Opposition Brief — United States ex rel. O'Connell v. Chapman University

za OO

No. 10-810

IN THE

Supreme Gourt of the United States

- ——

UNITED STATES AND CALIFORNIA, ex rel

KATHERINE R. O'CONNELL, et al.,

Petitioners,

CHAPMAN UNIVERSITY

Respondent

On PETITION FOR A Writ OF CERTIORARI TO THE

UNITED STATES Court OF APPEALS FOR THE NINTH CircuUIT

BRIEF IN OPPOSITION

FRED M. PLEVIN

Counsel of Record

PAUL, PLEVIN, SULLIVAN &

CONNAUGHTON LLP

401 B Street, Tenth Floor

San Diego, CA 92101

(619) 237-5200

fplevin@paulplevin.com

Counsel for Respondent

235577 ce

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

QUESTION PRESENTED

This case is a gui tam action brought under the

“alse Claims Act in which the United States declined

to intervene. Petitioners’ notice of appeal was filed 58

days after the district court entered summary judgment

for respondent Chapman University—well outside the

30-day period proscribed by 28 U.S.C. section 2107 and

Federal Rule of Appellate Procedure 4(a)(1). The question

presented is whether the court of appeals erred in

concluding that dismissal of petitioners’ untimely appeal

was required by this Court’s decision in United States ex

rel. Eisenstein v. City of New York, 1298. Ct. 2230 (2009),

which held that an untimely appeal must be dismissed in

precisely these circumstances.

i’ Ve

A. There Is No Conflict Of Authority

Among Circuits..........0

B. The Ninth Circuit's Order Dismissing

This Appeal Does Not Conflict With

Any Decision Of This LANL 22

lll. There Is Otherwise No Ci mpelling

Reason To Grant Certiorari......__

A. In Deciding Lisenstein, This Court

Knew There Could Be “Harsh

Consequences”... ... .

B. The District Court Properly Concluded

That Petitioners’ Claims Are

mermicss eT 19

CONCLUSION

TABLE OF CITED AUTHORITIES

FEDERAL CASES

Adickes v. S.H. Kress & C

398 U.S. 144 (1970)

Alexander v. Weaver.

345 F. Supp. 666 (N.D. Ill. 1972

Ayers v. Winter,

467 U.S. 1211 (1984) ... 12, 13

Banks v. Bd. of Pub. Instruction of Dade Cou

314 FL Supp. 285 (S.D. Fla. 1970)

Bad. of Pub. Instruction v. Banks,

401 U.S. 988 (1971)

Bad. of Regents of l HUY. of 7% ras SUS

New Left Ed. Project.

404 U.S. 541 (1972) .

Bowles v. Russell,

551 U.S. 205 (2007 1 15, 16, 1

BT Inv. Managers Ine. v. Dickins

$2) U8. 961 GSTS) .. <... 2a. . 14

Burlington N.. Ine. I Ste ria g ( ‘ol radi see {

129 US. 1084 (1977)

Canton Poultry, Inc. v. Conne

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

,Y

( ‘arlough uv. F2rch,

309 F. Supp. 1025 (S.D.

Carlough v. Richardson,

399 U.S. 920 (1970)

Castro Cor nity, Tex. vu. Cresm

101 F.3d 121 (D.C. Cir. 1996

Clark v. Arizona.

548 U.S. 735 (2006

(°/2) LO? 2 I ae rs

‘ ef ¢ c

503 U.S. 930 (1992

Custom Recording Co i

121 U.S. 943 (1975)

Dahil v. Republican State Con

319 FL Supp. 682 (W.D. Wash

y y eT +* » },} sy "4 r :

Dani ’. Republican state C¢ 02.7?

393 U.S. 408 (1969) (ner cur

lemocratic

iJ

u. Brown.

422 U.S. 1002 (1975

Doi epl- -

EA (CASU?lE UU.

_A

J 14

419 U.S. 1085 (1

Driske ll v. du ards

419 U.S. 812 (1974

i2g7ar United Stat

1927)

274 U.S. 195 (

Hdeln Qa? lo CrnSENA

112 U_S. 914 (1973

Franklin v. Lawri

516 U.S. 801 (1995

~Qiez Vutomat f

<>

dillf

Interstate Nati

292 U.S. 16 (1934) (pe?

. eee

tafson v. Hoffmar

io (1976

N/

A429 US. Sl

‘

,

y 4

Cited Authorities

Henderson v. Shinseki,

131 S. Ct. 1197 (2011) .. / oe 16.19

Hutcherson v. Lehtin,

313 F. Supp. 1324 (N.D. Cal. 1970)

es

Hutcherson v. Lehtin,

400 U.S. 923 (1970)

Int'l Ladies’ Garment Workers’ Unron

Donnelly Garment Co.,

304 U.S. 243 (1938) (per curiam) .... | 12

Jeffers v. Clinton,

796 F. Supp. 1202 (E.D. Ark. 1992). l4

Mendez v. Heller.

420 U.S. 916 (1975)

Mengelkoch v. Indus. Welfare Comn

393 U.S. 83 (1968) (pe rcuriam)

Meyer U. Holley,

537 U.S. 280 (2008) .

Mitchell v. Donovan,

398 U.S. 427 (1970) (2G? CUT Lite)

4 — . 1E ne ak

Moody U. kf LOWETS,

387 U.S. 97 (1967

n |

VIL?

