NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHERYL NOLTE BARNES, Qui Tam 

Relator; ex rel. United States of America, 

Plaintiff-Appellant, 

 v. 

CLARK COUNTY, a Political Subdivision 

of the State of Nevada; et al., 

Defendants-Appellees.

No. 21-15137 

D.C. No. 

2:15-cv-01621-JCM-VCF 

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted October 21, 2021

San Francisco, California

Before: MURGUIA, Chief Judge, and WALLACE and BEA, Circuit Judges.

The False Claims Act (“FCA”) provides that “in qui tam cases, a court may 

award attorneys’ fees against the plaintiff if the ‘action was clearly frivolous, 

clearly vexatious, or brought primarily for purposes of harassment.’” Pfingston v. 

Ronan Eng’g Co., 284 F.3d 999, 1005 (9th Cir. 2002) (quoting 31 U.S.C. 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

JAN 7 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

§ 3730(d)(4)). This court has developed a stringent test for “clearly frivolous” 

actions under the FCA: “An action is ‘clearly frivolous’ when ‘the result is obvious 

or the appellant’s arguments . . . are wholly without merit.’” Pfingston, 284 F.3d at 

1006. Following the dismissal of Relator’s qui tam action for failure to state a 

claim pursuant to Fed. R. Civ. P. 12(b)(6), the district court granted Defendants’ 

renewed motion for attorneys’ fees on the grounds that Relator’s “claims were 

clearly frivolous” under 31 U.S.C. § 3730(d)(4). Relator appeals that decision. 

We review the attorneys’ fees award for abuse of discretion1and reverse.

I.

This is the second time we review an attorneys’ fees award in this case.2 

Previously, the district court granted Defendants’ motion for attorneys’ fees on the 

1

 See United States ex rel. Virani v. Jerry M. Lewis Truck Parts & Equip., 

Inc., 89 F.3d 574, 576 (9th Cir. 1996) (reviewing for abuse of discretion the district 

court’s order that defendant must pay attorneys’ fees to qui tam relator rather than 

the law firm that represented relator), abrogation on other grounds recognized by 

United States v. Kim, 806 F.3d 1161, 1173–74 (9th Cir. 2015); Alaska Right to Life 

Pol. Action Comm. v. Feldman, 504 F.3d 840, 848 (9th Cir. 2007) (reviewing for 

abuse of discretion the award of attorneys’ fees to a defendant for frivolous 

pleading in the similar context of 42 U.S.C § 1988). Previously, we stated that the 

standards governing review of sanctions under Fed. R. Civ. P. 11 “appear to be 

appropriate in the review of decisions on whether to impose sanctions 

under section 3730(d)(4).” Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1177 

(9th Cir. 1996). But the standards in Simpson are inapposite where it is not 

contended that counsel violated any rule and the district court is not choosing 

among Rule 11’s variety of sanctions.

2 Because the parties are familiar with the facts, we do not repeat them here, 

except where necessary to provide context for our ruling.
3 

grounds that it “should have been obvious to plaintiff” that most of her claims were 

barred by the statute of limitations and that, as to her remaining claims, Relator 

“failed to satisfy the FCA’s scienter requirement.”3 The district court reasoned that 

“defendants could not have ‘knowingly misrepresented’ their positions regarding 

whether [Defendants] took airspace without just compensation because the case 

establishing that they did in fact do so, [McCarran Int’l Airport v. Sisolak, 137 

P.3d 1110 (Nev. 2006) (“Sisolak”)], was decided after the representations were 

made.”

We vacated the award because, first, we found that “the standard the district 

court used to assess the timeliness of [Relator’s] claims is no longer good law.” 

Second, it appeared that the “district court found that the County could not have 

knowingly made false certifications because the alleged misstatements occurred 

before the Nevada Supreme Court’s ruling in [Sisolak]” but “the County submitted 

twenty-four grant applications [that Relator alleged contained false statements] 

after Sisolak was issued.” In vacating the attorneys’ fees award of $133,896.22, 

we stressed that “[t]he district court should ‘make detailed findings in support of 

any award’ on remand.”

3

“[T]he essential elements of False Claims Act liability are: (1) a false 

statement or fraudulent course of conduct, (2) made with scienter, (3) that was 

material, causing (4) the government to pay out money or forfeit moneys due.” 

United States ex rel. Campie v. Gilead Scis., Inc., 862 F.3d 890, 902 (9th Cir. 

2017) (citations omitted).
4 

On remand, the district court granted Defendants’ second motion for 

attorneys’ fees. The district court explained that it “maintain[ed] its prior position” 

that Relator’s “claims were clearly frivolous,” now on the grounds that “there was 

no way that plaintiff could satisfy knowledge or materiality.” A single paragraph 

constituted the “detailed findings” this court ordered the district court to make to 

support a fees award, which by that time had grown to $283,251.46.

