### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17

- 11293 Summary Calendar

U NITED STATES OF AMERICA, ex rel. LAWRENCE M. SMITH,

Plaintiff

- Appellant

v. DAMIEN LAMARC WALLACE, Individually, also known as D. L. Wallace; FREDERICK R. MAYS, Individually, also known as F. R. Mays, also known as Bishop F. R. Mays, also known as F. Ron Mays, also known as Fredrick R. Mays; CHAZMA JONES, Individually, also known as Chazma Jones Brown,

Defendants

- Appellees

Appeal from the United States District Court for the Northern District of Texas U S D C No. 3:12

- CV

- 4377

Before JOLLY, OWEN, and HAYNES, Circuit Judges

. PER CURIAM: * Lawrence Smith filed a qui tam suit alleging that numerous defendants
violated the False Claims Act in connection with a summer food services

program sponsored by the government . The district court, accepting the

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should no t be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED May 22, 2018 Lyle W. Cayce Clerk Case: 17-11293 Document: 00514482470 Page: 1 Date Filed: 05/22/2018No. 17

- 11293

2 recommendation of a magistrate judge, granted summary judgment to three of
the defendants

— Damian Wallace, F rederick Mays, and Chazma Jones. The
court then entered a final judgment as to thos e defendants under Federal Rule of Civil Procedure 54(b). Smith appealed and argues the district court erred in granting summary judgment. We AFFIRM. On appeal, 1 Smith makes only one argument. He asserts that the defendants made false factual statements in their applications to participate in the Texas Department of Agriculture Summer Food Service Programs. A necessary element of Smith’s FCA claim , however, is that the defendants made fraudulent claims for payment, see 31 U.S.C. § 3729(a) (1)(A) , (b)(2) ( requiring a “claim for payment” and defining claim to mean “any request or demand,
whether under a contract or otherwi se, for money or property”), and the application is not a request for payment. Smith argues that the defendants’ misstatements on the ap plications made later claims for payment fraudulent under an “implied false certification theory,” citing Universal Health Services.,
Inc. v. United States ex rel. Escobar , 136 S. Ct . 1989 (2016)

. Smith does not
assert the claims themselves are explicitly false

. Smith fails to present evidence necessary to raise a fact issue in support of an “implied false certification theory” of liability. Under Universal Health Services , d efendants are liable under the implied false certification theory “at
least where two conditions are satisfied: first, the claim does not merely request payment, but also makes specific representations about the goods or services prov ided; and second, the defendant’ s failure to disclose noncompliance with material statu tory, regulatory, or contractual requirements makes those representations misleading half

- truths .” Id. at

1 “ This court reviews de novo a district court’s grant of summary judgment, applying the same standard as the district court.” Austin v. Kroger Tex

. , L.P. , 864 F.3d 326, 328 (5th Cir. 2017) (citing Ford Motor Co. v. Tex. Dep’t of Transp. , 264 F.3d 493, 498 (5th Cir. 2001) ). Case: 17-11293 Document: 00514482470 Page: 2 Date Filed: 05/22/2018No. 17

- 11293

3 2001. Smith ’s only evidence in support of his theory consists of the following: (1) a report showing that an entity for which the defendant s worked received
reimbursement under a government program , and (2) other reports indicating that the entity had failed to abide by the terms of the program

. But Smith

never ident ifies any claim that the defendants submitted . Nor does he provide
evidence that would support a finding that the claims included “specific representations” that were “misleading half

- truths ” in light of the alleged misstatements in the original applications. See i d. at 2001. Wit hout that evidence, Smith fails to raise a genuine issu e of material fact regarding a necessary element of his cause of action. Thus, the district court did not err in granting these defendants s ummary judgment.
AFFIRMED. Case: 17-11293 Document: 00514482470 Page: 3 Date Filed: 05/22/2018