dissenting:
I respectfully dissent. The majority interprets the settlement agreement between Northrop and the Government to embrace Barajas’s cold fluid claim. On its face, the Government’s release of “any and all ... claims under the False Claims Act” may extend to the cold fluid claim, but this language must be interpreted against the background of the Government’s civil suit against Northrop. See Miller v. Fairchild Indus., Inc., 797 F.2d 727, 734-35 (9th Cir.1986). The Government did not adopt the cold fluid claim in its civil complaint, alleging only that Northrop falsified its testing records. Throughout the litigation, both Northrop and the Government maintained the cold fluid claim was distinct from the falsification claim. Moreover, in the negotiations leading to the settlement agreement, both parties acknowledged that the cold fluid claim was not covered by the settlement.
Because the surrounding circumstances show Northrop and the Government did not intend their settlement to dispose of the cold fluid claim, the settlement agreement does not preclude Barajas’s qui tam action based on that claim, irrespective of whether res judicata principles apply. If, as the Government argues, res judicata does not apply to qui tam claims, Barajas is free to assert any claims not adopted by the Government, including his cold fluid claim; if, as Northrop argues, res judicata does apply here, Barajas may nonetheless bring his claim because it is not precluded by the settlement agreement. See International Union of Operating Eng’rs v. Karr, 994 F.2d 1426, 1429 (9th Cir.1993) (noting that the res judicata effect of a settlement agreement may be limited by the terms of the agreement).