

That Appellate Courts Cannot

Equitably Excuse ....

B In Jurisdictionally Improper

Direct Appeals, This Court Has A

Long And Unbroken Equitable

Tradition Of Vacating And

Remanding For Entry Of A Fresh

Judgment From Which A Timely

Appeal Can Be Taken To The

Proper Circuit Court

The Courts Of Appeals Should Be

Allowed To Invoke The Equitable

Tradition Of Vacating And

Remanding For Entry Of A Fresh

Judgment When A

Jurisdictionally Untimely Appeal

Is Caused By A Judicial Error........

This Important Issue Of Federal

Jurisdictional Practice Warrants This

Court's Immediate Resolution .....

Conclusion ..............-.

APPENDIX A: Order of the United States

Court of Appeals for the Ninth Circuit.

APPENDIX B: Order of the United States

District Court for the Central District of

California

APPENDIX C: Statutory Provisions Involved

TABLE OF AUTHORITIES

CASES

Arbaugh v. Y & H Cory;

546 U.S. 500 (2006)

Avers v. Winter,

467 U.S. 1211 (1984)

Bd. of Pub. Instruction \

101 U.S. 988 (1971)

Bd. of Regents cf Univ. of Texas S

Left Educ. Project,

104 U.S. 541 (1972)

Bowles v. Russell,

551 U.S. 205 (2007)

BT In . Managers Tn

4?1 Us . 901 (1975)

Burlington Northern,

Beet Co..,

429 U.S. 1084 (197

Butler v. Dexter.

25 U.S. 262 (1976) (per

Canton Poultry, inc. v. Conner.

388 U.S. 458 (1967) (per cur

Carlough v. Richardso1

399 U.S. 920 (1970)

Castro Cntv. v. Crespin

i. F.06 121 (D.C. C

Clinton v. Jeffers,

503 U.S. 930 (1992

Coleman V. Miller.

17 U.S. 433 (1939

Custom Recording Co. v. Blanton,

421 U.S. 943 (1975) ...........

Dahl v. Republican State Comm..

393 U.S. 408 (1969) (per curiam)

Daniel v. M aters,

417 U.S. 963 (1974)

Democratic Exec. Comm. of Columbiana Cnty

v. Brown,

422 U.S. 1002 (1975)

Dickson v. Ford.

419 U.S. 1085 (1974)

Driskell v. Edwards.

419 U.S. 812 (1974)

Eberhart v. United States.

546 U.S. 12 (2005) (per curiam

Edelman v. Townsend.

412 U.S. 914 (1973).

Fitzgerald v. Digrazia,

419 U.S. 1065 (1974)

Frankiin v. Lawrimore.

516 U.S. 801 (1995) 6,

Gonzalez v. Automatic Emps. Credit Union.

419 U.S. 90 (1974) ...............

Gully v. Interstate Nat. Gas Co

292 U.S. 16 (1934) (per curiam) 12,13

Gustafson v. Hoffman.

129 U.S. 806 (1976) ..

Harris Truck Lines, Inc. v. Cherrv Meat

Packers, Inc..

71 U.S. 215 (1962) (per curiam)

He nder rson V. _ Shinse AT.

130 S. Ct. 3502 (2010)

Vill

Herman & MacLean v. Huddleston.

GO EFT BI CRD hiskdccdiccddsadcvasdoasccincecdenierses 18, 19

Hutcherson v. Lehtin,

GD TFB. Fe CRD osnsciinctncnndatoncecsccssnivcrcsexanes 17, 22

Int] Ladies’ Garment Workers Union v.

Donnelly Garment Co.,

304 U.S. 243 (1938) (per curiam) ............00..2.0000-. 15

Kontrick v. Ryan,

er ars ee CPD nic ne aexoonbevnsnunsed astucneverascansunan, 9

Mendez v. Heller,

ee eee ee Ate eerie curestrccese arent eles 17

Mengelkoch v. Indus. Welfare Comm’‘n.

393 U.S. 83 (1968) (per curiam?) ..............0...200.0 16

Mitchell v. Donovan,

398 U.S. 427 (1970) (per curiam) .............00.0..0000- 16

Moody v. Flowers,

ae ee re PT ss cncconas teccusdeasnaeoesenuncineeceasecdns 15

MTM, Inc. v. Baxley,

420 U.S. 799 (1975) (per curiamn).....................-.- 16

Nati? Mut. Ins. Co. v. Tidewater Transfer Co..,

a os arcade racacasereciecualsrusosoecees 14

Nat7 Socialist White People’s Party v. Walsh,

ee Ae TD en soeccc cress nacevcsvcntecsacnccemace 17

Nguyen v. United States,

539 U.S. 69 (2003) .................... sagen aati oie 25, 26

Norton v. Mathews,

427 U.S. 524 (1976) ......... Cr Sone ecleeealairs Ae Ue ne 20

Okla. Gas & Elec. Co. v. Okla. Packing Co.,

ee Bee. ee ND Saco cence eee: 13, 14, 21

Pa. Pub. Util. Comm'n v. Pa. R.R. Co..,

382 U.S. 281 (1965) (per curtam)............. 15, 21, 24

vill

Perez v. Ledesma,

401 USS. Go CRG TAD varcccosctccdcsccsnasisiaaseeeeeee 16

Phillips v. United States,

BED U.S. SAS CEGETD vicicccescccsccdsosecsiccsaciacseene eee

Reed Elsevier, Inc. v. Muchnick,

130 &. CG. TART CHAD ccsscssccstrvececenss FORE passim

Rockefeller v. Catholic Med. Ctr. of Brooklyn

& Queens, Inc.,

397 U.S. 820 (1970) (per curiam) ............0.00. cece ee 16

Rogers v. Inmates’ Councilmatic Voice,

422 U.S. 1033 CROTB) vccnnscdcasecccsceeae ae eee 17

Roritck v. Bd. of Commr’s of Everglades

Drainage D1st.,

B07 03.85. BOB CGO cinncccsnccnachsnccsacee 15

Shouse v. Pierce Cnty.,

425 U.S. G20 C197) cvcisscesscisacsasnince eee 17

Skolnick v. Bd. of Commrs,

389 U.S. 26 (1967) (per Curian) ....é...5005000 17

Smart v. Texas Power & Light Co.,

421 U.S. D668 CASTS) cicvcncscriseseco ee 17

Smith v. Garza,

41 U.S. DO IGT LD iisvsccvecesrnanstececaceee eee 17

Solorto v. United States,

483 UB. 436 CGB TD siccscsnucenccsaee Scheel af

Stamler v. Willis,

393 U.S. 407 (1969) (per curiam)................... 17, 22

Stivers v. Minnesota,

429 U.S. TOB4 CSTE vicviesnicc oe iy

Sumrall v. Kidd,

394 U.S. 215 (1969) (per curiam) ...............0.000000 17

Textile Workers Union v. Lincoln Mulls of Ala.,

363 U.S. 446 (1967) ince 14

Thompson v. LNS,

375 U.S. 384 (1964) (per curiam

U_S. Bancorp Mortgage Co. v. Bonm

Partnership,

513 U.S. 18 (1994)

Union Pac R R Co. Vv Bhd ar

Engrs & Trainmen,

130 S. Ct. 584 (2009)

l/nited States ex Te ] Aoisens r

York,

129 8S. Ct. 2230 (2009)

United States ex rel. Haight v. C

Healthcare West.

602 F.3d 949 (9th Cir. 2010).

cert. denied 131 S. Ct. 366 (2010)

United States ex rel. Havcock \

Alrcratt Co..

98 F.3d 1100 (9th Cir. 1996)

United States v. Belt.

319 U.S. 521 (19438)

United States v. Christian E

Ministry,

404 U.S. 561 (1972) (p

United States v. Dixon

509 U.S. 688 (1993)

United States v. Ruiz.

536 U.S. 622 (2002)

United States v. United Mine Vi

330 U.S. 258 (1947)

Wall] V Mi Ne e.

296 U.S. 547 (1935) (per curiaz

Walling v. James V. Reuter

321 U.S. 671 (1944)

Webster v. Perry,

BET FF tes We CRW OED nncnccciccnccncccccnsccscescacesonccasccccac: 17

Wiliam Jameson & Co. v. Morgenthau,

307 U.S. 171 (1939) (per curiam).......... sicotec ile aan

Wilson v. City of Port Lavaca,

391 U.S. 352 (1968) (per curtam).................. ee

Winters v. Lavine,

429 U.S. 1012 (1976) ........... eee Oe LPN oe ay 17

STATUTES

28 U.S.C. § 230 (1934 ed. Supp. I)....... a 13

28 U.S.C. § 876 (1934 ed. Supp. D).....0...0.. eee. .19

28 U.S.C. § 1253 .................. SRN DETTE eT 23

WUSS 6s. 1, 23

Ate OO fs

28 U.S.C. § 2106 ............:.... hi eens 1,19

28 U.S.C. § 2107 ......:.:... daarechasteais ils Nepheetenaiett oleae passim

California False Claims Act,

Cal. Gov. Code § 12650 et seg. ...... Se en ee

Federal False Claims Act,

UR EO Fy, FF anaes sella eae

Pub. L. No. 80-773, ch. 646, 62 Stat. 869 ............... 19

Rev. Stat. § 701 (1875 ed.) ...... cal eneniak aniaadenaee nee

RULES

Fed. R. App. P. 4(a)(1)........... settee epaaasienisk aa

OTHER AUTHORITIES

Scott Dodson, The Failure of Bowles v.

Russell, 43 Tulsa L. Rev. 631 (2008) ............. 24, 25

Eugene Gressman et al., Supreme Couri

Practice (9th ed. 2007)...................0..22000. ees

PETITION FOR A WRIT OF CERTIORARI

Petitioners, Dr. Katherine R. O’Connell and Dr.

Chris Moyers, respectfully submit this petition for a

writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

The Ninth Circuit’s order dismissing Petitioners’

appeal is unreported. Pet.App. la.! The order of the

United States District Court for the Central District

of California granting Respondent’s motion for

summary judgment is also unreported. Jd. 4a.

JURISDICTION

The Ninth Circuit filed its order on August 17,

2010. On November 10, 2010, Justice Kennedy

extended the time within which to file a petition for a

writ of certiorari until December 17, 2010. No.

10A472. The jurisdiction of this Court rests on 28

U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

28 U.S.C. § 2106 and 28 U.S.C. § 2107, as well as

predecessor versions of those statutes, are set forth

in full in the appendix.

