1 UNITED STATES COURT OF APPEALS

2

3 FOR THE SECOND CIRCUIT

4

5 August Term, 2002

6

7

8 (Argued: December 2, 2002 Decided: April 10, 2003)

9

10 Docket No. 02-6017

11

12 - - - - - - - - - - - - - - - - - - - -x

13

14 UNITED STATES OF AMERICA,

15

16 Plaintiff-Appellee,

17

18 - v.-

19

20 ALFRED SFORZA and JOSEPHINE SFORZA,

21

22 Defendants-Appellants.

23

24 - - - - - - - - - - - - - - - - - - - -x

25

26 Before: VAN GRAAFEILAND, CARDAMONE, and JACOBS,

27 Circuit Judges.

28

29 In an appeal from a final judgment of the United States

30 District Court for the Southern District of New York

31 (Freeman, M.J.), Alfred and Josephine Sforza challenge

32 orders (1) denying their motion to dismiss for lack of

33 subject matter jurisdiction certain claims brought by the

34 United States under the False Claims Act (“FCA”), 31 U.S.C.

35 §§ 3729 et seq., and federal common law, and (2) enforcing a

36 settlement agreement reached on the record, dismissing the

37 suit in exchange for $200,000 and general releases.
2

1 Affirmed.

2 PETER TUFO, Law Offices of Paul

3 Kalker, Hauppauge, New York, for

4 Defendants-Appellants.

5

6 RAMON E. REYES, JR., Assistant

7 United States Attorney, New

8 York, New York (James B. Comey,

9 United States Attorney for the

10 Southern District of New York,

11 Jeffrey S. Oestericher,

12 Assistant United States

13 Attorney, on the brief), for

14 Plaintiff-Appellee.

15

16

17 DENNIS JACOBS, Circuit Judge:

18

19 The United States brought suit under the False Claims

20 Act (“FCA”), 31 U.S.C. §§ 3729 et seq., and federal common

21 law, seeking recoupment of disability payments made to

22 Alfred Sforza following a slip and fall. Alfred and

23 Josephine Sforza appeal from a final judgment entered in the

24 United States District Court for the Southern District of

25 New York (Freeman, M.J.), enforcing a $200,000 settlement

26 negotiated in open court. On appeal, the Sforzas (1)

27 challenge subject matter jurisdiction on the ground that

28 under 5 U.S.C. § 8128(b), benefit determinations under the

29 Federal Employee Compensation Act (“FECA”) are “final and

30 conclusive for all purposes,” and “not subject to review by

31 another official of the United States or by a court by
3

1 mandamus or otherwise,” and (2) contest the enforceability

2 of the settlement.

3 We affirm.

4

5 BACKGROUND

6 On January 18, 1982, Alfred Sforza submitted a claim

7 for workers' compensation benefits pursuant to the FECA, 5

8 U.S.C. § 8101 et seq., asserting that while on duty earlier

9 that day as a letter carrier for the United States Postal

10 Service (“USPS”), he had slipped on ice and suffered a back

11 injury. Sforza's claim was submitted to the Office of

12 Workers Compensation Programs (“OWCP”), which makes FECA

13 eligibility determinations under the authority of the

14 Secretary of the Department of Labor (“DOL”). See 5 U.S.C.

15 § 8145(2). In October 1984, OWCP found Sforza eligible for

16 FECA benefits, retroactive to March 1983.

17 Alfred Sforza maintained his eligibility for FECA

18 benefits over the next fifteen years by regularly providing

19 OWCP with sworn affirmations that he remained disabled and

20 by submitting to physical examinations by DOL doctors. In

21 his sworn affirmations (submitted on form CA-1032) and at

22 the medical examinations, Sforza claimed that he could not
4

1 sit, stand, walk, lie down, or drive for any significant

2 period because of pain in his back and leg. Sforza also

3 certified that he understood the requirement that he

4 immediately report to OWCP any improvements in his physical

5 condition. As early as 1990, DOL's doctors became

6 skeptical, but Sforza continued to receive benefits, largely

7 on the basis of his sworn representations.

