### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 1162

U NITED S TATES OF A MERICA ex rel

. K ENNETH J. C ONNER

, Plaintiff

‐ Appellant

,

v.

A MRISH K. M AHAJAN

, et al

., Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 11

‐ CV

‐ 4458

— Sharon Johnson Coleman

, Judge

.

____________________

A RGUED J ULY 6, 2017

— D ECIDED D ECEMBER 5, 2017

____________________

Before P OSNER

, K ANNE

, and S YKES

, Circuit Judges

. *

P ER CURIAM

. After losing his job at Mutual Bank, Ken

‐

neth Conner brought this qui tam action claiming that the de

‐

fendants, most of them directors or officers of the bank, had

defrauded the government in violation of the False Claims

* Circuit Judge Posner retired on September 2, 2017, and did not par

‐ ticipate in the decision of this case, which is being resolved by a quorum

of the panel under 28 U.S.C. § 46(d).2 No. 17

‐ 1162

Act, 31 U.S.C. §§ 3729–3733. The United States declined to

take over the qui tam action, which Conner eventually settled.

But the Federal Deposit Insurance Corporation filed its own

lawsuit against many of the same defendants. That case also

settled, and Conner thinks he is entitled to a share of the set

‐

tlement proceeds the FDIC received from the defendants. To

that end Conner tried to intervene in the FDIC’s case, and after

being rebuffed he filed a motion in this action demanding part

of the FDIC’s recovery. The district court denied that request

on the ground that, because Conner’s attempt to intervene in

the FDIC’s case was rejected, he is barred by the doctrine of

issue preclusion from litigating in this suit the question

whether he has a cognizable interest in the settlement pro

‐

ceeds. Conner challenges that ruling in this appeal. We agree

with the district court’s bottom line but conclude that claim

preclusion, rather than issue preclusion, explains this out

‐

come.

I. BACKGROUND

The False Claims Act imposes civil liability on individuals

who knowingly defraud the United States. Universal Health

Servs., Inc. v. United States ex rel. Escobar

, 136 S. Ct. 1989, 1995

(2016). The Act may be enforced either by the government or,

under its qui tam provision, by a private person acting as a

“relator” on the government’s behalf. 31 U.S.C. § 3730(b)(1);

State Farm Fire & Cas. Co. v. United States ex rel. Rigsby

, 137

S. Ct. 436, 440 (2016). When a private party brings a qui tam

suit, the complaint is sealed (and thus unknown to the de

‐ fendant) but served on the government with a summary of all

material evidence. 31 U.S.C. § 3730(b)(2); Kellogg Brown & Root

Servs., Inc. v. United States ex rel. Carter

, 135 S. Ct. 1970, 1973

(2015).No. 17

‐ 1162 3

Upon learning of a qui tam action, the government has

multiple options for action. One of those options is taking

over the lawsuit, and, if the government does take control, the

relator will receive 15% to 25% of any recovery. 31 U.S.C.

§ 3730(d)(1). The government also can decline to participate

directly, and, if it chooses that option, the relator can continue

prosecuting the case on the government’s behalf. See 31 U.S.C.

§ 3730(b)(4)(B), (c)(3); Kellogg Brown & Root Servs., Inc.

, 135

S. Ct. at 1973; Stoner v. Santa Clara Cty. Office of Educ.

, 502 F.3d

1116, 1126–27 (9th Cir. 2007). A relator who successfully pros

‐

ecutes a qui tam action without government involvement will

receive 25% to 30% of the recovery. 31 U.S.C. § 3730(d)(2). A

third option available to the government is seeking recovery

for fraud through an “alternate remedy,” including “any ad

‐

ministrative proceeding to determine a civil money penalty.”

31 U.S.C. § 3730(c)(5). When the government pursues an “al

‐

ternate remedy,” the relator has the same rights in that pro

‐ ceeding as if the qui tam action had continued, including the

right to recover a percentage of any recovery. 31 U.S.C.

§ 3730(c)(5); United States v. Sprint Commc ʹ ns, Inc.

