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[NOT FOR PUBLICATION]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 & G
_________________
_________________
__________
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

The gist
engine

False Claims Act,

of Cimorelli's
operations in

charges

from government contracts

alterations
by GE

that at

GE aircraft

Lynn, Massachusetts, GE

pencilled

labor

contracts

3729-33.

complaint was

altered

government

31 U.S.C.

that

records in

were

order

employees had
to

that were over

under

budget.

shift labor
budget to
Similar

were charged with respect to steam turbines made

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

statement

to

government

or

obtain payment

fraudulent claim.

Id.
___

or

3729(a).

using

false

approval

of

record

or

false

or

False Claims Act suits may

be brought by private parties on behalf of the United States,

although

government

litigation

if the

Here, after
declined
conducted

attorneys
government so

may

take

chooses.

charge
Id.
___

Id.
___

the

3730(b).

reviewing the litigation, the federal government

to participate.

Accordingly,

by Cimorelli who,

the

if any recovery

suit has

been

were obtained,

would share in it to the extent provided by the False

Act.

of

Claims

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.

dispute from

Cimorelli, that

it produced

a vast

labor vouchers and

other records.

On the

ended,

filed

motions

Cimorelli

hindering

discovery.

magistrate

judge

district

various
The

who

motions

denied them

court affirmed the

New discovery motions

GE says, without

day the discovery

accusing

were

in

number of

GE

of

referred

to

1992,

and the

June

magistrate judge in

July 1992.

made by Cimorelli in August

1992 were

denied by the district court in September 1992.

In

July 1992

among other
claim
a

GE moved

for

points that there

summary judgment,

was no evidence of

arguing
any false

against the government, normally a critical element in

suit under

the False

McNinch,
_______

356

seeking

further

judgment,
Christy

relying

595,

See United States v.

___ ______________

598-600 (1958).

discovery,
centrally

Cimorelli
on

In

addition to

opposed

deposition

summary

testimony

of

Chipouras, another former employee of GE at the Lynn

facility.
described

U.S.

Claims Act.

Chipouras
below,

and

had

given

deposition

was apparently

promised

testimony,
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

the

court's

The

reasons.

-3-

district

court

setting forth
found

that

-3-

Chipouras' testimony
identify specific
can

be linked

was "largely

incidents of

to

false

claims

conclusory, and

fails to

voucher falsification
against

the

which

government."

Accordingly, the court found that there would be insufficient

evidence to
which

the

submit the case to

court

tentatively adopted,

prove his

case only by

opposed to

clear and

appeals

a jury even on

the grant

of

that

the premise,
Cimorelli need

a preponderance of the
convincing evidence).
summary

judgment

evidence (as
Cimorelli

and

the

now

district

court's refusal to allow further discovery.

Reserving the discovery issue for later discussion,
propriety

of

summary judgment

turns

on whether

the

Cimorelli

pointed the district court to sufficient evidence to permit a

reasonable jury to find that
presented
aircraft

to the
engine

a false or fraudulent claim was

federal government
or

Liberty Lobby, Inc.,

___________________

relating

turbine operations.
477 U.S.

See
___

to the

Lynn

Anderson v.
________

242, 252 (1986).

review of the grant of summary judgment is plenary.

Appellate
Sarit v.
_____

U.S. Drug Enforcement Admin.,

____________________________
cert. denied, 114 S.Ct. 241
____________
drawn in favor

987 F.2d 10,

(1993).

13 (1st

Cir.),

Inferences are normally

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
that

GE

contracts
government
said,
and

instance, Chipouras testified in

systematically charged
when

the

contracts.

labor

labor

had

This was

been

costs

general terms
to government

expended

accomplished

on

other

in part,

he

by having labor vouchers initially completed in pencil

then having them

Chipouras.

He could

contract--a case

altered by other

personnel, including

remember only one

specific mischarged

in which

time on

private contract

was

charged instead to a federal

government contract number--but

he said that alterations were widespread and systematic.

GE

offered various

labor

vouchers

alterations.

benign

initially

We agree

in

explanations for
pencil

with Cimorelli

and

preparing

making

that, if

later

this issue

were dispositive, choosing between explanations might well be

an issue

for a

jury.

district court that

labor

However, we

whatever the

vouchers and later

whatever
presented

that any false

to

agree with

GE and

explanation for

alterations, there is
or fraudulent claims

the government.

false

or

fraudulent

claim was

pencilled
no evidence

were actually

Although Cimorelli

pervasive fraud and conducted extensive discovery,

was unable to point to proof of

the

charged
Cimorelli

a single instance in which a

actually

presented

to the

federal government.
Perhaps where a
unambiguously

contractor's record-keeping conduct

is

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

records--is

ambiguous,

offered by Chipouras.
record, we

despite
Under

agree that there

the

pencilled

conclusory

epithets

these circumstances and on this

was inadequate

evidence for

jury as to at least

one critical element, namely, the actual

submission of false

or fraudulent claims to

We

do not

reach

GE's further

convincing evidence
that

Chipouras'

was the

testimony

contentions

the government.
that clear

required standard
should be

of proof

disregarded

and
or

entirely

because it was improperly purchased.

Cimorelli counters the claim that evidence is lacking by
arguing that a negative inference
because

it

engaged

discovery,
court

"suppression"

and Cimorelli

abused its

discovery

and

contested

of

further argues

discretion in

failing

issues

misconduct.
claims

in

should be drawn against GE

to hold

concerning

Cimorelli's

failing
an

evidence
that the

district

to permit

further

evidentiary

GE's

alleged

opening brief

during

included

hearing on
discovery
specific

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
detail.

think it unnecessary to discuss these allegations in

In

its answering

brief, GE

-6-6-

offered an

extremely

detailed
one.

refutation of these allegations, taking them one by

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.

similar detail

to other allegations by

GE responded in

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

least that factual

of

the GE

ignored

disputes existed as to some,

explanations.

GE's

Instead, the

detailed

answers

discussing the

standard

of

admissibility

of

testimony.
answering

that task

the

If Cimorelli
brief by

discovery issues,

events was wrong or

proof on

Chipouras'

if not all,

reply brief
confined
the

itself

to

and

the

merits

allegedly

simply

purchased

is not

prepared

to dispute

pointing out

where it

is wrong

we are

ourselves.

and

Cf.
___

certainly not

going to

United States v.
_____________

at

GE's
on the

undertake

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
that

there

is

treated in relation to discovery.

no

indication

that

Cimorelli

One is

sought

any

-7-7-

extension

of the discovery

discovery period
present

expired.

claim that an

deadline until the

The second

day that the

is that

despite the

evidentiary hearing should

have been

held

to resolve disputes pertaining to discovery, it appears

that

Cimorelli never made such a

hearing to the district court.

finding

that

the

In

district court

request for an evidentiary

sum, we have no basis for
abused

its

considerable

discretion in the management of discovery in this case.

Affirmed.
________

-8-8-