UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


SIEWICK, JOSEPH T.

v.

JAMIESON SCI AND ENG


99-7090a

D.C. Cir. 2000


*	*	*


Williams, Circuit Judge: Any person can initiate a lawsuit  in the name
of the United States for substantive violations of  the False Claims
Act (the "Act" or "FCA"). See 31 U.S.C.  s 3730(b) (authorizing action
by a "person"). Such violations  include presenting to the government
"a false or fraudulent  claim for payment or approval." See id. s
3729(a) (establish- ing liability). Here the non-government person
(known as  the relator), Dr. Joseph T. Siewick, a physicist hired by 
Jamieson Science and Engineering, Inc. ("JSE") in May 1990  but laid
off in December 1991, presses a claim against JSE  and two of its
officers at the relevant time, Vincent T.  O'Connor and Dr. John A.
Jamieson. He argues that the  monthly invoices that JSE submitted to
the government for  payment under government contracts were false
claims.  They were false, in his view, because JSE filed them notwith-
standing alleged violations by O'Connor of a criminal statute  aimed
at "revolving door" abuses by former government  employees, 18 U.S.C.


Siewick proposes two theories to support the alleged falsi- ty. First,
he says, the certified invoices implicitly declared  "compliance with
applicable law, including Section 207," and  thus were "impliedly
false." Appellant's Br. at 11. Second,  Siewick argues that a
violation of s 207 renders a govern- ment contract unenforceable. From
this supposed unenforce- ability he reasons that both O'Connor and
Jamieson knew  that JSE was not entitled to the payments JSE
requested, so  JSE's invoices claiming that JSE was entitled to


Neither of Siewick's theories convinces us that the alleged  s 207
violations transformed JSE's invoices into the type of  false claims
made actionable by the qui tam provisions of the  FCA. We affirm the
district court's grant of partial sum- mary judgment.


* * *


In 1986, the Strategic Defense Initiative Organization  ("SDIO") sought
proposals for a project assessing its infrared  sensors and related
technology. O'Connor was the contract 


officer assigned to the project and consequently received the  proposal
submitted by JSE. Although he didn't have the  power to choose the
winning bidder, he was assigned the task  of negotiating JSE's fee and
the final contract price. After a  day of negotiations, the contract
was signed on December 8,  1986 by O'Connor for the United States and
Jamieson for  JSE. O'Connor retained some role in administering the 
contract, but the parties disagree as to its scope.


In the summer of 1987, O'Connor decided to leave govern- ment service.
He filed the requisite notice indicating his  intention to retire and
began discussing employment opportu- nities with government
contractors. A technical representa- tive within SDIO, Peter Franklin,
mentioned to Jamieson that  O'Connor was retiring and that he would be
a helpful addition  to JSE's staff. And after Jamieson and O'Connor
met,  Jamieson offered O'Connor the job of Executive Vice Presi- dent
of JSE, which he accepted as of November 1, 1987.


JSE bid on and received a second and third contract as the  previous
contracts expired. Siewick alleges that in represent- ing JSE in
matters related to these contracts, O'Connor  repeatedly violated 18
U.S.C. s 207. According to Siewick,  these violations began even
before O'Connor had fully parted  company with the Navy (he had been
on terminal leave from  November 1, 1987 to January 1, 1988) and
continued through  to the period covered by the third contract.
Siewick claims  that these violations taint nearly every invoice
submitted on  the three contracts.


The district court granted summary judgment in favor of  the defendants
on the claims premised upon s 207 violations.  The court found both
that Siewick's evidence was insufficient  as a matter of law to prove
a violation of s 207 and that even  if s 207 had been violated, the
violation did not transform the  invoices into false claims. But it
denied the defendants'  motion for summary judgment on Siewick's
claims premised  upon padding and falsification of timesheets; those
claims  remain before the district court. Siewick requested that the 
district court enter final judgment pursuant to Fed. R. Civ. P.  54(b)
on his s 207 claims, and the district court granted this 


request after explicitly finding no just reason for delay.  Siewick
filed a timely appeal.


