United States ex rel. Tracy v. Emigration Improvement Dist. ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 28, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA EX. REL.
MARK CHRISTOPHER TRACY,
Plaintiff - Appellant,
v. No. 18-4109
(D.C. No. 2:14-CV-00701-JNP)
EMIGRATION IMPROVEMENT (D. Utah)
DISTRICT, a Utah Special Service District;
BARNETT INTERMOUNTAIN WATER
CONSULTING, a Utah corporation;
CAROLLO ENGINEERS, INC., a California
professional corporation; R. STEVE
CREAMER, an individual; FRED A.
SMOLKA, an individual; MICHAEL
HUGHES, an individual, a/k/a Michael Scott
Hughes; MARK STEVENS, an individual;
DAVID BRADFORD, an individual; LYNN
HALES, an individual; ERIC HAWKES, an
individual; DON A. BARNETT, an
individual; JOE SMOLKA, an individual;
RONALD R. RASH, an individual;
KENNETH WILDE, an individual;
MICHAEL B. GEORGESON, an individual;
KEVIN W. BROWN, an individual,
Defendants - Appellees,
and
THE BOYER COMPANY, L.C., a Utah
company; CITY DEVELOPMENT, INC., a
Utah corporation,
Defendants.
–––––––––––––––––––––––––––––––––––
UNITED STATES OF AMERICA EX. REL.
MARK CHRISTOPHER TRACY,
Plaintiff - Appellant,
v. No. 19-4021
(D.C. No. 2:14-CV-00701-JNP)
(D. Utah)
EMIGRATION IMPROVEMENT
DISTRICT, a Utah Special Service District;
MICHAEL HUGHES, an individual, a/k/a
Michael Scott Hughes; MARK STEVENS, an
individual; FRED A. SMOLKA, an
individual; DAVID BRADFORD, an
individual; ERIC HAWKES, an individual;
LYNN HALES, an individual,
Defendants - Appellees,
and
AQUA ENGINEERING, a Utah corporation;
BARNETT INTERMOUNTAIN WATER
CONSULTING, a Utah corporation; DON
BARNETT; AQUA ENVIRONMENTAL
SERVICES, INC., a Utah corporation; KEVIN
W. BROWN, an individual; CAROLLO
ENGINEERS, INC., a California Professional
corporation; CITY DEVELOPMENT, a Utah
corporation; R. STEVE CREAMER, an
individual; LARRY HALL, an individual;
THE BOYER COMPANY, a Utah company;
JOE SMOLKA, an individual; RONALD R.
RASH; KENNETH WILDE, an individual;
MICHAEL B. GEORGESON, an individual;
ROBERT ROUSSELLE, an individual,
Defendants.
–––––––––––––––––––––––––––––––––––
UNITED STATES OF AMERICA EX. REL.
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MARK CHRISTOPHER TRACY,
Plaintiff - Appellee,
v. No. 19-4022
(D.C. No. 2:14-CV-00701-JNP)
EMIGRATION IMPROVEMENT (D. Utah)
DISTRICT, a Utah Special Service District;
MICHAEL HUGHES, an individual, a/k/a
Michael Scott Hughes; MARK STEVENS, an
individual; FRED A. SMOLKA, an
individual; DAVID BRADFORD, an
individual; ERIC HAWKES, an individual;
LYNN HALES, an individual,
Defendants - Appellants,
and
AQUA ENGINEERING, a Utah corporation;
BARNETT INTERMOUNTAIN WATER
CONSULTING, a Utah corporation; DON
BARNETT; AQUA ENVIRONMENTAL
SERVICES, INC., a Utah corporation; KEVIN
W. BROWN, an individual; CAROLLO
ENGINEERS, INC., a California Professional
corporation; CITY DEVELOPMENT, a Utah
corporation; R. STEVE CREAMER, an
individual; LARRY HALL, an individual;
THE BOYER COMPANY, a Utah company;
JOE SMOLKA, an individual; RONALD R.
RASH; KENNETH WILDE, an individual;
MICHAEL B. GEORGESON, an individual;
ROBERT ROUSSELLE, an individual,
Defendants.
