[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-17197 May 19, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 07-01765-CV-ORL-31GKJ
UNITED STATES OF AMERICA, ex rel.,
Plaintiff,
CARLOS SHURICK, Relator,
Plaintiff-Appellant,
versus
BOEING COMPANY, as agent for and/or
d.b.a. Boeing Space Operations Company,
Defendant-Appellee,
INDYNE, INC.,
Defendant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 19, 2009)
Before BLACK, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Carlos Shurick appeals the dismissal of his complaint that Boeing Company
violated the False Claims Act. 31 U.S.C. § 3729. The district court dismissed
Shurick’s complaint for failure to state a claim. We affirm.
I. BACKGROUND
Relator Shurick, a former employee of the Boeing Company, filed a qui tam
action and alleged that Boeing presented to the government false claims, 31 U.S.C.
§ 3729(a)(1), obtained payment for those false claims, id. § 3729(a)(2), held and
delivered less property to the government than reflected on a receipt or certificate,
id. § 3729(a)(4), certified to the government false claims, id. § 3729(a)(5), and
conspired with its subcontractor, Indyne, to present those false claims, id. §
3729(a)(3). Shurick alleged that Boeing invoiced and obtained payment from the
government for services rendered by employees of Boeing who used respirators
that violated federal safety regulations. Shurick alleged that a contract between
Boeing and the National Aeronautics and Space Administration required that
Boeing comply with federal safety regulations and its alleged noncompliance with
the contract violated the False Claims Act.
In the complaint, Shurick alleged that he was employed by Boeing to work
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at the Kennedy Space Center, where he apparently worked with or might have been
exposed to anhydrous ammonia. Shurick alleged that the contract, “through
adoption of applicable laws, rules, and regulations, (including 29 C.F.R. §
1910.134) (and appendices thereto) required that” Boeing employees who wore
“corrective lenses for impaired vision be fit tested with respirators before training
and certification with respirators that would seal against their faces and effectively
secure their eyeglasses in place during use.” Shurick alleged that “Indyne, with
Boeing’s knowledge and support, failed and/or refused to properly fit test”
respirators for Shurick and other unnamed Boeing employees. Shurick alleged that
between October 1, 2002, when Boeing contracted with Indyne to fit test
respirators, and July 11, 2007, Boeing submitted “120 or more” invoices to the
government for payment of services that required “the use of properly fitted
respirators . . . .”
Boeing moved to dismiss the complaint and argued that Shurick failed to
plead his allegations of fraud with specificity. See Fed. R. Civ. P. 9(b), 12(b)(6).
The district court granted the motion to dismiss. The court ruled that Shurick
failed to allege “that Boeing failed to deliver the services contemplated by the
CAPPS contract and then billed the government for those services, or even more
generally, that Boeing ever submitted a claim to the government to pay amounts it
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did not owe.” The court ruled that Shurick failed to “offer[] any particularized
allegations that Boeing ever submitted a claim which expressly conditioned
payment on a certification that the services rendered were done so in compliance
with applicable government regulations.” The district court also ruled that Shurick
was not “in a position to review or submit” a claim for payment and failed to allege
with specificity facts to establish that Boeing submitted bills or received payment
for a false claim.
II. STANDARD OF REVIEW
We review de novo a dismissal for failure to state a claim and accept as true
the facts alleged in the indictment. Corsello v. Lincare, Inc., 428 F.3d 1008, 1012
(11th Cir. 2005).
III. DISCUSSION
Shurick challenges the dismissal of his complaint on two grounds. First,
Shurick argues that he pleaded grounds under the False Claims Act with sufficient
specificity to survive a motion to dismiss. Second, Shurick argues that the district
court should have allowed him to amend his complaint. These arguments fail.
A complaint must “state[] with particularity . . . the circumstances
constituting fraud or mistake.” Fed. R. Civ. P. 9(b). To state a claim under the
False Claims Act that complies with Rule 9(b), “the complaint must allege ‘“facts
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as to time, place, and substance of the defendant’s alleged fraud,” [and] “the details
of the defendants’ allegedly fraudulent acts, when they occurred, and who engaged
in them.”’” Corsello, 428 F.3d at 1012 (quoting United States ex rel. Clausen v.
Lab. Corp. of Am., Inc., 290 F.3d 1301, 1310 (11th Cir. 2002)). The failure to
satisfy Rule 9(b) is a ground for dismissal of a complaint. Id. The crux of a
complaint under the False Claims Act is the submission of a fraudulent claim for
payment, see id. at 1013; United States ex rel. Atkins v. McInteer, 470 F.3d 1350,
1357 (11th Cir. 2006), so to survive a motion to dismiss, a complaint must allege
with particularity that false claims were actually submitted to the government.
We have consistently upheld dismissals of complaints under the False
Claims Act when the relator has failed to comply with Rule 9(b). In Atkins, we
upheld the dismissal of a complaint filed by a physician relator who alleged fraud
based on the progress notes of medical treatments that were written by other
doctors but did not observe or have other knowledge of the billing to Medicare and
Medicaid for those medical treatments. 470 F.3d at 1358–60. In Corsello, we
ruled that a complaint failed when a relator salesman of home health care
equipment and services alleged that the defendants were engaged in fraudulent
Medicare billing, but failed to allege “the ‘who,’ ‘what,’ ‘where,’ ‘when,’ and
‘how’ of fraudulent submissions to the government.” 428 F.3d at 1013–14. In
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Clausen, we ruled that a complaint failed when a relator laboratory technician
alleged that the defendant had performed unnecessary tests and improperly billed
Medicare and Medicaid beneficiaries but failed to state facts related to the dates or
amounts of claims that were submitted to the government for payment. 290 F.3d at
1311–13.
Shurick’s complaint fails to state a claim because it does not allege with
particularity the submission of a fraudulent claim to the government. Shurick
states that Boeing failed to provide respirators that allegedly failed to comply with
government regulations, but Shurick does not state with particularity how the
contract between Boeing and the government required compliance with those
regulations. Shurick alleges that Boeing “invoiced the government or caused the
government to be invoiced for services of Boeing employees who were . . .
equipped with ill-fitting respirators[,]” but Shurick lacks personal knowledge of the
invoices and fails to allege facts that establish that invoices were actually submitted
to the government.
Shurick also cannot complain that the district court denied him leave to
amend his complaint when he never sought that relief. After the district court
dismissed his complaint, Shurick could have sought leave to amend if he was
granted relief on a motion to amend the judgment, Fed. R. Civ. P. 59(e), or a
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motion to vacate, Fed. R. Civ. P. 60(b). Atkins, 470 F.3d at 1361 n.22. Shurick
also has not explained how he would amend the complaint to withstand another
motion to dismiss. See id. at 1362 (“[A] plaintiff ‘should not be allowed to amend
his complaint without showing how the complaint could be amended to save the
meritless claim.’” (quoting Wisdom v. First Midwest Bank, 167 F.3d 402, 409 (8th
Cir. 1999)).
IV. CONCLUSION
We AFFIRM the dismissal of Shurick’s complaint.
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