After hearing oral argument we ordered this case held in  abeyance
pending the Supreme Court's decision in Vermont  Agency of Natural
Resources v. United States ex rel. Stevens,  ___ U.S. ____, 120 S. Ct.
1858 (2000); the Court had ex- pressed interest in standing in qui tam
actions generally,  Stevens, 120 S. Ct. at 523 (expanding cert.
grant). As the  Court ultimately found no generic lack of standing,
Stevens,  120 S. Ct. at 1863, 1865, and as we see no particular
infirmity  here, we turn to the merits.


* * *


We review a district court's grant of summary judgment de  novo; a
party is not entitled to summary judgment if a  reasonable jury could
return a verdict for the nonmoving  party. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242,  248 (1986); Aka v. Washington Hosp. Ctr.,
156 F.3d 1284,  1288 (D.C. Cir. 1998) (en banc). We assume in favor of
 Siewick that his case could withstand summary judgment on  the
proposition that JSE violated s 207. But we find that  s 207
violations would not in themselves render JSE's in- voices "false
claims" covered by the Act.


The Act establishes liability for anyone who "knowingly  presents, or
causes to be presented, to an officer or employee  of the United
States Government ... a false or fraudulent  claim for payment or
approval." 31 U.S.C. s 3729(a)(1).  Siewick's problem is that because
of defects in his theories  and the evidence, a reasonable jury could
not find that JSE  knowingly presented a false or fraudulent claim.


For both theories it is essential that the vouchers and  invoices at
issue here constitute "claims" within the meaning  of the Act. They
do. A "claim" is "any request or demand,  whether under a contract or
otherwise, for money or property  which is made to a contractor,
grantee, or other recipient."  Id. s 3729(c). Indeed, any request for
payment is properly  considered a claim for purposes of the FCA. See
United  States v. Neifert-White Co., 390 U.S. 228, 233 (1968); see


United States ex. rel. Schwedt v. Planning Research Corp., 59  F.3d
196, 203 (D.C. Cir. 1995).


Siewick's first theory--that the vouchers made an "implicit 
certification" of non-violation of s 207--is a non-starter. It is 
doomed by the rule, adopted by all courts of appeals to have 
addressed the matter, that a false certification of compliance  with a
statute or regulation cannot serve as the basis for a  qui tam action
under the FCA unless payment is conditioned  on that certification. As
the Ninth Circuit said,


Violations of laws, rules, or regulations alone do not  create a cause
of action under the FCA. It is the false  certification of compliance
which creates liability when  certification is a prerequisite to
obtaining a government  benefit.


United States ex rel. Hopper v. Anton, 91 F.3d 1261, 1266  (9th Cir.
1996) (second emphasis added). Courts have been  ready to infer
certification from silence, but only where  certification was a
prerequisite to the government action  sought. See, e.g., Harrison v.
Westinghouse Savannah River  Co., 176 F.3d 776, 793 (4th Cir. 1999)
("[The FCA] claim fails  on the pleadings because [the relator] has
never asserted that  such implied certifications were in any way
related to, let  alone prerequisites for, receiving continued
funding."). See  also United States ex rel. Weinberger v. Equifax,
Inc., 557  F.2d 456, 461 (5th Cir. 1977); compare United States ex
rel.  Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899,  902
(5th Cir. 1997) (seeming to require that the certification  be a
prerequisite to receiving funds before liability under the  FCA can
attach, even where the certification is express:  "false
certifications of compliance create liability under the  FCA when
certification is a prerequisite to obtaining a gov- ernment
benefit."). Siewick points to nothing suggesting that  JSE was
required to certify compliance with s 207 as a  condition of its


The assessment of Siewick's second theory--that JSE's  invoices
contained "expressly false" statements--turns in part  on the FCA's
definition of "knowingly." It says that a 


defendant acts "knowingly" if he "(1) has actual knowledge of  the
information; (2) acts in deliberate ignorance of the truth  or falsity
of the information; or (3) acts in reckless disregard  of the truth or
falsity of the information." Id. s 3729(b).  The key issue, then, is
whether (assuming violations of s 207)  JSE's claims were knowingly
false or fraudulent.


