INDIRA TALWANI, District Judge.
Plaintiff-Relator Ken Williams ("Relator"), a former City of Brockton police officer, brought this qui tam action against Defendants Brockton Police Department ("BPD") and the City of Brockton under the federal False Claims Act ("FCA"), 31 U.S.C. §§ 3729, 3730. Relator alleges that Defendants violated the FCA by applying for and accepting federal Community Oriented Policing Services ("COPS") grants while falsely certifying the BPD's intent to comply, and subsequent compliance, with various grant requirements, including Title VI, federal nondiscriminatory law enforcement practices, and other statutory, regulatory and contractual provisions. Am. Compl. ¶ 10 [#44].
Pending before the court is Defendants'
For the purposes of summary judgment, the court takes the following facts in the light most favorable to Relator, the non-moving party.
Relator was a police officer at the BPD from October 30, 1995, to November 12, 2010. Am. Compl. ¶ 15 [#44]; Answer ¶ 15 [#82].
COPS grants are administered by the Department of Justice ("DOJ") and provide federal funds to law enforcement to "reorient the mission and activities of law enforcement agencies through initiating community policing or enhancing [law enforcement agencies'] involvement in community policing." Defendants' Statement of Material Facts ("Defs.' Facts"), Ex. 3 ("2011 COPS Application") at 10 [#124-3].
The City of Brockton ("Brockton") and the BPD applied for COPS grants on April 13, 2009, and May 25, 2011. 2009 COPS Application [#124-4]; 2011 COPS Application [#124-3]. The applications sought funds to facilitate the hiring or rehiring of officers and to obtain assistance in implementing BPD programs that were under-resourced.
Both grant applications were also signed by former Chief of Police William Conlon and the Mayor at the time the application was submitted. Defs.' Facts ¶¶ 4-5 [#124]; Relator's Facts ¶¶ 4-5 [#125] (the 2009 grant was signed by former Mayor James Harrington, and the 2011 grant was signed by former Mayor Linda Balzotti). In signing the grant applications, Thibeault, Conlon, Harrington, and Balzotti each certified that the assurances made therein were true and accurate to the best of his or her knowledge, and that each signatory understood and would comply "with all [governing] legal and administrative requirements . . . ." Defs.' Facts ¶¶ 4-5 [#124]; Relator's Facts ¶¶ 4-6 [#125]; 2009 COPS Application 24, 30-31 [#124-4]; 2011 COPS Application 42, 49-50 [#124-3].
The grants required certification that participants would, "in compliance with applicable law, seek, recruit and hire qualified members of racial and ethnic minority groups and qualified women," and would not "on the ground of race, religion, national origin, gender, disability or age, unlawfully exclude any person from participation in, deny the benefits of or employment to any person, or subject any person to discrimination in connection with any programs or activities funded in whole or in part with federal funds." 2011 COPS Application 42 [#124-3]; 2009 COPS Application 24 [#124-4].
Defendants also certified that "under Title VI of the Civil Rights Act of 1964, [they would] ensure meaningful access to [their] programs and activities by persons with limited English proficiency." 2011 COPS Application 42 [#124-3]; 2009 COPS Application 24 [#124-4]. Specifically, the grants required that:
Relator's Facts, Ex. G ("Grant Manual") 17 [#125-7].
The 2009 and 2011 grants also included "nonsupplanting" requirements which mandated that grant funds could only be used to increase a grantee's law enforcement budget, and would not be used to replace local funds that the grantee would have otherwise spent on officer positions absent the grant. 2011 COPS Application 43 [#124-3]; 2009 COPS Application 18, 25 [#124-4]. The COPS grants mandated that "[i]n the event that any court or administrative agency makes a finding of discrimination on grounds of race, color, religion, national origin, gender, disability or age against the applicant after a due process hearing," applicants must forward a copy of the finding to the Office for Civil Rights at DOJ. 2009 COPS Application 24 [#124-4]; 2011 COPS Application 42 [#124-3]. Applicants were required to agree that they "may be audited or monitored to ensure that [they are] initiating or enhancing community policing." 2011 COPS Application 10 [#124-3].
