United States Ex Rel. Kelly v. Serco, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES EX REL. DARRYN No. 14-56769
KELLY,
Plaintiff-Appellant, D.C. No.
3:11-cv-02975-
v. WQH-RBB

SERCO, INC., a New Jersey
Corporation, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding

Argued and Submitted October 19, 2016
Pasadena, California

Filed January 12, 2017

Before: Richard C. Tallman, Barrington D. Parker, Jr., *
and Morgan B. Christen, Circuit Judges.

Opinion by Judge Tallman

*
Senior United States Circuit Judge for the U.S. Court of Appeals
for the Second Circuit, sitting by designation.
2 UNITED STATES EX REL. KELLY V. SERCO

SUMMARY **

False Claims Act

The panel affirmed the district court’s summary
judgment in favor of the defendant in an action under the
False Claims Act.

The plaintiff alleged that his former employer Serco,
Inc., a technology and project management services
provider, submitted fraudulent claims for payment to the
United States for work done under a government contract.
The Department of Defense, Navy Space and Naval Warfare
Systems Command (SPAWAR), contracted with Serco for
work on the Advanced Wireless Systems Spectrum
Relocation Project, a project to upgrade the wireless
communications systems situated along the United States-
Mexico border for the Department of Homeland Security,
Customs and Border Protection (DHS). The interagency
contract between SPAWAR and DHS required SPAWAR to
implement a cost and progress tracking system known as an
earned value management (EVM) system. The services
provided by Serco were covered under its Naval Electronic
Surveillance Systems contract with SPAWAR.

The panel affirmed the district court’s summary
judgment on a claim that Serco submitted false or fraudulent
claims for payment under an implied false certification
theory of liability under the False Claims Act. The panel
applied Universal Health Servs., Inc. v. United States ex rel.
Escobar, 136 S. Ct. 1989 (2016), which held that a
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 UNITED STATES EX REL. KELLY V. SERCO 3

government contract need not expressly designate a
requirement as a condition of payment in order to trigger
liability under the theory of implied certification. Instead,
what matters is whether the defendant knowingly violated a
requirement that it knew was material to the government’s
payment decision. To establish liability, the defendant’s
claim for payment must make specific representations about
the goods or services provided, and the defendant’s failure
to disclose material statutory, regulatory, or contractual
requirements must make those representations misleading
half-truths. The panel held that the plaintiff did not satisfy
the standard for materiality set forth in Escobar because
there was no genuine issue of material fact as to the
materiality of Serco’s compliance with the American
National Standards Institute/Electronic Industries Alliance
Standard 748 (ANSI-748) or its obligation to provide valid
EVM reports.

The panel also affirmed the district court’s summary
judgment on claims that Serco violated the False Claims Act
by making false records material to a false or fraudulent
claim, conspired to violate the False Claims Act, wrongfully
retained overpayments, and wrongfully terminated the
plaintiff in violation of public policy under California state
law.

COUNSEL

Derek J. Emge (argued), Emge & Associates, San Diego,
California, for Plaintiff-Appellant.

Francis J. Burke, Jr. (argued), Foley & Lardner LLP, San
Francisco, California; James M. Harris and Daniel P.
4 UNITED STATES EX REL. KELLY V. SERCO

Wierzba, Seyfarth Shaw LLP, Los Angeles, California; for
Defendant-Appellee.

OPINION

TALLMAN, Circuit Judge:

Relator Darryn Kelly brought this qui tam action under
the False Claims Act (FCA), 31 U.S.C. §§ 3729–3733,
against his former employer, Serco, Inc., a technology and
project management services provider, alleging that Serco
submitted fraudulent claims for payment to the United States
for work done under a government contract. Kelly also
asserted claims for wrongful termination under California
law. The district court granted Serco’s motion for summary
judgment on all of Kelly’s claims. We affirm.

I

In 2007, Serco was awarded a $62 million, three-year
contract by the Department of Defense, Navy Space and
Naval Warfare Systems Command (SPAWAR) to provide
project management, engineering design, and installation
support services for a range of government projects. 1 The
Naval Electronic Surveillance Systems (NESS) Contract
was a type of contract that “provides for an indefinite
quantity, within stated limits, of supplies or services during
a fixed period.” 48 C.F.R. § 16.504(a). Pursuant to the
NESS Contract, SPAWAR submitted individual Delivery

1
SPAWAR is the Navy’s information systems and acquisition
command. It designs, develops, and sustains communications and
information systems for the United States military and federal agencies.
 UNITED STATES EX REL. KELLY V. SERCO 5

Orders to Serco that detailed the specific work Serco was to
perform.

