### UNITED STATES COURT OF APPEA LS 1 2 

### FOR THE SECONDCIRCUIT 3 4 

### August Term, 2 002 5 6 7 

### (Argued: Decem ber 2 , 2002 Decided: April 10, 200 3) 8 9 

### Docket No. 02-6017 10 11



### - - - - - - - - - - - - - - - - - - - -x 12 13 

### UNITED STATES OF AMERICA, 14 15 

### Plaintiff-Appe llee , 16 17 

### - v.- 18 19 

### ALFRED SFORZA and JOSEPHINE SFORZA , 20 21 

### Defendants-App ellants . 22 23



### - - - - - - - - - - - - - - - - - - - -x 24 25 

### Before: VAN GRAAFEILAN D, CARDAMONE, and JACOBS , 26 

### Circuit Judges
. 27 28 In an appeal from a final judgment of the United States 29 District Court for the Southern District of New York 30 (Freeman, M.J. ), Alfred and Josephine Sforza challenge 31 orders (1) denying their motion to dismiss for lack of 32 subject matter jurisdiction certain claims brought by the 33 United States under the False Claims Act (“FCA”), 31 U.S.C. 34 §§ 3729 et seq. , and federal common law, and (2) enforcing a 35 settlement agreement reached on the record, dismissing the 36 suit in exchange for $200,000 and general releases. 372



### Affirmed. 1 PETER TUFO, Law Offices of Paul 2 Kalker , Hauppauge, New York, for 3 Defendants-Appellants . 4 5 RAMON E. REYES, JR., Assistant 6 United States Attorney, New 7 York, New York (James B. Comey, 8 United States Attorney for the 9 Southern District of New York, 10 Jeffrey S. Oestericher, 11 Assistant United States 12 Attorney, on the brief) 

### , for 13 

### Plaintiff-Appe llee . 14 15 16 

### DENNIS JACOBS, Circuit Judge : 17 18 The United States brought suit under the False Claims 19 Act (“FCA”), 31 U.S.C. §§ 3729 et seq. , and federal common 20 law, seeking recoupment of disability payments made to 21 Alfred Sforza following a slip and fall. Alfred and 22 Josephine Sforza appeal from a final judgment entered in the 23 United States District Court for the Southern District of 24 New York (Freeman, M.J. ) , enforcing a $200,000 settlement 25 negotiated in open court. On appeal, the Sforzas (1) 26 challenge subject matter jurisdiction on the ground that 27 under 5 U.S.C. § 8128(b), benefit determinations under the 28 Federal Employee Compensation Act (“FECA”) are “final and 29 conclusive for all purposes,” and “not subject to review by 30 another official of the United States or by a court by 313

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

### We affirm. 3 4 

### BACKGROUND 5 On January 18, 1982, Alfred Sforza submitted a claim 6 for workers' compensation benefits pursuant to the FECA, 5 7 U.S.C. § 8101 et seq. , asserting that while on duty earlier 8 that day as a letter carrier for the United States Postal 9 Service (“USPS”), he had slipped on ice and suffered a back 10 injury. Sforza's claim was submitted to the Office of 11 Workers Compensation Programs (“OWCP”), which makes FECA 12 eligibility determinations under the authority of the 13 Secretary of the Department of Labor (“DOL”). See 5 U.S.C. 14 § 8145(2). In October 1984, OWCP found Sforza eligible for 15 FECA benefits, retroactive to March 1983. 16 Alfred Sforza maintained his eligibility for FECA 17 benefits over the next fifteen years by regularly providing 18 OWCP with sworn affirmations that he remained disabled and 19 by submitting to physical examinations by DOL doctors. In 20 his sworn affirmations (submitted on form CA-1032) and at 21 the medical examinations, Sforza claimed that he could not 224

