IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-11293

Summary Calendar

UNITED 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

USDC 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 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.

United States Court of Appeals

Fifth Circuit

FILED

May 22, 2018

Lyle W. Cayce

Clerk

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No. 17-11293

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recommendation of a magistrate judge, granted summary judgment to three of 

the defendants—Damian Wallace, Frederick Mays, and Chazma Jones. The 

court then entered a final judgment as to those 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 otherwise, for money or property”), and the 

application is not a request for payment. Smith argues that the defendants’

misstatements on the applications 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, defendants 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 provided; and second, the defendant’s failure to disclose 

noncompliance with material statutory, 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)).

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2001. Smith’s only evidence in support of his theory consists of the following:

(1) a report showing that an entity for which the defendants 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 identifies 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 id. at 2001. Without that 

evidence, Smith fails to raise a genuine issue of material fact regarding a 

necessary element of his cause of action. Thus, the district court did not err in 

granting these defendants summary judgment.

AFFIRMED.

 Case: 17-11293 Document: 00514482470 Page: 3 Date Filed: 05/22/2018