8 The USPS (leaping into action) put Mr. Sforza under

9 surveillance in November 1996. Over the next year, he was

10 observed and videotaped while driving, shopping, mowing his

11 lawn, and performing other yard work. In October 1997,

12 after he had been videotaped on many occasions doing things

13 he had sworn he could not do, he appeared with his wife

14 Josephine Sforza in DOL's Manhattan office for a

15 rehabilitation interview. At this interview, he made

16 statements that were corroborated by his wife but belied by

17 the videotapes.

18 In March 1998, Mr. Sforza was charged in a five-count

19 indictment with making false statements in connection with

20 claims for FECA benefits, in violation of 18 U.S.C. §§

21 1001(a), 1920. He pleaded guilty in February 1999 to one

22 count, admitting he made false statements at the October
5

1 1997 interview, and was sentenced to three years of

2 probation (four months of which were to be spent in home

3 detention), and was ordered to pay $19.289.50 to OWCP in

4 restitution for benefits that had continued to be paid even

5 after the October 1997 interview.

6 In February 2000, the United States commenced this

7 civil suit against the Sforzas, claiming that they had

8 conspired to submit false claims as to each form CA-1032

9 submitted to OWCP between 1990 and 2000. The government

10 sought treble damages under the FCA in an amount to be

11 determined at trial, as well as a $10,000 civil penalty for

12 each of the Sforzas' false claims. The government also

13 alleged several causes of action under federal common law

14 based upon the same alleged conduct.

15 The Sforzas moved to dismiss for lack of subject matter

16 jurisdiction, arguing principally that the district court's

17 jurisdiction was barred by FECA's preclusion-of-review

18 provision, codified in 5 U.S.C. § 8128(b), which states:

19 The action of the Secretary or his designee in

20 allowing or denying a payment under this

21 subchapter is–

22

23 (1) final and conclusive for all purposes and with

24 respect to all questions of law and fact; and 

25

26
6

1 (2) not subject to review by another official of

2 the United States or by a court by mandamus or

3 otherwise.

4

5 Id. By Memorandum and Order dated December 11, 2000, the

6 district court (Schwartz, J.) denied the motion on the

7 ground that § 8128(b) “only precludes review of the decision

8 by OWCP (the Secretary of Labor's Designee) to award or deny

9 FECA benefits,” and OWCP's decision to award benefits was

10 not being directly challenged by the government. See United

11 States v. Sforza, 00 Civ. 1307 (AGS), 2000 WL 1818686, at

12 *2-*6 (S.D.N.Y. Dec. 12, 2000). Discovery followed.

13 In August 2001, just before trial, settlement

14 discussions were conducted under the auspices of Magistrate

15 Judge Maas. The judge met separately with each party (off

16 the record), and then (on the record) obtained the parties’

17 agreement to settle the case for $200,000, subject to one

18 contingency: a sign-off from the Chief of the Civil Division

19 of the United States Attorney's Office for the Southern

20 District of New York. The Sforzas acknowledged on the

21 record that the agreement announced by Judge Maas included

22 “the terms that [each had] agreed to.”

23 However, after the required sign-off was given by the

24 Chief of the Civil Division, the Sforzas refused to execute
7

1 the written settlement agreement prepared by the government,

2 and denied to the district court that there had been a

3 meeting of the minds. According to the Sforzas, they had

4 intended that the release cover criminal liability as well

5 as civil claims, thereby assuring that Josephine Sforza be

6 protected from prosecution for her complicity. The

7 government tendered a letter disclaiming any present

8 intention to prosecution Josephine Sforza, but refused to

9 provide the extraordinary release on which the Sforzas

10 insisted.

11 The district court (Freeman, M.J.) nevertheless entered

12 an Order and Final Judgment on December 11, 2001, directing

13 the Sforzas to pay $200,000 to the government in exchange

14 for general releases, and dismissing the case with

15 prejudice. United States v. Sforza, 00 Civ. 1307 (DF), at

16 3-4 (S.D.N.Y. Dec. 11, 2001). The court ruled that the oral

17 statements on the record constituted a legally binding

18 contract to exchange $200,000 for a release from civil (but

19 not criminal) liability. Id.

20

21 DISCUSSION

22 On appeal, the Sforzas challenge (1) the December 11,
8

1 2000 ruling denying their motion to dismiss for lack of

2 subject matter jurisdiction, and (2) the December 11, 2001

3 ruling that the oral agreement to settle the case

4 constituted a legally binding contract.

