NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 10 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID VATAN, Relator; United States of No. 19-55305 America ex rel., D.C. No. Plaintiff-Appellant, 2:14-cv-08961-PA-SS

v.

MEMORANDUM*

QTC MEDICAL SERVICES, INC.;

LOCKHEED-MARTIN CORPORATION,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Submitted July 6, 2020** Seattle, Washington

Before: NGUYEN and BUMATAY, Circuit Judges, and SIMON,*** District Judge.

In this False Claims Act action, David Vatan appeals from the district

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Michael H. Simon, United States District Judge for the District of Oregon, sitting by designation. court’s order granting summary judgment in favor of QTC Medical Services, Inc.

(“QTC”). Our review is de novo. United States ex rel. Kelly v. Serco, Inc., 846

F.3d 325, 329 (9th Cir. 2017). We affirm.

1. Summary judgment was proper on Vatan’s False Claims Act claims

because Vatan cannot establish a “false statement or fraudulent course of conduct”

as required for liability under the Act. United States ex rel. Campie v. Gilead Scis.,

Inc., 862 F.3d 890, 899 (9th Cir. 2017) (quoting United States ex rel. Hendow v.

Univ. of Phx., 461 F.3d 1166, 1174 (9th Cir. 2006)). Vatan argues that QTC

falsely certified that the “entire claims folder” was reviewed when QTC’s analysts

answered “yes” to that question on a checklist that was submitted with QTC’s

requests for payment. Vatan contends that answering “yes” in response to this

question was a false statement because QTC’s training guide instructed analysts

that “through the process of elimination, the entire c[laims] file is reviewed.”

Contrary to Vatan’s claim, there is no evidence that the Department of

Veteran Affairs expected QTC’s reviewers to review every page in order to

truthfully answer “yes” to this question of the checklist. Indeed, it is undisputed

that the Department instructed QTC that its reviewers need not review every page.

Vatan does not offer any evidence that anyone at the VA considered QTC’s use of

a “process of elimination” to be inconsistent with answering “yes.” Simply put,

nothing in the record indicates that analysts were required to review every page of

2 every document in order to truthfully certify “yes” on this question. And the fact

that the VA had a similar understanding suggests that such answers were not

objective falsehoods. See United States ex rel. Lindenthal v. Gen. Dynamics

Corp., 61 F.3d 1402, 1412 (9th Cir. 1995).1

2. Vatan also contends that QTC’s performance fell short of what was

required by QTC’s contract with the VA. But Vatan’s allegations are not

actionable under the False Claims Act because they are untethered to any specific

false representation. See United States ex rel. Hopper v. Anton, 91 F.3d 1261,

1266 (9th Cir. 1996) (violation of a legal requirement does not by itself create

liability under the False Claims Act). Vatan cannot establish liability by making

generic complaints about the quality of QTC’s review and its alleged deviation

from the “purpose” of the contract without pointing to any specific

misrepresentation.2

1 Vatan also relies on his own deposition testimony that a supervisor told him to “ignore” two of the three diseases that analysts were supposed to be reviewing for. His testimony is vague at best and its significance is unclear, especially since analysts were supposed to stop reviewing a file once they made the determination to refer a file for the VA to adjudicate. But even drawing inferences about this testimony in Vatan’s favor, “this court has refused to find a genuine issue where the only evidence presented is uncorroborated and self-serving testimony.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (cleaned up). 2 Vatan’s reliance on Winter ex rel. United States v. Gardens Reg’l Hosp. & Med. Ctr., Inc., 953 F.3d 1108 (9th Cir. 2020) is misplaced. There we held that a physician’s medical opinion can be considered “false” within the meaning of the

3 3. Even if Vatan’s complaints about QTC’s performance under the

contract were treated as a “worthless services” claim, summary judgment for QTC

was still proper. United States ex rel. Lee v. SmithKline Beecham, Inc., 245 F.3d

1048, 1053 (9th Cir. 2001) (holding that “[i]n an appropriate case, knowingly

billing for worthless services” may be actionable). QTC has shown that there is no

genuine issue of fact as to whether its performance was deficient under the

contract—let alone so deficient that it amounted to worthless services. All of the

record evidence suggests that the VA was not only pleased with the work QTC did,

but that it had no complaints whatsoever. Vatan offers no evidence to suggest that

anyone, at the VA or QTC, thought that QTC’s performance was deficient.3

For the foregoing reasons, the district court correctly entered summary

False Claims Act under some circumstances, such as where the opinion is not honestly held by the doctor. Id. at 1117–19. That holding is irrelevant here given that Vatan affirmatively disclaimed any argument that analysts issued “false” opinions as to particular claim files. 3 Vatan’s expert analysis does not change this conclusion. Vatan’s expert concluded only that there was a variation in the rate of “yes” and “no” decisions among different analysts. But even accepting this expert’s conclusion, it says nothing about the accuracy of those determinations, whether any particular file was reviewed incorrectly or incompletely, or the extent to which such non-objective reviews were corrected by the providers during the second-level review. Vatan has not identified a single file that received an inaccurate referral decision nor has he shown that the review was so plagued with inaccuracies that QTC’s performance amounted to essentially no performance at all. See Mikes v. Straus, 274 F.3d 687, 703 (2d Cir. 2001) (“In a worthless services claim, the performance of the service is so deficient that for all practical purposes it is the equivalent of no performance at all.”).

4 judgment in favor of QTC.

AFFIRMED.

5