BPD was awarded a COPS Hiring Recovery Program (CHRP) Grant on July 23, 2009 (#2009RKWX0401) and another CHRP Grant on September 30, 2011 (#2011UMWX0074). Defs.' Facts ¶¶ 2-3 [#124]; Defs.' Ex. 5 ("Sep. 30, 2011 Grant Award Letter") [#124-5]; Defs.' Ex. 6 ("July 28, 2009 Grant Award Letter") [#124-6]; Relator's Facts ¶¶ 2-3 [#125]. The 2009 and 2011 grant awards were intended to provide funding to BPD to hire law enforcement officers for the "advancement of public safety through an increase in their community policing capacity and crime prevention efforts." Relator's Facts ¶¶ 7-8 [#125]; Sep. 30, 2011 Grant Award Letter [#124-5]; July 28, 2009 Grant Award Letter [#124-6]. Among other substantive reporting requirements, Defendants were required to submit "quarterly financial and programmatic progress reports . . . ." July 28, 2009 Grant Award Letter [#124-6]; Relator's Facts ¶¶ 7-8 [#125]. The July 28, 2009 Grant Award letter noted that "each CHRP application was subject to a thorough review, and some of [the] application information may have been updated or corrected from the original version submitted to COPS." July 28, 2009 Grant Award Letter [#124-6]. The letter also noted that BPD and Brockton should revise their community policing plan if it "significantly changed" from the plan outlined in the application, and that "[s]imilarly, [Defendants] should contact the COPS Office if, for any reason, [they] need to reallocate [] awarded positions . . . ."
In January 2009, the Brockton City Solicitor found that Sergeant Lon Elliott of BPD had engaged in racially discriminatory conduct during an arrest. Relator's Facts ¶ 9, Ex. A ("City Solicitor Findings") [#125-1]. BPD never forwarded a copy of this finding to DOJ. Relator's Facts ¶ 9, Relator Decl. ¶ 23 [#125-2].
The record contains no findings by a court or administrative agency that BPD either violated Title VI or engaged in other discriminatory conduct that would violate the assurances made in the COPS grant applications. Defs.' Facts ¶¶ 9-10 [#124]; Relator's Facts ¶¶ 9-10 [#125]. No plaintiff has secured a court verdict against BPD for discrimination. Defs.' Facts ¶ 11 [#124]; Relator Decl. ¶ 8 [#125-2].
In the process of selecting and hiring job applicants, BPD draws from a "civil service list" that identifies "eligible applicants" who have taken a Civil Service exam. Thibeault Dep. 86:13-20 [#124-7]. Relator asserts that although applicants are initially "ranked by objective criteria," BPD then hires from that list in an "arbitrary process that prioritizes nepotism and penalizes members of racial and ethnic minority groups and women." Relator Decl. ¶ 8 [#125-2]. Thibeault testified that after receiving the 2009 COPS Grant, BPD hired twelve employees, after requesting a list of candidates from this civil service list. Thibeault Dep. 38:5-40:16 [#124-7].
At BPD, translators are available to assist individuals with limited English proficiency when such individuals come in to make a complaint, but translators do not generally assist in post-complaint investigations. Relator's Facts, Ex. D ("Teixeira Dep.") at 51:15-19 [#125-4]; Relator's Facts, Ex. E ("Leary Dep.") 54:22-56:2; 58:12-58:19 [#125-5].
At some point after receiving the grants, Thibeault created a program of volunteer translators. Thibeault Dep. 91:10-17 [#124-7]. Thibeault conceded that she did not think access to these volunteers was sufficient to provide access to individuals with limited English proficiency, but stated that she felt that it was "a start."