sit, stand, walk, lie down, or drive for any significant 1 period because of pain in his back and leg. Sforza also 2 certified that he understood the requirement that he 3 immediately report to OWCP any improvements in his physical 4 condition. As early as 1990, DOL's doctors became 5 skeptical, but Sforza continued to receive benefits, largely 6 on the basis of his sworn representations. 7 The USPS (leaping into action) put Mr. Sforza under 8 surveillance in November 1996. Over the next year, he was 9 observed and videotaped while driving, shopping, mowing his 10 lawn, and performing other yard work. In October 1997, 11 after he had been videotaped on many occasions doing things 12 he had sworn he could not do, he appeared with his wife 13 Josephine Sforza in DOL's Manhattan office for a 14 rehabilitation interview. At this interview, he made 15 statements that were corroborated by his wife but belied by 16 the videotapes. 17 In March 1998, Mr. Sforza was charged in a five-count 18 indictment with making false statements in connection with 19 claims for FECA benefits, in violation of 18 U.S.C. §§ 20 1001(a), 1920. He pleaded guilty in February 1999 to one 21 count, admitting he made false statements at the October 225

1997 interview, and was sentenced to three years of 1 probation (four months of which were to be spent in home 2 detention), and was ordered to pay $19.289.50 to OWCP in 3 restitution for benefits that had continued to be paid even 4 after the October 1997 interview. 5 In February 2000, the United States commenced this 6 civil suit against the Sforzas, claiming that they had 7 conspired to submit false claims as to each form CA-1032 8 submitted to OWCP between 1990 and 2000. The government 9 sought treble damages under the FCA in an amount to be 10 determined at trial, as well as a $10,000 civil penalty for 11 each of the Sforzas' false claims. The government also 12 alleged several causes of action under federal common law 13 based upon the same alleged conduct. 14 The Sforzas moved to dismiss for lack of subject matter 15 jurisdiction, arguing principally that the district court's 16 jurisdiction was barred by FECA's preclusion-of-review 17 provision, codified in 5 U.S.C. § 8128(b), which states: 18 The action of the Secretary or his designee in 19 allowing or denying a payment under this 20 subchapter is– 21 22 (1) final and conclusive for all purposes and with 23 respect to all questions of law and fact; and 24 25 266 (2) not subject to review by another official of 1 the United States or by a court by mandamus or 2 otherwise. 3 4 Id. By Memorandum and Order dated December 11, 2000, the 5 district court (Schwartz, J. ) denied the motion on the 6 ground that § 8128(b) “only precludes review of the decision 7 by OWCP (the Secretary of Labor's Designee) to award or deny 8 FECA benefits,” and OWCP's decision to award benefits was 9 not being directly challenged by the government. See United 10 States v. Sforza , 00 Civ. 1307 (AGS), 2000 WL 1818686, at 11 *2-*6 (S.D.N.Y. Dec. 12, 2000). Discovery followed. 12 In August 2001, just before trial, settlement 13 discussions were conducted under the auspices of Magistrate 14 Judge Maas. The judge met separately with each party (off 15 the record), and then (on the record) obtained the parties’ 16 agreement to settle the case for $200,000, subject to one 17 contingency: a sign-off from the Chief of the Civil Division 18 of the United States Attorney's Office for the Southern 19 District of New York. The Sforzas acknowledged on the 20 record that the agreement announced by Judge Maas included 21 “the terms that [each had] agreed to.” 22 However, after the required sign-off was given by the 23 Chief of the Civil Division , the Sforzas refused to execute 247

the written settlement agreement prepared by the government, 1 and denied to the district court that there had been a 2 meeting of the minds. According to the Sforzas, they had 3 intended that the release cover criminal liability as well 4 as civil claims, thereby assuring that Josephine Sforza be 5 protected from prosecution for her complicity. The 6 government tendered a letter disclaiming any present 7 intention to prosecution Josephine Sforza, but refused to 8 provide the extraordinary release on which the Sforzas 9 insisted. 10
T 

### he district co urt (Freeman, M.J. ) neverthelessentered 11 

### an Order and F inal Judgment on December 11 , 2001, direct ing 12 

### the Sforzas topay $200,000 to the government in exchange 13 

### for general re leases, and di smissing the c ase with 14 

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

### 3-4 (S.D.N.Y. Dec. 11, 2001) . The court ruledthat the oral 16 statements on the record constituted a legally binding 17 contract to exchange $200,000 for a release from civil (but 18 not criminal) liability. Id. 19 20 DISCUSSION 21 On appeal, the Sforzas challenge (1) the December 11, 228

