Court of Appeal No. 05-2016 IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT UNITED STATES EX REL. JEFFREY E. MAIN Plaintiff/Appellant v. OAKLAND CITY UNIVERSITY founded by GENERAL BAPTISTS, INC. d/b/a OAKLAND CITY UNIVERSITY Defendant/Appellee On Appeal from the United States District Court for the Southern District of Indiana Evansville Division The Honorable Richard L. Young, Judge, Presiding Case No. 3:03-CV-71-RLY-WGH MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF OF AMERICAN COUNCIL ON EDUCATION AND CAREER COLLEGE ASSOCIATION IN SUPPORT OF DEFENDANT/APPELLEE'S PETITION FOR REHEARING AND REHEARING EN BANC GIBSON, DUNN & CRUTCHER LLP Timothy J. Hatch, Cal. Bar #165369 Bryan B. Arnold, Cal. Bar #151583 333 South Grand Avenue Los Angeles, California 90071-3197 Telephone: (213) 229-7000 Facsimile: (213) 229-7520 COUNSEL FOR AMICI CURIAE AMERICAN COUNCIL ON EDUCATION AND CAREER COLLEGE ASSOCIATION
Pursuant to Federal Rule of Appellate Procedure 29, American Council on Education ("ACE") and Career College Association ("CCA") respectfully moves this Court for leave to file the accompanying amici brief in support of Defendant's Petition for Rehearing and Rehearing En Banc. 1. ACE is a major coordinating body for the nation's higher education institutions. ACE's members and associates are comprised of approximately 1,800 non-profit, accredited colleges, universities and higher education-related associations, organizations and corporations. ACE's primary mission is to provide leadership in the area of higher education and to influence public policy on higher education issues through research, advocacy, and program initiatives. 2. CCA is a voluntary membership organization of private, postsecondary schools, institutes, colleges and universities that comprise the for-profit sector of higher education. CCA has over 1,200 member institutions that educate, prepare, and support over 1 million students each year for employment in more than 200 occupational fields. CCA member institutions graduate approximately one-half of the technically trained workers who enter the workforce in the United States each year. CCA provides leadership in the area of higher education and works to influence public policy on higher education issues. 3. Most of ACE and CCA member institutions participate in federal student financial assistance programs under Title IV of the Higher Education Act ("HEA"). The panel's decision in this matter has a direct bearing on the administration of these programs and the conditions under which all non-profit and for-profit educational institutions that participate in such programs may be subject to liability under the False Claims Act, 31 U.S.C. 3729 et. seq. Thus, ACE and CCA have an interest in these proceedings.
4. ACE and CCA seek permission to file the accompanying amici brief because the panel decision significantly expands the conditions under which a relator may maintain a FCA action against an educational institution for alleged violation of regulatory requirements applicable to these programs. Under the panel's decision, a relator can avoid dismissal by merely alleging in conclusory fashion that a defendant never intended to comply with its obligations. By applying such a low threshold, the panel's ruling is not only inconsistent with the requirements of F.R.C.P. 9(b), but could make it virtually impossible to dismiss a promissory fraud claim in the FCA or any other setting. In addition, the panel's decision is inconsistent with this Court's recent ruling requiring a relator asserting a false certification theory of FCA liability to establish that certification was a condition of government payment. United States ex rel. Gross v. AIDS Research Alliance-Chicago, 415 F.3d 601, 604 (7th Cir. 2005). The panel's decision would permit a relator to assert a FCA claim on a promissory fraud theory for virtually any violation of a requirement, regardless of how minor the violation or tenuous the nexus between the requirement and the government's decision to provide financial aid to a student. As a result, the decision would allow relators to use the FCA as a means of enforcing compliance with Title IV, HEA requirements contrary to the established law of this Circuit. 2
Accordingly, ACE and CCA respectfully request that this Court grant ACE and CCA leave to file the accompanying amici brief in support of the Defendant's Petition for Rehearing and Rehearing En Banc. DATED: November 10, 2005 GIBSON, DUNN & CRUTCHER LLP Timothy J. Hatch Bryan B. Arnold Timothy J. Hatch ATTORNEYS FOR AMICI CURIAE AMERICAN COUNCIL ON EDUCATION AND CAREER COLLEGE ASSOCIATION 3
CERTIFICATE OF SERVICE Pursuant to Fed. R. App. P. 25, I certify that I am an employee of GIBSON, DUNN & CRUTCHER LLP and that on this day I caused to be served, via UPS Next Day Air at Los Angeles, California, two true copies of MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF OF AMERICAN COUNCIL ON EDUCATION AND CAREER COLLEGE ASSOCIATION IN SUPPORT OF DEFENDANT/APPELLEE'S PETITION FOR REHEARING AND REHEARING EN BANC upon counsel: TO: Jonathan D. Tarnow Drinker Biddle & Reath LLP 1500 K Street, NW - Suite 1100 Washington, DC 20005 Lane C. Siesky, Esq. Barber, Shoulders & Siesky LLP 123 NW Fourth Street, Suite 402 Evansville, IN 47708 Erin Reilly Lewis, Esq. U.S. Attorneys Office 10 W. Market Street Suite 2100 Indianapolis, IN 46204 Peter D. Keisler, Esq. Susan W. Brooks, Esq. Charles W. Scarborough, Esq. Civil Division, Appellate Section United States Department of Justice 950 Pennsylvania Ave., N.W., Room 7244 Washington, D.C. 20530 DATED this 9th day of November, 2005. 10906420_1.DOC By Lisa M. Molina