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

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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 appellate record, this panel has determined 

unanimously that oral argument would not materially 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 doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

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Before TYMKOVICH, BALDOCK, and CARSON, Circuit Judges. 

_________________________________ 

 Mark Tracy, acting as a qui tam relator, brought suit on behalf of the United 

States alleging that Emigration Improvement District (the District) and various other 

defendants 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 et seq., and that after the 

loan proceeds were disbursed, the District failed to comply with conditions of the 

loan and failed to report this noncompliance to the United States government.1

 In the 

operative complaint—the third amended complaint—he asserted a reverse false claim 

under § 3729(a)(1)(G) and a direct false claim under § 3729(a)(1)(A) and (B). In a 

series of orders entered over the course of the litigation, the district court dismissed 

both claims against all defendants. In Appeal No. 21-4059, Mr. Tracy appeals the 

district court’s orders dismissing his direct false claim 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 Appeal No. 21-4143, Mr. Tracy appeals the district court’s 

order awarding attorneys’ fees to a subset 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). 

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the appeals and, exercising jurisdiction pursuant 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 underlying litigation in some detail. See United States 

ex. rel. Tracy v. Emigration 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 presented in this appeal. 

In Tracy I, we remanded for the district court to decide whether Mr. Tracy 

filed his complaint within the ten-year period established 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-appellees who did not 

participate in these appeals. The Boyer Company and City Development did not 

appear in the district court or participate 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 claims against them. Barnett Intermountain Water 

Consulting, Don Barnett, Joe Smolka, Kenneth 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 claim against them should be 

dismissed, he retained his right to appeal 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. 

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The issue was whether the period started to run when the District 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 documents attached to the third amended 

complaint, the District submitted its final request for 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 District submitted the 

final claim but less than ten years after the government paid it. 

The district court concluded that the relevant date for purposes of § 3731(b)(2) 

was the date the District submitted its final request for 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 dismiss and dismissed the claim against the 

moving defendants. The court then ordered Mr. Tracy to show cause why the claim 

should not also be dismissed as to the remaining defendants. He conceded that, in 

light of the court’s decision on the motions to dismiss, his claim against the 

remaining defendants should be dismissed. Accordingly, the court dismissed the 

claim against those defendants and entered judgment in favor of all defendants. 

A different subset of defendants—the District, Michael Hughes, Mark Stevens, 

David Bradford, Fred Smolka, Eric Hawkes, and Lynn Hales—then moved for 

attorneys’ fees and costs 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 moving defendants withdrew that portion of the 

motion after they reached a settlement with counsel. 

 

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motion after concluding that the action was clearly vexatious and brought for the 

purpose of harassment. 

Discussion 

1. Dismissal Order – Appeal No. 21-4059 

 Mr. Tracy first contends that the district court erred in concluding that the 

period for filing his claim started 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 government suffered damages—the date on which 

it made the payment induced by the last 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 dismissal 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 state a claim. Id. We review de novo 

whether a district court properly applied a limitations 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 Consultancy, Inc. v. United 

States ex rel. Hunt, 139 S. Ct. 1507, 1511-12 (2019). Specifically, it provides: 

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A civil action under section 3730 may not be brought . . . more 

than 3 years after the date when facts material to the right of 

action are known or reasonably should have been known by the 

official of the United States charged with responsibility to act in 

the circumstances, but in no event more than 10 years after the 

date on which the violation is committed, whichever occurs last. 

§ 3731(b)(2). 

 The different start dates for the two time periods is significant. The three-year 

period is a typical statute of limitations that starts to run when the government knew 

or should have known about the fraud, while the ten-year period is a statute of repose 

that places an outer limit on the otherwise applicable statute of limitations. See CTS 

Corp. v. Waldburger, 573 U.S. 1, 7-8 (2014) (discussing the difference between 

statutes of limitations and statutes of repose); Nat’l Credit Union Admin. Bd. v. 

Nomura Home Equity Loan, Inc., 764 F.3d 1199, 1211 (10th Cir. 2014) (same). As is 

the case for many repose periods, the ten-year period in § 3731(b)(2) starts running 

when a specific event occurs, not when the alleged injury occurs. See CTS Corp., 

573 U.S. at 8 (explaining that statutes of limitations typically begin to run when a 

cause of action accrues, meaning when the alleged injury occurred or was discovered, 

while a statute of repose begins to run when a specific event 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” (internal quotation marks 

omitted)). That date is the date the “violation is committed.” § 3731(b)(2). 