2000 ruling denying their motion to dismiss for lack of 1 subject matter jurisdiction, and (2) the December 11, 2001 2 ruling that the oral agreement to settle the case 3 constituted a legally binding contract. 4 5 I. Jurisdiction 6 We review the district court's legal rulings as to its 7 own jurisdiction de novo . See Jaghory v. New York State 8 Dep't of Educ. , 131 F.3d 326, 329 (2d Cir. 1997). In doing 9 so, we apply the same standard as the district court, under 10 which a court may dismiss for lack of subject matter 11 jurisdiction only if it appears that the plaintiff can prove 12 no set of facts that would support jurisdiction. See Hosp. 13 Bldg. Co. v. Trs. of Rex Hosp. , 425 U.S. 738, 742 n.1 14 (1976); Conley v. Gibson , 355 U.S. 41, 45-46 (1957). 15 16
A 17 

### It is uncontes ted that the F CA, by its terms, provides 18 

### subject matterjurisdiction. Under the FCA, a violation 19 occurs whenever a person: 20 (1) knowingly presents, or causes to be presented, 21 to an officer or employee of the United States 22 Government or a member of the Armed Forces of the 23 United States a false or fraudulent claim for 249 payment or approval; 1 2 (2) knowingly makes, uses, or causes to be made or 3 used, a false record or statement to get a false 4 or fraudulent claim paid or approved by the 5 Government; [or] 6 7 (3) conspires to defraud the Government by getting 8 a false or fraudulent claim allowed or paid . . . 9

. 10 31 U.S.C. § 3729(a). 

### The complain t alleges thatthe Sforzas 11 

### conspired to s ubmit false cl aims to OWCP t o obtain FECA 12 

### benefits, and thus adequatel y invokes juri sdiction underthe 13 

### FCA. 14 

### Defendants' pr incipal argume nt is that FECA precludes 15 

### the district c ourt from exer cising its FCA jurisdiction. 16 

### This argument cuts againstwell-established law that 17 strongly disfavors preclusion of one federal statute by 18 another absent express manifestations of preclusive intent. 19
See United States v. General Dynamics Corp. , 19 F.3d 770, 20 774 (2d Cir. 1994) (citing Radzanower v. Touche Ross & Co. , 21 426 U.S. 148, 154 (1976)). Courts “are not at liberty to 22 pick and choose among congressional enactments, and when two 23 statutes are capable of co-existence, it is the duty of the 24 courts, absent a clearly expressed congressional intention 25 to the contrary, to regard each as effective.” Local 1814, 26 Int'l Longshoremen's Ass'n, AFL-CIO v. New York Shipping 2710

Ass'n , 965 F.2d 1224, 1237 (2d Cir.) (quoting Morton v. 1 Mancari, 417 U.S. 535, 551 (1974)) , cert denied , 506 U.S. 2 953 (1992). To overcome the presumption against preclusion, 3 defendants must demonstrate a clear congressional intent to 4 preclude, or a positive repugnancy between the two federal 5
statutes. See Traynor v. Turnage , 485 U.S. 535, 548-49 6 (1988); United States v. Batchelder , 442 U.S. 114, 122 7 (1979). 8 9
B 10 

### In arguing tha t § 8128(b) ofFECA preclude s this suit, 11 

### defendants rel y on Lindahl v. Off ice of Personn el 12 

### Management , 470 U.S. 768 (1985), which concerned whether a 13 jurisdiction-stripping provision in the Civil Service 14 Retirement Act barred a suit by an employee seeking direct 15 judicial review of the denial of his benefits claim by an 16 administrative agency. See id. at 771. In discussing this 17 (otherwise wholly distinguishable) case, t 

### he Supreme Cou rt 18 

### referenced § 8 128(b) as an e xample of the sort of provis ion 19 

### Congress used when it intended to “bar jud icial review 20 

### altogether.” See id. at 779-80 & n .13. That 21 characterization, however, begs a question: review of what ? 221 The Third Circuit, discussing Lorenzetti , explained 

