In the

United States Court of Appeals

For the Seventh Circuit

No. 14‐2506

UNITED STATES OF AMERICA,

Plaintiff,

v.

SANFORD‐BROWN, LIMITED, et al.,

Defendants‐Appellees.

APPEAL OF: BRENT M. NELSON

Appeal from the United States District Court for the

Eastern District of Wisconsin

No. 12‐cv‐00775— J. P. Stadtmueller, Judge.

ARGUED JANUARY 8, 2015 — DECIDED JUNE 8, 2015

Before BAUER, MANION, and ROVNER, Circuit Judges.

MANION, Circuit Judge. Brent Nelson spent six months as

the Director of Education at Sanford‐Brown College, a for‐

profit educationalinstitution locatedinMilwaukee,Wisconsin.

After he resigned, Nelson initiated this suit under the False

Claims Act. Based on its receipt of federal subsidies from the
2 No. 14‐2506

U.S.Department ofEducation, Nelson alleges thatthe college’s

recruiting and retention practices resulted in the transmission

of thousands of false claims to the government, potentially

subjecting the college and its corporate parent to hundreds of

millions of dollars in liability. After the United States declined

to intervene,discovery commencedandthedistrict courtpared

down Nelson’s claims in a series of orders that concluded with

a grant of summary judgment in favor of Sanford‐Brown.

On appeal, and with support from the United States as

amicus curiae, Nelson challenges the district court’s application

of the False Claim Act’s subject matter jurisdictional bar;

dismissal of defendant Career Education Corporation for

failure to comply with Fed. R. Civ. P. 9(b); denial of Nelson’s

motion forleave to file a secondamendedcomplaint; andgrant

of summary judgment in favor of Sanford‐Brown on the

merits, including its rejection of the theory of implied false

certification. Sanford‐Brown has also filed a motion to seal and

return in this court. We affirm the judgment of the district

court and grant Sanford‐Brown’s motion to seal and return.

I. Background

The False Claims Act (FCA) is “the primary vehicle by the

Government for recouping losses suffered through fraud.” 31

U.S.C. § 3729 et seq. The Attorney General may bring actions

under the FCA directly in the name of the United States. 31

U.S.C. § 3730(a). Alternatively, a private person known as a

“relator” may bring a qui tam action “in the name of the

Government.” 31 U.S.C. § 3730(b)(1). If the qui tam action

results in the recovery of money for the government, the

relator shares in the award. See 31 U.S.C. § 3730(d).
No. 14‐2506 3

As relevant here, the FCA imposes civil liability on any

person who “knowingly presents, or causes to be presented”

to the United States orits representatives “a false orfraudulent

claim for payment or approval,” 31 U.S.C. § 3729(a)(1)

(2006–2015), or “knowingly makes, uses, or causes to be made

or used, a false record or statement material to a false or

fraudulent claim,” 31 U.S.C. § 3729(a)(1)(B) (2010–15).1

“Although the FCA uses the seemingly straightforward word

‘knowingly,’ the statute’s state of mind element is actually

quite nuanced.” U.S. v. King‐Vassel, 728 F.3d 707, 712 (7th Cir.

2013). To establish liability underthe FCA, the defendant must

have acted with “actual knowledge,” or with “deliberate

ignorance” or “reckless disregard”to the possibility that the

submitted claim was false. 31 U.S.C. § 3729(a)(1)(A), (b).

Because any of these three states of mind will suffice, the FCA

does not require proof of specific intent to defraud. 31 U.S.C.

§ 3729(a)(1)(B). The FCA imposes civil penalties and treble

1

   In 2009, Congress amended and reorganized several provisions of the

False Claims Act. Pub. L. 111–21, § 4(a)(1). The allegations in this case range

from“2006–present,” so forthe purpose of ourjurisdictional analysis, count

I of Nelson’s first amended complaint is based upon both 31 U.S.C.

§ 3729(a)(1) (for the time period from 2006 through May 19, 2009) and 31

U.S.C. § 3729(a)(1)(A) (for the time period from May 20, 2009 through the

present). Although the 2009 amendments only applied on a prospective

basis, Congress specified that § 3729(a)(1)(B) applied to all FCA claims

pending on or after June 7, 2008. See United States ex rel. Yannacopoulos v.

General Dynamics, 652 F.3d 818, 822 n.2 (7th Cir. 2011). Because this action

was filed well after June 7, 2008, count II of Nelson’s first amended

complaint is based exclusively on 31 U.S.C. § 3729(a)(1)(B) (the successorto

§ 3729(a)(2)). Id.
4 No. 14‐2506

damages as remedies for each violation. 31 U.S.C.

§ 3729(a)(1)(G).

A. The Higher Education Act

In order to receive federal education subsidies under Title

IV of the Higher Education Act (HEA), an institution must

enter into a Program Participation Agreement (PPA) with the

U.S. Secretary of Education. 20 U.S.C. § 1094(a). Federal law

provides that eachPPA“shall condition the initial andcontinu‐

ing eligibility of an institution to participate in a program [for

Title IV subsidies] upon compliance with [certain] require‐

ments.” 20U.S.C. § 1094(a)(1)–(29).These requirements include

the obligation to abide by a panoply of statutory, regulatory,

and contractual requirements. In sum, the PPA includes

certifications of existing facts and forward‐looking promises

that the institution will abide by certain statutes and regula‐

tions attendant to Title IV. We refer to these requirements as

“Title IV Restrictions.”

B. The parties

One of the many beneficiaries of the HEA’s subsidies,

student loan, and grant programs was Career Education

Corporation (CEC), the parent company of a nationwide

network of for‐profit colleges and universities, including

Sanford‐Brown, Limited (formerly known as Ultrasound

Technical Services, Inc.) (SBL), which owned and operated

Sanford‐Brown College in Milwaukee, Wisconsin (SBC) at all

times material to this proceeding.

From June 2008 through January 2009, Brent Nelson was

the Director of Education at SBC. Nelson’s responsibilities
No. 14‐2506 5

included maintaining accreditation compliance related to

academic progress and attendance; developing and imple‐

menting retentionpolicies andpractices;maintaining a student

managementdatabase andgeneratingappropriate reports; and

completing “Green Files,” which report faculty qualifications

and graduate and placement rates to accreditors.

Nelson’s tenure at SBC was brief but—according to

Nelson—it was not uneventful. During his period of employ‐

ment at SBC, Nelson concluded that staff, professors, adminis‐

tration, and ownership had engaged in many instances of

fraudulent conduct in connection with the admission and

retention of students for the purpose of maintaining Title IV

HEA funding.