STATEMENT OF THE CASE

1. On April 3, 2006, Petitioners filed a

complaint in federal district court that alleged claims

against Respondent under, inter alia, the Federal

False Claims Act, 31 U.S.C. § 3729 et seg., and the

California False Claims Act, Cal. Gov. Code § 12650

1 Herein: (1) “Pet.App.” refers to the appendix of this petition;

(2) “CA9 Docket” refers to the Clerk’s Docket in No. 07-56864

(9th Cir.); and (3) “E.R.” refers to the Excerpts of Record filed in

No. 07-56864 (9th Cir.), see CA9 Docket # 38.

et seq. See Pet.App. 9a-10a. The United States and

California both declined to intervene as formal

parties. As a result, Petitioners litigated the action

as gui tam relators on behalf of those governments.

Id. 5a.

On October 23, 2007, the district court filed an

order granting summary judgment to Respondent.

Id. 4a, And the next day, October 24, 2007, the court

entered judgment for Respondent. /d. 3a.

2. On December 21, 2007, which was 58 days

after the district court entered judgment, Petitioners

filed their notice of appeal. J/d. Under 28 U.S.C.

§ 2107 and Fed. R. App. P. 4(a)(1), although a notice

of appeal ordinarily must be filed within 30 days of

judgment, a 60-day period applies when “the United

States ... is a party.” And, under controlling Ninth

Circuit precedent at the time of the judgment here,

the 60-day period had been held applicable to all

federal qui tam cases because of the United States’

interest and involvement, even if the government

had declined to intervene as a formal party. See

United States ex rel. Haycock v. Hughes Aircraft Co.,

98 F.3d 1100, 1102 (9th Cir. 1996). Petitioners

expressly cited Haycock in their notice of appeal.

E.R. 2.2

The parties proceeded to brief the merits on a

schedule ordered by the Ninth Circuit. By May 27,

2 Petitioners’ notice of appeal also included an appeal by their

counsel related to a discovery sanctions order. Pet.App. 3a; E.R.

1. In addition, Respondent later filed a notice of appeal from a

post-judgyment order that denied its motion for attorneys’ fees.

Pet.App. 2a-3a. Both of those separate appeals have been

finally resolved in the Ninth Circuit, see id. 3a; CA9 Docket #

64, and neither of them is before this Court.

2009, Petitioners and Respondent had each filed

their principal merits briefs and the case was nearly

ready to be submitted to the court for argument or

decision. See CA9 Docket # 24, 31, 42.

However, on June 8, 2009, this Court issued its

decision in United States ex rel. Eisenstein v. City of

New York, 129 S. Ct. 2230 (2009), holding that the

60-day period for appeal is unavailable in qui tam

cases where the United States is not a formal “party”

due to its non-intervention. Jd. at 2233-37. In

concluding that the 30-day period applies in such

cases, this Court expressly abrogated the Ninth

Circuit’s Haycock decision, as well as identical

decisions in the Third, Fifth, and Seventh Circuits.

See id. at 2233 n.1. Although this Court was aware

that its ruling created “the possibility of harsh

consequences” for “those who relied on the holdings

of courts adopting the 60-day limit,” it explained that

it would be improper to allow that backward-looking

“possibility” to bias its forward-looking conclusion

concerning the proper legal interpretation of § 2107

and Rule 4(a)(1). See id. at 2236 n.4.

Shortly thereafter, Respondent moved to dismiss

Petitioners’ appeal as untimely filed. CA9 Docket #

52. The Ninth Circuit stayed the appeal pending

resolution of a separate case in which a different

panel was already considering the imphcations of

Eisenstein for qui tam appeals that, in reasonable

reliance on Haycock, had been filed during the 30-to-

60-day window. Pet.App. 2a.

3. In the related case, the Ninth Circuit

ultimately concluded that, while it “sympathized

with [appellants] who complied with [its] precedent

in filing ... notice[s] of appeal,” it could provide no

rehef to such htigants. See United States ex rel.

Haight v. Catholic Healthcare West, 602 F.3d 949,

957 (9th Cir. 2010), cert. denied 131 S. Ct. 366

(2010). The court explained that, under this Court’s

decision in Bowles v. Russell, 551 U.S. 205 (2007),

the untimely filed notice of appeal “deprive[d] [it] of

jurisdiction.” Haight, 602 F.3d at 953. And the court

further reasoned that Bow/es “ha[d] instructed

that concerns of equity must give way before the

‘rigorous rules’ of statutory jurisdiction,” as

purportedly Jlustrated by the decision in Bow/es to

overrule as “illegitimate” two earlier cases that had

allowed appellate courts to excuse noncomplhiance

with the appellate time limits im “unique

circumstances.” Jd. at 953, 956. The Haight panel

emphasized, however, that it was “a_ serious

understatement to call [its] result “inequitable,”

given that the appellants there—hke Petitioners

here—had “reasonably rehbed on Ninth Circuit

precedent that gave them 60 days to file a notice of

appeal.” /d. at 953.

4. Following Harght, the Ninth Circuit in this

case summarily held that “dismissal of [Petitioners’]

appeal[]”’was “require[d].” Pet.App. 2a. In so

holding, the court stated that a “remand” to the

district court “would be futile.” /d. 3a.

REASONS FOR GRANTING THE PETITION

As Justice Ginsburg and others have noted,

Bowles v. Russell, 551 U.S. 205 (2007), “moved in a

different direction” from this Court’s recent decisions

limiting the types of rules that are subject to the

stringent requirements of “jurisdictional” rules. See

Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237,

1250 (2010) (opinion concurring 1n- part = and

concurring in the judgment). ‘This case presents this

Court with an opportunity to mitigate’ the

indisputably inequitable results created by Sow/es,

while still faithfully adhering to Bow/es holding that

noncomphance with the time for filing a civil appeal

is a jurisdictional bar that cannot be equitably

excused. Bowles declined to redress justifiable

noncomphance with 28 U.S.C. § 2107—and overruled

the “unique circumstances” doctrine—because_ the

appellant there had failed to provide this Court with

a legitimate method for taking equitable

considerations into account under a rule that had

long been treated as jurisdictional. See Bowles, 551

U.S. at 209-10, 213-15. Yet a principled and well-

estabhshed equitable vehicle does exist in the

particular context of § 2107.

Specifically, although an appellate court that

lacks jurisdiction never has the power to retain the

case for an adjudication on the merits, it always

possesses the equitable power to dispose of the

appeal in a just manner, which includes disposing of

it in a way that prospectively cures the jurisdictional

defect. Accordingly, this Court has a longstanding

equitable tradition, in cases involving improper

direct appeals under ambiguous jurisdictional

statutes, of vacating and remanding for entry of a

fresh judgment so that a timely appeal can be taken

to the proper circuit court. See, eg, Walling v.

James V. Reuter, Inc., 321 U.S. 671, 676-77 (1944);

Phillips v. United States, 312 U.S. 246, 254 (1941).

This equitable vacatur’ tradition has _ been

consistently and unquestioningly apphed by this

Court for at least 60 years, in 50 different decisions,

by 30 different Justices—including, most recently, in

a 1995 decision joined by Justices Scaha, Kennedy,

Thomas, Ginsburg, and Breyer See Franklin \

Lawrimore, 516 U.S. 801 (1995); Castro Cnty. v

Crespin, 101 F.3d 121, 124-25 (D.C. Cir. 1996).

The equitable vacatur practice reflects “a long

line of this Court's decisions left undisturbed by

Congress,” which is the very type of tradition that

this Court has observed is the essential basis of

Bowles jurisdictional holding. See Union Pac. AR.

Co. v. Bhd. of Locomotive Engrs & Trainmen, 130 8.

Ct. 584, 597 (2009). Consequently, just as tradition

was the reason in Bow/es for treating the civil appeal

time hmit as jurisdictional, so too tradition is the

reason why appellate courts possess the equitable

power to vacate and remand for a fresh judgment

when the untimeliness of the appeal was caused by a

judicial error. To retain the traditional jurisdictional

characterization of appellate time lhmits' while

abandoning a _ traditional equitable remedy for

jurisdictionally untimely appeals would transform

into a full-blown conflict the “undemiable tension”

that Justice Ginsburg has identified between Bowles

and this Court's remaining jurisdictional

jurisprudence. See Reed Elsevier, 130 5. Ct. at 1250-

51 (opinion concurring in part and concurring in the

judgment). Indeed, such a “bait and switch” would

indisputably be an “intolerable” way for “the judicial

system to treat people.” Bowles, 551 U.S. at 215

(Souter, J., dissenting).

In recent Terms, this Court has made a

concerted effort to scrutinize lower court holdings

characterizing rules as jurisdictional, in part because

of the propensity of such rules to deny litigants their

full day in court, no matter how justifiable their

noncomphance or how inequitable the result.

—

Bowles seeming elimination of the role of equity

under § 2107 was contrary to that trend, and so it 1s

all the more troubling that its unjust result flowed

directly from the failure of the parties to inform this

Court of the full scope of an appellate court’s powers

to dispose of a case. Accordingly, this Court should

grant certiorari to review, and then correct, the

Ninth Circuit’s erroneous conclusion that dismissal

of Petitioners’ appeal is required by Bow/es and that

remand would be futile.

I. APPELLATE COURTS POSSESS THE

EQUITABLE POWER TO DISPOSE OF A

JURISDICTIONALLY UNTIMELY APPEAL BY

VACATING AND REMANDING FOR ENTRY

OF A FRESH JUDGMENT FROM WHICH A

TIMELY APPEAL CAN BE NOTICED

Bowles jurisdictional holding was based on

settled tradition. Yet this Court has an even more

settled tradition, in certain cases where it lacks

appellate jurisdiction, of prospectively curing

jurisdictionally untimely appeals by vacating and

remanding for entry of a fresh judgment that

restarts the appellate clock. And the Courts of

Appeals lhkewise have the power to provide such

equitable relhef when they lack jurisdiction over an

untimely appeal.

A. Bowles Relied On Tradition In Holding That

An Untimely Civil Appeal Is A Jurisdictional

Bar That Appellate Courts Cannot Equitably

Excuse

1. Bowles presented the question “whether [a]

Court of Appeals ha[s] jurisdiction to entertain an

appeal filed after the statutory period” established in

§ 2107, where the untimeliness was caused by the

fact that “a District Court purported to extend a

party’s time for filing [its] appeal beyond the period

allowed by statute.” 551 U.S. at 206. In particular,

the district court, when granting Bowles’ motion to

reopen the time for appealing from the denial of his

habeas petition, had given Bowles three more days

than was permitted under §2107(c), and_ the

question presented was whether the Sixth Circuit

had correctly decided that it therefore lacked

jurisdiction to hear the merits of Bowles’ appeal. See

id. at 207.

