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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2011
- **Citation:** 563 U.S. 987

## Text

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 | | }?
1O] B Street. le)
san Dievo, CA 921

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1739%3A2. Public record. Not legal advice.