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United States v. University of Phoenix

United States Court of Appeals, Ninth Circuit

July 25, 2017

United States and State of California
v.
University of Phoenix; Apollo Group, Inc., Defendants-Appellees. ex rel. Derek Hoggett and Tavis Good, Plaintiffs-Appellants,

          Argued and Submitted February 14, 2017 San Francisco, California

         Appeal from the United States District Court for the Eastern District of California D.C. No. 2:10-cv-02478-MCE-EFB Morrison C. England, Jr., District Judge, Presiding

          Daniel R. Bartley (argued), Bartley Law Offices, Campbell, California, for Plaintiffs-Appellants.

          Jonathan C. Bunge (argued), Quinn Emanuel Urquhart & Sullivan LLP, Chicago, Illinois; Leonid Feller, Kirkland & Ellis LLP, Chicago, Illinois; Todd Michael Noonan, DLA Piper LLP, Sacramento, California; for Defendants-Appellees.

          Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Marvin J. Garbis, [*] District Judge.

         SUMMARY [**]

         Appellate Jurisdiction

         The panel dismissed as untimely relators' appeal from the dismissal of their qui tam suit under the False Claims Act.

         The panel held that the relators' post-judgment motion, styled as a motion to alter or amend the judgment under Fed.R.Civ.P. 59, was in substance a motion only to stay entry of judgment and therefore did not toll the time to file a notice of appeal under Fed. R. App. P. 4(a)(4).

          OPINION

          GOULD, CIRCUIT JUDGE.

         Relators Derek Hoggett and Tavis Good (collectively "Relators") appeal the district court's dismissal of their qui tam lawsuit against the University of Phoenix and the Apollo Group (collectively "UOPX"). Relators allege that UOPX violated the False Claims Act (FCA), 31 U.S.C. §§ 3729- 3733, and the California False Claims Act, Cal. Gov't Code §§ 12650-12656, by knowingly submitting false certifications and making false statements to the government that it was complying with the recruiter incentive compensation ban in order to receive federal student financial aid funding under Title IV of the Higher Education Act (HEA). We conclude that their appeal is untimely, and we dismiss for lack of jurisdiction.

         I

         UOPX is one of the largest for-profit post-secondary education providers in the United States. It receives large amounts of money from the federal government in the form of Title IV student financial aid. In December 2009, UOPX entered into a settlement agreement for $67, 500, 000 with the United States and two relators, Mary Hendow and Julie Albertson, to settle a qui tam lawsuit involving allegations that UOPX violated the FCA by presenting claims to the government for payment in connection with Title IV programs. Settlement Agreement, United States ex rel. Hendow v. Univ. of Phoenix, No. 2:03-cv-00457-GEB-DAD (E.D. Cal. Dec. 16, 2009), ECF No. 345, Ex. A. The allegations asserted that UOPX falsely certified that it was in compliance with the HEA provision relating to incentive compensation, 20 U.S.C. § 1094(a)(20), and/or the associated regulations, 34 C.F.R. § 668.14(b)(22). Id. at 2.[1]The settlement covered the period from March 1997 to December 11, 2009, and did not include an acknowledgment, admission, or concession of wrongdoing. Id. at 2, 13-15.

         Relators were enrollment counselors at UOPX during part of the time period covered by the Hendow settlement and after December 11, 2009. On September 15, 2010, Relators filed this suit, alleging that UOPX continued to knowingly violate the incentive compensation ...


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