                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 08-1423


UNITED STATES OF AMERICA ex rel. BARRINGTON T. GODFREY,

                 Plaintiff - Appellant,

           v.

KBR,   INCORPORATED;       KELLOGG   BROWN     &     ROOT     SERVICES,
INCORPORATED,

                 Defendants – Appellees,

           and

JAMAL NASERY; ABC INTERNATIONAL GROUP;                GULF     CATERING
COMPANY; TAMIMI GLOBAL CATERING COMPANY,

                 Defendants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:05-cv-01418-GBL-TRJ)


Argued:   October 29, 2009                    Decided:      January 6, 2010


Before TRAXLER,    Chief    Judge,   and   GREGORY   and     DAVIS,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: W. Clifton Holmes, KUBLI & ASSOCIATES, PC, Vienna,
Virginia, for Appellant.  John Martin Faust, VINSON & ELKINS,
Washington, D.C., for Appellees.   ON BRIEF: Alan M. Grayson,
Victor A. Kubli, GRAYSON & KUBLI, PC, Vienna, Virginia, for
Appellant.   Sharon Stagg, KBR, INC., Houston, Texas; Alden L.
Atkins, Amy L. Riella, J. Randall Warden, VINSON & ELKINS,
Washington, D.C., for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

      Barrington    Godfrey   brought       this    action    under    the   False

Claims Act (“FCA”), see 31 U.S.C.A. § 3729 (West 2003 & Supp.

2009) against KBR, Inc., Kellogg Brown & Root Services, Inc.

(together referred to as “KBR”), a KBR employee, and three KBR

subcontractors.      Godfrey alleged that KBR violated the False

Claims Act when it knowingly paid inflated invoices submitted to

it   by   the   subcontractors   and       then    sought    payment    from   the

government based on those inflated costs.                   The district court

dismissed Godfrey’s amended complaint for failure to state a

claim, but gave Godfrey leave to amend.                 Godfrey submitted a

second amended complaint, and the district court again granted

KBR’s motion to dismiss.      Godfrey appeals, and we affirm.



                                   I.

      KBR was awarded a prime contract under the Logistics Civil

Augmentation Program (“LOGCAP”) to provide dining facilities and

meal service at various sites in Iraq.               The LOGCAP contract was

a cost-plus-fee-award contract, through which KBR was reimbursed

its costs (up to a maximum amount) and was paid a base fee of 1%

of those costs, with the opportunity to be awarded another 2%

based on performance assessments by the government.                   KBR entered

into subcontracts with defendants ABC International Group, Gulf

Catering Co., and Tamimi Catering Co.                 In July 2004, Godfrey

                                       3
began       working    for    KBR   as   a   contract    administrator,          and   he

supervised the relationship between KBR and the subcontractors.

        According to the allegations in Godfrey’s second amended

complaint, 1 billing under the subcontracts “was supposed to be

largely a function of ‘head counts,’ i.e., the actual number of

personnel to whom food was served at each dining facility.                             The

payment per meal ranged up to approximately $5 per ‘head,’ and

the payment for a full day’s meal was approximately $10 per

‘head.’”         J.A.    224.       Godfrey,       however,    believed       that     the

subcontractors         were    invoicing     KBR    based     on    greatly     inflated

headcounts.           He alleged that ABC was claiming a headcount of

5000 per meal, when the actual headcount was about 2500 per

meal; that Gulf was billing for a headcount of 5400 when the

actual headcount never exceeded 1321; and that Tamimi “engaged

in the same overcharging as ABC and Gulf,” J.A. 232.

        Godfrey   also       alleged     other   financial         misconduct    by    the

subcontractors.          He alleged that ABC was to build a new dining


        1
          Godfrey filed a sealed complaint in December 2005.
The government declined to intervene, and the district court
unsealed the complaint on May 1, 2007.       Shortly thereafter,
Godfrey filed an amended complaint.         The district court
dismissed that complaint, giving Godfrey the opportunity to file
another complaint to cure the deficiencies.   Godfrey eventually
filed a second amended complaint, which was in large part
identical to the prior complaint.    Unless otherwise specified,
the discussion of Godfrey’s claims come from the allegations in
his second amended complaint.