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

### 2 one dealing with the unreviewable discretion of the [OWCP]-- 

### 3 'allowing or denying a payment'--to one involving the 

### 4 question of reimbursement out of a tort judgment rendered 

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

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

### 7 original). 

### 8 11 The defendants’ hopeful answer is: review of any issue that 1 might disturb an award or denial of benefits under FECA. 2 But the Supreme Court itself has rejected such a broad 3 reading of FECA's jurisdictional bar by implicitly holding 4 that § 8128(b) 

### does not prec lude a government suit to 5 

### recover FECA b enefits awarde d to an employee who also 6 

### recovered from a third party

tortfeasor. See United States 7 

### v. Lorenzetti , 467 U.S. 167 , 173 (1984) ( holding that t he 8 

### government had a right to re imbursement insuch a situat ion, 9 

### without any di scussion of § 8128(b)). 1 

### Many sister circuits 10 

### have held that§ 8128(b) lac ks preclusive effect on an 11 

### employee's sui t raising a co nstitutional challenge to an 12 

### OWCP denial ofFECA benefits

. See, e.g., Czerkies v. United 13 States Dep't of Labor , 73 F.3d 1435, 1440 (7th Cir. 1996) 14 (in banc); Benton v. United States , 960 F.2d 19, 22 (5th 15 Cir. 1992) (per curiam); Woodruff v. United States Dep't of 16 Labor , 954 F.2d 634, 639 (11th Cir. 1992) (per curiam); 1712

Paluca v. Secretary of Labor , 813 F.2d 524, 525-26 (1st Cir. 1 1987); see also Lepre v. Dep't of Labor , 275 F.3d 59, 61 2 (D.C. Cir. 2001). Additionally, some circuits have held 3 that § 8128(b) does not bar jurisdiction even over a direct 4 appeal by an employee denied benefits, so long as the 5 employee argues in federal court that OWCP violated a clear 6 statutory mandate under FECA. See Hanauer v. Reich , 82 F.3d 7 1304, 1307-09 (4th Cir. 1996); Woodruff v. United States 8 Dep't of Labor , 954 F.2d 634, 639-40 (11th Cir. 1992); 9 Staacke v. United States Sec'y of Labor , 841 F.2d 278, 282 10 (9th Cir. 1988). But see McDougal-Saddler v. Herman , 184 11 F.3d 207 (3d Cir. 1999) (reaching opposite result). 12 None of these cases treats § 8128(b) as an absolute bar 13 to jurisdiction over claims in which a factual or legal 14 conclusion previously reached by OWCP in awarding or denying 15 FECA benefits might be undermined or even reversed. 16 

### Moreover, the absolute bar u rged by defendants would 17 

### prohibit a criminal sentenceof restitutio n for defraudi ng 18 

### the governmentof FECA benef its in violati on of 18 U.S.C . 19 

### § 1920--despit e the fact tha t restitution is mandatory i n 20 

### that circumsta nce. See 18 U.S.C. §§ 3663A(a)(1) & 21 3663A(c)(1) (prescribing mandatory restitution in cases 2213

involving theft of property by fraud); United States 1 Sentencing Guidelines Manual § 5E1.1 (stating that in any 2 case with an “identifiable victim, the court shall ” order 3 restitution) (emphasis added). Defendants suggest that 4 § 8128(b) can be read to preclude a civil suit under the FCA 5 but not restitution in a criminal case, but they offer no 6 rationale for this assertion, and we see no basis in 7 § 8128(b) itself for such a rule. 8 We think that the text of § 8128(b) delimits the 9 jurisdictional bar to cases in which consideration of the 10 government's FCA claim would necessarily entail a 11 relitigation of OWCP's decision to pay benefits in the first 12 instance: 13 The action of the Secretary or his designee in 14 allowing or denying a payment under this 15 subchapter is– 16 17 (1) final and conclusive for all purposes and with 18 respect to all questions of law and fact; and 19 20 (2) not subject to review by another official of 21 the United States or by a court by mandamus or 22 otherwise. 23 24 5 U.S.C. § 8128(b) (emphasis added). The government's suit 25 here seeks treble damages and civil penalties based on the 26 Sforzas' actions in affirmatively defrauding OWCP. Such a 27 suit is not based upon a presupposition that OWCP erred, 282 

