EBEL, Circuit Judge:
Manuel Christiansen and Brian Ashton (Relators) brought a qui tam lawsuit against Everglades College, Inc., d.b.a. Keiser University (Keiser University) under the federal False Claims Act (FCA). They alleged that Keiser University, a participant in federal student financial-aid programs, falsely certified compliance with a federal law banning incentive payments to university admissions counselors. When the United States initially declined to intervene and take over the case, Relators pursued the action and won only a limited trial victory — no damages and only $11,000 in penalties — so they appealed to this Court. During the pendency of that appeal, however, the United States stepped in and settled the case with Keiser, securing a much larger monetary recovery than Relators procured at trial.
Confident that they could have prevailed on appeal, Relators believed the rug had been pulled out from under them. They argued the United States had no right to intervene so late in the proceedings, they challenged the underlying fairness of the settlement, and they asked for an evidentiary hearing and discovery into the government's settlement deliberations in search of a nefarious motive. The district court rejected these arguments and allowed the United States to intervene, approved the settlement, and denied Relators' requests for an evidentiary hearing and discovery pertaining to the government's decision to intervene and settle the
Relators also appeal from the district court's subsequent award of reduced attorneys' fees and costs. Appeal No. 16-11839. In light of the paltry outcome secured at trial and Relators' opposition to the eventual settlement, which had resulted in a significantly greater monetary recovery, the district court trimmed Relators' fees and costs to a small fraction of the requested award.
Recognizing that the settlement and the attorneys' fees are inextricably linked, we consolidated these appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM in both Appeals Nos. 16-10849 and 16-11839.
Keiser University is a non-profit college offering undergraduate and graduate programs across more than a dozen campuses. Many of Keiser's students receive federally sponsored financial aid under Title IV of the Higher Education Act of 1965, 20 U.S.C. §§ 1070-1099d. In order to receive Title IV funds, schools must enter into "program participation agreements" with the Department of Education that condition eligibility for financial aid funds on the institution's compliance with various enumerated requirements. 20 U.S.C. § 1094(a). One of those requirements is known as the Incentive Compensation Ban (ICB), which prohibits a school from paying incentives to recruiters and admissions personnel based on the number of students they enroll.
Relators, two former employees who worked in Keiser's admissions department, alleged that Keiser submitted more than 230,000 claims for a total of $1.2 billion in federal financial aid, all the while falsely certifying to the United States that Keiser was complying with the ICB. According to Relators, Keiser knew that its admissions personnel received incentive payments based on their success in securing enrollments. Even with that knowledge, Keiser expressly certified compliance with the ICB on multiple occasions and — more important to Relators' theory of the case — Keiser caused its students to submit claims for financial aid to the government, all the while knowing that it was violating the ICB. Relying on the "implied false certification" theory,
When Relators initially brought the FCA action, the United States declined to take over the case, which is the government's prerogative under 31 U.S.C. § 3730(b)(2). Relators thus exercised their statutory right to pursue the case on behalf of the United States.
First, the court rejected Relators' theory that each student-submitted application
Relators appealed the district court's decision to our Court. The United States, however, believed an appeal was risky because there was a chance the Eleventh Circuit would affirm the district court's narrow interpretation of FCA liability, thereby impairing FCA enforcement efforts throughout the circuit. Thus, after Relators' opening brief was filed in this Court, but before the United States moved to intervene in the qui tam action, the United States struck a tentative deal with Keiser. The tentative settlement agreement provided that Keiser would pay the United States $335,000 — more than thirty times the amount recovered by Relators at trial — and the United States would in turn release Keiser from any further administrative or civil claims, and even more importantly, would also refrain from suspending or terminating Keiser's eligibility for future Title IV funds based on Keiser's challenged conduct in this case.
Relators' merits appeal was still pending on this Court's docket at the time, so the district court did not have jurisdiction to enter any orders. Thus, after reaching a tentative settlement with Keiser, the United States moved the district court for an indicative ruling stating that, if the district court reacquired jurisdiction on remand from this Court, the district court would permit the United States' intervention and approve the proposed settlement as fair and reasonable. The district court agreed and issued an indicative order to that effect, reasoning that the United States could intervene as the real party in interest and that the settlement was fair and reasonable because it resulted in a recovery far exceeding the amount obtained by Relators at trial. In light of that indicative ruling, this Court then remanded the case back to the district court, whereupon the district court granted the government's intervention motion.