In July 2012, Nelson fileda complaintunder seal againstthe

defendants specifically alleging that since 2006, the three

defendants (CEC, SBL and SBC) had violated—and were

continuing to violate—federalregulations. Specifically, Nelson

allegedthatthese entities violatedprovisions that: i) prohibited

them from paying incentive compensation to certain types of

employees involved in admissions and recruiting; ii) required

them to maintain accreditation; iii) required them to refund to

the U.S. Department of Education portions of Title IV funds for

certain students who failed to complete at least 60% of a term;

iv) prohibited them from harassing students to attend class; v)

required students who received Title IV funds to maintain a

minimum GPA or other adequate progress towards gradua‐

tion; and vi) prevented them from admitting students with

remedial needs into accelerated programs (collectively, the

“disputed Title IV Restrictions”). In February 2013, the
6 No. 14‐2506

government filed its decision not to intervene and the seal was

lifted. In April 2013, Nelson filed his first amended complaint.

C. Proceedings in the district court

Substantial motion practice ensued. On June 11, 2013, the

defendants filed a joint motion to dismiss.On June 13, 2013,the

district court entered its scheduling order, setting the cut‐off

date for dispositive motions at January 3, 2014, and set trial for

April 14, 2014. On November 22, 2013, the district court grant‐

ed in part and denied in part the defendants’ motion to

dismiss. U.S. v. Career Educ. Corp., 2013 WL 6162673 (E.D. Wis.,

Nov. 22, 2013). The district court granted the motion to dismiss

on the harassment and premature admission claims and

dismissed co‐defendant CEC pursuant to Fed R. Civ. P. 9(b). Id.

at *6–9. On November 27, 2013, defendants filed a second

motion to dismiss—this time forlack of subject matterjurisdic‐

tion.

But before the district court had a chance to rule on defen‐

dants’ motion to dismiss forlack of subject matterjurisdiction,

Nelson filed a motion for leave to file a second amended

complaint to bring CEC back into the case based on “recent

discovery.” Nelson filed this motion on the court‐prescribed

deadline for dispositive motions, and defendants objected

based on the timing (the motion was filed forty‐two days after

the court’s order dismissing CEC) and on grounds that it

would be unduly prejudicial to reel a defendant back in after

the parties had proceeded through the end of discovery and

the dispositive motion deadline with the understanding that

CEC was no longer a defendant in the case. On January 17,
No. 14‐2506 7

2014, the district court denied Nelson’s motion for leave to file

a second amended complaint.

The court then turned to the motion to dismiss for lack of

subjectmatterjurisdiction.OnMarch 17, 2014,thedistrict court

entered an order concluding that it lacked subject matter

jurisdiction over most of Nelson’s allegations because they

were either baseduponpublicallydisclosedallegations (andhe

lacked independent knowledge of the information on which

his allegations were based, rendering him ineligible for the

“original source” exception to the prior public disclosure bar),

or were barred by the FCA’s first‐to‐file rule. U.S. v. Sanford‐

Brown, Ltd., 27 F.Supp.3d 940 (E.D. Wis. 2014). After referring

to this case as “a shadow of its former self,” the district court

held that its subject matter jurisdiction would be limited to

Nelson’s allegations from the start of the 2008 academic school

year at SBC until the date he resigned his position in January

2009. Id. at 948.

On March 27, 2014, the district court entered an order

reiterating thatitretainedjurisdictionbecause Nelsonqualified

as an original source for some claims, and confirmed that it

would proceed to rule on the pending summary judgment

motion directed at the merits of those remaining claims. U.S.

v. Sanford‐Brown, Ltd., 2014 WL 1272098 (E.D. Wis., March 27,

2014). On June 13, 2014, the district court granted the defen‐

dants’ motion for summary judgment. U.S. v. Sanford‐Brown,

Ltd., 30 F.Supp.3d 806 (E.D. Wis., June 13, 2014). Nelson

appeals, supported by the United States as amicus curiae.
8 No. 14‐2506

II. Subject matter jurisdiction

Before we address the substance of Nelson’s qui tam

allegations, we must first address his contention that the

district court erroneously held that it lacked the subject matter

jurisdiction over all claims except those arising during the

period of his employment from 2008–09. U.S. ex rel. Absher v.

Momence Meadows Nursing Ctr., Inc., 764 F.3d 699, 706 (7th Cir.

2014) (“[The Supreme Court’s decision in] Rockwell compels us

to address whether § 3730(e)(4) bars the relators’ quitam claims

before addressing the merits ofthose claims.”).In other words,

the public disclosure bar is a limitation on subject matter

jurisdiction. Momence, 764 F.3d at 706.

Nelson filed this action in 2012, but it potentially covers

claims that have accrued since 2006—and two different

versions of § 3730(e)(4) have operated as law throughout the

time period covered by Nelson’s suit. No matter. The 2010

version of § 3730(e)(4) is not retroactive and it controls here.

U.S. ex rel. Heath v. Wisconsin Bell, Inc., 760 F.3d 688, 690 n.1

(7th Cir. 2014). Under the 2010 version of 31 U.S.C.

§ 3730(e)(4)(A), a claim must be dismissed if the information

was publically disclosed, unless the relator is the original

source of the disclosure. We review de novo challenges to the

FCA’s jurisdictional bars. Leveski v. ITT Educ. Servs., Inc., 719

F.3d 818, 828 (7th Cir. 2013). We review findings of jurisdic‐

tional facts only for clear error. Momence, 764 F.3d at 707.

In this case, the district court held that the allegations

underlying Nelson’s suit (otherthan those covering the period

of his employment from 2008–09) were publicly disclosed

because of the “extraordinarily consequential concession,”
No. 14‐2506 9

Sanford‐Brown, Ltd., 27 F.Supp.3d at 944, he made in his

opposition to the defendants’ motion to dismiss for lack of

subject matter jurisdiction: “For purposes of this motion only,

Nelson concedes that his allegations have been ‘publically

disclosed’ pursuant to 31 U.S.C. 3730(e)(4).” Id. (quoting

Relator’sMemorandumof LawinOpposition toDefendants’Motion

to Dismiss for Lack of Subject Matter Jurisdiction, Doc. 56 at 6).

