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United States ex rel. Sorenson v. Wadsworth Bros. Constr. Co.

United States ex rel. Sorenson v. Wadsworth Bros. Constr. Co.

United States Court of Appeals for the Tenth Circuit

September 9, 2022, Filed

No. 21-4005

Opinion

 [*1150]  MURPHY, Circuit Judge.

I. INTRODUCTION

Kelly Sorenson, acting as a qui tam relator, brought suit on behalf of the United States against his former employer, Wadsworth Brothers Construction Company ("Wadsworth"), under the provisions of the False Claims Act ("FCA"), 31 U.S.C. §§ 3729-33. Sorenson alleged Wadsworth, a contractor working on a federally funded transportation project, falsely certified its compliance with the prevailing-wage requirements of the Davis-Bacon Act, 40 U.S.C. §§ 3141-48. The district court granted Wadsworth's Fed. R. Civ. P. 12(b)(6) motion as to the following claims in Sorenson's complaint: (1) Claim 1, alleging Wadsworth presented to the government a false claim, see 31 U.S.C. § 3729(a)(1)(A); (2) Claim 2, alleging the use or making of a false record to obtain payment on a false claim, see id. § 3729(a)(1)(B); and (3) Claim 3, alleging a conspiracy to defraud, see id. § 3729(a)(1)(C).1 The district court concluded Sorenson's complaint failed [**2]  to satisfy the demanding materiality standard set out by the Supreme Court in Universal Health Services, Inc. v. United States ex rel. Escobar, 579 U.S. 176, 192-96, 136 S. Ct. 1989, 195 L. Ed. 2d 348 (2016). Thereafter, the district court granted summary judgment to Wadsworth on Sorenson's Claim 5, a retaliation claim based on the whistleblower provisions of 31 U.S.C. § 3730(h). The district court concluded  [*1151]  Sorenson failed to put Wadsworth on notice his protected activities were related to purported violations of the FCA and, in addition, failed to demonstrate Wadsworth's actions were retaliatory.

Sorenson appeals the dismissal of Claims 1, 2, and 3 and the grant of summary judgment to Wadsworth on Claim 5. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms the orders of the district court.2

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48 F.4th 1146 *; 2022 U.S. App. LEXIS 25315 **

UNITED STATES OF AMERICA ex rel. KELLY E. SORENSON, Plaintiff - Appellant, v. WADSWORTH BROTHERS CONSTRUCTION COMPANY, INC., Defendant - Appellee.

Prior History:  [**1] Appeal from the United States District Court for the District of Utah. (D.C. No. 2:16-CV-00875-CW).

United States ex rel. Sorenson v. Wadsworth Bros. Constr. Co., 2020 U.S. Dist. LEXIS 233518, 2020 WL 7264825 (D. Utah, Dec. 10, 2020)United States ex rel. Sorenson v. Wadsworth Bros. Constr. Co., 2019 U.S. Dist. LEXIS 95329, 2019 WL 2374386 (D. Utah, June 5, 2019)

CORE TERMS

wages, violations, district court, allegations, contractors, quotation, compliance, employees, jobsite, deicing, notice, certification, contractual, protected activity, summary judgment, projects, site, federally funded, qui tam, fraudulent, provisions, noncompliance, retaliation, misrepresentation, alterations, regulations, paying, sheets

Civil Procedure, Appeals, Standards of Review, De Novo Review, Labor & Employment Law, False Claims Act, Scope & Definitions, Qui Tam Actions, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Pleadings, Complaints, Requirements for Complaint, Heightened Pleading Requirements, Fraud Claims, Employer Liability, Burdens of Proof, Governments, Federal Government, Claims By & Against, Reviewability of Lower Court Decisions, Preservation for Review, Business & Corporate Compliance, Protected Activities, Retaliation, Statutory Application, False Claims Act, Summary Judgment, Appellate Review, Standards of Review, Judgments, Entitlement as Matter of Law, Entitlement as Matter of Law, Genuine Disputes, Materiality of Facts