                                             4
facility     with    a    larger    capacity,      that    it     never    built    the

facility but billed KBR as if the facility were in operation,

and that ABC failed to provide 40% of the staffing that its

contract with KBR required.             Godfrey alleged that ABC billed KBR

with   rates   reflecting        new    kitchen    equipment       that    was     never

purchased and a new camp for its employees that was never built.

Godfrey asserted that after a bomber attack on one of the dining

facilities, KBR issued a “contract modification adding over $1

million in unnecessary charges to ABC’s contract.”                         J.A. 228.

Godfrey also alleged that subcontractor Gulf likewise failed to

provide the full level of staffing that its contract with KBR

required, and that KBR modified Gulf’s contract to authorize the

purchase of temperature-controlled storage units.                     According to

Godfrey, the government “had neither requested nor authorized

this   purchase,”        and   “[t]he   pricing    was     both    unsupported      and

extremely exorbitant.”           J.A. 230.        As to subcontractor Tamimi,

Godfrey alleged in his complaint that it understaffed its dining

facilities     and    deliberately        withheld      equipment    and     supplies

required by its contracts with KBR.               J.A. 232.

       Godfrey alleged that KBR knew or should have known about

the overcharging by the subcontractors, and that he specifically

talked   about      these      problems    with    Jamal    Nasery,       KBR’s    lead

contract   administrator         for    the    dining     facility   subcontracts.

Godfrey claims that KBR knowingly passed on these overcharges to

                                           5
the    government,            because,       given     the    pay     structure       under    the

LOGCAP contract, higher payments to subcontractors also meant

higher fee-award payments from the government to KBR.                                    Godfrey

alleged that Nasery repeatedly threatened to fire Godfrey, and

that       subcontractor         ABC      eventually         joined    in    these      efforts.

Godfrey was suspended for 10 days in December 2004.                                      Godfrey

alleged that after he was reinstated, “Nasery and others had

made       his    work     environment        so    hostile     that    Godfrey       could    not

continue,”             J.A.    234,       and      Godfrey’s        employment        with    KBR

terminated in February 2005.

       In        his    substantive         claims     under    the     False    Claims       Act,

Godfrey          alleged      that    (1)    KBR     submitted       false   claims      to   the

government by seeking payment for inflated invoices; (2) KBR

made       false       statements     in     connection       with     claims    made    to    the

government, by falsely certifying compliance with all contract

terms; (3) KBR and the subcontractors conspired to submit false

claims to the government; and (4) he is entitled to participate

in any recovery that the government might obtain from KBR should

the    government          elect     to     proceed    against        KBR   in   an   alternate

proceeding. 2



       2
          Godfrey also alleged that KBR improperly harassed and
retaliated against him for his investigation of the billing
improprieties.   The district court concluded that Godfrey was
required to submit his retaliation claim to arbitration, and the
(Continued)
                                                   6
       The     district      court      granted    KBR’s    motion     to    dismiss      the

second       amended    complaint.            The    court        concluded      that     the

complaint failed to allege fraud with the specificity required

by Rule 9(b) of the Federal Rules of Civil Procedure.                            The court

further concluded that the complaint failed to allege that KBR

had    actually       certified         compliance    with     contract         terms   when

presenting its claims to the government or that any term of the

LOGCAP contract required such certification, that Godfrey failed

to plead any terms of the relevant contracts that would show

that    the     billing      was       improper,    and    that    Godfrey       failed   to

sufficiently         allege       an    agreement    to     support    the       conspiracy

claim.        The district court dismissed count V, the “alternate

proceeding” claim, as premature, since there was no indication

that the government had settled with KBR.



                                             II.

                                             A.

       Godfrey appeals, challenging the district court’s dismissal

of his first amended complaint and his second amended complaint.

We    review    de    novo    a    district       court’s    grant    of    a    motion    to



court therefore severed that claim and dismissed it.                               Godfrey
does not challenge that ruling on appeal.




                                              7
dismiss.     See Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.

2008).

      “To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’”                         Ashcroft v. Iqbal,

129   S.    Ct.    1937,    1949    (2009)        (quoting       Bell   Atl.    Corp.    v.

Twombly,     550    U.S.    544,    570   (2007)).           “A    claim    has    facial

plausibility       when    the    plaintiff        pleads    factual      content      that

allows     the    court    to    draw   the       reasonable      inference     that    the

defendant is liable for the misconduct alleged.”                         Iqbal, 129 S.