Nelson attempts to overcome this concession by claiming

that “[f]or the sake of judiciary economy, [he] acknowledged

that some of the information in his complaint was publically

disclosed.” Appellant Br. 41. But the text of Nelson’s statement

does not say that some of his allegations have been “publically

disclosed.” He said “his allegations”—and a party is bound by

what it states in its pleadings. Help At Home Inc. v. Medical

Capital, L.L.C., 260 F.3d 748, 753 (7th Cir. 2001).

Alternatively, Nelson argues that even if he did concede

that his allegations were publically disclosed, he did not

concede that he based his suit upon knowledge of the prior

public disclosure. However, in the wake of Nelson’s unquali‐

fied concession that his allegations were publically disclosed

(step one), we need not conduct a step two “based upon”

analysis because once information becomes public, only the

Attorney General or a relator who is an original source of the

information may represent the United States. Glaser v. Wound

Care Consultants, Inc., 570 F.3d 907, 913 (7th Cir. 2009) (quota‐

tions and citations omitted). Accordingly, the district court’s

conclusion rests on solid footing, and these claims survive only

if Nelson is the original source.
10 No. 14‐2506

The question then is whether Nelson was the “original

source” of publicallydisclosedinformation.An original source

is someone who: (1) prior to public disclosure has voluntarily

disclosed to the government the information on which a claim

is based; or who (2) has independent knowledge of the

information on which his allegations are based—and that

knowledge is material. 31 U.S.C. § 3730(e)(4)(B) (2010–2015).

The district court concluded that Nelson was not an original

source offalse claims allegations about allegedmisconductthat

occurred before (pre‐June 2008) and after (post‐January 2009)

his employment at SBC.

Nelsonargues thatthedistrict courtprematurelydismissed

these claims because allegations filed upon information and

belief may ultimately satisfy the original source requirement if

he had independent knowledge of fraudulent conduct before

the allegations of fraud were publicly disclosed. Appellant Br.

56. Yet we need not decide whether Nelson failed to qualify as

an original source of claims from 2006–present (excluding

2008–2009) because he pleaded those allegations “upon

information and belief.” Rather, Nelson failed to qualify as an

original source of those claims because he conceded that he

lacked the “independent knowledge”of fraudulent conduct

alleged to have occurred throughout that period. Here, Nel‐

son’s response to the defendants’ motion to dismiss for lack of

subject matter jurisdiction again proves fatal. It stated:

Defendants also argue that relator is not an original

source to the allegations pled upon “information

and belief.” Relator concedes that he does not have

direct andindependent knowledge ofthe allegations

plead [sic] upon information and belief.
No. 14‐2506 11

Relator’sMemorandumof LawinOpposition toDefendants’Motion

to Dismiss for Lack of Subject Matter Jurisdiction, Doc. 56 at 25

n.33). For the second time, Nelson “has fallen victim to the

well‐settled rule that a party is bound by what it states in its

pleadings.” Soo Line R. Co. v. St. Louis Southwestern Ry. Co., 125

F.3d 481, 483 (7th Cir. 1997). Because a litigant is the master of

its pleadings, we will not rewrite them “to controvert what it

has already unequivocally told a court by the most formal and

considered means possible.” Id. We thus affirm the district

court’s jurisdictionalruling that Nelson qualifies as an original

source only for claims from the period of his employment at

SBC (June 2008–January 2009).2

III. Nelson’s First Amended Complaint

A. The district court’s dismissal of CEC

Thedistrict court concludedthatthe allegations in Nelson’s

first amended complaint failed to plead sufficient factual

details to implicate CEC as a signatory to the PPAs, so the

court dismissed it pursuant to Fed. R. Civ. P. 9(b). Career Educ.

Corp., 2013 WL 6162673 at *8. Nelson contends that CEC’s

dismissal was error.

We review de novo a district court’s decision to dismiss a

complaint or amended complaint for failing to satisfy the

particularity requirement of Rule 9(b); we take the plaintiff’s

2

  For the sake of completeness, we note that even the cases Nelson cites in

support of his argumentrequire him to possess independent knowledge in

order to qualify as an original source. U.S. ex rel. Smith v. Yale Univ., 415 F.

Supp.2d 58, 79 (D. Conn. 2006); United States ex rel. DeCarlo v. Kiewit/AFC

Enters., 937 F.Supp. 1039, 1049 (S.D.N.Y. 1996).
12 No. 14‐2506

allegations as true and draw all reasonable inference in the

plaintiff’s favor. Tricontinental Indus., Ltd. v. Pricewaterhouse‐

Coopers, LLP, 475 F.3d 824, 833 (7th Cir. 2007). When “alleging

fraud or mistake, a party must state with particularity the

circumstances constituting fraud or mistake. Malice, intent,

knowledge, and other conditions of a person’s mind may be

alleged generally.” Fed. R. Civ. P. 9(b). “The reference to

‘circumstances’ in the rule requires the plaintiff to state the

identity of the person who made the misrepresentation, the

time, place and content of the misrepresentation, and the

method by which the misrepresentation was communicated to

theplaintiff” inorderto satisfyRule 9(b)’s heightenedpleading

standard. Vicom, Inc. v. Harbridge Merchant Services, Inc., 20 F.3d

771, 777 (7th Cir. 1994) (internal quotations omitted). “The

purpose [] of the heightened pleading requirement in fraud

cases is to force the plaintiff to do more than the usual investi‐

gation before filing his compliant.” Ackersman v. Northwestern

Mut. Life Ins. Co., 172 F.3d 467, 469 (7th Cir. 1999). To comply

with Rule 9(b) in a multiple‐defendant case like this one, the

plaintiff must “plead sufficient facts to notify each defendant

of his alleged participation in the scheme.” Goren v. New Vision

Int’l., Inc.,156 F.3d 721, 726 (7th Cir. 1998).

We turn to Nelson’s first amended complaint. Nelson

identified three defendants in the caption of his first amended

complaint: CEC, Sanford‐Brown, Limited, and Ultrasound

Technical Services, Inc. Nelson refers to CEC, Sanford‐Brown,

Limited, and Ultrasound Technical Services, Inc., collectively,

as “Defendants.” 1stAm. Compl.¶1. Nelson alleges that “CEC

operates a chain of for‐profit colleges, schools and universities

nationwide” including “roughly 40 Sanford‐Brown schools.”
No. 14‐2506 13

1st Am. Compl. ¶ 18. Further, he alleges that “Sanford‐Brown,

Limited is a subsidiary of CEC” and that “[o]n information and

belief, Sanford‐Brown, Limited co‐operates Sanford‐Brown

College, Milwaukee.”1st Am. Compl. ¶ 19.

