                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 8 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JOSEPH EARL PERRY, ex rel. United               No.    17-55931
States of America,
                                                D.C. No.
                Plaintiff-Appellant,            3:13-cv-02599-LAB-JMA

and
                                                MEMORANDUM*
UNITED STATES OF AMERICA,

                Intervenor,

 v.

PACIFIC MARITIME INDUSTRIES
CORPORATION, a California corporation;
et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Southern District of California
                  Larry A. Burns, Chief District Judge, Presiding

                           Submitted February 6, 2019**
                              Pasadena, California



      *
             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).
Before: WARDLAW and BEA, Circuit Judges, and MURPHY,*** District Judge.

      Joseph Perry appeals the district court’s grant of summary judgment in his

qui tam action under the False Claims Act, 31 U.S.C. § 3729, in favor of Pacific

Maritime Industries Corp., Harcon Precision Metals, Inc., and John Atkinson

(collectively PMI). We have jurisdiction under 28 U.S.C. § 1291. We affirm.

      1.     The district court correctly concluded that Perry failed to raise a

triable issue of material fact as to whether PMI knowingly made a false claim

regarding the compliance of the metal joiner doors with a weight limit. See United

States ex rel. Campie v. Gilead Scis., Inc., 862 F.3d 890, 898–99 (9th Cir. 2017).

Contrary to Perry’s uninformed interpretation of certain testing documents, it

remains undisputed that PMI’s contract with the Defense Logistics Agency

imposed no weight limit, the Navy had never interpreted Table 1 in NAVSEA

Drawing No. 5959320A (Table 1) to impose a weight limit, and, due to other Navy

specifications, PMI had no actual control over the final weight of the doors. Thus,

Perry’s conclusion that Table 1 imposed a weight limit that PMI knowingly

violated was incorrect. He therefore failed to demonstrate knowing fraud. See

Hagood v. Sonoma Cty. Water Agency, 81 F.3d 1465, 1478 (9th Cir. 1996). At

most, Perry’s evidence demonstrates a “disputed legal question” whether Table 1



      ***
             The Honorable Stephen Joseph Murphy III, United States District
Judge for the Eastern District of Michigan, sitting by designation.

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imposed a weight limit on the doors. Id. (citation omitted). And Perry presented

no evidence that the supposed weight limit was material to the government’s

decision to pay PMI for the doors. See Universal Health Servs., Inc. v. United

States ex rel. Escobar (Escobar), 136 S. Ct. 1989, 2002–03 (2016) (The False

Claims Act’s “materiality standard is demanding.”); 31 U.S.C. § 3729(b)(4).

      2.     The district court correctly concluded that Perry failed to raise a

triable issue of fact as to whether Juvenal Torres’s signature on the First Article

Testing (FAT) report as “Inspector” was material to the Navy’s contract for the

doors. See Escobar, 136 S. Ct. at 2003 (“Materiality . . . cannot be found where

noncompliance is minor or insubstantial. . . . [I]f the Government pays a particular

claim in full despite its actual knowledge that certain requirements were violated,

that is very strong evidence that those requirements are not material.”). It is

undisputed that the government paid PMI for the doors and waived the contractual

requirement that PMI conduct a FAT. Nor has Perry demonstrated that the

government believed it had received a FAT report when it paid PMI for the doors.

      AFFIRMED.




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