II.

Assessing the district court’s holdings regarding Relator’s allegations as to 

the elements of materiality and knowledge is complicated by the fact that neither 

the district court nor this court have previously analyzed Relator’s allegations as to 

the element of falsity. We do so now, and interpret Relator’s amended complaint

to have alleged two theories as to Defendants’ allegedly false statements.

First, Relator alleged that Defendants falsely stated in grant applications to 

the Federal Aviation Administration (“FAA”) that they had complied or would 

comply with the Uniform Relocation Assistance and Real Property Acquisition 

Policies Act of 1970, 42 U.S.C. § 4601 et seq. (“URA”). Relator alleged that the 

URA required, that in obtaining the airspace necessary for the functioning of the 

airport, Defendants would “obtain appraisals for necessary acquisitions of airspace 

up to the approach surface to the required height; offer to purchase the airspace for 

at least the amount of the appraisals; refrain from taking possession of the airspace 
5 

until purchasing it; and refrain from requiring any owner of airspace to bring a suit 

in inverse condemnation due to their failure to comply with the URA.”4 Relator 

alleged that Defendants took none of these steps. Instead, Relator alleged that 

Defendants took airspace near runways necessary for the functioning of the airport 

by passing Ordinance 1599, which became effective in 1994 and provided no 

payment to landowners. Relator alleged that Defendants continued to assert in 

Airport Improvement Projects (“AIP”) and Passenger Facilities Charge (“PFC”) 

applications, including from 2005 onwards, that Defendants had paid just 

compensation for the airspace the airport was required to possess. Relator alleged 

that these representations were knowingly false because Defendants had not 

compensated landowners whose property allegedly was taken by the land use 

ordinance and Defendants continued to defend inverse condemnation lawsuits 

brought by the landowners.

Second, Relator alleged that Defendants certified to the government that 

they had complied or would comply with FAA Advisory Circulars AC 150/5300-

13 (“Airport Design Circular”) and AC 159/5190-4A (“Model Zone Ordinance 

4 Relator also alleged that the FAA Model Zoning Ordinance Circular 

required that Defendants “refrain from any taking without payment of just 

compensation under local law.” Although the Model Zoning Ordinance Circular is 

not listed on the certification attached to Relator’s amended complaint, Relator 

alleged that compliance with the Airport Design Circular—which is included in the 

certification—itself “requires the airport operator to comply with [the Model 

Zoning Ordinance Circular].”
6 

Circular”) (together, “FAA Circulars”). Relator alleged that the FAA Circulars 

required Defendants to acquire certain airspace near the airport, but that 

Defendants did not acquire title or easements to at least some of the airspace they 

were required to obtain.

5

 Relator alleged that the government relied upon 

Defendants’ allegedly false certification of compliance with the FAA Circulars in 

both AIP and PFC applications in awarding Defendants with funding from 2005 

onwards.

On appeal, Defendants contend that Relator’s allegations that Defendants 

made false statements were “clearly frivolous” on the sole basis that 49 U.S.C. 

§ 47106(b)(1) and the assurance statement implementing that statute did not

require Defendants to acquire any airspace. Nevertheless, Defendants failed to 

demonstrate that Relator frivolously alleged that Defendants falsely certified that 

they would comply with the FAA Circulars. Relator alleged that these false 

5 As quoted in the amended complaint, the Airport Design Circular requires 

that certain airspace “be protected by acquisition of a combination of zoning,

easements, property interests, and other means,” and that certain other “airport 

elements” be “on airport property,” including “[a]reas under the 14 CFR Part 77 

Subpart C airport imaginary surfaces out to where the surfaces obtain a height of at 

least 35 feet (10m) above the primary surface; and . . . [a]reas, other than those 

which can be adequately controlled by zoning, easements, or other means to 

mitigate potential incompatible land uses.” Neither the district court nor this court 

have made any findings as to whether Defendants acquired all the airspace Relator 

alleged they were required to obtain due to their certification of compliance with 

the FAA Circulars. Defendants do not appear to challenge Relator’s argument that 

Defendants did not acquire the airspace that Relator alleged the FAA Circulars 

required Defendants to obtain.
7 

statements obligated Defendants to acquire and pay for certain airspace that they 

did not obtain. Defendants also failed meaningfully to challenge Relator’s 

allegations that Defendants falsely certified compliance with the URA. We 

therefore conclude that Defendants have not established that Relator’s allegations 

that Defendants made false statements was “clearly frivolous” under this court’s 

stringent standard.6

III.