5

6 I. Jurisdiction

7 We review the district court's legal rulings as to its

8 own jurisdiction de novo. See Jaghory v. New York State

9 Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997). In doing

10 so, we apply the same standard as the district court, under

11 which a court may dismiss for lack of subject matter

12 jurisdiction only if it appears that the plaintiff can prove

13 no set of facts that would support jurisdiction. See Hosp.

14 Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 742 n.1

15 (1976); Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

16

17 A

18 It is uncontested that the FCA, by its terms, provides

19 subject matter jurisdiction. Under the FCA, a violation

20 occurs whenever a person:

21 (1) knowingly presents, or causes to be presented,

22 to an officer or employee of the United States

23 Government or a member of the Armed Forces of the

24 United States a false or fraudulent claim for
9

1 payment or approval;

2

3 (2) knowingly makes, uses, or causes to be made or

4 used, a false record or statement to get a false

5 or fraudulent claim paid or approved by the

6 Government; [or]

7

8 (3) conspires to defraud the Government by getting

9 a false or fraudulent claim allowed or paid . . .

10 .

11 31 U.S.C. § 3729(a). The complaint alleges that the Sforzas

12 conspired to submit false claims to OWCP to obtain FECA

13 benefits, and thus adequately invokes jurisdiction under the

14 FCA.

15 Defendants' principal argument is that FECA precludes

16 the district court from exercising its FCA jurisdiction.

17 This argument cuts against well-established law that

18 strongly disfavors preclusion of one federal statute by

19 another absent express manifestations of preclusive intent. 

20 See United States v. General Dynamics Corp., 19 F.3d 770,

21 774 (2d Cir. 1994) (citing Radzanower v. Touche Ross & Co.,

22 426 U.S. 148, 154 (1976)). Courts “are not at liberty to

23 pick and choose among congressional enactments, and when two

24 statutes are capable of co-existence, it is the duty of the

25 courts, absent a clearly expressed congressional intention

26 to the contrary, to regard each as effective.” Local 1814,

27 Int'l Longshoremen's Ass'n, AFL-CIO v. New York Shipping
10

1 Ass'n, 965 F.2d 1224, 1237 (2d Cir.) (quoting Morton v.

2 Mancari, 417 U.S. 535, 551 (1974)), cert denied, 506 U.S.

3 953 (1992). To overcome the presumption against preclusion,

4 defendants must demonstrate a clear congressional intent to

5 preclude, or a positive repugnancy between the two federal

6 statutes. See Traynor v. Turnage, 485 U.S. 535, 548-49

7 (1988); United States v. Batchelder, 442 U.S. 114, 122

8 (1979).

9

10 B

11 In arguing that § 8128(b) of FECA precludes this suit,

12 defendants rely on Lindahl v. Office of Personnel

13 Management, 470 U.S. 768 (1985), which concerned whether a

14 jurisdiction-stripping provision in the Civil Service

15 Retirement Act barred a suit by an employee seeking direct

16 judicial review of the denial of his benefits claim by an

17 administrative agency. See id. at 771. In discussing this

18 (otherwise wholly distinguishable) case, the Supreme Court

19 referenced § 8128(b) as an example of the sort of provision

20 Congress used when it intended to “bar judicial review

21 altogether.” See id. at 779-80 & n.13. That

22 characterization, however, begs a question: review of what? 
 

1 1 The Third Circuit, discussing Lorenzetti, explained

2 why review was not barred: “the question had changed from

3 one dealing with the unreviewable discretion of the [OWCP]--

4 'allowing or denying a payment'--to one involving the

5 question of reimbursement out of a tort judgment rendered

6 under a state no-fault insurance statute.” Paluca v. Sec'y

7 of Labor, 813 F.2d 524, 528 (1st Cir. 1987) (emphasis in

8 original).

11

1 The defendants’ hopeful answer is: review of any issue that

2 might disturb an award or denial of benefits under FECA. 