In that same order, the district court also affirmed a magistrate judge's determination that Relators were not entitled to discovery or a full-blown evidentiary hearing to probe the settlement deliberations and the government's rationale for ending the case. Finally, the district court scheduled a statutorily mandated hearing to
While these developments were unfolding, Relators also sought an award for attorneys' fees and costs. After the bench trial, but before the settlement, Relators asked for over $1 million in attorneys' fees and almost $76,000 in litigation costs. In light of Relators' limited success at trial, the district court reduced the fee award to $60,000 for their efforts at trial, and trimmed the award of costs to $27,000. After the eventual settlement, which Relators claimed was brought about by their appeal, they sought enhanced fees and costs based on the larger settlement figure that the United States had been able to procure with Keiser, as well as the additional fees and costs they incurred for their efforts on appeal. The district court denied that request on the ground that Relators objected to the settlement at every stage of the proceedings and should not reap the benefits of an outcome they so vigorously sought to prevent.
Relators now appeal all of these issues.
We resolve four principal issues on appeal: (1) whether the government was required to satisfy the FCA's good-cause intervention requirement as set forth in 31 U.S.C. § 3730(c)(3) when it intervened for the sole purpose of settling the dispute; (2) whether the proposed settlement was "fair, adequate, and reasonable" under § 3730(c)(2)(B); (3) whether Relators were entitled to an evidentiary hearing and discovery to probe the government's reasons for settling the case; and (4) whether the district court abused its discretion in awarding substantially reduced attorneys' fees based on Relators' limited success at trial and subsequent opposition to the settlement. On all issues, we affirm the district court.
The United States originally declined to proceed with the qui tam action, which authorized Relators to litigate the case on behalf of the government. 31 U.S.C. § 3730(c)(3) ("If the Government elects not to proceed with the action, the person who initiated the action shall have the right to conduct the action."). Relators were unsatisfied with the trial outcome, however, so they appealed. But the government was eager to avoid the risk that the Eleventh Circuit would affirm the ruling below, so it then stepped in and, while the case was pending on appeal, settled the case, thereby depriving Relators of their chance at reversal and a subsequent greater recovery upon remand. Relators argue that the district court erred in granting the government's motion to intervene for the purpose of settling the case.
Relators rely on 31 U.S.C. § 3730(c)(3), which provides: "When a [relator] proceeds with the action, the court, without limiting the status and rights of the [relator], may nevertheless permit the Government to intervene at a later date upon a showing of good cause." 31 U.S.C. § 3730(c)(3) (emphasis added). Relators insist that the United States lacked "good cause" to intervene here. We reject this contention. We hold that, in this case, the United States did not need to satisfy the good-cause intervention requirement for qui tam actions under 31 U.S.C. § 3730(c)(3) because that subsection applies only when the government intervenes for the purpose of actually proceeding with the litigation — not when it is stepping in only for the purpose of settling and ending the case. Because intervention was not required,
A straightforward reading of the text supports this conclusion. First, subsection (b)(2) expressly links intervention to the government's decision to "proceed with the action." § 3730(b)(2) ("The Government may elect to intervene and proceed with the action...." (emphasis added)). Second, in subsections (c)(2)(A) and (B), the statute spells out the circumstances in which the government may settle or dismiss a qui tam case, and neither subsection conditions the government's rights on formally intervening in the case. Instead, they provide in unequivocal terms that "the Government may settle [or dismiss] the action with the defendant notwithstanding the objections of the person initiating the action." § 3730(c)(2)(A), (B) (emphasis added). In the context of dismissals, the court need only "provide[] the [relator] with an opportunity for a hearing," § 3730(c)(2)(A); and with settlements, the court must "determine[], after a hearing, that the proposed settlement is fair, adequate, and reasonable under all the circumstances," § 3730(c)(2)(B). We decline to import the good-cause intervention requirement from subsection (c)(3) into these provisions which specifically govern dismissals and settlements.
Our sibling circuits have reached the same conclusion. The D.C. Circuit held in
And in the closely related context of dismissals, other circuits have also declined to require good cause or formal intervention. For instance, the Tenth Circuit in
Thus, consistent with the holdings of other circuits, we hold that the United States is not required to satisfy the good-cause intervention standard in § 3730(c)(3) when settling a qui tam action brought under the FCA.