In April 2012, DOJ launched an audit into BPD's compliance with the "regulations, terms and conditions" of the 2009 COPS Grant. Relator's Facts ¶ 14 [#125]; Defs.' Facts ¶ 14 [#124]; Defs.' Ex. 2 (April 25, 2012, Letter re: Grant Monitoring) [#124-2]. Following the audit, which included an on-site visit, DOJ identified a "compliance issue for supplanting by reduction in force," and requested additional documentation regarding this issue. Defs.' Facts, Ex. 8 (July 23, 2012 Letter from DOJ COPS to Chief of Police Emanuel Gomes) 1 [#124-8]; Defs.' Facts, Ex. 9 (July 23, 2012 Reduction in Force Review) [#124-9]; Relator's Facts ¶ 16 [#125]. After Brockton and BPD provided additional information to DOJ investigators, DOJ "determined that the reduction-in-force does not violate the nonsupplanting requirement based on the fact that the [BPD] demonstrated that the reduction-in-force occurred for reasons unrelated to the receipts of COPS grant funding." Defs.' Facts, Ex. 10 (August 17, 2012, Reduction-in-Force Review — Notice of Compliance) [#124-10]; Relator's Facts ¶ 18 [#125].
Relator states that he has witnessed a pattern of discrimination within BPD and towards community members both before and after 2002, including the withholding of adequate medical care from injured minority prisoners and surveillance of community members. Relator Decl. ¶¶ 16-23 [#125-2].
In November 2012, Relator filed his qui tam complaint under the federal FCA against the City and BPD, and 100 unnamed "John Doe" co-conspirators. Compl. [#1]. The government declined to intervene on August 28, 2014.
Summary judgment is appropriate when "the movant shows that 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 dispute is `genuine' if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party."
When reviewing a motion for summary judgment, the court must take all properly supported evidence in the light most favorable to the nonmovant and draw all reasonable inferences in the nonmovant's favor.
The FCA imposes liability on "any person who . . . knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval." 31 U.S.C. § 3729(a). "[A]t the summary judgment stage, relators must produce competent evidence of an actual false claim made to the government."
"Although the archetypal qui tam FCA action is brought by a whistleblower employee who discovers that her private corporate employer has overcharged under a government contract, FCA claims have proceeded under numerous theories, including cases . . . alleg[ing] false certifications of compliance and violations of federal grant requirements."
"FCA liability . . . is [also] circumscribed by `strict enforcement of the Act's materiality and scienter requirements.'"
Relator asserts two grounds for liability under Counts I and II. First, Relator contends that the 2009 and 2011 grant applications contain false statements and that these statements are actionable under the FCA because the statements were made knowingly, and were material to DOJ's decision to award grants.
Second, Relator alleges that Defendants submitted false claims to the government by submitting quarterly certifications of compliance with grant requirements despite their alleged failure to comply with those requirements.
Relator asserts that Defendants' statements (made at the time of submission) that they intended to comply with the requirements of the grant are actionable because they were false as Defendants had no such intent, material to payments, and made the statements knowingly or in reckless disregard of their falsity. Relator asserts that Defendants made additional false statements on the 2011 grant application by falsely listing individuals as employed at BPD who were not actually employed at the time.
Defendants argue that FCA claims "predicated on an intent to comply in the future" cannot survive summary judgment. Defs.' Reply to Pl.'s Suppl. Br. [#148]. At the hearing, Relator agreed that a statement on a grant application, if true when made, could not give rise to liability under the False Claims Act, but asserted that there is legal precedent for the proposition that grant applications containing false statements may be actionable.
The court does not need to determine whether Relator's legal theory is plausible, because Relator has failed to proffer evidence to support Relator's assertion that Defendants' statements in the 2009 or 2011 grant applications about their intent to comply with those grants' conditions were false when made.
Where the factual question relates to an issue of fraudulent intent, the question of falsity and scienter are closely entwined.
Because Relator has failed to present evidence from which a reasonable jury could find that Defendants made a knowingly false statement when they certified their intent to comply with grant requirements, Relator's claim with respect to statements of intent to comply on the 2009 and 2011 grant applications fails.
