United States of America, ex rel. Chickoiyah Miller, ex rel. Cathy Sillman, Plaintiff, Chickoiyah Miller; Cathy Sillman, Relators - Appellants
Weston Educational, Inc., doing business as Heritage College, Defendant - Appellee
Submitted, January 14, 2015
[Copyrighted Material Omitted]
Appeal from United States District Court for the Western District of Missouri - Kansas City.
For United States of America, ex rel. Chickoiyah Miller, ex rel. Cathy Sillman, Plaintiff: Lucinda Sword Woolery, U.S. Attorney's Office, Kansas City, MO.
For Chickoiyah Miller, Cathy Sillman, Relators - Appellants: Matthew V. Bartle, David Louis Marcus, Bartle & Marcus, Kansas City, MO; Gene P. Graham Jr., Bryan T. White, White & Allinder, Independence, MO.
For Weston Educational, Inc., doing business as: Heritage College, Defendant - Appellee: Matthew T. Geiger, Geiger & Langin, Overland Park, KS; Steven Martin Gombos, Litigation Counsel, Gerald M. Ritzert, Ritzert & Leyton, Fairfax, VA.
Before SMITH, BENTON, and SHEPHERD, Circuit Judges.
BENTON, Circuit Judge.
Chickoiyah Yehnee Miller and Cathy Lynn Sillman filed a qui tam False Claims suit against Heritage College, alleging it fraudulently induced the Department of Education (DOE) to provide funds by falsely promising to keep accurate student records. Each relator also alleged retaliation under the FCA and wrongful discharge under state law. The district court granted summary judgment to Heritage. Relators appeal, except on Sillman's retaliation claim. Having jurisdiction under 28 U.S.C. § 1291, this court reverses and remands the FCA claim, and affirms the employment claims.
Heritage, a for-profit college, signed a Program Participation Agreement (PPA) with the DOE to participate in programs under Title IV of the Higher Education Act of 1965. See 20 U.S.C. § § 1070-1099d (2012) (providing federal financial assistance to eligible post-secondary students). Under the PPA, Heritage and its students submit applications for specific federal grants, loans, or scholarships. Around 97% of Heritage students receive Title IV aid, accounting for about 90% of gross tuition. From 2009 to 2012, the DOE disbursed $32,817,727 to Heritage.
The PPA obligates Heritage to " establish and maintain such administrative and fiscal procedures and records as may be necessary to ensure proper and efficient administration of funds." See also 20 U.S.C. § 1094(a)(3) (same language); 34 C.F.R. § 668.14(b)(4) (same language). This includes " [d]ocumentation" of each student's eligibility and of any refunds due on behalf of the student. 34 C.F.R. § 668.24(c)(1)(iii)-(iv). To be eligible for funds, a student must make " satisfactory progress." Id. § § 668.32(f), 668.34. SP is measured by cumulative grade point average. See Heritage Coll., ABHES Institutional Self-Evaluation Report 72 (2007) (noting student must attain 70% GPA by end of program to make SP). Refunds to the DOE may be due when a student withdraws, depending on how much of a program the student completed. See 34 C.F.R. § 668.22(e) (noting no refund required if student completes 60% or more of program). Withdrawal is determined by the " last date of academic attendance." Id. § 668.22(b)(1).
Relators, both former Heritage employees, claim that Heritage altered grade and attendance records from 2006 to 2012 to ensure students made SP and to avoid refunds, thereby maximizing Title IV funds. Miller saw an administrator increase student grades without instructor knowledge or consent, erasing the grades in a paper grade book and replacing them. She identifies a number of her own students--from before and after the signing of the PPA--whose transcripts reflect higher grades than she awarded. She saw administrators alter attendance records to mark absent students as present. At meetings in 2009 and 2010, Miller heard administrators discuss keeping students at Heritage long enough to get all Title IV funds possible. Two other program managers testified that administrators ordered them to go through instructor grade books and change failing grades to passing. Other Heritage employees and instructors witnessed or participated in altering grade and attendance records, before and after the signing of the PPA. For the purpose of summary judgment, Heritage does not dispute it altered records.
In December 2010, Relators complained to Heritage about this and other alleged misconduct. Heritage fired Sillman on December 27, 2010, citing poor job performance and interpersonal skills. Miller quit on January 7, 2011, claiming that she had been excluded from meetings, removed as program manager, refused a previously-offered employment position, docked Saturday pay, and threatened with termination.
Relators filed a qui tam FCA action, alleging numerous theories of FCA liability. The federal government declined to intervene. Relators added claims for retaliation under the FCA and wrongful dis
charge under Missouri law. The court granted summary judgment to Heritage on all claims. Relators appeal on one theory of FCA liability, fraudulent inducement. They also appeal the judgments on wrongful discharge and Miller's retaliation claim.
Relators claim that Heritage committed fraudulent inducement by signing the PPA without intending to maintain " records as may be necessary to ensure proper and efficient administration of funds." The district court held Heritage did not promise to keep perfect records and any promise was not material to the disbursement of funds. This court reviews de novo a grant of summary judgment. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). Summary judgment is proper when " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A court " must view the evidence in the light most favorable to the opposing party" and draw " reasonable inferences" in favor of that party. Tolan v. Cotton, 134 S.Ct. 1861, 1866, 1868, 188 L.Ed.2d 895 (2014) (per curiam) (internal quotation marks omitted).
The FCA makes liable anyone who " knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim." 31 U.S.C. § 3729(a)(1)(B). Under fraudulent inducement, FCA liability attaches to " each claim submitted to the government under a contract so long as the original contract was obtained through false statements or fraudulent conduct." In re Baycol Prods. Litig., 732 F.3d 869, 876 (8th Cir. 2013), citingUnited States ex rel. Marcus v. Hess, 317 U.S. 537, 543-44, 552, 63 S.Ct. 379, 87 L.Ed. 443 (1943) (finding contractors liable under FCA for all claims submitted under government contract obtained by collusive bidding). Accord, United States v. United Techs. Corp., 626 F.3d 313, 320 (6th Cir. 2011) (" False statements underlying multi-year contracts generate a stream of related invoices and cause the government to pay all of the invoices related to the contract." ); United States ex rel. Longhi v. United States, 575 F.3d 458, 468 (5th Cir. 2009) (" [A]lthough the Defendants' subsequent claims for payment made under the contract were not literally false, [because] they derived from the original fraudulent misrepresentation, they, too, became actionable false claims." (second alteration in original) (internal quotation marks omitted)); United States ex rel. Hendow v. Univ. of Phoenix, 461 F.3d 1166, 1173 (9th Cir. 2006) (" [L]iability will attach to each claim submitted to the government under a contract, when the contract . . . was originally obtained through false statements or fraudulent conduct." ); United States ex rel. Main v. Oakland City Univ., 426 F.3d 914, 916 (7th Cir. 2005) (" If a false statement is integral to a causal chain leading to payment, it is irrelevant how the federal bureaucracy has apportioned the statements among layers of paperwork." ); Har ...