UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ THE UNITED STATES OF AMERICA EX REL. MICHELE COFFMAN, Plaintiff - Appellant,

v. THE CITY OF LEAVENWORTH, KANSAS, Defendant - Appellee. No. 18-3156 (D.C. No. 2:14-CV-02538-JAR) (D. Kan.)

________________ _________________ ORDER

________________ _________________ Before McHUGH , BALDOCK , and KELLY , Circuit Judges.

________________ _________________ Appellant has submitted a petition for panel rehearing. Upon c onsideration, the panel grants the petition to the extent of the modifications co ntained in the attached revised order and judgment. The o rder and judgment filed on Ma rch 29, 2019, is hereby withdrawn, and shall be replaced by the attached revised order and judgment effective the date of this order. The Clerk is directed to file the attached revised order and judgment forthwith.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk FILED United States Court of Appeals Tenth Circuit 

### May 10, 2019
Elisabeth A. Shumaker Clerk of CourtUNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ THE UNITED STATES OF AMERICA EX REL. MICHELE COFFMAN, Plaintiff - Appellant,

v. THE CITY OF LEAVENWORTH, KANSAS, Defendant - Appellee. No. 18-3156 (D.C. No. 2:14-CV-02538-JAR) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before McHUGH , BALDOCK , and KELLY , Circuit Judges.

________________ _________________ Michele Coffman appeals the dist rict court’s grant of summary j udgment in favor of the City of L eavenworth, Kansas, on her claims under t he False Claims Act (FCA), 31 U.S.C. §§ 3729-33. Exe rcising jurisdiction under 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral ar gument. This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 10, 2019
Elisabeth A. Shumaker Clerk of Court2 I. Background Coffman was employed between 2010 and 2013 at the City’s wastew ater treatment plant (WWTP) . In 2014, she brought a qui tam action against the City under the FCA. 1 The district court granted summ ary judgment in the City’s fav or. She addresses on appeal only her FCA claims alleging that the C ity fraudulently billed three federal agen cies for sewer service. Coffman claims that the City subm itted monthly sewer bills to t he United States Army, the Bureau of Prison s, and the Veterans Administra tion that falsely implied that the City had comp lied with all applicable environm ental laws. She claims that the City’s certificat ion of compliance was false be cause it had violated environmental laws in four specific ways: (1) the City allowed sewage to leak into a creek from a broken sewer pipe that it did not repair for 15 months, allegedly in violation of the Clean Water Act (CWA) and the City’s discharge permit (NPDES permit 2 );

1 Coffman asserted additional clai ms against the City, including FCA retaliation and state-law claims for whistle blower retaliation , retaliatory discharge, and negligent infliction of emo tional distress. These claims a re not at issue in this appeal.