A five-Justice majority of this Court held that

Bowles’ “untimely notice-—even though filed in

reliance upon [the] District Court’s order —deprived

the Court of Appeals of jurisdiction.” Jd. at 206-07.

The majority reasoned that this Court “hald] long

and repeatedly held that the time limits for filing a

notice of appeal are jurisdictional in nature.” /d. at

206. In order to demonstrate this Court's

“longstanding treatment of statutory time lmits for

taking an appeal as jurisdictional,” the majority

provided a string-cite of seven cases —five from after

1960 and two from the nineteenth century. /d. at

209-10 & n.2. Although two other decisions from the

early 1960's had nevertheless permitted appellate

courts to adjudicate the merits in the “unique

circumstances” where an untimely appeal was

caused by a district court’s error, the majority elected

to overrule those cases, reasoning that “this Court

has no authority to create equitable exceptions to

jurisdictional requirements.” Id. at 213-14

(overruling Harris Truck Lines, Inc. v. Cherry Meat

Packers, Inc., 371 U.S. 215 (1962) (wer curram), and

Thompson v. INS, 375 U.S. 384 (1964) (per curiam)).

Finally, responding to the concern that the result of

its decision was “inequitable,” the majority observed

that “Congress may authorize courts to promulgate

rules that excuse compliance with the statutory time

limits.” /d. at 214.

Four Justices in Bow/es dissented, objecting that

it was “intolerable for the judicial system to treat

people this way|] and [that] there [was] not even a

technical justification for condoning this bait and

switch.” /d. at 215 (Souter, J., dissenting). The

dissenters argued that, in a recent line of decisions,

this Court “ha[d] tried to clean up [the] language” in

its older cases, which had been “less. than

meticulous” when characterizing rules as

“jurisdictional.” See id. at 215-17. And the

dissenters explained tthat, as part of that

jurisprudential project, this Court had announced

that: (1) “the label ‘jurisdictional™ should be used

“only for prescriptions delineating the classes of

cases (subject-matter jurisdiction) and the persons

(personal jurisdiction) falling within a_ court's

adjudicatory authority,” “not for claim-processing

rules” such as the filing deadline in § 2107; and (2)

“courts should treat” “a statutory limitation” “as non

jurisdictional in character” when—as 1s the case with

§ 2107—“Congress does not rank fit] as

jurisdictional.” See id. at 217, 218 (quoting Aontrick

v. Ryan, 540 U.S. 443, 455 (2004), and Arbaugh v. }

& H Corp., 546 U.S. 500, 516 (2006)).

2. Petitioners here do not question Bow/es

holding that noncomplhance with §2107 is a

jurisdictional bar that appellate courts cannot

equitably excuse. Instead, Petitioners emphasize

two critical aspects of that holding.

First, the jurisdictional holding in Bow/es heavily

relied on this Court’s traditional practice. Bowles

repeatedly invoked the historical pedigree of the rule

that it adopted. See id. at 206, 209-10. This was

most apparent in the majority's rejoinder to the

dissent’s reliance on the reasoning of the Aontrick-

Arbaugh line: “[gliven the choice between calling

into question some dicta in our recent opinions and

effectively overruling a century’s worth of practice,

we think the former option is the only prudent

course.” Jd. at 209 n.2. Likewise, in two unanimous

decisions last Term, this Court reaffirmed that the

jurisdictional holding in Bow/es rests on this Court’s

“historical treatment of the type of limitation § 2107

imposes,” Heed Elsevier, 130 S. Ct. at 1247-48, as

reflected in “a long line of this Court’s decisions left

undisturbed by Congress,” zd. at 1250-51 (Ginsburg,

J., concurring in part and concurring in the

judgment); Union Pac. R.R. Co., 130 8. Ct. at 597.

Second, Bowles trained on whether the Sixth

Circuit could have retained the untimely appeal for

adjudication of the merits, not on whether the Sixth

Circuit could have disposed of that appeal in a

manner that enabled a future timely appeal. While

holding that appellate courts cannot resolve the

merits of an untimely civil appeal because they lack

the power to create equitable excuses for

noncompliance with § 2107's jurisdictional time

limit, Bow/es did not consider whether such courts at

least may equitably dispose of the putative appeal by

entering a non-merits vacatur that prospectively

cures the untimeliness. See 551 U.S. at 213-15. This

Court did not reach that question for the simple

reason that the parties failed to raise it. Yet had

they done so, this Court would have discovered its

own well-established tradition of providing preciscly

such an equitable remedy.

B. In Jurisdictionally Improper Direct Appeals,

This Court Has A Long And Unbroken

Equitable Tradition Of Vacating And

Remanding For Entry Of A Fresh Judgment

From Which A Timely Appeal Can Be Taken

To The Proper Circuit Court

1. Like all federal courts, this Court “always

has jurisdiction to determine its own jurisdiction.”

United States v. Ruiz, 536 U.S. 622, 628 (2002)

(citing United States v. United Mine Workers, 330

U.S. 258, 291 (1947)). And when the exercise of that

threshold jurisdiction reveals “for any reason [that]

the Court may not properly proceed with a case

brought to it on appeal, or [that] it is without power

to proceed with the appeal,” “[ijJt is a familiar

practice of this Court that ... it may nevertheless, in

the exercise of its supervisory appellate power, make

such disposition of the case as justice requires.”

Walling, 321 U.S. at 676. As Justice Scalia has

explained, such “matters of judicial administration

and practice” are “reasonably ancillary to the [federal]

courts] primary, dispute-deciding function.” See

U.S. Bancorp Mortgage Co. v. Bonner Mall

Partnership, 513 U.S. 18, 21-22 (1994) (citing

Walhng and discussing the so-called Munsingwear

practice of equitable vacatur when intervening

mootness bars appellate review).

One of the “familiar practices” cited by Walling

as an exemplar of this Court’s “supervisory appellate

power’ to justly dispose of jurisdictionally barred

appeals is this Court’s equitable treatment of cases

where the time for filing an appeal in the circuit

court has elapsed because the appellant has

erroneously, albeit reasonably, taken a direct appeal

to this Court instead. Specifically, “[w]hen [this

Court] is without jurisdiction to decide an appeal

which should have been prosecuted to another court”

under an ambiguous jurisdictional statute—such

that the jurisdictional time limit for appealing to the

proper circuit court has since passed—this Court

nevertheless “vacate[s] the judgment and remand{[s]

the cause in order to enable the court below to enter

a new judgment from which a proper appeal may be

taken” within the renewed jurisdictional time period.

See Walling, 321 U.S. at 677.

As demonstrated below, Petitioners have

identified at least 50 different cases from this Court,

decided between 1934 and 1995, that implement this

equitable practice of vacating the judgment below,

notwithstanding the absence of appellate

jurisdiction, solely in order to restart the clock for

filing a jurisdictionally timely civil appeal. Indeed,

almost all of the 36 Justices who were members of

this Court during those 61 years have joined at least

one opinion applying the practice—including a

majority of the current Justices—and not a single

Justice has ever questioned its legitimacy.

2. The practice of vacating and remanding to

enable the filing of a jurisdictionally timely appeal

was born in Gully v. Interstate Natural Gas Co., 292

U.S. 16 (1934) (per curiam). There, the plaintiff

challenged a _ state tax assessment on federal

constitutional grounds. /d. at 17. Under federal law

at the time, certain federal challenges to state action

could only be considered by a three-judge district

court, and certain orders by such three-judge courts

were directly appealable to this Court. See id. at 17-

18. In Gully, a three-judge district court was

convened and entered a permanent injunction

against the challenged assessment, at which point

the state defendants took a direct appeal to this

Court. Jd. This Court held, however, that the

plaintiffs challenge fell outside of the federal law

that required the convocation of a three-judge court

and that authorized a direct appeal. /d at 18

Consequently, this Court lacked jurisdiction over the

appeal. /d.

But this Court was acutely aware of the potential

inequity created by its jurisdictional holding

Specifically, while the state officials could have

“appealled] [the injunction] to the Circuit Court of

Appeals, notwithstanding the participation of three

judges,” such “relief [could no longer] be afforded ...

as the time for appeal to that court hald] expired,”

and thus such an appeal had become jurisdictionally

barred as well. /d. at 19; see also 28 U.S.C. § 230

(1934 ed. Supp. I. This Court determined that, “[i]n

these circumstances”’—where simply dismissing the

improper appeal would create the inequitable result

that a district court’s judgment goes unreviewed due

merely to jurisdictional confusion—‘“the appropriate

action is to reverse the decree below,” “without

passing upon the merits,” “and to remand the cause

to the District Court for further proceedings” in

which it reissues its order, thereby restarting the

time period within which an appeal can be taken to

the circuit court. Gu//y, 292 U.S. at 19.

A month later, this Court reaffirmed and

clarified this equitable vacatur practice in Oklahoma

Gas & Electric Co. v. Oklahoma Packing Co., 292

U.S. 386 (1934). As in Gully, this Court first

concluded that “[t]he three-judge procedure” had not

been required below. /d. at 390-92. It emphasized

that “[t]he issue [was] not one of the federal

jurisdiction of the district court, ... but whether a

final hearing by three judges was prescribed ... and

hence whether this Court has jurisdiction to hear the

appeal.” Jd. at 391. Having decided it was “without

jurisdiction to hear the merits of the appeal,” this

Court explained that its threshold “exercise of its

appellate jurisdiction” to determine jurisdiction

included the “authority to ... frame [its] order in a

way that will save to the appellants their proper

remedies.” Jd. at 392. Appellants, “[b]y mistakenly

appealing directly to this Court, ... ha[d] lost their

opportunity to have the decree below reviewed on its

merits, as the time for appeal to the Circuit Court of

Appeals ha[d] expired.” /d. Though this Court might

have allowed that result “had the correct procedure

been more definitively settled at the time the

appeal ... was attempted,” it held that, “in the[se]

circumstances,” “it is appropriate that the decree

below should be vacated and the cause remanded to

the district court for further proceedings.” /d.

