United States of America, ex rel Arthur Afionyan v. Pedorthic Lab Specialist Custom Shoe Co.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ex rel
Arthur Afionyan; STATE OF
CALIFORNIA, ex rel Arthur Afionyan,
Plaintiffs,
and
ARTHUR AFIONYAN, relator,
Plaintiff-Appellant,
v.
PEDORTHIC LAB SPECIALIST
CUSTOM SHOE CO.,
Defendant-Appellee.
No. 18-55807
D.C. No.
2:16-cv-03268-JFW-KS
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Submitted October 22, 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 that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
FILED
OCT 24 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: CALLAHAN and OWENS, Circuit Judges, and RESTANI,*** Judge.
Plaintiff-Appellant Arthur Afionyan (“Afionyan”) appeals the district court’s
grant of summary judgment in favor of Defendant-Appellee Pedorthic Lab Specialist
Custom Shoe Company (“PLS”) on claims brought under the False Claims Act
(“FCA”) and the California False Claims Act (“CFCA”). The court reviews a grant
of summary judgment de novo. Kraus v. Presidio Tr. Facilities Div./Residential
Mgmt. Branch, 572 F.3d 1039, 1042 (9th Cir. 2009). A court may grant summary
judgment when “the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
We affirm.
PLS is a manufacturer of custom and prefabricated orthotics, shoes, and
insoles. Afionyan is a former employee of PLS who asserts that the diabetic orthotics
produced by PLS were not sufficiently personalized to meet Medicare’s
customization requirements. As a result, he says that PLS was causing claims to be
unlawfully submitted to government-funded health insurance programs (such as,
Medicare, Medicaid, and Medi-Cal).
*** The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.

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To prove liability under the FCA in this case,1 Afionyan must demonstrate
that PLS “knowingly present[ed], or cause[d] to be presented, a false or fraudulent
claim for payment or approval,” or “knowingly ma[de], use[d], or cause[d] to be
made or used, a false record or statement material to a false or fraudulent claim.”
United States ex rel. Campie v. Gilead Scis., Inc., 862 F.3d 890, 898–99 (9th Cir.
2017) (quoting 31 U.S.C. § 3729(a)(1)(A–B)).
Regardless of whether Afionyan can satisfy the other elements of an FCA
claim, he has not shown that a false claim was actually filed. Taking the evidence in
the light most favorable to Afionyan, he has failed to “come to court with a claim in
hand or with sufficiently detailed circumstantial evidence to establish that the
defendant actually submitted a false claim.” United States ex rel. Aflatooni v. Kitsap
Physicians Serv., 314 F.3d 995, 1002 (9th Cir. 2002). Afionyan offers no evidence
of a claim and produces no “sufficiently detailed circumstantial evidence” to show
that any client or consumer of PLS diabetic orthotics submitted a claim to Medicare
or other relevant health insurance program. Because he cannot meet his burden,
summary judgment in favor of PLS was appropriate.
For the foregoing reasons, the decision of the district court is hereby
AFFIRMED.
1 The CFCA is based on the FCA and its elements are the same for the claims
alleged. See Cal. Gov’t Code § 12651(a)(1–2); Laraway v. Sutro & Co., 116 Cal.
Rptr. 2d 823, 831 (Ct. App. 2002).

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