UNPUBLISHED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Affirmed by unpublished per curiam opinion.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.
2            UNITED STATES v. GENERAL DYNAMICS CORP.
Unpublished opinions are not binding precedent in this circuit.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 Wil-
liam 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 Elec-
tric Boat. Electric Boat is one of only two nuclear capable shipbuild-
ers 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 Ship-
building & Dry Dock Co. v. General Dynamics Corp., 

(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 bid-
ding. The district court granted summary judgment to General
Dynamics.

   The elements of a False Claims Act claim are: (1) "a false state-
ment or fraudulent course of conduct; (2) made or carried out with the
requisite scienter; (3) that was material; and (4) that caused the gov-
             UNITED STATES v. GENERAL DYNAMICS CORP.                3
ernment to pay out money or to forfeit moneys due." Harrison v.
Westinghouse Savannah River Co., 

, 788 (4th Cir. 1999).
Materiality in a civil False Claims Act case is a "mixed question of
law and fact." 

alleges only that the decision to
sole-source the SSN-23 was prompted by Electric Boat’s misrepre-
sentations. He does not allege that Electric Boat made any misrepre-
sentations 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 com-
petitive with Electric Boat.

   We review the grant of summary judgment de novo. Sylvia Dev.
Corp. v. Calvert County, 

, 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 judg-
ment. See 

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. 

22. A factfinder simply could not construe Turner’s statement as say-
ing anything false about competition for the SSN-23. See 

alternative argument (that Electric Boat should have dis-
closed that it chose not to pursue commercial opportunities, prompt-
4              UNITED STATES v. GENERAL DYNAMICS CORP.
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 Con-
gress 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 oppor-
tunities 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 oppor-
tunities 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.