United States Ex Rel. K & R Limited Partnership v. Massachusetts Housing Finance Agency

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 8, 2008 Decided July 8, 2008

No. 07-7014

UNITED STATES EX REL. K & R LIMITED PARTNERSHIP,
APPELLANT

v.

MASSACHUSETTS HOUSING FINANCE AGENCY,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 99cv01343)

Carl A.S. Coan, Jr. argued the case for appellant. With
him on the briefs was Carl A.S. Coan III.
Michael J. Tuteur argued the cause for appellee. With
him on the brief were Lawrence M. Kraus and Stuart M. Ger-
son.
Before: TATEL, BROWN, and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Brown.
BROWN, Circuit Judge: Forty years ago Jimi Hendrix
trilled his plaintive query: “Is this love, baby, or is it … [just]
confusion?” JIMI HENDRIX, Love or Confusion, on ARE YOU
 2

EXPERIENCED (Reprise Records 1967). In this False Claims
Act case, we face a similar question involving a mortgage
subsidy program initiated in that era: Is this fraud, or is it …
just confusion? K & R Limited Partnership says it is the for-
mer, alleging that during the last 15 years, MassHousing1 has
knowingly submitted excessive claims for subsidy payments
to the federal government. The district court granted sum-
mary judgment for MassHousing, United States ex rel. K & R
Ltd. P’ship v. Mass. Hous. Fin. Agency, 456 F. Supp. 2d 46
(D.D.C. 2006), and we affirm because there is no genuine is-
sue as to whether MassHousing knew its claims were false.
Under § 236 of the National Housing Act, the U.S. De-
partment of Housing and Urban Development (HUD), subsi-
dizes mortgage payments for owners of low-income rental
housing. 12 U.S.C. § 1715z-1(a). The owner makes monthly
payments to its lender as if the yearly interest rate was 1%,
and the lender applies to HUD for the difference. Id. § 1715z-
1(c). MassHousing, which is such a lender, sells tax-exempt
bonds to investors and uses the proceeds to finance housing
projects as part of its public mission to support affordable
housing for low- and moderate-income Massachusetts resi-
dents.
In 1993, MassHousing used proceeds from new bonds to
“refund” (i.e. redeem or retire) mostly higher interest bonds it
used to finance loans, including loans for which MassHousing
received interest reduction payments from HUD under § 236.
Although MassHousing reaped substantial savings on its debt
service, it did not pass along those savings to HUD by reduc-
ing its claims for payments. That is the nub of this case.
In relevant part, the False Claims Act (FCA), 31 U.S.C.
§§ 3729–3731, imposes liability on “[a]ny person who”

1
Its formal name is Massachusetts Housing Financing
Agency.
 3

“knowingly presents” “a false or fraudulent claim for payment
or approval” “to an officer or employee of the United States
Government,” id. § 3729(a)(1). MassHousing concedes it is a
“person who” presented “claim[s] for payment” to HUD em-
ployees. It denies those claims were “false or fraudulent,” but
agrees that depends on the correct interpretation of the mort-
gage notes for the loans at issue. On each claim, MassHous-
ing’s representative “certifie[d] to the best of his knowledge
and belief” that “each interest reduction payment … ha[d]
been calculated in accordance with” the applicable agreement.
J.A. 122. Such agreements required that the “interest reduc-
tion payments” reflect the owners’ interest rates on their per-
manent loans—rates the mortgage notes established. Thus, if
the mortgage notes varied the interest rate with MassHous-
ing’s debt service, then MassHousing has been over-billing
HUD on those loans since 1993. K & R’s 2003 estimate of
the running total was $28 million, making MassHousing’s
potential liability around an eye-popping $100 million, see 31
U.S.C. §§ 3729(a), 3730(d) (authorizing civil fines, treble
damages and, for qui tam plaintiffs, expenses including attor-
neys’ fees).
Over the years, MassHousing used several types of notes
when financing § 236 housing projects. Each type phrased
the payment calculation differently and somewhat awkwardly.
Thus, the parties and the district court have spilt much ink in
explaining the meaning of these notes, each parsing different
language supporting its own “unambiguous” interpretation. K
& R insists the notes clearly vary the interest rate, while
MassHousing, with which the district court agreed, maintains
that the notes plainly fixed the interest rate once MassHousing
financed the loans with long-term bonds. The district court
also found that even if unclear, other evidence of the intended
meaning is so one-sided no reasonable person could conclude
otherwise.
 4

