UNITED STATES ex rel. JUAN HONG, A Law Corp v. Newport Sensors, Inc;

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES ex rel. JUAN HONG, A
Law Corp,
Plaintiff-Appellant,
v.
NEWPORT SENSORS, INC; et al.,
Defendants-Appellees.
No. 16-55851
D.C. No.
8:13-cv-01164-JLS-JPR
Central District of California,
Santa Ana
ORDER
Before: W. FLETCHER, BERZON, and OWENS, Circuit Judges.
The memorandum disposition filed on February 28, 2018, and reported at
2018 WL 1078946, is hereby amended. The superseding amended memorandum
disposition will be filed concurrently with this order.
The panel has voted to deny the petition for panel rehearing and rehearing en
banc.
The full court has been advised of the suggestion for rehearing en banc, and
no judge has requested a vote on whether to rehear the matter en banc. Fed. R.
App. P. 35.
The petition for panel rehearing and rehearing en banc is DENIED.
No further petitions for panel rehearing or petitions for rehearing en banc
will be entertained.
FILED
MAR 27 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES ex rel. JUAN HONG, A
Law Corp,
Plaintiff-Appellant,
v.
NEWPORT SENSORS, INC; et al.,
Defendants-Appellees.
No. 16-55851
D.C. No.
8:13-cv-01164-JLS-JPR
AMENDED MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Josephine L. Staton, District Judge, Presiding
Argued and Submitted February 5, 2018
Pasadena, California
Before: W. FLETCHER, BERZON, and OWENS, Circuit Judges.
Relator Juan Hong, A Law Corporation (“Relator”) appeals from the
dismissal of his qui tam False Claims Act (“FCA”) suit against the engineering
firm Newport Sensors, Inc. and its founder, Dr. Maria Q. Feng (together,
“Newport”). The district court granted Newport’s motion to dismiss on the ground
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
MAR 27 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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that Relator’s claims were barred by the FCA’s jurisdictional public-disclosure bar.
As the parties are familiar with the facts, we do not recount them here. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The district court did not abuse its discretion in taking judicial notice of
the seven documents that Newport submitted to demonstrate public disclosure. See
Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001).
Under Federal Rule of Evidence 201, a court may take judicial notice of a
fact that is “not subject to reasonable dispute,” either “because it is generally
known within the court’s territorial jurisdiction,” or because it “can be accurately
and readily determined from sources whose accuracy cannot reasonably be
questioned.” Fed. R. Evid. 201(b). Notably, Newport requested—and the district
court granted—judicial notice of the seven documents “not for the truth of the
information” contained within them, but “merely to show that [the] information
was publicly available.” While Relator challenges the accuracy of Dr. Feng’s
faculty profile from the website of the University of California, Irvine (“UC
Irvine”), he does not dispute the authenticity of the website itself, nor does he
dispute Newport’s suggestion that the profile was publicly available on that site.
Accordingly, the fact of the seven documents’ public availability was not disputed
by the parties nor “subject to reasonable dispute,” and so the district court did not
abuse its discretion in taking judicial notice of that fact. Cf. Daniels-Hall v. Nat’l

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3
Educ. Ass’n, 629 F.3d 992, 998–99 (9th Cir. 2010).
Even assuming the seventh document, the SEC filing, was improper
evidence raised for the first time in a reply, cf. Provenz v. Miller, 102 F.3d 1478,
1483 (9th Cir. 1996), the other six documents adequately support Newport’s
argument: that public documents revealed Dr. Feng’s role at Newport Sensors,
Inc., and her simultaneous employment as a professor at UC Irvine. Accordingly,
if the district court erred in taking judicial notice of the SEC filing, that error was
harmless.1
2. The district court correctly found that Relator’s claims were “based
upon” publicly disclosed transactions, justifying dismissal for lack of subject-
matter jurisdiction. See United States ex rel. Mateski v. Raytheon Co., 816 F.3d
565, 570–74 (9th Cir. 2016).
At all times relevant, the FCA prohibited “knowingly present[ing], or
caus[ing] to be presented, . . . a false or fraudulent claim for payment or approval;
[or] knowingly mak[ing], us[ing], or caus[ing] to be made or used, a false record or
statement to get a false or fraudulent claim paid or approved” by the federal
government. 31 U.S.C. § 3729(a)(1), (2) (2006). To weed out FCA claims not
1 Relator further argues that the district court erred in taking judicial notice
of those documents because the declaration of Newport’s counsel, to which the
first six documents are attached, fails to state that the statements within are “true
and correct.” The district court rejected this argument because the declaration is
properly sworn and certified. This was not an abuse of discretion.

