The opinion
SKELTON, Judge
(concurring in part and dissenting in part):
I concur in all of the well-written and exhaustive majority opinion, except that portion which finds the plaintiff guilty of fraud with reference to the filing of claims of the two “550” students, Jose Rosa-Garcia and Jose A. Huertos-Ramos. In my opinion, the defendant failed to show by clear and convincing evidence that plaintiff knowingly prepared false claims for these students with the intent to defraud the government.
In the case of Jose Rosa-Garcia, the evidence shows that he was absent from school twelve days, but he was marked absent for only four days by “someone” (unknown) at the school. When he returned, he discussed his absence with Simon, but neither of them mentioned whether he would be marked present or absent. He signed an attendance card, in blank, and returned to class. The majority opinion states that these facts alone do not show fraud. The opinion then establishes fraud by the testimony of the three disgruntled school teachers who had left plaintiff’s employ and had gone to a competing school after diffi *440 culties at plaintiff’s institution. The teachers testified that Simon and Eizenman had instructed them to stop marking a student absent after two consecutive absences, and that on several occasions Simon and Eizenman told them to mark “some students” (they were not identified) present who had been absent beyond the two-day period. The two-day absence rule was explained by plaintiff so it would have notice of absences and could put pressure on the students to remedy the situation. Plaintiff denied it ever told the teachers to mark a student present when he was absent. None of the teachers prepared the attendance record of Jose Rosa-Garcia and no one knows who did. The majority opinion states that although there is no proof that Simon prepared his certificate of training, he “must have known” that either teacher Rancier or someone in the office (under Simon’s and Eizenman’s control) would follow the “procedure” and mark him present. From this, the majority finds plaintiff guilty of fraud. In my opinion, this evidence falls far short of that required to show fraud. It does not show by clear and convincing evidence that plaintiff knowingly prepared a false attendance record for this student, nor that plaintiff knowingly prepared a false certificate or claim for him for presentment to the government with intent to defraud. This is not a conspiracy case and it is not enough for the government to show alleged general acts of misconduct on the part of the plaintiff. It is accused here of a specific act of fraud with reference to a specific student. The fraud has not been proven as required by law.
The Jose A. Huertos-Ramos case is similar to the Jose Rosa-Garcia case, only weaker on the fraud question. He said he was absent fifteen days, but he was marked absent four days. On his return he talked to Simon or Eizenman about his absence. He testified he went to Puerto Rico often in the mid and late 1950’s because of the prolonged illness of his mother. There was considerable doubt that he could testify with certainty in 1963 that he went to Puerto Rico in February 1956. No one knows who prepared his attendance record. The majority opinion once again relies on the fact that Rancier was Huertos-Ramos’ teacher to establish fraud. It says that this ties together the absence, Simon’s knowledge thereof, and the school’s policy to report students present who were absent, and the cumulative effect of all of this is that proof of fraud as to this particular student is shown by clear and convincing evidence. In my opinion, it is neither clear nor convincing and is not the kind of evidence required to show fraud in this case. The teacher did not prepare the attendance record of this student, and neither did Simon or Eizenman. The teacher was not told to mark this student present when he was absent. All that we have is suspicion and inference on top of inference. This is not enough. There is no clear and convincing evidence that plaintiff knowingly prepared a false attendance record for this student or knowingly prepared a false certificate or claim to be presented to the government for or by this student with the intent to defraud.
Accordingly, I would hold that defendant has failed to prove by clear and convincing evidence a violation by plaintiff of the False Claims Act and is not entitled to recover anything from plaintiff on its second counterclaim.