In 2008, the Department of Homeland Security, Customs
and Border Protection (DHS) entered into an interagency
contract with SPAWAR to upgrade the wireless
communications systems situated along the United States-
Mexico border. This project became known as the
Advanced Wireless Systems Spectrum Relocation Project
(AWS Project). The contract required SPAWAR to
implement a cost and progress tracking system known as an
earned value management system (EVMS), “a project
management tool that effectively integrates the project scope
of work with cost, schedule and performance elements for
optimum project planning and control.” 48 C.F.R. § 2.101.

SPAWAR, in turn, subcontracted with Serco to purchase
the necessary equipment, perform non-construction
upgrades, and provide project management services for the
AWS Project. Because these services were covered under
the NESS Contract, SPAWAR issued Delivery Orders
#0049 and #0054 to Serco under the NESS Contract
detailing the work that Serco was to perform on the AWS
Project. 2 Delivery Orders 49 and 54 provided for different
periods of performance from September 2009 to January
2012, but were nearly identical in all other respects. Each
Delivery Order contained a Statement of Work (SOW) that
required Serco to provide project management and cost
reports to SPAWAR, including EVM reports, “in
accordance with the attached CDRLs [Contract Data
Requirements Lists].” The attached CDRLs specified:

2
Although Serco worked on the AWS Project under other Delivery
Orders as well, Delivery Orders 49 and 54 are the only ones at issue in
this appeal.
6 UNITED STATES EX REL. KELLY V. SERCO

“Contractor [Serco’s] format acceptable. Create reports
using MS Office Applications.”

Serco’s employees manually recorded their hours on
Serco’s internal accounting system using a single charge
code for all tasks they performed on the AWS Project. Serco
then compiled the time entries into Microsoft (MS) Excel
spreadsheets to create monthly cost reports that it sent to
SPAWAR. In January 2010, Serco informed SPAWAR that
it could not automate its accounting system or accommodate
the thousands of AWS Project task line-items that SPAWAR
used in the reports it sent to DHS under its interagency
contract. SPAWAR advised Serco that it would accept
Serco’s monthly cost reports on MS Excel spreadsheets
using information that Serco employees tracked and
compiled manually. SPAWAR also advised that DHS was
aware of Serco’s cost tracking format and had approved it.

Serco hired Kelly as an EVM analyst in October 2009 to
monitor Serco’s performance on the AWS Project and
identify any cost or schedule overruns. In April 2011, Kelly
informed DHS that Serco’s monthly cost reports were
unreliable because they tracked costs manually and with a
single charge code in violation of the guidelines in the
American National Standards Institute/Electronic Industries
Alliance Standard 748 (ANSI-748). Kelly also informed
DHS that Serco was falsifying its monthly reports to make
its actual costs match the expected budget for the AWS
Project. That same month, DHS and SPAWAR determined
that EVM reports were no longer necessary or cost-justified
for the AWS Project. SPAWAR directed Serco to reduce the
number of EVM analysts working on the AWS Project.
Kelly’s supervisors at Serco, unaware of his recent report to
DHS, terminated Kelly in May 2011. Following his
termination, Kelly’s position no longer existed at Serco.
 UNITED STATES EX REL. KELLY V. SERCO 7

Kelly filed suit against Serco as a qui tam relator under
the FCA, asserting the following claims for relief:
(1) submitting false claims for payment in violation of the
FCA under a theory of implied false certification, (2) making
false records material to a false or fraudulent claim in
violation of the FCA, (3) conspiring to violate the FCA,
(4) retention of overpayments in violation of the FCA, and
(5) unlawful termination in violation of public policy under
California common law. 3

The district court granted summary judgment in favor of
Serco on all of Kelly’s claims. The district court also denied
as moot Serco’s motion to strike the opinion and deposition
testimony of Kelly’s expert, Kevin Martin, on whether
Serco’s compliance with ANSI-748 was incorporated by
reference into the Delivery Orders and whether Serco’s
internal system was capable of complying with ANSI-748.
This timely appeal followed.

