### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 14

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U NITED S TATES OF A MERICA on the relation of T HERESA H ILL , Plaintiff

- Appellant
,

v.

C ITY OF C HICAGO , I LLINOIS , Defendant

- Appellee

.

____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 08 C 4540

— Rebecca R. Pallmeyer
, Judge

.

____________________

A RGUED O CTOBER 27, 2014

— D ECIDED N OVEMBER 14, 2014

____________________

Before W OOD , Chief Judge , and E ASTERBROOK and
W ILLIAMS , Circuit Judges

. E ASTERBROOK , Circuit Judge

. When applying for several federal grants between 2005 and 2008, Chicago represented that it had “formulated an Equal Employment Opportunity Plan in accordance with 28 C.F.R. § 42.301 , et seq., subpart E
, that was signed into effect within the past two years by the proper authority and that it is available for review.” This ce rtification is required by regulations implementing a portion2 No. 14

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of the Omnibus Crime Control and Safe Stree ts Act of 1968, under which the grants were made. The regulations to which the certification refers require that an equal emplo yment oppor tunity program commence within 120 days of the initial grant. So the City was certifying two things: that it had a pla n and that it would implement a program

. Theresa Hill contends in this qui tam action under the False Claims Act, 31 U.S.C. §§ 3729

– 33 , that the first c ertific ation was false because, although the City had a written plan, and implemented an equal opportuni ty and affirmative a ction program, the program differs from the plan. For exa mple, although the plan provides that the “Commissioner of Personnel” chairs the “Equal Employment Opportunity / A ffirmative Action Advisory Council”, the City has not had a “Comm issioner of Personnel” since a reorganization in 2000

. That position was replaced by a “Co mmissioner of Human Resources” and the advisory council by an “Executive D iversity Committee ”

. The Commissioner of Human Resources testified by deposition that she had never heard of an “Equal Emplo yment Opportunity / Affirmative Action Advisory Council” and was not familiar with an “ Equal Employment Oppo rtunity Plan. ” But the Commissioner also testified that the City has an equal opportunity and affirmative action p r ogram , to which the Depart ment devotes considerable efforts

. Hill does not contend that the City’ s program falls short of federal requirements in any way . Instead the claim is formal: the program does not follow the written plan. Hill insists that the Cit y thus did not “really” have a plan be tween 2005 and 2008 and is liable for falsely certifying that it did. After the United States declined to intervene and adopt Hill’s a r-No. 14

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guments, the district court granted summary judgment to the City. 2014 U.S. Dist. L EXIS 4698 (N.D. Ill. Jan. 14, 2014). The district court was right to say that the City had a plan. Chicago also was implementing the plan’s substance, though not all of its details. Any written plan sensibly can be understood to allow adaptations. Given th e substantial agreement between the written plan and what the City was doing in fact, no federal agency has parted with money u nder false pretenses.

More than that: the record does not establish that the people in the Police Department and other bureaus wh o wrote grant applications and attached the City’s plan knew that the Department of Human Resources was implementing a program different from the plan, and without knowledge of falsity there cannot be a knowingly false claim, as §3729(a)(1), (b)(1) require s for liability

. Doubtless the people who submitted the grant applic ations knew that bureaucracies tend to develop their own folkways. Job descr iptions don’t match what employees do in fact. Organization charts show a hierarchy that does not reflect who ac tually reports to whom, who has final author ity to sign off on a project, or which supervisor handles what tasks. A plan may show that four levels of the staff (an orig inal decision plus three levels of review) process equal e mploymen t complaints, while on ly two levels of review are used in practice. Departing from the formal documents in order t o get things done more quickly or accurately is co mmon, and some flexibility is essential when administrators

encounter circumstances that plan

- writers did not anti cipate

. Chicago has a huge bureaucracy ; what works in one bureau may not work in another, and slavishly following a single4 No. 14

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plan could be counterproductive. Unions that call on me mbers to “work to rule” as an alternative to a strike know that nothing cripples a bureaucracy f ast er than handling ever ything b y the book. No one who stands in line for service at a public agency, or waits impatiently for an agency to resolve a grievance or issue a license, wants every written procedure to be followed . Practi cal accommodations are a relief.

The record shows that Chicago’s Department of Human Resources gets the job done pragmatica l ly rather than by fo llowing all of a written plan ’s details

. But as long as it has a plan, and does get the job done, the City is in compliance with the representations made to obtain the grants.

A FFIRMED