Cited Authorities

Page

MTM, Inc. v. Baxley,

420 U.S. 799 (1975) (per curiam) ............: 13

National Collegiate Athletic Assn. v. Smith,

eo 01.0. 459 (1999); . cn ke cnc es eee 10

Oklahoma Gas & Electric Co. v.

Oklahoma Packing Co.,

Sete Wiad. DO NOOE) oso sks kd asa cap eee see 12

Pennsylvania Dep't of Corrections v. Yeskey,

Dae Us. DUO CASO) ok 5 ee wow be 9

Pennsylvania Pub. Util. Comm'n v.

Pennsylvania R. Co.,

382 U.S. 281 (1965) (per curiam) ..........46- 13

Perez v. Ledesma,

S02 U.S S82 STD) ..5 0 0c aces sca cea eee 13

Phillips v. United States,

aie U.S. 246-094) .. 2... .0iseecss bee 12

Reed Elsevier, Inc. v. Muchnick,

ous. Ct; 1230 CNG) 6.6 k eee eee 16

Rockefeller v.

Catholic Med. Ctr. of Brooklyn & Queens, Inc.,

397 U.S. 820 (1970) (per curiam) ........6.00. 13

Rogers v. Inmates’ Councilmatic Voice,

422 U5. 1031 975) 2 oc ee eee 13

x

Cited Authorities

Page

Rorick v.

Bd. of Com’rs of Everglades Drainage Dist.,

SVT 13.S. 208 (1939) .. 22 2 eee eee ee ee: 12

Shouse v. Pierce County,

OO Oe) ee 15

Skolnick v. Bd. of Comm'rs,

389 U.S. 26 (1967) (per curiam) ......-------- 15

Smart v. Texas Power & Light Co.,

GE £6.) ieee ae 14, 1d

Stamler v. Willis,

393 U.S. 407 (1969) (per curiam) ... 15

Sumrall v. Kidd,

394 U.S. 215 (1969) (per curtam)........6+-55- 15

U.S. ex rel. Diop v.

Wayne County Comm. College Dist.,

242 F Supp.2d 497 (E.D. Mich. 2003)......---- 20

United States ex rel. Eisenstein v.

City of New York,

129 S. Ct. 2230 (2009)...........-- pee eee PASSIM

United States ex rel. Haight v.

Catholic Healthcare West,

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

131 S. Ct. 366 (2010) ..... 22 eee eeeese 4,5, 18,19

Cited Authorities

Page

Wilson v. City of Port Lavaca, Tex.,

391 U.S. 352 (1968) (per curiam). . 13

Winters v. Lavine,

429 U.S. 1012 (1976) .

Winters v. Lavine,

574 F.2d 46 (2d Cir. 1978)...

Youakim v. Miller,

425 U.S. 231 (1976) (per curiam). ..

Zobrest v. Catalina Foothills Sch. Dist..

Oe ti. 1 tie sn kk bon:

STATE CASES

Etcheverry v. Tri-Ag Service, Inc.,

22 Cal.4th 316 (2000)........

Laraway v. Sutro & Co., Inc.,

96 Cal.App.4th 266 (2002) ...

State ex rel. Bowen v. Bank of America Corp.,

126 Cal.App.4th 225 (2005) .....

EDERA!I

THER Al rHORITH

]

STATEMENT OF THE CASE

A. Nature of Petitioners’ Claims

The case below was brought by petitioners as gui

tam relators pursuant to the False Claims Act (31 U.S.C.

§§ 3729, et seq.) (“FCA”).' The United States and the State

of California both declined to intervene as parties. C.D.

Cal Docket # 8; E.R. 416.”

Petitioners’ theory of liability was that Chapman

falsely represented to a private accreditation association,

the Western Association of Schools and Colleges

(“WASC”), that Chapman complied with a supposed WASC

1. Petitioners also pursued parallel state law claims under

California’s version of the FCA. Cal. Gov. Code §§ 12650, et seq.

Because the California law is patterned after the FCA, decisions

under the FCA are persuasive on the meaning of the California

False Claims Act. State ex rel. Bowen v. Bank of America Corp.,

126 Cal. App. 4th 225, 236 (2005); Laraway v. Sutro & Co., Inc., 96

Cal. App. 4th 266, 275 (2002), citing Etcheverry v. Tri-Ag Service,

Inc., 22 Cal. 4th 316, 320 (2000). The differences between the two

statutory schemes are not relevant to the issues raised in the

petition.

2. Pursuant to the citation format specified by this Court in

Supreme Court Rule 24(g), and to maintain consistency with the

citation format used by petitioners, the following record citation

abbreviations are used in this brief: 1) “Pet.App.” refers to the

Appendix filed by petitioners; 2) “CA9 Docket” refers to the Clerk’s

Docket in the United States Court of Appeals for the Ninth Circuit,

Case No. 07-56864 (9th Cir.); 3) “C.D. Cal Docket” refers to the

Clerk’s Docket in United States District Court, Central District of

California, Case 8:04-cv-01256-PSG —RC (C.D. Cal); and 4) “E.R.”

refers to the Excerpts of Record filed in No. 07-56864 (9th Cir.),

See CA9 Docket # 38.

a

requirement to provide 45 hours of classroom instruction

for each three credit course it offered. Petitioners

theorized that because compliance with accreditation

standards is a condition of participating in financial aid

programs under Title IV of the Higher Education Act

(20 U.S.C. § 1070, et seg.) (“HEA”) and similar state-

funded programs, by allegedly lying to WASC, Chapman

defrauded the United States and State of California. The

lynchpin in all of Petitioners’ theories of liability was that:

(1) WASC had a minimum classroom hours requirement,

and compliance with this requirement was a condition

of accreditation; (2) that Chapman lied (either expressly

or implicitly) to WASC about its compliance with the

supposed classroom hours requirement; (3) but for its

statements, Chapman would not have been accredited by

WASC; and (4) Chapman should be deemed not to have

been accredited and therefore out of compliance with

state and federal student financial aid programs. C.D.

