William Lowry v. Walgreen Company, Inc., No. 10-14759 (11th Cir. 2011)

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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 10-14759 JUNE 9, 2011 Non-Argument Calendar 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

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