The equitable vacatur practice was soon so well

settled that even Justice Frankfurter—a notorious

stickler about the limits on the jurisdiction of federal

courts’—unhesitatingly applied it when, once again,

the unnecessary convocation of a three-judge court

' See, e.g., Textile Workers Union v. Lincoln Mills of Ala., 353

U.S. 448, 460 (1957) (Frankfurter, J., dissenting); Nat7 Mut.

Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646 (1949)

(Frankfurter, J., dissenting); Coleman v. Miller, 307 U.S. 433,

460 (1939) (Frankfurter, J., dissenting)

‘

below was held to be “a fatal bar to ... entertaining

[an] appeal.” See Phillips, 312 U.S. at 248, 253. As

Justice Frankfurter canonically explained:

Had a timely appeal been taken to the

circuit court of appeals|,] the decree below

could have been reviewed there, though

rendered by three judges.... While this Court

cannot hear the merits, it will, where the

question of jurisdiction was not obviously

settled by prior decisions, [enter] an order

framed to save appellants their proper

remedies.... We therefore vacate the decree

and remand the cause to the court which

heard the case so that it may enter a fresh

decree from which appellants may, if they

wish, perfect a timely appeal to the circuit

court of appeals.

Id. at 254.

3. As described above, this Court’s practice of

equitable vacatur to enable a timely circuit court

appeal initially arose in cases where the non-obvious

defect in this Court’s appellate jurisdiction was that

a three-judge court had not been required below.‘

4 See also Butler v. Dexter, 425 U.S. 262, 267 (1976) (per

curtlam), Dickson v. Ford, 419 U.S. 1085 (1974); Gonzalez v.

Automatic Emps. Credit Union, 419 U.S. 90, 99-101 (1974); Bd.

of Regents of Univ. of Texas Sys. v. New Left Educ. Project, 404

U.S. 541, 545 (1972); Moody v. Flowers, 387 U.S. 97, 104 (1967);

Pa. Pub. Util. Comm'n v. Pa. R.R. Co., 382 U.S. 281, 282 (1965)

(per curiam), Rorick v. Bd. of Commr’s of Everglades Drainage

Dist., 307 U.S. 208, 212-13 (1939); Wiliam Jameson & Co. v.

Morgenthau, 307 U.S. 171, 173-74 (1939) (per curiam); Int?

Ladies’ Garment Workers Union v. Donnelly Garment Co., 304

U.S. 243, 251-52 (1938) (per curiam); Wall v. McNee, 296 U.S.

547, 548 (1935) (per curiam).

But the practice was and is by no means limited to

that context. To the contrary, it has been equally

apphied in a variety of situations where the unsettled

defect in this Court’s appellate jurisdiction that had

the effect of preventing a timely circuit court appeal

was not tied to any mistake in the district court.

For example, this Court has employed the

equitable vacatur practice to facilitate a_ timely

circuit court appeal where its own appellate

jurisdiction was lacking because: (1) a three-judge

court was properly convened but the specific order at

issue was not directly appealable to this Court;® (2) a

district court declined to enter its order as a three-

judge court;® (3) the decision of a single-judge district

court narrowly interpreted a federal law in light of

constitutional concerns and thus fell outside a

provision conferring direct appellate jurisdiction in

this Court for decisions actually holding federal

statutes to be unconstitutional;’ or (4) Congress had

imphedly repealed a_ provision conferring direct

appellate jurisdiction in this Court for certain cases

from the District of Columbia.* There are also a

® See Castro Cnty. v. Crespin, 101 F.3d 121, 124-25 (D.C. Cir.

1996) (discussing Franklin v. Lawrimore, 516 U.S. 801 (1995),

and Clinton v. Jeffers, 503 U.S. 930 (1992)); see also MTM, Inc.

v. Baxley, 420 U.S. 799, 802-04 (1975) (per curiam); Mitchell v.

Donovan, 398 U.S. 427, 429-32 (1970) (per curiam); Rockefeller

v. Catholic Med. Ctr. of Brooklyn & Queens, Inc., 397 U.S. 820

(1970) (per curiam).

6 See Perez v. Ledesma, 401 U.S. 82, 86-88 (1971); Mengelkoch

v. Indus. Welfare Comm’n, 393 U.S. 83 (1968) (per curiam);

Wilson v. City of Port Lavaca, 391 U.S. 352 (1968) (per curiam).

? See United States v. Christian Echoes Nat] Ministry, 404 U.S.

561, 563-66 (1972) (per curiam).

8 See United States v. Belt, 319 U.S. 521 (1943).

number of equitable vacatur cases where this Court's

summary disposition does not itself explain the basis

for the lack of appellate jurisdiction.9

This Court’s equitable vacatur practice has not

been employed as frequently in recent years as it was

in the past, because, during the 1970’s and 1980's,

Congress repealed most of the statutes conferring

direct appellate jurisdiction in this Court, thus

eliminating much of the uncertainty about when

appellate jurisdiction exists here. See Eugene

Gressman et al., Supreme Court Practice § 2.7 (9th

ed. 2007). But the equitable vacatur practice has not

itself fallen into desuetude. For example, in 1995,

the practice was apphed by a unanimous Court that

% See Ayers v. Winter, 467 U.S. 1211 (1984); Burlington

Northern, Inc. v. Sterling Colorado Beef Co., 429 U.S. 1084

(1977); Stivers v. Minnesota, 429 U.S. 1084 (1977); Winters v.

Lavine, 429 U.S. 1012 (1976); Gustafson v. Hoffman, 429 U.S

806 (1976); Shouse v. Pierce Cnty., 425 U.S. 929 (1976); Nat?

Socialist White P. ce Party v. Walsh, 425 U.S. 929 (1976);

Rogers v. Inmates’ Councilmatic Voice, 422 U.S. 1031 (1975);

Democratic Exec. Comm. of Columbiana Cnty. v. Brown, 422

U.S. 1002 (1975); Smart v. Texas Power & Light Co., 421 US

958 (1975); Custom Recording Co. v. Blanton, 421 U.S. 943

(1975); BT Inv. Managers Inc. v. Dickinson, 421 U.S. 901, 902

(1975); Mendez v. Heller, 420 U.S. 916 (1975); Fitzgerald v.

Digrazia, 419 U.S. 1065 (1974); Driskell v. Edwards, 419 U.S.

812 (1974); Daniel v. Waters, 417 U.S. 963 (1974); Webster v.

Perry, 417 U.S. 963 (1974); Edelman v. Townsend, 412 U.S. 914,

915 (1973); Smith v. Garza, 401 U.S. 1006 (1971); Bad. of Pub.

Instruction v. Banks, 401 U.S. 988 (1971); Hutcherson v. Lehtin,

400 U.S. 923 (1970); Carlough v. Richardson, 399 U.S. 920

(1970); Sumrall v. Kidd, 394 U.S. 215 (1969) (per curiam); Dah!

v. Republican State Comm., 393 U.S. 408 (1969) (per curiam);

Stamler v. Willis, 393 U.S. 407 (1969) (per curiam); Skolnick v

Bd. of Comm'rs, 389 US. 26 (1967) (per curiam); Canton

oultry, Inc. v. Conner, 388 U.S. 458 (1967) (per curtam).

included a majority of the current Justices—namely,

Justices Secaha, Kennedy, Thomas, Ginsburg, and

Breyer. This Court did so to enable a timely circuit

court appeal of an attorneys’ fee issue, where the

appellants had erroneously invoked a_ broadly

worded direct appeal provision in a federal voting

rights law, thereby causing the time for appealing

the fee issue to the Fourth Circuit to elapse. See

Franklin, 516 U.S. at 801; Crespin, 101 F.3d at 124-

25. Indeed, this Court provided the equitable

vacatur rehef sua sponte, because the appellants in

Franklin did not even respond to the appellees’

motion to dismiss.

4. Congress, moreover, has_ ratified the

legitimacy of the equitable vacatur practice. This

Court’s rule is that “Congress ratifie|[s]” a “well-

established judicial interpretation” when it “leave|[s]

lit} intact” while “comprehensively revis[ing]” a

relevant statutory scheme. See, e.g, Herman &

MacLean v. Huddleston, 459 U.S. 375, 384-86 (1983).

And that is precisely what happened with respect to

the equitable vacatur practice.

As noted, the vacatur practice 1s an exercise of

this Court’s “supervisory appellate power” to

“dispos[e] of [a] case as justice requires” even when

‘it 1s without power to proceed with the appeal” on

the merits. falling, 321 U.S. at 676. At the time

Gully adopted the practice in 1934, the

Congressional statute governing this Court's

supervisory power read as follows:

The Supreme Court may affirm, modify,

or reverse any judgment, decree, or order of a

district court lawfully brought before it for

review, or may direct such judgment, decree,

or order to be rendered, or such further

proceedings to be had by the inferior court, as

the justice of the case may require....

28 U.S.C. § 876 (1934 ed. Supp. I); see also Rev. Stat.

§ 701 (1875 ed.). Between 1934 and 1948, this Court

applied the equitable vacatur practice at least &

times. See supra at 12-15, 15 n.4, 16n.8.

Then, in 1948, Congress comprehensively revised

Title 28 of the U.S. Code. See Pub. L. No. 80-773, ch.

646, 62 Stat. 869. In doing so, Congress made two

matenial changes italicized below— to the provision

that governed (and still governs) this Court’s

“supervisory appellate power”:

The Supreme Court or any other court of

appellate jurisdiction may affirm, modify,

vacate, set aside or reverse any judgment,

decree, or order of a court lawfully brought

before it for review, and may remand the

cause and direct the entry = of such

appropriate judgment, decree, or order, or

require such further proceedings to be had as

may be just under the circumstances.

28 U.S.C. § 2106 (emphases added).

If Congress had merely “le[ft] ... intact” the

equitable vacatur practice that this Court had

already established, that itself would have been

sufficient to establish statutory ratification of the

remedy. Huddleston, 459 U.S. at 386. But Congress

went further still, for the two material changes that

it did make affirmatively support the legitimacy of

the remedy and its applicability here: first, Congress

confirmed the power to “vacate” or “set aside” the

. * 7"

judgment under review; and second, Congress

confirmed that circuit courts, no less than this Court,

possess supervisory appellate power over cases

before them.

Accordingly, while Bow/es properly noted that

“Congress may authorize courts to promulgate rules

that excuse compliance” with § 2107 if displeased

with the result there, see 551 U.S. at 214, this Court

was not informed that Congress has a/ready

authorized equitable vacaturs that prospectively cure

noncomphance with § 2107, by “lefaving]

undisturbed” the “long line of this Court's decisions”

employing the vacatur practice, Reed Elsevier, 130 S.