Cal Docket # 36 (Second Amended Complaint 19] 42-46).

B. The District Court’s Entry Of Judgment For

Chapman

After extensive discovery, Chapman filed a motion for

summary judgment under Rule 56 of the Federal Rules

of Civil Procedure. The district court granted summary

judgment, ruling that petitioners failed to raise a triable

issue of fact as to the first element of FCA liability—

that Chapman made a false statement or engaged in

a fraudulent course of conduct. Pet.App. 4a, 16a-18a,

18a-20a. Among other things, the court concluded that

petitioners had failed to identify any WASC provision

obligating respondent to disclose information concerning

classroom hours and that, in the absence of “any WASC

3

requirement of a quantum of classroom hours,” petitioners

failed to “establish a false statement that is a condition

of government funding.” Pet.App. 17a. The district court

entered judgment for respondent on October 24, 2007.

C.D. Cal Docket # 204; E.R. 5.

C. Petitioners’ Jurisdictionally Untimely Appeal

On December 21, 2007—58 days after the district

court entered judgment—petitioners filed a notice of

appeal. Pet. App. 3a; E.R. 1. At that time, there was a split

among the circuits as to whether, under Rule 4(a)(1)(A)-(B)

of the Federal Rules of Appellate Procedure (“Rule 4”)

and 28 U.S.C. section 2107(a)-(b) (“§ 2107”), the ordinary

30-day deadline for filing an appeal or the 60-day deadline

applicable when the United States is a party applied in an

FCA action where the government declined to intervene.

The Ninth Circuit’s position was that the 60-day deadline

governed.

On June 8, 2009, after the parties completed their

briefing below but before the Ninth Circuit scheduled oral

argument, this Court issued its decision in United States

ex rel. Kisenstein v. City of New York, 129 S. Ct. 2230

(2009). Resolving the circuit split, this Court determined

that the United States is not a “party” for purposes of §

2107 and Rule 4 when it declines to intervene in an FCA

action, and therefore, the 30-day time limit for filing an

appeal under § 2107(a) and Rule 4(a)(1)(A) applies, not

the 60-day time limit under § 2107(b) or Rule 4(a)(1)(b).

Hisenstein, 129 S. Ct. at 2233, 2236-37.

D. The Ninth Circuit’s Dismissal Of The Appeal Under

Eisenstein

After Hisenstein, Chapman promptly moved to

dismiss the appeal for lack of jurisdiction. Petitioners then

filed a “Motion For Rule 4(a)(5)(A)(ii) Relief and for Stay

Pending Haight,” requesting a stay pending the Ninth

Circuit’s disposition in United States ex rel. Haight, et

al. v. Catholic Healthcare West, et al., Ninth Circuit Case

No. 07-16857, another case involving gui tam relators who

waited more than 30 days to file their notice of appeal.

CA9 Docket #54; See also, Pet.App. 2a. The Ninth Circuit

granted petitioners’ motion to stay pending its decision

in Haight. CA9 Docket #57; See also, Pet.App. 2a. The

court also ordered petitioners to file either “a response

to appellees’ motion to dismiss or move for appropriate

relief” following the issuance of the remittitur in Haight.

Id.

In accordance with Hisenstein, the Ninth Circuit

dismissed the appeal in Haight as untimely, and this Court

denied the Haight relators’ petition for a writ of certiorari.

United States ex rel. Haight v. Catholic Healthcare West,

602 F.3d 949 (9th Cir. 2010), cert. denied, 131 S. Ct. 366

(2010). Petitioners then filed their motion “for appropriate

relief,’ which they titled a “motion for relief under Rule

4(a)(5)(A)Gi).” The arguments proffered by petitioners in

their motion paralleled the arguments made unsuccessfully

by the appellants in Haight. While presenting various

theories for relief, petitioners did not argue that the court

of appeals had the authority to consummate an “equitable

ce

eo)

vacatur’’ of the district court’s judgment, nor did they

ask the court of appeals to undertake any such vacatur.

The Ninth Circuit denied petitioner’s motion and

granted Chapman's motion to dismiss. Pet.App. la-3a. In

an unpublished order, the court explained that dismissal

was required under Eisenstein and the Ninth Circuit's

own ruling in Haight. Pet.App. la-2a. This petition for

certiorari followed.

REASONS FOR DENYING THE PETITION

Petitioners concede that their appeal was

“jurisdictionally untimely” under this Court’s decision

in Aisenstein, but ask this Court to decide whether the

Ninth Circuit was entitled to “vacate and remand for entry

of a fresh judgment from which a timely appeal may be

taken.” Pet. i. There is no reason to grant certiorari to

address that question. First, although they floated plenty

of theories for avoiding the obvious impact of Fisenstein,

petitioners did not raise the “equitable vacatur” issue

below, and the Ninth Circuit did not address it. Second.

