Full opinion text
MEMORANDUM AND ORDER GLASSER, District Judge. This action arose from the administration of a Community Development Block Grant Program (“CDBG Program”) and a Section 235 Housing Program and from the alleged misuse of Housing and Urban Development (“HUD”) funds in those programs by the Village of Island Park, New York (“Island Park” or the “Village”) between 1979 and 1983. The government filed this action on March 22, 1990; it filed an amended complaint on May 8, 1990. The government has named as defendants the Incorporated Village of Island Park and its present Mayor (Jacqueline Papatsos) and trustees (Charlotte Kikkert, Philip Taglianetti and James Fallon), in their official capacities (collectively, the “Village Defendants”); former officials of the Village, including former Mayor Michael Párente (“Párente”), former trustees James Brady (“Brady”) and Francis R. McGinty (“McGinty”) and former trustee and HUD employee Geraldine McGann; and six of the couples who were awarded Section 235 homes in the Village (the “Homeowner Defendants”). The amended complaint asserted eight causes of action: (1) violation of the False Claims Act, 31 U.S.C. §§ 3729 et seq.; (2) fraud; (3) violation of the Fair Housing Act, 42 U.S.C. §§ 3601 et seq.; (4) breach of fiduciary duty; (5) aiding and abetting breach of fiduciary duty; (6) unjust enrichment; (7) constructive trust; and (8) erroneous payment of funds. Upon defendants’ motion for summary judgment dismissing the claims as time barred, this court dismissed the claims for fraud, breach of fiduciary duty and aiding and abetting breach of fiduciary duty in their entirety; dismissed the claims for violation of the False Claims Act, unjust enrichment and erroneous payment of funds to the extent they related to events prior to March 22, 1984; and dismissed the claim for violation of the Fair Housing Act to the extent the government sought civil penalties. United States v. Incorporated Village of Island Park, 791 F.Supp. 354 (E.D.N.Y.1992) (Island Park). The underlying facts and circumstances are set out in that opinion, familiarity with which is assumed. The government now moves for partial summary judgment against the Village Defendants, Párente and Brady on the remaining False Claims Act and Fair Housing Act causes of action; against the Homeowner Defendants (excluding the Ruoccos) on the unjust enrichment and constructive trust claims; and against the Village Defendants, Párente, Brady and the Homeowner Defendants (other than the Ruoccos) for erroneous payment of funds. The Village Defendants have cross-moved for summary judgment dismissing the causes of action for False Claims Act violations and erroneous payment of funds and have moved for additional time to conduct discovery with respect to the government’s claim under the Fair Housing Act. Párente, Brady and McGinty have adopted the Village Defendants statement of facts and memoranda of law and have also moved to dismiss the causes of action for False Claims Act violations and erroneous payment of funds, as well as for additional time to conduct discovery on the Fair Housing Act claims. The Homeowner Defendants have moved for summary judgment dismissing all remaining claims against them. Preliminary Matters Pursuant to Local Civil Rule 3(g), the government has submitted a Statement of Material Facts as to which it contends there is no genuine issue to be tried. Several of the contentions in the government’s 3(g) statement relate to matters with respect to which defendants Daniel McGann and James Brady asserted their Fifth Amendment privilege against self-incrimination at deposition. Those defendants now attempt to controvert those contentions by submitting affidavits in opposition to the government’s motion for summary judgment. The government has requested that those affidavits be stricken. Thus, prior to determining whether the undisputed material facts in this action warrant summary judgment, this court must determine whether to admit those affidavits. The privilege against self-incrimination may be invoked by defendants in civil as well as criminal proceedings and during the discovery process as well as during trial. Because of the potential for abuse of the privilege by defendants who use it to obstruct discovery only to waive it and subject the plaintiff to surprise testimony at trial, the courts recognize the appropriateness of imposing sanctions for a civil defendant’s assertion of the privilege during discovery. Thus, a decision to assert the privilege during pretrial depositions may be valid grounds for precluding a defendant from testifying at trial, Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 575-77 (1st Cir.1989), as well as for striking affidavits opposing summary judgment motions, In re Edmond, 934 F.2d 1304, 1308-09 (4th Cir.1991); United States v. Parcels of Land, 903 F.2d 36, 43 (1st Cir.). This principle has been accepted by several district courts in this circuit, SEC v. Drexel Burnham Lambert Inc., 837 F.Supp. 587, 606 n. 6 (S.D.N.Y.1993), aff'd on other grounds, 16 F.3d 520 (2d Cir.1994); United States v. Certain Real Property and Premises Known as 4003-4005 Fifth Avenue, 840 F.Supp. 6 (E.D.N.Y.1993); United States v. Talco Contractors, Inc., 153 F.R.D. 501, 506 (W.D.N.Y.1994); SEC v. Cymaticolor Corp., 106 F.R.D. 545, 549-50 (S.D.N.Y.1985); SEC v. Benson, 657 F.Supp. 1122 (S.D.N.Y.1987), and is consistent with the well-settled principle that a defendant’s direct testimony should be stricken if he or she invokes the Fifth Amendment on cross-examination to shield that testimony from scrutiny, Bagby v. Kuhlman, 932 F.2d 131, 135 (2d Cir.1991), cert. denied, 502 U.S. 926, 112 S.Ct. 341, 116 L.Ed.2d 281 (1991); Klein v. Harris, 667 F.2d 274, 