With this outline of the defendants’ corporate hierarchy in

mind, we return to the central allegation of the first amended

complaint, which reads as follows:

As a condition to allowing their students to

receive federal funding under Title IV/HEA,

Defendants were required to sign a Program

ParticipationAgreement(“PPA”), whereby they

agreed to comply with certain statutory, regula‐

tory and contractualrequirements detailed in 20

U.S.C. § 1094 and supporting regulations, in‐

cluding 34 C.F.R. § 668.14.

1st Am. Compl. ¶ 24. We must decide whether the amended

complaint’s collective reference to “Defendants” and its

contention that they were required to sign a PPA pleads

sufficient facts to notify CEC of its alleged participation in the

scheme. Goren, 156 F.3d at 726; Vicom, 20 F.3d at 777.

Each party argues that Jepson, Inc. v. Makita Corp., 34 F.3d

1321 (7th Cir. 1994), supports its position. In Jepson, we

affirmed the dismissal of an amended complaint alleging civil

RICO violations against three corporations (two of which were

subsidiaries of the third corporation) where the allegations did

not adequately detail the predicate acts of mail and wire fraud

to survive under Rule 9(b). Id. at 1331. The defendants argue

that Jepson requires Nelson’s allegations to be dismissed

because they are lodged against “Defendants” generally and
14 No. 14‐2506

do not specify which conduct was undertaken by each particu‐

lar corporate defendant. Nelson counters that allegations need

not be so specific when the corporate defendants “are related

corporations that can most likely sort out their involvement

without significant difficulty.” Id. at 1329.

Nelson reads the phrase in question completely out of

context. Jepson held the plaintiffs’ mail and wire fraud

allegations were insufficiently pleaded, so it was unnecessary

for us to provide any further extraneous detail in the opinion

about which corporate defendant was targeted by the insuffi‐

cient allegations. Id. at 1331. We said on three separate occa‐

sions within Jepson that we were referring to the multiple

corporate defendants collectively throughout the opinion for

the sake of readability.3 The phrase Nelson quotes has nothing

whatsoever to do with pleading requirements.

Jepson stressed that under Rule 9(b), defendants “are

entitled to be apprised of the roles they each played in the

alleged scheme, and that absent a compelling reason, the

plaintiff is normally not entitled to treat multiple corporate

defendants as one entity.” Id. at 1329 (citing cases). Here, the

problem with Nelson’s first amended complaintis this: Nelson

references “Defendants” dozens of times in his amended

3

  Jepson, 34 F.3d at 1324 (“We shall refer to the Makita defendants collec‐

tively as ‘Makita.’”); id. at 1328 (“For the sake of convenience in our

discussion, we have lumped all three defendants under the single name

‘Makita.’”); id. at 1329 (“We will assume for the purposes of our discussion

that ... given that the three corporate defendants in this case are related

corporations that can most likely sort out their involvement without

significant difficulty.”).
No. 14‐2506 15

complaint, yet not once does he distinguish CEC’s conduct

from the conduct of either of the other two co‐defendants. By

failing to allege specific facts beyond the single allegation that

CEC entered into a PPA, the first amended complaint fails to

plead sufficient facts to notify CEC of the circumstances of its

alleged participation in the scheme. Goren, 156 F.3d at 726;

Vicom, 20 F.3d at 777. Accordingly, we reject Nelson’s sweep‐

ing contention that his allegations against all “Defendants”

should be treated as specific allegations against one defendant,

CEC.

B. The district court’s denial of Nelson’s motion for

leave to file a second amended complaint

After the district court dismissed CEC and following

additional discovery directed at the issue of CEC’s connection

to the PPAs, Nelson moved for leave to file a second amended

complaint to cure the Rule 9(b) defects based on “recent

discovery.” Defendants objected, and the district court denied

Nelson’s motion. On appeal, Nelson raises two related chal‐

lenges to the district court’s denial of leave to file a second

amended complaint. First, he argues that the district court

should have granted him leave to file a second amended

complaint because he filed his motion on the last day the

parties agreed upon for any amendments. Second, he argues

that justice requires that he be afforded at least one opportu‐

nity to cure the Rule 9(b) defects. We review the district court’s

decision under the highly deferential abuse of discretion

standard. Soltys v. Costello, 520 F.3d 737, 743 (7th Cir. 2005).

While the parties’ stipulated scheduling order agreed that

amendments must be made by January 3, 2014, such an
16 No. 14‐2506

agreement does not impact the district court’s discretion to

grant or deny the motion. The well‐settled rule is that a party

may amend its complaint once as a matter of right, twice or

more only at the district court’s discretion. See Hukic v. Aurora

Loan Services, 588 F.3d 420, 432 (7th Cir. 2009) (denying leave to

file a second amended complaint); Fed. R. Civ. P. 15(a).

Further, while leave to amend should be freely given “when

justice so requires,”Alioto v. Town of Lisbon, 651 F.3d 715, 719

(7th Cir. 2011); Fed. R. Civ. P. 15(a)(2), a district court has

“broad discretion to deny leave to amend where there is undue

delay, bad faith, dilatory motive, repeated failure to cure

deficiencies, undue prejudice to the defendants, or where the

amendment would be futile.” Arreola v. Godinez, 546 F.3d 788,

796 (7th Cir. 2008).

Here,the district court’s order dismissing CEC was entered

on November 22, 2013. Instead of moving for reconsideration,

Nelson waited forty‐two days before moving forleave to bring

CEC back into the case. Like the district court, we find no good

reason for this delay in the record. Had the district court

granted a second motion for leave to amend, it would have

returned a dismissed party, CEC, back into litigation when

discovery had proceeded for weeks and SBC had proceeded

underthe assumption that CEC was no longerinvolved. CEC’s

return to the litigation was obviously substantially prejudicial

to CEC, and was also prejudicial to SBC because it had pro‐

ceeded through discovery under the reasonable assumption

that CEC would remain dismissed. In these respects, this

situation is strikingly similar to Hukic, where we affirmed the

denial of a motion for leave to file a second amended com‐

plaint when it was filed near the close of discovery because
No. 14‐2506 17

discovery had already taken place with the initial claims and

defendants in mind. 588 F.3d at 432. As in Hukic, the district

court did not abuse its discretion by failing to grant Nelson

leave to file a second amended complaint.