------------------------------
CHRISTENSEN & JENSEN, P.C.,
Attorney - Appellee.
_________________________________
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ORDER AND JUDGMENT *
_________________________________
Before BRISCOE, MORITZ, and CARSON, Circuit Judges.
_________________________________
Mark Tracy appeals the district court’s orders dismissing his complaint and
requiring him to pay attorneys’ fees to Emigration Improvement District (EID) and
other defendants. EID cross-appeals the portion of the order on attorneys’ fees
declining to hold Tracy’s attorneys jointly and severally liable for those fees. For the
reasons explained below, we vacate the district court’s orders and remand for further
proceedings.
Background
Tracy sued EID and others on September 26, 2014, alleging, among other
things, that EID made false statements to obtain a federal loan for a water project in
violation of the False Claims Act (FCA), 31 U.S.C. §§ 3729–33. Tracy amended his
complaint several times, and the United States declined to intervene on several
occasions. Ultimately, Tracy alleged two causes of action in his third amended
complaint: a reverse false claim under § 3729(a)(1)(G) and a direct false claim under
§ 3729(a)(1)(A) and (B).
The district court dismissed Tracy’s complaint with prejudice. As to his
§ 3729(a)(1)(G) cause of action, the district court concluded that Tracy failed to state
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
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a claim on which relief could be granted. 1 Regarding his cause of action under
§ 3729(a)(1)(A) and (B), the district court determined that even if Tracy stated a
claim—which the district court assumed but did not decide—this claim was
nevertheless barred by the statute of limitations. In so holding, the district court noted
that our precedent required it to apply the six-year statute of limitations set forth in
§ 3731(b)(1) to relator-initiated FCA complaints such as Tracy’s, rather than the ten-
year statute of limitations set forth in § 3731(b)(2). See United States ex rel. Sikkenga
v. Regence Bluecross Blueshield of Utah, 472 F.3d 702, 725 (10th Cir. 2006),
abrogated by Cochise Consultancy, Inc. v. United States ex rel. Hunt, 139 S. Ct. 1507(2019). The district court explained that “[a]ny false statements that induced the
[g]overnment to disburse the . . . loan must necessarily have occurred before the date
of the final disbursement: September 29, 2004.” United States ex rel. Tracy v.
Emigration Improvement Dist., No. 2:14-cv-00701, 2018 WL 3111687, at *4 (D.
Utah June 22, 2018) (unpublished). And because Tracy did not sue EID until
September 26, 2014—nearly ten years after that last disbursement—the six-year
limitations period under § 3731(b)(1) had long since passed.
The district court later entered an order requiring Tracy to pay $92,665 in
attorneys’ fees and expenses to EID because (1) EID had prevailed and (2) Tracy’s
“claim[s] . . . [were] clearly frivolous, clearly vexatious, or brought primarily for
purposes of harassment.” 31 U.S.C. § 3730(d)(4). According to the district court,
1
Tracy does not appeal the dismissal of his § 3729(a)(1)(G) cause of action.
5
Tracy’s cause of action arising under § 3729(a)(1)(A) and (B) was clearly frivolous
because Tracy urged the district court to “simply ignore” Sikkenga. United States ex
rel. Tracy v. Emigration Improvement Dist., No. 2:14-cv-00701, 2019 WL 6830890,
at *4 (D. Utah Feb. 5, 2019). The district court also noted that “[e]ach time the
underlying facts were disproved, Tracy changed the basic factual assertions giving
rise to his complaint and made arguments clearly contrary to Tenth Circuit law.” Id.Additionally, the district court explained, Tracy alleged “new damages” after the six-
year period had expired without any factual support for those damages. Id. The
district court further concluded that Tracy’s § 3729(a)(1)(G) cause of action was also
frivolous because “the terms of the loan documents are inconsistent with Tracy’s
conclusory allegation[s].” Id. at *5. And overall, it stated that Tracy’s lawsuit was
“clearly vexatious” and “indicate[d] bad faith and a clear intent to harass” because he
used the litigation to “air personal grievances” and because he directed his attorneys
to file a wrongful lis pendens on EID’s water rights at the outset of the litigation. 2 Id.
at *6.
