Albert Hanna v. City of Chicago , 834 F.3d 775 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3305
UNITED STATES OF AMERICA ex rel. ALBERT C. HANNA,
Plaintiff-Appellant,
v.
CITY OF CHICAGO,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 C 4885 — Andrea R. Wood, Judge.
____________________
ARGUED MAY 19, 2016 — DECIDED AUGUST 22, 2016
____________________
Before WOOD, Chief Judge, and POSNER and ROVNER, Circuit
Judges.
WOOD, Chief Judge. In order to receive federal housing
funds, the City of Chicago must certify that it is in compliance
with a number of federal requirements related to reducing the
city’s racial segregation. Albert C. Hanna’s suit against the
City alleges that it violated the False Claims Act because its
policies—in particular, “aldermanic privilege” and strategic
zoning of relatively wealthy neighborhoods—have actually
2 No. 15-3305
increased segregation, making its certifications false. But, as
the district court properly recognized, Hanna has not alleged
the circumstances of the purported fraud with sufficient par-
ticularity to satisfy Federal Rule of Procedure 9(b). We there-
fore affirm its judgment.
I
Chicago is, by its own admission, a “highly segregated
city” and has been for more than 50 years. CITY OF CHICAGO,
2010–2014 CONSOLIDATED PLAN 19 (2010). Whites predomi-
nately live on the North, Northwest, Southwest and far South
Sides, while African-Americans live mostly on the West and
South Sides. Id. at 20. (We omit details about other racial or
ethnic groups, of which there are many, because they are not
central to this case.) This geographic distribution “has re-
mained fundamentally constant” since the 1980 census. Id.
Hanna is a long-time resident of Chicago’s Lincoln Park
neighborhood. For more than half a century, his professional
and personal activities have included real estate develop-
ment, real estate financing, civic affairs, and philanthropy in
Chicago. He has “a particular concern for providing afforda-
ble housing in quality neighborhoods,” and so filed his origi-
nal qui tam complaint in 2011. The United States declined to
intervene in 2013. We evaluate the allegations in his amended
complaint; we assume the truth of these allegations for pre-
sent purposes. Tricontinental Indus., Ltd. v. Pricewaterhouse-
Coopers, LLP, 475 F.3d 824, 833 (7th Cir. 2007).
Hanna alleges that during the six years before he filed this
suit, the City knowingly made false claims and certifications
to the U.S. government. One such representation was that it
had complied—and would comply—with certain civil rights
No. 15-3305 3
requirements. It did this in order to receive more than $1 bil-
lion in funds from federal programs administered by the U.S.
Department of Housing and Urban Development (HUD).
Those requirements arise under several laws. Hanna alleges
that the City “was required … to certify that it [would] admin-
ister each grant in compliance with Title VI, 42 U.S.C. § 2000d,
et seq. and implementing regulations at 24 C.F.R. Part 1,” “the
Fair Housing Act, 42 U.S.C. § 3601, et seq., and its implement-
ing regulations at 24 C.F.R. Part 100,” and “42 U.S.C.
§§ 608(e)(5), 5304(b)(2), and 12705(b)(15) and applicable HUD
regulations.” Finally, he asserts that “[a]s defined by HUD
and by caselaw, the … obligation [affirmatively to pursue fair
housing] requires the City to conduct ‘[a] comprehensive re-
view of [its] laws, regulations, and administrative policies,
procedures and practices[, and a]n assessment of conditions,
both public and private, affecting fair housing choice for all
protected classes.” He has not, however, given any further de-
tails about which specific statutory and regulatory provisions
the City violated, what those provisions said, or how exactly
the City’s conduct violated them.