IV. Analysis

A. SBC’s Program Participation Agreements

We now turn to the merits. In September 2005, SBL’s

campus in Fenton, Missouri, entered into a PPA with the U.S.

Secretary of Education (2005 PPA). In bold lettering on the first

page of the fifteen‐page agreement reads the following:

The execution of this Agreement by the Institu‐

tion and the Secretary is a prerequisite to the

Institution’s initial or continued participation in

any Title IV, HEA Program.

Appellees’ App. 92 at ¶ 1. The 2005 PPA also provides, in

relevant part, that “[t]he Institution understands and agrees

that it is subject to and will comply with the program statutes

and implementing regulations for institutional eligibility ... .”4

4

   The 2005 PPA asserts that upon entry, the signatory certifies compliance

with—to name just a few—Title VI of the Civil Rights Act of 1964, as

amended, and the implementing regulations, 34 C.F.R. Parts 100 and 101

(barring discrimination on the basis of race, color or national origin); Title

IX of the Education Amendments of 1972 and the implementing regula‐

tions, 34 C.F.R. Part 106 (barring discrimination on the basis of sex); The

Family Rights and Privacy Act of 1974 and the implementing regulations,

34 C.F.R. Part 99; Section 504 of the Rehabilitation Act of 1973 and the

implementing regulations, 34 C.F.R. Part 104 (barring discrimination on the

basis of physical handicap); and the Age Discrimination Act of 1975 and the

(continued...)
18 No. 14‐2506

By our estimation, the executed 2005 PPA incorporates by

reference thousands of pages of other federal laws and

regulations.

When the 2005 PPA was executed by John M. Larson,

President and Chief Executive Officer of Sanford‐Brown

College, and the U.S. Department of Education’s designated

representative, the signatories: (i) intended that the campuses

covered by the 2005 PPA would operate in compliance with

the conditions specified in the 2005 PPA, including institu‐

tional eligibility requirements; and (ii) believed that all

certifications and statements of fact contained in the 2005 PPA

were true and accurate. See Larson Decl. at ¶¶ 5, 6. In 2006,

SBC was added to the 2005 PPA.

InDecember 2007, Sanford‐Brown’s campus inJacksonville,

Florida, entered into a PPA with the U.S. Department of

Education (2007 PPA). The identical, bolded requirement that

the Agreement be executed for initial or continued participa‐

tion in any Title IV, HEA Program appears on the first page of

the 2007 PPA, as does the same statement about compliance for

the purpose of institutional eligibility. The panoply of federal

statutes and regulations that appeared in the 2005 PPA also

remained—in fact, more were added—and the same represen‐

tations about the truthfulness and accuracy of the statements

of fact contained in the 2005 PPA were made with respect to

the 2007 PPA. See McCullough Decl. at ¶¶ 7, 8. In May 2008,

with the Education Department’s approval, SBC was removed

4

  (...continued)

implementing regulations, 34 C.F.R. Part 110.
No. 14‐2506 19

from the 2005 PPA and added as an additional campus

covered under the 2007 PPA.

B. Theories of Qui Tam liability

Regarding Nelson’s claims from the period of his employ‐

ment at SBC (June 2008–January 2009), the district court

granted summary judgment in favor of the defendants

principally because itfound“no clearmanifestationof congres‐

sional or regulatory intent to condition payment of Title IV

federal subsidies on compliance with the disputed Title IV

Restrictions.” Sanford‐Brown, Ltd., 30 F.Supp.3d at 814. In FCA

cases, we review a district court’s grant of summary judgment

in favor of the defendant de novo, construing all facts in favor

of the nonmoving party. U.S. ex rel. Feingold v. AdminaStar

Federal, Inc., 324 F.3d 492, 494 (7th Cir. 2003).

1. Nelson’s § 3729(a)(1)(B) False Record Theory

The FCA imposes liability where any party “knowingly

makes, uses, or causes to be made or used, a false record or

statement material to a false or fraudulent claim.” 31 U.S.C.

§ 3729(a)(1)(B). To establish liability under this provision, a

relator must prove that: (1) the defendant made a statement or

record in order to receive money from the government; (2) the

statement or record was false; and (3) the defendant knew it

was false. U.S. ex rel. Yannacopoulos v. General Dynamics, 652

F.3d 818, 822 (7th Cir. 2011).

Nelson and the government, as amicus curiae, argue that

because the defendants agreed to comply with all Title IV

regulations by entering into the PPA, they fraudulently used

it when they made—or caused students to make or
20 No. 14‐2506

use—applications for federal subsidies with knowledge that

they were not in compliance with the Title IV Restrictions. See

Appellant Br. 18 (“By and through the PPAs and Title IV

Services Agreement, CEC and Sanford Brown agreed and

promised to comply with all Title IV regulations.”). SBC

counters that to satisfy the “knowingly” component of the

statute, Nelson must offer proof that the institution entered

into the PPA with the intent to defraud the government out of

subsidies.

These dueling views stem from the parties’ differing

interpretations of our decision in United States ex rel. Main v.

Oakland City Univ., 426 F.3d 914 (7th Cir. 2005). In Main, we

considered whether a PPA entered into by an institution

qualified as a false record under the FCA where the promises

of future compliance it contained were false when the parties

entered into the agreement. 426 F.3d at 916. We concluded that

it was and reversed the district court’s order dismissing the

case, concluding that “[i]f a false statement is integral to a

causal chain leading to payment, it is irrelevant how the

federal bureaucracy has apportioned the paperwork.” Id.

The outcome in Main was dependent on the defendants’

mindset when it entered into the PPA. The relator’s complaint

alleged that university ownership intended to defraud the

government out of subsidies from the outset; consequently, we

held that the institution’s PPA with the Secretary and all

subsequent claims for payment submitted incident to it were

poisoned by the institution’s underlying bad faith. 426 F.3d at

917 (“To prevail in this suit Main must establish that the

University not only knew, when it signed the [PPA], that

contingent fees to recruiters are forbidden, but also planned to
No. 14‐2506 21

continue paying those fees while keeping the Department of

Education in the dark.”); accord, U.S. ex rel. Miller v. Weston

Educ., Inc., 784 F.3d 1198, 1204 (8th Cir. 2015) (“To demonstrate

this promise was false, it is not enough to show that [the

institution] did not comply with the PPA; relators must show

that [the institution], when signing the PPA, knew accurate

grade and attendance records were required, and that [the

institution] intended not to maintain those records.”).