The invoices in the record request that the U.S. Govern- ment pay JSE
"the sums owing for all work performed"  under the relevant contract
and certify that (1) "all these  charges are for work authorized and
performed under the  referenced contract and that payment has not been
received,"  (2) "all claims are consistent with this clause," and (3)
"the  required deliveries ... have been made to the distribution 
specified in the contract." The parties agree that these  statements
"inform[ ] the government that work which enti- tles JSE to
reimbursement has been performed." See Appel- lee's Br. at 27.
Siewick's argument is that JSE knew that the  contract was void or
voidable (Siewick flips back and forth  between these
characterizations), and thus knew that it was  not entitled to be


A void contract is one under which the promisor has no  duty of
performance. See Restatement (Second) of Contracts  s 7 cmt. a.
(Indeed, some purists say that a "void contract"  is a contradiction
in terms, because the word contract always  includes some element of
enforceability. See 1 Joseph M.  Perillo, Corbin on Contracts s 1.7
(rev. ed. 1993)). A voida- ble contract is one under which a party,
usually a victim of  some wrong by another party, may "elect" to avoid
any legal  obligations. Restatement (Second) of Contracts s 7.1 The 
first category is generally reserved for a handful of contracts  that
are seen as being in fundamental violation of public  policy, such as
agreements to do acts that both parties know 




__________

n 1 Siewick most commonly argues that the contracts at issue  here were
"unenforceable," a legal status that appears to encompass  voidable
contracts but is often treated separately. See Restate- ment (Second)
of Contracts s 8 & cmts. a & b; 1 Corbin on  Contracts s 1.8. In
context, however, his claims are best under- stood as alleging either
voidness or voidability.


will constitute a felony, see Corbin on Contracts s 1.7, or  wagering
agreements made in jurisdictions where gambling is  illegal, see 7
Richard A. Lord, Williston on Contracts s 17:22  (4th ed. 1997). See
generally id. at s 12:1 (examining kinds  of agreements usually
considered void).


We can safely rule out any suggestion that s 207 violations  could,
alone, have voided the contracts (let alone that JSE  could have
"known" of the voiding). In United States v.  Mississippi Valley
Generating Co., 364 U.S. 520 (1961), de- cided in an era when Supreme
Court readiness to infer  remedies from criminal statutes was at a
high point, the  Court found that violations of a predecessor of s
207's statu- tory neighbor criminalizing certain conflicts of
interest, 18  U.S.C. s 208, gave the government the right to
"disaffirm a  contract which is infected by an illegal conflict of
interest."  364 U.S. at 566. There is no suggestion in the opinion
that  the contract self-destructed into voidness, depriving the gov-
ernment of its election. The decision assumes (without dis- cussion,
to be sure) that the government would want to retain  the option to
treat the contract as fully in effect. See id. at  563 ("This
protection [from corrupting influences] can be fully  accorded only if
contracts which are tainted by a conflict of  interest ... may be
disaffirmed by the Government." (em- phasis added)). Reasons why the
government would wish to  preserve that election abound: the officials
authorized to  decide might regard the violation as minor; they might
think  that the criminal penalties provide ample punishment of the 
present violation and deterrence of future ones; they might  be
concerned that disaffirmance would unduly impede future  transactions
with the contracting firm (possibly in possession  of skills or other
resources of exceptional value to the govern- ment) or with other
potential contractors. Longrun interests  often argue against pushing


We note that the Federal Circuit has said that government  contracts
"tainted by fraud or wrongdoing" are "void ab  initio." In the first
such case, J.E.T.S., Inc. v. United States,  838 F.2d 1196, 1200 (Fed.
Cir. 1988), nothing turned on the  characterization. In the second,
Godley v. United States, 5  F.3d 1473, 1476 (Fed. Cir. 1993), the
consequences were 


obscure, and the opinion in any event disregarded the lan- guage of
Mississippi Valley Generating that supports voida- bility and pointed
to none supporting voidness. Read for all  their worth, these opinions
would vastly expand the normally  minute group of contracts treated as
void.


