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Fifth Circuit <i>En Banc </i> Narrows FCA
On April 1, 2003, the Fifth Circuit en banc filed an opinion that might seriously restrict the application of the False Claims Act (FCA) for the Department of Justice. United States v. Southland Management Corp., 326 F. 3d 669 (5th Cir. 2003) (en banc). The court en banc overturned a controversial decision by a divided panel last year that essentially eliminated the materiality element of the FCA.
On rehearing, the en banc panel decided the case on a new basis, essentially holding that certain types of claims submitted in the midst of an ongoing contractual dispute with the government are not subject to the FCA. This might stop the Department of Justice from using the Act as a remedy to recoup overpayments in certain cases and force the government to rely exclusively on its contractual remedies for any claims submitted during the dispute. The court's rationale ' questioning whether the claim is 'false' when the claimant is contractually entitled to payment ' would be equally applicable to federal criminal charge filed under the criminal statutes for False Claims, 18 U.S.C. ' 287 or False Statements, 18 U.S.C. ' 1001, and perhaps other criminal statutes sounding in fraud.
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