II

We have jurisdiction to review the district court’s grant
of summary judgment under 18 U.S.C. § 1291. Strategic
Diversity, Inc. v. Alchemix Corp., 666 F.3d 1197, 1205 (9th
Cir. 2012). “We review de novo the district court’s grant of
summary judgment.” Id. “Viewing the evidence in the light
most favorable to the nonmoving party, we must determine
whether there are genuine issues of material fact and whether
the district court correctly applied the relevant substantive
law.” Id. (quotation marks omitted). “[T]he mere existence
3
Kelly asserted other state-law claims challenging his termination,
but they are deemed waived for purposes of this appeal because he failed
to raise them in his opening brief. See Smith v. Marsh, 194 F.3d 1045,
1052 (9th Cir. 1999) (“[O]n appeal, arguments not raised by a party in
its opening brief are deemed waived.”).
8 UNITED STATES EX REL. KELLY V. SERCO

of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue
of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247–48 (1986). “If the evidence is merely colorable, or
is not significantly probative, summary judgment may be
granted.” Id. at 249–50 (citations omitted).

“To survive summary judgment, the relator must
establish evidence on which a reasonable jury could find for
the plaintiff.” United States ex rel. Aflatooni v. Kitsap
Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002)
(citation and alterations omitted). “If the facts make a claim
‘implausible,’ the non-movant must present ‘more
persuasive evidence than would otherwise be necessary’ in
order to defeat a summary judgment motion.” United States
ex rel. Anderson v. N. Telecom, Inc., 52 F.3d 810, 815 (9th
Cir. 1995). “The district court’s grant of summary judgment
may be affirmed if it is supported by any ground in the
record, whether or not the district court relied upon that
ground.” Summers v. Teichert & Son, Inc., 127 F.3d 1150,
1152 (9th Cir. 1997).

“The district court’s exclusion of evidence in a summary
judgment motion is reviewed for an abuse of discretion.”
Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir.
2002) (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141
(1997)). Thus, “we must affirm the district court unless its
evidentiary ruling was manifestly erroneous and
prejudicial.” Id. (citing Joiner, 522 U.S. at 142).

III

Kelly’s principal contention on appeal is that the district
court erroneously granted summary judgment on his FCA
claim alleging that Serco submitted false or fraudulent
 UNITED STATES EX REL. KELLY V. SERCO 9

claims for payment under an implied false certification
theory of liability. See 31 U.S.C. § 3729(a)(1)(A). The
FCA’s qui tam provision permits a private person (known as
a “relator”) to bring a civil action on behalf of the United
States against any individual or company who has
knowingly presented a false or fraudulent claim for payment
to the United States. Id. § 3730(b); see id. § 3729(a)(1)(A)
(imposing civil liability on “any person who . . . knowingly
presents, or causes to be presented, a false or fraudulent
claim for payment or approval”). 4 The FCA encourages
insiders to disclose fraud by awarding successful qui tam
plaintiffs a portion of any judgment, plus reasonable
attorneys’ fees and costs. Id. § 3730(d).

Under the implied false certification theory advanced by
Kelly, a defendant’s act of submitting a claim for payment
“impliedly certifies compliance with all conditions of
payment.” Universal Health Servs., Inc. v. United States ex
rel. Escobar, 136 S. Ct. 1989, 1995 (2016). The district
court determined that “it is only possible for a claimant to
implicitly certify compliance with a law, rule, or regulation
if there is a relevant ‘statute, rule, regulation, or contract’ in
place that conditions payment of the claim on compliance
with that underlying law, rule or regulation.” It therefore
analyzed whether any statute, regulation, or contractual
provision conditioned Serco’s right to payment on its
compliance with ANSI-748.

The Federal Acquisition Regulation (FAR) provides that
government contracts that require a contractor to use an

4
“In practice, the phrase [qui tam] means ‘an action under a statute
that allows a private person to sue for a penalty, part of which the
government or some specified public institution will receive.’”
Aflatooni, 314 F.3d at 997 n.1 (citation omitted).
10 UNITED STATES EX REL. KELLY V. SERCO

EVMS must include a form clause stating that the EVMS
shall comply with ANSI-748. 48 C.F.R. §§ 34.203(c),
52.234-4(a). Similarly, the Defense Federal Acquisition
Regulation Supplement (DFARS) provides that government
contracts valued at $20 million or more must include a form
clause stating that the contractor shall use an EVMS that
complies with ANSI-748. Id. §§ 234.203(2), 252.234-
7002(b)(1). It is undisputed here that the NESS Contract and
Delivery Orders 49 and 54 do not contain or incorporate by
reference the FAR or DFARS form clauses requiring
compliance with ANSI-748.