Ct. at 1949.

      Moreover,      because       this   action        involves        allegations      of

fraud, the complaint is also subject to Rule 9 of the Federal

Rules of Civil Procedure, which requires that “the circumstances

constituting fraud” be stated “with particularity.”                               Fed. R.

Civ. P. 9(b); see Harrison v. Westinghouse Savannah River Co.,

176 F.3d 776, 783-84 (4th Cir. 1999) (applying Rule 9 to False

Claims Act complaint).             To meet the requirements of Rule 9, an

FCA complaint must “describe ‘the time, place, and contents of

the false representations, as well as the identity of the person

making     the    misrepresentation       and       what    he   obtained      thereby.’”

United States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525

F.3d 370, 379 (4th Cir. 2008) (quoting Harrison, 176 F.3d at

784)); see also United States ex rel. Bledsoe v. Cmty. Health

                                              8
Sys., Inc., 501 F.3d 493, 509 (6th Cir. 2007) (explaining                            that

to   satisfy    Rule     9,    an    FCA   plaintiff       must    allege    “the    time,

place, and content of the alleged misrepresentation . . .; the

fraudulent scheme; the fraudulent intent of the defendants; and

the injury resulting from the fraud.”).                       “These facts are often

referred to as the ‘who, what, when, where, and how’ of the

alleged fraud.”          Wilson, 525 F.3d at 379 (internal quotation

marks omitted).

                                              B.

      As   is   relevant        to     this        case,   the    FCA    prohibits      (1)

knowingly presenting a false or fraudulent claim for payment or

approval, see 31 U.S.C.A. § 3729(a)(1); (2) knowingly using a

false record or statement to induce the government to pay or

approve    a    false     or        fraudulent       claim,      see    31   U.S.C.A.     §

3729(a)(2); and (3) conspiring to induce the government to pay

or   approve    a   false      or     fraudulent       claim,     see   31   U.S.C.A.     §

3729(a)(3).         To    prevail       under       the    FCA,    a    plaintiff    must

therefore prove:

      (1) that the defendant made a false statement or
      engaged in a fraudulent course of conduct; (2) such
      statement or conduct was made or carried out with the
      requisite scienter; (3) the statement or conduct was
      material; and (4) the statement or conduct caused the
      government to pay out money or to forfeit money due.

United States ex rel. Harrison v. Westinghouse Savannah River

Co., 352 F.3d 908, 913 (4th Cir. 2003).


                                              9
        The bulk of Godfrey’s claims are based on his assertion

that       the    subcontractors           submitted   to     KBR   invoices     based    on

inflated headcounts and that KBR violated the FCA by including

those       inflated      costs       in    the    invoices    it    submitted    to     the

government.            The submission of an invoice based on an inflated

headcount could amount to a false claim within the meaning of

the statute, however, only if the contract required that billing

be based on the actual number of meals served.                         If the contract

based payment on some other metric -- for example, the cost of

supplies purchased by the subcontractor -- an inflated headcount

contained         in     an    invoice       would     not    lead    to    overpayment.

Godfrey’s complaint, however, fails to allege that the relevant

contracts made payment dependent on the number of meals actually

served.          In    fact,    the    second      amended    complaint    alleges     that

billing          under    the     subcontracts         was      “largely”      based      on

headcounts, which in and of itself indicates that there were

other factors relevant to the subcontractors’ billing. 3



       3
          Moreover,    Godfrey   himself   submitted   documents
affirmatively undermining his claims about the terms of the
subcontracts.   In response to KBR’s motion to dismiss, Godfrey
submitted to the district court portions of the contract between
KBR and ABC.     These portions of the contract, as modified on
July 16, 2004, seem to establish fixed-price bands for given
numbers of meals -- $2.6 million for a headcount of 5500; $2.7
million for a headcount of 6500; and $3.0 million for a
headcount of 7500. J.A. 307. Because the lowest headcount band
provided is 5500, it appears that the contract sets a minimum
(Continued)
                                                  10
     The facts necessary to show that Godfrey is entitled to

relief    under    the       False    Claims       Act    are       the    terms    of     the

subcontracts.          Godfrey’s      complaint,         however,      simply      does    not

