DRAFT FOR ATTORNEY REVIEW — NOT FINAL

Section 1

Citation
Section 1
Parent Document
United States v. Southland Management Corp., 326 F.3d 669 (2002)
Effective Date
2002-05-22
Original Source
https://www.courtlistener.com/opinion/27565/united-states-v-southland-managem... ↗

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Nevertheless, I am uncomfortable with the majority’s rationale that excludes the parties’ dealings from the False Claims Act solely because of HUD’s contract provisions. This contract-based theory was never presented to the district court, was not ruled upon by it, and was never briefed to this court — until counsel were ordered to submit letter briefs less than a week before en banc oral argument. As a matter of prudence and judicial restraint, and under this court’s authorities, we almost never decide cases on issues or theories that were not litigated in the trial court. United States v. Brace, 145 F.3d 247, 255-56 (5th Cir.1998) (en banc) (en banc court declined to consider en banc an issue neither preserved in district court nor presented to appellate panel: “... we review only those issues presented to us; we do not craft new issues or search for them in the record .... In short, it is not for us to decide which issues should be presented, or to otherwise try the case for the parties.”) The court’s majority evidently believe this is such an exceptional case because their analysis affords a “narrower” basis for affirming the summary judgment. To my mind, whether excluding an entire category of HUD contracts and contractual dealings from the False Claims *678Act1 is “narrower” than applying well-established defenses under the Act to the facts before us is in the eye of the beholder. But in addition, the broader ramifications of the court’s unprecedented reasoning, which flows from standard contractual provisions of the sort that probably exist throughout the vast breadth of federal government contracting, are uncertain and have been utterly unexplored.