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

                                                                            FILED
                                                                           April 18, 2008

                                       No. 07-20170                   Charles R. Fulbruge III
                                                                              Clerk

THOMAS A. BAZAN

                                                   Plaintiff-Appellant
v.

MAYOR BILL WHITE; MILTON WILSON, JR., His Official Capacity - City
of Houston Housing and Community Development Agency

                                                   Defendants-Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:03-CV-5220


Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
       Thomas Bazan challenges the dismissal of this action under the False
Claims Act (FCA), 31 U.S.C. § 3729 et seq. Defendants assert, inter alia, that the
alleged false or fraudulent claim is not material. AFFIRMED.
                                              I.
       This action, filed in November 2003, alleged in part: the City of Houston
failed to properly supervise lead-based paint (LBP) certifications to ensure they


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                   No. 07-20170

met standards set by the United States Department of Housing and Urban
Development (HUD); and Housing Opportunities Houston (a partner to the City
administering housing programs) submitted fraudulent LBP certifications,
which ultimately resulted in financial assistance for low-income home buyers
from HUD-funded programs.
        The Government declined to intervene. The City’s motion to dismiss under
Federal Rules of Civil Procedure 9(b) and 12(b)(6) was granted in September
2006.
                                         II.
        A dismissal under Rule 12(b)(6) (failure to state a claim) is reviewed de
novo. E.g., United States ex rel. Doe v. Dow Chem. Co., 343 F.3d 325, 328 (5th
Cir. 2003). Dismissal is proper if the complaint fails to allege a required element
of the offense; conclusory allegations are insufficient. E.g., Blackburn v. City of
Marshall, 42 F.3d 925, 931 (5th Cir. 1995).
        Claims under the FCA must also comply with Rule 9(b) (requiring
pleading with particularity in cases alleging fraud). Doe, 343 F.3d at 328. “At
a minimum, Rule 9(b) requires that a plaintiff set forth the ‘who, what, when,
where, and how’ of the alleged fraud.” Id. Dismissal for failure to satisfy Rule
9(b)’s requirements is a dismissal for failure to state a claim and, therefore, like
a Rule 12(b)(6) dismissal, is reviewed de novo. Id.
        To state a claim under the FCA, a relator must allege, inter alia, a person
either “knowingly presents [to the Government] . . . a false or fraudulent claim
for payment or approval” or “knowingly makes[ or] uses . . . a false record or
statement to get a false or fraudulent claim paid or approved by the
Government”. 31 U.S.C. §§ 3729(a)(1), (2) (emphasis added). Among other
factors that must be satisfied to recover under the FCA, the alleged “false or
fraudulent claim” must be material. United States ex rel. Marcy v. Rowan Co.,
No. 06-31238, 2008 WL 588745, at *3 (5th Cir. 5 Mar. 2008) (citing United States

                                         2
                                 No. 07-20170

v. Southland Mgmt. Corp., 326 F.3d 669, 679 (5th Cir. 2003) (en banc) (Jones, J.,
concurring)). A claim is material if the Government relies upon it to determine
whether to make a payment or grant an approval. Id.
      Bazan does not allege, however, that the Government relies upon an LBP
certification to determine whether to pay or approve the funds at issue.
Restated, Bazan does not allege an LBP certification is a material claim.
Moreover, LBP certifications are not material to the decision to distribute or
approve funds. In short, Bazan fails to state a claim under the FCA.
                                      III.
      For the foregoing reasons, the judgment is AFFIRMED.




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