Instead, the NESS Contract incorporated the form clause
in 48 C.F.R. § 52.232-1, which provides that “[t]he
Government shall pay the Contractor [Serco], upon the
submission of proper invoices or vouchers, the prices
stipulated in this contract for supplies delivered and accepted
or services rendered and accepted.” Although the Delivery
Orders referenced ANSI-748 under a list of “Applicable
Documents,” significantly both orders provided that, “[i]n
the event of a conflict between the text of [the Delivery
Order] and the applicable document cited herein, the text of
[the Delivery Order] should take precedence.” The Orders’
terms required Serco to deliver its project management
reports in accordance with the attached CDRLs, which
provided that Serco’s own format and its use of Microsoft
Office applications—including Excel spreadsheets—to
create the reports were acceptable.

In granting summary judgment for Serco, the district
court concluded that Kelly’s implied false certification claim
failed as a matter of law because “there is no regulation that
expressly conditions payment for the vouchers . . . on
[Serco’s] compliance with ANSI 748,” and “neither the
NESS Contract nor the Delivery Orders require[d]
 UNITED STATES EX REL. KELLY V. SERCO 11

compliance with ANSI 748 as a condition of payment by the
government.” It further held that, at best, any implied
contractual requirement in the Delivery Orders that
conditions Serco’s payment on compliance with ANSI-748
“is not a false claim, but a breach of contract.”

Kelly argues on appeal that the district court applied the
wrong legal standard by analyzing whether the underlying
regulations or Delivery Orders expressly conditioned
Serco’s payment on its compliance with ANSI-748. The
proper analysis, Kelly argues, is whether Serco’s failure to
disclose that its data was falsified and that its EVM reports
did not comply with ANSI-748 was material to the
government’s payment decision.

A

At the time of the district court’s ruling, federal circuits
were split on whether an implied false certification theory
under the FCA requires that payment be expressly
conditioned on a defendant’s compliance with a statutory,
regulatory, or contractual requirement. See United States ex
rel. Kelly v. Serco, Inc., Civ. No. 11-2975 WQH RBB, 2015
WL 1191280, at *3 (S.D. Cal. Mar. 16, 2015). Recently,
however, the Supreme Court clarified the circumstances
supporting FCA liability under an implied false certification
theory. Escobar, 136 S. Ct. at 1996.

In Escobar, the Supreme Court rejected the contention
that a government contract or regulation must expressly
designate a requirement as a condition of payment in order
to trigger liability under the theory of implied certification.
Id. The Court reasoned that “concerns about fair notice and
open-ended liability ‘can be effectively addressed through
strict enforcement of the Act’s materiality and scienter
requirements,’” which “are rigorous.” Id. at 2002 (quoting
12 UNITED STATES EX REL. KELLY V. SERCO

United States v. Science Applications Int’l Corp., 626 F.3d
1257, 1270 (D.C. Cir. 2010) (SAIC)). 5 Instead, the Supreme
Court held:

False Claims Act liability for failing to
disclose violations of legal requirements does
not turn upon whether those requirements
were expressly designated as conditions of
payment. Defendants can be liable for
violating requirements even if they were not
expressly designated as conditions of
payment. Conversely, even when a
requirement is expressly designated a
condition of payment, not every violation of
such a requirement gives rise to liability.
What matters is not the label the Government
attaches to a requirement, but whether the
defendant knowingly violated a requirement
that the defendant knows is material to the
Government’s payment decision.

Id. at 1996.