To establish that the defendants knowingly used a false

record under Main, the relator must establish the defendants’

mindset at the time of entry into the PPA. The third prong of

Yannacopoulos reaffirms this mens rea requirement. In other

words, Nelson needed to prove that SBC knowingly entered

into the PPA to defraud the government (thereby creating a “false

record”) and then planned to “use” the PPA thereafter to

submit poisoned (and therefore, false) claims for payment.

U.S.C § 3729(a)(1)(B) (“knowingly ... uses”). Main underscores

this conclusion through its elaboration on the definition of

fraud that promises of future performance do not become false

due to subsequent non‐compliance. 426 F.3d at 916. Proof of

“fraud requires more than breach of promise: fraud entails

making a false representation, such as a statement that the

speaker will do something it plans not to do.” Id. at 917 (empha‐

sis added).

In this case, Nelson did not prove that SBC entered the PPA

in bad faith. He did not depose the individuals who signed the

PPAs, nor did he present any documentary evidence concern‐

ing SBC’s execution of the PPAs. He elicited no evidence in

discovery of defendants’ fraudulent mindset when SBC was

added as an additional campus covered under the PPA, or at
22 No. 14‐2506

any other time throughout its operation. The only record

evidence of the defendants’ mindsets are the declarations filed

by Larson and McCullough. Not only do these declarations fail

to support Nelson’s contention thatthese individuals intended

to defraud the Education Department out of subsidies—they

explicitly assert the opposite. See Larson Decl. at ¶¶ 5, 6;

McCullough Decl. at ¶¶ 7, 8. Under these facts, SBC is not

liable under Nelson’s False Record theory.

2. Nelson’s 31 U.S.C § 3729(a)(1)(A) False Presentment

Theory

The FCA also imposes liability where any party “know‐

ingly presents, or causes to be presented, a false or fraudulent

claim for payment or approval.” 31 U.S.C § 3729(a)(1)(A). To

establish liability under this theory, a relator must prove the

existence of: (1) a false or fraudulent claim; (2) which was

presented for payment, or caused to be presented for payment,

by the defendant; (3) with knowledge the claim was false. U.S.

ex rel. Fowler v. Caremark RX, L.L.C., 496 F.3d 730, 741 (7th Cir.

2007), overruled in part on other grounds by Glaser, 570 F.3d at

920.

Nelson and the government argue that SBC’s certification

upon entry into the PPA that it would abide by the Title IV

Restrictions causes SBC to present false or fraudulent claims

for payment or approval to the government if it violates any of

the PPA’s conditions because adherence to those IV Restric‐

tions are “conditions of payment.” Based on this theory, an

institution must remain in compliance with all of the PPA’s

conditions in order to remain lawfully eligible to continue

receiving federal subsidies. Thus, Nelson and the government
No. 14‐2506 23

argue that compliance with the PPA is not merely a condition

of participation, but a condition of payment. See Appellant Br.

29 (“[U]nder the FCA, payment and participation are one and

the same, as a claimant is not entitled to payment unless

eligible to participate.”). According to this theory, the PPA

serves as a trigger poised to impose FCA liability at some

indefinite point in the future, because continued lawfulreceipt

ofthe federal subsidiesdepends on continuedcompliance with

the PPA. In support of their argument that continuing ongoing

eligibility is a statutory requirement of participation in receipt

of Title IV funding, Nelson and the government rely on United

States ex rel. Hendow v. Univ. of Phx., 461 F.3d 1166 (9th Cir.

2006), Main, and the PPA’s implementing regulation, which

states that “[a] participation agreement conditions the initial

and continued participation of an eligible institution ... upon

compliance with ... [the Title IV Restrictions.]” 34 C.F.R.

§ 668.14(a)(1) (emphasis added). See Appellant Br. 27.

Underthe logic of Main, 426 F.3d at 917, and Yannacopoulos,

652 F.3d at 824, SBC argues that so long as the institution enters

into the PPA in good faith, the Title IV Restrictions it promises

to adhere to are not a trigger set to impose liability if violated

in the future, because those restrictions are merely conditions

of initial participation that must be true at the time the PPA

was entered into, not conditions that are prerequisites to

payment for the purpose of liability under the FCA. Main

recognizes that promises offuture performance do not become

“false” due to subsequent non‐compliance. 426 F.3d at 917.

And Main goes on to suggest that a violation of Title IV

Restrictions after signing a PPA in good faith is not an action‐

able false claim: “[a] university that accepts federal funds that
24 No. 14‐2506

are contingent on following a regulation, whichitthenviolates,

has broken a contract.” Id.Thisdistinction between fraudatthe

outset and breach of contract after entry into a PPA is signifi‐

cant “because a mere breach of contract does not give rise to

liability under the False Claims Act.” Yannacopoulos, 652 F.3d

at 824.

Despite Main’s signals, only one circuit decision has

squarely addressed whether violations of Title IV Restrictions

after good‐faith entry into Title IV trigger FCA liability. See

U.S. ex rel. Vigil v. Nelnet, Inc., 639 F.3d 791, 797 (8th Cir. 2011).

In concluding that they do not, Vigil drew its reasoning from

Main and Hendow, where the complaints that had been dis‐

missed were reinstated because the relator alleged that each

institution submitted fraudulent applications to establish their

initial Title IV eligibility. See Main, 426 F.3d at 916 (assuming

that the institution “lied to the Department of Education in

order to obtain a certification of eligibility that it could not

have obtained had it revealed the truth”); Hendow, 461 F.3d at

1169 (relator alleges fraud occurred “in order to become

eligible to receive Title IV funds”).

