On July 25, 2017, the Ninth Circuit dealt a harsh blow to two relators in their appeal of a False Claims Act judgment, dismissing it for lack of jurisdiction as untimely.

In the underlying case, U.S. ex rel. Hoggett v. University of Phoenix, the relators alleged that the University of Phoenix had continued to falsely certify compliance with the Higher Education Act’s “incentive compensation ban” following a prior False Claims Act settlement on the same issue. The district court dismissed their case with prejudice pursuant to the public disclosure bar. Following dismissal of the case, the relators moved under Rule 59(e) to alter or amend the judgment, requesting a stay pending the decision in a similar case before the Ninth Circuit.

When properly filed, Rule 59(e) motions toll the time period for filing a notice of appeal. Analyzing the substance (rather than form) of the relators’ motion, however, the Ninth Circuit found that the motion was improperly characterized, and that “Relators presented no ground upon which the district court could grant a motion to alter or amend the judgment.” As a result, the Ninth Circuit found that the deadline for a timely appeal had not been tolled, that the notice of appeal was untimely, and thus the Court lacked jurisdiction to consider it.

In its opinion, the Court listed multiple procedural moves that the relators could have taken to accomplish their objective of waiting for a decision in the other case pending before the Ninth Circuit before proceeding with arguing the merits of their appeal. Indeed, the Ninth Circuit was quite unsympathetic toward the relators’ failure to pursue a strategy that ensured they had filed a timely appeal, not hesitating to dismiss it for lack of jurisdiction.

A copy of the Ninth Circuit’s opinion can be found here.