PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-1575

UNITED STATES EX REL. CITYNET, LLC,

Plaintiff - Appellee,

v.

JIMMY GIANATO, individually; GALE GIVEN, individually,

Defendants - Appellants,

and

FRONTIER WEST VIRGINIA, INC., a West Virginia corporation; KENNETH 

ARNDT, individually; DANA WALDO, individually; MARK MCKENZIE, 

individually, KELLY GOES, individually,

Defendants.

Appeal from the United States District Court for the Southern District of West Virginia, at 

Charleston. John T. Copenhaver, Jr., Senior District Judge. (2:14-cv-15947)

Argued: January 29, 2020 Decided: June 22, 2020

Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.

Vacated and remanded by published opinion. Judge Niemeyer wrote the opinion, in which 

Judge Wilkinson and Judge Motz joined.
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ARGUED: Geoffrey A. Cullop, PULLIN, FOWLER, FLANAGAN BROWN & POE, 

PLLC, Charleston, West Virginia, for Appellants. Benjamin L. Bailey, BAILEY & 

GLASSER LLP, Charleston, West Virginia, for Appellee. ON BRIEF: Stephen M. 

Fowler, PULLIN, FOWLER, FLANAGAN BROWN & POE, PLLC, Charleston, West 

Virginia, for Appellants. Rebecca L. Donnellan-Pomeroy, BAILEY & GLASSER LLP, 

Charleston, West Virginia, for Appellee.
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NIEMEYER, Circuit Judge:

Acting on behalf of the United States, a West Virginia company, Citynet, LLC, 

commenced this “qui tam” action against West Virginia officials Jimmy Gianato, Gale

Given, and others, alleging in nine counts that the defendants defrauded the United States 

when obtaining federal funding for a program to improve broadband connectivity for West 

Virginia residents, in violation of the False Claims Act (“FCA”), 31 U.S.C. § 3729 et seq. 

Specifically, Citynet alleged that Gianato and Given, respectively the Director of the West 

Virginia Division of Homeland Security and Emergency Management and the State 

Technology Officer, along with other defendants, knowingly submitted false statements 

and records to the United States as part of their application for funding under the federal 

Broadband Technology Opportunities Program and, once the funding was obtained, made 

false claims in drawing down funds under the Program. 

Gianato and Given filed a motion to dismiss the complaint, asserting, among other 

things, that it failed to state plausible claims for relief and that they were, in any event,

entitled to qualified immunity. The district court ruled that, with the exception of two 

counts against Given related to her involvement in the preparation of the grant application, 

the complaint adequately alleged that Gianato and Given had violated the FCA. And with 

respect to qualified immunity, the court ruled that “the determination of whether [Gianato 

and Given are] entitled to the defense [of qualified immunity] [had to] be deferred until a 

later time in light of evidentiary development, such as at the summary judgment stage.” It 

explained that resolving the immunity question required further fact-finding with respect 

to each official’s state of mind in allegedly violating the FCA. In so concluding, the district 
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court implicitly assumed that government officials could invoke qualified immunity as a 

defense to claims brought under the FCA. 

Gianato and Given filed this interlocutory appeal from the district court’s ruling on 

qualified immunity, claiming that, because qualified immunity is an immunity from suit, 

they ought to be shielded from participating in further proceedings before the district court. 

Citynet filed a motion to dismiss the appeal, contending that the district court’s ruling that 

further facts were needed before ruling on immunity is not immediately appealable. 

Citynet also argued that, in any event, persons violating the FCA cannot be protected by

immunity because they “knowingly perpetrated a fraud on the United States government.” 

Because the district court’s ruling was contingent on the answer to the threshold

legal question of whether qualified immunity may be invoked as a defense to FCA claims, 

we exercise appellate jurisdiction and hold that qualified immunity does not apply to 

protect government officials from claims against them for fraud under the Act. 

Accordingly, we vacate the district court’s immunity ruling and remand with the instruction 

that the district court deny Gianato and Given’s claim of qualified immunity.

I

Under the American Recovery and Reinvestment Act of 2009, Congress 

appropriated approximately $4.7 billion in federal funds for the Broadband Technology 

Opportunities Program, seeking to create jobs and expand broadband access in rural and 

underserved communities. On behalf of the Executive Office of the State of West Virginia, 

Gianato and others submitted an application for funding under the Program with a proposal 
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for a “middle-mile” project, which would link a telecommunications carrier’s core network 

to local hubs, such as schools, libraries, and healthcare facilities. In February 2010, the 

Executive Office received a grant of over $126 million in Program funding for that project. 

