USCA1 Opinion
February 4, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1549
SALVATORE A. CIMORELLI,
Plaintiff, Appellant,
v.
GENERAL ELECTRIC COMPANY,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
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Before
Cyr, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Evan T. Lawson with whom Caroline E. DeStefano and Lawson &
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Weitzen were on brief for appellant.
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Steven A. Kaufman with whom Clayton S. Marsh and Ropes & Gray
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were on brief for appellee.
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Per Curiam. Salvatore Cimorelli, a long-time former
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employee of General Electric Company, brought suit against GE
in 1989 under the False Claims Act, 31 U.S.C. 3729-33.
The gist of Cimorelli's complaint was that at GE aircraft
engine operations in Lynn, Massachusetts, GE employees had
altered pencilled labor records in order to shift labor
charges from government contracts that were over budget to
government contracts that were under budget. Similar
alterations were charged with respect to steam turbines made
by GE in Lynn. Cimorelli claimed that the alterations had
occurred from the early 1970s until around 1985.
The False Claims Act imposes civil penalties plus treble
damages for inter alia presenting a false or fraudulent claim
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to the federal government or using a false record or
statement to obtain payment or approval of a false or
fraudulent claim. Id. 3729(a). False Claims Act suits may
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be brought by private parties on behalf of the United States,
although government attorneys may take charge of the
litigation if the government so chooses. Id. 3730(b).
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Here, after reviewing the litigation, the federal government
declined to participate. Accordingly, the suit has been
conducted by Cimorelli who, if any recovery were obtained,
would share in it to the extent provided by the False Claims
Act. Id. 3730(c).
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The district court in December 1991 set a deadline for
discovery of May 29, 1992. Extensive discovery was conducted
by Cimorelli during the first half of 1992. GE says, without
dispute from Cimorelli, that it produced a vast number of
labor vouchers and other records. On the day the discovery
ended, Cimorelli filed various motions accusing GE of
hindering discovery. The motions were referred to a
magistrate judge who denied them in June 1992, and the
district court affirmed the magistrate judge in July 1992.
New discovery motions made by Cimorelli in August 1992 were
denied by the district court in September 1992.
In July 1992 GE moved for summary judgment, arguing
among other points that there was no evidence of any false
claim against the government, normally a critical element in
a suit under the False Claims Act. See United States v.
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McNinch, 356 U.S. 595, 598-600 (1958). In addition to
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seeking further discovery, Cimorelli opposed summary
judgment, relying centrally on deposition testimony of
Christy Chipouras, another former employee of GE at the Lynn
facility. Chipouras had given deposition testimony,
described below, and was apparently promised a share of
whatever reward Cimorelli might obtain.
On April 9, 1993, the district court granted GE's motion
for summary judgment and issued a memorandum setting forth
the court's reasons. The district court found that
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Chipouras' testimony was "largely conclusory, and fails to
identify specific incidents of voucher falsification which
can be linked to false claims against the government."
Accordingly, the court found that there would be insufficient
evidence to submit the case to a jury even on the premise,
which the court tentatively adopted, that Cimorelli need
prove his case only by a preponderance of the evidence (as
opposed to clear and convincing evidence). Cimorelli now
appeals the grant of summary judgment and the district
court's refusal to allow further discovery.
Reserving the discovery issue for later discussion, the
propriety of summary judgment turns on whether Cimorelli
pointed the district court to sufficient evidence to permit a
reasonable jury to find that a false or fraudulent claim was
presented to the federal government relating to the Lynn
aircraft engine or turbine operations. See Anderson v.
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Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Appellate
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review of the grant of summary judgment is plenary. Sarit v.
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U.S. Drug Enforcement Admin., 987 F.2d 10, 13 (1st Cir.),
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cert. denied, 114 S. Ct. 241 (1993). Inferences are normally
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drawn in favor of the party opposing summary judgment. Id.