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4
based on genuine whistleblower information, the FCA contains a “public-
disclosure bar” that requires dismissal of any claim grounded on publicly available
information, such as a government report or a news article. See Graham Cty. Soil
& Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 294–95
(2010). As enacted in 1986,2 the public-disclosure bar provides that
No court shall have jurisdiction over an action under this
section based upon the public disclosure of allegations or
transactions in a criminal, civil, or administrative hearing,
in a congressional, administrative, or Government
Accounting Office report, hearing, audit, or investigation,
or from the news media, unless the action is brought by the
Attorney General or the person bringing the action is an
original source of the information.
Pub. L. No. 99-562, 100 Stat. 3153, 3157 (1986) (codified as amended at 31 U.S.C.
§ 3730(e)(4)(A)).
Relator’s claim is “based upon” the allegedly fraudulent “transaction”
disclosed in the seven judicially-noticed documents—that is, that Dr. Feng was
simultaneously employed as a professor at UC Irvine and as the principal
investigator at Newport Sensors, Inc. See Raytheon, 816 F.3d at 570–73. On
2 Though the public-disclosure provision was amended by the Patient
Protection and Affordable Care Act in 2010, Pub. L. No. 111-148, 124 Stat. 119
(2010); see also United States ex rel. Hartpence v. Kinetic Concepts, Inc., 792 F.3d
1121, 1123 n.1 (9th Cir. 2015) (en banc), the district court applied the pre-2010
version. On appeal the parties do not dispute that the pre-2010 version applies to
the claims in this case. Accordingly, we assume for purposes of this appeal that
the pre-2010 version applies.

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appeal, Relator argues that he introduced the undisclosed information that Dr. Feng
“knowingly” submitted the allegedly fraudulent application. But Dr. Feng’s state
of mind was publicly evident from her certification of compliance with the federal
grant requirements—and in any event, Relator forfeited this argument by failing to
raise it to the district court in opposition to Newport Sensors, Inc.’s motion to
dismiss his second amended complaint.
Finally, Relator argues that the UC Irvine webpage cannot qualify as “news
media,” one of the designated channels for public disclosure under the FCA,
because the webpage’s disclaimer renders it too unreliable to come within that
category. We have already rejected that argument. Relator does not independently
challenge the district court’s broad holding that most public webpages, including
the UC Irvine faculty profile, generally fall within the category of “news media.”
Accordingly, we do not address that argument here. See Loher v. Thomas, 825
F.3d 1103, 1120 (9th Cir. 2016).3
AFFIRMED.
3 Relator also raises several technical challenges to the district court’s order:
that Newport’s “Notice of Motion and Motion to Dismiss and Strike” fails to “state
with particularity” Newport’s public-disclosure argument; that this same Notice
mislabels the declaration submitted in support of Newport’s motion to dismiss; and
that Newport failed to cite Federal Rule of Evidence 12(b)(1) in its motion to
dismiss, despite the jurisdictional nature of the pre-2010 public-disclosure bar.
The district court rejected these arguments, and as Relator has alleged no prejudice
resulting from the mistakes or the district court’s acceptance of them, none
warrants reversal.

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