Hanna separates Chicago’s neighborhoods into two cate-
gories: those with “lower poverty rates, good community ser-
vices and commercial amenities, job opportunities, safe
neighborhoods and good schools” he calls “areas of oppor-
tunity”; those lacking those attributes he labels “low-oppor-
tunity areas.” The City knew, Hanna says, which neighbor-
hoods were typified by segregated living patterns (more than
75% minority population) and which were typified by high
poverty rates (more than 40% of population with incomes be-
low the federal poverty line). The City also knew that there
4 No. 15-3305
was predictable overlap between these categories: the desira-
ble areas had larger White populations and smaller African-
American and Latino populations than Chicago in general.
Hanna asserts that despite its knowledge of these facts and
its obligation to take affirmative steps to secure fair housing,
the City knowingly administered its affordable housing and
funding programs, along with its zoning and land use laws,
with the purpose and effect of locating affordable, multifam-
ily rental housing units in the less desirable areas and discour-
aging their location in the better neighborhoods. Doing so
perpetuated and intensified the already-existing racial and
ethnic segregation of Chicago’s neighborhoods.
The City allegedly enacted these goals through two poli-
cies: “aldermanic privilege” and disproportionately down-
zoning advantaged neighborhoods—that is, rezoning areas
suitable for multifamily development so as to prevent or limit
new construction of such projects. Chicago is divided into 50
wards, each of which elects an alderman to sit on the city
council. Under “aldermanic privilege,” the City grants each
alderman the “full authority to determine whether and where
affordable, multifamily rental housing will be built and reno-
vated in the ward.” According to Hanna, aldermen in the de-
sirable, largely White areas used their authority to prevent
such housing from being built in their wards.
Through these devices, the City directed hundreds of mil-
lions of dollars in federal funds for affordable housing pri-
marily into racially or ethnically segregated, low-income ar-
eas. In the 1960s, 1970s, and 1980s, when a majority of the pro-
jects built with these funds were not controlled by the City,
roughly half of the affordable, multifamily rental housing was
No. 15-3305 5
located in areas that were already well-to-do. In the 1990s, af-
ter the Chicago City Council began administering the funds,
that percentage declined to only ten percent. During the six
years covered by Hanna’s complaint, the City approved fund-
ing of more than 2,600 housing units in 35 developments for
low- and moderate-income families and children. Seven per-
cent of those units were located in wealthier areas; 93% were
located in low-income areas.
The complaint also contends that the City grants aldermen
control over zoning, land use, building codes, and decisions
about affordable housing funding and location within their
wards. Aldermen in primarily White, higher-income neigh-
borhoods use this authority to “downzone” areas suitable for
multifamily development so that this use would be prohibited
or limited. The City’s 2004 Zoning Ordinance also downzoned
many advantaged areas, thus preventing the building of af-
fordable, multifamily housing unless the alderman person-
ally intervenes to rezone parcels for such use.
According to the Mayor’s Zoning Reform Commission,
the 2004 Zoning Ordinance’s stated purpose was to “reinforce
… established patterns” and to “preserve neighborhood char-
acter.” But Hanna contends that this rationale was a
smokescreen: the true purpose and effect was to limit devel-
opment of affordable, multifamily housing units—and there-
fore opportunities for African-American and Latino fami-
lies—in predominantly White neighborhoods. The City also
downzoned or applied landmark status to more than 5,200
acres of private, residentially zoned land. (The City’s Historic
Preservation Ordinance severely limits redevelopment of lo-
cations designated as “landmarks.”) Nearly two-thirds of that
territory was within desirable areas. Meanwhile, the City did
6 No. 15-3305
not analyze or disclose in its five-year “Consolidated Plans”
(submitted to HUD in 2004 and 2010) how its zoning and land
use practices affect fair housing options for African-American
and Latino families.
Hanna sued the City under the False Claims Act (FCA),
31 U.S.C. § 3729(a)(1)(A) and (B), alleging that the City had
falsely certified compliance with its civil rights obligations
while perpetuating policies and practices that increased resi-
dential segregation. Based on these certifications, it submitted
claims that yielded millions of dollars in funds from federal
programs, and thus defrauded the U.S. government. The City
moved under Federal Rule of Civil Procedure 12(b)(6) to dis-
miss the complaint for failure to state a claim. The district
court initially dismissed the complaint without prejudice,
finding that Hanna had not pleaded the alleged fraud with
sufficient specificity, and granted Hanna leave to amend.