3. Petitioners use the label “equitable vacatur” to describe

this Court’s use of its supervisory powers to vacate a district

court judgment with an order to issue a fresh judgment in order

to correct a procedural error in certain cases involving direct

appeals. As noted below, petitioners cite no cases in which this

practice has been applied by a court of appeals. Despite this, and

for convenience, in this brief the term “equitable vacatur” will

be used to describe the equitable relief petitioners argue should

have been invoked sua sponte by the court of appeals in this ease,

i.€., an order to vacate the district court judgment and to issue

fresh judgment.

>»

b

petitioners have pointed to no conflict of authority in the

circuits on this issue. Although they observe that this

Court has engaged in the so-called “equitable vacatur”

practice to address unique procedural issues in the past,

the Ninth Circuit's failure to engage in such a practice

here (even assuming it had the authority to do so) in no

way conflicts with this Court’s decisions. Third, there

is no other compelling reason to grant review. Indeed,

this Court explicitly recognized in Evtsenstein that the

jurisdictional rule compelled by §$ 2107 could lead to “harsh

consequences,” including the dismissal of “pending cases”

in which appeals were retroactively deemed untimely.

Fisenstetn, 1298. Ct. at 2236, n.4. There is no reason for

this Court to review the Ninth Circuit’s factbound and

faithful application of Eisenstein here.

I. The Sole Question Presented Was Neither Pressed

Nor Passed Upon Below.

1. The Ninth Circuit's unpublished order below

represents a straightforward and unsurprising application

of Hisenstein, which establishes that when the United

States has not intervened in an FCA action, the notice

of appeal must be filed within 30 days from entry of

judgment. This Court recognized in Etsenstein that its

decision would apply retroactively to late-filed appeals

in FCA cases in circuits that had embraced the 60-day

rule, explaining that it “must... decide the jurisdictional

question before it irrespective of the possibility of harsh

consequences.” Eisenstein, 129 S. Ct. at 2236, n.4. The

Ninth Circuit took note of this, observing that the question

of whether Evsenstein applied retroactively was not left

open for it to decide. Pet. App. 2Za-3a (“Etsenstein applies

retroactively and requires dismissal of these appeals. See,

129 S. Ct. at 2236 n.4”). Therefore, the Ninth Circuit did

not decide any question of federal law or federal practice

(see Petition at p. 25) that had not already been settled

by this Court. Quite the contrary. Every issue that was

material to the Ninth Circuit's disposition of the appeal

was expressly settled by Eisenstein.

2. In response to Chapman's motion to dismiss the

appeal as jurisdictionally untimely under Fisenstein,

petitioners offered the Ninth Circuit lots of (misguided)

theories for avoiding the undeniable impact of F’vsenrstein:

¢ They asked the court of appeals to assume or deem

that they had made a timely motion to the district

court under Rule 4(a)(5)(A)(ii) and assume that the

district court would have granted such a motion,

thereby conferring jurisdiction on the court of

appeals and avoiding application of Fvsenstein. CAY

Docket #58, p. 15-16.

¢ They argued that although a court of appeals does

not have authority to extend the 30-day time limit

to file a notice of appeal, it has the authority to

consider a Rule 4(a)(5) motion by reading Rule 2

and Rule 26(b) together. /d., p. 16.

¢ They urged that their notice of appeal was, “in

substance and in retrospect, a Rule 4(a)(5)(A)(1)

motion,” such that a court of appeals can retroactively

recast the notice of appeal as a motion for extension

of time pursuant to Rule 2 and Rule 26. /d., p. 15-16.

5

¢ They also asked for remand to the district court—

not for any so-called “equitable vacatur”— but only

0 the district court could consider relief under Rule

4.Id., p. 7, 18.

¢ They asked for a determination that their reliance

on the Ninth Circuit’s decision in United States ex

rel. Haycock v. Hughes Aircraft Co., 98 F.3d 1100

(9th Cir. 1996) constituted “excusable neglect”

warranting the relief they sought. Jd., p. 6-8.

¢ Finally, they asserted that retroactive application of

Lisenstein violated petitioners’ due process rights.

Id., p. 16-17.

The Ninth Circuit properly rejected each of those

arguments and gave effect to this Court’s decision in

Eisenstein and the jurisdictional mandate of § 2017. Pet.

App. 2a-3a. Petitioners never asked the court of appeals

to consider remanding to the district court with an order

to vacate the judgment below and issue a “fresh judgment

from which a timely appeal may be taken.” Pet. i. There

is no reason why petitioners could not have done so.

Indeed, a central premise of their certiorari petition to

this Court is that the practice of “equitable vacatur” has a

long “tradition” and—to believe petitioners—is virtually

ubiquitous. Pet. 6.

If petitioners ad pressed this issue below, the court of

appeals might have passed upon several critical questions.

Initially, the court could have considered whether or not it

even possesses the authority to invoke “equitable vacatur.”

if the court concluded that it has such authority, it could

have proceeded to consider whether that authority exists

9

in a case involving an untimely appeal under § 2107. In

addressing this issue, the court could have considered

whether such relief was appropriate in light of Eisenstez7,

and whether invoking equitable relief could be harmonized

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

this Court observed that it “has no authority to create

equitable exceptions to jurisdictional requirements.” Jd.

at 214. Finally, the court could have considered whether

petitioners’ reliance on the Ninth Circuit’s Haycock

decision to file their notice of appeal more than 30 days

after issuance of the judgment warranted invoking

extraordinary equitable relief, in light of the existence

of a circuit split on this issue and well-established law

treating § 2107 as “mandatory and jurisdictional.” /d. at

209. But, of course, the court of appeals did not consider

any of these issues because the question presented in the

petition was neither pressed nor passed upon below.