289 (2d Cir.1981) (citing Brown v. United States, 356 U.S. 148, 154-57, 78 S.Ct. 622, 626-28, 2 L.Ed.2d 589 (1958)). In view of Brady’s and McGann’s repeated invocation of their Fifth Amendment privilege at deposition, their “eleventh hour” attempt to avoid the consequences of asserting that privilege by submitting affidavits in opposition to the government’s summary judgment motion constitutes an abuse of the discovery procedure which should not be permitted. Accordingly, the affidavits of Brady and McGann are precluded. Furthermore, the government may rely on the defendants’ assertion of their Fifth Amendment privilege to confirm matters supported by other independent evidence. As this court has previously held, an adverse inference may be drawn in a proceeding against a defendant who invokes the privilege against self-incrimination. United States v. Private Sanitation Industry Association, 811 F.Supp. 808, 812 (E.D.N.Y.1992), aff'd 995 F.2d 375 (2d Cir.1993) (citing Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 1557-58, 47 L.Ed.2d 810 (1976)). However, liability should not be imposed based solely upon the adverse inference. United States v. Bonanno Organized Crime Family of La Cosa Nostra, 683 F.Supp. 1411, 1452 (E.D.N.Y.1988) (citations omitted), aff'd, 879 F.2d 20 (2d Cir.1989). The government must produce “independent corroborative evidence of the matters to be inferred” before liability will be imposed. Id. Facts The Village joined the Nassau County Consortium, which was formed to participate in the “Nassau County Community Development Program pursuant to Title I of the Housing and Community Development Act of 1974, as amended.” Pi’s 3(g) St. ¶ 7. The Secretary of HUD approved the Consortium’s application for a Community Development Block Grant (CDBG) to finance a community development program for the Village. Id. CDBG funds may be used for such things as acquiring real property, site improvement, and building public works and playgrounds, but not for the construction of new housing or to provide housing assistance or subsidies for occupants. 42 U.S.C. §§ 5305(a)(1), (2), (4) et seq.; 24 C.F.R. § 570.207(b)(3). A unit of local government is eligible to receive CDBG funds only if it certifies to HUD that it is following a current housing assistance plan (HAP) that meets certain statutory requirements. 42 U.S.C. § 5304(e)(1). The unit of local government is required to facilitate achieving the goals for assisted housing in the HAP. 24 C.F.R. § 570.903(e)(2). The Village entered into Cooperation Agreements with Nassau County, pursuant to which it agreed that the County would allocate CDBG funds “according to a formula based on population and need in conformance to goals and objectives of the application [for CDBG funds].” Cooperation Agreements (Exhibit 2 in Support of Plaintiffs Motion) ¶ 9; Plaintiffs Analysis of Material Facts Not in Dispute (“Pi’s Analysis”), at 8, fn. 8. The Village also agreed that the County had sole responsibility for “the analysis of needs, the setting of objectives, the development of community development and housing assistance plans____” and that the parties would comply with Title VI of the Civil Rights Act of 1964. Pi’s 3(g) St. ¶¶ 9, 11; Cooperation Agreements ¶¶2, 10. The parties agreed that “no person shall on the ground of race, color, sex or national origin be excluded from participation in, be denied the benefits or, or otherwise be subjected to discrimination under any program or activity for which the parties receive federal financial assistance ...” Pi’s 3(g) St. ¶ 11; Cooperation Agreements ¶2. As part of its HAP, the County initiated a Section 235 housing program on scattered sites throughout the County, including the Village. Pi’s 3(g) St. ¶ 10. Under Section 235 of the National Housing Act, HUD assists low income purchasers of homes by insuring their mortgages against default and by making a portion of their monthly mortgage payments. 12 U.S.C. § 1715z(i), (a). The housing is built by a private developer who obtains mortgage commitments from a HUD-approved lender. A developer who applies to build Section 235 housing in a community with a HUD-approved HAP will be approved only if the application is consistent with the HAP. 24 C.F.R. § 235.39(a). Upon HUD approval, Section 235 funding sufficient to subsidize the mortgages on the proposed houses is reserved for the ultimate purchasers. Under the Fair Housing Act, 42 U.S.C. § 3601 et seq., it is illegal to discriminate based upon race in the provision of housing. HUD has an affirmative obligation to administer its housing assistance programs to further the purposes of the Fair Housing Act. 42 U.S.C. § 3608(e)(5). HUD regulations therefore require that HUD-assisted dwelling units must be affirmatively marketed to “achieve a condition in which individuals of similar income levels in the same housing marketing area have a like range of housing choices regardless of race.” 24 C.F.R. § 200.610. Applicants for HUD assistance are required to file for approval an affirmative fair housing marketing plan (AFHMP) on a form provided by HUD. 24 C.F.R. § 200.625. That form requires the applicant to set forth racial goals, which it is required to make a good faith effort to achieve. The Village received approximately $650,-000 in federal CDBG funds from the County, which it used to purchase or improve land for sale to builders who thereafter applied to HUD to reserve Section 235 funds for the ultimate purchasers of the homes. Pi’s 3(g) St. ¶¶ 12, 13; Village Defendants’ Counter-Statement, at 6. A county-wide AFHMP filed by Nassau County contemplated “a concentrated outreach to attract those families who might not traditionally be expected to purchase a home in a given area” and stated that “[proposed housing in non-minority areas will be marketed aggressively to minority groups.” Pi’s 3(g) St. ¶ 16. Forty-four homes were built in the Village under the Section 235 program. The homes were built in three phases, commencing in 1979: Phase I consisted of five homes which were constructed by the Halandia Group; Phase II consisted of 22 homes, and Phase III consisted of 17 homes constructed by Ocean Park Properties. Pi’s 3(g) St. ¶ 14; Village Defs’ Counter-St. ¶ 17, at 7. In its 1981 guidelines for homeowner selection for the Section 235 program, the Village recognized “the obligation to take care of our own qualified residents [as] the first and foremost reason for the building of subsidized housing in the Village.” Pi’s 3(g) St. ¶ 14. The AFHMP which was approved for Phase I of the Section 235 program in the Village was prepared by the County. Pi’s 3(g) St. ¶ 17. In the AFHMP, it was represented that the program would be advertised locally as well as in Long Beach community newspapers to “offer outreach to broader spectrum of citizens in the specific target area, including the minority population within the adjacent Long Beach community.” Id. The Phase I AFHMP, which was submitted by Halandia, set forth the anticipated occupancy goals as “four whites” and “one black or hispanic.” Pi’s 3(g) St. ¶ 15. In its February 14, 1980 letter approving the AFHMP, HUD stated that “[t]he selecting or giving of preference to prospective purchasers in order to achieve projected goals is not permitted. Transactions should be entered into on a first-come-first-serve basis. The principal standard applied in determining compliance with the Affirmative Fair Housing Marketing Plan is diligent good faith effort.” Pi’s 3(g) St. ¶ 18. According to the 1970 census, the Village had a population of 5,396 of which 75 were black; in 1980, the Village’s population was 4,387, with 23 blacks constituting .47% of its population; in 1990, the Village had a population of 4,810 with 30 blacks, or 0.6% of its population. Pi’s 3(g) St. ¶ 1. The black population of the entire Nassau County Consortium was 9.5% in 1980. Id. Although the Village Defendants assert that these census figures are inaccurate, they have not submitted any evidence in support of their assertions. Michael A. Párente was Mayor of the Village from 1968 until 1990 and James G. Brady was a trustee of the Village from 1966 until 1990. Pi’s 3(g) St. ¶¶2-3. Harold Scully (“Scully”) was Village Clerk from 1955 to 1986 and served as Village Clerk during the entire time that the HUD Section 235 program was being administered in the Village. Pi’s 3(g) St. ¶4. The government contends that Scully was responsible for administering the Section 235 program in the Village; the Village Defendants do not deny that Scully administered the Program but contend that private builders bore responsibility for its administration. Pi’s 3(g) St. 5; Village Defs Counter-Statement, at 4-5. Ann Leonard was Deputy Village Clerk from 1976 to 1986, and is currently Village Clerk. Pi’s 3(g) St. ¶ 6. Scully testified that Village Trustee Daniel Kikkert (now deceased) and Brady expressed concern about the Village participating in the Section 235 program “because there was a potential for blacks being brought into the community” and they wanted to ensure that blacks would be excluded. Pi’s 3(g) st. ¶ 19. Scully testified that he did not intend to give houses to persons who lived outside the Village and, rather than distributing the homes on a first-come, first served basis as required by HUD, he or his staff called five preselected persons prior to the appearance of advertising of the Phase I homes to ensure that “they got their letters in first” and to “subvert the process that HUD had required with regard to the advertisements.” Pi’s 3(g) St. ¶ 22. Leonard confirms that people were informed of the advertisement in March 1980, prior to its appearance, and that she placed three of the calls including a call to Anthony Ciccimarro. Pi’s 3(g) St. ¶ 23. The Village admits that Scully used the HUD housing program to confer benefits on his special friends and family. Pi’s 3(g) St. ¶ 24. Scully testified that he understood that under the selection process required by HUD, the Village could accept letters from persons interested in the program only after an advertisement for the housing program appeared. Pi’s 3(g) St. ¶ 25. The preselected persons, including the Ciecimarros, delivered their application letters to Village Hall before or at 9 a.m. of the day they had been told the newspaper ads would appear for Phase I. Pi’s 3(g) St. ¶¶26, 27. The Ciecimarros do not deny that they were called and notified before the advertisement was to appear or that they delivered their application before 9 a.m. on the date that the newspaper ad was scheduled to appear. Janet Ciccimarro asserts that the Ciceimarros were economically qualified for the HUD mortgage, that the application for the program was truthful and that she and her husband were unaware of the Village officials’ intent to “manipulate availability of housing” to “[d]efraud the United States and HUD” of “money and the right to have the Program administered fairly and honestly” or to exclude blacks and Hispanics from housing in the Village. Aff. of J. Ciccimarro, ¶¶ 3A, B. Michael DeLessio, a former Village employee has submitted a declaration asserting that in the fall of 1979, Anthony Ciccimarro told DeLessio that he had spoken to his cousin Alfonse D’Amato and that D’Amato was getting him a Section 235 house in the Village. Pi’s 3(g) in Opp. ¶ 7; Delessio Decl. ¶4. (The government has also submitted Scully’s testimony that D’Amato told him to give the Ciecimarros a house and that he adjusted his list of participants to include