Hanna filed an amended complaint, which the City once
again moved to dismiss. The district court granted the City’s
motion, this time with prejudice, and Hanna appealed.
II
We review the district court’s decision to grant the City’s
motion to dismiss de novo. Tricontinental, 475 F.3d at 833. In
relevant part, the FCA imposes liability on any person who
“knowingly presents, or causes to be presented, a false or
fraudulent claim for payment or approval” or “knowingly
makes, uses, or causes to be made or used, a false record or
statement material to a false or fraudulent claim.” 31 U.S.C.
§ 3729(1)(A), (B). To prove an FCA claim, Hanna must show
(1) that the defendant made a statement in order to receive
money from the government; (2) that the statement was false;
and (3) that the defendant knew the statement was false. U.S.
No. 15-3305 7
ex rel. Yannacopoulos v. Gen. Dynamics, 652 F.3d 818, 822 (7th
Cir. 2011).
Because it is an anti-fraud statute, claims under the FCA
are “subject to the heightened pleading requirements of Rule
9(b) of the Federal Rules of Civil Procedure.” U.S. ex rel. Gross
v. AIDS Research Alliance-Chicago, 415 F.3d 601, 604 (7th Cir.
2005) (internal citation omitted). This means that the plaintiff
must “state with particularity the circumstances constituting
fraud or mistake.” FED. R. CIV. P. 9(b). To meet this standard,
the plaintiff must allege “the who, what, when, where, and
how: the first paragraph of any newspaper story.” DiLeo v.
Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990). That includes
“the identity of the person making the misrepresentation, the
time, place, and content of the misrepresentation, and the
method by which the misrepresentation was communicated
to the plaintiff.” U.S. ex rel. Grenadyor v. Ukrainian Vill. Phar-
macy, Inc., 772 F.3d 1102, 1106 (7th Cir. 2014) (internal quota-
tion marks omitted), cert. denied, 136 S. Ct. 49 (2015).
Before addressing the merits, we need to say a word about
what exactly is before us for review. Hanna’s briefs on appeal
set out a number of the statutes and regulations with which
the City allegedly falsely certified compliance—his pleadings,
however, did not. Hanna argues that the statutes and regula-
tions provided in his briefs to this court may be considered
along with his pleadings because a “plaintiff need not put all
of the essential facts in the complaint” but instead “may add
them by affidavit or brief—even a brief on appeal.” Hrubec v.
Nat’l R.R. Passenger Corp., 981 F.2d 962, 963–64 (7th Cir. 1992).
This is true for pleading under Rule 8, which applies to
most pleadings and requires only a “short and plain state-
ment of the claim showing that pleader is entitled to relief.”
8 No. 15-3305
FED. R. CIV. P. 8. Rule 8 requires notice pleading, not fact plead-
ing. Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010).
The party defending the adequacy of a complaint may point
to facts in a brief or affidavit “in order to show that there is a
state of facts within the scope of the complaint that if proved
(a matter for trial) would entitle him to judgment.” Early v.
Bankers Life & Cas. Co., 959 F.2d 75, 79 (7th Cir. 1992). Nothing
in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), or Ashcroft
v. Iqbal, 556 U.S. 662 (2009), changed that rule; those cases
simply emphasized that the pleadings must present a plausi-
ble claim for relief.
Rule 9(b), however, is an exception to the notice pleading
regime. Fraud and mistake must be pleaded with particular-
ity; the pleader is not free to hold back and add facts via affi-
davit or brief. Indeed, the purpose of Rule 9(b) is to “force the
plaintiff to do more than the usual investigation before filing
his complaint.” Ackerman v. Nw. Mut. Life Ins. Co., 172 F.3d 467,
469 (7th Cir. 1999). We thus evaluate Hanna’s allegations only
as they appear in his complaint.
