     Case: 17-11293      Document: 00514482470         Page: 1    Date Filed: 05/22/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                                United States Court of Appeals
                                                                                         Fifth Circuit

                                                                                       FILED
                                    No. 17-11293                                   May 22, 2018
                                  Summary Calendar
                                                                                  Lyle W. Cayce
                                                                                       Clerk

UNITED STATES OF AMERICA, ex rel. LAWRENCE M. SMITH,

              Plaintiff - Appellant

v.

DAMIEN LAMARC WALLACE, Individually, also known as D. L. Wallace;
FREDERICK R. MAYS, Individually, also known as F. R. Mays, also known
as Bishop F. R. Mays, also known as F. Ron Mays, also known as Fredrick R.
Mays; CHAZMA JONES, Individually, also known as Chazma Jones Brown,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:12-CV-4377


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Lawrence Smith filed a qui tam suit alleging that numerous defendants
violated the False Claims Act in connection with a summer food services
program sponsored by the government.               The district court, accepting the



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
     Case: 17-11293       Document: 00514482470          Page: 2     Date Filed: 05/22/2018



                                       No. 17-11293
recommendation of a magistrate judge, granted summary judgment to three of
the defendants—Damian Wallace, Frederick Mays, and Chazma Jones. The
court then entered a final judgment as to those defendants under Federal Rule
of Civil Procedure 54(b). Smith appealed and argues the district court erred in
granting summary judgment. We AFFIRM.
       On appeal, 1 Smith makes only one argument.                   He asserts that the
defendants made false factual statements in their applications to participate
in the Texas Department of Agriculture Summer Food Service Programs. A
necessary element of Smith’s FCA claim, however, is that the defendants made
fraudulent claims for payment, see 31 U.S.C. § 3729(a)(1)(A), (b)(2) (requiring
a “claim for payment” and defining claim to mean “any request or demand,
whether under a contract or otherwise, for money or property”), and the
application is not a request for payment. Smith argues that the defendants’
misstatements on the applications made later claims for payment fraudulent
under an “implied false certification theory,” citing Universal Health Services.,
Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016). Smith does not
assert the claims themselves are explicitly false.
       Smith fails to present evidence necessary to raise a fact issue in support
of an “implied false certification theory” of liability. Under Universal Health
Services, defendants are liable under the implied false certification theory “at
least where two conditions are satisfied: first, the claim does not merely
request payment, but also makes specific representations about the goods or
services    provided;     and     second,    the    defendant’s      failure    to   disclose
noncompliance        with    material       statutory,    regulatory,      or    contractual
requirements makes those representations misleading half-truths.”                      Id. at


       1“This court reviews de novo a district court’s grant of summary judgment, applying
the same standard as the district court.” Austin v. Kroger Tex., L.P., 864 F.3d 326, 328 (5th
Cir. 2017) (citing Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir. 2001)).
                                              2
    Case: 17-11293    Document: 00514482470     Page: 3   Date Filed: 05/22/2018



                                 No. 17-11293
2001. Smith’s only evidence in support of his theory consists of the following:
(1) a report showing that an entity for which the defendants worked received
reimbursement under a government program, and (2) other reports indicating
that the entity had failed to abide by the terms of the program. But Smith
never identifies any claim that the defendants submitted. Nor does he provide
evidence that would support a finding that the claims included “specific
representations” that were “misleading half-truths” in light of the alleged
misstatements in the original applications. See id. at 2001. Without that
evidence, Smith fails to raise a genuine issue of material fact regarding a
necessary element of his cause of action. Thus, the district court did not err in
granting these defendants summary judgment.
      AFFIRMED.




                                       3