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

### 1 by claims that assumed the invalidity of OWCP's entitlement 

### 2 determinations, 

### see United States v. Carpentieri 

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

### 4 *3 (S.D.N.Y. Jan. 12, 1999) (holding that § 8128(b) barred 

### 5 jurisdiction over FCA claims to the extent they alleged 

### 6 fraud based solely upon beneficiary's endorsement and 

### 7 deposit of FECA benefit checks); but dismissal is 

### 8 appropriate only if the plaintiff can prove no set of facts 

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

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

### . 11 14 since OWCP could have correctly awarded benefits based on 1 the information that the Sforzas fraudulently submitted to 2 it. 2 Thus, the text of § 8128(b) does not by its own 3 express terms preclude the government's suit under the FCA 4 here. 5 6 C 7 Defendants next argue (quite sensibly) that the 8 jurisdictional bar in § 8128(b) should be read together with 9 other sections of FECA. Specifically, they contend that 10 jurisdiction under the FCA is precluded by 5 U.S.C. § 8129, 11 which allows OWCP to recover “overpayments,” and by § 8148, 12 which triggers the “forfeit[ure]” of entitlement in certain 13 circumstances. Neither provision, however, changes our 14 reading of § 8128(b), since neither furnishes an adequate 15 mechanism either for recovering benefits that were obtained 1615

through fraud or for deterring fraud generally. 1 Section 8129 concerns “overpayments” made by reason of 2 “an error of fact or law,” which are to be “adjust[ed]” by 3 “decreasing later payments”: 4 

### When an overpa yment has beenmadeto an individual 5 

### under this sub chapter becaus e of an errorof fact 6 

### or law, adjustment sha ll be madeunder regulat ions 7 

### prescribed by the Secretary of Labor by decreasing 8 

### later paymentsto which the individual is 9 

### entitled. 10 11 

### 5 U.S.C. § 812 9 (emphasis added). This provision does not 12 deal with fraud. The fraud of a beneficiary is not an 13 “error” of the OWCP. Furthermore, once the beneficiary is 14 convicted of fraud, recovery of overpayments through 15 adjustments under § 8129 becomes impossible, since § 8148, 16 which does furnish a remedy in cases of fraud, provides that 17 a fraud conviction vitiates entitlement, so that there are 18 no such “later payments”: 19 

### Any individualconvicted ofa violation o f section 20 

### 1920 of title 18, or any oth er Federal or State 21 

### criminal statu te relating to fraudin the 22 

### application orreceipt of an y benefit unde r this . 23 

### . . chapter, shall forfeit(as of the da te of such 24 

### conviction) any entitlemen t to any benefi t such 25 

### individual wou ld otherwise b e entitled to under 26 

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

### before the dat e of such conv iction
. 28 

### 5 U.S.C. § 814 8 (emphasis added) . Moreover, this provision 29 terminates the entitlement as of the date of a fraud 303 These penalties were expanded through amendments 

### 1 enacted in 1986, see False Claims Amendments Act of 1986, 

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

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

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

### 5 504. 

### The FCA has re cently been amended to provi de for civil 6 penalties between $5,500 and $11,000 per f alse claim, bu t 7 these penaltie s apply only t o false claimssubmitted aft er 8 September 29, 1999, and ther efore are inapplicable to th e 9 instant case. See 64 Fed. Reg. 47,099 (1999). 10 16 conviction without, however, providing for the recovery of 1 any sum to which the claimant had an entitlement in the 2 past. Neither § 8129 nor § 8148 affords a remedy for the 3 forfeiture or recovery of benefits to which the claimant was 4 entitledby an award decision rendered by OWCP according to 5 the record then before it. In other words, neither 6 provision allows the government to recoup benefits 7 previously paid for an entitlement achieved by fraud. And 8 to the extent that the cited provisions allow for 9 prospective recovery in cases of fraud, recovery is limited 10 to the value of the benefit itself, thereby providing no 11 real economic disincentive to defraud the government. 12 The FCA does allow for the full recovery of benefits 13 obtained by fraud, and for the deterrence of fraud by 14 including treble damages and civil penalties ranging from 15 $5,000 to $10,000 per violation. 3 See 31 U.S.C. § 3729(a). 1617