Citynet, a communications service provider that had unsuccessfully applied for 

Program funding, commenced this action on behalf of the United States under the FCA. It

alleged in nine counts that Gianato, Given, and various other defendants not involved in 

this appeal engaged in a scheme to fraudulently cause the federal government to award 

Program funds to the Executive Office by knowingly submitting false statements and

records as part of the grant application and by subsequently submitting false claims to the 

federal government for payments under the Program. According to the complaint, the 

defendants prepared the grant application with the intent that another entity, Frontier West 

Virginia, Inc., “be the actual recipient of [any] grant funds awarded to the [Executive 

Office],” and, as a result, the Executive Office’s grant proposal contained numerous 

material misrepresentations. Citynet also alleged that, once the Executive Office had been 

awarded a grant under the Program, it coordinated with Frontier to submit false invoices to 

the government while fraudulently using the funds in pursuit of a project entirely different 

from the one that had been awarded federal funding. Thus, Frontier, through the Executive 

Office, billed the federal government for “material and labor it did not provide, and for 

fiber links that were not constructed.” 

Gianato and Given filed a motion to dismiss the complaint under Federal Rule of 

Civil Procedure 12(b)(6), arguing, inter alia, that each count against them failed to state a 

plausible claim for relief; that, as state officials sued in their individual capacities for 
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conduct undertaken in the course of their official duties, they were not “persons” subject 

to liability under the FCA; and that, in any event, they were entitled to qualified immunity.

In a 104-page opinion and order dated March 30, 2018, the district court granted the 

motion to dismiss in part and denied it in part. As relevant to this appeal, the court 

determined that, with the exception of two counts against Given related to the preparation 

of the grant application, Citynet had adequately pleaded that both Gianato and Given had 

violated the FCA. The court deferred ruling on Gianato and Given’s assertion of qualified 

immunity, concluding that, without further facts, it could not determine the level of scienter 

with which they had acted or, relatedly, whether their actions had violated a clearly 

established right. Recognizing that the FCA requires a showing that the defendant acted

with actual knowledge, deliberate ignorance, or reckless disregard, the court observed that 

“a reasonable person with ‘actual knowledge’ of his fraud would doubtlessly know that the 

fraud he perpetrates is wrong. At the other end, whether a reasonable person ‘act[ing] in 

reckless disregard of the truth’ would recognize that his actions constitute a fraud under 

the FCA is a much closer issue.” The court concluded: 

While the complaint sufficiently alleges that the defendants acted with the 

requisite scienter, the court cannot at this juncture decide the level of scienter 

with which [Gianato and Given] acted in allegedly violating the FCA. That 

obfuscates the qualified immunity analysis as set forth above, and the 

qualified immunity decision consequently must be deferred until a time when 

the court can make an informed decision based upon the evidence.

Gianato and Given filed this interlocutory appeal from the district court’s immunity 

ruling, asserting that it was a “final decision under the collateral order doctrine.” 
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Contending otherwise, Citynet filed a motion to dismiss the appeal, and we deferred ruling

on the motion pending briefing on the merits and oral argument.

II

At the outset, we must address Citynet’s motion to dismiss this appeal, as it 

challenges our jurisdiction. 

Citynet contends in its motion that when a district court defers ruling on the claim 

of qualified immunity because of a need for factual development, a court of appeals lacks

jurisdiction to review the district court’s order. But in its subsequent brief, Citynet takes a 

position somewhat in tension with its motion, asserting that an immunity defense is not 

available in response to a claim that defendants knowingly violated the FCA, thus implying 

that the issue of immunity can be decided as a matter of law at this stage of the proceeding.

The principles for determining our jurisdiction are well established. Ordinarily, the

denial of a motion to dismiss is interlocutory and thus not subject to immediate appeal. See 

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). But, under the collateral 

order doctrine, appellate jurisdiction extends to “‘a narrow class of decisions that do not 

terminate the litigation,’ but are sufficiently important and collateral to the merits that they 

should ‘nonetheless be treated as final.’” Will v. Hallock, 546 U.S. 345, 347 (2006) 

(quoting Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994)). 