2 Pollutant dischargers can obtai n a permit through the National Pollutant Discharge Elimination System (NP DES) permit program, administer ed by the EPA and authorized states. See 33 U.S.C. § 1342(a)-(b). “N oncompliance with a permit constitutes a violati on of the [CWA].” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 174 (2000). The E PA delegated to the Kansas Department of Health and Envir onment (KDHE) the authority to re gulate wastewater discharge in the s tate of Kansas.3 (2) the City discharged treated effluent into the same creek to improve its smell and color during the period that the broken sewer pipe wa s leaking, also allegedly in violation of the CWA and its NPDES permit; (3) the City used a “Vactor Truck ” (an industrial truck equippe d with a vacuum) to clear out objects fro m the sewer system, after which it dumped the solid contents of the truck onto the ground in an area behind the WWT P, allegedly in violation of a feder al regulation; and (4) per a consent order issued in December 2015, the EPA found that between March 2010 and March 2014 the City had violated its NPDES permi t by discharging pollutants at non-permitted loca tions due to sanitary sewer ove rflows. There is no dispute that the City did not inform its federal ag ency sewer customers of any of these issues. The district court held that Coff man failed to pr esent evidence that would lead a reasonable trier of fact to fi nd that any of the implied fals e certifications were material to the federal agencies ’ decisions to pay their monthl y invoices for wastewater treatment services. The court also concluded that C offman failed to present evidence that the invoices were submitted with the requ isite scienter under the FCA.
II. Discussion We review the district court’s grant of summary judgment de nov o. U.S. ex rel. Thomas v. Black & Veatch Special Projects Corp. , 820 F.3d 1162, 1168 (10th Cir. 2016). Summary judgmen t is appropriate “if the mova nt shows that there4 is no genuine dispute as to any material fac t and the movant is entitled to judgment as a matter of law.” Fed. R. Civ . P. 56(a). We view the factual record and draw all reasonable inferences in Coffman’s favor. See Thomas , 820 F.3d at 1168.
A. The FCA imposes liability when a person “knowingl y presents, or causes to be presented, a false or fraudulent claim for payment or approval. ” 31 U.S.C. § 3729(a)(1)(A). Coffman’s compl aint alleged that the City mad e legally false requests for payment. See U.S. ex rel. Lemmon v. Envirocare of Utah, Inc. , 614 F.3d 1163, 1168 (10th Cir. 2010) (“C laims arising from legally false requests . . . generally require knowingly false certification of compliance w ith a regulation or contractual provision . . . .”). And she relied on an implied false certification theory of liability. See id. ; see also Universal Hea lth Servs., Inc. v. U.S. ex rel. Escobar , 136 S. Ct. 1989, 1995 (2016) (ho lding that, “at least in certai n circumstances, the implied false certification th eory can be a ba sis for liability ”). “According to this theory, when a defendant submits a claim, it impl iedly certifie s compliance with all conditions of payment.” Escobar , 136 S. Ct. at 1995. An FCA claim must satisfy materi ality and scienter requirements , both of which are “rigorous” a nd strictly enforced. Id. at 2002. Here, the district court held that Coffman failed to show a mat erial factual dispute as to ei ther materiality or scienter. Regarding sc ienter, Coffman was required to prove th at the City “knowingly” presented a false c laim to the government for payme nt or approval. § 3729(a)(1)(A). “[K] nowingly . . . mean[s] that a person, wit h respect to5 information”: (1) “has actual knowledge of the information”; ( 2) “acts in deliberate ignorance of the truth or falsit y of the information”; or (3) “ acts in reckless disregard of the truth or falsity of the i nformation.” § 3729(b)(1)(A) ( internal quotation marks omitted). 3 Accordingly, “[t]he proper focus of the scienter inquiry under § 3729(a) must always rest on the defendant’s ‘ knowledge’ of whether the claim is false . . . .” U.S. ex rel. Burlbaw v. Orenduff , 548 F.3d 931, 952-53 (10t h Cir. 2008). Coffman “must show more than a falsehood— [she] must show that [the City ] knowingly presented a false cl aim for payment.” U.S. ex rel. Smith v. The Boeing Co. , 825 F.3d 1138, 1149 (10th Cir. 2016). And Coffman “must prove scienter as an element; it cannot be presumed.” Burlbaw , 548 F.3d at 955.
B. In her opening appeal brief, Coffm an asserts that she has shown , elsewhere in her brief, that “the City did not comply with environmental law s in numerous instances.” Aplt. Opening Br. a t 53. She argues that “the fac t that environmental compliance was the very essence o f the contracts for wastewater treatment can establish scienter that environmental compliance was material [to the City’s federal agency sewer service customers].” Id. at 54 (emphasis added). T o establish scienter regarding the falsity of the City ’s claims for payment, Coffman maintains that “[s]cienter can be found within a corporate entity even if ther e is not a single

