                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                               No. 08-17197                   May 19, 2009
                           Non-Argument Calendar            THOMAS K. KAHN
                         ________________________               CLERK


                 D. C. Docket No. 07-01765-CV-ORL-31GKJ

UNITED STATES OF AMERICA, ex rel.,


                                                                       Plaintiff,

CARLOS SHURICK, Relator,

                                                             Plaintiff-Appellant,

                                    versus

BOEING COMPANY, as agent for and/or
d.b.a. Boeing Space Operations Company,

                                                            Defendant-Appellee,

INDYNE, INC.,

                                                                     Defendant.
                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                                (May 19, 2009)
Before BLACK, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

      Carlos Shurick appeals the dismissal of his complaint that Boeing Company

violated the False Claims Act. 31 U.S.C. § 3729. The district court dismissed

Shurick’s complaint for failure to state a claim. We affirm.

                                 I. BACKGROUND

      Relator Shurick, a former employee of the Boeing Company, filed a qui tam

action and alleged that Boeing presented to the government false claims, 31 U.S.C.

§ 3729(a)(1), obtained payment for those false claims, id. § 3729(a)(2), held and

delivered less property to the government than reflected on a receipt or certificate,

id. § 3729(a)(4), certified to the government false claims, id. § 3729(a)(5), and

conspired with its subcontractor, Indyne, to present those false claims, id. §

3729(a)(3). Shurick alleged that Boeing invoiced and obtained payment from the

government for services rendered by employees of Boeing who used respirators

that violated federal safety regulations. Shurick alleged that a contract between

Boeing and the National Aeronautics and Space Administration required that

Boeing comply with federal safety regulations and its alleged noncompliance with

the contract violated the False Claims Act.

      In the complaint, Shurick alleged that he was employed by Boeing to work



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at the Kennedy Space Center, where he apparently worked with or might have been

exposed to anhydrous ammonia. Shurick alleged that the contract, “through

adoption of applicable laws, rules, and regulations, (including 29 C.F.R. §

1910.134) (and appendices thereto) required that” Boeing employees who wore

“corrective lenses for impaired vision be fit tested with respirators before training

and certification with respirators that would seal against their faces and effectively

secure their eyeglasses in place during use.” Shurick alleged that “Indyne, with

Boeing’s knowledge and support, failed and/or refused to properly fit test”

respirators for Shurick and other unnamed Boeing employees. Shurick alleged that

between October 1, 2002, when Boeing contracted with Indyne to fit test

respirators, and July 11, 2007, Boeing submitted “120 or more” invoices to the

government for payment of services that required “the use of properly fitted

respirators . . . .”

       Boeing moved to dismiss the complaint and argued that Shurick failed to

plead his allegations of fraud with specificity. See Fed. R. Civ. P. 9(b), 12(b)(6).

The district court granted the motion to dismiss. The court ruled that Shurick

failed to allege “that Boeing failed to deliver the services contemplated by the

CAPPS contract and then billed the government for those services, or even more

generally, that Boeing ever submitted a claim to the government to pay amounts it



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did not owe.” The court ruled that Shurick failed to “offer[] any particularized

allegations that Boeing ever submitted a claim which expressly conditioned

payment on a certification that the services rendered were done so in compliance

with applicable government regulations.” The district court also ruled that Shurick

was not “in a position to review or submit” a claim for payment and failed to allege

with specificity facts to establish that Boeing submitted bills or received payment

for a false claim.

                          II. STANDARD OF REVIEW

      We review de novo a dismissal for failure to state a claim and accept as true

the facts alleged in the indictment. Corsello v. Lincare, Inc., 428 F.3d 1008, 1012

(11th Cir. 2005).

                                 III. DISCUSSION

      Shurick challenges the dismissal of his complaint on two grounds. First,

Shurick argues that he pleaded grounds under the False Claims Act with sufficient

specificity to survive a motion to dismiss. Second, Shurick argues that the district

court should have allowed him to amend his complaint. These arguments fail.

      A complaint must “state[] with particularity . . . the circumstances

constituting fraud or mistake.” Fed. R. Civ. P. 9(b). To state a claim under the

False Claims Act that complies with Rule 9(b), “the complaint must allege ‘“facts



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as to time, place, and substance of the defendant’s alleged fraud,” [and] “the details

of the defendants’ allegedly fraudulent acts, when they occurred, and who engaged

in them.”’” Corsello, 428 F.3d at 1012 (quoting United States ex rel. Clausen v.

Lab. Corp. of Am., Inc., 290 F.3d 1301, 1310 (11th Cir. 2002)). The failure to

satisfy Rule 9(b) is a ground for dismissal of a complaint. Id. The crux of a

complaint under the False Claims Act is the submission of a fraudulent claim for

payment, see id. at 1013; United States ex rel. Atkins v. McInteer, 470 F.3d 1350,

1357 (11th Cir. 2006), so to survive a motion to dismiss, a complaint must allege

with particularity that false claims were actually submitted to the government.

      We have consistently upheld dismissals of complaints under the False

Claims Act when the relator has failed to comply with Rule 9(b). In Atkins, we

upheld the dismissal of a complaint filed by a physician relator who alleged fraud

based on the progress notes of medical treatments that were written by other

doctors but did not observe or have other knowledge of the billing to Medicare and

Medicaid for those medical treatments. 470 F.3d at 1358–60. In Corsello, we

ruled that a complaint failed when a relator salesman of home health care

equipment and services alleged that the defendants were engaged in fraudulent

Medicare billing, but failed to allege “the ‘who,’ ‘what,’ ‘where,’ ‘when,’ and

‘how’ of fraudulent submissions to the government.” 428 F.3d at 1013–14. In



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Clausen, we ruled that a complaint failed when a relator laboratory technician

alleged that the defendant had performed unnecessary tests and improperly billed

Medicare and Medicaid beneficiaries but failed to state facts related to the dates or

amounts of claims that were submitted to the government for payment. 290 F.3d at

1311–13.

      Shurick’s complaint fails to state a claim because it does not allege with

particularity the submission of a fraudulent claim to the government. Shurick

states that Boeing failed to provide respirators that allegedly failed to comply with

government regulations, but Shurick does not state with particularity how the

contract between Boeing and the government required compliance with those

regulations. Shurick alleges that Boeing “invoiced the government or caused the

government to be invoiced for services of Boeing employees who were . . .

equipped with ill-fitting respirators[,]” but Shurick lacks personal knowledge of the

invoices and fails to allege facts that establish that invoices were actually submitted

to the government.

      Shurick also cannot complain that the district court denied him leave to

amend his complaint when he never sought that relief. After the district court

dismissed his complaint, Shurick could have sought leave to amend if he was

granted relief on a motion to amend the judgment, Fed. R. Civ. P. 59(e), or a



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motion to vacate, Fed. R. Civ. P. 60(b). Atkins, 470 F.3d at 1361 n.22. Shurick

also has not explained how he would amend the complaint to withstand another

motion to dismiss. See id. at 1362 (“[A] plaintiff ‘should not be allowed to amend

his complaint without showing how the complaint could be amended to save the

meritless claim.’” (quoting Wisdom v. First Midwest Bank, 167 F.3d 402, 409 (8th

Cir. 1999)).

                               IV. CONCLUSION

      We AFFIRM the dismissal of Shurick’s complaint.




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