3. This Court rarely grants certiorari to decide a

question that was not raised or decided by the court below.

See, e.g., Meyer v. Holley, 537 U.S. 280, 291-92 (2003) (“in

the absence of consideration of that matter by the Court

of Appeals, we shall not consider it”); Pennsylvania Dept

of Corrections v. Yeskey, 524 U.S. 206, 212-13 (1998)

(“Where issues are neither raised before nor considered

by the Court of Appeals, this Court will not ordinarily

consider them,” quoting Adickes v. S.H. Kress & Co., 398

U.S. 144, 147 n.2 (1970)); See also, Zobrest v. Catalina

Foothills Sch. Dist., 509 U.S. 1, 8 (1993) (same); Clark v.

Arizona, 548 U.S. 735, 764-65 (2006) (because the due

process issue highlighted by the writ petition was neither

pressed nor passed upon below, the Court did not consider

the issue); L’nited States v. Wells, 519 U.S. 482, 488 (1997)

(Supreme Court may consider an issue only when it has

10

been either pressed or passed by the court below); United

States v. Williams, 504 U.S. 36, 41 (1992) (This Court's

“traditional rule... precludes a grant of certiorari . . .

when the question presented was not pressed or passed

upon below”); Acco rd National Collegiate Athletic Assn.

» Smith, 525 U.S. 459, 470 (1999); Youakim v. Miller, 425

U.S. 231, 234 (1976) (per curiam); Duignan v. United

States, 274 U.S. 195, 200 (1927).

There is no reason for this Court to deviate from

that long-standing practice and reach out ano grant

certiorari to decide the question presented here. Indeed,

departure from this Court’s traditional certiorari practice

is particularly unwarranted here, given that the question

presented concerns the scope of the court of appeals’ own

authority and prerogative to exercise such authority if it

exists. Not only did the Ninth Circuit not pass upon this

question below but petitioners have pointed to zo court

of appeals authority directly addressing it. That the

question presented was neither pressed or passed upon

below is, by itself, a sufficient basis to deny certiorari.

4. Petitioners claim that this Court has invoked equitable

vaeatur on various occasions sua sponte in the context of

various direct appeals. See, Petition at p. 17, citing Franklin v.

Lawrimore, 516 U.S. 801 (1995). But petitioners are not asking

this Court to engage ina so-called “equitable vacatur,” and this

case is on certiorari, not direct appeal. Petitioners ask the Court

to grant certiorari to decide whether the Nenvth Circuit should

have undertaken an “equitable vacatur.” There is no reason for

the Court to ignore customary principles governing the exercise

of this Court's certiorart jurisdiction—including the venerable

“pressed and passed upon rule”-—in deciding whether to grant

certiorari on that question.

1]

Il. The Ninth Circuit’s Unpublished Order Dismissing

The Appeal Does Not Conflict With Any Decisions

Of Other Circuits Or Of This Court.

A. There Is No Conflict Of Authority Among

Circuits

Petitioners are not asking this Court to do an

“equitable vacatur.” Instead, they claim that the Ninth

Circuit should have done it. Pet. i, 7, 22-23. Although

petitioners have canvassed some 60 years of Supreme

Court precedent, they have not cited a single court of

appeals case addressing the use of equitable vacatur by a

court of appeals (including, of course, the Ninth Circuit's

unpublished order dismissing the appeal in this case),

much less going their way on it. Nor have petitioners cited

a single case from this Court holding, or even remotely

suggesting, that a court of appeals should, or even may,

invoke “equitable vacatur” in these circumstances. And,

even if the court of appeals had authority to engage in

such an “equitable vacatur,” there is no argument that it

was required to exercise that equitable authority here,

such that its failure to do so requires reversal. For this

reason alone, the Ninth Circuit’s decision below does not

create any conflict of authority requiring this Court’s

intervention.

B. The Ninth Circuit’s Order Dismissing This

Appeal Does Not Conflict With Any Decision

Of This Court

Nor have petitioners identified any conflict of

authority with this Court’s decisions. None of this Court’s

decisions cited by petitioners discuss whether the courts

12

of appeals are authorized (or required) to engage in

“equitable vacatur” in the type of circumstances here.

And, if anything, the cases cited by petitioners involving

what they label as “equitable vacatur” establish that the

practice is not generally applicable, its use is primarily

historical,® and it has been invoked only by this Court

and only in very limited circumstances not present here.

None of the “equitable vacatur” cases identified by

petitioners provides that the Ninth Circuit was required

(or even authorized) to engage in an equitable vacatur here.

Petitioners’ fifty-plus examples of “equitable vacatur” all

involve cases subject to direct appeals to this Court from

three-judge district courts. These direct appeals cases can

be broken down into five primary categories: (1) opinions

discussing a district court’s erroneous decision to convene

a three-judge panel under former 28 U.S.C section 380;°

(2) opinions discussing the propriety of a district court’s

erroneous decision to convene a three-judge panel under

5. Of the more than 50 instances of purported “equitable

vacatur” cited by petitioners, the most recent application was in

1995. Franklin v. Lawrimore, 516 U.S. 801 (1995). Since 1977,

equitable vacatur has been used three times, each time without

discussion. /d.; Clinton v. Jeffers, 503 U.S. 930 (1992); Ayers v.