Thus the remedies available under FECA and the FCA 1 complement each other, suggesting that Congress intended to 2 allow FCA claims to proceed notwithstanding § 8128(b), see 3 Smith v. Horner , 846 F.2d 1521, 1527 (D.C. Cir. 1988) 4 (Silberman, J., concurring) (stating that jurisdiction is 5 not defeated by a door closing provision where the remedies 6 sought are distinct even though “[t]he same facts may have 7 been relevant to both proceedings”). This view is 8 consistent with the categorical observation that the FCA was 9 “intended to reach all types of fraud, without 10 qualification, that might result in financial loss to the 11 Government.” United States v. Gen. Dynamics, Corp. , 19 F.3d 12 770, 773 (2d Cir. 1994) (citing United States v. Neifert13 White Co. , 390 U.S. 228, 232 (1968)). 14 The evolution of the FECA text over time demonstrates 15 to our satisfaction that it is not intended to preclude 16 actions for fraud brought under the FCA. 

### As enacted in 17 

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

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

### 19 1440-41 (7th Cir. 1996) (in banc) (discussing legislative 

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

### 21 amendment in 1924 expressly exempted fraud claims in a way 

### 2218

that present-day § 8128(b) does not: 

### 1 in the absence of fraudor mistake in mathematical 

### 2 calculation, the finding of facts in, and the 

### 3 decision of the commission [the predecessor to 

### 4 OWCP] upon, the merits of any claim presented 

### 5 under or authorized by this Act if supported by 

### 6 competent evidence shall not be subject to review 

### 7 by any other administrative or accounting officer, 

### 8 employee, or agent of the United States. 

### 9 10 43 Stat. 389 (1924) (emphasis added). This limitation on 

### 11 judicial review was supplemented in 1945 by a provision 

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

### 13 postwar section of the law designed to allow compensation 

### 14 based on local law for wartime injuries suffered by non

### 15 citizens employed by the United States abroad. See 

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

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

### 18 included in" what is now § 8128(b). 

### Id. (citing H.R. Rep. 19 No. 901, 89th Cong., 1st Ses s. 146 (1965); 80 Stat. 545-4 6 20 (1966)). Sect ion 8128(b) thus became FECA 's only 21 jurisdictionalbar. Since t he 1924 wordin g that was omi tted 22 “as included i n” § 8128(b) expresslystated that t he 23 jurisdictionalbar applied o nly “in the ab sence of fraud ,” 24 it seems plainenough that C ongress did no t intend for 25 § 8128(b) to p reclude claimsunder the FCA . In any even t, 26 there was a fr aud carve-out prior to 1966, and “it will not 2719



### be inferred th at Congress, i n revising and consolidatingthe 1 laws, intended to change the ir effect unle ss such intent ion 2 is clearly exp ressed.” Finley v. Unit ed States , 490 U.S. 3 545, 554 (1989 ) (quoting Anderson v. Pa cific Coast S. S. Co. , 4 225 U.S. 187, 199 (1912)). 5 The jurisdictional bar in § 8128(b) seems to have been 