But the district court declined to hold Tracy’s attorneys jointly and severally
2
After the district court found that Tracy wrongfully filed the lis pendens—
which is a notice of pending litigation “recorded in the chain of title to real
property”—on EID’s water rights, it ordered Tracy to pay statutory damages and
reasonable attorneys’ fees to EID. Lis pendens, Black’s Law Dictionary (11th ed.
2019). Tracy’s attorneys objected to being held jointly and severally liable for the
damages and fees. The district court concluded that this objection created a conflict
between Tracy and his attorneys, so it disqualified them. See United States ex rel.
Tracy v. Emigration Improvement Dist., 717 F. App’x 778, 782 (10th Cir. 2017)
(unpublished). But after Tracy’s attorneys withdrew their objection and offered to
pay the damages and fees, the district court reinstated them.
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liable with Tracy for EID’s attorneys’ fees because after being disciplined for their
conduct related to the wrongful lis pendens, his attorneys had not “multiplie[d] the
proceedings . . . unreasonably and vexatiously.” 28 U.S.C. § 1927. Specifically, the
district court concluded that Tracy’s conduct was not attributable to his attorneys
because the attorneys filed Tracy’s clearly frivolous complaint “based upon factual
representations made by Tracy.” 3 Tracy, No. 2:14-cv-00701, 2019 WL 6830890, at
*7. Further, it noted that Tracy’s attorneys had not, unlike Tracy, “us[ed] the lawsuit
and its allegations to attack [EID] and its business operations.” Id.Tracy appeals the dismissal of his cause of action arising under
§ 3729(a)(1)(A) and (B), as well as the § 3730(d)(4) award against him; EID cross-
appeals from the portion of the fee award declining to hold Tracy’s attorneys jointly
and severally liable under § 1927.
Analysis
In light of an intervening Supreme Court decision, we vacate both of the
district court’s orders. After Tracy and EID briefed the statute-of-limitations issue,
the Supreme Court found that the ten-year § 3731(b)(2) period also applies to private
relators, abrogating our holding in Sikkenga. See Cochise Consultancy, Inc., 139 S.
Ct. at 1511–12. But the district court did not evaluate the timeliness of Tracy’s
3
Despite this finding, the district court attributed to Tracy alone conduct that,
on its face, appears attributable to his attorneys, such as drafting pleadings and
“ma[king] arguments clearly contrary to Tenth Circuit law.” Tracy, No. 2:14-cv-
00701, 2019 WL 6830890, at *4. But because we remand on the statute-of-limitations
issue, we do not reach the issue of whether the district court abused its discretion in
making this finding.
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complaint under § 3731(b)(2) because at the time of its decision, it was bound by
Sikkenga. And in so doing, it only assumed without deciding that September 29,
2004, was the “the last possible date” that an FCA violation could have occurred.
Tracy, No. 2:14-cv-00701, 2018 WL 3111687, at *4. Now that § 3731(b)(2)’s ten-
year period applies to Tracy’s allegations, we remand for the district court to decide
in the first instance whether Tracy filed his complaint “more than 10 years after the
date on which the violation [wa]s committed.” § 3731(b)(2).
Because we vacate the district court’s dismissal order, we must also vacate its
order on attorneys’ fees. To receive “reasonable attorneys’ fees and expenses” from
Tracy, EID must “prevail[] in the action.” § 3730(d)(4). And we cannot say that EID
“prevail[ed] in the action” until the district court decides whether any violation of
§ 3729(a)(1)(A) or (B) occurred less than 10 years before Tracy filed his initial
complaint. Id. On remand, the district court may again find Tracy’s “claim[s] . . .
clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment.”
Id. But it should first determine whether EID in fact “prevails in the action.” Id.
Finally, because the district court premised its § 1927 ruling on joint-and-several
liability—that is, because it considered only whether Tracy’s attorneys should be
held liable along with Tracy for the award against Tracy under § 3730(d)(4)—we
also vacate the portion of the district court’s order declining to hold Tracy’s attorneys
jointly and severally liable under § 1927.
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Conclusion
Accordingly, we vacate the orders of the district court and remand for further
proceedings.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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