[DO NOT PUBLISH]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.
2
. . . [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.
3