But the issue is open whether s 207 violations in the  securing or
execution of a contract might render it voidable.  Of course the
revolving door at which s 207 is aimed may  seem less problematic than
the sort of actual conflict of  interest at stake in s 208 and in
Mississippi Valley Generat- ing. And in concluding that the
voidability issue was open,  the court in United States v. Medico
Indus., Inc., 784 F.2d  840 (7th Cir. 1986), noted that at the time of
Mississippi  Valley Generating the Court "was freer [than currently]
with  the creation of additional remedies." Id. at 845. But the 
Medico court went on to point out that remedies created in  that era
had generally survived and that the Mississippi  Valley Generating
viewpoint was the one prevailing at the  time of s 207's enactment.
Id. In the end the Seventh  Circuit left the issue open because Medico
had dropped the  issue in the district court. Id. at 844-45. We also
leave the  issue open; its resolution is unnecessary to today's


Whatever the ultimate answer to that question, the obsta- cles to a
conclusion that JSE "knowingly" misrepresented the  validity of the
contract obligations are legion. First, if the  panel in Medico was
uncertain whether a s 207 violation  created voidability, it is hard
to see how Jamieson or O'Con- nor could--with respect even to
voidability, let alone validi- ty--have satisfied even the loosest
standard of knowledge,  i.e., acting "in reckless disregard of the
truth or falsity of the  information." 31 U.S.C. s 3729(b)(3). While a
faulty esti- mate or opinion can qualify as a false statement where
the  speaker knows facts "which would preclude such an opinion," 
Harrison, 176 F.3d at 792 (emphasis added), the "facts" of  which the
Harrison court spoke are those that the speaking  party could
reasonably classify as true or false, see id. Here  there is only


Moreover, a final decision that s 207 violations may allow  the
government to disaffirm a contract would leave other  legal
uncertainties. Assuming that O'Connor and Jamieson  had some reason to
think that s 207 had been violated, and  that a contract tainted with
such a violation could become  voidable, they would also have had to
know whether voidabili- ty requires materiality, i.e., whether the s
207 violations must  have affected the terms of the contracts. In most
circum- stances, the party seeking to avoid the contract must prove 
that the defect had a material effect on the transaction in  question.
See Restatement (Second) of Contracts ss 7 cmt.  b (fraud, mistake, or
duress); 15 cmt. b (mental illness); 16  cmt. b (intoxication); but
see id. s 7 cmt b (materiality  presumed when one party is an


Second, even assuming that JSE's contracts were voidable,  invalidity
is a distinct issue. Siewick's theory is concededly  and necessarily
that JSE knew that the contracts were  invalid. But even if voidable
they would have become invalid  only on a contingency--the contingency
that the government  would exercise the assumed right to disclaim.


Third, a court that found contracts invalid in a qui tam  action where
the government has not joined the plaintiff  would have unilaterally
divested the government of the oppor- tunity to exercise precisely the
discretion that is among the  key differentiations of voidness from
voidability: the discre- tion to accept or disaffirm the contract on
the basis of  complex variables reflecting the officials' views of the
govern- ment's longterm interests.


The implications of Siewick's position are extraordinary.  Disputes
arise between the government and its contractors  every day.
Contractors do not win every penny they claim.  On Siewick's theory,
any contracting party that misunder- stands its legal entitlements and
therefore fails to recover on  an invoice in full would be liable
under the False Claims  Act--except in instances where it was unaware
of the facts  that led to its failure to recover in full. This is not
a  prescription for fair or efficient contracting.


Accordingly, we find a want of evidence from which a jury  could
reasonably infer that JSE knowingly asserted a falsity  in its claims
for payment under the contracts.


The district court's grant of partial summary judgment is


Affirmed.