3 Subsequent uses of the term “ knowingly,” and derivations of th at term, assume the full statutory definition.6 individual responsible for both compliance and contracting issu es.” Id. at 51. She contends that, because the City’ s organizational structure prev ented it from learning the facts that made its claims fo r payment false, the City ther efore acted in deliberate ignorance or reckless disregard o f the falsity of its invoices submitted to the federal agencies. Id. at 52. For this proposition, Coffman cites United States v. Sc ience Applications International Corp. , 626 F.3d 1257, 1275-76 (D.C. Cir. 2010) ( SAIC ), in which our sister circuit held that “[u]nde r the FCA, if a plaintiff can p rove that a government contractor’s structure prevented it from learning facts that ma de its claims for payment false, then the plainti ff may establish that the compan y acted in deliberate ignorance or reckless disregard o f the truth of its claims.” T he court reached this holding in the context of reject ing the government’s contention that scienter can be based on a “collective knowledg e” theory and remanding for a ne w trial due to an erroneous scienter instruction. See id. at 1273-77. In particular , the court stated that Congress adopted the definition of “knowingly” in the FCA to in clude deliberate ignorance or reckless disregard “ to capture the o strich-like co nduct which can occur in large corporations w here corporate office rs insulate themsel ves from knowledge of false claims submitted by lo wer-level subordinates.” Id. at 1274 (ellipsis and internal quotation marks omitted). Thus, t he definition of “knowingly” is meant to address the “compartmentalization problem ,” where corporations “evad[e] liability by compartmentalizing knowledge, s ubdividing the elements of speci fic duties and7 operations into smaller components.” Id . at 1275 (brackets a nd internal quotation marks omitted). Coffman asserts that the City has the kind of compartmentalized structure described in SAIC . She supports this assertion with three facts: First, the Ci ty’s WWTP operators are not responsibl e for submitting invoices to t he federal agencies. (Although Coffman does not cite a ny evidence supporting this fa ctual assertion, there appears to be no dispute that t his is the case). Second, the C ity’s finance director testified that the City submitted invoices to the Army based on that agency’s flow level and its portion of the ope ration and maintenance costs. Aplt. Opening Br. at 52 (citing Aplt. App., Vol. IV at 1025). Third, Coffman contends there is no evidence that the City’s finance employ ees inquired of WWTP employees re garding compliance with environmental la ws before submitting invoices. Accepting the court’s reasoning in SAIC for purposes of Coffman’s contention, these facts alone do not show tha t the City’s organizational st ructure prevented it from learning the facts that made its claims for payment false. The finance director’s testimony regarding how the Army’ s bills were calculated is not probative of the information her department had about the City’s environmental c ompliance at the times the bills were submitted. Nor does a lack of affirmative inquiry by finance employees demonstrate an organ izational structure that prevented the City from learning the relevant facts. I ndeed, the City has cited eviden ce that its public works director was involved with both th e events at the WWTP and the City’s obligations under the federal contracts. See Aplt. App., Vol. II at 276 -78. Coffman has not8 pointed to evidence demonstrati ng that the City’s organizationa l structure did not allow it to determine the falsit y of its claims for payment. Moreover, the City argues that it “has never contended that it lacks scienter because its finance department, which submits the invoices to t he City’s federal sewage customers, lacked knowle dge of any underlying NPDES perm it violation.” Aplee. Br. at 43. Thus, Coffman’s “compartmentalization” conte ntion is ultimately a straw man argument that fails t o satisfy her burden to demonstr ate scienter. Coffman concludes her scienter d iscussion by asserting that, “b ecause the City had the requisite scienter as t o materiality while failing to m ake even basic inquiries about whether the City was in c ompliance with environmental obl igations before creating each invoice, the City a cted with deliberate ignorance or reckless disregard for the truth (scienter) when submitting ‘knowingly false’ mont hly claims to federal agencies.” Aplt. Opening Br. a t 55. For this duty of “diligen t inquiry” proposition, Coffman cites the district c ourt’s decision on remand from SAIC

. See Aplt. Opening Br. at 52 (citing U.S. v. Science App lications Int’l Corp. , 958 F. Supp. 2d 53, 69-70 (D.D.C. 2013) ( SAIC DDC )).
In SAIC DDC , the district court read the D .C. Circuit’s decision as “limit [ing] the theories an FCA plaintiff can use to prove that a defendant had constructive knowledge that its claims or state ments were fals e” to a “show[ ing] that the organization’s structure or pro cesses prevented one employee fr om learning of the falsity of the claim.” SAIC DDC , 958 F. Supp. 2d at 69 & n.8. Consequently, the government contended that SAIC’s compliance system “prevented [ it] from9 determining the truth or falsity of its claims or statements.” Id. at 69. And the district court held that “there is sufficient ev idence for a ju ry to find that SAIC’s compliance system did not allow SA IC to determine the truth or falsity of its claims
or statements.” Id. at 70. Thus, SAIC DDC applied SAIC ’s “compartmen talization” analysis. And we have already rejected that cont ention with regard to the City’s organizational

