23

- 374 United States ex rel. Donohue v. Buffalo Pub. Sch. Dist.


## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “ SUMMARY ORDER ” ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on th e 26 th day of April , two thousand twenty
- four
. 3 4 PRESENT: 5 DENNIS JACOBS , 6 MICHAEL H. PARK , 7 ALISON J. NATHAN, 8 Circuit Judges
. 9

_____________________________________ 10 11 United States of America ex rel. Patrick 12 Donohue , 13 14 Plaintiff -Appellant, 15 16 v. 23-374 17 18 Buffalo Public School District, Kriner 19 Cash, in his official capacity as 20 Superintendent, Stamford Public School 21 District, Dr. Tamu Lucero, Somerville 22 Public School District, Mary Skipper, in 23 her official capacity as Superintendent, 24 New York City Department of Education, 25 Richard Carranza, in his official capacity 26 as the former Chancellor of the New York 27 City Department of Education, Meisha 28 Porter, in her official capacity as the 29 current Chancellor of the New York City 302 Department of Education, Chicago Public 1 School District, Jose J. Torres, in his 2 official capacity as Superintendent, Wake 3 County Public School District, Cathy 4 Quiroz Moore, in her official capacity as 5 Superintendent, Niagara Falls Public 6 School District, Mark Laurrie, in his 7 official capacity as Superintendent , 8 9 Defendants -Appell ees . * 10

_____________________________________ 11 12 F OR PLAINT I FF
- APPELLANT : Rory J. Bellantoni & Ashleigh C. Rousseau , 13 Brain Injury Rights Group, Ltd. , New York, 14 NY. 15 16 F OR DEFENDANT S- APPELL EES : Cavette A. Chambers, Corporation Counsel, 17 & Robert E. Quinn, Deputy Corporation 18 Counsel, City of Buffalo Law Department, 19 Buffalo, NY for Buffalo Public School 20 District & Kriner Cash, in his official 21 capacity as Superintendent

. 22 Ryan P. Driscoll, Berchem Moses P.C., 23 Milford, CT for Stamford Public School 24 District & Dr. Tamu Lucero

. 25 Joshua R. Coleman, Murphy, Lamere & 26 Murphy, P.C. , Braintree, MA for Somerville 27 Public School District & Mary Skipper, in 28 her official capacity as Superintendent

. 29 Richard Dearing, Susan Paulson, & Claude S. 30 Pl atton, Assistant Corporation Counsel, for 31 Sylvia O. Hinds-Radix, Corporation Counsel 32 of the City of New York, New York, NY for 33 New York City Department of Education, 34 Richard Carranza, in his official capacity as 35 the former Chancellor of the New York City 36 Department of Education & Meisha Porter, 37 in her official capacity as the current 38 Chancellor of the New York City Department 39 of Education. 40 Joseph Victor Willey, Katten Muchin 41 Rosenman LLP, New York, NY for Richard 42

* The Clerk of Court is respectfully directed to amend the caption accordingly.3 Carranza, in his official capacity as the 1 former Chancellor of the New York City 2 Department of Education & Meisha Porter, 3 in her official capacity as the current 4 Chancellor of the New York City Department 5 of Education

. 6 Ruchi Verma, General Counsel, & Thomas 7 A. Doyle, Assistant Deputy General Counsel , 8 Board of Education of the City of Chicago , 9 Law Department, Chicago, IL for Chicago 10 Public School District & Jose J. Torres, in his 11 official capacity as Superintendent

. 12 Chris t opher Seusing, Wood Smith Henning 13 & Berman, LLP, New York, NY for Wake 14 County Public School District & Cathy 15 Quiroz Moore, in her official capacity as 16 Superintendent

. 17 Jonathan P. Shaub & Nicholas Tam, Shaub, 18 Ahmuty, Citrin & Spratt LLP, Lake Success, 19 NY for Niagara Falls Public School District 20 & Mark Laurrie, in his official capacity as 21 Superintendent. 22 Appeal from an order of the United States District Court for the Southern District of New 23 York (Woods, J. ). 24

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 25
DECREED that the order of the district court is AFFIRMED