the Ciecimarros after discussing that request with Mayor Párente. Pi’s Counter-3(g) St. ¶ 3.) Between Phase I and Phase II, Scully interviewed between 50 and 100 persons for Section 235 homes, none of whom were black. Pi’s 3(g) St. ¶ 29. Scully told interested individuals from outside the Village that they were not eligible for the program. Id. An AFHMP for Phase II was submitted by Ocean Park Properties to HUD on September 14, 1981. Pi’s 3(g) St. ¶30. In a cover letter submitted with the AFHMP, which was prepared by the County, the County certified that the anticipated occupancy goals were consistent with those of the County-wide AFHMP for Section 235 housing. Id. The anticipated occupancy goals for Phase II were 3 whites, 17 blacks and 4 Hispanics. The County-wide AFHMP stating that proposed housing in non-minority areas would be aggressively marketed to minority groups, was enclosed as part of the Phase II AFHMP. Id. The AFHMP also indicated that advertisements would be placed in the Independent Voice and the Amsterdam News to “provide outreach to areas ... including the minority population within the adjacent community of Long Beach” and that the “goals for anticipated occupancy for minorities in the Section 235 housing in the Incorporated Village of Island Park are greater than the averages of the Village and County.” Id. The AFHMP also provided for meetings with community organizations such as the Hempstead offices of the NAACP and the Alliance of Minority Group Leaders, Inc. Id. In its letter approving the Phase II AFHMP, HUD restated its position that the occupancy estimates were goals, not quotas and reiterated that transactions must be entered into on a first-come first served basis. Pi’s 3(g) St. ¶ 31. Minutes of a November 12, 1981 meeting of the Village Board state that “The Mayor reported that the Village was accepting letters from those interested in the Section 235 Housing Project.” Pi’s 3(g) St. ¶ 32; Village Def s Counter-St. ¶ 29, at 13. The advertisements for both Phase I and Phase II directed persons interested in the Section 235 program to write to the Village at Village Hall. Id. Scully testified that he selected Phase II purchasers by contacting 22 persons from a pre-selected list on November 18, 1981, before advertisements for Phase II first appeared. Pi’s 3(g) St. ¶32. Ann Leonard confirmed that on November 18, she heard Scully telling people that an advertisement would appear in Newsday and that they should bring a letter in the next day. Pi’s 3(g) St. ¶ 33. Scully testified that the purpose of calling persons before the ad appeared was to ensure that the persons who were on the final list of pre-selected purchasers would receive a home. Pi’s 3(g) St. ¶ 34. The Village Defendants do not deny Scully’s actions but maintain that they were “unaware of Scully’s manipulation of the Section 235 Program” and that his acts were not authorized or ratified by the Village or any trustee. Village Defs’ Counter-St. ¶41, at 14. Twenty-two letters were stamped received at Village Hall at 9:00 a.m. on November 19, 1981. Pi’s 3(g) St. ¶ 35. Scully testified that Brady arranged to have his niece and her husband, the Guerins, put on the list of pre-selected purchasers. Pi’s 3(g) St. ¶ 36. Brady invoked the Fifth Amendment when questioned about this at his deposition. Id. The Guerins were among those whose letters were date-stamped by Ann Leonard on November 18, 1981 as having come in before 9:00 a.m. Id. Scully testified that the Moores and DiDomenieos were also on the final list of twenty-two, and that they were telephoned on November 18, 1981. P’s 3(g) St. ¶¶ 37, 38. Both the Moores’ and the DiDomenicos’ letters were date-stamped by Ann Leonard on November 19,1981 as having come in before 9:00 a.m. Id. Scully testified that Mayor Párente left a note in his own handwriting requesting that Trustee MeGinty’s sons be included in the final list and that one of McGinty’s sons was called on November 18. Pi’s 3(g) St. ¶ 39. Although the Village Defendants deny certain of these assertions relating to the existence of a list of pre-selected applicants and assert a lack of awareness as to Scully’s activities, the Village Defendants have not submitted any affidavits or other supporting evidence in support of their position. Neither have the Homeowner Defendants who purchased Phase II houses specifically denied Scully’s activities; they have instead denied knowledge of the “alleged manipulation of the availability of Section 235 housing in Island Park.” Aff. of M. Guerin ¶ 5, Aff. of J. DiDomenico ¶ 5, Aff. of D. Moore ¶ 4. Nor do the Homeowner Defendants deny being called in advance of the appearance of the newspaper ads or delivering their application letters to Village Hall by 9:00 a.m. on November 19,1981; rather, they deny being told prior to November 19, 1981 that they “would receive” a Section 235 house or that they “would be selected” to receive such housing. Id. They also deny being advised of the “availability” of the Phase II housing prior to the general public. Id. Although the Homeowner Defendants assert that they (or in the case of Moore, her father) read the newspaper ad, they do not assert having read that ad prior to delivering their application letters to Village Hall. Aff. of M. Guerin ¶ 3; Aff. of J. DiDomenico ¶ 4; Aff. of D. Moore ¶ 3. In response to the Homeowner Defendants’ (including the Ruoccos) motion for summary judgment dismissing the complaint against them, the government has submitted additional materials to refute the assertions of lack of knowledge. The declaration of Michael DeLessio attests to a conversation in the fall of 1979 in which Ruocco told him that he was getting a Section 235 house in the Village. Pi’s 3(g) St. in Opp. ¶ 22; DeLessio