3 But the Supreme Court itself has rejected such a broad

4 reading of FECA's jurisdictional bar by implicitly holding

5 that § 8128(b) does not preclude a government suit to

6 recover FECA benefits awarded to an employee who also

7 recovered from a third party tortfeasor. See United States

8 v. Lorenzetti, 467 U.S. 167, 173 (1984) (holding that the

9 government had a right to reimbursement in such a situation,

without any discussion of § 8128(b)).1 10 Many sister circuits

11 have held that § 8128(b) lacks preclusive effect on an

12 employee's suit raising a constitutional challenge to an

13 OWCP denial of FECA benefits. See, e.g., Czerkies v. United

14 States Dep't of Labor, 73 F.3d 1435, 1440 (7th Cir. 1996)

15 (in banc); Benton v. United States, 960 F.2d 19, 22 (5th

16 Cir. 1992) (per curiam); Woodruff v. United States Dep't of

17 Labor, 954 F.2d 634, 639 (11th Cir. 1992) (per curiam);
12

1 Paluca v. Secretary of Labor, 813 F.2d 524, 525-26 (1st Cir.

2 1987); see also Lepre v. Dep't of Labor, 275 F.3d 59, 61

3 (D.C. Cir. 2001). Additionally, some circuits have held

4 that § 8128(b) does not bar jurisdiction even over a direct

5 appeal by an employee denied benefits, so long as the

6 employee argues in federal court that OWCP violated a clear

7 statutory mandate under FECA. See Hanauer v. Reich, 82 F.3d

8 1304, 1307-09 (4th Cir. 1996); Woodruff v. United States

9 Dep't of Labor, 954 F.2d 634, 639-40 (11th Cir. 1992);

10 Staacke v. United States Sec'y of Labor, 841 F.2d 278, 282

11 (9th Cir. 1988). But see McDougal-Saddler v. Herman, 184

12 F.3d 207 (3d Cir. 1999) (reaching opposite result).

13 None of these cases treats § 8128(b) as an absolute bar

14 to jurisdiction over claims in which a factual or legal

15 conclusion previously reached by OWCP in awarding or denying

16 FECA benefits might be undermined or even reversed. 

17 Moreover, the absolute bar urged by defendants would

18 prohibit a criminal sentence of restitution for defrauding

19 the government of FECA benefits in violation of 18 U.S.C.

20 § 1920--despite the fact that restitution is mandatory in

21 that circumstance. See 18 U.S.C. §§ 3663A(a)(1) &

22 3663A(c)(1) (prescribing mandatory restitution in cases
13

1 involving theft of property by fraud); United States

2 Sentencing Guidelines Manual § 5E1.1 (stating that in any

3 case with an “identifiable victim, the court shall” order

4 restitution) (emphasis added). Defendants suggest that

5 § 8128(b) can be read to preclude a civil suit under the FCA

6 but not restitution in a criminal case, but they offer no

7 rationale for this assertion, and we see no basis in

8 § 8128(b) itself for such a rule.

9 We think that the text of § 8128(b) delimits the

10 jurisdictional bar to cases in which consideration of the

11 government's FCA claim would necessarily entail a

12 relitigation of OWCP's decision to pay benefits in the first

13 instance:

14 The action of the Secretary or his designee in

15 allowing or denying a payment under this

16 subchapter is–

17

18 (1) final and conclusive for all purposes and with

19 respect to all questions of law and fact; and 

20

21 (2) not subject to review by another official of

22 the United States or by a court by mandamus or

23 otherwise.

24

25 5 U.S.C. § 8128(b) (emphasis added). The government's suit

26 here seeks treble damages and civil penalties based on the

27 Sforzas' actions in affirmatively defrauding OWCP. Such a

28 suit is not based upon a presupposition that OWCP erred,
 

2 1 The § 8128(b) bar on jurisdiction might be implicated

2 by claims that assumed the invalidity of OWCP's entitlement

3 determinations, see United States v. Carpentieri

4 (“Carpentieri II”), No. 96 CIV. 6460(LBS), 1999 WL 13729, at

5 *3 (S.D.N.Y. Jan. 12, 1999) (holding that § 8128(b) barred

6 jurisdiction over FCA claims to the extent they alleged

7 fraud based solely upon beneficiary's endorsement and

8 deposit of FECA benefit checks); but dismissal is

9 appropriate only if the plaintiff can prove no set of facts

10 that would support jurisdiction, Hosp. Bldg. Co. v. Trs. of

11 Rex Hosp., 425 U.S. 738, 742 n.1 (1976).

14

1 since OWCP could have correctly awarded benefits based on

2 the information that the Sforzas fraudulently submitted to

it.2 3 Thus, the text of § 8128(b) does not by its own

4 express terms preclude the government's suit under the FCA

5 here.