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On the other hand, more than mere suspicion or speculation is
required to justify a trial. See Liberty Lobby, 477 U.S. at
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249-50.
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In this instance, Chipouras testified in general terms
that GE systematically charged labor costs to government
contracts when the labor had been expended on other
government contracts. This was accomplished in part, he
said, by having labor vouchers initially completed in pencil
and then having them altered by other personnel, including
Chipouras. He could remember only one specific mischarged
contract--a case in which time on a private contract was
charged instead to a federal government contract number--but
he said that alterations were widespread and systematic.
GE offered various benign explanations for preparing
labor vouchers initially in pencil and making later
alterations. We agree with Cimorelli that, if this issue
were dispositive, choosing between explanations might well be
an issue for a jury. However, we agree with GE and the
district court that whatever the explanation for pencilled
labor vouchers and later alterations, there is no evidence
whatever that any false or fraudulent claims were actually
presented to the government. Although Cimorelli charged
pervasive fraud and conducted extensive discovery, Cimorelli
was unable to point to proof of a single instance in which a
false or fraudulent claim was actually presented to the
federal government.
Perhaps where a contractor's record-keeping conduct is
unambiguously sinister, an inference might be drawn that the
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misconduct must have been translated into fraud. But in this
instance the objective conduct--namely, changes in pencilled
records--is ambiguous, despite the conclusory epithets
offered by Chipouras. Under these circumstances and on this
record, we agree that there was inadequate evidence for a
jury as to at least one critical element, namely, the actual
submission of false or fraudulent claims to the government.
We do not reach GE's further contentions that clear and
convincing evidence was the required standard of proof or
that Chipouras' testimony should be disregarded entirely
because it was improperly purchased.
Cimorelli counters the claim that evidence is lacking by
arguing that a negative inference should be drawn against GE
because it engaged in "suppression" of evidence during
discovery, and Cimorelli further argues that the district
court abused its discretion in failing to permit further
discovery and failing to hold an evidentiary hearing on
contested issues concerning GE's alleged discovery
misconduct. Cimorelli's opening brief included specific
claims that GE did not produce certain information requested
by Cimorelli and specific claims that GE deliberately removed
items sought by Cimorelli from boxes of materials actually
produced.
We think it unnecessary to discuss these allegations in
detail. In its answering brief, GE offered an extremely
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detailed refutation of these allegations, taking them one by
one. In answer to each one, it pointed to record materials
to support its version of events. For the most part, GE said
that the specific materials sought (1) were actually produced
by GE but overlooked by Cimorelli or (2) were nonresponsive
materials that did not have to be produced. GE responded in
similar detail to other allegations by Cimorelli concerning
supposed problems with the logistics of discovery.
On the face of this facially thorough refutation by GE,
we turned to Cimorelli's reply brief naturally expecting that
it would show where GE's version of events was wrong or at
least that factual disputes existed as to some, if not all,
of the GE explanations. Instead, the reply brief simply
ignored GE's detailed answers and confined itself to
discussing the standard of proof on the merits and the
admissibility of the Chipouras' allegedly purchased
testimony. If Cimorelli is not prepared to dispute GE's
answering brief by pointing out where it is wrong on the
discovery issues, we are certainly not going to undertake
that task ourselves. Cf. United States v. Innamorati, 996
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F.2d 456, 468 (1st Cir. 1993) (issues not briefed will not be
addressed).
Two further facts reinforce our sense that Cimorelli has
not been unjustly treated in relation to discovery. One is
that there is no indication that Cimorelli sought any
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extension of the discovery deadline until the day that the
discovery period expired. The second is that despite the
present claim that an evidentiary hearing should have been
held to resolve disputes pertaining to discovery, it appears
that Cimorelli never made such a request for an evidentiary
hearing to the district court. In sum, we have no basis for
finding that the district court abused its considerable
discretion in the management of discovery in this case.
Affirmed.
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