The Court further held that “the implied certification
theory can be a basis for liability, at least where two
conditions are satisfied: first, the claim does not merely

5
The FCA’s scienter requirement defines “knowing” and
“knowingly” to mean that a person has “actual knowledge of the
information,” “acts in deliberate ignorance of the truth or falsity of the
information,” or “acts in reckless disregard of the truth or falsity of the
information.” 31 U.S.C. § 3729(b)(1)(A). We need not analyze scienter
here because Kelly’s implied false certification claim fails on other
grounds. Nevertheless, “[f]or a qui tam action to survive summary
judgment, the relator must produce sufficient evidence to support an
inference of knowing fraud.” N. Telecom, Inc., 52 F.3d at 815.
 UNITED STATES EX REL. KELLY V. SERCO 13

request payment, but also makes specific representations
about the goods or services provided; and second, the
defendant’s failure to disclose noncompliance with material
statutory, regulatory, or contractual requirements makes
those representations misleading half-truths”—i.e.,
“representations that state the truth only so far as it goes,
while omitting critical qualifying information.” Id. at 2000–
01 (emphasis added).

B

Kelly argues that Serco’s compliance with ANSI-748
was an implied condition of its right to payment under
Delivery Orders 49 and 54 because the Delivery Orders
required Serco to deliver EVM reports, ANSI-748 is the only
industry standard for EVM reporting, and the Delivery
Orders referenced ANSI-748 under “Applicable
Documents.” Thus, Kelly contends, Serco’s submission of
its public vouchers for the Delivery Orders constituted an
implied false certification that its deliverables met ANSI-
748 guidelines and were not falsified.

Even assuming that Serco’s compliance with ANSI-748
was a condition of payment for its work under Delivery
Orders 49 and 54, Kelly’s implied false certification claim
nonetheless fails as a matter of law. First, there is no
evidence that Serco’s public vouchers made any specific
representations about Serco’s performance. See Escobar,
136 S. Ct. at 2001. Serco submitted forty-seven public
vouchers totaling over $5.5 million to the Department of
Defense for its work under Delivery Orders 49 and 54. Each
voucher was submitted on U.S. Standard Form 1034 and
provided the period of performance, total costs incurred
during that period, and Serco’s fee applicable to that work.
Each voucher also included a continuation sheet listing
the dollar amounts for Serco’s costs for labor, travel,
14 UNITED STATES EX REL. KELLY V. SERCO

and materials. Serco additionally submitted backup
documentation for each voucher, which included its internal
project status reports containing even more detailed line-
item descriptions of its services and total hours and costs.

Serco’s vouchers each contained a single express
certification that the services listed in them were performed
during the time periods stated. Contrary to Kelly’s
contention that “Serco was paid predominately for its work
delivering what the government thought was a valid EVM
rather than for work [upgrading] the 85 border towers,” most
of the costs for which Serco’s vouchers sought payment
were for the software and hardware needed to upgrade the
AWS, for travel to the cell towers to perform the upgrades,
and for the labor costs of at least thirty employees. There is
no evidence that these employees failed to do the work for
which SPAWAR had contracted.

Second, there is no evidence that Serco’s public
vouchers contained any false or inaccurate statements.
Kelly’s dispute here is over the format that Serco used to
report costs incurred. Even viewing Kelly’s evidence of
Serco’s allegedly fraudulent cost reporting in the light most
favorable to Kelly, his FCA claim fails because the FCA
“attaches liability, not to the underlying fraudulent activity
or to the government’s wrongful payment, but to the ‘claim
for payment’”—here, Serco’s public vouchers. Cafasso v.
Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir.
2011) (citation omitted); see Aflatooni, 314 F.3d at 1002
(“The False Claims Act . . . focuses on the submission of a
claim, and does not concern itself with whether or to what
extent there exists a menacing underlying scheme.”); United
States ex rel. Hendow v. Univ. of Phx., 461 F.3d 1166, 1173
(9th Cir. 2006) (“[F]or a false statement or course of action
to be actionable . . ., it is necessary that it involve an actual
 UNITED STATES EX REL. KELLY V. SERCO 15

claim . . . .”). As we have previously stated, “an actual false
claim is the sine qua non of an FCA violation.” Cafasso,
637 F.3d at 1055 (citation and alterations omitted).