Under this doctrine, a conclusive order denying a motion to dismiss on qualified 

immunity grounds constitutes an immediately appealable collateral order if it turns on a 

pure issue of law. See Ashcroft v. Iqbal, 556 U.S. 662, 671–72 (2009) (“A district-court 
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decision denying a Government officer’s claim of qualified immunity can fall within the 

narrow class of appealable orders despite the absence of a final judgment” if it “turns on 

an issue of law” (cleaned up)); see also Al Shimari v. CACI Int’l, Inc., 679 F.3d 205, 221 

(4th Cir. 2012) (en banc) (“[O]rders denying dismissal motions, insofar as those motions 

are based on immunities that are not absolute but conditioned on context, . . . are . . . 

immediately appealable” when based on “abstract issues of law” (cleaned up)). This is so 

because qualified immunity “is an immunity from suit rather than a mere defense to 

liability; and . . . it is effectively lost if a case is erroneously permitted to go to trial.” 

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Accordingly, we have recognized that a 

district court’s refusal to rule on the immunity question nullifies the benefits of the defense 

and may thus be treated as an immediately appealable denial of immunity. See Nero v. 

Mosby, 890 F.3d 106, 125 (4th Cir. 2018); Jenkins v. Medford, 119 F.3d 1156, 1159 (4th 

Cir. 1997) (en banc). An exception arises, however, when further factual development is 

needed to rule on the immunity question itself. See Al Shimari, 679 F.3d at 220 (“[E]ven 

a party whose assertion of immunity ultimately proves worthy must submit to the burdens 

of litigation until a court becomes sufficiently informed to rule”). 

Citynet bases its motion to dismiss this appeal on this exception. The district court 

did indeed conclude that factual development was needed to rule on the immunity question. 

But the court’s ruling presumed that the immunity defense was available in response to an 

FCA claim. In so presuming, the court skipped the logically antecedent legal question of 

whether qualified immunity could ever be invoked as a defense to claims of fraud brought 

under the FCA. And resolution of this question requires no factual development. The 
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district court’s deferral ruling in this case thus depends on resolution of this pure issue of 

law, supporting our exercise of appellate jurisdiction at this time. Accordingly, we deny 

Citynet’s motion to dismiss the appeal.

III

When applicable, the doctrine of “[q]ualified immunity shields federal and state 

officials from money damages” in cases alleging violations of either “statutory or 

constitutional right[s].” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). But we have yet 

to address the more specific question of whether qualified immunity may be invoked as a 

defense to claims brought under the FCA — the resolution of which turns on whether the 

FCA’s scienter requirement is inconsistent with the doctrine.

Originally passed in 1863 in response to widespread fraud against the government 

during the American Civil War, “the FCA is a fraud prevention statute” that imposes 

liability on those who defraud federal government programs. United States ex rel. Owens 

v. First Kuwaiti Gen. Trading & Contracting Co., 612 F.3d 724, 728 (4th Cir. 2010)

(cleaned up); see also Rainwater v. United States, 356 U.S. 590, 592 (1958). In its current 

version, the FCA provides that suit may be brought against “any person” who, inter alia, 

“knowingly presents, or causes to be presented, [to the United States government] a false 

or fraudulent claim for payment or approval”; “knowingly makes, uses, or causes to be 

made or used, a false record or statement material to a false or fraudulent claim”; or 

conspires to commit such acts. 31 U.S.C. § 3729(a)(1)(A)–(C). “In adopting the FCA, 
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‘the objective of Congress was broadly to protect the funds and property of the 

government.’” Owens, 612 F.3d at 728 (quoting Rainwater, 356 U.S. at 592). 

The FCA requires explicitly that, to be liable under the Act, the defendant must have 

acted “knowingly.” And it defines “knowingly” to “mean that a person, with respect to 

information — (i) has actual knowledge of the information; (ii) acts in deliberate ignorance 

of the truth or falsity of the information; or (iii) acts in reckless disregard of the truth or 

falsity of the information.” 31 U.S.C. § 3729(b)(1)(A). We have previously recognized 

that this element is so defined to ensure that liability is not imposed for “honest mistakes 

or incorrect claims submitted through mere negligence.” Owens, 612 F.3d at 728 (quoting 

S. Rep. No. 99-345, at 7 (1986), as reprinted in 1986 U.S.C.C.A.N. 5266, 5272). Thus, 

FCA liability attaches only where a person has acted intentionally or recklessly.