Ct. at 1251 (Ginsburg, J., concurring in part and

concurring in the judgment).

5. To be sure, this Court's longstanding practice

of “vacatling] the district court judgment and

remand|ing] the case for the entry of a fresh decree

from which [a timely] appeal may be taken” is not

“statutorily or otherwise compelled.” Norton v.

Mathews, 427 U.S. 524, 531 (1976). It is purely an

equitable exercise, in “cases where the jurisdictional

issue was previously unsettled,” 7d, of this Court’s

“supervisory appellate power,” Wa/ling, 321 U.S. at

676. But it is striking how freely this Court has

dispensed such equity when reasonable mistakes

would otherwise have led to the result that an

appellant was jurisdictionally foreclosed from filing a

timely appeal in a circuit court.

First, Petitioners have identified at least 50

different cases over 60 years in which this Court has

protected appellants from the consequence of their

reasonable jurisdictional errors. See supra at 12-17

& nn.4-9. Indeed, durnng that penod, 36 different

Justices have been members of this Court, 30 of

them have joined at least one opinion employing the

equitable vacatur practice—including a majority of

the current Justices—and no Justice has ever

questioned the practice, let alone has this Court ever

held that it should not be used.

Second, this Court has set a relatively low bar for

entitlement to such equitable relef. It has granted

vacatur so long as “the question of jurisdiction was

not obviously settled by prior decisions.” PaAz//ips,

312 U.S. at 254. Thus, while mistaken appellants

have received relief when they reasonably relied on

settled precedent that was subsequently abrogated,

see, e.g., Gonzalez v. Automatic Emps. Credit Union,

419 U.S. 90, 95, 99-101 (1974): Pa. Pub. Util

Comm'n v. Pa. R.R. Co., 382 U.S. 281, 282 (1965) (per

curiam), they also have received rehef simply

because the jurisdictional question had been open,

see, e.g., Bd. of Regents of Univ. of Texas Sys. v. New

Lett Educ. Project, 404 U.S. 541, 543-45 (1972); O&/a.

Gas & Elec. Co., 292 U.S. at 390-92.

Finally, this Court has provided equitable

vacatur relief even if the mistaken appellant failed to

ask for such relief. Based on the available briefing

from the 50 cases cited herein, Petitioners are aware

of only 5 cases where the putative appellant

affirmatively requested vacatur if this Court was

barred from reaching a decision on the merits. 1°

10 See Appellants’ Supplement to Jurisdictional Statement at 2,

Clinton v. Jeffers, 503 U.S. 930 (1992) (No. 91-1210):

Jurisdictional Statement at 9-10, Gustafson v. Hoffman, 429

U.S. 806 (1976) (No. 75-1672); Brief in Opposition to the Motion

to Dismiss at 7, United States v. Belt, 319 U.S. 521 (1943) (No.

919); Bnef of Appellants at 25, PAiliips v. United States, 312

U.S. 246 (1941) (No. 201); Brief for Appellant at 26, Wi//iam

Jameson & Co. v. Morgenthau, 307 U.S. 171 (1939) (No. 717).

Indeed, in at least two cases where the appellant did

not raise the vacatur remedy until after this Court

had issued an opinion simply dismissing the appeal,

this Court took the extraordinary step of

withdrawing the opinion and replacing it with one

that granted the vacatur remedy. See Hutcherson v.

Lehtin, 400 U.S. 923 (1970); Stamler v. Willis, 393

U.S. 407 (1969) (per curiam).

C. The Courts Of Appeals Should Be Allowed To

Invoke The Equitable Tradition Of Vacating

And Remanding For Entry Of A Fresh

Judgment When A Jurisdictionally Untimely

Appeal Is Caused By A Judicial Error

This Court’s vacatur practice in its direct appeal

jurisprudence proves that a court lacking appellate

jurisdiction is not powerless to provide an equitable

remedy that prospectively cures reasonable

noncompliance with a jurisdictional time lmit for

taking an appeal. And it follows a fortiori that the

Courts of Appeals should be able to apply the same

practice when reasonable reliance on judicial error

causes an appellant's noncomphance with the

jurisdictional time limit in § 2107.

First, there is no material distinction between

the appellants in this Court's equitable vacatur cases

and appellants hke Petitioners and Bowles. In both

situations, a putative appellant has missed the

jurisdictional time limit for taking an appeal to the

circuit court that has proper appellate jurisdiction.

In both situations, the cause of that untimeliness is

that the judiciary has failed to provide unambiguous

and correct guidance on the relevant jurisdictional

rules. And in both situations, a court that lacks

appellate jurisdiction to resolve the case on the

merits still retains supervisory appellate power to

dispose of the case justly, including by vacating and

remanding for entry of a fresh judgment that will

restart the time for taking an appeal.

Second, the Courts of Appeals arguably have

greater justification for awarding such relief than

does this Court in its direct appeal jurisprudence.

After all, the Ninth Circuit here is at least the

federal appellate court that has statutory appellate

jurisdiction over a case of this type, see 28 U.S.C.

§ 1291, even if it cannot exercise that jurisdiction

due to Petitioners’ noncompliance with the time limit

in § 2107. By contrast, in this Court’s equitable

vacatur cases, this Court is not even the correct

appellate court to review the district court's

judgment, see 28 U.S.C. §§ 1253, 1254, yet it still

provides relief. To put the matter differently, if this

Court’s complete lack of appellate jurisdiction does

not prevent it from providing equitable vacatur relief

that facilitates a timely appeal in the Ninth Circuit,

then surely the Ninth Circuit’s lmited lack of

appellate jurisdiction here does not prevent it from

providing the same relief. Indeed, it would be absurd

if Petitioners would have been better off missing

§ 2107's time limit by mistakenly filing a direct

appeal in this Court, rather than by reasonably

relying on Ninth Circuit precedent construing § 2107

that this Court subsequently abrogated.

Third, untimely appellants who have reasonably

rehed on judicial error have a far greater equitable

claim to vacatur relief than many of the mistaken

appellants in this Court’s vacatur cases. Unlike

Petitioners, who relied on controlling precedent that

was later overruled, see supra at 2-4, or Bowles, who

relied on an order of a federal judge that was in

error, see supra at 7-8, the mistaken appellants in

this Court’s vacatur cases often simply made the

wrong choice when confronted with an unresolved

jurisdictional question, see supra at 21. Indeed,

prudent appellants in those circumstances could

have filed a protective appeal in the circuit court,

see, e.g., Pa. Pub. Util. Comm'n, 382 U.S. at 282,

whereas appellants like Petitioners and Bowles had

no reason to doubt the timeliness of their appeals,

which complied with binding judicial decrees.

Finally, this Court’s equitable vacatur practice

for prospectively curing jurisdictionally defective

appeals is a more established tradition than was the

tradition cited in Bow/es of treating statutory time

hmits for appealing as jurisdictional in the first

place. Bowles cited a mere seven cases from this

Court to establish the practice of treating the civil

appeal time limit as jurisdictional. See 551 U.S. at

209-10. Some have questioned whether all seven

cases fully supported that conclusion. See Scott

Dodson, The Failure of Bowles v. Russell, 43 Tulsa L.

Rev. 631, 635-38 (2008). Regardless, however, those

seven cases pale in comparison to the 50 different

cases cited above in which 30 different Justices of

this Court have repeatedly demonstrated that courts

lacking appellate jurisdiction still possess the power

to award equitable non-merits” relief that

prospectively cures a jurisdictionally untimely

appeal. Given that this Court relied so heavily on

tradition in Bow/es when treating statutory time

limits for appeals as jurisdictional, it should now

readily reaffirm and embrace the much more

established appellate tradition of providing equitable

vacatur relief that prospectively cures

jurisdictionally untimely appeals.!!

Il. THIS IMPORTANT ISSUE OF FEDERAL

JURISDICTIONAL PRACTICE WARRANTS

THIS COURT'S IMMEDIATE RESOLUTION

This Court has often granted certiorari in order

to “exercise ... [its] supervisory powers,’ Nguyen v.

United States, 539 U.S. 69, 73-74 (2003), “in cases

involving [issues of] federal jurisdiction, practice,

and procedure” that are of sufficient “importance,”

Gressman, supra, § 4.15 at 273. For at least two

reasons, this case warrants such treatment.

First, in recent years, this Court has increasingly

recognized the importance of reviewing jurisdictional

holdings, even in the absence of a circuit split, when

those holdings would deprive litigants of their right

to invoke equity or to waive defenses. Bow/es itself

was precisely such a case. See 551 U.S. at 207-08.

And so is Henderson v. Shinseki, 130 S. Ct. 3502

(2010), in which this Court is currently reviewing the

Federal Circuit’s extension of Bowles to untimely

appeals in Veterans Court, belated filings which

often present compelling equitable justifications from

disabled soldiers.

Reed Elsevier perhaps best exemplifies the vigor

with which this Court has reviewed potential over-

reliance by lower courts on a “jurisdictional”

characterization. There, the Second Circuit had

refused to allow a settlement of a copyright class-

1! Notably. it does not appear that any of the seven

“jurisdictional” cases cited in Bow/es involved circumstances

that would have called for an exercise of this Court’s equitable

vacatur practice. See Dodson, supra, at 635-38.

action, reasoning that some of the settled claims

involved unregistered copyrights despite “widespread

agreement among the circuits” that the registration

requirement was a “jurisdictional” bar to copyright

claims. See 130 S. Ct. at 1242-43. Perhaps because

of that “widespread agreement,” the petitioners in

seeking certiorari did not even dispute that the

registration requirement was jurisdictional, instead

arguing merely that federal courts can enter

comprehensive settlements even if some of the

settled claims would have been _ jurisdictionally

barred had they been litigated on the merits. See

Petition for a Writ of Certiorari at i, 11-31, Reed

Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237 (2010)

(No. 08-103). Despite the failure of the petitioners to

raise the issue, however, this Court sua sponte

“formulated the question presented to ask whether

[the registration requirement] restricts the subject-

matter jurisdiction of the federal courts over

proceeded to overrule the “widespread agreement

among the circuits” that the requirement was

jurisdictional. See 130 S. Ct. at 1243-47. Notably,

this Court also took that self-created opportunity to

distinguish and cabin Bow/es based on this Court’s

traditional treatment of § 2107. See id. at 1247-48;

see also id. at 1250-51 (Ginsburg, J., concurring in

part and concurring in the judgment).