Winter, 467 U.S. 1211 (1984).

6. Phillips v. United States, 312 U.S. 246, 248, 254 (1941);

William Jameson & Co. v. Morgenthau, 307 U.S. 171, 173-74 (1939)

(per curiam); Rorick v. Bd. of Com’rs of Everglades Drainage

Dist., 307 U.S. 208, 212-13 (1939); Jnt’l 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 curzam);

Gully v. Interstate Natural Gas Co., 292 U.S. 16, 18-19 (1934) (per

curiam); Oklahoma Gas & Electric Co. v. Oklahoma Packing Co.,

292 U.S. 386, 391-92 (1934).

13

28 U.S.C. section 2281;’ (3) opinions discussing whether

a judgment entered by the three-judge district court

panel was subject to direct appeal under 28 U.S.C. section

1253;$ (4) opinions discussing appellants who erroneously

filed a direct appeal of the decision of a single judge;? and

(5) orders where this Court applied equitable vacatur to

direct appeal questions without discussion.”°

While this Court did not explain the reason for

invoking “equitable vacatur” in many of these decisions,

other authorities have concluded that “equitable vacatur’”’

was granted in each of these cases to correct errors

7. Butler v. Dexter, 425 U.S. 262, 267 (1976) (per curiam);

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

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

Pennsylvania Pub. Util. Comm’n v. Pennsylvania R. Co., 382

U.S. 281, 282 (per curiam) (1965).

8. MTM, Inc. v. Baxley, 420 U.S. 799, 804 (1975) (per curiam);

Dickson v. Ford, 419 U.S. 1085 (1974); Perez v. Ledesma, 401

U.S. 82, 88 (1971); Rockefeller v. Catholic Med. Ctr. of Brooklyn

& Queens, Inc., 397 U.S. 820 (1970) (per curiam); Mitchell v.

Donovan, 398 U.S. 427, 431-32 (1970) (per curiam); United States

v. Belt, 319 U.S. 521, 522-23 (1943).

9. Gonzalez v. Automatic Emp. Credit Union, 419 U.S. 90,

101 (1974); United States v. Christian Echoes Nat. Ministry,

Inc., 404 U.S. 561, 566 (1972) (per curiam); Wilson v. City of Port

Lavaca, Tex., 391 U.S. 352 (1968) (per curiam); Mengelkoch v.

Indus. Welfare Comm'n, 393 U.S. 88, 83-84 (1968) (per curiam).

10. Petitioners cite a handful of equitable vacatur cases with

respect to which Chapman was unable to find any Supreme Court

document, lower court decision, or secondary source that described

the reason for applying equitable vacatur. Ayers v. Winter, 467

U.S. 1211 (1984); Rogers v. Inmates’ Councilmatic Voice, 422 U.S.

1031 (1975); Daniel v. Waters, 417 U.S. 963 (1974).

14

involving use of three-judge district court panels or

errors in taking a direct appeal—situations obviously not

presented here. These sources include: (1) decisions from

other courts (both underlying district court cases and

later decisions) discussing the facts of the cases where

this Court has used equitable vacatur;"! (2) a Supreme

Court treatise; (3) the jurisdictional statements filed in

the various direct appeals, explaining that the case was

filed with this Court as a direct appeal resulting from an

ll. Franklin v. Lawrimore, 516 U.S. 801 (1995) (See, Castro

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

Clinton v. Jeffers, 503 U.S. 930 (1992) (See. Jeffers v. Clinton, 796

F. Supp. 1202, 1203 (E.D. Ark. 1992)); Winters v. Lavine, 429 U.S.

1012 (1976) (See, Winters v. Lavine, 574 F.2d 46, 53 (2d Cir. 1978));

Webster v. Perry, 417 U.S. 963 (1974) (See, Webster v. Perry, 367

F. Supp. 666, 667-68 (M.D.N.C. 1973)); Edelman v. Townsend, 412

U.S. 914, 915 (1973) (See, Alerander v. Weaver, 345 F. Supp. 666,

668 (N.D. Ill. 1972)); Bd. of Pub. Instruction v. Banks, 401 U.S.

988 (1971) (See, Banks v. Bd. of Pub. Instruction of Dade County,

314 F. Supp. 285, 287 (S.D. Fla. 1970)); Hutcherson v. Lehtin, 400

U.S. 923 (1970) (See, Hutcherson v. Lehtin, 313 F. Supp. 1324,

1325 (N.D. Cal. 1970)); Carlough v. Richardson, 399 U.S. 920

(1970) (See, Carlough v. Finch, 309 F. Supp. 1025, 1027 (S.D. Fla.

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

curiam) (See, Dahl v. Republican State Comm., 319 F. Supp. 682,

683-84 (W.D. Wash. 1970)).

12. 1A West's Fed. Forms, Supreme Court § 241, Jurisdiction

on Appeal from a United States District Court-Introductory

Comment, Bennett Boskey (5th ed.), discussing several decisions

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

U.S. 1002 (1975); Smart v. Texas Power & Light Co., 421 U.S. 958

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

Inv. Managers Inc. v. Dickinson, 421 U.S. 901 (1975)) that resulted

from errors in the direct appeal procedures.