We agree with Vigil’s conclusion because it is the logical

extension of Main and our other FCA authorities. Good‐faith

entry into the PPA is the condition of payment necessary to be

eligible for subsidiesundertheU.S.Department ofEducation’s

subsidiesprogram.Absent evidence offraudbefore entry, non‐

performance after entry into an agreement for government

subsidies does not impose liability under the FCA. Our earlier

decisions in Yannacopoulos, Main, and U.S. ex rel. Gross v. AIDS

Research Alliance‐Chi., 415 F.3d 601, 604 (7th Cir. 2005) (pre‐

dating Main and holding that FCA liability requires an initial
No. 14‐2506 25

fraudulent certification of compliance with applicable authori‐

ties to be a condition of or prerequisite to government pay‐

ment), compel this result because here, as in Vigil, the relator

has not alleged—nor has he proven—that SBC fraudulently

secured its initial Title IV eligibility, so no false certification of

compliance is attributable to SBC. Accordingly, we join the

Eighth Circuit and hold that FCA liability is not triggered by

an institution’s failure to comply with Title IV Restrictions

subsequent to its entry into a PPA, unless the relator proves

that the institution’s application to establish initial Title IV

eligibility was fraudulent.5

Distilled to its core, Nelson and the government’s theory of

liability lacks a discerning limiting principle. They argue that

compliance with all the contents of the PPA are conditions of

payment, while candidly acknowledging that certainviolations

of the PPA do not impose FCA liability. These positions are at

odds with each other. If we adopt Nelson and the govern‐

ment’s argument andignore the significantdifferences ineffect

that good‐faith entrance and fraudulent inducement into a

PPA have on subsequent violations, then any of the conditions

in the PPA that are not met by the institution would have the

potential to impose strict liability on it under the FCA. That

proposition is untenable. See Momence, 764 F.3d at 712.

5

   Our decisions in Yannacopoulos, Main, and Gross, as well as the Eighth

Circuit’s decision in Vigil, part ways with the Ninth Circuit’s decision in

Hendow on the FCA consequences of a violation of Title IV Restrictions that

occurs after good‐faith entry into a PPA. To the extent that is the case, we

respectfully disagree with the Ninth Circuit.
26 No. 14‐2506

Just last term, in Momence, we cautioned against the

adoption of a similarly groundbreaking and blanket theory of

FCA liability when we acknowledged that

under the relators’ theory, even a single regulatory

violation would be a condition of any and all pay‐

ments subsequently received by the facility inas‐

much as the regulators could terminate the facility

for practically any deficiency.

Id. (emphasis in original). There we rejected as “absurd” the

relators’ argument that compliance with regulations were

conditions of payment in the Medicare and Medicaid context.

Id.

Consistent with Momence’s foreshadowing, we conclude

that it would be equally unreasonable for us to hold that an

institution’s continuedcompliance withthe thousands ofpages

of federal statutes and regulations incorporated by reference

into the PPAare conditions of paymentfor purposes ofliability

under the FCA.6 Although a number of other circuits have

6

    Although Nelson asserts that these concerns are hyberbole because

“minor technical violations ... do not give rise to an FCA claim,” see U.S. ex

rel. Lamers v. City of Green Bay, 168 F.3d 1013, 1019 (7th Cir. 1999),

“material[ity]” speaks only to the nature of the violation. § 3729(a)(1)(B)

(“material to a false or fraudulent claim”). Whether a violation is material or

not has no impact on whether we characterize compliance or noncompli‐

ance with the Title IV Restrictions incident to the PPA as a condition of

participation or as a condition of payment. If compliance with the PPA is a

condition of payment, the consequence of that determination would (in

addition to importing boundless FCA jurisdiction on any recipient of

government subsidies) simultaneously undermine its existing administra‐

(continued...)
No. 14‐2506 27

adopted this so‐called doctrine ofimplied false certification, id.

at 711 n.13 (citing cases),7 we decline to join them and instead

join the Fifth Circuit. See U.S. ex rel. Steury v. Cardinal Health,

Inc., 625 F.3d 262, 270 (5th Cir. 2010).

The FCA is simply not the proper mechanism for govern‐

ment to enforce violations of conditions of participation

contained in—orincorporatedby reference into—a PPA.Mikes

v. Straus, 274 F.3d 687, 699 (2d Cir. 2001) (“The False Claims

Act was not designed for use as a blunt instrument to enforce

compliance with all [] regulations.”). Rather, under the FCA,

evidence that an entity has violated conditions of participation

after good‐faith entry into its agreement with the agency is for

the agency—not a court—to evaluate and adjudicate. See, e.g.,

id. at 700, 702; U.S. ex rel. Conner v. Salina Reg’l Health Ctr., Inc.,

543 F.3d 1211, 1220 (10th Cir. 2008) (conditions of participation

“are enforced through administrative mechanisms”).

6

  (...continued)

tive enforcement powers in exchange for this newfound and robust theory

of FCA liability. The Eighth Circuit has observed that, under these

circumstances, “[i]t would be curious to read the FCA, a statute intended to

protect the government’s fiscal interests, to undermine the government’s

own regulatory procedures.” Vigil, 639 F.3d at 799. We agree.

7

   The FCA doctrine of implied false certification “treats a bill submitted to

the government as an implicit assurance that the bill is a lawful claim for

payment, an assurance that’s false if the firm submitting the bill knows that

it’s not entitled to payment.” U.S. ex. rel. Grenadyor v. Ukrainian Village

Pharmacy,Inc., 772 F.3d1102, 1106 (7th Cir. 2014).As Grenadyor notes, before

today this doctrine was “unsettled” in this circuit. Id. (citing Momence, 764

F.3d at 711 and n.13).
28 No. 14‐2506

Lest there be any doubt about the U.S. Department of

Education’s ability to enforce the PPA through administrative

mechanisms here, its regulations are clear that at all times it

possessed the authority up to and including the power to

terminate SBC from its subsidy program. See 34 C.F.R.

§§ 600.41(a)(1); 668.86; Conner, 543 F.3d at 1220 (observing that

“the ultimate sanction for violation of such conditions is

removal from the government program”). However, in this

case, the subsidizing agency—as well as other federal

agencies—have already examinedSBCmultiple times over and

concluded that neither administrative penalties nor termina‐

tion was warranted. See Appellees’ Br. 9.

In sum, “PPA” is an abbreviation for Program Participation

Agreement—not Program Payment Agreement. When entered

in good faith, a PPA memorializes conditions of participation

(not conditions of payment) in connection with the U.S.

Department of Education’s subsidies program.In this case, the

agency’s regulations have at alltimes provided—and continue

to provide—a governmental enforcement mechanism in the

form of an administrative proceeding before the subsidizing

agency, whereby any evidence of violations of conditions of

participationmay be consideredandadjudicated.Accordingly,

we reject Nelson’s False Presentment theory.

V. SBC’s Motion to Seal and Return

Finally, we must address SBC’s outstanding motion before

this court to seal and return to the district court several

documents in the appellate record. Material in the appellate

record is presumptively public. See Baxter Int’l, Inc. v. Abbott

Labs., 297 F.3d 544, 545–46 (7th Cir. 2002). We recognize only
No. 14‐2506 29

three classes of material subject to seal: trade secrets, informa‐

tion covered by a recognized privilege, and information

required by statute to be maintained in confidence. Id. at 546.