structure. SAIC DDC does not support Coffman’s c ontention that the City’s knowledge of materiality, combin ed with a failure to inquire, i s sufficient to establish scienter. We need not address a contention not supported by re levant authority. See Fed. R. Civ. P. 28(a)(8)(A) (requi ring appellant’s argument to contain citations to authorities); Rapid Transit Lines, Inc. v. Wichita Developers, Inc. , 435 F.2d 850, 852 (10th Cir. 1970) (“[The appella nt’s] citation of but one author ity, and that of no pertinence, suggests either that there is no authority to susta in its position or that it expects the court to do its research.”).
C. Coffman does not address in her opening brief whether, assumi ng there were environmental violations, there is evidence that the City submi tted claims for payment to the federal agencies when WWTP employees knew of (or were deliberately ignorant of or reckle ssly disregarded ) such violat ions. See Smith , 825 F.3d at 1149 (holdi ng that, even assuming products defendan t sold to the government failed to comply with federal regulations, the recor d did not support the relators’ contention that defe ndant knew about the nonconformit ies when submitting10 claims for payment). Coffman om itted any discussion of this is sue despite her extensive briefing of it in the district court, see Aplt. App., Vol. V at 1110-17. Although it was her burden to com e forward on appeal with her c ontentions and evidence supporting the scienter e lement of her FCA claim, she did not raise these same contentions in her opening brief. “[W]e routinely have declined to consider arguments that are no t raised, or are inadequately presented, in an appellant’s opening brief.” Bronson v. Swensen , 500 F.3d 1099, 1104 ( 10th Cir. 2007). “Stated differently, the omission of an issue in an opening brief generally for feits appellate consideration of that issue.” Id. Coffman does address this issue in her reply bri ef, but that to o is insufficient to preserve it for a ppellate review. See Stump v. Gates , 211 F.3d 527, 533 (10th Cir. 2000) (“This court does not ordin arily review issues raised for the first time in a reply brief.”); Starkey ex rel. A.B. v. Boulder Cty. Soc. Servs. , 569 F.3d 1244, 1259 (10th Cir. 2009) (“The same rati onale applies when the only evi dence supporting a claim is not cited until the rep ly brief.”). Although Coffman responds in her reply brief to the City’s contention th at WWTP employees lacked knowl edge of environmental violations cause d by the bypass events and the Va ctor Truck procedures, her failure to addr ess this issue in her opening br ief deprived the City— as the appellee—of the opportunity to respond to her belated fa ctual assertions and arguments. See Headrick v. Ro ckwell Int’l Corp. , 24 F.3d 1272, 1278 (10th Cir. 1994) (“[T]o allow an appellant t o raise new arguments at this juncture would be manifestly unfair to the appelle e who, under our rules, has no opportunity for a11 written response.” (internal quot ation marks omitted)). We see no compelling reason in this case to deviate from the rule that contentions not rais ed in an opening brief are forfeited. 4 Coffman’s FCA claims required her to prove scienter. We have a ddressed the contentions that she sufficiently raised on appeal. She does n ot demonstrate error in the district court’s holding that she failed to present evidenc e that would lead a reasonable trier of fact to fi nd that the City submitted invoic es to the federal agencies with the requisite scienter. We therefore affirm the district court’s grant of summary judgment in favor of the City on Coffman’s FCA claims.
III. Conclusion The district court’s judgment is affirmed.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge

4 We have sometimes considered ar guments raised for the first ti me in a reply brief because the appellant was responding to a contention rais ed in the appellee’s brief. See, e.g., Sadeghi v. I.N.S. , 40 F.3d 1139, 1143 ( 10th Cir. 1994). The circumstances in this cas e are distinguishable.