Here, as in Sowles, Henderson, and Reed

Elsevier, the need for “an exercise of this Court’s

supervisory powers’ is critical. Nguyen, 539 U.S. at

74. This Court should reaffirm an important

principle of federal jurisdictional practice that its

decision in Bow/es has unfortunately obscured: the

lack of “power to proceed with [an] appeal” does not

strip a court of its “supervisory appellate power” to

“dispos[e] of the case as justice requires.” Walling,

321 U.S. at 676.

Second, the omission in the parties’ briefing in

Bowles caused this Court to effect a_ significant

alteration in the legal landscape based, unwittingly,

on a “less than accurate’ historical analysis” that

“contradicted an ‘unbroken line of decisions,” which

is the type of oversight that justifies reviewing the

scope of recent precedent. See United States v.

Dixon, 509 U.S. 688, 711-12 (1993) (quoting So/orio

v. United States, 483 U.S. 435, 439, 442 (1987)); see

also Eberhart v. United States, 546 U.S. 12, 13-15,

19-20 (2005) (per curiam) (granting certiorari when

the Seventh Circuit’s erroneous belief that it was

required to treat a rule as “jurisdictional” was “an

error shared among the circuits ...{[and] caused in

large part by imprecision in [this Court’s] prior

cases’). Prior to Bow/es, equitable relief from § 2107

was available under the “unique circumstances”

doctrine. See Bowles, 551 U.S. at 213-14. To be

sure, that doctrine was technically an “legitimate”

means of dispensing equity since it permitted a

merits adjudication while purporting to excuse

noncompliance with a jurisdictional rule. See id. at

214. That defect in form, however, could have been

fixed in Bowles if only this Court had been made

aware of its legitimate and longstanding tradition of

using vacatur as a non-merits disposition that

prospectively cures a jurisdictionally untimely

appeal. But because this Court instead was

presented with the false dichotomy between

dismissing the untimely appeal or allowing its

adjudication on the merits, it felt constrained to

affirm the Sixth Circuit’s “inequitable” dismissa! of

Bowles’ appeal. See id. at 214-15. That unfortunate

perception in turn led the Ninth Circuit here wrongly

to believe that “dismissal of [Petitioners’] appeallf]”

was “require[d]” and that “remand would be futile.”

Pet.App. 2a-3a. This Court should seize the

opportunity to fix the misperception created as a

result of the inadequate briefing in Bow/es

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted

Respectfully submitted

DANIEL ROBERT BARTLEY GLEN D. NAGER

BARTLEY LAW OFFICES Counsel of Record

4040 Civic Center Driv: HASHIM M. MOOPPAN

Suite 200 JONES DAY

San Rafael, CA 94903 51 Louisiana Avenue, NW

(415) 898-4741 Washington, DC 2000!

(202) 879-3939

lecember 1 A gdnager@jonesday.con

é if r Petit

APPENDIX A

UNITED STATES COURT OF APPEALS

ss FOR THE NINTH CIRCUIT

UNITED STATES OF No. 07-56864

AMERICA and

STATE OF CALIFORNIA, | D.C. No. CV-04-01256

ex rel. Dr. KATHERINE R. | PSG

O’CONNELL; et al., Central] District of

California,

Plaintiffs — Appellants, | Los Angeles

and riLe D

DANIEL ROBERT AUG 17 2010

BARTLEY,

Realtors’ Counsel, WY Laut ce ube

Appellant,

CHAPMAN UNIVERSITY,

Defendant — Appellee.

UNITED STATES OF No. 08-55275

AMERICA and D.C. No. CV-04-01256

STATE OF CALIFORNIA, | PSG

ex rel Dr. KATHERINE R. | Central District of

O'CONNELL; et al., California,

Santa Ana

Plaintiffs — Appellees,

and

DANIEL ROBERT

BAILEY, ORDER

Realtors’ Counsel. |

Appellee

CHAPMAN UNIVERSITY,

Defendant — Appellant

Before: REINHARDT, TASHIMA and WARDLAW

Circuit Judges.

Realtors Drs. Katherine O’Connell, Chris

Moyers, and Carlee Durfor (“Realtors”) appeal from

the entry of summary judgment in favor of Chapman

University (“Chapman”). Chapman appeals from the

district court’s denial of a request for a fee or

sanction award.

These consolidated appeals were stayed pending

the issuance of the mandate in United States ex rel.

Haight v. Catholic Healthcare West, 602 F.3d 949

(9th Cir. 2010), which acknowledged the overruling

of prior Ninth Circuit precedent by the Supreme

Court’s decision in United States ex rel. Eisenstein v.

City of New York, 129 S. Ct. 2230 (2009). In

Eisenstein, the Supreme Court determined that in

False Claims Act gui tam actions in which the

United States has declined to intervene, the 30-day

period for filing a notice of appeal applied, rather

than the extended 60-day period applicable in

actions involving the United States as a party.

Ersenstein apples retroactively and requires

dismissal of these appeals. See 129 8. Ct. at 2236

n.4; Harght, 602 F.3d at 953. Relators’ notice of

appeal was filed on December 21, 2007, 58 days after

the October 24, 2007 entry of summary judgment in

favor of Chapman. Chapman’s notice of appeal was

filed on February 7, 2008, 47 days after the

December 12, 2007 entry of judgment denying

Chapman’s motion for fees or sanctions.

Haight forecloses Relators’ request for relhef from

this court pursuant to Federal Rules of Appellate

Procedure 2, 4 and 26. J/d. at 956. Haight also

conclusively determines Relators’ claim that the

change in law wrought by £isenstein violates due

process. Jd. at 954. Finally, because the district

court is prohibited from construing Relators’ notice of

appeal as a motion for an extension of time to file a

notice of appeal, remand would be futile and we

decline to do so. See id. at 957, citing Pettibone v.

Cupp, 666 F.2d 3338, 335 (9th Cir. 1981).

Accordingly, Relators’ “Motion for Rule

4(a)(5)(A)Qi) Relief’ is denied and Chapman

University’s motion to dismiss is granted.

Relators’ counsel’s appeal from the district

court’s order denying the “Motion for Rule 76(a)

Ruling Setting Aside as Erroneous the Magistrate

Judge's Order Assessing Monetary Sanctions Against

Relators’ Counsel,” part of appeal No. 07-56864, was

timely filed. Within 21 days of the date of this order,

Relators’ counsel shall move for voluntary dismissal

or file a notice that he intends to prosecute this

appeal. Failure to comply with this order will result

in the automatic dismissal of this appeal by the

Clerk for failure to prosecute. See 9th Cir. R. 42-1.

APPEAL NO. 07-56864 DISMISSED in part;

APPEAL NO. 08-55275 DISMISSED in its entirety.

APPENDIX B

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES — GENERAL

Case No. SA CV 04-1256 PSG Date October

_(RCx) 23, 2007

Title _United States of America and State of

California, ex re/. Dr. Katherine _ 7

O’Connell, et al v. Chapman University, |

et al.

Present: The Honorable Philip S. Gutirrez,

United _

States District Judge eee es

_Wendy K. Hernandez — Not Present n/a,

Deputy Clerk Court Reporter Tape No.

Attorneys Present for Attorneys Present for

Plaintiff(s): Defendant(s):

Not Present Not Present

Proceedings: (In Chambers) Order GRANTING

Defendant’s Motion for Summary Judgment

Presently pending before the Court is Defendant

Chapman University’s (““Chapman” or “Defendant’)

Motion for Summary Judgment, or in_ the

alternative, Partial Summary Judgment or For an

Order Specifying Material Facts Without Substantial

Controversy.' After considering the moving and

opposing papers, as well as oral arguments at the

hearing on October 22, 2007, the Court hereby

GRANTS Defendant’s Motion for Summary

Judgment.

lI BACKGROUND

A. The Parties

Defendant Chapman is an institution of higher

learning offering undergraduate, graduate and

professional programs at its campus in Orange,

California. (Motion at 1.) Chapman also offers

working adults a range of bachelors degrees,

master’s degrees and teaching credentials through

its University College academic centers. (Id.)

Chapman currently operates 27 academic centers in

California and Washington, 7 of which are located on

military installations. (Warner Dec. 4 3.)

Plaintiffs in this action are Dr. Katherine

O'Connell, Dr. Carlee Durfor and Dr. Chris Moyers

(collectively “Relators”), all former adjunct faculty

who taught at Chapman's academic centers.

B. Federal Financial Assistance Programs

Chapman participates in Federal Student

Financial Assistance (“FSFA”) program under Title

IV of the Higher Education Act (“HEA”), 20 U.S.C.

§ 1070, et seg. Pursuant to the HEA, educational

institutions hke Chapman, who wish to receive

federal subsidies under Title IV, must enter into a

Program Participation Agreement (“PPA”) with the

! Both Plaintiff and Defendant have submitted requests for

judicial notice. The Court denies these requests, finding them

unnecessary for a decision on the merits

Department of Education (“DOE”). (Ball Dec. § 4;

Exs. A-E.) Each PPA expressly incorporates the

HEA statutory language conditioning a_ school’s

“initial and continuing” eligibility to receive Title IV

funds on compliance with the HEA statutory

requirements, including the requirement that the

institution be regionally accredited. 34 C.F.R. §

668.14(b)(23). If an institution violates the PPA, the

DOE may terminate the school’s eligibility to

participate in the programs for “failure to

demonstrate administrative capability.” 34 C.F_R. §§

668.14, 668.16. These programs include the Pell

Grant, 20 U.S.C. § 1070a, Perkins Loan, 20 U.S.C. §

1087aa, College Work Study, 42 U.S.C. § 2751,

Supplemental Educational Opportunity Grant, 20

U.S.C. § 1070b, and the Guaranteed Student Loan

Programs, 20 U.S.C. §§ 1070a, 1078-2 and 1078.

(Ball Dec. Exs. A-E.)

1. Accreditation

20 U.S.C.A. § 1094(a)(21) requires educational

institutions receiving Title IV funds to “meet the

requirements established by the Secretary and

accrediting agencies or associations ...” The DOE

recognizes only those accrediting associations that

demonstrate standards for accreditation “that are

suffiaently rigorous to ensure that the agency is a

reliable authority regarding the quality of the

education or training provided by the institutions or

programs it accredits.” 34 C.F.R. 602.16(a): 20

U.S.C. § 1099b. Chapman, which has_ been

accredited continually since 1956, 1s accredited by

the Accrediting Commission for Semor Colleges and

Universities of the Western Association of Schools

and Colleges (“WASC”), one of = six regional

accreditation associations recognized by the DOE.