If the material in question falls into one of these three catego‐

ries, then the two competing interests to be weighed by the

court are the moving party’s interest in privacy and the

public’s interest in transparency. Goesel v. Boley Intern. (H.K.)

Ltd., 738 F.3d 831, 833 (7th Cir. 2013). Our reasoning in Baxter

and Goesel (and the general principles underlying qui tam

policy) inform the conclusion that the public’s interest in the

judicialrecordis especially acute where—as here—the govern‐

ment has subsidized the good or service underlying the

litigation from the public fisc. Notwithstanding other applica‐

ble laws, a party that is subsidized by the public fisc and that

seeks to seal portions of the record must satisfy a higher

burden than a party thatreceives no government subsidy must

satisfy in order to achieve the same result. Either way, the

presumption in favor of disclosure can be rebutted. Goesel, 738

F.3d at 833.

The parties agree that SBC’s motion is based on a claim of

trade secrets—they disagree over whether SBC has provided

sufficient detail about its claims to warrant continued relief.

SBC asserts that Doc. 66 contains one exhibit, consisting of an

internal memorandum setting forth and explaining changes to

SBC’s internal grading policy; that Doc. 67 contains four

exhibits, including copies of SBC’s annual bonus plans and

other bonus‐related documents; and that Doc. 82 contains

twenty‐five exhibits related to the internal operations of SBC.

In short, SBC argues that because these documents discuss the

reasons and strategies behind its decision to alter the grading
30 No. 14‐2506

scale, its decision‐making process relating to how it compen‐

sates its employees, and addresses other aspects of internal

operations, then this information constitutes trade secrets in

the fieldoffor‐profit higher education, andtherefore is entitled

to be sealed.

Nelson grounds his counterargument in a single

authority—Baxter—for the proposition that SBC has not

providedenoughdetailto supportits claimthatthedocuments

are protected as trade secrets to overcome the presumption of

openness. 297 F.3d at 547. So we must now decide whether

SBC has described the documents it wishes to remain under

seal in sufficient detail to pass muster under Baxter.

In Baxter, a motions panel rejected a joint motion to seal

commercialdocumentsdue to themotion’sperfunctorynature.

297 F.3d at 546. The parties then filed a renewed joint motion

alleging that the parties’ agreement justified sealing the

documents. Id. We rejected it, too, explaining that we would

not seal documents in the appellate record simply because the

parties had agreed to do so among themselves because that

practice deprives the public of material information about the

judicial process. Id. at 547–48. We recently reaffirmed this

rationale in Goesel, 738 F.3d at 835 (confidentiality agreement

alone was insufficient to grant parties’ motion to seal settle‐

ment agreement). Notwithstanding the pre‐Baxter confusion

surrounding motions to seal, it concludes with clear instruc‐

tions:

the court will, in the future deny outright any

motion under Operating Procedure 10 that does

not analyze in detail, document by document,
No. 14‐2506 31

the propriety of secrecy, providing reasons and

citations. Motions that represent serious efforts

to apply the governing rules will be entertained

favorably...[while m]otions that simply assert a

conclusion without the required

reasoning...[will] have no prospect of success.

Baxter, 297 F.3d at 548.

SBC’s motion concerning the four exhibits associated with

Documents 66 and 67 sets forth the specific contents of the

documents associated with each, explains why those docu‐

ments entail proprietary trade secrets, and provides justifica‐

tion for why they should remain sealed. Accordingly, SBC has

satisfied its high burden, and we order that those documents

remain sealed.

However, we need not decide whether Baxterrequires us to

unseal the twenty‐five exhibits connected to Doc. 82 because

these documents were sealed in the district court as the

consequence of a motion for leave to file under seal filed by

Nelson. See Doc. 78. That Nelson now seeks to unseal docu‐

ments thatthedistrict court sealedon his motion is noteworthy

because “[b]y asking for the very condition the court subse‐

quently imposed, [Nelson] waived any argument against it.”

United States v. Cary, 775 F.3d 919, 927 (7th Cir. 2015) (applying

waiver where defendant sought mental health treatmentin the

district court and then contested the imposition of thatrequest

on appeal).

SBC’s motion also seeks to return to the district court, or, in

the alternative, to seal, district court docket entries 58, 105, and

106, which consist of confidential settlement reports that the
32 No. 14‐2506

district courtrequired the parties to file so it could monitorthe

progress of the parties’ settlement negotiations. Nelson asserts

in his response that he does not oppose SBC’s request. We have

in the past ordered documents returned to the district court in

order to prevent unwarranted disclosure of commercially

sensitive information. Baxter, 297 F.3d at 548. None of the

district court’s orders that are the subject of this appeal makes

mention of, let alone relies on, any of the documents at issue in

SBC’s motion, and “returning documents to the district court

is appropriate when they are not among the materials that

formed the basis of the parties’ dispute and the district court’s

resolution.” KM Enters., Inc., v. Global Traffic Techs., Inc., 725

F.3d 718, 734 (7th Cir. 2013) (citation omitted). Because SBC’s

request is reasonable, narrow, specific, and justified, we will

grant it. The clerk is directed to return the documents compris‐

ing district court docket entries 58, 105, and 106 to the cham‐

bers of Judge Stadtmueller.

VI. Conclusion

The district court did not err by holding that its subject

matter jurisdiction was limited to the period of time when

Nelson was employed by SBC. Nor did the district court err by

dismissing Nelson’s first amended complaint against CEC for

failure to comply with Fed R. Civ. P. 9(b). Because Nelson did

not file his motion for leave to file a second amended com‐

plaint in a diligent manner, the district court did not abuse its

discretion by denying it. On the merits, FCA liability is not

triggered by an institution’s failure to comply with Title IV

Restrictions subsequent to its entry into a PPA, unless the

relator proves that the institution’s application to establish

initial Title IV eligibility was fraudulent. Under the FCA,
No. 14‐2506 33

evidence that an institution has violated conditions of partici‐

pation after good‐faith entry into a PPA is for agencies, not

courts, to evaluate and adjudicate. For these reasons, the

district court’s grant of summary judgment in favor of the

defendants is AFFIRMED. The clerk is directed to keep the

documents comprised of district court docket entries 58, 105,

and 106 sealed, and to return them to the chambers of Judge

Stadtmueller.