allege those necessary facts.                     Without allegations about the

terms of the subcontracts, the complaint fails to sufficiently

set forth the content of the false statements, as required by

Rule 9.     Although the failure to allege the requirements of the

underlying     contracts        is     the        complaint’s         most      significant

shortcoming,      we    note   that     the   complaint         does      not    allege    the

specifics    of    anything     --     the    terms      of   the    subcontracts,         the

amounts claimed by the subcontractors on the invoice, or the

amounts that should have been claimed.                        The complaint fails to

set forth the “who, what, when, where, and how of the alleged

fraud,”     Wilson,      525   F.3d     at    379       (internal         quotation      marks

omitted),    and       the   complaint       therefore        fails       to    satisfy    the

requirements of Rule 9.              Godfrey’s suggestion that he should be

able to ferret out that kind of detail through discovery is

without merit.          See id. at 380 (“[I]f allowed to go forward,

Relators’    FCA       claim   would    have       to    rest    primarily         on    facts

learned   through        the   costly    process         of     discovery.          This    is

precisely what Rule 9(b) seeks to prevent.”).



price that will be paid to the subcontractor, even if the number
of meals actually served is less.



                                             11
       Godfrey    also    contends          that    the       district      court    erred    by

rejecting    a    false        certification          claim          that   was     based     on

allegations that were included in his first amended complaint

but were omitted from his second amended complaint.                               We need not

decide whether, as KBR contends, Godfrey waived this claim by

failing to re-assert the relevant facts in his second amended

complaint, 4 because, when we consider the allegations underlying

Godfrey’s    certification                claims,     the       claims      were      properly

dismissed.

       A false certification of contract compliance can give rise

to    liability       under    the    False        Claims      Act    if:    “a     government

contract or program required compliance with certain conditions

as a prerequisite to a government benefit, payment, or program;

the defendant failed to comply with those conditions; and the

defendant    falsely          certified       that       it    had    complied       with    the

conditions       in     order        to     induce       the     government         benefit.”

Harrison, 176 F.3d at 786.                  Godfrey did not allege that LOGCAP,

the    contract       between    KBR        and    the    government,         made    payment


       4
          In Young v. City of Mount Rainier, 238 F.3d 567 (4th
Cir. 2001), we held that “if a claim is dismissed without leave
to amend, the plaintiff does not forfeit the right to challenge
the dismissal on appeal simply by filing an amended complaint
that does not re-allege the dismissed claim,” id. at 572-73, but
we expressly declined to consider the waiver question where, as
in this case, a claim is dismissed with leave to amend, see id.
at 573 n.4.



                                              12
contingent on compliance with any particular conditions, nor did

he allege any facts to support his conclusory assertion that KBR

in    fact    certified         compliance.        The    allegations      in     the    first

amended complaint of any express or implied certification by KBR

thus fail to meet the requirements of Rule 9.                        See United States

ex rel. Gross v. AIDS Research Alliance-Chicago, 415 F.3d 601,

605    (7th    Cir.       2005)    (affirming       dismissal       of    FCA    complaint,

noting that “where an FCA claim is based upon an alleged false

certification of regulatory compliance, the certification must

be    a   condition        of     the    government       payment    in     order       to   be

actionable.         The     second        amended     complaint          makes     no    such

allegation.”).

       Moreover,          the     certification          claim    suffers         from       the

overarching deficiency that we have already discussed -- the

absence of any plausible allegations that the subcontractors’

billing       practices           were    improper        under     their        contracts.

According      to   Godfrey,        the    certifications,        whether        express     or

implied, were false because KBR paid the subcontractors money to

which KBR knew they were not entitled.                           Because there are no

allegations to support the underlying claim of improper billing,

the certification claims necessarily fail as well.

       Godfrey during oral argument seemed to suggest that his

certification claim is also based on his assertions that the

subcontractors failed to provide the staffing, equipment, etc.,

                                              13
required under their contracts with KBR.                           Because there are no

allegations           that      any     contract          required      certification        of

compliance with contract terms, this argument fails, for the

reasons         discussed       above.          And   to    the    extent      that    Godfrey

believes that the failure to meet staffing or other contractual

requirements can support an FCA claim on its own, without regard

to a certification requirement, we disagree.                             These assertions

amount          to    nothing      more        than   a    claim       that    KBR     or    the

subcontractors breached the terms of their contracts and thus

cannot give rise to liability under the act.                              See Wilson, 525

F.3d at 377 (“While the phrase ‘false or fraudulent claim’ in

the False Claims Act should be construed broadly, it just as

surely cannot be construed to include a run-of-the-mill breach

of contract action that is devoid of any objective falsehood. .