, 855 F.3d

985, 990 (9th Cir. 2017); United States ex rel. Rille v. Pricewater

‐ houseCoopers LLP

, 803 F.3d 368, 373 (8th Cir. 2015).

Conner worked at Mutual Bank (or its predecessor) from

2000 to 2007 and had transferred to the bank’s headquarters

in Harvey, Illinois, in 2005. At headquarters he reviewed ap

‐ praisals for commercial real estate loans. In that role he no

‐

ticed that Adams Value Corporation (a property appraisal

company) had completed more than half of Mutual’s apprais

‐

als. Conner concluded that Adams regularly had inflated val

‐

ues by 20% to 30%. He identified about 75 appraisals he

thought were inflated, all but one of which Mutual Bank had4 No. 17

‐ 1162

accepted. In October 2007 Conner refused to approve an Ad

‐

ams appraisal that he deemed incomplete and significantly

overvalued. The bank fired him a week later. Eventually he

brought this qui tam action under the False Claims Act. In ad

‐

dition to naming as defendants the directors and several of

‐

ficers of Mutual Bank, Conner sued Adams Value Corpora

‐

tion and its president.

Mutual Bank failed less than two years after Conner was

fired. In his lawsuit he alleged that the defendants had inten

‐ tionally overvalued properties serving as collateral for com

‐

mercial real estate loans. By doing so they understated loan

‐

to

‐ value ratios reported to the FDIC and thus benefitted from

a lower risk category and commensurately lower FDIC insur

‐

ance premiums. Conner added that most of the loans could

not have been approved if the collateral was valued accu

‐ rately. He estimated that the FDIC had lost approximately

$656 million from Mutual Bank’s demise, including $300 to

$400 million resulting from “commercial real estate loans

with deliberately faulty appraisals.” But Conner’s qui tam ac

‐

tion aimed only to recoup the deposit insurance premiums

that should have been paid to the FDIC. In August 2012 the

United States declined to take over the case (the reason is not

disclosed in the record) but asked the district judge to require

the government’s written consent before allowing Conner to

settle or dismiss the action.

Conner then went forward in the qui tam action by him

‐

self. But the FDIC, as receiver for the failed Mutual Bank, ini

‐

tiated its own action against many of the same defend

‐

ants

― though not against Adams or its president, Douglas

Adams. See F.D.I.C. v. Mahajan

, No. 11 C 7590, 2012 WL

3061852, at *1 (N.D. Ill. July 26, 2012). The FDIC alleged thatNo. 17

‐ 1162 5

directors and officers of the bank had acted with gross negli

‐

gence and breached their fiduciary duties. It asserted that in

just four years Mutual Bank had nearly doubled its loan port

‐

folio by giving a few overextended or nearly insolvent bor

‐

rowers a dozen risky commercial loans to acquire or develop

real estate. Then, as the bank grew, it neglected to hire or train

enough staff to minimize the risk from those loans. The FDIC

further alleged that the defendants had looted bank funds for

personal bills (wedding expenses of one defendant and legal

bills incurred by another’s spouse in defending criminal

charges), conducted a board meeting in Monte Carlo at the

bank’s expense, paid excessive amounts to contractors with

personal connections to board members, and approved un

‐

lawful dividend payments. The FDIC also sued the bank’s at

‐

torney and his law firm claiming malpractice, breach of fidu

‐ ciary duty, and aiding and abetting breaches of fiduciary duty

by the other defendants.

More than three years after the FDIC brought its case, Con

‐

ner moved in his qui tam action to consolidate the FDIC’s case

with his. Conner argued that both lawsuits centered on the

same transactions and occurrences because both involved

bank directors overvaluing property and extending risky

loans. The FDIC and many of the defendants in Conner’s case

opposed his motion. The FDIC disputed Conner’s contention

that the two cases overlapped factually, and it also noted that

the defendants did not overlap entirely and that it had sued

on behalf of the bank (as its receiver), not on behalf of the

United States as Conner had done. The FDIC also disputed

Conner’s assertion that both suits focused on the same over

‐ arching fraud scheme, since just one of the loans underlying

its suit was among those identified by Conner in his suit. And

each case involved different legal issues, the FDIC contended,6 No. 17

‐ 1162

since Conner’s suit alleged violations of the False Claims Act,

while the FDIC’s claims concerned breaches of prudent bank

‐ ing practices, corporate waste, and legal malpractice. Many of

the defendants made similar arguments, and two of the

qui tam defendants added that consolidation would unduly

prejudice them because they weren’t defendants in the FDIC’s

case. Faced with this opposition, Conner withdrew his mo

‐

tion.

