September 9, 2022 PUBLISH Christopher M. Wolpert Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA ex rel. KELLY E. SORENSON,

Plaintiff - Appellant, v. No. 21-4005 WADSWORTH BROTHERS CONSTRUCTION COMPANY, INC.,

Defendant - Appellee.

Appeal from the United States District Court for the District of Utah (D.C. No. 2:16-CV-00875-CW)

Russell T. Monahan, Cook & Monahan, LLC, Salt Lake City, Utah, for Plaintiff- Appellant.

Wilford A. Beesley, III (Jonathan T. Tichy with him on the brief), Wilford Beesley, P.C., Salt Lake City, Utah, for Defendant-Appellee.

Before BACHARACH, BRISCOE, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge. Appellate Case: 21-4005 Document: 010110736374 Date Filed: 09/09/2022 Page: 2

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 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 (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

1 The complaint also included a Claim 4, alleging Wadsworth made a false receipt with the intent to defraud the government. See 31 U.S.C. § 3729(a)(1)(E). Sorenson conceded Wadsworth’s motion to dismiss Claim 4, and the validity of that claim is not before this court on appeal.

-2- Appellate Case: 21-4005 Document: 010110736374 Date Filed: 09/09/2022 Page: 3

concluded 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

II. DISCUSSION

A. The Rule 12(b)(6) Issues

1. Background

a. Statutory Background

I. The FCA

The FCA imposes liability for “fraudulent attempts to cause the government

to pay out sums of money.” United States ex rel. Reed v. KeyPoint Gov’t Sols.,

923 F.3d 729, 736 (10th Cir. 2019) (quotation omitted). It permits the recovery

of civil penalties and treble damages from anyone who, inter alia, (1) “knowingly

2 Sorenson also challenged a district court order awarding Wadswort

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