David Vatan v. Qtc Medical Services, Inc.

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 10 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DAVID VATAN, Relator; United States of No. 19-55305 America ex rel., D.C. No. Plaintiff-Appellant, 2:14-cv-08961-PA-SS v. MEMORANDUM* QTC MEDICAL SERVICES, INC.; LOCKHEED-MARTIN CORPORATION, Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding Submitted July 6, 2020** Seattle, Washington Before: NGUYEN and BUMATAY, Circuit Judges, and SIMON,*** District Judge.

In this False Claims Act action, David Vatan appeals from the district

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Michael H. Simon, United States District Judge for the District of Oregon, sitting by designation. court’s order granting summary judgment in favor of QTC Medical Services, Inc. (“QTC”). Our review is de novo. United States ex rel. Kelly v. Serco, Inc., 846 F.3d 325, 329 (9th Cir. 2017). We affirm.

1. Summary judgment was proper on Vatan’s False Claims Act claims because Vatan cannot establish a “false statement or fraudulent course of conduct” as required for liability under the Act. United States ex rel. Campie v. Gilead Scis., Inc., 862 F.3d 890, 899 (9th Cir. 2017) (quoting United States ex rel. Hendow v. Univ. of Phx., 461 F.3d 1166, 1174 (9th Cir. 2006)). Vatan argues that QTC falsely certified that the “entire claims folder” was reviewed when QTC’s analysts answered “yes” to that question on a checklist that was submitted with QTC’s requests for payment. Vatan contends that answering “yes” in response to this question was a false statement because QTC’s training guide instructed analysts that “through the process of elimination, the entire c[laims] file is reviewed.”

Contrary to Vatan’s claim, there is no evidence that the Department of Veteran Affairs expected QTC’s reviewers to review every page in order to truthfully answer “yes” to this question of the checklist. Indeed, it is undisputed that the Department instructed QTC that its reviewers need not review every page.

Vatan does not offer any evidence that anyone at the VA considered QTC’s use of a “process of elimination” to be inconsistent with answering “yes.” Simply put, nothing in the record indicates that analysts were required to review every page of every document in order to truthfully certify “yes” on this question. And the fact that the VA had a similar understanding suggests that such answers were not objective falsehoods. See United States ex rel. Lindenthal v. Gen. Dynamics Corp., 61 F.3d 1402, 1412 (9th Cir. 1995).1 2. Vatan also contends that QTC’s performance fell short of what was required by QTC’s contract with the VA. But Vatan’s allegations are not actionable under the False Claims Act because they are untethered to any specific false representation. See United States ex rel. Hopper v. Anton, 91 F.3d 1261, 1266 (9th Cir. 1996) (violation of a legal requirement does not by itself create liability under the False Claims Act). Vatan cannot establish liability by making generic complaints about the quality of QTC’s review and its alleged deviation from the “purpose” of the contract without pointing to any specific misrepresentation.2

3. Even if Vatan’s complaints about QTC’s performance under the contract were treated as a “worthless services” claim, summary judgment for QTC was still proper. United States ex rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1053 (9th Cir. 2001) (holding that “[i]n an appropriate case, knowingly billing for worthless services” may be actionable). QTC has shown that there is no genuine issue of fact as to whether its performance was deficient under the contract—let alone so deficient that it amounted to worthless services. All of the record evidence suggests that the VA was not only pleased with the work QTC did, but that it had no complaints whatsoever. Vatan offers no evidence to suggest that anyone, at the VA or QTC, thought that QTC’s performance was deficient.3 For the foregoing reasons, the district court correctly entered summary

False Claims Act under some circumstances, such as where the opinion is not honestly held by the doctor. Id. at 1117–19. That holding is irrelevant here given that Vatan affirmatively disclaimed any argument that analysts issued “false” opinions as to particular claim files. judgment in favor of QTC.

AFFIRMED.