United States District Court, D. Hawaii
UNITED STATES OF AMERICA and THE STATE OF HAWAII ex rel. BETHANY J. LEWIS, Relator,
HONOLULU COMMUNITY ACTION PROGRAM, INC., ET AL., Defendants.
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT, ECF NO. 76
MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.
Honolulu Community Action Program, Inc. (“HCAP”);
Honolulu Community Action Program, Inc., dba, HCAP Head Start
(“HCAP HS”); and certain individual
Defendants affiliated with HCAP or HCAP HS
(collectively, “Defendants”) move for summary
judgment on all remaining counts in this qui tam action
brought under 31 U.S.C. § 3730(b) by Relator Bethany J.
Lewis (“Relator”). ECF No. 76. After fully
considering all written and oral argument, the court GRANTS
is a private non-profit company that receives federal grants
to provide services promoting the school readiness of
qualifying children from low-income families through a Head
Start program. Compl. ¶¶ 23 to 27, ECF No. 1 at
PageID #8-9; Kogami Decl. ¶ 3, ECF No. 76-5 at PageID
#641-42. As summarized in the September 13, 2018 Order, this
action alleges violations by Defendants of the federal False
Claims Act (the “FCA”), 31 U.S.C. § 3729 et
seq., and Hawaii’s False Claims Act, Hawaii Revised
Statutes § 661-21 et seq., regarding enrollment levels
of students in HCAP HS. Specifically, Relator alleges a
scheme whereby Defendants used “ghost
children”-described as children who had applied to the
Head Start program but were either not actually enrolled in
the program or had been dropped from the program-to increase
falsely HCAP HS’s enrollment levels to obtain Head
Start funding from the United States Department of Health and
Human Services. ECF No. 1 at PageID #4-5, 11-17.
alleges that from the 2009-10 to 2015-16 school years, HCAP
HS was required to enroll from 1, 650 to 1659 children (as
indicated in its grant awards) to maintain its funding.
Id. at PageID #11 to 12; see also ECF No.
76-9. For these school years, Relator alleges that HCAP HS
inflated the enrollment numbers by wrongfully including the
following groups in its enrollment: (1) children who applied
but were never enrolled; (2) children who applied but did not
qualify; and (3) children who were enrolled without
completing the proper enrollment procedures. ECF No. 1 at
PageID #12. Relator alleges several different tactics that
Defendants used to falsify the enrollment numbers. See Id
. at PageID #12 to 17. The court discusses specific
evidence (or lack thereof) supporting Relator’s claims,
and the specific legal and regulatory context, only as
necessary when addressing the arguments of the parties in the
Discussion section to follow.
counts remaining after the September 13, 2018 Order are:
• Count One (violations of the False Claims Act, 31
U.S.C. § 3729(a)(1)(A));
• Count Two (violations of the False Claims Act, 31
U.S.C. § 3729(a)(1)(B));
• Count Four (violations of the Hawaii False Claims Act,
Haw. Rev. Stat. § 661-21(a)(1)); and
• Count Five (violations of the Hawaii False Claims Act,
Haw. Rev. Stat. § 661-21(a)(2)).
10, 2019, Defendants filed their Motion for Summary Judgment,
arguing that they are entitled to judgment as a matter of law
and that Relator has insufficient evidence, if any, to
support all elements of her claims. ECF No. 76. On August 26,
2019, Relator filed her Opposition, ECF No. 79, and
Defendants filed their Reply on August 30, 2019, ECF No. 81.
The court heard the motion on September 17, 2019.
STANDARD OF REVIEW
judgment is proper where there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a). Rule 56(a) mandates
summary judgment “against a party who fails to make a
showing sufficient to establish the existence of an element
essential to the party’s case, and on which that party
will bear the burden of proof at trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also
Broussard v. Univ. of Cal. at Berkeley, 192 F.3d 1252,
1258 (9th Cir. 1999).
party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and of
identifying those portions of the pleadings and discovery
responses that demonstrate the absence of a genuine issue of
material fact.” Soremekun v. Thrifty Payless,
Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citing
Celotex, 477 U.S. at 323); see also Jespersen v.
Harrah’s Operating Co., 392 F.3d 1076, 1079 (9th
Cir. 2004). “When the moving party has carried its
burden under Rule 56[(a)] its opponent must do more than
simply show that there is some metaphysical doubt as to the
material facts [and] come forward with specific facts showing
that there is a genuine issue for trial.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986) (citation and internal quotation
issue is ‘genuine’ only if there is a sufficient
evidentiary basis on which a reasonable fact finder could
find for the nonmoving party, and a dispute is
‘material’ only if it could affect the outcome of
the suit under the governing law.” In re
Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). When considering the evidence on a motion for
summary judgment, the court must draw all reasonable
inferences in the light most favorable to the nonmoving
party. Friedman v. Live Nation Merch., Inc., 833
F.3d 1180, 1184 (9th Cir. 2016).
The State Law Claims Fail
Counts Four and Five-the Hawaii False Claims Act claims-fail
as a matter of law. Defendants proffer undisputed evidence
that no State of Hawaii funds were ever at issue.
See Kogami Decl. ¶ 4, ECF No. 76-5 at PageID
#642 (“[T]he State does not pay any amount to HCAP and
HCAP HS does not bill the State for any amounts related to
the Head Start program. The State of Hawaii did not provide
any funding for HCAP’s Head Start grants for the School
years . . . 2014 through 2018.”); Piper Decl. ¶ 7,
ECF No. 76-6 at PageID #646 (“Head Start grants do not
and never have included any monetary payments from the State
of Hawaii.”); Cabato Decl. ¶ 6, ECF No. 76-7 at
PageID #649 (“[F]rom 2010 to 2017, Head Start grants
did not include any monetary payments from the State of
offered no evidence contradicting these statements in her
opposition, and she acknowledged at the September 17, 2019,
hearing that she has no such evidence. Accordingly,
Defendants cannot be liable for violating Hawaii’s
False Claims Act-they could not have made a
“claim” under the Hawaii Act. See Haw.
Rev. Stat. § 661-21(e) (defining “claim” as
requiring, among other things, that “the State
provides or has provided any portion of the money or property
that is requested . . . or will reimburse the contractor,
grantee, or other recipient for any portion of the money or
property that is requested”) (emphasis added). The
motion is GRANTED as to Counts Four and Five.
The Federal False ...