                           NOT FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                         MAR 22 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES ex rel. CHARLES                    No.    15-15668
JAJDELSKI,
                                                 D.C. No.
                Plaintiff-Appellant,             2:05-cv-01054-KJD-GWF

 v.
                                                 MEMORANDUM*
KAPLAN, INC.,

                Defendant-Appellee.

                   Appeal from the United States District Court
                            for the District of Nevada
                    Kent J. Dawson, District Judge, Presiding

                      Argued and Submitted March 15, 2017
                           San Francisco, California

Before: McKEOWN and BYBEE, Circuit Judges, and MOLLWAY,** District
Judge.

      Charles Jajdelski, a qui tam relator, appeals the district court’s grant of

summary judgment to Kaplan, Inc. (“Kaplan”) on his False Claim Act (“FCA”)

“phantom student” and retaliatory discharge claims. We review de novo the


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Susan Oki Mollway, United States District Judge for
the District of Hawaii, sitting by designation.
district court’s grant of summary judgment. U.S. ex rel. Aflatooni v. Kitsap

Physicians Serv., 314 F.3d 995, 1000 (9th Cir. 2002). We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

         The district court correctly granted summary judgment on Jajdelski’s

“phantom student” claim. There was no genuine issue of material fact with respect

to this claim.1 While Jajdelski has described a generalized scheme to defraud, he

has “fail[ed] to detail any particular false claim or even to provide sufficiently

detailed circumstantial evidence of such a claim.” Kitsap, 314 F.3d at 1002. The

sole direct evidence of a false claim Jajdelski offers is the case of R.R., the student

who attempted to re-enroll in a Heritage College (“Heritage”) program only to

discover that she was listed as “graduated” even though she had dropped out. But

Robles’s listing on the attendance roster and as falsely “graduated” does not

necessarily mean that Heritage continued to receive student aid funds for Robles

after she left the school. Jajdelski submitted no evidence of a false claim.

         As for circumstantial evidence, the boxes of undistributed diplomas found

by Jajdelski suffer from the same problem: not only was Jajdelski unable to

remember the names of any students for whom the diplomas were issued, but also

the claim that students were falsely “graduated” does not mean that Heritage made

claims for or received student aid funds after those students dropped out.


1
    In view of our decision, we do not reach the corporate entity issue.

                                            2
Similarly, Director of Education Joan Fincher’s statement about graduation is not

linked to an actual false claim. To the extent this evidence shows that Heritage

falsified graduation and placement rates, the evidence goes toward the previously

dismissed accreditation claim, rather than the “phantom student” claim. See U.S.

ex rel. Jajdelski v. Kaplan, Inc., 517 F. App’x 534, 536 (9th Cir. 2013).

      Finally, although Kaplan’s subsidiary did voluntarily refund tuition to 51

students, Jajdelski has not been able to identify any specific examples of additional

false claims, even though Kaplan provided Jajdelski with access to extensive

student records during discovery.

      Jajdelski’s retaliatory discharge claim is barred by the law of the case.

United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997). In the first appeal,

Jajdelski did not challenge the district court’s dismissal of this claim. See Brief of

Plaintiffs-Appellants, Kaplan, 517 F. App’x 534 (No. 11–16651), 2011 WL

9686577 at *2. Accordingly, the previous panel reversed only as to Jajdelski’s

FCA “phantom student” claim and “conclude[d] that all of Jajdelski’s other

allegations were properly dismissed.” See Kaplan, 517 F. App’x at 536.

      AFFIRMED.




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