Decl. ¶ 3. DeLessio also attests that he saw Brady and the Guerins looking at the site where their Phase II house was eventually built on at least one occasion prior to November 1981, Pi’s 3(g) St. in Opp. ¶ 24, and that both DeLessio and Joseph DiDomenico were promised Phase II houses by Masone approximately three months prior to November 1981. Pi’s 3(g) St. in Opp. ¶26. DeLessio attests that Masone told him and DiDomenico that they would be informed before the ad would appear and, sometime between November 16 and November 18, 1981, they were informed by Scully that the ad would appear on November 19 and they should put their letters of interest in the mail slot before 9:00 a.m. Pi’s 3(g) in Opp. ¶ 27. DiDomenico and DeLessio slipped their letters into the mail slot at Village Hall at approximately 6:00 a.m. on November 18, at which time DeLessio saw through the mail slot that there were other letters on the floor. Pi’s 3(g) St. in Opp. ¶28. DeLessio also attests that his wife called Joseph DiGiacomo, Donna Moore’s father, prior to November 19, 1981 to inform him that they were getting a Section 235 house and suggested that he speak to Masone about getting a house for his daughter. Pi’s 3(g) in Opp. ¶ 29. DiGiacomo told DeLessio that after all he had done for the Village the Village should give his daughter a house. Id. No AFHMP was submitted to HUD for Phase III, and the availability of Phase III homes was not advertised by the Village. Pi’s 3(g) St. ¶ 41. According to Scully’s testimony, the Village was advised of the need to act quickly because the program was about to expire and it was suggested that the Village select Phase III purchasers from the unsuccessful applicants for Phase II. Id. Although there were an insufficient number of qualified Village residents who had applied during Phase II to fill the Phase III houses, Scully refused to consider or contact non-Village residents who had applied during Phase II. Pi’s 3(g) St. ¶¶ 42-43. Instead, the Village Board and Scully let people know about the availability of Section 235 housing. Pi’s 3(g) St. ¶ 44. The McGanns did not apply for Section 235 housing during Phase II, but Geraldine McGann allegedly used her influence to get a house for her son during Phase III. Pi’s 3(g) St. ¶¶ 45-46. Scully testified that Mrs. McGann reviewed and approved the list of Phase III purchasers, which included her son. Pi’s 3(g) in Opp. ¶ 16. When questioned about his mother’s use of influence to get him a Section 235 house and his knowledge of that influence at deposition, Daniel McGann asserted his privilege against self-incrimination. Pi’s 3(g) in Opp. ¶ 17. Geraldine McGann also asserted her Fifth Amendment privilege when she was questioned about whether she discussed the section 235 program with her son. Id. The Village Defendants question Scully’s credibility and dispute the allegations relating to impropriety in the selection of Phase III homeowners generally, but do not submit any supporting affidavits. Village Defs Counter-St. ¶¶ 49-51. Daniel McGann has submitted an affidavit in which he asserts that Scully’s deposition testimony is suspect and that Scully is motivated to lie because of hostility toward Geraldine McGann. However, McGann does not specifically deny that his mother used her influence in obtaining a home for him. Furthermore, McGann’s affidavit has been precluded because of his abuse of the discovery process. See discussion, supra. It is undisputed that no blacks received any of the forty-four homes constructed in Island Park under the Section 235 Program. Pi’s 3(g) St. ¶ 49. Discussion I. Summary Judgment Standards. Summary judgment “shall be rendered forthwith if ... there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In order for the moving party to be successful, it must “point[ ] out to the district court ... that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). In opposing a properly supported summary judgment motion, “an adverse party may not rest upon the mere allegations or denials of [its] pleading, but [its] response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e) (emphasis added). The non-movant, however, “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). “The mere existence of factual issues [pertaining to immaterial facts] will not suffice to defeat a motion for summary judgment.” Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir.1985). “The moving party is ‘entitled to a judgment as a matter of law* [if] the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. In deciding a summary judgment motion, the court need not resolve disputed issues of fact, but need only determine whether there is any genuine issue to be tried. Eastman Mach. Co., Inc. v. United States, 841 F.2d 469, 473 (2d Cir.1988). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant such that a jury could return a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). The nonmoving party, therefore, must come forward with facts, and not doubts as to the veracity of the moving party’s allegations: “Rule 56(e) ... requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. II. False Claims Act. A. Village Defendants’ Liability for Scully’s Acts. The government’s assertion of the Village’s liability under the False Claims Act is based in large part on Scully’s actions in administering the Section 235 program. The Village’s liability for Scully’s activities is premised on the principles of agency. A principal is liable even for criminal acts of an agent if those acts are within the scope of his actual or apparent authority. United States v. Twentieth Century Fox Film Corp., 882 F.2d 656, 660 (2d Cir.1989), cert. denied, 493 U.S. 1021, 110 S.Ct. 722, 107 L.Ed.2d 741 (1990); United States v. Bi-Co Pavers, Inc., 