Yet, by acting intentionally or recklessly, a government official necessarily forfeits 

any entitlement to qualified immunity. See al-Kidd, 563 U.S. at 743 (explaining that 

qualified immunity protects “all but the plainly incompetent or those who knowingly

violate the law” (emphasis added) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986))). 

Stated otherwise, qualified immunity does not protect government officials when they act 

to violate the law with actual knowledge, deliberate ignorance, or reckless disregard of a 

risk to a constitutional or statutory right. See, e.g., Washington v. Wilmore, 407 F.3d 274, 

283–84 (4th Cir. 2005) (reasoning that qualified immunity may not shield government 

officials who knowingly create or use false evidence to obtain a criminal conviction); Hope 

v. Pelzer, 536 U.S. 730, 744–45 (2002) (reasoning that qualified immunity may not shield 

government officials for a course of conduct where they have ignored a regulation with 
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impunity); Raub v. Campbell, 785 F.3d 876, 884 n.8 (4th Cir. 2015) (explaining that “[i]n 

the arrest context, a law enforcement officer’s omission of material facts from a warrant 

affidavit deprives him of qualified immunity . . . if the omission was made intentionally or 

with a ‘reckless disregard for the truth’” (emphasis added) (quoting Miller v. Prince 

George’s Cnty., 475 F.3d 621, 627 (4th Cir. 2007))). Thus, the state of mind required to 

establish liability under the FCA is also sufficient to preclude immunity protection, and 

therefore immunity cannot protect a public official from a suit alleging a claim under the 

FCA. In order to have violated the FCA, a government official would have necessarily had 

to act in a manner inconsistent with the type of “reasonable but mistaken judgments” 

qualified immunity is designed to shield. al-Kidd, 563 U.S. at 743.

Moreover, there is good reason to hesitate before applying qualified immunity — a 

doctrine that “acts to safeguard the government, and thereby to protect the public at large” 

rather than to “benefit [the government’s] agents” — to situations where the victim of the 

alleged violation is the United States government itself, and the perpetrator a federal or 

state agent. Wyatt v. Cole, 504 U.S. 158, 168 (1992). While courts have recognized the 

public interest in affording public officers immunity from suit to protect their ability to 

exercise independent discretion in carrying out their official duties, see, e.g., Nixon v. 

Fitzgerald, 457 U.S. 731, 744–45 (1982), it surely does not serve the public interest to 

extend immunity protection to public officials who defraud the government. Thus, while 

immunity should protect discretion, it must not shield fraud.

At bottom, we hold that qualified immunity may not be invoked as a defense to 

liability under the FCA. See Samuel v. Holmes, 138 F.3d 173, 178 (5th Cir. 1998) 
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(reasoning that “qualified immunity seems particularly ill-suited” to FCA retaliation claims 

under 31 U.S.C. § 3730(h) because “[g]ranting government officials the protection of 

qualified immunity would hardly spur reluctant employees to step forward” with 

knowledge of fraud against the government); United States ex rel. Parikh v. Citizens Med.

Ctr., 977 F. Supp. 2d 654, 685 (S.D. Tex. 2013) (holding that because the FCA attaches 

liability only if a defendant knowingly presents a false or fraudulent claim, “qualified 

immunity . . . has little role to play in False Claims Act cases”). Therefore, Gianato and 

Given cannot claim qualified immunity as a defense to Citynet’s FCA claims, as the district 

court assumed was a possibility.

IV

Gianato and Given ask us also to exercise pendent appellate jurisdiction over the 

district court’s determination that, as state officials sued in their individual capacities for 

actions taken in the course of their official duties, they qualify as “persons” subject to FCA 

liability. Pendent appellate jurisdiction, however, is available “only (1) when an issue is 

inextricably intertwined with a question that is the proper subject of an immediate appeal; 

or (2) when review of a jurisdictionally insufficient issue is necessary to ensure meaningful 

review of an immediately appealable issue.” Adams v. Ferguson, 884 F.3d 219, 224 (4th 

Cir. 2018) (cleaned up). Because the question of whether the state officials are “persons” 

under the FCA is neither inextricably intertwined with nor necessary to ensure meaningful 

review of their claim of qualified immunity, pendent appellate jurisdiction to consider the

issue is unavailable. 
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* * *

For the foregoing reasons, we vacate the district court’s ruling deferring for further 

factual development the immunity issue and remand with the instruction that the district 

court deny Gianato and Given’s motion to dismiss on the basis of qualified immunity.

VACATED AND REMANDED