Argument at 6-8. "Such reluctance [is] particularly appropriate in light of the Supreme Court's repeated emphasis on the central role of Congress in protecting the sovereignty of the states." L. Tribe, American Constitutional Law § 6-25 (1988). However, this federalism concern is inapplicable in cases, such as the one before us, where a court is analyzing preemption of federal law by a federal statute. Thus, the traditional reluctance to find preemption in a federal/state context does not apply in these circumstances.
Analogizing its role in this civil litigation to that of a federal prosecutor in a criminal case, the Government has cited a number of criminal cases which stand for the proposition that
absent evidence of congressional intent to repeal, when a new statute overlaps & portion of an older one, the two statutes should be Permitted to coexist unless the two are mutually exclusive.
United States v. Jackson, 805 F.2d 457, 461 (2d Cir. 1986), cert. denied, 480 U.S. 922, 94 L. Ed. 2d 698, 107 S. Ct. 1384 (1987); see United States v. Batchelder, 442 U.S. 114, 118-122, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979); Edwards v. United States, 312 U.S. 473, 484, 85 L. Ed. 957, 61 S. Ct. 669 (1941); United States v. Bilzerian, 926 F.2d 1285, 1299-1300 (2d Cir.), cert. denied, 116 L. Ed. 2d 39, 112 S. Ct. 63 (1991); United States v. Jackson, 805 F.2d 457, 461 (2d Cir. 1986); United States v. Shareef, 634 F.2d 679, 680-81 (2d Cir. 1980). Relying on these cases, the Government argues that we should not read the Anti-Kickback Act as "repealing" the False Claims Act in suits for kickback damages. The Government's argument is meritless.
As we noted above, when Congress passed the Anti-Kickback Act in 1946, and amended it in 1960, Congress was of the opinion that there existed no federal law under which the Government could recover damages the Government suffered from kickback schemes. Thus, the entire question of whether Congress intended the Anti-Kickback Act to repeal the False Claims Act is inapplicable in the instant case because when Congress passed the Anti-Kickback Act, Congress did not believe that the False Claims Act overlapped any portion of the Anti-Kickback Act, and did not believe that the False Claims Act was a viable remedy in the kickback context. Moreover, as opposed to the case before us, and in the cases cited by the Government and referred to in the preceding paragraph, either Congress indicated in the legislative history of the newer statutes that the older statutes were to coexist with the newer statutes, United States v. Batchelder, 442 U.S. at 119-120; United States v. Jackson, 805 F.2d at 463-64, or Congress had not made explicit its understanding that the newer statutes were the sole remedies for the ills the never statutes were passed to cure. See Edwards v. United States, 312 U.S. 473, 484, 85 L. Ed. 957, 61 S. Ct. 669 (1941) ("we see no basis for the conclusion that Congress intended to repeal the earlier statute. The two can exist and be useful side by side." (emphasis added)); United States v. Bilzerian, 926 F.2d 1285, 1299-1300 (2d Cir.) (If Congress does not make the indicia of repeal explicit, "the general rule that criminal statutes may overlap controls."), cert. denied, 116 L. Ed. 2d 39, 112 S. Ct. 63 (1991); United States v. Shareef, 634 F.2d 679, 680-81 (2d Cir. 1980) (same). Therefore, we find unpersuasive the Government's arguments about repeal.
Accordingly, we hold that the Anti-Kickback Act preempts the Government's statutory and common law claims with respect to the Frigitemp kickbacks. Therefore, the Government's Frigitemp claims, must be, and are dismissed.
Having considered the full record and found the aforesaid facts, and having reviewed all of the relevant law, we conclude that all of the Government's claims against General Dynamics must be dismissed. The complaint is accordingly dismissed, and the Clerk of the Court is directed to enter judgment in favor of General Dynamics.
Dated: New York, New York
October 2, 1992
KENNETH CONBOY, U.S.D.J.