. .     To hold otherwise would render meaningless the fundamental

distinction between actions for fraud and breach of contract.”

(citation omitted)).

      Because          Godfrey’s       complaint        fails     to   meet    the     pleading

requirements of Rule 9, the district court properly dismissed

count       I    (§       3729(a)(1)      --    false      claims)     and     count    II   (§

3729(a)(2)           --    false      statements). 5         Count      III,     alleging     a


        5
          The district court also dismissed count II because
Godfrey did not allege that KBR presented the false statements
to the government. As Godfrey points out, the Supreme Court, in
(Continued)
                                                 14
conspiracy between KBR and the subcontractors to violate the

FCA, was also properly dismissed by the district court.                          The

district court concluded that the complaint “failed to provide

sufficient facts giving rise to an inference of a meeting of the

minds   and      agreement      sufficient      to   support     a     claim     for

conspiracy.”        J.A. 408.      We agree.         Moreover, the complaint

fails to plead sufficient facts to show that the conspirators

intended to defraud the government.              See Allison Engine Co. v.

United States ex rel. Sanders,               128 S. Ct. 2123, 2130 (2008)

(“Where the conduct that the conspirators are alleged to have

agreed upon involved the making of a false record or statement,

it   must   be   shown   that    the   conspirators      had   the     purpose    of

‘getting’     the   false    record    or    statement   to    bring    about    the

Government’s payment of a false or fraudulent claim.”).                    And as

discussed above, Godfrey’s complaint fails to allege sufficient

facts to show even an individual violation of the False Claims

Act by KBR or the subcontractors.                Since Godfrey’s conspiracy




an opinion issued after the district court’s decision in this
case, rejected the presentment requirement as to claims made
under § 3729(a)(2). See Allison Engine Co. v. United States ex
rel. Sanders,   128 S. Ct. 2123, 2128-30 (2008).  The district
court’s error on the presentment issue is irrelevant, however,
because the district court also rejected count II for the
reasons discussed above.




                                        15
claim is premised on those claims of underlying FCA violations,

the conspiracy claim rises and falls with the individual claims.

     Finally,           we     conclude      that    the    district        court    properly

dismissed count V, through which Godfrey sought to participate

in any alternate remedy that the government may pursue.                                 See 31

U.S.C.A.       §    3730(c)(5)         (“Notwithstanding           subsection        (b),    the

Government may elect to pursue its claim through any alternate

remedy available to the Government, including any administrative

proceeding to determine a civil money penalty.                                    If any such

alternate remedy is pursued in another proceeding, the person

initiating         the       action    shall    have       the    same      rights    in    such

proceeding         as    such    person      would   have        had   if   the    action    had

continued under this section.”); see also United States ex rel.

LaCorte v. Wagner, 185 F.3d 188, 191 (4th Cir. 1999).                                 Although

the government declined to intervene in this action, there is

nothing in the record suggesting that the government is in fact

pursuing any alternate remedy against KBR.                             Moreover, any claim

that Godfrey might have under § 3730(c)(5) would be against the

government, not KBR or the other defendants in this action.                                   In

any event, because Godfrey’s FCA claims have failed, he has no

right to participate in any recovery by the government.                                      See

Bledsoe,   501          F.3d    at     522   (“Absent       a     valid     complaint       which

affords    a       relator       the    possibility        of     ultimately       recovering

damages, there is no compelling reason for allowing a relator to

                                               16
recover for information provided to the government.”); United

States ex rel. Hefner v. Hackensack Univ. Med. Ctr., 495 F.3d

103, 112 (3d Cir. 2007) (“[A] relator is not entitled to a share

in the proceeds of an alternate remedy when the relator’s qui

tam action under § 3729 is invalid.”).



                                III.

     Accordingly,   for   the   foregoing   reasons,   the   district

court’s orders dismissing Godfrey’s first amended complaint and

second amended complaint are hereby affirmed.

                                                             AFFIRMED




                                 17
