Cheryl Nolte Barnes v. Clark County

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 10, 2020
• Docket: 18-15201
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 10 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CHERYL NOLTE BARNES, Qui Tam No. 18-15201 Relator; ex rel. United States of America, 19-15720

Plaintiff-Appellant, D.C. No. 2:15-cv-01621-JCM-VCF v.

CLARK COUNTY, a Political Subdivision MEMORANDUM* of the State of Nevada; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Submitted March 25, 2020** Las Vegas, Nevada

Before: W. FLETCHER, BYBEE, and WATFORD, Circuit Judges.

1. Cheryl Nolte Barnes appeals from the district court’s order dismissing her

claims against Clark County under the False Claims Act (FCA). We affirm.

Barnes has not plausibly alleged that the County made materially false

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Page 2 of 4

statements to the Federal Aviation Administration (FAA) when requesting federal

funds. See United States ex rel. Hendow v. Univ. of Phx., 461 F.3d 1166, 1172

(9th Cir. 2006). In her complaint, Barnes identifies twenty-seven grant

applications—and an unspecified number of Passenger Facility Charge

applications—in which the County allegedly made false certifications of

compliance with three provisions. But Barnes has not alleged that the County’s

certification of compliance with these provisions was “a sine qua non of receipt of

[federal] funding.” United States ex rel. Hopper v. Anton, 91 F.3d 1261, 1267 (9th

Cir. 1996). Her complaint indicates only that the FAA conditioned its payments on

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

including the three provisions at issue. That fact, standing alone, is insufficient to

establish materiality. See Universal Health Servs., Inc. v. United States ex rel.

Escobar, 136 S. Ct. 1989, 2003–04 (2016). Because Barnes has not plausibly

alleged that the FAA placed significant weight on the County’s certification of

compliance with these particular provisions, she has failed to state a claim under

the FCA.

Moreover, Barnes cannot plausibly allege that the County made materially

false statements in its applications for federal funding. In each application, the

County certified its compliance with the relevant provisions only “as they relate[d]

to” the specific application. For instance, when the County applied for funding to Page 3 of 4

rehabilitate a runway, it certified that it had complied with the provisions as they

pertained to that project, not that it had complied with the provisions in every prior

application for federal funding. Thus, even assuming that the County did not

comply with the three provisions at issue when it allegedly failed to acquire title to

the airspace affected by Ordinance 1599, its past noncompliance could not have

been material to the FAA’s decision to approve the County’s subsequent

applications—none of which appears to involve projects implicating Ordinance

1599. For that reason, Barnes cannot satisfy the FCA’s materiality requirement,

and we have no need to address whether the district court properly dismissed her

complaint for failing to plausibly allege the County’s knowledge. See United

States ex rel. Solis v. Millennium Pharms., Inc., 885 F.3d 623, 628 (9th Cir. 2018)

(explaining that appellate courts may affirm on any basis supported by the record).

2. Barnes also appeals from the district court’s order awarding attorney’s

fees to the County. We vacate the district court’s fee award and remand for further

proceedings.

The district court primarily based its award of attorney’s fees on its

determination that Barnes had frivolously pursued time-barred claims. However,

the standard the district court used to assess the timeliness of Barnes’ claims is no

longer good law. See Cochise Consultancy, Inc. v. United States ex rel. Hunt, 139

S. Ct. 1507, 1514 (2019) (abrogating United States ex rel. Hyatt v. Northrop Corp., Page 4 of 4

91 F.3d 1211 (9th Cir. 1996)). Accordingly, we cannot uphold the district court’s

award of attorney’s fees on this ground.

Nor can we uphold the fee award on the other ground that the district court

provided in its order—namely, that Barnes’ allegations regarding the County’s

knowledge were “wholly without merit.” In concluding that the County could not

have knowingly made false statements to the FAA, the district court appears to

have considered just three of the twenty-seven grant applications listed in Barnes’

complaint, without addressing her remaining claims.1 We therefore remand for the

district court to reconsider whether attorney’s fees are warranted for reasons other

than the statute of limitations. The district court should “make detailed findings in

support of any award” on remand. Pfingston v. Ronan Eng’g Co., 284 F.3d 999,

1006 (9th Cir. 2002).

AFFIRMED in part, VACATED in part, and REMANDED. The parties

shall bear their own costs on appeal.

1 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 McCarran Int’l Airport v. Sisolak, 137 P.3d 1110 (Nev. 2006) (en banc). Given that the County submitted twenty-four grant applications after Sisolak was issued, we cannot determine whether the district court considered these applications when awarding attorney’s fees.