NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 3 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRISTINA ELLIS; JONATHAN ELLIS, No. 18-17248 Relators; ex rel. United States of America, D.C. No. Plaintiffs-Appellees, 2:16-cv-01447-APG-NJK

and

MEMORANDUM*

UNITED STATES OF AMERICA,

Plaintiff,

v.

JING SHU ZHENG,

Defendant-Appellant,

and

SJ 5308 INVESTMENT GROUP,

Defendant.

Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Page 2 of 5

Submitted March 25, 2020** Las Vegas, Nevada

Before: W. FLETCHER, BYBEE, and WATFORD, Circuit Judges.

Jing Shu Zheng appeals from the district court’s order granting summary

judgment in favor of Christina and Jonathan Ellis on their claim under the False

Claims Act (FCA). We affirm.

1. The district court correctly found no triable issue of material fact as to

Zheng’s liability under the FCA. It is true, as Zheng argues, that the Housing

Agreement Plan (HAP) does not bear her signature. But that fact is irrelevant

because the evidence clearly shows that Jay Hsu signed the document as her agent.

Hsu worked for the company that Zheng concedes acted as her authorized agent

(SJ 5318), and Zheng admitted in her counterclaim disclosures that Hsu was her

agent.

No reasonable factfinder could conclude, on the basis of the summary

judgment record, that Hsu enrolled Zheng in the Section 8 voucher program

without her knowledge or authorization. Zheng herself signed the Request for

Tenancy Approval, which represented that she had agreed to charge the Ellises

only $2,000 per month in rent, and she herself received the notices of adjustment

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Page 3 of 5

of payment from the Southern Nevada Regional Housing Authority (SNRHA),

which also stated that the contractually agreed upon rent was $2,000 per month.

Yet the undisputed evidence shows that Zheng charged the Ellises $2,300 per

month, and that she received two separate payments from them each month: one

for the difference between $2,000 and the amount Zheng received in housing

assistance payments from SNRHA; and another for the extra $300 per month

Zheng was charging the Ellises. Zheng has offered no plausible explanation for

why she received payments in this fashion if she had not agreed to participate in

the Section 8 voucher program, or any explanation at all for why she would have

believed herself entitled to receive payments from SNRHA in the first place. The

evidence thus clearly shows that Zheng knowingly committed fraud on the

government by collecting more in rent than she was authorized to charge.

2. The district court did not clearly err in calculating the amount Zheng

must pay in damages and penalties. First, the court correctly held, in calculating

the penalties owed under the FCA, that each check Zheng received from SNRHA

was its own “claim against the government fisc” and thus its own separate FCA

violation. United States ex rel. Hendow v. Univ. of Phx., 461 F.3d 1166, 1177 (9th

Cir. 2006). The district court appropriately imposed the lowest penalty per

violation authorized by the regulations—$5,500—for a total of $121,000 in

penalties based on the 22 violations Zheng committed. See 31 U.S.C. Page 4 of 5

§ 3729(a)(1); 28 C.F.R. § 85.3(a)(9).

Second, the court properly calculated the amount owed in damages.

Because the FCA is concerned with fraud on the government, damages are

determined not by how much Zheng overcharged the Ellises, but rather by how

much Zheng overcharged the government—that is, the amounts she received from

the government without lawful entitlement. The HAP stated that Zheng would not

be entitled to any funds from the government if, as occurred here, she failed to

comply with the terms of the agreement. Accordingly, the damages owed are the

entire amount Zheng received from the government. See United States v. Mackby,

339 F.3d 1013, 1018–19 (9th Cir. 2003).

3. The penalties imposed by the district court are substantial, but they do not

violate the Excessive Fines Clause of the Eighth Amendment. The FCA

deliberately prescribes harsh penalties, reflecting Congress’s judgment that

committing fraud on the government is a serious offense. See 31 U.S.C.

§ 3729(a)(1); United States v. Bourseau, 531 F.3d 1159, 1173–74 (9th Cir. 2008).

The district court could have imposed double the penalty per violation. See

Mackby, 339 F.3d at 1018 (“We may properly consider the maximum penalty

prescribed by Congress as part of our Excessive Fines Clause inquiry.”). Indeed,

we have never found an FCA penalty within the range permitted by Congress to

violate the Excessive Fines Clause. See Bourseau, 531 F.3d at 1173. Taking into Page 5 of 5

account the severity of the crime, as adjudged by Congress, the harm to the

government, and the difference between the fine imposed and the penalties

authorized, the fine imposed on Zheng does not violate the Eighth Amendment.

AFFIRMED.