Derek Hoggett v. University of Phoenix, 863 F.3d 1105

Background

UOPX (University of Phoenix/Apollo Group) settled a prior qui tam FCA suit (Hendow) for $67.5M covering March 1997–Dec. 11, 2009, without admitting wrongdoing.
Relators Hoggett and Good were UOPX enrollment counselors during portions of that period and filed a new qui tam complaint on Sept. 15, 2010, alleging UOPX continued to violate the recruiter incentive-compensation ban after the Hendow settlement period.
The government declined to intervene in Relators’ suit.
The district court dismissed the complaint with prejudice on July 24, 2014, under the FCA public-disclosure bar, and Relators filed a post-judgment motion styled as a Rule 59(e) motion seeking a stay pending this court’s decision in Lee v. Corinthian Colleges.
The district court denied the post-judgment motion on Nov. 18, 2014; Relators filed a notice of appeal on Dec. 14, 2014.
The Ninth Circuit held the appeal untimely because the post-judgment filing was, in substance, a motion to stay (which does not toll the appeal clock) rather than a true Rule 59(e) motion to alter or amend the judgment.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Relators’ post-judgment filing tolled the 30-day appeal clock under FRAP 4(a)(4)(A) by qualifying as a Rule 59(e) motion	The filing was a Rule 59(e) motion filed within 28 days and therefore tolled the appeal period	The filing was only a request to stay the judgment pending Lee and thus did not toll the appeal period	The filing was substantively a stay motion, not a Rule 59(e) motion; it did not toll the appeal clock, so the notice of appeal was untimely
Whether the court should construe motion by its form or substance for tolling purposes	Title and timing are controlling; it was filed as a Rule 59(e) so tolling applies	Substance controls; courts look beyond labels to the relief requested	Substance controls; court examines relief sought and denied tolling where no request to alter merits was made
Whether attaching an amicus brief (from Lee) constituted new authority or grounds to alter the judgment	The attached amicus brief raised contested, pertinent arguments that could justify reconsideration	A brief is not legal authority and Relators failed to explain how it showed error or an intervening change in law	Attaching a brief does not supply new legal authority or grounds for Rule 59(e) relief; it did not make the motion one to alter the judgment
Whether the appellate court has jurisdiction over late appeal	Relators argued their post-judgment filing tolled the appeal period so appeal was timely	UOPX argued the notice of appeal was filed too late because no tolling occurred	Appeal dismissed for lack of jurisdiction as notice of appeal was filed nearly four months late

Key Cases Cited

United States ex rel. Lee v. Corinthian Colls., 655 F.3d 984 (9th Cir. 2011) (discussion of HEA recruiter-incentive compensation ban and safe harbor)
Eisenstein v. City of New York, 556 U.S. 928 (2009) (deadline for filing notice of appeal in non-intervened qui tam cases)
Miller v. Transamerican Press, Inc., 709 F.2d 524 (9th Cir. 1983) (look to substance, not label, of postjudgment motions)
Osterneck v. Ernst & Whinney, 489 U.S. 169 (1989) (Rule 59(e) relates to reconsideration of merits)
Buchanan v. Stanships, Inc., 485 U.S. 265 (1988) (postjudgment motions not affecting merits are not Rule 59(e) motions)
Bordallo v. Reyes, 763 F.2d 1098 (9th Cir. 1985) (timely notice of appeal is jurisdictional; substantive change of mind required for Rule 59(e))
Haight v. Catholic Healthcare W., 602 F.3d 949 (9th Cir. 2010) (untimely appeal deprives court of jurisdiction)
Munden v. Ultra-Alaska Assocs., 849 F.2d 383 (9th Cir. 1988) (courts will not artificially construe motions to preserve appeals)
Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857 (9th Cir. 1979) (trial courts may stay proceedings pending related matters to promote efficient docket management)