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... ↗

Other Sections in This Document (1123)

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Pursuant to Kungys, many certifications made in order to receive government pay-*680merits may be material to the government’s decision to pay, but such is not invariably the case. In Thompson, this court reflected that reality when it stated that, to create liability under the FCA, a false certification of compliance must be a “prerequisite” to obtaining a government benefit. Thompson, 125 F.3d at 902. Where the facts demonstrate that an agency, though formally requiring a certification, did not condition payment on its veracity, and indeed, the responsible government officials did not even see or review the certification in question, then the certification is not material, and the certified statement will not give rise to FCA liability. See, e.g., United States ex rel. Hopper v. Anton, 91 F.3d 1261, 1266 (9th Cir.1996) (certification of assurances that school district would comply with applicable federal law not a “prerequisite,” under facts of that case, to receipt of federal IDEA funds). Further, were a court to hold that any kind of government certification required in connection with federal government payment and reimbursement vouchers is material as a matter of law, the government could erase the crucial distinction between “punitive” FCA liability5 and ordinary breaches of contract by the simple expedient of requiring broad, boilerplate certifications.