That was in February 2015. A month later Conner settled

with four defendants who agreed to pay a lump sum, mostly

to the government, but with a percentage to Conner. In

June 2015 Conner hired new counsel and tried to renege, but

the affected defendants moved to enforce the agreement. The

government gave its approval after modest revisions requir

‐ ing the defendants to immediately pay Conner’s attorneys’

fees while leaving for future negotiation the percentage of the

recovery to be shared with him by the government. The dis

‐

trict court enforced the revised agreement.

Conner, through his new counsel, then moved to intervene

in the FDIC’s case. By this point, according to Conner, the

FDIC had informed him that it was settling with the defend

‐

ants and, as relates to its lawsuit, would not give him a whis

‐

tleblower award under the False Claims Act. Conner asserted

that the Act entitled him to a share of the FDIC’s recovery

since, he contended, the FDIC’s suit constituted a choice by

the government to pursue an “alternate remedy” to address

the violations he had uncovered, see 31 U.S.C. § 3730(c)(5).

A magistrate judge overseeing the FDIC’s lawsuit recom

‐

mended denying Conner’s motion as untimely, since Conner

had conceded knowing for years about the FDIC’s case yet

had waited until the eve of settlement to seek intervention.No. 17

‐ 1162 7

Although this ground would have sufficed to deny Conner’s

motion, the magistrate judge further evaluated whether Con

‐

ner had a legally protectable interest in the outcome of the

FDIC’s case. The answer was no, the magistrate judge rea

‐

soned, because when acting as a receiver the FDIC is not “the

government” pursuing a civil penalty for fraud but instead is

discharging its “responsibilities to pursue the Bank’s litigation

assets for an orderly liquidation and distribution among the

Bank’s creditors.” Conner did not protest this decision, and

the district court accepted it, denying Conner’s motion. Con

‐

ner did not appeal.

Meanwhile, a few days before the magistrate judge recom

‐

mended denying Conner’s motion to intervene, Conner had

moved in this action for a determination of his share of any

recovery by the FDIC, again asserting that the FDIC’s pro

‐ posed settlement constituted an alternate remedy to his False

Claims Act case. Conner’s motion was still pending when the

district judge in the FDIC’s lawsuit adopted the magistrate

judge’s report and recommendation and refused to permit

Conner to intervene in that litigation.

The district court in this qui tam action then denied Con

‐

ner’s motion for a share of the FDIC’s settlement on the

ground that the issue presented—whether the FDIC had pur

‐

sued an alternate remedy to Conner’s case—already had been

decided by the decision in the FDIC’s case denying interven

‐

tion. The court reasoned that both motions were based on

Conner’s alleged right to a portion of the proceeds in the

FDIC’s case. And, the court continued, the magistrate judge in

the FDIC’s lawsuit had concluded that the FDIC was not seek

‐ ing an “alternate remedy” under the False Claims Act because

it was acting as a receiver, not as “the government.” Implicit8 No. 17

‐ 1162

in that conclusion, the district court continued, is a determi

‐

nation that Conner did not have a legally protectable interest

in the FDIC’s settlement in its lawsuit. In light of that adverse

ruling, the court reasoned, Connor is barred by the doctrine

of issue preclusion from relitigating the same question in this

suit.

Six defendants in Conner’s qui tam suit then moved for

summary judgment. (Two of the named defendants had been

dismissed previously for lack of service.) The district court

granted their motion, reasoning that Conner had failed to sub

‐

mit evidence substantiating his accusation that Mutual Bank

gave inflated appraisals to the FDIC. After that Conner volun

‐ tarily dismissed the remaining defendants and filed a notice

of appeal. Later he struck a bargain with the six defendants

who had prevailed at summary judgment, promising not to

challenge that adverse ruling in exchange for their promise

not to seek costs under Federal Rule of Civil Procedure 54(d).

