and Submitted February 14, 2017 San Francisco, California
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
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.
panel dismissed as untimely relators' appeal from the
dismissal of their qui tam suit under the False
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).
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.
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.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.
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 ...