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

### 7 burdened by a flood of small claims challenging the merits 

### 8 of compensation decisions and [2] that the Secretary should 

### 9 be left free to make the policy choices associated with 

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

### 11 1347-48 (9th Cir. 1985) (citations omitted) (holding that § 

### 12 8128(b) did not preclude litigation of constitutional due 

### 13 process challenge to procedures used by OWCP in denying 

### 14 benefits). Neither goal is disserved by allowing the 

### 15 government to pursue fraudulent claim-seekers under the FCA 

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

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

### 18
See United States v. Carpentieri (“Carpentieri I”) , 23 F. 

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

### 20 does not bar suit under the FCA because the government's FCA 

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

### 224 The Merit Systems Protection Board, which reviews the 

### 1 decisions of arbitrators such as those at issue in Minor , 

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

### 3 OWCP's decisions concerning the award or denial of FECA 

### 4 benefits but to not preclude judicial review of collateral 

### 5 issues such as whether an employee has defrauded the 

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

### 7 210, 213 (1985); see also Smith v. U.S. Postal Serv. , 81 

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

### 9 M.S.P.R. 272, 279 (1993). 

### 10 20 presented to and resolved by the OWCP”). 

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

### 2 of other courts in analogous cases. Thus the Federal 

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

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

### 5 action seeking the termination of a civil service employee 

### 6 based upon allegations of FECA fraud, notwithstanding a 

### 7 prior determination by OWCP that the employee was entitled 

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

### 9 different remedies at issue in the OWCP action and the civil 

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

### 11 evidence may have been before the [arbitrator deciding 

### 12 whether the FECA beneficiary could be terminated,] and also 

### 13 before the [OWCP deciding whether benefits were warranted], 

### 14 it was the [arbitrator] that had power to decide [the 

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

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

### 175 

### In reaching it s conclusion r egarding the s cope of 1 § 8128(b), theThird Circuitrelied in par t on the fact that 

### 2 OWCP proceedings are non-adversarial: 

### 3 4 [I]t would be strange if a determination in a non

### 5 adversarial proceeding had a preclusive effect in 

### 6 an adversarial proceeding as "the general rule 

### 7 [is] that issue preclusion attaches only '[w]hen 

### 8 an issue of fact or law is actually litigated and 

### 9 determined by a valid and final judgment . . . .'" 

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

### 11 While we do not suggest that Congress could not 

### 12 make a ruling under section 8128(b) preclusive in 

### 13 the circumstances here, we hold that it did not do 

### 14 so. 

### 15 16 Nat'l Ass'n of Letter Carriers , 272 F.3d at 189. 

### 17

6 

### Defendants als o argue that §8128(b) precl udes the 1 government's c laims brought under federal common law. We do 2 not reach thisargument, bec ause jurisdict ion under the FCA 3 is sufficient to support thejudgment. 4 21likewise rejected the claim that § 8128(b) precluded re

### 1 litigation of all issues decided by OWCP. See Nat'l Ass'n 

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

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

### 4 of employee's wrongful termination claim was not bound by 

### 5 factual determinations made by OWCP in granting employee 

### 6 FECA benefits). 5 

### 7 We thus affirm the district court's rulingdenying the 8 Sforzas' motio n to dismiss t he government' s FCA claims f or 9 lack of jurisd iction. 6 

### 10 1122 II. Enforcement of Settlement Agreement 

### 1 Defendants also challenge the district court's 

### 2 enforcement of the settlement agreement on the ground that 

### 3 they never agreed to settle without a full release from all 

### 4 possible civil or criminal liability for both of the 

### 5 Sforzas. An agreement to end a lawsuit is construed 

### 6 according to contract principles. See Janus Films, Inc. v. 

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

### 8 minds is an issue to be determined by examination of the 

### 9 totality of the circumstances. See Ciaramella v. Reader's 

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

### 11 Here, there is ample evidence in the record that the 

### 12 parties reached a meeting of the minds. First, the court 

### 13 recited on the record at the settlement conference the 

### 14 understanding that the parties had reached an agreement 

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

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

### 17 stated that the settlement thus characterized was agreeable. 

### 18 Second, the Sforzas’ contention that the releases would 

### 19 protect them from criminal liability is belied by the fact 

### 20 that the sole condition required by the government was the 

### 21 sign-off of the Chief of the Civil Division. 

### 2223

We see no error in entering judgment on the terms 

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

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

### 3 resources requires that a trial judge proceed with entry of 

### 4 a settlement judgment after affording the parties an 

### 5 opportunity to be heard as to the precise content and 

### 6 wording of the judgment . . . .”). 

### The district c ourt's 7 ruling enforci ng the agreeme nt to settle i s affirmed. 8 9 CONCLUSION 10 For the reason s stated, the judgment is af firmed. 11