II. ANALYSIS

On appeal Conner presents a single argument: that the

district court erred in applying the doctrine of issue preclu

‐

sion to deny his motion demanding a share of the FDIC’s re

‐

covery in its separate case. None of the named defendants has

a stake in the resolution of that issue, so none of them has filed

a brief in this appeal. Only the FDIC is interested in defending

the order denying Conner’s demand for a cut of its recovery

in the other case, and in this appeal the FDIC has submitted a

brief as amicus curiae, purportedly in support of the named

defendants.

To begin, because the decision sought to be given preclu

‐

sive effect was rendered by a federal court, federal preclusionNo. 17

‐ 1162 9

law applies. Bernstein v. Bankert

, 733 F.3d 190, 225 (7th Cir.

2013); Ross ex rel. Ross v. Bd. of Educ. of Twp. High Sch. Dist. 211

,

486 F.3d 279, 283 (7th Cir. 2007). Under federal law, the doc

‐

trine of issue preclusion bars relitigating factual or legal issues

if “(1) the issue sought to be precluded is the same as that in

‐

volved in the prior action; (2) the issue was actually litigated;

(3) the determination of the issue was essential to the final

judgment; and (4) the party against whom estoppel is invoked

was fully represented in the prior action [i.e., their interests

were represented even if they were not a party in the prior

suit].” Dexia Credit Local v. Rogan

, 629 F.3d 612, 628 (7th Cir.

2010). Conner does not contest the second or fourth elements.

But he argues that there is no overlapping issue because, he

says, the district court in his case needed to decide only

whether the FDIC was acting as the government when it ini

‐

tiated its separate lawsuit, whereas the order denying his at

‐

tempt to intervene decided that the FDIC had acted as a re

‐

ceiver “ after it initiated the Related Action.” Conner also insists

that the third element is not met because, in his view, the dis

‐

trict court denied his motion to intervene as untimely, not be

‐

cause of its belief that he is unentitled to a share of the FDIC’s

settlement proceed.

We conclude, however, that Conner misses the mark by

focusing on issues instead of claims

, since it’s the doctrine of

claim preclusion that bars his renewed effort to obtain a share

of the FDIC’s settlement proceeds. That doctrine bars litigat

‐ ing claims which were, or could have been, decided in a prior

suit, even if the fresh attempt relies on “marginally different

theories,” Maher v. F.D.I.C.

, 441 F.3d 522, 527 (7th Cir. 2006), so

long as there is “(1) an identity of the parties or their privies;

(2) [an] identity of the cause of action; and (3) a final judgment

on the merits,” Matrix IV, Inc. v. Am. Nat’l. Bank & Tr. Co. of10 No. 17

‐ 1162

Chicago

, 649 F.3d 539, 547 (7th Cir. 2011) (quoting Alvear

‐ Velez

v. Mukasey, 540 F.3d 672, 677 (7th Cir. 2008)). In analyzing this

doctrine, we need not decide whether the district court’s con

‐

clusion in the FDIC’s suit that Conner lacked a legally cog

‐

nizable interest in the settlement proceeds was essential to the

denial of his claim for a share of those proceeds.

For purposes of the third element of claim preclusion, the

basis of the earlier decision is unimportant so long as the claim

was decided on the merits

. Thus a dismissal of a suit may have

preclusive effect even if it did not resolve the central contro

‐

versy, see, e.g., Am. Nat. Bank & Tr. Co. v. City of Chicago

, 826

F.2d 1547, 1552–53 (7th Cir. 1987), or even regarding issues not

raised in the initial suit, see, e.g., Matrix IV, Inc. 649 F.3d at 547;

Aaron v. Mahl

, 550 F.3d 659, 664 (7th Cir. 2008). Conner and the

FDIC have invested considerable energy debating whether

both reasons given for denying Conner’s motion to intervene

would support application of issue preclusion, but the answer

makes no difference. Conner insists that only the question of

its timeliness was decided by the denial of his motion to inter

‐

vene, but a denial of relief on the ground that the request came

too late is still a decision on the merits. See Arrigo v. Link

, 836

F.3d 787, 799 (7th Cir. 2016) (applying claim preclusion to bar

lawsuit asserting claims for relief that, in previous suit, plain

‐

tiff had included in motion to amend complaint which was

denied as untimely); Kratville v. Runyon

, 90 F.3d 195, 198

(7th Cir. 1996) (noting that a dismissal based on statute of lim

‐

itations or administrative deadline constitutes a decision on

the merits for purposes of claim preclusion).