(Fite Dec. §{ 3, 5.) WASC first accredited Chapman

in 1962, and conducted its most recent accreditation

review in 2005, reaffirming Chapman’s accreditation

for an additional eight years. (Fite Dec. 4 5, Ex. A.)

2. WASC Accreditation Process

WASC’'s current accreditation process involves a

three-stage, sequential institutional review process.

(Fite Dec., Ex. B at D 027380.) An educational

institution receives a status of accreditation only if

WASC determines it has:

1. Demonstrated that it meets the Core

Commitments to Institutional Capacity and

Educational Effectiveness;

2. Conducted a self-review under the

Accreditation Standards, developed = and

presented indicators of institutional

performance, and identified areas for needed

improvement to serve as an evidentiary basis

for completing successfully the three-stage

process of institutional review:

3. Developed an approved Institutional Proposal

for Accreditation Review, and been evaluated

by teams of external evaluators in the

Preparatory and Educational Effectiveness

Review Processes;

4. Demonstrated to the Commission that it meets

or exceeds the expectations of the

Accreditation Standards; and

5. Committed itself to institutional improvement,

periodic self-evaluation, and continuing

complhance with Commission’ Standards,

Pohcies, Procedures and Decisions.

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Complaint alleged two causes of action under the

Federal False Claims Act (“FCA”), two causes of

action under the California False Claims Act

(“CFCA”) (collectively “FCA claims”), and one cause

of action under the California Unfair Competition

Law (“UCL”). On April 3, 2006, Relators filed a

Second Amended Complaint (“SAC”), adding two new

claims for injury and damages for employment

retahation in violation of 31 U.S.C. § 3730(h), and

for employer interference with employee disclosure

and retaliation in violation of Cal. Gov. Code §

12653.

In the SAC, Relators allege that “Chapman

University, via express and implied certification,

regarding the number of classroom hours being

taught to students, [obtained] hundred of millions of

dollars in student tuition funding annually from the

United States Department of Education and the

United States Department of Defense, from at least

October 18, 1994 through the present.” (SAC { 2.)

Specifically, Relators alleged that “incident to

requesting and receiving hundreds of millions of

dollars in federal and state funding annually,

{(Chapman] falsely certified to the United States of

America and the State of California, every year, that

they are in compliance with federal provisions

requiring that instruction meet certain minimum

clock-hour requirements.” (SAC 4 6.) Relators allege

that WASC requires Chapman to maintain:

a program of General Education that is

integrated throughout the curriculum

including the upper division level, consisting

has knowingly presented a false or fraudulent claim to the

United States government.

lla

of a minimum of 45 hours semester credit

hours (or the equivalent), together with a

significant study in depth in a given area of

knowledge (typically described in terms of a

major).

(SAC 4 24.) According to Relators, WASC’s

definition of “unit of credit” sets forth the minimum

requirement of 45 hours. (SAC 4 24.) The SAC

alleges that certain officials at Chapman had actual

knowledge of these false certifications, or acted with

deliberate indifference and/or reckless disregard as

to the truth or falsity of the claims. (Id., § 7.)

On May 23, 2006, the Court dismissed Relators’

unfair competition, employment retaliation and

employer interference claims. The Court also limited

Relators to a “false certification” theory of lability

with respect to the four, remaining federal and

Cahfornia FCA claims (Counts 1-4). Chapman now

moves for summary judgment, or in the alternative

partial summary judgment or for an order specifying

material facts without substantial controversy.

Il. LEGAL STANDARD FOR SUMMARY

JUDGMENT

Federal Rule of Civil Procedure 56(c) establishes

that summary judgment is proper only when “the

pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits,

if any, show that there is no genuine material fact

and that the moving party is entitled to a judgment

as a matter of law.” Fed. R. Civ. P. 56(c). The

moving party has the burden of demonstrating the

absence of a genuine issue of fact for trial. See

Anderson v. Liberty Lobby, Jnc., 477 U.S. 242, 256,

106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). If the

l4a

The first element of a false certification claim

requires Relators to prove the existence of a false

statement or fraudulent course of conduct. Hendow,

461 F.3d at 1171. Relators contend that through

WASC’s accreditation, Chapman falsely certified its

comphance with HEA requirements via its PPA’s, via

its annual audit reports to the DOE, and via its IPA’s

to the CSAC. (Opp’n at 3.) Relators’ theory is that

the accreditation information contained in these

documents is false, because Chapman has _ not

comphed with the Carnegie standard of hours, the

commonly accepted uniform measure of a academic

achievement in the U.S. According to Relators, the

Carnegie hour consists of 50 minutes of faculty-

student contact time coupled with an adjacent 10

minute break. (Amended Opp’n at 12.)° Thus, a 3-

credit course entails 45 Carnegie hours. (Id.)

Relators contend that DOE requires strict adherence

with the Carnegie hour, and the Chapman failed to

comply with the Carnegie hour by its “systematic

and chronic practice” of permitting its faculty

members to close classes early where the professor

elects to teach a multi-hour class without breaks, to

justify counting clock hours in 50-minute increments.

In response, Chapman contends the accrediting

agency, WASC, has no requirement of a quantum of

classroom hours Therefore, Relators cannot

' In explaining the Carnegie standard, Relators cite to Ex. I’, an

article entitled “The History of the Student Credit Hour,”

attached to their request for judicial notice. The Court finds no

mention in Exhibit F of the Relators’ statements regarding the

Carnegie standard. However, other exhibits, such as Ex. 1)

attached to the Bartley Dec., support Relators’ definition of the

Carnegie hour

establish a false statement that is a condition of

government funding. As support for its contention

Chapman cites U.S. ex rel Diop v. Wayne County

Community College Dist., 242 F.Supp.2d 497

(E.D.Mich.2003), where the court, addressing this

very issue, granted summary judgment in favor of

the defendant community college.‘

In Wop, the plaintiff claimed a community

college falsely certified comphance with FSFA

provisions when the college chancellor stated, “I

hereby certify that, to the best of my knowledge and

behef, all information in this document is true and

correct.” /d. at 523. Relying on 20 U.S.C. § 1094,

which requires an institution participating in the

KSEFA program to meet the requirements established

by the accrediting agencies, plaintiff argued that the

college’s accreditation information in its’ FSA

apphcation was false.® J/d Specifically, plaintiff

4 In his Order Granting in Part and Denying in Part

Defendant’s Motion to Dismiss the Second Amended Complarnt

Judge Selna declined to consider Drop because it dealt with a

motion for summary judgment. (See May 23, 2006 Minute

Order at 5, fn. 2.) As we are now at the summary judgment

stage of litigation, the Court finds Drop appropriate for

discussion

> 20 U.S.C.A § 1094(a)(21) provides that the PPA agreement

shall

condition the anitial and continuing elipibility of an

institution to participate in a program upon compliance with

the following requirements

(21) The institution will meet the requirements established by

the Secretary and accrediting ayencies or associations, and wall

provide evidence to the Secretary that the institution has the

authority to operate within a State

l6a

claimed that because the chemistry labs were ill-

equipped and lacked adequate materials, the college

could not be properly accredited. Jd.

The Diop court rejected plaintiffs argument,

reasoning that 20 U.S.C. § 1094 expressly delegates

the task of insuring the educational viability of

institutions of higher education to _ private

accreditation agencies. /d. The court found that

nothing in the accreditation statute required the

college to have ascertained whether the accrediting

agency considered the adequacy of the chemistry labs

in granting accreditation. /d. Importantly, the court

declined to be put in the position of determining

whether the education offered to the _ college’s

students was adequate, since doing so would usurp

the statutory role of the accrediting agency in

assessing the quality of education offered for FSFA

purposes. /d.

We find the court’s reasoning in Jiop to be

persuasive. Like the plaintiff in Diop, Relators

contend that Chapman falsely represented

compliance with the Carnegie standard, via reports

and other communications to WASC, in order to

receive accreditation. Specifically, Relators assert

that Chapman has a “systematic and chronic

practice” of not complying with the Carnegie

standard of hour. However, 20 U.S.C. § 1094(a)(2)

merely requires Chapman to “meet the requirements

established by the accrediting agencies’ or

associations.” According to WASC, Chapman has

met these requirements. WASC has continually

accredited Chapman since 1962, and in 2005,

reaffirmed Chapman’s accreditation for a period of 8

years. (Fite Dec. §j 5; Ex. A.) Chapman’s evidence

17a

shows that WASC does not require Chapman to

disclose information regarding classroom hours,

contact hours or clock hours (Fite Dec. § 7), and

Relators have identified no WASC provision to

dispute this. In the absence of any WASC

requirement of a quantum of classroom hours.

Relators cannot establish a false statement that is a

condition of government funding. As recognized by

the court in Diop, the HEA imposes no affirmative

duty on Chapman to insure accreditation standards

are unfailingly maintained, and no FCA claim can be

maintained based on standards that are not a

prerequisite to payment of government funds. /d. at

523-524.

Plaintiff nevertheless argues, that pursuant to

34 C.F.R. § 668.8(k) and (1), the DOE requires strict

adherence to the Carnegie standard.§ This

6 Sections § 668.8(k) and (1) provide:

(k) Undergraduate educational program in credit hours. If an

institution offers an undergraduate educational program in

credit hours, the institution must use the formula contained in

paragraph (I) of this section to determine whether that program

satisfies the requirements contained in paragraph (c)(3) or (d) of

this section, and the number of credit hours in that educational

program for purposes of Title IV, HEA programs, unless—

(1) The program is at least two academic years in length and

provides an associate degree, a bachelor’s degree, a

professiona] degree, or an equivalent degree as determined

by the Secretary; or

(2) Each course within the program is acceptable for full

credit toward that institution’s associate degree, bachelor’s

degree, professional degree, or equivalent degree as

determined by the Secretary, provided that the institution’s

degree requires at least two academic years of study.

(1) Formula. For purposes of determining whether a program

described in paragraph (k) of this section satisfies the

pte!

regulation, however, apphies to propriety schools, and

expressly exempts from its coverage degree-granting

institutions such as Chapman. Most of Chapman's

undergraduate program are four-year’ bachelor

programs, and all of its undergraduate programs

result in at least an associate degree and are at least

two years in length. (Knight Dec. {{€ 2-4.) Thus,

with respect to the first element of an FCA cause of

action, Relators have failed to raise a genuine issue

of material fact as to whether Chapman made a false

statements via its PPAs and its annual audit reports

to the DOE.