741 F.2d 730, 737 (5th Cir.1984). An agent’s acts are within the scope of his actual authority if “it is the kind of work he is employed to perform, occurs within the authorized limits of time and space, and is actuated, at least in part, by a purpose to serve the master.” W. Prosser, Torts § 70 at 461 (4th ed. 1971). Apparent authority is the authority which outsiders would normally assume the agent to have, judging from his position with the corporation and the circumstances of his conduct. United States v. Bi-Co Pavers, Inc., 741 F.2d at 737; see also Restatement of Agency 2d, § 49, Comment c (“Acts are interpreted in the light of ordinary human experience. If a principal puts an agent into, or knowingly permits him to occupy, a position in which according to the ordinary habits of persons in the locality, .. it is usual for such an agent to have a particular kind of authority, anyone dealing with him is justified in inferring that he has such authority ...”) The doctrine of respondeat superior applies to the Village, an incorporated entity under the laws of the State of New York, see N.Y. Village Law, §§ 2-232, 234 (McKinney 1973). See Haehl v. Village of Port Chester, 463 F.Supp. 845, 848 (S.D.N.Y.1978); Marr v. Rife, 503 F.2d 735, 740 (6th Cir.1974). Respondeat superior applies to violations of the False Claims Act committed by an employee of a corporation who is acting within the scope of his authority and, at least in part, for the employer’s benefit. See Grand Union Co. v. United States, 696 F.2d 888, 891 (11th Cir.1983); United States v. Hangar One, Inc., 563 F.2d 1155, 1158 (5th Cir.1977). A corporation is also liable for violations of the False Claims Act committed by an employee who acted with apparent authority, even if the acts do not benefit the corporation at all. United States v. O’Connell, 890 F.2d 563, 567-68 (1st Cir.1989). Although the Village Defendants deny awareness of Scully’s manipulation of the Section 235 Program and assert that his acts were not authorized or ratified by the Village or any of its Trustees, they do not deny that the administration of the Section 235 Program by Scully was within the scope of his duties. Scully was duly appointed Village Clerk, and in that capacity was Secretary to the Village Board and took care of the Village’s day-to-day business. Pi’s 3(g) St. ¶ 4. The acts on which the government bases its cause of action under the False Claims Act were performed by Scully at Village Hall during business hours. The government has demonstrated that the Village was actively involved in the Section 235 program. The land on which the houses were built was purchased and improved by the Village with CDBG funds, eligibility and selection criteria were adopted by the Village Board and applications for Section 235 housing were addressed to Village Hall. Pi’s 3(g) St. ¶¶ 12-14, 32. The Village recorded in its official minutes the Mayor’s report that the Village was accepting applicants for Section 235 housing. Pi’s 3(g) St. ¶ 32. In addition, the program was part of the County Consortium’s HAP and the Village, as a Consortium member and sub-grantee of CDBG funds, had agreed to cooperate with the Consortium in providing subsidized housing. Pi’s 3(g) St. ¶¶ 9-11. The Village Board explicitly recognized that the Section 235 program would benefit Village residents. Pi’s 3(g) ¶ 14. Furthermore, although the Village Defendants assert that Scully’s illegal acts were not authorized, they do not submit any evidence that Scully’s authority to administer the Section 235 Program was contested by the Village or any of its officers. In fact, the evidence indicates that Párente was willing to take credit for the Program and accepted a gift that the Section 235 homeowners gave him in appreciation of his involvement. Pi’s 3(g) St. ¶ 48. Thus, Scully’s acts were of the kind he was employed to perform, occurred within the authorized limits of time and space, and were intended at least in part to benefit the Village. Accordingly, those acts were within the scope of his actual authority and, under principles of respondeat superior, can form the basis for the Village’s liability under the False Claims Act. Moreover, it is clear that Scully’s administration of the Section 235 Program was consistent with his position and within the scope of his apparent authority. Advertisements that were submitted to newspapers by Scully as Village Clerk directed interested applicants to write to the Village at Village Hall. Pi’s 3(g) St. ¶ 32. In interviewing potential applicants for the Section 235 Program and responding to complaints about the administration of the Program on behalf of the Village Board, Scully was performing acts which third parties would normally assume to be within the scope of his authority. Pi’s 3(g) St. ¶ 51. In his correspondence with HUD in response to its request from the Village for information about the marketing of the Section 235 homes, Scully used Village stationery and held himself out as acting on behalf of the Village. Pi’s 3(g) St. ¶50. These acts were consistent with his position as Village Clerk and would justify the inference that he was acting within the scope of his authority. Thus, these acts can be used to establish violations of the False Claims Act by the Village. B. Violations of False Claims Act: the Village Defendants. The False Claims Act, 31 U.S.C. § 3729, et seq., provides that a person is liable if he, inter aha: (1) Knowingly presents or causes to be presented, to an officer or employee of the United States Government ... a false or fraudulent claim for payment or approval; (2) Knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government; (3) Conspires to defraud the Government by getting a false or fraudulent claim allowed or paid ... 