We disagree with the parties and the district court that the
mortgage notes are unambiguous. Notes from the ‘70s calcu-
late mortgage payments using “the net interest cost which
[MassHousing] is required to pay from time to time on bonds
to fund or refund the loan.” E.g., J.A. 253 (emphasis added).
Those notes also provide “if the rate of interest … shall
change from time to time as provided above, the amount of
such monthly payments shall be adjusted upward or down-
ward, as the case may be.” E.g., J.A. 200.2 While the parties
agree the trigger for changing the interest rate is when Mass-
Housing “refund[s] the loan,” they are at a stalemate over the
meaning of this phrase.
K & R claims the 1993 bond refund was a loan refund
that lowered MassHousing’s “net interest costs,” requiring
MassHousing to reduce mortgage payments. But in Mass-
Housing’s view, a bond refund is different from a loan refund.
A loan refund supposedly occurs not when MassHousing re-
deems bonds it used to finance the loans, but when it desig-
nates bonds to “refund the loan” and recalculates the owner’s
payments accordingly. Here, MassHousing did not designate
the 1993 bonds to refund any of the loans at issue, nor did it
recalculate any mortgage payments.
K & R questions the distinction because during a pro-
ject’s construction MassHousing temporarily “fund[ed] and
refund[ed] the loan[s]” with short-term bonds it paid periodi-
cally with the proceeds from new short-term bonds. In that
way, the new bonds “refund[ed] the loan[s].” Similarly, using
proceeds from the 1993 bonds, MassHousing redeemed the
long-term bonds with which it “fund[ed] … the loans.” K &
R concludes the 1993 bonds must “refund the loan” like the
short-term bonds. But the similarity of these transactions

2
The most recent mortgage notes merely state the monthly
mortgage payments or calculate payments using a specific interest
rate. K & R’s claims do not rely on these mortgage notes.
 5

does not undermine the distinction since MassHousing desig-
nated which short-term bonds refunded the loans, and did not
so designate the 1993 bonds.
Next, K & R argues that MassHousing’s interpretation
makes nonsense of the payment calculation. Because Mass-
Housing refunded the bonds it used to finance the loans, those
bonds no longer exist. Therefore, MassHousing’s “net inter-
est cost” on them is zero, resulting in payments with no inter-
est component. That can’t be correct, says K & R, so Mass-
Housing’s interpretation must be wrong. However, Mass-
Housing claims to have “fund[ed] … the loan[s]” only once
and so the payment calculation applied one time only. Mass-
Housing takes the same position on mortgage notes from the
‘80s and ‘90s, which calculate payments using the “interest
cost incurred by [MassHousing] on the Funding Bonds”—
“bonds issued by [MassHousing] and designated by it to
fund” a loan. J.A. 247–48 (emphasis added).
Last, K & R says its interpretation is correct because
MassHousing added the phrase “from time to time” so Mass-
Housing could change the mortgage interest rate after a bond
refund. We find K & R’s evidence on this point unclear. It
offers a mortgage note that does not use the phrase, and which
predates the resolution authorizing the bonds MassHousing
used to finance the loans at issue. The resolution allowed
MassHousing to refund the bonds, but required MassHousing
to ensure existing mortgage payments were sufficient to pay
the new bonds it issued. According to K & R, the phrase
“from time to time” allowed MassHousing to meet this re-
quirement by changing the mortgage interest rates. However,
MassHousing claims it would only undertake a bond refund in
circumstances when mortgage payments would always be suf-
ficient, i.e. when market interest rates are lower than its cur-
rent debt service. Thus, MassHousing says it did not add the
phrase to meet the requirement.
 6