Relator asserts that Defendants made false statements on the 2011 Grant Application by listing the names of police officers who were "no longer on the active payroll in the [2011] COPS grant application that was submitted to the federal government." Relator Decl. ¶¶ 14-15 [#125-2].
Relator's affidavit, based on personal knowledge, is the only source of evidence in the record as to the misrepresentations of officers on payroll. However, Relator was terminated from BPD in November 2010, and Defendants applied for the 2011 COPS grant in May 2011. Am. Compl. ¶ 15 [#44]. Relator does not provide any explanation for why he would have knowledge of the grant application after having left BPD. In the absence of such an explanation or another source of evidence, there is insufficient evidence in the record from which a jury could find that Defendants falsely represented on the 2011 grant application that certain police officers were working at BPD when they were not.
Aside from the grant applications, Relator asserts that Defendants submitted false claims in the form of progress reports certifying compliance with grant requirements. Although Defendants were required to submit such reports quarterly, only one report, covering the time period of April 1, 2013, through June 30, 2013, is in the record.
Relator argues that Defendants' failure to report in their progress reports the City Solicitor's finding that Sergeant Elliott had acting discriminatorily during a traffic stop rendered false Defendants' certification of compliance with reporting provision of the grants. Relator's Facts ¶ 9, Relator Decl. ¶ 23 [#125-2]; Relator's Ex. A ("Report of Hearing Officer") 1 [#125-1]. The COPS grants mandated that "[i]n the event that any court or administrative agency makes a finding of discrimination on grounds of race, color, religion, national origin, gender, disability or age against the applicant after a due process hearing," applicants must forward a copy of the finding to the Office for Civil Rights at DOJ. 2009 COPS Application 24 [#124-4]; 2011 COPS Application 42 [#124-3]. Relator has failed to show that a City Solicitor's finding amounts to a finding by a court or administrative agency. And even if that determination could be considered such a finding, it was released in January 2009, at least three months prior to Defendants' 2009 grant application,
Relator argues that Defendants violated the nonsupplanting provisions of the COPS Grant and failed to report that violation in the progress reports. Relator's Facts ¶ 2 [#125]. However, the record does not reflect evidence of non-supplanting violations during the 2013 Reporting Period, nor do the parties assert that any non-supplanting violations occurred during that period.
Relator alleges that Defendants failed to "seek, recruit and hire qualified members of racial and ethnic minority groups and qualified women" as required by the 2011 and 2009 grant applications, but falsely certified to having complied with this requirement in the 2013 Progress Report. 2011 COPS Application 42 [#124-3]; 2009 COPS Application 24 [#124-4]. Additionally, Relator asserts that Defendants falsely certified that they were complying with nondiscriminatory hiring practices when they certified that they would "seek, recruit, hire qualified members of racial and ethnic minority groups and qualified women." Relator's Facts ¶ 3 [#125].
Relator has not provided any information or data from which a jury could find that hiring at the BPD was not consistent with the goals of the COPS program. Relator asserts that Defendants hired candidates from a civil service list through an "arbitrary process that prioritizes nepotism and penalizes members of racial and ethnic minority groups and women." Relator Decl. ¶ 8 [#125-2]. Relator provided no information, however, about the racial, ethnic, or gender makeup of the police force or the civil service list, relying instead on his declaration that selection from a civil service list was done in a discriminatory manner, or least not a manner that would support the recruitment of minority candidates. Apart from Relator's assertions, the record does not reflect any evidence from which a jury could infer that BPD hired from the civil service list in a manner that did not affirmatively seek to hire ethnic and racial minorities and women.
"[D]eclarants must do more than simply claim a fact to be true," as the "purpose of summary judgment `is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit.'"
Relator also claims that Defendants failed to provide adequate translation services despite a grant provision requiring BPD to provide "meaningful access to its programs and activities by persons with limited English proficiency." 2011 Grant Application 42 [#124-3]. At most, however, the evidence in the record reflects that, prior to 2004, BPD did not endeavor to ensure translation services to individuals with limited English proficiency in post-complaint investigations, and that prior to 2010, Defendants forced such complainants to submit written complaints in English or denied such individuals access to translators.
