#### UNITED STATES EX REL. Charles JAJDELSKI, Plaintiff-Appellant, v. KAPLAN, INC., Defendant-Appellee.

No. 15-15668

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 15, 2017 San Francisco, California

Filed March 22, 2017

Blaine T. Welsh, USLV— Office of the U.S. Attorney, Las Vegas, NV, for Plaintiff

Michael' Aguirre, Maria C. Severson, Aguirre, Morris & Severson LLP, San Diego, CA, for Plaintiff-Appellant

Timothy John Hatch, Julian Wing-Kai Poon, Esquire, Counsel, James Louis Zele-nay, Jr., Jeremy Sokol Smith, Attorney, Gibson Dunn & Crutcher LLP, Los Ange-les, CA, for Defendant-Appellee

Before: McKEOWN and BYBEE, Circuit Judges, and MOLLWAY,* District Judge.

*

The Honorable Susan Old Mollway, United States District Judge for the District of Hawaii, sitting by designation.

MEMORANDUM **

Charles Jajdelski, a *qui tarn*relator, appeals the district court’s grant of summary judgment to Kaplan, Inc. (“Kaplan”) on his False Claim Act (“FCA”) “phantom student” and retaliatory discharge claims. We review de novo the district court’s grant of summary judgment. *U.S. ex rel. Aflatooni v. Kitsap Physicians Serv.,*314 F.3d 995, 1000 (9th Cir. 2002). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

The district court correctly granted summary judgment on Jajdelski’s “phantom student” claim. There was no genuine issue of material fact with respect to this claim.1 While Jajdelski has described a generalized scheme to defraud, he has “fail[ed] to detail any particular false claim or even to provide sufficiently detailed circumstantial evidence of such a claim.” *Kitsap,*314 F.3d at 1002. The sole direct evidence of a false claim Jajdelski offers is the case of R.R., the student who attempted to re-enroll in a Heritage College (“Heritage”) program only to discover that she was listed as “graduated” even though she had dropped out. But Robles’s listing on the attendance roster and as falsely “graduated” does not necessarily mean that Heritage continued to receive student aid funds for Robles after she left the school. Jajdelski submitted no evidence of a false claim.

As for circumstantial evidence, the boxes of undistributed diplomas found by Jajdel-ski suffer from the same problem: not only was Jajdelski unable to remember the names of any students for whom the diplomas were issued, but also the claim that students were falsely “graduated” does not mean that Heritage made claims for or received student aid funds after those students dropped out. Similarly, Director of *661Education Joan Fincher’s statement about graduation is not linked to an actual false claim. To the extent this evidence shows that Heritage falsified graduation and placement rates, the evidence goes toward the previously dismissed accreditation claim, rather than the “phantom student” claim. *See U.S. ex rel. Jajdelski v. Kaplan, Inc.,*517 Fed.Appx. 534, 536 (9th Cir. 2013).

Finally, although Kaplan’s subsidiary did voluntarily refund tuition to 51 students, Jajdelski has not been able to identify any specific examples of additional false claims, even though Kaplan provided Jajdelski with access to extensive student records during discovery.

Jajdelski’s retaliatory discharge claim is barred by the law of the case. *United States v. Alexander,*106 F.3d 874, 876 (9th Cir. 1997). In the first appeal, Jajdelski did not challenge the district court’s dismissal of this claim. *See*Brief of Plaintiffs-Appellants, *Kaplan,*517 Fed.Appx. 534, No. 11-16651, 2011 WL 9686577 at *2. Accordingly, the previous panel reversed only as to Jajdelski’s FCA “phantom student” claim and “conclude[d] that all of Jajdelski’s other allegations were properly dismissed.” *See Kaplan,*517 Fed.Appx. at 536.

AFFIRMED.

**

 This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

1

. In view of our decision, we do not reach the corporate entity issue.