Hill v. City of Chicago, No. 14-1317 (7th Cir. 2014)
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Applying for 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. This certification is required by regulations implementing the Omnibus Crime Control and Safe Streets Act, under which the grants were made. Hill claimed, in a qui tam action under the False Claims Act, 31 U.S.C. 3729–33, that the first certification was false because, although the city had a written plan, and implemented an equal opportunity and affirmative action program, the program differs from the plan. Hill did not contend that the city’s program falls short of federal requirements only that the program does not follow the written plan. The district court granted summary judgment to the city. The Seventh Circuit affirmed. Any written plan sensibly can be understood to allow adaptations. No federal agency has parted with money under false pretenses and the record does not establish that the people in the Police Department and other bureaus who 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.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 14- 1317 UNITED STATES OF AMERICA on the relation of THERESA HILL, Plaintiff- Appellant, v. CITY OF CHICAGO, ILLINOIS, 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. ____________________ ARGUED OCTOBER 27, 2014 — DECIDED NOVEMBER 14, 2014 ____________________ Before WOOD, Chief Judge, and EASTERBROOK and WILLIAMS, Circuit Judges. EASTERBROOK, 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 cer- tification is required by regulations implementing a portion 2 No. 14- 1317 of the Omnibus Crime Control and Safe Streets Act of 1968, under which the grants were made. The regulations to which the certification refers require that an equal employ- ment opportunity program commence within 120 days of the initial grant. So the City was certifying two things: that it had a plan 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 certifica- tion was false because, although the City had a written plan, and implemented an equal opportunity and affirmative ac- tion program, the program differs from the plan. For exam- ple, although the plan provides that the “Commissioner of Personnel” chairs the “Equal Employment Opportunity / Af- firmative Action Advisory Council”, the City has not had a “Commissioner of Personnel” since a reorganization in 2000. That position was replaced by a “Commissioner of Human Resources” and the advisory council by an “Executive Di- versity Committee”. The Commissioner of Human Resources testified by deposition that she had never heard of an “Equal Employ- ment Opportunity / Affirmative Action Advisory Council” and was not familiar with an “Equal Employment Oppor- tunity Plan.” But the Commissioner also testified that the City has an equal opportunity and affirmative action pro- gram, to which the Department 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 City thus did not “really” have a plan between 2005 and 2008 and is liable for falsely certifying that it did. After the United States declined to intervene and adopt Hill’s ar- No. 14- 1317 3 guments, the district court granted summary judgment to the City. 2014 U.S. Dist. LEXIS 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 the substantial agreement between the written plan and what the City was doing in fact, no federal agency has parted with money un- der false pretenses. More than that: the record does not establish that the people in the Police Department and other bureaus who 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) requires for liability. Doubtless the people who submitted the grant applica- tions knew that bureaucracies tend to develop their own folkways. Job descriptions don’t match what employees do in fact. Organization charts show a hierarchy that does not reflect who actually reports to whom, who has final authori- ty to sign off on a project, or which supervisor handles what tasks. A plan may show that four levels of the staff (an origi- nal decision plus three levels of review) process equal em- ployment complaints, while only two levels of review are used in practice. Departing from the formal documents in order to get things done more quickly or accurately is com- mon, and some flexibility is essential when administrators encounter circumstances that plan- writers did not anticipate. Chicago has a huge bureaucracy; what works in one bureau may not work in another, and slavishly following a single 4 No. 14- 1317 plan could be counterproductive. Unions that call on mem- bers to “work to rule” as an alternative to a strike know that nothing cripples a bureaucracy faster than handling every- thing by 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. Practical accommodations are a relief. The record shows that Chicago’s Department of Human Resources gets the job done pragmatically rather than by fol- lowing 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. AFFIRMED
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