                                                                            [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 10-14759         ELEVENTH CIRCUIT
                                        Non-Argument Calendar        JUNE 9, 2011
                                      ________________________        JOHN LEY
                                                                       CLERK
                           D.C. Docket No. 8:09-cv-00305-SDM-TGW

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                                     Plaintiff,

WILLIAM SEAN MICHAEL LOWRY,

                                            llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellant,

                                               versus

WALGREEN COMPANY, INC.,

                                            llllllllllllllllllllllllllllllllllllllllDefendant-Appellee

                                     ________________________

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

                                            (June 9, 2011)

Before EDMONDSON, PRYOR and BLACK, Circuit Judges.

PER CURIAM:
       William Lowry appeals the dismissal of his False Claims Act qui tam action

against Walgreen Company, Inc. (Walgreen) and the denial of his motion for leave

to file a third amended complaint. On appeal, Lowry argues the district court

misinterpreted the term “actual charge on the claim for program benefits” in 42

C.F.R. § 414.904. After review, we affirm.1

       The False Claims Act prohibits knowingly presenting “a false or fraudulent

claim for payment or approval” or knowingly making or using “a false record or

statement material to a false or fraudulent claim.” 31 U.S.C. § 3729(a)(1)(A), (B).

“The False Claims Act does not create liability merely for a health care provider’s

disregard of Government regulations or improper internal policies unless, as a

result of such acts, the provider knowingly asks the Government to pay amounts it

does not owe.” United States ex rel. Clausen v. Lab. Corp. of Am., Inc., 290 F.3d

1301, 1311 (11th Cir. 2002).

       Medicare will reimburse a health care provider for 95% of a flu vaccine’s

average wholesale price. 42 U.S.C. § 1395u(o)(1)(A)(iv). Section 1395u(o)’s

implementing regulation states that such reimbursement is based on “the lesser of



       1
          We review a district court’s dismissal of a complaint for failure to state a claim de
novo, “accepting the allegations in the complaint as true and construing them in the light most
favorable to the plaintiff.” Timson v. Sampson, 518 F.3d 870, 872 (11th Cir. 2008). We also
reviews issues of statutory interpretation de novo. Id.

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. . . [t]he actual charge on the claim for program benefits; or . . . 95 percent of the

average wholesale price.” 42 C.F.R. § 414.904(a), (e).

      The district court did not err in dismissing Lowry’s action and denying him

leave to file a third amended complaint. See Sibley v. Lando, 437 F.3d 1067, 1073

(11th Cir. 2005) (stating a district court may dismiss where an “amendment would

be futile”). First, Lowry’s second amended complaint failed to state a claim

because it cited a regulation governing Medicaid reimbursements while alleging

that Walgreen filed fraudulent Medicare claims. Second, an amendment would

have been futile because Lowry’s proposed third amended complaint also failed to

state a claim under the False Claims Act. See Sibley, 473 F.3d at 1073. The plain

language of both 42 U.S.C. § 1395u(o) and 42 C.F.R. § 414.904 merely sets an

upper reimbursement limit of 95% of the vaccine’s average wholesale price, and

nothing in either section references a provider’s advertised price or “usual and

customary charge.” Accordingly, we affirm the district court’s dismissal of the

action and the denial of leave to file a third amended complaint.

      AFFIRMED.




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