Finally, “[a] misrepresentation about compliance with a
statutory, regulatory, or contractual requirement must be
material to the Government’s payment decision in order to
be actionable under the False Claims Act.” Escobar, 136 S.
Ct. at 1996. Courts can properly dismiss an FCA claim on
summary judgment based on a claimant’s failure to meet the
rigorous standard for materiality under the FCA. Id. at 2004
n.6. In Escobar, a unanimous Supreme Court clarified how
rigorously the FCA’s materiality requirement must be
enforced:

The materiality standard is demanding. The
False Claims Act is not “an all-purpose
antifraud statute” or a vehicle for punishing
garden-variety breaches of contract or
regulatory violations. A misrepresentation
cannot be deemed material merely because
the Government designates compliance with
a particular statutory, regulatory, or
contractual requirement as a condition of
payment. Nor is it sufficient for a finding of
materiality that the Government would have
the option to decline to pay if it knew of the
defendant’s noncompliance. Materiality, in
addition, cannot be found where
noncompliance is minor or insubstantial.

Id. at 2003 (citation omitted); see also SAIC, 626 F.3d at
1271 (“By enforcing [the materiality] requirement
rigorously, courts will ensure that government contractors
will not face ‘onerous and unforeseen FCA liability’ as the
16 UNITED STATES EX REL. KELLY V. SERCO

result of noncompliance with any of ‘potentially hundreds of
legal requirements’ established by contract. Payment
requests by a contractor who has violated minor contractual
provisions that are merely ancillary to the parties’ bargain
are neither false nor fraudulent.”). We think Kelly’s theory
of liability falters on these shoals.

C

Kelly nonetheless argues that Serco’s omissions were
material because the government relied on Serco’s reports to
manage the AWS Project and its budget. Kelly states that,
“[i]f Serco had disclossed [sic] that it did not have a
compliant EVMS or that its EVM reports were fraudulent, it
is doubtful Serco’s payment vouchers would have been
paid.” In Escobar, the Supreme Court rejected a view that
the test for materiality “is whether the person knew that the
government could lawfully withhold payment.” Escobar,
136 S. Ct. at 2004 (citation omitted). The Supreme Court
held that “[t]he False Claims Act does not adopt such an
extraordinarily expansive view of liability,” and evidence
that the government “would be entitled to refuse payment
were it aware of the violation” is insufficient by itself to
support a finding that the violation is material to the
government’s payment decision. Id. Likewise, here, the
possibility that the government would be entitled to refuse
payment if it were aware of Serco’s alleged violations is
insufficient by itself to support a finding of materiality.

Further, the Supreme Court held that, “if the Government
pays a particular claim in full despite its actual knowledge
that certain requirements were violated, that is very strong
evidence that those requirements are not material.” Id. at
2003. “Or, if the Government regularly pays a particular
type of claim in full despite actual knowledge that certain
requirements were violated, and has signaled no change in
 UNITED STATES EX REL. KELLY V. SERCO 17

position, that is strong evidence that the requirements are not
material.” Id. at 2003–04.

Here, it is undisputed that compliance with ANSI-748
was not an express term in Delivery Orders 49 and 54. It is
also undisputed that the CDRLs governing Serco’s
performance under those Delivery Orders provided for EVM
reports in “contractor format” using Microsoft Office
applications, which is what Serco delivered. It is further
undisputed that SPAWAR—through its AWS Project
Manager, John Mitchell, who in turn received DHS’s
agreement—agreed that Serco could provide its reporting on
MS Excel spreadsheets using manually tracked and
compiled data rather than an EVM system. And it is
undisputed that SPAWAR accepted monthly cost reports
from Serco that utilized a single task charge code. In
addition, it is undisputed that Serco periodically submitted
public vouchers and received payment for its work on the
AWS Project under both Delivery Orders.

Of particular importance here, it is undisputed that
SPAWAR did not find Serco’s EVM reports helpful and did
not use them to manage the AWS Project. SPAWAR
considered EVM “very hard to manage and hard to do,” and
requiring a lot of work, time, and money. In April 2011,
DHS and SPAWAR eliminated the EVM requirement
because it provided minimal benefit and was not cost-
justified. In addition, DHS and SPAWAR recognized that
the Department of Defense’s 2005 Revision to its EVM
Policy discouraged EVM for “level of effort” work, which
was the type of work that Serco’s reporting team did here.
On those grounds, SPAWAR directed Serco to reduce the
number of EVM analysts working on the AWS Project,
resulting in Kelly’s layoff.
18 UNITED STATES EX REL. KELLY V. SERCO