15

error of a three-judge panel;'* and (4) cases where this

Court applied “equitable vacatur” without discussion, but

cited directly to past Supreme Court precedent where

“equitable vacatur” was utilized to relieve the parties of an

error involving direct appeal or a three-judge panel.'* Not

a single “equitable vacatur” case identified by petitioners

involves § 2107—\the jurisdictional statute at issue here,

which has been the subject of recent decisions by this

Court.”

13. Burlington N., Inc. v. Sterling Colorado Beef Co., 429

U.S. 1084 (1977) (See, jurisdictional statement at 1976 WL 194552,

*1); Gustafson v. Hoffman, 429 U.S. 806, 806-807 (1976) (See,

jurisdictional statement at 1976 WL 194321, *2-3); Shouse v. Pierce

County, 425 U.S. 929 (1976) (See, jurisdictional statement at 1976

WL 194730, *1); Nat’l Socialist White People’s Party v. Walsh, 425

U.S. 929 (1976) (See, jurisdictional statement at 1976 WL 194720,

*1-2); Stamler v. Willis, 393 U.S. 407 (1969) (per curiam) (See,

jurisdictional statement at 1968 WL 129265, *10).

14. Sttvers v. Minnesota, 429 U.S. 1084 (1977); Mendez v.

Heller, 420 U.S. 916 (1975); Custom Recording Co. v. Blanton, 421

U.S. 943 (1975); Smart v. Texas Power & Light Co., 421 U.S. 958

(1975); Driskell v. Edwards, 419 U.S. 812 (1974); Sumrall v. Kidd,

394 U.S. 215 (1969) (per curiam); Dahl v. Republican State Comm.,

393 U.S. 408 (1969) (per curiam); Skolnick v. Bd. of Comm'rs, 389

U.S. 26 (1967) (per curiam); Canton Poultry, Inc. v. Conner, 388

U.S. 458 (1967) (per curiam).

15. This Court has recently considered the jurisdictional

nature of the time limits imposed by § 2107. Interpreting § 2107

in Bowles, this Court recognized that it has “long held that the

taking of an appeal within the prescribed time is ‘mandatory and

jurisdictional.” Bowles, 551 U.S. at 209 (citing six cases dating

back to 1848). Therefore, “an appeal has not been prosecuted in the

manner directed, within the time limited by the acts of Congress,

... must be dismissed for want of jurisdiction,” and “this Court

has no authority to create equitable exceptions to jurisdictional

16

Moreover, unlike every “equitable vacatur” case

relied on by petitioners, and unlike Bowles, this case does

not involve an error in the proceedings below. Rather,

petitioners’ claimed “error” was their own reliance on

the Ninth Circuit’s interpretation of the deadline for

filing an appeal under § 2107 at a time when there was a

clear circuit split on this jurisdictional issue. See, United

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

98 F.3d at 1102 (identifying an “intercircuit conflict’’).

Despite the circuit split and this Court’s holding in Bowles

that § 2107 is “mandatory and jurisdictional,” petitioners

chose to wait 58 days to file their notice of appeal. There

is nothing within existing law that requires, or even

suggests, that “equitable vacatur” should have been

considered by the Ninth Circuit under the circumstances

of this case, much less that “equitable vacatur” was

required in these circumstances. And, in any event, any

historical practice of engaging in “equitable vacatur”

to circumvent jurisdictional requirements is outmoded

under this Court’s recent precedents, including Bowles

and Eisenstein."

requirements.” Bowles, 551 U.S. at 210, 214. The Court recently

reaffirmed that understanding in Henderson v. Shinseki, (“the

statutory limitation on the length of an extension of the time to

file a notice of appeal in an ordinary civil case is ‘jurisdictional,’

and we therefore held {in Bowles) that a party’s failure to file a

notice of appeal within that period could not be excused based on

equitable factors. ...”). Henderson v. Shinsek1, 131 S.Ct 1197, 1201-

1202 (2011). Although petitioners’ petition appears to based on the

unstated premise that Bowles is wrong or at least “question{able],”

Pet. 24 (citing Scott Dodson, The Failure of Bowles v. Russell,

43 Tulsa L. Rev. 631 (2008)), petitioners do not ask this Court to

overrule Bowles and therefore must accept it on its terms. Pet. 9.

16. None of the dicta on which petitioners rely (Pet. 25-26)

from Reed Elsevier, Inc. v. Muchnick, 1308. Ct. 1237 (2010), alters

17

28 U.S.C. section 2106 (“§ 2106”) does not require

any different result. That statute generally describes

the function of the Supreme Court and the circuit courts

to review cases “lawfully brought before [the court] for

review.” § 2106. Here, petitioners’ untimely appeal was

not “lawfully brought before [the Ninth Circuit Court

of Appeals] for review” because it was indisputably

“jurisdictionally untimely.” Pet. i. Petitioners argue that

Congress implicitly ratified the purported practice of

“equitable vacatur” in its 1948 revisions to what is now §

2106, but there is nothing either in the text of the statute or

in the legislative history or cases upon which they rely to

support their hypothesis." To the contrary, the authority

relied on by petitioners as the earliest application of

the precedential force of those decisions. And this Court’s decision

in Henderson--which simply held that this Court’s precedents

(including Bowles) governing the jurisdictional requirements for

review by Article II] courts did not control “review by an Article

/ tribunal as part of a unique administrative scheme,” Henderson,

1318. Ct. at 1204—does not help petitioners either.

17. The 1948 revisions to what is now § 2106 were part of H.R.

3214, 80th Cong. (1948) (enacted), an omnibus effort to recodify

federal procedural law and gather it in one title. S. Conf. Rep. No.