To establish the element of materiality, Relator was required to establish that 

the government would have denied Defendants’ grant applications if the 

government had known that that Defendants were not in compliance and would not 

comply with the alleged requirements of the URA (including payment of just 

compensation) in acquiring necessary airspace, or the alleged requirement of the 

FAA Circulars to acquire certain airspace. See Universal Health Servs., Inc. v. 

United States, 136 S. Ct. 1989, 2003–04 (2016).

Previously, in affirming the district court’s dismissal of Relator’s claims, we

observed that Relator’s “complaint indicates only that the FAA conditioned its

payments on the County’s compliance with a long list of statutes, regulations, and 

policies.” We held that Relator failed to state a claim under the FCA because she 

6 We stress that we make no holding concerning Defendants’ actual 

obligations in light of their certifications to abide by the URA and FAA Circulars.
8 

“has not plausibly alleged that the FAA placed significant weight on the County’s 

certification of compliance with” the URA or the FAA Circulars.7

Problematically, the district court on remand cited this court’s affirmance of 

the Rule 12(b)(6) dismissal of Relator’s complaint to support its holding that 

Relator’s complaint was “clearly frivolous.” Rather than making “detailed 

findings” to support an attorneys’ fees award as instructed, it stated only that “[t]he 

record presents no apparent avenue for plaintiff to properly allege that ‘the FAA 

placed significant weight on the County’s certification of compliance with’” the 

FAA Circulars and the URA “as to all passenger facility charge applications and 

twenty-seven grant applications identified in the complaint” and that Relator “fails 

to appropriately or persuasively address these concerns.”

We have stated in similar contexts that in assessing whether an action was so 

frivolous as to permit an attorneys’ fees award to the defendant “it is important that 

a district court resist the understandable temptation to engage in post hoc reasoning

by concluding that, because a plaintiff did not ultimately prevail, his action must

have been unreasonable or without foundation.” C.W. v. Capistrano Unified Sch. 

7 We also observed that, the County “certified its compliance with the 

relevant provisions only ‘as they relate[d] to’ [each] specific application” and 

therefore held that Relator failed to plead adequately the element of materiality for 

the alleged misrepresentations in the AIP applications from 2005 onwards because 

they did not appear to “involve projects implicating Ordinance 1599.”
9 

Dist., 784 F.3d 1237, 1245 (9th Cir. 2015) (internal quotation and citation omitted) 

(assessing claims under the same standard of whether “the result is obvious or the

. . . arguments of error are wholly without merit” in the context of 20 U.S.C. 

§ 1415(i)(3)(B)); see also Harris v. Maricopa Cty. Superior Ct., 631 F.3d 963, 

975–76 (9th Cir. 2011) (assessing claims under 41 U.S.C. § 1988). “The award of 

fees under the False Claims Act is reserved for rare and special circumstances.” 

Pfingston, 284 F.3d at 1006–07. And, the standard for “[d]ismissal under Rule 

12(b)(6) is not the same as the standard for frivolousness.” Capistrano Unified, 

784 F.3d at 1248 (citing Neitzke v. Williams, 490 U.S. 319 (1989)). 

Although Relator has not “nudged [her] claims . . . across the line from 

conceivable to plausible” for the purposes of defending a motion to dismiss under 

Fed. R. Civ. P. 12(b)(6), Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009) (quotations 

omitted), this does not mean her pleading as to materiality was “clearly frivolous” 

under 31 U.S.C. § 3730(d)(4). Relator did allege materiality: that Defendants 

promised to comply with certain laws, regulations, and guidance to obtain grant 

funding that “they would not otherwise have been able to obtain.” Moreover, it is 

conceivable that the government would deny a grant application if it learned that 

the applicant intended not to comply with the federal rules that the applicant 

certified it would abide by in its grant application. Further, Relator’s claim is 

supported by the allegation that, at least in one case, the FAA followed-up after 
10 

approving one of Defendants’ applications to “inquire[] whether Clark County was 

properly applying its funds . . . as Clark County has represented . . . to acquire” 

land near McCarran’s runway.8

We instructed the district court to make “detailed findings in support of any 

award.” It did not. Moreover, we conclude that Defendants have failed to 

establish that Relator’s allegations concerning the element of materiality were

“clearly frivolous.” See Pfingston, 284 F.3d at 1006. Accordingly, the district 

court abused its discretion in finding that Relator’s allegations concerning 

8 Defendants challenge Relator’s allegations as to the element of materiality 

by arguing that in each of Defendants’ twenty-seven applications from 2005–16 

(apparently all AIP applications) the County certified its compliance with the 

relevant federal laws, regulations, and guidance “only ‘as they relate[d]’ to the 

specific application,” and that “none of the . . . [twenty-seven payment] 

applications involved airspace or Ordinance 1599.” This was also the principal 

argument Defendants raised in their second motion for attorneys’ fees before the 

district court. While this argument appears more apt to challenge the element of 

falsity than materiality, Defendants have not established that it was “obvious” that 

