UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA ex rel. MARK CHRISTOPHER TRACY, Plaintiff - Appellant,

v. EMIGRATION IMPROVEMENT DISTRICT, a Utah Special Service District; FRED A. SMOLKA, an individual; MICHAEL HUGHES, an individual, DAVID BRADFORD, an individual; MARK STEVENS, an individual; LYNN HALES, an individual; ERIC HAWKES, an individual; BARNETT INTERMOUNTAIN WATER CONSULTING, a Utah corporation; DON BARNETT, an individual; JOE SMOLKA, an individual; KENNETH WILDE, an individual; RONALD R. RASH, an individual; KEVIN W. BROWN, an individual; MICHAEL B. GEORGESON, an individual; THE BOYER COMPANY, a Utah company; CITY DEVELOPMENT, a Utah corporation; R. STEVE CREAMER, an individual; CAROLLO ENGINEERS, INC., a California professional corporation, Defendants - Appellees.

––––––––––––––––––– –––––––––––––––– UNITED STATES OF AMERICA EX. REL. MARK CHRISTOPHER TRACY, Plaintiff - Appellant, No. 21-4059 (D.C. No. 2:14- CV-00701-JNP) (D. Utah) FILED United States Court of Appeals Tenth Circuit 

### November 1, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-4059 Document: 010110761442 Date Filed: 11/01/2022 Page: 12 v. EMIGRATION IMPROVEMENT DISTRICT, a Utah Special Service District; FRED A. SMOLKA, an individual; MICHAEL HUGHES, an individual; DAVID BRADFORD, an individual; MARK STEVENS, an individual; LYNN HALES, an individual; ERIC HAWKES, an individual, Defendants - Appellees, and
BARNETT INTERMOUNTAIN WATER CONSULTING, a Utah corporation; DON BARNETT, an individual; JOE SMOLKA, an individual; KENNETH WILDE, an individual; RONALD R. RASH, an individual; KEVIN W. BROWN, an individual; MICHAEL B. GEORGESON, an individual; THE BOYER COMPANY, a Utah company; CITY DEVELOPMENT, a Utah corporation; R. STEVE CREAMER, an individual; CAROLLO ENGINEERS, INC., a California professional corporation, Defendants. No. 21-4143 (D.C. No. 2:14- CV-00701-JNP) (D. Utah)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-4059 Document: 010110761442 Date Filed: 11/01/2022 Page: 23 Before TYMKOVICH , BALDOCK , and CARSON , Circuit Judges.

________________ _________________ Mark Tracy, acting as a qui tam relato r, brought suit on behalf of the United States alleging that Emigration Improvement District (the Distri ct) and various other defendants made false statements to obtai n a federal loan for a water project in violation of the False Claims Act (FCA), 31 U.S.C. §§ 3729 et seq., and that after the loan proceeds were disbursed, the District failed to comply w ith conditions of the loan and failed to report this noncomp liance to the United States government. 1 In the operative complaint—the third amended compla int—he asserted a reverse false claim under § 3729(a)(1)(G) and a di rect false claim under § 3729( a)(1)(A) and (B). In a series of orders entered over the course of the litigation, the dist rict court dismissed both claims against all defendants. In Appeal No. 21-4059, Mr. Tracy appeals the district court’s orders dism issing his direct false clai m against all defendants as untimely under 31 U.S.C. § 3731(b)(2). He does not appeal the order dismissing the reverse false claim. In Ap peal No. 21-4143, Mr. Tracy a ppeals the district court’s order awarding attorneys’ fees to a subs et of defendants pursuant to the FCA’s fee-shifting provision, 31 U.S.C. § 3730(d )(4). We procedurally consolidated