The United States "may settle the action with the defendant ... if the court determines, after a hearing, that the proposed settlement is fair, adequate, and reasonable under all the circumstances." 31 U.S.C. § 3730(c)(2)(B) (emphasis added). The United States and Keiser struck a deal providing that Keiser would pay the government $335,000 and the government would release Keiser from any further claims and preserve Keiser's eligibility for future Title IV funds. The district court, after a hearing, determined this proposed agreement was "fair, adequate, and reasonable" under the statute. Relators argue that the settlement was unreasonable because they were likely to win appellate reversal and thereafter secure a potentially enormous monetary recovery.
In evaluating the fairness and reasonableness of the settlement, we first decide the proper standard for reviewing proposed settlements between the United States and an FCA defendant. We then turn to the substance of this particular agreement and conclude that it was "fair, adequate, and reasonable."
Relators ask us to review the proposed FCA settlement under the same rubric used to evaluate proposed class settlement between private parties under Fed. R. Civ. P. 23. Some district courts have done just that.
But a qui tam FCA suit materially differs from class-action litigation between private parties for two reasons. First, unlike members of a plaintiff class, a qui tam relator has suffered no invasion of his own
Second, also unlike with private plaintiffs, the government's interests are not confined to maximizing recovery against the defendant. The United States may want to consider whether the maximum recovery is proportional to the seriousness of the misconduct. It may also wish to consider public policy consequences or political ramifications. Moreover, it could conclude that limited prosecutorial resources are not worth spending on continued monitoring of the case, which it often must do even when the relator is proceeding with the action. These considerations are entirely absent when evaluating a proposed class settlement between private parties. Thus, we conclude that the Rule 23 standard for class settlements between private parties is not the proper framework for evaluating FCA settlements between the government and the defendant.
Unlike reviewing class-action settlements, in the FCA context there must be considerable deference to the settlement rationale offered by the government. The need for deference arises out of the loose similarity between government-obtained FCA settlements and decisions by the government not to prosecute or enforce an administrative remedy, which are presumptively unreviewable.
Relators are correct, however, to point out that settlement under the FCA is treated differently than dismissal. When the government seeks to dismiss the FCA action, the statute does not prescribe a judicial determination of reasonableness,
That being said, some limited deference is still warranted. The United States' decision to end a case through settlement is similar enough to a decision to dismiss the case — a choice committed to the discretion of the Executive Branch — that this Court must afford some degree of respect to the government's settlement rationale. At the same time, given the FCA's mandate that we review settlements for fairness, we cannot just rubber stamp the
With this in mind, we proceed to evaluate the proposed settlement in this case.
We conclude that the proposed settlement is "fair, adequate, and reasonable." It secures for the United States a recovery that is thirty times larger than the district court's award at trial — that means higher recovery for both the United States and Relators.
But unlike with private actors, the government's decision to settle a case does not turn solely on whether settlement is most likely to maximize the monetary recovery. As discussed earlier, the government may conclude that settling the case imposes liability reasonably proportionate to the gravity of the misconduct. Or it might wish to avoid expending further resources in monitoring the case as it proceeds through the appellate and (if remanded) trial process. And most importantly for the United States here, the government must be wary of the precedential impact of a potentially adverse appellate decision. If the Eleventh Circuit affirmed the district court's restrictive reading of the FCA here, the government would be limited in its enforcement efforts all around the Circuit. That enforcement burden would ultimately translate into lower recoveries across the board.
The government was not unreasonable in hedging its bets in this regard. Much is made in the parties' briefs about whether Relators would have succeeded on appeal, and we offer no comment on the merits of that debate. But it is evident that, at the very least, Relators' case hinged on a proposition that is not settled in this Circuit: whether an educational institution that has falsely certified compliance with federal payment conditions can be liable under the FCA for financial-aid requests submitted by its students. Winning the bulk of Relators' claimed penalties and alleged damages relied crucially on being able to attribute the 230,000 student-submitted claims to Keiser, even though Keiser did not control the content or submission of those claims. But that is an open question in this Circuit, so the United States did not act unreasonably in preferring the certainty of a settlement to the uncertainty of an appeal.