Relator contends that Defendants falsely certified that they were not engaged in discriminatory policing practices. Again, the evidence proffered comes from Relator's personal experience witnessing discrimination, between 2002 and 2010, and testimony of community members such as Bishop Teixeira. The court does not discount the experiences of Relator and Bishop Teixeira. However, the court finds that no reasonable jury could conclude that Relator and Bishop Teixeira's experiences, both of which occurred before 2013, are sufficient to conclude Defendants were actively discriminating during the reporting period at issue.
Even if Relator could show that Defendants violated the FCA by falsely certifying that they were in compliance with the grant requirements, Relator would also need to show that Defendants made such certification with the required scienter. To satisfy the element of scienter, a relator need not show any "proof of specific intent to defraud,"
Relator asserts that Thibeault, as grant administrator, "did not take any affirmative steps to ensure" that the City was meeting its goals but rather, "merely assumed that Defendants were in compliance with its grant obligations before making such certifications and assurances to the government." Relator's Facts ¶ 7 [#125]. The only evidence supporting Relator's assertion is deposition testimony from Thibeault that "unless told otherwise there's any reason to believe that we're not doing this, then my assumption is we are compliant." Thibeault Dep. 61:20-22 [#124-7]. Defendants correctly note that this citation mischaracterizes Thibeault's testimony, as she later states that she checked in with the BPD Chief's Office through the course of the grant to ensure compliance. Thibeault Dep. 62:9-15 [#124-7]; Defs.' Resp. to Relator's Suppl. Facts ("Defs.' Suppl. Resp.") 6-7 ¶ 7 [#149]. Thibeault's testimony at most states that, although she generally assumed compliance unless she heard otherwise, she also periodically checked in with the Chief's Office regarding compliance. Thibeault Dep. 62:9-15 [#124-7]. An isolated, equivocal statement like the one in Thibeault's testimony is insufficient evidence from which a reasonable jury could infer that Defendants knowingly, or with reckless disregard, failed to comply with the grant requirements.
Defendants argue that they are also entitled to summary judgment on the grounds that the alleged false statements were not material.
For a misrepresentation about a requirement to be actionable under the FCA, the misrepresentation must be "material to the Government's payment decision."
Relator asserts that "the government expressly conditioned payment under the COPS grants on compliance with the nondiscrimination, non-supplanting, and hiring requirements articulated" in the grant application. Relator's Facts ¶ 5 [#125]. In
The issues in this case are nuanced. Defendants received a grant to improve community policing, and DOJ conditioned that grant on Defendants' compliance with certain regulatory, legal, and other requirements relating to improved community policing. The record reflects that community policing, and an active intent of the police department to actualize those goals, were critical to the grant's purpose.
In light of the grants' purpose of improving community policing, and not simply being a vehicle to supplement local police department budgets, the court finds likely that deliberate falsehoods about steps taken toward such improvements would be found to be material. But because Relator has not presented sufficient evidence from which a reasonable jury could find the alleged statements regarding BPD's efforts were false or made with knowing intent, the court need not finally resolve the materiality issue.
Count III alleges that "Defendants and Does 1-100 conspired to knowingly submit, or caused to be submitted, false or fraudulent claims, or false records or statements, to the United States to obtain Government grants, and to avoid re-payment or avoid penalties." Am. Compl. ¶¶ 209-15 [#44]. Although liability under the conspiracy prong of the FCA does not require proof of the actual presentment of a claim, it requires proof that a defendant "intended to defraud the government [by getting false claims paid]" and "that the false record or statement would have a material effect on the Government's decision to pay the false or fraudulent claim."
"[A] plaintiff asserting a claim under § 3729(a)(3) must show that the conspirators agreed to make use of the false record or statement to achieve this end."
For the foregoing reasons, Defendants'
IT IS SO ORDERED.