6

7 C

8 Defendants next argue (quite sensibly) that the

9 jurisdictional bar in § 8128(b) should be read together with

10 other sections of FECA. Specifically, they contend that

11 jurisdiction under the FCA is precluded by 5 U.S.C. § 8129,

12 which allows OWCP to recover “overpayments,” and by § 8148,

13 which triggers the “forfeit[ure]” of entitlement in certain

14 circumstances. Neither provision, however, changes our

15 reading of § 8128(b), since neither furnishes an adequate

16 mechanism either for recovering benefits that were obtained
15

1 through fraud or for deterring fraud generally.

2 Section 8129 concerns “overpayments” made by reason of

3 “an error of fact or law,” which are to be “adjust[ed]” by

4 “decreasing later payments”:

5 When an overpayment has been made to an individual

6 under this subchapter because of an error of fact

7 or law, adjustment shall be made under regulations

8 prescribed by the Secretary of Labor by decreasing

9 later payments to which the individual is

10 entitled.

11

12 5 U.S.C. § 8129 (emphasis added). This provision does not

13 deal with fraud. The fraud of a beneficiary is not an

14 “error” of the OWCP. Furthermore, once the beneficiary is

15 convicted of fraud, recovery of overpayments through

16 adjustments under § 8129 becomes impossible, since § 8148,

17 which does furnish a remedy in cases of fraud, provides that

18 a fraud conviction vitiates entitlement, so that there are

19 no such “later payments”:

20 Any individual convicted of a violation of section

21 1920 of title 18, or any other Federal or State

22 criminal statute relating to fraud in the

23 application or receipt of any benefit under this .

24 . . chapter, shall forfeit (as of the date of such

25 conviction) any entitlement to any benefit such

26 individual would otherwise be entitled to under

27 this . . . chapter for any injury occurring on or

28 before the date of such conviction.

29 5 U.S.C. § 8148 (emphasis added). Moreover, this provision

30 terminates the entitlement as of the date of a fraud
 

3 1 These penalties were expanded through amendments

2 enacted in 1986, see False Claims Amendments Act of 1986,

3 Pub. L. No. 99-562, 100 Stat. 3153 (1986) (codified at 31

4 U.S.C. §§ 3729-3733 (1988)), long after § 8128(b) took

5 effect, see Act of July 28, 1945, ch. 328, § 4, 59 Stat.

6 504. The FCA has recently been amended to provide for civil

7 penalties between $5,500 and $11,000 per false claim, but

8 these penalties apply only to false claims submitted after

9 September 29, 1999, and therefore are inapplicable to the

10 instant case. See 64 Fed. Reg. 47,099 (1999).

16

1 conviction without, however, providing for the recovery of

2 any sum to which the claimant had an entitlement in the

3 past. Neither § 8129 nor § 8148 affords a remedy for the

4 forfeiture or recovery of benefits to which the claimant was

5 entitled by an award decision rendered by OWCP according to

6 the record then before it. In other words, neither

7 provision allows the government to recoup benefits

8 previously paid for an entitlement achieved by fraud. And

9 to the extent that the cited provisions allow for

10 prospective recovery in cases of fraud, recovery is limited

11 to the value of the benefit itself, thereby providing no

12 real economic disincentive to defraud the government.

13 The FCA does allow for the full recovery of benefits

14 obtained by fraud, and for the deterrence of fraud by

15 including treble damages and civil penalties ranging from

$5,000 to $10,000 per violation.3 16 See 31 U.S.C. § 3729(a). 
17

1 Thus the remedies available under FECA and the FCA

2 complement each other, suggesting that Congress intended to

3 allow FCA claims to proceed notwithstanding § 8128(b), see

4 Smith v. Horner, 846 F.2d 1521, 1527 (D.C. Cir. 1988)

5 (Silberman, J., concurring) (stating that jurisdiction is

6 not defeated by a door closing provision where the remedies

7 sought are distinct even though “[t]he same facts may have

8 been relevant to both proceedings”). This view is

9 consistent with the categorical observation that the FCA was

10 “intended to reach all types of fraud, without

11 qualification, that might result in financial loss to the

12 Government.” United States v. Gen. Dynamics, Corp., 19 F.3d

13 770, 773 (2d Cir. 1994) (citing United States v. Neifert14 White Co., 390 U.S. 228, 232 (1968)).