 The question then, is when the defendants’ alleged FCA violation was 

committed. Mr. Tracy’s claim alleged the defendants violated § 3729(a)(1)(A) and 

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(B), which impose civil liability 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 false record or makes a false statement 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 (10th Cir. 2022) (“The FCA 

imposes liability for fraudulent attempts to cause the government to pay out sums of 

money.” (emphasis added) (internal quotation marks omitted)); see also Rex Trailer 

Co. v. United States, 350 U.S. 148, 152-53 & n.5 (1956) (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 government 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 recognized that the FCA attaches 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 liability, not to the 

underlying fraudulent activity or to the government’s wrongful payment, but to the 

‘claim for payment.’”); Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 

785 (4th Cir. 1999) (same). 

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run on the date the defendant submitted a false claim for payment” (internal 

quotation marks omitted)). 

 In so concluding, we reject Mr. Tracy’s argument that because he sought 

actual damages, the ten-year period did not begin to run 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 reasoned that because 

§ 3729 provides that a false claimant may be liable both for civil 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 seeks 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 the 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 suggests that Congress intended to establish 

different start-dates for the ten-year repose period depending on the relief sought. 

To the contrary, § 3731(b)(2)’s plain language provides that the clock starts ticking 

on “the date on which the violation is committed,” not when the government suffers 

damage. Mr. Tracy cites no circuit 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 period begins to run when the defendant 

accepts payment from the government on a false 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). 

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 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 district 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 attorneys’ fees to the defendants in a 

qui tam action if (1) the government 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 sustain 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 solely on finding that the relator’s claim was 

clearly frivolous and declining to address the other two elements because they were 

“not necessary to our disposition”). We review 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 information provides context for our 

review of the district court’s fee order. In 2019, after entering the pre-Tracy I

dismissal orders, the district court ordered Mr. Tracy to pay 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 the subject of the FCA litigation, and sending letters to the 

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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, finding “no good faith basis for” Mr. Tracy 

having filed the wrongful lis pendens, the court determined that his recording of the 

lis pendens and his related conduct was vexatious, and awarded statutory 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) claim (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 that 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 grievances . . . 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 the direct file claim, we vacated 

the 2019 fee order because we could not say that the District was the prevailing party 

until the district court decided whether any alleged violation 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 conduct met the § 3730(d)(4) standard. Id. 

 On remand, the district court ordered Mr. Tracy to pay the attorneys’ fees and 

costs of the defendants who sought an attorneys’ fee award. Unlike the 2019 fee 

order in which the court found that aspects of the litigation satisfied each element of 

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the third prong of § 3730(d)(4), the fee order issued on remand was based only on 

findings that the action was “clearly vexatious” and “brought primarily for purposes 

of harassment.” Aplt. App. at 311. Given its earlier finding that the lis pendens was 

“unreasonable and without foundation” and had nothing to do with the issues that 

arose in Tracy I and on remand, the district court found that Mr. Tracy’s behavior 

with respect to the lis pendens was “clearly vexatious when it first occurred, and no 

subsequent developments change that finding.” Id. at 310. The court further found 

that nothing in the subsequent litigation affected its finding in the 2019 fee order that 

Mr. Tracy’s “actions indicated bad faith 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 that he “brought this case to 

air personal grievances against Defendants in pursuit of his own ulterior motives, 

rather than to seek money damages for the United States,” id. at 310. Having found 

that his actions were clearly vexatious and brought for the purpose of harassment, the 

court awarded fees on those grounds and did not address whether his claims were 

clearly frivolous. 

C. Analysis

Mr. Tracy does not dispute that the first two prongs of the § 3730(d)(4) inquiry 

are satisfied here—the government declined to intervene 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 

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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 order 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 purposes 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 failed 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) (observing 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 “contain[ed] nary a word to challenge the basis 

of the” challenged ruling). 

Conclusion 

We affirm the district court’s dismissal orders and resulting judgment for 

defendants in Appeal No. 21-4059. We also affirm the district court’s attorneys’ fee 

order in Appeal No. 21-4143. We deny as moot the motion filed by Eric Hawkes, 

 

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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 

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