(b) False Statement — MOU

Relators also contend that Chapman falsely

certified its compliance with MOU standards to the

Department of Defense, which provides tuition

assistance wa the GI Bill and Tuition Assistance

Program. They argue that the MOD’s requires strict

adherence with the Carnegie standard. For example,

the Air Force’s MOD requires Chapman to certify

that it adheres to Air Force Quality Education

Standards. These standards state, in relevant part:

requirements contained in paragraph (c)(8) or (d) of this section,

and the number of credit hours in that educational program

with regard to the Title IV, HEA programs—

(1) A semester hour must include at least 30 clock hours of

instruction;

(2) A trimester hour must include at least 30 clock hours of

instruction; and

(3) A quarter hour must include at least 20 hours of

instruction.

34 C.F.R. § 668.8(k) and (])

19a

The Air Force has adopted the Carnegie unit

of instruction to establish minimum levels of

course contact and preparation, study, and

research time outside the classroom.

Specifically, for each semester hour of credit,

there will be 15 hours of classroom contact

(50 minutes of instruction with a 10 minute

break each hour) and 30 hours of outside

preparation, study and research.

(Bartley Dec., Ex. 18 at D 7096.)

Nevertheless, unlike the PPAs, which Chapman

must sign in order to receive Title IV funding, the

MOUs on their face are not related to federal or state

assistance programs such as Tuition Assistance or

GI Bul funding. The MOUs neither enable Chapman

to accept Tuition Assistance funding, nor do they

qualify Chapman to participate in the Tuition

Assistance Program (UF § 19.)’ Moreover, the only

payment information Relators have submitted — an

invoice by Chapman to Tuition Assistance for a

course given on a military base (Bartley Dec. Ex. 19)

— fails to establish a link between the MOU and the

Tuition Assistance Program. In contrast, Chapman's

evidence shows that the main purpose of the MOUs

? Relators object to this fact, arguing it is immaterial whether

Chapman's execution of the MOUs with the individual military

installations is an express condition of its participation in the

Tuition Assistance program and GI Bill, since at the very least,

execution of the MOUs is an umpilied condition. (Amended

Relators’ Separate Statement of Genuine Isses (“RSS”), 4 19.)

The Court overrules Relators’ objection. Given that execution

of a PPA is an express condition of any educational institution's

participation in the FSFA program, the Court finds it wholly

material that there is no similar express condition regarding

the Tuition Assistance program or GI Bull.

20a

is not to provide Title [IV funding, but rather to

provide courses on the military bases for a

significantly lower tuition than courses offered to

civilians at other Chapman academic. centers.

(Warner Dec. § 4.) Furthermore, Chapman accepts

students’ Tuition Assistance or GI Bull educational

benefits, whether or not the students attend classes

on a military installation. (UF {| 19.) The false

certification theory of FCA lability is only concerned

with false certifications of complhance that are a

“prerequisite to obtaining a government benefit.”

Hendow, 461 F.3d at 1172 (citing Anton, 91 F.3d at

1266) (emphasis added). Because Relators cannot

show this, they have failed to raise a triable issue of

fact that Chapman is required to certify compliance

with a classroom hours requirement as a necessary

condition of obtaining Tuition Assistance or GI Bill

funding.

2. Fraudulent Course of Conduct

Relators also contend that Chapman

fraudulently conceals from WASC, the DOE and the

DOD the systematic and chronic problem of

permitting early closure of classes by giving the

professor the option to teach several hours of

instruction without breaks, and then count clock

hours in 50 minute increments. In doing this, the

professors accrue the Carnegie 10-minute breaks to

justify adjourning classes early. This practice, argue

Relators, results in Chapman submitting requests

for payment based upon padding hours. Moreover,

according to Relators, Chapman has an affirmative

duty to voluntarily disclose to WASC, the DOE, and

the DOD any significant problems in the area of

inadequate administration and quality control,

Zla

including any significant failure to adhere to the

Carnegie standard. (RSS 4/4 58-59, 68-69.) Relators

have submitted deposition testimony of Chapman

University Campus Director Fearnside that “45

contact hours was a Chapman requirement.”

(Amended Bartley Dec. Vol. 3, Ex. 44 at 17:18-21.)

Relators have failed to raise a triable issue of fact

that Chapman engages in fraudulent conduct by not

disclosing to WASC its allegedly widespread and

chronic problem of releasing classes early. Relator

Moyers testified that Chapman maintained a

systematic, chronic, entrenched culture and practice

of permitting and encouraging very early class

closure. (Moyers Dec. {| 5.) However, during the

relevant period, Moyers was only exposed to 1.3°o of

all academic center lecture classes. (Pankey Dec. ‘

4: Warner Dec. § 2.) Relators have also offered

testimony by Dr. James Warren, a full-time program

manager of Chapman’s Monterey academic center,

who stated that student complaints were always

about an “overly conscientious” professor forcing his

class to stay the full time without the breaks being

“srouped together.”8 (RSS § 47.) Although Relators

contend that Warren's” statement evidences

Chapman’s acquiesence in the “grouping together” of

10-minute breaks, we find the statement actually

supports Chapman’s position, since it shows Dr.

Warren received no student complaints regarding

early dismissal of courses. Furthermore, Fearnside

stated that whenever she receives information that

Chapman does not dispute this fact, but argues it is

immaterial since WASC does not require a particular number of

hours per class. session. (Chapman's Reply to Relator’s

Separate Statement of Genuine Issues (“RSS”), 4) 47.)

LLa

an instructor may have released classes early, in the

follow-up, she has found that in nearly every case,

the instructor understands and respects the 45 hour

contact hour rule, and had a valid explanation or

made other arrangements to make up for the missed

class time. (Schenck Dec. Ex. T, 4] 4.)

Chapman, on the other hand, has submitted

competent summary judgment evidence disproving

Relator’s theory regarding a chronic problem

regarding faculty-student contact hours. According

to Chapman, even though WASC does not require as

much, the university does endeavor to follow the

Carnegie standard of 15 contact hours per unit

credit, or 45 hours per three unit course. (Graham

Dec. §€ 8-11.) When Chapman receives a complaint

over a class being let out early, Chapman takes

reasonable steps to ascertain whether there was a

legitimate reason for the early dismissal. (Schenck

Dec. Exs. R-DD.) When a Chapman academic center

director determines an instructor released a class

early without justification, the director counsels the

instructor on Chapman’s contact hour rules. (Id.) A

persisting problem results in nonrenewal of the

instructor's contract. (Id.) Nonetheless, whether or

not some Chapman instructors accrue Carnegie 10-

minute breaks to justify early dismissal, Relators

have offered no evidence of a WASC prohibition

against this practice. Consequently, Relators have

failed to raise a triable issue of fact as to whether

Chapman engaged in a fraudulent course of conduct

In sum, the Court finds that Relators have failed

to raise a triable issue of fact as to the first element

of a federal False Claims Act claim — that Chapman

made a false statement or engaged in a fraudulent

23a

course of conduct. Thus, we need not address the

remaining three elements of scienter, materiality,

and causation. Hendow, 461 F.3d 1171 (citations

omitted). The Court therefore GRANTS Defendants’

motion for summary judgment on Relators’ federal

qui tam claims.

B. California FCA Claim

As noted previously, the requirements for FCA

hability under Cal. Gov't Code § 12651 are the same

as for federal hability. See Pac. Bell Tel. Co., 142

Cal.App.4th at 747 n. 3; see also Shasta Servs., Inc.,

440 F.Supp.2d at 1111. Accordingly, because

Relators have failed to raise a triable issue of fact

that Chapman made a false statement or engaged in

a fraudulent course of conduct with respect to their

federal FCA claims, they have likewise failed to raise

a triable issue with respect to their state FCA claims.

The Court GRANTS Defendants’ motion for

summary judgment on Relators’ state FCA claims.

IV. CONCLUSION

For the reasons set forth above, the Court hereby

GRANTS summary judgment on Relators’ FCA

causes of action under 31 U.S.C. §§ 3729(a)(1) and (2)

and 3729 (a)(2) (Counts 1 and 2) and California FCA

causes of action under Cal. Gov't Code §§ 12651(a)(1)

and (2) (Counts 3 and 4). It is hereby ordered that

this case be DISMISSED in its entirety, with

prejudice.

ITIS SO ORDERED.

Initials of Preparer Is/

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APPENDIX C

28 U.S.C. § 2107 provides:

§ 2107. Time for appeal to court of appeals

(a) Except as otherwise provided in this section,

no appeal shall bring any judgment, order or decree

in an action, suit or proceeding of a civil nature

before a court of appeals for review unless notice of

appeal is filed, within thirty days after the entry of

such judgment, order or decree.

(b) In any such action, suit or proceeding in

which the United States or an officer or agency

thereof is a party, the time as to all parties shall be

sixty days from such entry.

later than 30 days after the expiration of the time

otherwise set for bringing appeal, extend the time for

appeal upon a showing of excusable neglect or good

cause. In addition, if the district court finds—

(1) that a party entitled to notice of the entry

of a judgment or order did not receive such

notice from the clerk or any party within 21

days of its entry, and

(2) that no party would be prejudiced,

the district court may, upon motion filed within 180

days after entry of the judgment or order or within

14 days after receipt of such notice, whichever is

earlier, reopen the time for appeal for a period of 14

days from the date of entry of the order reopening

the time for appeal.

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(d) This section shall not apply to bankruptcy

matters or other proceedings under Title 11.

28 U.S.C. § 2106 provides:

§ 2106. Determination

The Supreme Court or any other court of

appellate jurisdiction may affirm, modify, vacate, set

aside or reverse any judgment, decree, or order of a

court lawfully brought before it for review, and may

remand the cause and direct the entry of such

appropriate judgment, decree, or order, or require

such further proceedings to be had as may be just

under the circumstances.

28 U.S.C. § 230 (1934 ed. Supp. DI provides:

§ 230. Time for making application for appeal.

No appeal intended to bring any judgment or

decree before a circuit court of appeals for review

shall be allowed unless application therefor be duly

made within three months after the entry of such

judgment or decree.

28 U.S.C. § 876 (1934 ed. Supp. DI) provides:

§ 876. Judgment or decree on review from

district court.

The Supreme Court may affirm, modify, or

reverse any judgment, decree, or order of a district

court, lawfully brought before it for review, or may

direct such judgment, decree, or order to be

rendered, or such further proceedings to be had by

the inferior court, as the justice of the case may

require. The Supreme Court shall not issue

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.