
USCA1 Opinion

	




          February 4, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1549                               SALVATORE A. CIMORELLI,                                Plaintiff, Appellant,                                          v.                              GENERAL ELECTRIC COMPANY,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Evan  T. Lawson  with  whom Caroline  E.  DeStefano and  Lawson  &            _______________             _______________________      _________        Weitzen were on brief for appellant.        _______            Steven A. Kaufman  with whom  Clayton S.  Marsh and  Ropes &  Gray            _________________             _________________      _____________        were on brief for appellee.                                 ____________________                                 ____________________                 Per  Curiam.   Salvatore Cimorelli,  a long-time  former                 ___________            employee of General Electric Company, brought suit against GE            in 1989  under the  False Claims Act,  31 U.S.C.     3729-33.            The gist  of Cimorelli's  complaint was  that at  GE aircraft            engine  operations in  Lynn, Massachusetts, GE  employees had            altered  pencilled  labor  records in  order  to  shift labor            charges  from government contracts  that were over  budget to            government  contracts  that  were   under  budget.    Similar            alterations  were charged with respect to steam turbines made            by GE  in Lynn.   Cimorelli claimed that the  alterations had            occurred from the early 1970s until around 1985.                 The False Claims Act imposes civil penalties plus treble            damages for inter alia presenting a false or fraudulent claim                        __________            to  the  federal  government  or  using  a  false  record  or            statement  to  obtain payment  or  approval  of  a  false  or            fraudulent claim.  Id.   3729(a).  False Claims Act suits may                               ___            be brought by private parties on behalf of the United States,            although  government   attorneys  may  take   charge  of  the            litigation  if the  government so  chooses.   Id.    3730(b).                                                          ___            Here, after  reviewing the litigation, the federal government            declined  to participate.   Accordingly,  the  suit has  been            conducted  by Cimorelli who,  if any recovery  were obtained,            would share in it to the extent provided by the False  Claims            Act.  Id.   3730(c).                  ___                                         -2-                                         -2-                 The district court  in December 1991 set a  deadline for            discovery of May 29, 1992.  Extensive discovery was conducted            by Cimorelli during the first half of 1992.  GE says, without            dispute from  Cimorelli, that  it produced  a vast  number of            labor vouchers and  other records.  On the  day the discovery            ended,  Cimorelli   filed  various  motions  accusing  GE  of            hindering   discovery.    The  motions  were  referred  to  a            magistrate  judge  who  denied them  in  June  1992,  and the            district  court affirmed the  magistrate judge in  July 1992.            New discovery motions  made by Cimorelli in August  1992 were            denied by the district court in September 1992.                 In  July 1992  GE moved  for  summary judgment,  arguing            among other  points that there  was no evidence of  any false            claim  against the government, normally a critical element in            a  suit under  the False  Claims Act.   See United  States v.                                                    ___ ______________            McNinch,  356  U.S.  595,  598-600 (1958).    In  addition to            _______            seeking   further   discovery,  Cimorelli   opposed   summary            judgment,  relying  centrally  on   deposition  testimony  of            Christy  Chipouras, another former employee of GE at the Lynn            facility.     Chipouras  had   given  deposition   testimony,            described  below,  and  was apparently  promised  a  share of            whatever reward Cimorelli might obtain.                   On April 9, 1993, the district court granted GE's motion            for  summary judgment and  issued a memorandum  setting forth            the  court's  reasons.     The  district  court   found  that                                         -3-                                         -3-            Chipouras' testimony  was "largely  conclusory, and  fails to            identify specific  incidents of  voucher falsification  which            can  be linked  to  false  claims  against  the  government."            Accordingly, the court found that there would be insufficient            evidence to  submit the case to  a jury even on  the premise,            which  the  court  tentatively adopted,  that  Cimorelli need            prove his  case only by  a preponderance of the  evidence (as            opposed to  clear and  convincing evidence).   Cimorelli  now            appeals  the grant  of  summary  judgment  and  the  district            court's refusal to allow further discovery.                 Reserving the discovery issue for later discussion,  the            propriety  of  summary judgment  turns  on whether  Cimorelli            pointed the district court to sufficient evidence to permit a            reasonable jury to find that  a false or fraudulent claim was            presented  to the  federal government  relating  to the  Lynn            aircraft  engine  or  turbine operations.    See  Anderson v.                                                         ___  ________            Liberty  Lobby, Inc.,  477 U.S.  242, 252 (1986).   Appellate            ___________________            review of the grant of summary judgment is plenary.  Sarit v.                                                                 _____            U.S. Drug  Enforcement Admin.,  987 F.2d 10,  13 (1st  Cir.),            ____________________________            cert. denied, 114 S.Ct. 241  (1993).  Inferences are normally            ____________            drawn in favor  of the party opposing summary  judgment.  Id.                                                                      ___            On the other hand, more than mere suspicion or speculation is            required to justify a trial.  See Liberty Lobby, 477 U.S.  at                                          ___ _____________            249-50.                                         -4-                                         -4-                 In this  instance, Chipouras testified in  general terms            that  GE  systematically charged  labor  costs  to government            contracts  when  the   labor  had  been  expended   on  other            government  contracts.   This was  accomplished  in part,  he            said,  by having labor vouchers initially completed in pencil            and  then having them  altered by other  personnel, including            Chipouras.   He could  remember only one  specific mischarged            contract--a case  in which  time on  a  private contract  was            charged instead to a federal  government contract number--but            he said that alterations were widespread and systematic.                 GE  offered various  benign  explanations for  preparing            labor   vouchers  initially   in  pencil  and   making  later            alterations.   We agree  with Cimorelli  that, if  this issue            were dispositive, choosing between explanations might well be            an issue  for a  jury.   However, we  agree with  GE and  the            district court that  whatever the  explanation for  pencilled            labor  vouchers and later  alterations, there is  no evidence            whatever  that any false  or fraudulent claims  were actually            presented  to  the government.    Although Cimorelli  charged            pervasive fraud and conducted extensive discovery,  Cimorelli            was unable to point to proof of  a single instance in which a            false  or  fraudulent  claim was  actually  presented  to the            federal government.                 Perhaps where a  contractor's record-keeping conduct  is            unambiguously  sinister, an inference might be drawn that the                                         -5-                                         -5-            misconduct must have been translated into fraud.  But in this            instance the objective conduct--namely, changes in  pencilled            records--is  ambiguous,   despite  the   conclusory  epithets            offered by Chipouras.  Under  these circumstances and on this            record, we  agree that there  was inadequate  evidence for  a            jury as to at least  one critical element, namely, the actual            submission of false  or fraudulent claims to  the government.            We  do not  reach  GE's further  contentions  that clear  and            convincing evidence  was the  required standard  of proof  or            that  Chipouras'  testimony  should be  disregarded  entirely            because it was improperly purchased.                 Cimorelli counters the claim that evidence is lacking by            arguing that a negative inference  should be drawn against GE            because  it  engaged  in  "suppression"  of  evidence  during            discovery,  and Cimorelli  further argues  that the  district            court  abused its  discretion in  failing  to permit  further            discovery  and  failing  to hold  an  evidentiary  hearing on            contested   issues   concerning    GE's   alleged   discovery            misconduct.    Cimorelli's  opening brief  included  specific            claims  that GE did not produce certain information requested            by Cimorelli and specific claims that GE deliberately removed            items  sought by Cimorelli  from boxes of  materials actually            produced.                 We  think it unnecessary to discuss these allegations in            detail.   In  its answering  brief, GE  offered an  extremely                                         -6-                                         -6-            detailed  refutation of these allegations, taking them one by            one.   In answer to each one,  it pointed to record materials            to support its version of events.  For the most part, GE said            that the specific materials sought (1) were actually produced            by  GE but overlooked by Cimorelli  or (2) were nonresponsive            materials that did not have to be produced.   GE responded in            similar detail  to other allegations by  Cimorelli concerning            supposed problems with the logistics of discovery.                 On the face of this facially  thorough refutation by GE,            we turned to Cimorelli's reply brief naturally expecting that            it would show  where GE's version of  events was wrong or  at            least that factual  disputes existed as to some,  if not all,            of  the GE  explanations.   Instead, the  reply brief  simply            ignored  GE's   detailed  answers  and  confined   itself  to            discussing the  standard  of  proof on  the  merits  and  the            admissibility   of   the   Chipouras'   allegedly   purchased            testimony.   If Cimorelli  is not  prepared  to dispute  GE's            answering  brief by  pointing out  where it  is wrong  on the            discovery issues,  we are  certainly not  going to  undertake            that task  ourselves.  Cf.  United States v.  Innamorati, 996                                   ___  _____________     __________            F.2d 456, 468 (1st Cir. 1993) (issues not briefed will not be            addressed).                 Two further facts reinforce our sense that Cimorelli has            not been unjustly  treated in relation to discovery.   One is            that  there  is  no  indication  that  Cimorelli  sought  any                                         -7-                                         -7-            extension  of the discovery  deadline until the  day that the            discovery period  expired.   The second  is that  despite the            present  claim that an  evidentiary hearing should  have been            held  to resolve disputes pertaining to discovery, it appears            that  Cimorelli never made such a  request for an evidentiary            hearing to the district court.  In  sum, we have no basis for            finding  that  the  district court  abused  its  considerable            discretion in the management of discovery in this case.                 Affirmed.                 ________                                         -8-                                         -8-