On the evidence here, both MassHousing’s and K & R’s
interpretations are plausible. We need not decide which has
the better reading, however, because the FCA requires that
defendants make false claims “knowingly” by (1) having ac-
tual knowledge, (2) acting in deliberate ignorance, or (3) act-
ing in reckless disregard. See 31 U.S.C. § 3729(b). To suc-
cessfully oppose summary judgment, K & R must show that a
reasonable factfinder, drawing all “justifiable inferences”
from the evidence in K & R’s favor, Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986), could find MassHous-
ing at least recklessly disregarded the falsity of its claims. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“after
adequate time for discovery and upon motion,” courts must
enter summary judgment “against a party who fails to make a
showing sufficient to establish … an element essential to that
party’s case, and on which that party will bear the burden of
proof at trial”). After our de novo review of the record, see
Wilson v. CARCO Group, Inc., 518 F.3d 40, 41 (D.C. Cir.
2008), we conclude K & R did not make this minimum show-
ing.
Reckless disregard under the FCA is “an extreme version
of ordinary negligence.” United States v. Krizek, 111 F.3d
934, 942 (D.C. Cir. 1997). To show MassHousing was reck-
less as to the falsity of its claims, K & R points initially to
MassHousing’s disregard of the “plain language” of the mort-
gage notes. However, as we discussed, these notes are not
“plain,” especially the key phrase, “refund the loan.” K & R
never explains why MassHousing’s interpretation of the
mortgage notes was unreasonable, much less why its interpre-
tation constituted reckless disregard. While the unreason-
ableness of MassHousing’s interpretation is merely evidence,
the absence of which does not preclude a finding of knowl-
edge, see United States ex rel. Oliver v. Parsons Co., 195
F.3d 457, 464 (9th Cir. 1999) (amended opinion), K & R
points to nothing else “that might have warned [MassHous-
 7

ing] away from the view it took,” Safeco Ins. Co. of Am. v.
Burr, 127 S. Ct. 2201, 2216 (2007).
Thus, contrary to K & R’s assertion, MassHousing’s fail-
ure to obtain a legal opinion or prior HUD approval cannot
support a finding of recklessness without evidence of any-
thing that might have given it reasons to do so. In fact, the
evidence suggests there were no reasons. MassHousing made
no secret of the 1993 bond refund and during a HUD audit the
next year, MassHousing specifically brought the 1993 refund
to HUD’s attention, albeit for a somewhat different issue. Cf.
United States ex rel. Totten v. Bombardier Corp., 380 F.3d
488, 496 (D.C. Cir. 2004) (“if the claimant has told the [gov-
ernment official] pertinent facts that would, in the absence of
such disclosure, make a claim fraudulent, it seems that the
claimant has not ‘knowingly’ presented a false claim”). There
is no evidence HUD expressed any concerns and, in fact,
HUD continued (and continues) to pay MassHousing even
after K & R filed this lawsuit. Although the fact the govern-
ment continues to pay claims might not preclude a finding of
knowledge, here that fact at least suggests MassHousing did
not act with reckless disregard.
Against all this, K & R merely urges its different reading
of the notes, which here falls far short of showing a genuine
issue as to whether MassHousing knew its claims were false.
Finally, K & R’s evidence of MassHousing’s motive to
submit false claims—the need to bail itself out of financial
trouble—could not in this case support a finding of knowl-
edge, be it actual, deliberate ignorance, or reckless disregard.
For its part, MassHousing freely admits it undertook the 1993
bond refund to lower its debt service and receive the same
amount of HUD payments. But its eagerness to do so does
not mean MassHousing knew it did so unlawfully.
At bottom, K & R and MassHousing simply disagree
about how to interpret ambiguous contract language. Given
 8

that and K & R’s inability to point to anything “that might
have warned [MassHousing] away from the view it took,”
Safeco, 127 S. Ct. at 2216, there is no genuine issue as to
whether MassHousing knowingly presented false claims to
HUD. We therefore affirm the judgment of the district court.3
So ordered.

3
We also affirm portions of two discovery orders from which
K & R appeals, and we dismiss MassHousing’s motion to supple-
ment the appendix. The district court did not abuse its discretion in
denying K & R’s discovery requests. See Diamond Ventures, LLC
v. Barreto, 452 F.3d 892, 898 (D.C. Cir. 2006). In addition, we did
not need the materials MassHousing proposed to add to the appen-
dix; therefore, its motion to supplement is moot.