Kelly has failed to establish a genuine issue of material
fact regarding the materiality of Serco’s obligations to
comply with ANSI-748 or provide valid EVM reports.
Given the demanding standard required for materiality under
the FCA, the government’s acceptance of Serco’s reports
despite their non-compliance with ANSI-748, and the
government’s payment of Serco’s public vouchers for its
work under Delivery Orders 49 and 54, we conclude that no
reasonable jury could return a verdict for Kelly on his
implied false certification claim. See N. Telecom, Inc.,
52 F.3d at 815–17 (“There is evidence that, when installed,
the Letterkenny switch did not work properly. But no
reasonable jury could draw an inference of presentation of a
false or fraudulent claim from that [because the] Army knew
the switch was unsatisfactory . . . .”).

Accordingly, we affirm the district court’s grant of
summary judgment on Kelly’s FCA claim for submitting
false or fraudulent claims for payment under an implied false
certification theory of liability.

IV

Kelly also challenges the district court’s grant of
summary judgment on his FCA claim alleging that Serco
made false records material to a false or fraudulent claim in
violation of 31 U.S.C. § 3729(a)(1)(B). “[T]o establish a
cause of action under § 3729(a)(1)(B), the United States or a
relator must show that defendants knowingly made, used, or
caused to be made or used, a false record or statement
material to a false or fraudulent claim.” Hooper v. Lockheed
Martin Corp., 688 F.3d 1037, 1048 (9th Cir. 2012). The
existence of a false or fraudulent claim is therefore an
essential element of a false records claim under
§ 3729(a)(1)(B). Because Kelly has failed to raise a genuine
issue of material fact regarding the submission of a false or
 UNITED STATES EX REL. KELLY V. SERCO 19

fraudulent claim, his false records claim fails as a matter of
law. Accordingly, we affirm the district court’s grant of
summary judgment on Kelly’s false records claim.

V

Kelly also argues that, in granting summary judgment on
his conspiracy claim, the district court “did not address or
evaluate the additional evidence that Mr. Mitchell [the AWS
Project Manager at SPAWAR] conspired with Serco to
produce fraudulent EVM reports on a monthly basis.” The
district court, however, considered “Mitchell’s
uncontroverted testimony . . . that he informed DHS of
[Serco’s] modified hours tracking and DHS approved the
change,” and found “no evidence of an agreement between
John Mitchell and Serco personnel to submit a false claim.”
The district court also rejected Kelly’s “unsubstantiated
assertion of a secret agreement” between Mitchell and Serco
to submit a false claim.

Kelly does not identify the “additional evidence” that the
district court failed to consider; nor does he explain why
failing to consider such evidence resulted in error here. We
have noted previously that we will not “consider matters on
appeal that are not specifically and distinctly argued in
appellant’s opening brief,” are argued only in passing, or that
constitute bare assertions without supporting argument.
Christian Legal Soc. Chapter of Univ. of Cal. v. Wu,
626 F.3d 483, 487–88 (9th Cir. 2010) (citations omitted).
Because Kelly failed to argue this issue specifically and
distinctly in his opening brief, we decline to consider it here.
See id. at 487; In re Online DVD-Rental Antitrust Litig.,
779 F.3d 914, 930 (9th Cir. 2015) (“Because these matters
were not ‘specifically and distinctly argued’ in the open
briefing, we will not consider them.” (citation omitted)).
20 UNITED STATES EX REL. KELLY V. SERCO

VI

Further, Kelly challenges the district court’s grant of
summary judgment on his FCA claim for wrongful retention
of overpayments in violation of 31 U.S.C. § 3729(a)(1)(G).
That FCA provision, known as the “reverse false claims”
provision, creates liability for one who “knowingly makes,
uses, or causes to be made or used, a false record or
statement material to an obligation to pay or transmit money
or property to the Government, or knowingly conceals or
knowingly and improperly avoids or decreases an obligation
to pay or transmit money or property to the Government.”
Id. “The ‘reverse false claims’ provision does not eliminate
or supplant the FCA’s false claim requirement . . . .”
Cafasso, 637 F.3d at 1056. Because Kelly’s cause of action
for submitting false or fraudulent claims for payment fails as
a matter of law, so too does his “reverse false claims” cause
of action.