15 The evolution of the FECA text over time demonstrates

16 to our satisfaction that it is not intended to preclude

17 actions for fraud brought under the FCA. As enacted in

18 1916, FECA contained no preclusion of judicial review. See

19 Czerkies v. United States Dep't of Labor, 73 F.3d 1435,

20 1440-41 (7th Cir. 1996) (in banc) (discussing legislative

21 history of § 8128(b)). The preclusion measure added by

22 amendment in 1924 expressly exempted fraud claims in a way
18

1 that present-day § 8128(b) does not:

2 in the absence of fraud or mistake in mathematical

3 calculation, the finding of facts in, and the

4 decision of the commission [the predecessor to

5 OWCP] upon, the merits of any claim presented

6 under or authorized by this Act if supported by

7 competent evidence shall not be subject to review

8 by any other administrative or accounting officer,

9 employee, or agent of the United States.

10

11 43 Stat. 389 (1924) (emphasis added). This limitation on

12 judicial review was supplemented in 1945 by a provision

13 which (later) became § 8128(b), and which was integral to a

14 postwar section of the law designed to allow compensation

15 based on local law for wartime injuries suffered by non16 citizens employed by the United States abroad. See

17 Czerkies, 73 F.3d at 1441. A technical 1966 amendment

18 removed the 1924 jurisdictional bar as redundant, i.e., “as

19 included in" what is now § 8128(b). Id. (citing H.R. Rep.

20 No. 901, 89th Cong., 1st Sess. 146 (1965); 80 Stat. 545-46

21 (1966)). Section 8128(b) thus became FECA's only

22 jurisdictional bar. Since the 1924 wording that was omitted

23 “as included in” § 8128(b) expressly stated that the

24 jurisdictional bar applied only “in the absence of fraud,”

25 it seems plain enough that Congress did not intend for

26 § 8128(b) to preclude claims under the FCA. In any event,

27 there was a fraud carve-out prior to 1966, and “it will not
19

1 be inferred that Congress, in revising and consolidating the

2 laws, intended to change their effect unless such intention

3 is clearly expressed.” Finley v. United States, 490 U.S.

4 545, 554 (1989) (quoting Anderson v. Pacific Coast S.S. Co.,

5 225 U.S. 187, 199 (1912)).

6 The jurisdictional bar in § 8128(b) seems to have been

7 designed chiefly to ensure “[1] that the courts not be

8 burdened by a flood of small claims challenging the merits

9 of compensation decisions and [2] that the Secretary should

10 be left free to make the policy choices associated with

11 disability decisions.” Rodrigues v. Donovan, 769 F.2d 1344,

12 1347-48 (9th Cir. 1985) (citations omitted) (holding that §

13 8128(b) did not preclude litigation of constitutional due

14 process challenge to procedures used by OWCP in denying

15 benefits). Neither goal is disserved by allowing the

16 government to pursue fraudulent claim-seekers under the FCA

17 (at least so long as OWCP's decision awarding or denying

18 benefits on the basis of the record before it is respected). 

19 See United States v. Carpentieri (“Carpentieri I”), 23 F.

20 Supp. 2d 433, 438 (S.D.N.Y. 1998) (holding that § 8128(b)

21 does not bar suit under the FCA because the government's FCA

22 suit would not “entail a re-litigation of issues already
 

4 1 The Merit Systems Protection Board, which reviews the

2 decisions of arbitrators such as those at issue in Minor,

3 has similarly read § 8128(b) to preclude relitigation of

4 OWCP's decisions concerning the award or denial of FECA

5 benefits but to not preclude judicial review of collateral

6 issues such as whether an employee has defrauded the

7 government. See Miller v. U.S. Postal Serv., 26 M.S.P.R.

8 210, 213 (1985); see also Smith v. U.S. Postal Serv., 81

9 M.S.P.R. 92, 98 (1999); Daniels v. U.S. Postal Serv., 57

10 M.S.P.R. 272, 279 (1993).

20

1 presented to and resolved by the OWCP”).