On to the merits. The City argues that Hanna’s complaint
does not satisfy Rule 9(b) because it gives no information
about which regulatory provisions Hanna thinks the City vi-
olated; it does not even draw a link between the statutes
Hanna is now citing and any particular alleged false certifica-
tion. The City has a point. Where the allegedly false certifica-
tion relates to a failure to comply with certain statutory and
regulatory provisions, the plaintiff should be able to tell the
City which ones it flouted, and how and when. If the particu-
larity requirement is meant to ensure more thorough investi-
gation before filing, it is not too much to ask that one aspect
of that investigation include the specific provisions of law
No. 15-3305 9
whose violation made the certification of compliance false.
Moreover, if, as in this case, a defendant is presented only
with an undifferentiated raft of statutory and regulatory pro-
visions, it will be nearly impossible for the defendant to pre-
pare a defense. And the district court will find it quite diffi-
cult, on a motion to dismiss, to determine whether the defend-
ant actually falsely certified compliance with any specific pro-
vision.
Note that we are not saying that plaintiffs in Hanna’s po-
sition must list the City’s promises with any more particular-
ity than that with which the City made them. Unlike the
Ninth, Sixth, and Second Circuits, we have never demanded
that a plaintiff explain in her complaint why the claim was
false. See Cooper v. Pickett, 137 F.3d 616, 625 (9th Cir. 1997);
Frank v. Dana Corp., 547 F.3d 564, 570 (6th Cir. 2008); Rombach
v. Chang, 355 F.3d 164, 170 (2d Cir. 2004). Although we men-
tioned in U.S. ex rel. Garst v. Lockheed-Martin Corp. that the dis-
trict court instructed the plaintiff to state why the claims were
fraudulent, our opinion does not hold that it was necessary to
do so under Rule 9(b). See 328 F.3d 374, 376 (7th Cir. 2003).
Similarly, Gensler v. Strabala, describes the Rule 9(b) standard
somewhat informally as “what [the defendant] said and why
it is false.” 764 F.3d 735, 737 (7th Cir. 2014). But neither of these
cases marked a break with past precedent. Gross is inapposite;
it dealt with whether the plaintiff had sufficiently alleged that
the defendant’s allegedly false statement was meant to “coax
a payment of money from the government.” 415 F.3d at 604.
Hanna’s particularity problems do not end with his failure
to be specific about which statutes or regulations that the City
violated. He also does not allege the “time, place, … and the
method by which the misrepresentation was communicated
10 No. 15-3305
to the plaintiff.” Grenadyor, 772 F.3d at 1106. Beyond the fact
that the certifications were made yearly, “typically in Decem-
ber,” Hanna says nothing more about timing. Nor does he al-
lege the place, either the physical location or the specific doc-
uments.
Finally, he does not indicate how the allegedly false certi-
fication was communicated to him. Although Hanna may
have been able to plead facts about the relevant documents on
information and belief if he had shown they were “not acces-
sible” to him and provided “the grounds for his suspicions,”
Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v.
Walgreen Co., 631 F.3d 436, 443 (7th Cir. 2011), he did neither.
In fact, the documents in question are probably publicly ac-
cessible. This may be the real problem with Hanna’s case: the
FCA is meant to encourage whistleblowing by insiders, and
Hanna seems to have no insider knowledge. See Cause of Ac-
tion v. Chicago Transit Auth., 815 F.3d 267, 273 (7th Cir. 2016)
(noting that Congress in enacting the FCA sought “the golden
mean between adequate incentives for whistle-blowing insid-
ers with genuinely valuable information and discouragement
of opportunistic plaintiffs who have no significant infor-
mation to contribute of their own” (quoting U.S. ex rel. Spring-
field Terminal Ry. Co. v. Quinn, 14 F.3d 645, 649 (D.C. Cir. 1994)).
For a variety of reasons, therefore, Hanna’s complaint was
properly dismissed.
III
We AFFIRM the judgment of the district court.