. 26 Proceeding on behalf of the United States under the False Claims Act, Patrick Donohue 27 brought claims against thousands of school district s and count ie s across the United States for 28 providing remote services to special needs students during the Covid-19 pandemic. He then filed 29

a Second Amended Complaint (“SAC”), which significantly reduced the number of d efendants 30 but continued to press his claims that Appellees charged the federal government for remote 31 services provided to special needs students in violation of both the Individuals with Disabilities 32 Education Act (“IDEA”) and s ection 411( k )(13) of the Medicare Catastrophic Coverage Act of 334 1988, 42 U.S.C. § 1396 b( c). Appellees moved to dismiss. A magistrate judge issued a report and 1 recommendation ( the “R&R”) recommending dismissal of Donohue’s claims without leave to 2 amend , and the district court adopted the R&R in full. We assume the parties’ familiarity with the 3 remaining underlying facts, procedural history of the case, and issues on appeal. 4 Under Rule 72(b) of the Federal Rules of Civil Procedure, a party must file “specific written 5 objections” to proposed findings and recommendations in a magistrate judge’s R&R to avoid 6 waiver. We review those portions of a grant of a motion to dismiss that address such specific 7 objections de novo, and we consider all other arguments

— including insufficiently specific 8 arguments— waived. See , e.g. , Mario v. P & C Food Markets, Inc. , 313 F.3d 758, 766 (2d Cir. 9 2002). Donohue waived almost all of his arguments by failing to present them in his objections to 10 the R&R. We consider only the three that remain. 11 First, the district court properly reached common merits issues rather than first addressing 12 personal jurisdiction and the propriety of venue for each defendant because it was clear that it had 13 personal jurisdiction and that venue was proper for at least some defendants. See Chevron Corp. 14 v. Naranjo , 667 F.3d 232, 246 n.17 (2d Cir. 2012). The law of the case did not require the district 15 court to transfer venue for each defendant rather than dismissing even though the magistrate judge 16 previously had transferred claims against some defendants to the Eastern District of Virginia. 17 Whether there was personal jurisdiction over the remaining defendants, and whether venue for the 18 claims against them was proper in the Southern District of New York, was a new issue not 19 previously raised. Regardless, the law -of-the- case doctrine is discretionary, see Aramony v. United 20 Way of Am. , 254 F.3d 403, 410 (2d Cir. 2001), and the district court had good reason to reach 21 common merits questions rather than to assess venue and personal jurisdiction for each defendant. 225 Second, the district court properly dismissed Donohue’s worthless

- services claims under 1 the False Claims Act. Donohue did not object to the R&R’s recommendation that his claim s be 2 dismissed for failing to allege scienter —a sufficient reason to affirm . But even if he had objected, 3 the SAC does not allege facts showing that any misrepresentation or omission in any claim made 4 to the federal government was knowingly material. We evaluate materiality under the False 5 Claims Act based on three factors: “(1) whether the government expressly designates compliance 6 with a particular statutory, regulatory, or contractual requirement as a condition of payment; (2) 7 the government’s response to noncompliance with the relevant contractual, statutory, or regulatory 8 provision; and (3) whether the defendants’ alleged noncompliance was minor or insubstantial.” 9 United States ex rel. Forman v. AECOM , 19 F.4th 8 5 , 110 (2d Cir. 2021) (internal quotation marks 10 omitted) . The SAC pleads no facts tending to show that any of these factors weigh in favor of 11 materiality , and Donohue has misrepresented the content of the only alleged statutory requirement 12 for payment that he has identified

— 42 U.S.C. § 1396 b(c)

. See United States ex rel. Donohue v. 13
Carranza , No. 22

- cv - 189(AJT/IDD), 2022 WL 3226191, at *5

- 6 (E.D. Va. July 1, 2022) 14 (dismissing the SAC’s transferred claims in part because Donohue’s “claims regarding [42 U.S.C. 15 § 1396b(c) ’s ] requirements are not reflected in the law’s text”) , aff’d sub nom. United States ex 16 rel. Donohue v. Loudo u n Cnty. Pub. Sch. Dist. , No. 22

- 1835, 2023 WL 7548198 (4th Cir. Nov. 17 14, 2023) (per curiam)

. 18 Third, the district court properly denied leave to amend the SAC as futile. Donohue could 19 not plausibly allege scienter or materiality given the guidance of federal agencies indicating that 20 schools could provide remote services to students covered by the IDEA. He has never identified 21 even the type of factual allegations that he might add to the SAC to remedy its pleading 22 deficiencies. And his continued mistaken assertions below that his claims were subject to the 236 pleading standard set out by Rule 8 of the Federal Rules of Civil Procedure, rather than the more 1 stringent Rule 9(b) standard applicable to False Claims Act claims, see United States ex rel. 2 Chorches v. Am. Med. Response, Inc. , 865 F.3d 71, 81 (2d Cir. 2017), refute any claim that he 3 could remedy the pleading defects in the SAC. 4
* * * 5 We have considered the remainder of Donohue’s arguments and find them to be without 6 merit. For the foregoing reasons, we AFFIRM the order of the district court

. 7
FOR THE COURT: 8 Catherine O ’ Hagan Wolfe, Cler k of Court 9