2 Our reading of § 8128(b) is consistent with decisions

3 of other courts in analogous cases. Thus the Federal

4 Circuit held in Minor v. Merit Systems Protection Board, 819

5 F.2d 280 (Fed. Cir. 1987), that § 8128(b) does not bar an

6 action seeking the termination of a civil service employee

7 based upon allegations of FECA fraud, notwithstanding a

8 prior determination by OWCP that the employee was entitled

9 to full benefits. See id. at 283. The court relied on the

10 different remedies at issue in the OWCP action and the civil

11 service proceeding: “[e]ven though much the same facts and

12 evidence may have been before the [arbitrator deciding

13 whether the FECA beneficiary could be terminated,] and also

14 before the [OWCP deciding whether benefits were warranted],

15 it was the [arbitrator] that had power to decide [the

16 employee's] fraudulent acts and to remove her on that

ground.”4 17 Id. The Third Circuit, facing a similar issue,
 

5 1 In reaching its conclusion regarding the scope of

2 § 8128(b), the Third Circuit relied in part on the fact that

3 OWCP proceedings are non-adversarial:

4

5 [I]t would be strange if a determination in a non6 adversarial proceeding had a preclusive effect in

7 an adversarial proceeding as "the general rule

8 [is] that issue preclusion attaches only '[w]hen

9 an issue of fact or law is actually litigated and

10 determined by a valid and final judgment . . . .'" 

11 Arizona v. California, 530 U.S. 392, 414[] (2000). 

12 While we do not suggest that Congress could not

13 make a ruling under section 8128(b) preclusive in

14 the circumstances here, we hold that it did not do

15 so.

16

17 Nat'l Ass'n of Letter Carriers, 272 F.3d at 189.

 

6 1 Defendants also argue that § 8128(b) precludes the

2 government's claims brought under federal common law. We do

3 not reach this argument, because jurisdiction under the FCA

4 is sufficient to support the judgment.

21

1 likewise rejected the claim that § 8128(b) precluded re2 litigation of all issues decided by OWCP. See Nat'l Ass'n

3 of Letter Carriers, AFL-CIO, v. United States Postal Serv.,

4 272 F.3d 182, 188-89 (3d Cir. 2001) (holding that arbitrator

5 of employee's wrongful termination claim was not bound by

6 factual determinations made by OWCP in granting employee

FECA benefits).5 7

8 We thus affirm the district court's ruling denying the

9 Sforzas' motion to dismiss the government's FCA claims for

lack of jurisdiction.6 10

11
22

1 II. Enforcement of Settlement Agreement

2 Defendants also challenge the district court's

3 enforcement of the settlement agreement on the ground that

4 they never agreed to settle without a full release from all

5 possible civil or criminal liability for both of the

6 Sforzas. An agreement to end a lawsuit is construed

7 according to contract principles. See Janus Films, Inc. v.

8 Miller, 801 F.2d 578, 583 (2d Cir. 1986). The meeting of

9 minds is an issue to be determined by examination of the

10 totality of the circumstances. See Ciaramella v. Reader's

11 Digest Ass'n, 131 F.3d 320, 322 (2d Cir. 1997). 

12 Here, there is ample evidence in the record that the

13 parties reached a meeting of the minds. First, the court

14 recited on the record at the settlement conference the

15 understanding that the parties had reached an agreement

16 which involved an “exchange [of] mutual releases, general

17 releases,” (emphasis added), after which the Sforzas each

18 stated that the settlement thus characterized was agreeable.

19 Second, the Sforzas’ contention that the releases would

20 protect them from criminal liability is belied by the fact

21 that the sole condition required by the government was the

22 sign-off of the Chief of the Civil Division.
23

1 We see no error in entering judgment on the terms

2 agreed to by the parties on the record. See Janus Films,

3 801 F.2d at 583 (“Due regard for the proper use of judicial

4 resources requires that a trial judge proceed with entry of

5 a settlement judgment after affording the parties an

6 opportunity to be heard as to the precise content and

7 wording of the judgment . . . .”). The district court's

8 ruling enforcing the agreement to settle is affirmed. 

9

10 CONCLUSION

11 For the reasons stated, the judgment is affirmed.