UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES ex rel. WILLIAM J. 

GILLIAM,

Plaintiff-Appellant,

v.

GENERAL DYNAMICS CORPORATION,  No. 03-1912

Defendant-Appellee,

and

UNITED STATES OF AMERICA,

Party in Interest. 

Appeal from the United States District Court

for the District of South Carolina, at Charleston.

C. Weston Houck, Senior District Judge.

(CA-01-3023-12-2)

Argued: May 7, 2004

Decided: July 12, 2004

Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

ARGUED: Gregg Meyers, Charleston, South Carolina, for Appellant.

Richard Thomas Franch, JENNER & BLOCK, Chicago, Illinois, for

Appellee. ON BRIEF: Lawrence S. Schaner, John T. Ruskusky,

JENNER & BLOCK, Chicago, Illinois, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

The district court granted summary judgment to the defendant,

General Dynamics Corporation, in this qui tam suit brought by William J. Gilliam under the False Claims Act, 31 U.S.C. § 3729 et seq.

We affirm. 

General Dynamics is a defense supplier with a division called Electric Boat. Electric Boat is one of only two nuclear capable shipbuilders in the country (the other is Newport News Shipbuilding and Dry

Dock Company). In the 1980s and 1990s, Electric Boat was awarded

the contracts for all three Seawolf class nuclear attack submarines.

Part of the history of the Seawolf is set forth in Newport News Shipbuilding & Dry Dock Co. v. General Dynamics Corp., 960 F.2d 386

(4th Cir. 1992). For our purposes, it suffices to explain that Congress

scaled back the number of Seawolf submarines it planned to authorize

after the end of the Cold War. Congress engaged in considerable

debate over whether to authorize the final Seawolf, the SSN-23. The

proponents of the SSN-23 argued that building the sub was necessary

in order to maintain the country’s industrial capacity to build nuclear

submarines, which required two nuclear capable shipyards, until the

next class of nuclear submarines was authorized. Congress eventually

authorized the SSN-23, and the contract was sole-sourced to Electric

Boat. Gilliam brought this suit on behalf of the United States under

the False Claims Act, alleging that General Dynamics’s Electric Boat

division made false statements that induced the United States to

award the SSN-23 contract to Electric Boat without competitive bidding. The district court granted summary judgment to General

Dynamics. 

The elements of a False Claims Act claim are: (1) "a false statement or fraudulent course of conduct; (2) made or carried out with the

requisite scienter; (3) that was material; and (4) that caused the gov2 UNITED STATES v. GENERAL DYNAMICS CORP.
ernment to pay out money or to forfeit moneys due." Harrison v.

Westinghouse Savannah River Co., 176 F.3d 776, 788 (4th Cir. 1999).

Materiality in a civil False Claims Act case is a "mixed question of

law and fact." Id. at 785. Gilliam alleges only that the decision to

sole-source the SSN-23 was prompted by Electric Boat’s misrepresentations. He does not allege that Electric Boat made any misrepresentations inducing Congress to authorize construction of the final

Seawolf. Gilliam’s theory is that Electric Boat lied to the government

by saying it would go out of business unless it received the SSN-23

contract without competitive bidding. Alternatively, he argues that

Electric Boat should have informed Congress that it had, but chose

not to pursue, potentially lucrative commercial opportunities that

would have kept the company afloat without the SSN-23. The United

States was damaged, Gilliam’s theory goes, because it paid more for

the SSN-23 than it would have if the contract had been competitively

bid. Gilliam says that bidding the SSN-23 would have kept Electric

Boat honest and held down the cost of the SSN-23, even though the

record indicates that Newport News would not have been price competitive with Electric Boat. 

We review the grant of summary judgment de novo. Sylvia Dev.

Corp. v. Calvert County, 48 F.3d 810, 817 (4th Cir. 1995). Assuming

for the sake of argument that Gilliam’s theory would be actionable

under the False Claims Act, we conclude that there is no genuine

issue of material fact on the false statement or materiality elements

and that General Dynamics is therefore entitled to summary judgment. See id. There is no evidence to support Gilliam’s argument that

Electric Boat told the government it would shut down if it was merely

forced to submit a bid for the SSN-23. Electric Boat’s president, Jim

Turner, did tell Congress that "[p]remature competition will drive up

costs unnecessarily and risk permanent loss of Electric Boat," but he

was referring only to the competition scheme the government was

considering for the next class of nuclear attack submarines, not the

SSN-23. J.A. 347. Although we construe the evidence in the light

most favorable to the non-moving party at summary judgment, we do

not take evidence out of context. Sylvia Dev. Corp., 48 F.3d at 821-

22. A factfinder simply could not construe Turner’s statement as saying anything false about competition for the SSN-23. See id. at 822.

Gilliam’s alternative argument (that Electric Boat should have disclosed that it chose not to pursue commercial opportunities, promptUNITED STATES v. GENERAL DYNAMICS CORP. 3
ing the government to sole-source the SSN-23 to Electric Boat) fares

no better. Again, there is no genuine issue of material fact on the false

statement element because Electric Boat did disclose both to Congress and the Navy that it considered commercial opportunities, but

had abandoned them. Furthermore, there is no evidence that any lack

of disclosure was material to the decision to sole-source the SSN-23

to Electric Boat. Assuming Electric Boat’s foregone business opportunities would have been as lucrative as Gilliam claims, they at most

indicate that Electric Boat could have survived as a commercial entity

without the SSN-23 contract. The evidence in the record, however,

indicates that the government was interested in maintaining nuclear

shipyard capacity. No evidence indicates that the commercial opportunities would have preserved Electric Boat’s capacity to build

nuclear ships. Thus, Electric Boat’s failure to disclose its foregone

commercial opportunities could not have been material to the decision

to sole-source the SSN-23. 

For the foregoing reasons, the judgment of the district court is 

AFFIRMED.

4 UNITED STATES v. GENERAL DYNAMICS CORP.