The United States has thus advanced a reasonable basis for concluding this proposed settlement furthers its best interests without unfairly reducing Relators' qui tam recovery (in fact, it guarantees a higher recovery for them). It is thus "fair, adequate, and reasonable." We therefore find the proposed settlement satisfies § 3730(c)(2)(B).
The FCA entitles a qui tam relator to a fairness hearing as of right when the United States proposes a settlement with an FCA defendant. 31 U.S.C.
To conclude that the statute mandates the right to develop new evidence would risk ballooning the FCA settlement hearing into a mini-trial on the merits. The government would have to explain why it considered an appellate defeat possible in light of the facts and law governing the case at hand, the relator would then dispute that assessment, and a fight over the merits would ensue. But the United States often settles a case precisely to avoid such a fight. That "would put the cart before the horse, in essence making trial a precondition of settlement."
A court still retains, however, the inherent equitable power to give more than the FCA minimally commands. A district court could give a qui tam relator the opportunity to present and develop new evidence when he shows a substantial and particularized need for such a hearing. A relator could, for example, potentially make that showing by presenting a colorable and non-speculative claim that the United States has neglected to investigate the allegations, or that its settlement decision was motivated by improper considerations, such as collusion or bribery.
In this case, the district court denied Relators' request for an evidentiary hearing. We affirm that denial. Relators have not demonstrated a substantial or particularized need to develop new evidence because there is no colorable and non-speculative claim that the United States failed to investigate the allegations or acted with improper motives. Relators did offer several reasons why they have met that burden, but we reject those arguments as insufficient.
First, Relators repeat their contention that the government's settlement rationale was patently unreasonable. Therefore, in their view, the offered reason for the settlement must be a pretext for some ulterior
Second, Relators take issue with their exclusion from the settlement negotiations. Why would the United States have kept them in the dark about the ongoing settlement talks, Relators argue, if it were not hiding something? This allegation goes too far. The government explained that it excluded Relators from its direct negotiations with Keiser because Relators' confidence of appellate reversal and adamant demand for billions of dollars would have impeded productive settlement negotiations. In any event, the United States did invite Relators' counsel to meet and discuss the proposed settlement after a tentative deal was reached with Keiser. Relators' counsel accepted the invitation and explained his objection to the notion of settling the case while on appeal. Nevertheless, the United States decided to go forward with its settlement with Keiser. Relators were thus hardly kept in the dark such that we could plausibly infer improper motives by the government.
Third, Relators allege that the United States did not read their opening brief on appeal before settling the case. Thus, in their view, the government could not have been adequately informed about the likelihood of success on appeal. But the United States had been monitoring the case closely while it proceeded through trial — it knew the facts and made its own informed conclusion about the law. In any event, before the government submitted the proposed settlement to the district court, the government lawyer responsible for the final settlement decision did read Relators' opening appellate brief. It thus stretches credulity to believe that the United States made so uninformed a decision that Relators are entitled to probe further with an evidentiary hearing.
In addition to the opportunity to develop evidence at a hearing, Relators requested discovery into the government's settlement rationale. They propounded interrogatories inquiring about each demand and offer made during negotiation of the proposed settlement, the government's evaluation of Relators' likelihood of success on appeal, the reasons the United States filed Statements of Interest after trial, and the identities of the government lawyers who participated in various aspects of the case. The district court shielded the United States from these requests, and we affirm that decision.
The FCA does not expressly entitle the objecting qui tam relator to discovery at all.
That being said, as with the evidentiary hearing, a district court has the equitable power to compel discovery when the relator demonstrates a substantial and particularized need for it. It is the relator's burden to come forward with a colorable and non-speculative claim that the government's settlement rationale is improper and that further disclosures are needed.
After trial, Relators sought over $1 million in attorneys' fees and almost $76,000 in litigation expenses. The district court determined, however, that Relators' limited trial victory warranted an across-the-board reduction in their total fee award to $60,000. Relators now object to that reduction.
In
The Supreme Court then decided
In spite of this direction from the Supreme Court, Relators ask us to limit
But Relators offer no authority that declines to apply
That brings us to one final issue. Relators contend that the district court abused its discretion in reducing the lodestar amount by over ninety-five percent to reach $60,000. That reduction, Relators insist, was outside the district court's admittedly broad range of discretion under our recent case,
In
We AFFIRM the district court on all issues.