31 U.S.C. § 3729(a). The government contends that the Village Defendants, Párente and Brady are each hable for separate False Claims Act violations for each post-March 22, 1984, claim by the Village for CDBG funds which were used in connection with the Section 235 program and for each monthly claim for a mortgage subsidy on behalf of each of the Section 235 purchasers. The provisions of the False Claims Act are to be read broadly and “reaches beyond ‘claims’ which might be legally enforced, to ah fraudulent attempts to cause the Government to pay out sums of money.” United States v. McLeod, 721 F.2d 282, 284 (9th Cir.1983) (quoting United States v. Neifert-White Co., 390 U.S. 228, 233, 88 S.Ct. 959, 962, 19 L.Ed.2d 1061 (1968)). Thus, the statute is violated not only by a person who makes a false statement or a false record to get the government to pay a claim, but also by one who engages in a fraudulent course of conduct that causes the government to pay a claim for money. See Scolnick v. United States, 331 F.2d 598, 599 (1st Cir.1964), finding liability under the False Claims Act for cashing a check mistakenly issued to defendant for an obligation that had been satisfied; United States v. McLeod, 721 F.2d at 283-284, finding liability for presenting for payment a check which the defendant knows he is not entitled to. The legislative history indicates that the False Claims Act was intended to cover “each and every claim submitted ... by means of false statements, or other corrupt or fraudulent conduct, or in violation of any statute or applicable regulation ...” S.Rep. No. 345 at 9, reprinted in 1986 U.S.Code Cong, and Admin.News, 5266, 5274. A bid-rigging scheme, in which contractors who are supposed to compete against each other to submit the lowest bid conspire to artificially fix the low bid and the bidder who will be awarded the contract is a fraudulent course of conduct which can give rise to False Claims Act violations. United States ex. rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943). Thus, claims for payment submitted under the rigged contract constitute false claims within the meaning of the False Claims Act. See United States v. CFW Construction Co., Inc., 649 F.Supp. 616, 618 (D.S.C.1986), dismissed, 819 F.2d 1139 (4th Cir.1987). Furthermore, the government need not prove an intent to defraud, but only that the violations were committed knowingly, that is with willful blindness to the existence of a fact or reckless disregard for the truth. United States v. Foster Wheeler Corporation, 316 F.Supp. 963, 967 (S.D.N.Y.1970), modified on other grounds, 447 F.2d 100 (2d Cir.1971); United States v. Sarantos, 455 F.2d 877, 881 (2d Cir.1972). The fraudulent pre-selection scheme that Scully testified to and that the Village Defendants have failed to refute clearly constitutes the type of fraudulent conduct which the False Claims Act was intended to reach. Scully’s testimony indicates that the Village intentionally failed to follow the prescribed scheme for awarding Section 235 housing. Thus, Scully, knowing that it was improper and illegal, pre-selected the purchasers of the Phase I and Phase II houses by giving them advance notice of when the program was to be advertised and by telling them to deliver their letters to Village Hall prior to 9:00 a.m. on the day in question. Pi’s 3(g) St. ¶¶ 22-23, 26-28, 32-39. The Section 235 purchasers, so selected, were chosen in violation of the conditions on which the program was approved — that is, that the purchasers be approved on a first-come, first-served basis, and that a diligent good faith attempt to comply with the AFHMP would be made in administering the program. The Phase III purchasers were also selected by the Village in a manner that prevented qualified Village non-residents from receiving those homes, thereby subverting the goals of the County’s AFHMP. No AFHMP was filed for Phase III and qualified Village non-residents who had applied during Phase II were not notified of the availability of Section 235 houses under Phase III. Pi’s 3(g) St. ¶¶ 41-43. It is consistent with the generally broad reading that the courts have applied to the False Claims Act to find the fraudulent scheme for administering the Section 235 program in the Village within the purview of the Act. In United States v. Shaw, 725 F.Supp. 896 (S.D.Miss.1989), cited by the Village Defendants, the court held that a bribery scheme could not form the basis for a cause of action under the Act. That case appears to be an anomaly and it is the better view to reject such a restrictive reading of the False Claims Act. See United States v. McLeod, 721 F.2d at 285. Furthermore, the government has pointed to numerous false statements made by the Village as a basis for finding False Claims Act violations. The Village stated in the Cooperation Agreement that it was required to sign in order to receive CDBG funds that “no person shall on the ground of race, color, sex, or national origin be excluded from participation in ... any program ... for which [the Village] receive[s] federal financial assistance and [the Village] will at all times take any measure necessary to effect this agreement,” Pi’s 3(g) St. ¶ 11, and marketed the Section 235 homes to ensure that no blacks would receive houses. Pi’s 3(g) St. ¶ 19. The Village also stated that it would cooperate in the County’s housing assistance activities, which included attempts to desegregate the County; despite Scully’s awareness of those statements, he thwarted the goals for minority occupancy in the Village that were set forth in the AFHMP. Pi’s 3(g) St. ¶ 11. Scully also wrote a letter to HUD in which he falsely stated, with the intent of misleading HUD, that the Village had used a “first-come, first-served selection process” in choosing recipients of the Phase II homes. Pi’s 3(g) St. ¶ 51. Additional false statements were made by the Village in a letter signed by Scully for Párente regarding the Village’s efforts to contact Phase II applicants in making selections for Phase III. Pi’s 3(g) St. ¶ 52. Thus, the Village’s fraudulent conduct caused false claims to be presented to the government by the innocent mortgagee on behalf of purchasers who were illegally selected in violation of the first-come, first-served requirements. 