1 The FCA’s qui tam provisions allow an individual to sue on behalf of the government. 31 U.S.C. § 3730(b). Though the government may intervene and take over a private plaintiff’s case, id. § 3730(b)(2), it declined to do so in this case. Mr. Tracy thus conducted the litigation as the relator. See id. § 3730(c)(3). Appellate Case: 21-4059 Document: 010110761442 Date Filed: 11/01/2022 Page: 34 the appeals and, exercising jurisdiction pur suant to 28 U.S.C. § 1291, we affirm both orders. 2 Background Our decision in Mr. Tracy’s prior appeal describes most of the factual and procedural background of the unde rlying litigation in some detail. See United States ex. rel. Tracy v. Emig ration Improvement Dist. ( Tracy I ), 804 F. App’x 905, 907-09 (10th Cir. 2020). We do not repeat that background here, other than as necessary to provide context for our consideration of the issues presente d in this appeal.
In Tracy I , we remanded for the district co urt to decide whether Mr. Tracy filed his complaint within the ten-year period esta blished by § 3731(b)(2). See 804 F. App’x at 909. Following remand, a subset of defendants—Carollo Engineers, Inc., the District, Michael Hughes, Mark Stevens, David Bradford, Fred Smolka, Lynn Hales, Eric Hawkes, and Steve Creamer—filed motions to dismiss the remaining claim against them pursuant to Fed. R. Civ. P. 12(b)(6) as time-barred. 3

2 Our caption includes a number of defendants-appell ees who did not participate in these appeal s. The Boyer Company and City Development did not appear in the district court or participat e in the appeals, but they remain in our caption as appellees because although Mr. Tracy did not serve them, he did not voluntarily dismiss his cl aims against them. Ba rnett Intermountain Water Consulting, Don Barnett, Joe Smolka, Kenn eth Wilde, Kevin W. Brown, and Michael B. Georgeson also did not participate in the appeals, but they are listed as appellees because although Mr. Tracy conceded that his clai m against them should be dismissed, he retained his right to a ppeal that resulting dismissal order.

3 The moving defendants also sought dismissal on other grounds, but the district court did not address the alternative bases for dismissal. Appellate Case: 21-4059 Document: 010110761442 Date Filed: 11/01/2022 Page: 45 The issue was whether the peri od started to run when the Di strict filed the last claim for payment or on the date the government paid that claim. The parties did not dispute the relevant dates—according to do cuments attached to the third amended complaint, the District s ubmitted its final request fo r payment on September 13, 2004, and the government paid the claim on September 29, 2004. Mr. Tracy filed suit on September 26, 2014—more than ten years after the Dist rict submitted the final claim but less than ten years after the government paid it. The district court concluded that the re levant date for purposes of § 3731(b)(2) was the date the District submitted its final request fo r payment and that because Mr. Tracy filed suit more than ten years from that date, the claim was time-barred. The court thus granted the motions to di smiss and dismissed the claim against the moving defendants. The court then ordere d Mr. Tracy to show cause why the claim should not also be dismissed as to the rema ining defendants. He conceded that, in light of the court’s decision on the moti ons to dismiss, his claim against the remaining defendants should be dismissed. Accordingly, the court dismissed the claim against those defendant s and entered judgment in favor of all defendants. A different subset of defe ndants—the District, Michael Hughes, Mark Stevens, David Bradford, Fred Smolka, Eric Ha wkes, and Lynn Hales—then moved for attorneys’ fees and cost s pursuant to § 3730(d)(4). 4 The district court granted the