Relator could not prove either element. Previously we stated that Relator had not 

adequately alleged that these applications implicated Ordinance 1599 under the 

standard of Fed. R. Civ. P. 12(b)(6). But it is not “obvious” from the record that 

Defendants have established in support of their attorneys’ fees motion that none of 

the projects involved technical specifications that triggered the alleged 

requirements of the FAA Circulars and URA that Defendants possess (and have 

provided just compensation for) some airspace near the airport’s runways, 

including the airspace under “imaginary surfaces” defined by 14 C.F.R. § 77.19. 

And, if any of these projects did obligate Defendants to possess airspace near the 

airport, Defendants have not established that Relator’s allegations are “wholly 

without merit” that either Defendants have not acquired the airspace that they 

stated they would, or Defendants took the airspace through Ordinance 1599 but 

have not compensated its owners as they stated they would.
11 

materiality were “clearly frivolous” because that finding was implausible and 

unsupported by the record. United States v. Hinkson, 585 F.3d 1247, 1262 (9th 

Cir. 2009).

IV.

To establish the element of scienter, Relator was required to establish that 

Defendants knowingly, recklessly, or in deliberate ignorance made false 

statements. 31 U.S.C. § 3729(b)(1)(A); Universal Health Servs., 136 S. Ct. at 

1996. “Innocent mistakes, mere negligent representations and differences in 

interpretations are not false certifications under the Act.” Gonzalez v. Planned 

Parenthood of Los Angeles, 759 F.3d 1112, 1115 (9th Cir. 2014) (citation omitted).

The district court concluded that Relator’s pleading was “clearly frivolous” 

as to the element of scienter in a single sentence: “As this court has already stated 

plainly, ‘[p]laintiff’s assertion that defendants knowingly misrepresented their 

positions regarding whether defendants took airspace without just compensation 

does not comport with this litigation history.’” The order the district court quoted, 

in which the district court granted Defendants’ motion to dismiss under the Rule 

12(b)(6) standard, reasoned, in a few more words, that Relator’s arguments “boil 

down to a disagreement over the proper interpretation of Sisolak and of 

defendants’ duties under the law post-Sisolak,” and that Defendants could not have 
12 

knowingly misrepresented they did or would not commit takings because they 

honestly disagreed with Relator about what Sisolak required.

The district court’s one-sentence quotation from its order granting dismissal 

under the Rule 12(b)(6) standard fails to support its holding that Relator’s pleading 

as to scienter was “clearly frivolous.” See Capistrano Unified, 784 F.3d at 1248. 

Moreover, Defendants’ briefing—like the district court’s opinion below—

addresses scienter only as to Relator’s first theory of false statements (that 

Defendants promised they did not or would not take property without 

compensating its owners, but did so), but not the second (that Defendants did not 

acquire all the airspace they promised they possessed or would acquire). And, 

even granting the proposition that the Nevada Supreme Court’s holding in Sisolak

does not guarantee victory by other property-owners affected by Ordinance 1599 

in inverse condemnation suits against Defendants, Relator’s allegation that 

Defendants purposefully adopted a policy that required landowners to sue for 

compensation following the passage of Ordinance 1599 is not obviously false from 

the record before us. Relator alleged that Defendants promised they had paid or 

would pay compensation for all airspace they acquired, not that they would 

compensate property owners only after losing inverse condemnation actions.

Again, the district court did not make detailed findings in support of the

award. Moreover, we find that Defendants have failed to establish that Relator’s 
13 

allegations as to scienter were “clearly frivolous,” and that the district court’s 

contrary finding was an abuse of discretion because it is both unsupported and 

implausible. See Hinkson, 585 F.3d at 1262.

V.

For the reasons stated above, the district court’s attorneys’ fees award cannot 

be affirmed. And because we find that Defendants have failed to establish that 

Relator’s allegations were “clearly frivolous,” we conclude that Defendants’ 

second motion for attorneys’ fees should be denied.

9

 Accordingly, the district 

court’s grant of Defendants’ second motion for attorneys’ fees is REVERSED.

9 We also reject Defendants’ contention that the record is adequate to 

support a finding that Relator’s action was “clearly vexatious, or brought primarily 

for purposes of harassment.”