80-1559, at 1-2; Cong. Rec. 6,7927 (1948). The specific revision to

the predecessor to § 2106, which inserted “or a court of appeals”

after “Supreme Court” was done “upon authority of United States

v. Illinois Surety Co., C.C.A. 1915, 226 F. 653, affirmed 37 S. Ct.

614, 244, U. S. 376, 61 L. Ed. 1206, wherein it was held that this

section also applied to the courts of appeals in view of section

11 of the Circuit Court of Appeals Act of Mar. 3, 1891, ch. 517,

28 Stat. 829.” H.R. Conf. Rep. No. 80-308, at A173 (1947). The

statute was revised to recognize that the courts of appeals have

the power to modify district court judgments and orders. There

is no indication that Congress intended to expand this Court’s

occasional use of “equitable vacatur” to correct procedural errors

in direct appeals cases.

18

“equitable vacatur” demonstrates that this Court’s

assumed authority to invoke “equitable vacatur” was

derived from the direct appeal statutes themselves, and

not any general jurisdictional statute. Gully v. Interstate

Nat. Gas Co., 292 U.S. 16, 18 (1984) (per curiam). In any

event, there certainly is no conflict of authority over the

proper application of § 2106 in this context.

Il. There Is Otherwise No Compelling Reason To

Grant Certiorari.

A. In Deciding Eisenstein, This Court Knew There

Could Be “Harsh Consequences”

Petitioners decry the result below—dismissal of

their late-filed appeal as jurisdictionally untimely—as

“inequitable.” Pet. 5. But this Court expressly recognized

in Hisenstein that its decision would require pending

appeals like petitioners’ to be dismissed. Specifically,

Eisenstein argued that affirming the dismissal of his

appeal would “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.” Hasenstein,

1298S. Ct. at 2236, n.4. In fact, relators in another Ninth

Circuit FCA case who filed an appeal more than 30 days

after entry of judgment filed an amicus brief in Hisenstern

arguing that appeals like theirs should not be dismissed.

Brief of Amici Curiae Patricia Haight and in Defense

of Animals, United States ex rel. Kisenstein v. City of

New York, 129 S. Ct. 2230 (2009) (No. 08-660); See also,

2009 WL 583802 (Patrica Haight was a relator in United

States ex rel. Haight et al. v. Catholic Healthcare West, et

al., Ninth Circuit Case No. 07-16857). The //lazght amicz

argued that they were entitled to rely on existing Ninth

19

Circuit precedent (.e., Haycock) permitting appeals up to

60-days after entry of judgment in CA cases in which the

United States has not intervened, and urged this Court to

reverse the Second Circuit, or in the alternative, issue a

prospective ruling. /d. at 4-12. In Lisenstein, a unanimous

Court turned away these arguments, noting that it “must

... decide the jurisdictional question before it irrespective

of the possibility of harsh consequences.” Hisenstein, 129

». Ct. at 2236, n.4."

Petitioners here are in exactly the same position as

the unsuccessful Fisenstern amicr. That the dismissal of

their appeal would be required by § 2107 despite apparent.

harsh consequences was foreseen by this Court.

B. The District Court Properly Concluded That

Petitioners’ Claims Are Meritless

Nor is the loss of the appeal in this False Claims Act

case troublesome on the merits. In its motion for summary

judgment, Chapman demonstrated that petitioners’ claim

failed on several fundamental levels. However, in granting

Chapman’s motion, the district court relied on the most

glaring flaws. First, the district court agreed with

existing case law in concluding that “the HEA imposes

no affirmative duty on Chapman to insure accreditation

standards are unfailingly maintained, and no FCA claim

ean be maintained based on standards that are not a

prerequisite to payment of government funds.” Pet.App.

18. As noted above, following Hisenstein, the Ninth Circuit

dismissed the appeal of the /faight amici, and this Court denied

certiorari. United States ex rel. Haight v. Catholic Healthcare

West, 602 F.3d 949 (Oth Cir. 2010), cert. denied, 1318. Ct. 866 (2010).

2()

17a, citing U.S. ex rel. Diop v. Wayne County Comm.

College Dist., 242 F. Supp. 2d 497, 5382-534 (k.D. Mich.

2003).

Most importantly, however, the district court

recognized that petitioners’ entire case rested upon the

existence of WASC’s “strict 45 hour rule,” but no such rule

even exists. The district court coneluded: “In the absence

of any WASC requirement of a quantum of classroom

hours, {petitioners] cannot establish a false statement

that is a condition of government funding.” Pet. App. 17a.

Petitioners’ subsidiary theories of liability were similarly

flawed.” Pet. App. 18a-20a, 20a-23a.

Of course, petitioners were free to bring a lumely

appeal from that ruling. But they indisputably failed to do

so. And nothing about the Ninth Cireuit’s factbound—and

unassailably correct— application of Eisenstein leading to

that result warrants this Court’s review.

19. For example, Petitioners alleged that Chapman falsely

certified compliance with requirements in certain memoranda

of understanding (“MOU”) with the United States Department

of Defense. However, the district court ruled that on their face,

the MOUs are not related to receipt. of povernment funds. Pet.

App. 18a-20a. And, Petitioners also brought a state False Claims

Act claim, but this claim failed for the same reasons as the FCA

claim. Pet. App. 23a.

CONCLUSION

NIN ALIGH TON | | }?

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