4 The motion also sought an award of fees against Mr. Tracy’s counsel pursuant to 28 U.S.C. § 1927, but the movi ng defendants withdrew that portion of the motion after they reached a settlement with counsel. Appellate Case: 21-4059 Document: 010110761442 Date Filed: 11/01/2022 Page: 56 motion after concluding that the action wa s clearly vexatious and brought for the purpose of harassment.
Discussion 1. Dismissal Order – Appeal No. 21-4059 Mr. Tracy first contends that the dist rict court erred in concluding that the period for filing his claim star ted running when the District made its final request for payment. He insists that his claim was timely filed because the time period did not begin to run until the last date the govern ment suffered damages—the date on which it made the payment induced by the la st false claim. We disagree. We review the district court’s Rule 12(b)(6) dismissal de novo. Brooks v. Mentor Worldwide LLC , 985 F.3d 1272, 1278 (10th Cir.), cert. denied , 142 S. Ct. 477 (2021). “A complaint is subject to dism issal for failure to state a claim if the allegations, taken as true , show the plaintiff is not entitled to relief.” Jones v. Bock , 549 U.S. 199, 215 (2007). If the allegations show that the claim is time-barred, the complaint is subject to dismissal for failure to st ate a claim. Id. We review de novo whether a district court properly applied a limitati ons period, including its determination of the date the period began to run. Nelson v. State Farm Mut. Auto.
Ins. Co. , 419 F.3d 1117, 1119 (10th Cir. 2005). Section 3731(b)(2) sets forth two limitations periods that apply to relator-initiated civil suits under the FCA. See Cochise Consultan cy, Inc. v. United States ex rel. Hunt , 139 S. Ct. 1507, 1511-12 (2019) . Specifically, it provides: Appellate Case: 21-4059 Document: 010110761442 Date Filed: 11/01/2022 Page: 67 A civil action under s ection 3730 may not be brought . . . more than 3 years after the date when facts materi al to the right of action are known or reasonably s hould have been known by the official of the United States char ged with responsibility to act in the circumstances, but in no even t more than 10 years after the date on which the violation is co mmitted, whichever occurs last. § 3731(b)(2). The different start dates for the two time periods is significant. The three-year period is a typical st atute of limitations that starts to run when the government knew or should have known about the fraud, while th e ten-year period is a statute of repose that places an outer limit on the otherwis e applicable statut e of limitations. See CTS Corp. v. Waldburger , 573 U.S. 1, 7-8 (2014) (dis cussing the difference between statutes of limitations a nd statutes of repose); Nat’l Credit Union Admin. Bd. v. Nomura Home Equity Loan, Inc. , 764 F.3d 1199, 1211 (10th Ci r. 2014) (same). As is the case for many repose peri ods, the ten-year period in § 3731(b)(2) starts running when a specific event o ccurs, not when the alle ged injury occurs. See CTS Corp. , 573 U.S. at 8 (explaining that statutes of limitations t ypically begin to run when a cause of action accrues, meani ng when the alleged injury occurred or was discovered, while a statute of repose begi ns to run when a specific ev ent occurs, often “the date of the last culpable act or omission of the defendant . . . , even if [the repose] period ends before the plaintiff has suffered a resulting injury” (inter nal quotation marks omitted)). That date is the date the “violation is committed.” § 3731(b)(2). The question then, is when the de fendants’ alleged FCA violation was committed. Mr. Tracy’s claim alleged th e defendants violated § 3729(a)(1)(A) and Appellate Case: 21-4059 Document: 010110761442 Date Filed: 11/01/2022 Page: 78 (B), which impose civil liabili ty when a person “knowingly presents, or causes to be presented” to the government “a false or fraudulent claim for payment or approval,” § 3729(a)(1)(A), or uses a fals e record or makes a false st atement material to a false claim, § 3729(a)(1)(B). Liability thus stems from the act of making a false claim, not from the government’s payment of the claim. See United States ex rel. Sorenson v. Wadsworth Bros. Constr. Co. , 48 F.4th 1146, 1151 (10t h Cir. 2022) (“The FCA imposes liability for fraudulent attempts to cause the government to pay out sums of money.” (emphasis added) (int ernal quotation marks omitted)); see also Rex Trailer Co. v. United States , 350 U.S. 148, 152-53 & n.5 (1 956) (recognizing that under a statute that is “essentially the equivalent” of the FCA, a contractor who submits a false claim for payment may be liable even if the claim did not actually induce the government to pay out funds or to suffer any loss). 5 We thus conclude that a “violation is committed” for purposes of § 3731(b)(2) when the defendant submits a false claim, not when the gove rnment pays the claim. See Graham Cnty. Soil &
Water Conservation Dist. v. United States ex rel. Wilson , 545 U.S. 409, 415 (2005) (recognizing in dicta that because § 3731(b)(1) “t[ies] the start of the time limit to the date on which the violation of section 3729 is committed . . . , the time limit begins to

