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September 26, 2000


The opinion of the court was delivered by: Larimer, Chief Judge.



The United States ("Government") commenced this action against Salvin R. LaManna ("LaManna"), alleging violations of the False Claims Act ("FCA"), 31 U.S.C. § 8729, et seq. The Government now moves for partial summary judgment. For the following reasons, the Government's motion is granted in part and denied in part.


Defendant was formerly employed by the United States Postal Service ("USPS"). In 1971, plaintiff was injured, and in 1977, he began receiving compensation benefits pursuant to the Federal Employees' Compensation Act ("FECA"). On June 27, 1996, defendant submitted a form ("June 1996 form") to the United States Department of Labor in connection with these benefits on which defendant indicated that he had neither been self-employed nor involved in a business enterprise during the preceding fifteen months.

At some point, it was discovered that defendant was, in fact, self-employed and engaged in the operation of a sporting goods business with his wife. According to the Government, defendant's involvement with this business was documented on July 2, 1990, when plaintiff completed a questionnaire prepared by the USPS but disguised as a marketing survey.

Defendant was charged in a one-count felony information with making a false, fictitious, or fraudulent statement in order to obtain federal employees' compensation in violation of 18 U.S.C. § 1920.*fn1 Defendant pleaded guilty and was sentenced on April 25, 1997. This single-count information was based on the false statement in the June 1996 form. The sentencing judge imposed a $10,000 fine and ordered defendant to pay restitution in the amount of $119,432.54. The total amount of loss to the Government was determined to be $404,073.

The Government then, through this action, sought to recover civil damages and penalties pursuant to the FCA. In its complaint, the Government alleges that forms completed by plaintiff between April 22, 1986 and November 1, 1996 and the cashing of disability checks during that period constitute separate violations of the FCA by the plaintiff. See Complaint, ¶¶ 40-42. Pending before this Court is the Government's motion for partial summary judgment for the false claims and statements allegedly related to plaintiff's April 25, 1997 conviction, specifically, the June 1996 form and the disability checks cashed by plaintiff during the fifteen months prior to June 1996. See Fed.R.Civ.P. 56(c).


Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In ruling on a motion for summary judgment, the court "must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir. 2000) (quoting Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568, 572 (2d Cir. 1993)).

The Government argues that the doctrine of collateral estoppel precludes defendant from denying liability for the false statement made in the June 1996 form. The Government seeks to establish liability and to impose penalties for the false claim contained in the June 1996 form and also for each of the fifteen benefits checks received and cashed by the defendant during the fifteen months preceding the submission of the June 1996 form.

"[A] criminal conviction, whether by jury verdict or guilty plea, constitutes estoppel in favor of the United States in a subsequent civil proceeding as to those matters determined by the judgment in the criminal case." New York v. Julius Nasso Concrete Corp., 202 F.3d 82, 86 (2d Cir. 2000) (quoting United States v. Podell, 572 F.2d 31, 35 (2d Cir. 1978)). With respect to claims arising under the FCA, this principle is codified at 31 U.S.C. § 3731(d):

[A] final judgment rendered in favor of the United States in any criminal proceeding charging fraud or false statements, whether upon a verdict after trial or upon a plea of guilty or nolo contendere, shall estop the defendant from denying the essential elements of the offense in any action which involves the same transaction as in the criminal proceeding and which is brought under subsection (a) or (b) of section 3730.

Defendant argues that although the false statement contained in the June 1996 form could serve as a basis for his conviction pursuant to 18 U.S.C. § 1920, the statement cannot support a claim under the FCA. This argument is unavailing. The FCA subjects any person to liability who "knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government." 31 U.S.C. § 3729(a)(2). A claim is defined as "any request or demand, whether under a contract or otherwise, for money or property which is made to a contractor, grantee, or other recipient if the United States Government provides any portion of the money or property which is requested or demanded. . . ." 31 U.S.C. § 3729(c). By virtue of his guilty plea, defendant admitted that he made a false statement "in ...

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