VII

Kelly further argues that the district court erred in
granting summary judgment against him on his Tameny
claim for wrongful termination in violation of public policy. 6
“[W]rongful termination cases involving a Tameny cause of
action are limited to those claims finding support in an
important public policy based on a statutory or constitutional
provision.” Green v. Ralee Eng’g Co., 19 Cal. 4th 66, 79
(1998) (emphasis added). “This limitation recognizes an
employer’s general discretion to discharge an at-will
employee without cause under [the California Labor Code].”

6
A claim for wrongful termination in violation of public policy is a
California common-law claim created by Tameny v. Atlantic Richfield
Co., 27 Cal. 3d 167 (1980).
 UNITED STATES EX REL. KELLY V. SERCO 21

Id. Kelly argues that he was fired in violation of the
fundamental public policy reflected in Labor Code § 1102.5,
which prohibits employers from “retaliat[ing] against an
employee for disclosing information . . . to a government or
law enforcement agency.” Cal. Lab. Code § 1102.5(b).

The district court here granted summary judgment in
favor of Serco on Kelly’s claim for unlawful retaliatory
discharge in violation of Labor Code § 1102.5, but Kelly did
not challenge that ruling on appeal. Because “arguments not
raised by a party in its opening brief are deemed waived,”
Marsh, 194 F.3d at 1052, the district court’s determination
that Serco did not violate Labor Code § 1102.5 forecloses
Kelly’s Tameny claim based on a violation of § 1102.5 as a
matter of law.

Kelly also premises his wrongful termination argument
on the fact that he was terminated after he reported Serco’s
time-charging practices to DHS. It is undisputed, however,
that nobody at Serco knew Kelly had spoken to DHS prior
to his termination: Tom Helman, Kelly’s supervisor, and
Denise Ellison, Helman’s supervisor, both testified that they
were not aware of Kelly’s reporting activities before he was
terminated. Kelly has not controverted this testimony. Nor
has he presented any evidence that would permit a
reasonable inference that someone at Serco knew about his
reporting activities before he was terminated.

In addition, Kelly acknowledges that he was an at-will
employee for Serco. And it is undisputed that DHS and
SPAWAR no longer needed an EVM analyst in Kelly’s
position for the AWS Project. Kelly admits that he was
provided this reason when he was laid off, and it is
undisputed that Kelly’s position no longer existed after his
termination. Accordingly, because it is undisputed that
Serco employees were unaware that Kelly spoke to DHS
22 UNITED STATES EX REL. KELLY V. SERCO

prior to his termination, we affirm the district court’s grant
of summary judgment on Kelly’s Tameny claim.

VIII

Kelly lastly contends that the district court erred in
striking as moot the deposition testimony of his expert,
Kevin Martin, because it consisted of (1) improper legal
conclusions on whether ANSI-748 was incorporated by
reference into the Delivery Orders, and (2) irrelevant
testimony concerning whether Serco had in fact complied
with ANSI-748. “Under Federal Rule of Evidence 702,
matters of law are inappropriate subjects for expert
testimony.” Hooper, 688 F.3d at 1052. Even if expert
testimony “may assist the trier of fact, the trial court has
broad discretion to admit or exclude it.” Id. (quoting Beech
Aircraft Corp. v. United States, 51 F.3d 834, 842 (9th Cir.
1995) (per curiam)).

Here, the district court was in the best position to
determine whether Kevin Martin’s deposition testimony
would be helpful to its analysis. Because the district court
had concluded that Serco’s right to payment under the
Delivery Orders was not conditioned on its compliance with
ANSI-748, Martin’s testimony regarding the various ways
Serco failed to comply with ANSI-748 was irrelevant to the
court’s analysis. As such, the district court’s exclusion of
Martin’s testimony was not manifestly erroneous or
prejudicial, and it must therefore be affirmed. See Orr,
285 F.3d at 773.

IX

For Kelly to prevail on his implied false certification
theory, the gravamen of his claim here, Kelly must satisfy
the “rigorous” and “demanding” standard for materiality set
 UNITED STATES EX REL. KELLY V. SERCO 23

forth in Escobar. He has failed to do so. Because Kelly’s
implied false certification claim fails, his remaining FCA
claims also fail as a matter of law. Nor has Kelly established
a predicate for his Tameny claim. Lastly, the district court’s
exclusion of Martin’s testimony was not an abuse of
discretion, and Kelly has failed to show any prejudicial error.

AFFIRMED.