5 Other circuit courts have also recogni zed that the FCA atta ches liability to the claim for payment, not the government’s wrongful payment. See United States v. Rivera , 55 F.3d 703, 709 (1st Cir. 1995) (“[T]he statute attaches lia bility, not to the underlying fraudulent activity or to the gove rnment’s wrongful payment, but to the ‘claim for payment.’”); Harrison v. Westinghous e Savannah River Co. , 176 F.3d 776, 785 (4th Cir. 1999) (same). Appellate Case: 21-4059 Document: 010110761442 Date Filed: 11/01/2022 Page: 89 run on the date the defendant submitted a false claim for payment” (internal quotation marks omitted)). In so concluding, we reject Mr. Tr acy’s argument that because he sought actual damages, the ten-year period did not begin to r un until the government paid the final claim. In support of that argument, he relies on Jana, Inc. v. United States , 41 Fed. Cl. 735 (1998), in which the Court of Federal Claims re asoned that because § 3729 provides that a false claimant may be liable both for civi l penalties and actual damages, the ten-year period begins to run at different times depending on the relief sought. See id. at 743 (holding that where a suit s eeks only civil penalties, the period begins to run when the false claim was submitted, but where a suit seeks actual damages, the period begins to run when th e government pays the claim). But we are not bound by the Court of Federal Claims’ decision or persuaded by its reasoning in
Jana . Nothing in the statutory language sugge sts that Congress in tended to establish different start-dates for the ten-year repos e period depending on the relief sought. To the contrary, § 3731(b)(2)’s plain language provides that the cl ock starts ticking on “the date on which the violation is co mmitted,” not when the government suffers damage. Mr. Tracy cites no circ uit court decision that follows Jana , and we have found none. He also cites no authority—and we are not aware of any—holding that a violation is committed and the ten-year pe riod begins to run when the defendant accepts payment from the government on a fa lse claim, as opposed to when he “knowingly presents” such a claim to the government, § 3729(a)(1)(A), or “makes a false statement material” to such a claim, § 3729(a)(1)(B). Appellate Case: 21-4059 Document: 010110761442 Date Filed: 11/01/2022 Page: 910 Because the ten-year period started to run on September 13, 2009, when the District submitted the last claim, and Mr. Tracy did not file suit until September 26, 2014, we agree with the distri ct court’s determination that his claim was time-barred. 2. Attorneys’ Fees Order – Appeal No. 21-4143
A. Legal Standards Under § 3730(d)(4), a court may award at torneys’ fees to the defendants in a qui tam action if (1) the govern ment elected not to proceed with the action; (2) the defendants prevailed; and (3) the court finds that the claim was “clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment. ” Each element of the third prong can independently sust ain an award of attorneys’ fees. See In re Nat. Gas Royalties Qui Tam Litig ., 845 F.3d 1010, 1017 & n.5 (10th Cir. 2017) (upholding attorneys’ fees award based so lely on finding that th e relator’s claim was clearly frivolous and declini ng to address the other two el ements because they were “not necessary to our disposition”). We re view the district court’s decision to award attorneys’ fees for an abuse of discretion. Id. at 1017. B. Additional Factual and Procedural Background The following additional background in formation provides context for our review of the district c ourt’s fee order. In 20 19, after entering the pre- Tracy I dismissal orders, the district court ordered Mr. Tracy to pa y the District’s attorneys’ fees and expenses pursuant to § 3730(d)(4 ). That order was based in part on Mr. Tracy’s having recorded a lis pendens against a portion of the District’s water rights, claiming they were th e subject of the FCA litigation, and sending letters to the Appellate Case: 21-4059 Document: 010110761442 Date Filed: 11/01/2022 Page: 1011 District’s clients referencing the lis pendens and accusing the District of manipulating water rights. The district court concluded the lis pendens was a wrongful lien and released it. And, fi nding “no good faith ba sis for” Mr. Tracy having filed the wrongful lis pendens, the c ourt determined that his recording of the lis pendens and his related conduct was vexati ous, and awarded st atutory damages and attorneys’ fees. Suppl. App. at 90-91. That fee order was also based on the court’s findings that the § 3729(a)(1)(G) clai m (the reverse false claim) and some of Mr. Tracy’s arguments and litigation conduct vis-à-vis the statute of limitations issue were frivolous. Finally, the court found th at overall, the action was clearly vexatious and “indicate[d] bad faith and a clear intent to harass,” id. , because Mr. Tracy used the litigation to “air personal gr ievances . . . in pursuit of an ulterior motive, rather than [to] seek money damages on behalf of the United States,” id. at 91.
