Joseph Earl Perry, ex rel. United States of America v. Pacific Maritime Industries Corporation, a California corporation;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH EARL PERRY, ex rel. United
States of America,
Plaintiff-Appellant,
and
UNITED STATES OF AMERICA,
Intervenor,
v.
PACIFIC MARITIME INDUSTRIES
CORPORATION, a California corporation;
et al.,
Defendants-Appellees.
No. 17-55931
D.C. No.
3:13-cv-02599-LAB-JMA
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, Chief District Judge, Presiding
Submitted February 6, 2019**
Pasadena, California
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
FEB 8 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: WARDLAW and BEA, Circuit Judges, and MURPHY,*** District Judge.
Joseph Perry appeals the district court’s grant of summary judgment in his
qui tam action under the False Claims Act, 31 U.S.C. § 3729, in favor of Pacific
Maritime Industries Corp., Harcon Precision Metals, Inc., and John Atkinson
(collectively PMI). We have jurisdiction under 28 U.S.C. § 1291. We affirm.
1. The district court correctly concluded that Perry failed to raise a
triable issue of material fact as to whether PMI knowingly made a false claim
regarding the compliance of the metal joiner doors with a weight limit. See United
States ex rel. Campie v. Gilead Scis., Inc., 862 F.3d 890, 898–99 (9th Cir. 2017).
Contrary to Perry’s uninformed interpretation of certain testing documents, it
remains undisputed that PMI’s contract with the Defense Logistics Agency
imposed no weight limit, the Navy had never interpreted Table 1 in NAVSEA
Drawing No. 5959320A (Table 1) to impose a weight limit, and, due to other Navy
specifications, PMI had no actual control over the final weight of the doors. Thus,
Perry’s conclusion that Table 1 imposed a weight limit that PMI knowingly
violated was incorrect. He therefore failed to demonstrate knowing fraud. See
Hagood v. Sonoma Cty. Water Agency, 81 F.3d 1465, 1478 (9th Cir. 1996). At
most, Perry’s evidence demonstrates a “disputed legal question” whether Table 1
*** The Honorable Stephen Joseph Murphy III, United States District
Judge for the Eastern District of Michigan, sitting by designation.

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imposed a weight limit on the doors. Id. (citation omitted). And Perry presented
no evidence that the supposed weight limit was material to the government’s
decision to pay PMI for the doors. See Universal Health Servs., Inc. v. United
States ex rel. Escobar (Escobar), 136 S. Ct. 1989, 2002–03 (2016) (The False
Claims Act’s “materiality standard is demanding.”); 31 U.S.C. § 3729(b)(4).
2. The district court correctly concluded that Perry failed to raise a
triable issue of fact as to whether Juvenal Torres’s signature on the First Article
Testing (FAT) report as “Inspector” was material to the Navy’s contract for the
doors. See Escobar, 136 S. Ct. at 2003 (“Materiality . . . cannot be found where
noncompliance is minor or insubstantial. . . . [I]f the Government pays a particular
claim in full despite its actual knowledge that certain requirements were violated,
that is very strong evidence that those requirements are not material.”). It is
undisputed that the government paid PMI for the doors and waived the contractual
requirement that PMI conduct a FAT. Nor has Perry demonstrated that the
government believed it had received a FAT report when it paid PMI for the doors.
AFFIRMED.

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