Of the two remaining elements of claim preclusion, the

first—an identity of parties—is not disputed. Both timesNo. 17

‐ 1162 11

when Conner took action aimed at sharing in the FDIC’s set

‐

tlement, he and the FDIC were the only parties of concern.

Although in both lawsuits Conner and the FDIC might appear

to be aligned against the named defendants, Conner’s motion

to intervene in the FDIC’s case and his motion in this qui tam

action pitted him against the FDIC as he tried to recover a

whistleblower reward.

The only significant question, then, is whether both of

Conner’s motions present the same cause of action, or claim.

On this question, we agree with the FDIC. Two causes of ac

‐

tion are identical if each claim is supported by the same fac

‐

tual allegations, Andersen v. Chrysler Corp.

, 99 F.3d 846, 852–55

(7th Cir. 1996); Colonial Penn Life Ins. Co. v. Hallmark Ins. Ad

‐

m ʹ rs, Inc.

, 31 F.3d 445, 447 (7th Cir. 1994), and the judgment in

each case would be based on the same evidence, see Manicki v.

Zeilmann

, 443 F.3d 922, 925–26 (7th Cir. 2006); Himel v. Cont ʹ l

Ill. Nat. Bank & Tr. Co. of Chi.

, 596 F.2d 205, 209 (7th Cir. 1979).

Conner alleged both in his motion to intervene and his motion

in this case that the FDIC had violated the relator’s

‐ share pro

‐

vision of the False Claims Act by not paying him a portion of

its settlement proceeds. Both motions sought to establish that

the FDIC’s case constituted an “alternate remedy” under the

False Claims Act and that the FDIC had refused to pay Con

‐

ner a portion. That Conner’s motions sought the same com

‐ pensation in different ways—the first time as part of a motion

to intervene—is irrelevant; causes of action may be identical

even if the litigant attempts different substantive or proce

‐

dural strategies to pursue the same underlying claim. Ross

,

486 F.3d at 283; Okoro v. Bohman

, 164 F.3d 1059, 1062 (7th Cir.

1999); Cheyenne River Sioux Tribe of Indians v. United States

,

338 F.2d 906, 908–09, 911 (8th Cir. 1964) (applying doctrine of12 No. 17

‐ 1162

claim preclusion to bar relitigation of claim previously as

‐

serted in unsuccessful motion to intervene); Bhd. of Locomotive

Firemen & Enginemen v. Seaboard Coast Line R. Co.

, 413 F.2d 19,

23–24 (5th Cir. 1969) (same). Moreover, Conner requested the

same relief under the same statutory provision in both mo

‐

tions, which is another consideration in deciding whether two

causes of action are identical. See Highway J Citizens Grp. v.

U.S. Dep ʹ t of Transp.

, 456 F.3d 734, 742 (7th Cir. 2006). Finally,

a common

‐ sense comparison of the request Conner made in

each suit similarly supports the conclusion that he should not

be permitted to repeat his demand for a share of the FDIC’s

settlement proceeds. See Ross

, 486 F.3d at 282 (noting that the

“common

‐ sense question” of “why a second lawsuit should

be permitted after the first one apparently resolved the dis

‐

pute between the parties” is resolved by applying doctrine of

claim preclusion).

Accordingly, each element of claim preclusion is satisfied.

For that reason, we uphold the district court’s denial of Con

‐

ner’s motion in the qui tam action seeking a share of the set

‐

tlement proceeds in the FDIC’s separate lawsuit.

III. CONCLUSION

For the foregoing reasons we affirm the judgment.