In Tracy I , after vacating the order dismissing th e direct file claim, we vacated the 2019 fee order because we could not say that the Distri ct was the prevailing party until the district court decided whether any alleged violati on of § 3729(a)(1)(A) or (B) occurred less than ten years before Mr. Tracy filed his initial complaint. 804 F. App’x at 909. We indicated that on remand the district court could enter a new fee order if it determined that the defendants seeking fees prevailed and that Mr. Tracy’s claims and litigation conduc t met the § 3730(d)(4) standard. Id. On remand, the district court ordered Mr . Tracy to pay the a ttorneys’ fees and costs of the defendants who sought an a ttorneys’ fee award. Unlike the 2019 fee order in which the court found that aspects of the litigation satisfi ed each element of Appellate Case: 21-4059 Document: 010110761442 Date Filed: 11/01/2022 Page: 1112 the third prong of § 3730(d)(4), the fee order issued on remand was based only on findings that the action was “clearly vexa tious” and “brought primarily for purposes of harassment.” Aplt. App. at 311. Given its earlier findi ng that the lis pendens was “unreasonable and without fou ndation” and had nothing to do with the issues that arose in Tracy I and on remand, the district court f ound that Mr. Tracy’s behavior with respect to the lis pende ns was “clearly vexatious wh en it first occurred, and no subsequent developments change that finding.” Id. at 310. The court further found that nothing in the subsequent litigation aff ected its finding in the 2019 fee order that Mr. Tracy’s “actions indicated bad fait h and a clear intent to harass.” Id. Reiterating some of the most egregious examples it gave in the 2019 order of Mr. Tracy’s “harassing behavior,” id. at 311, the court again found th at he “brought this case to air personal grievances agai nst Defendants in pursuit of his own ulterior motives, rather than to seek money da mages for the United States,” id. at 310. Having found that his actions were clearl y vexatious and brought for th e purpose of harassment, the court awarded fees on thos e grounds and did not addres s whether his claims were clearly frivolous.
C. Analysis Mr. Tracy does not dispute th at the first two prongs of the § 3730(d)(4) inquiry are satisfied here—the govern ment declined to interven e in the action three times, and the defendants prevailed. But he contends that the district court abused its discretion in concluding that an award of fees was warranted under the third prong. Specifically, noting his success in Tracy I , he insists that his claims were not Appellate Case: 21-4059 Document: 010110761442 Date Filed: 11/01/2022 Page: 1213 frivolous, and he maintains that his reliance on Jana in support of his argument on remand was not unreasonable. As explained above, however, the fee or der at issue here was not based on a finding that his claims were frivolous. Instead, it was based on findings that the action was clearly vexatious and brought primarily for pur poses of harassment, and those findings were sufficient to support the fee award. See In re Nat. Gas Royalties Qui Tam Litig. , 845 F.3d at 1017 & n.5. Mr. Tracy does not challenge those findings, so he has abandoned or waived any challenge he might have raised. See Tran v. Trs. of State Colls. in Colo. , 355 F.3d 1263, 1266 (10th Cir. 2004) (“Issues not raised in the opening brief are deemed abandoned or waived.” (internal quotation marks omitted)). And because he fail ed to address the basis for the district court’s ruling, he has given us no reason to disturb it. See Nixon v. City & Cnty. of Denver , 784 F.3d 1364, 1366, 1369 (10th Cir. 2015) (obs erving that “[t]he first task of an appellant is to explain to us why the district court’s decision was wrong,” and affirming where the appellate briefing “contai n[ed] nary a word to challenge the basis of the” challenged ruling).
Conclusion We affirm the district court’s dismi ssal orders and resu lting judgment for defendants in Appeal No. 21-4059. We also affirm the district c ourt’s attorneys’ fee order in Appeal No. 21-4143. We deny as moot the motion filed by Eric Hawkes, Appellate Case: 21-4059 Document: 010110761442 Date Filed: 11/01/2022 Page: 1314 Jennifer Hawkes, and Simplifi Co., in Appeal No. 21-4059 to substitute them as the appellants in place of Mr. Tracy and to dismiss the appeal.

Entered for the Court

Joel M. Carson III Circuit Judge Appellate Case: 21-4059 Document: 010110761442 Date Filed: 11/01/2022 Page: 14