31 U.S.C. § 3729(a)(1), (a)(2). Fraudulent conduct and false statements remain inchoate until a claim for payment causing the government to disburse funds is made. United States v. McNinch, 356 U.S. 595, 599, 78 S.Ct. 950, 952-53, 2 L.Ed.2d 1001 (1958). The false statements or fraudulent conduct emerge “in full vigor” and become “a part of the claim as finally paid by the Government ...” when that claim is filed with the government. United States v. Klein, 230 F.Supp. 426, 442 (W.D.Pa.1964), aff'd, 356 F.2d 983 (3rd Cir. 1966). The allocation of the Section 235 houses pursuant to the fraudulent course of conduct described above resulted in the approval of HUD-subsidized mortgages with respect to those houses. When claims for payment on those mortgages are submitted by the innocent mortgagees, the fraudulent course of conduct pursuant to which the mortgages were approved emerge in “full vigor” and become a part of those claims, which therefore constitute false claims within the meaning of the False Claims Act. It is irrelevant that Lend-Mor, the lender who submitted the claims for mortgage subsidies is totally innocent. United States ex rel. LaValley v. First National Bank of Boston, 707 F.Supp. 1351, 1352 (D.Mass.1988); United States v. Goldberg, 256 F.Supp. 540, 541-42 (D.Mass.1966); United States v. Stillwater Community Bank, 645 F.Supp. 18, 19 (W.D.Okla.1986); United States v. Ehrlich, 643 F.2d 634 (9th Cir.) cert. denied, 454 U.S. 940, 102 S.Ct. 474, 70 L.Ed.2d 247 (1981). Furthermore, a separate claim for liability under the False Claims Act exists with respect to each monthly mortgage subsidy claim submitted by Lend-Mor. In United States v. Ehrlich, supra, the Ninth Circuit held that each monthly demand for payment submitted to HUD by an innocent mortgagee constituted a separate False Claims Act violation, where the underlying contract was entered into based on defendant’s misrepresentations. This holding was implicitly adopted by the Second Circuit in U.S. ex rel. Kreindler & Kreindler v. United Technologies Corp., 985 F.2d 1148, 1157 (2d Cir.), cert. denied, — U.S. -, 113 S.Ct. 2962, 125 L.Ed.2d 663 (1993). In Kreindler, the court held that the number of assertable False Claims Act claims is measured by the number of fraudulent acts committed by the defendant. In support of this proposition the Kreindler court quoted Ehrlich, 643 F.2d at 638 (“if a person knowingly causes a specific number of claims to be filed, he is liable for an equal number of forfeitures”), as well as United States v. Bornstein, 423 U.S. 303, 96 S.Ct. 523, 46 L.Ed.2d 514 (1976). The Village Defendants argue that the Kreindler court’s reliance on Bomstein compels a conclusion that the demand for mortgage subsidies are not claims within the meaning of the False Claims Act. This reading of Bomstein is incorrect. In Bomstein, a subcontractor had supplied defective radio tubes to a prime contractor who was supplying radios to the government. The tubes, which were supplied under three invoices, were used to assemble radio kits which the prime contractor then supplied to the government under thirty-five invoices. In holding that the subcontractor could only be liable for three, rather than thirty-five, violations of the False Claims Act, the Supreme Court noted that the number of claims submitted by the prime contractor was “completely fortuitous and beyond [the subcontractor’s] knowledge or control.” 423 U.S. at 312, 96 S.Ct. at 529. Thus, Bomstein did not recharacterize the invoices submitted by the innocent prime contractor as something other than claims, but limited the number of penalties to which the subcontractor could be liable as a result of those claims. Furthermore, the reasoning of Bomstein is inapplicable in determining the number of False Claims Act violations in the instant case in which the fraudulent conduct and false statements of the Village caused the innocent mortgagee to submit a readily ascertainable number of claims for mortgage payments. The facts in this case parallel those in Ehrlich, in which the defendant’s original fraudulent act caused HUD to enter into a contract with an innocent mortgagee, pursuant to which HUD was required to pay monthly mortgage subsidies. The Ninth Circuit explained: [Bomstein] suggests that, if a person knowingly causes a specific number of false claims to be filed, he is liable for an equal number of forfeitures. In the absence of such knowledge, using the number of claims to determine the number of forfeitures would be arbitrary. Where such knowledge is present, however, it is consistent with the purposes of the Act to impose forfeitures based on the number of claims. 643 F.2d at 638. Kreindler adopts the Ninth Circuit’s interpretation of Bomstein, quoting the very language which compels the conclusion that the Village Defendants are liable for a separate False Claims Act violation for each claim for a mortgage subsidy which the innocent mortgagee submitted as a result of the Village’s fraudulent conduct, notwithstanding the Village Defendants’ attempt to recharacterize those claims as “contracts.” February 11, 1993 Letter, p. 4. Furthermore, under Kreindler, “as to each such claim [for payment of a mortgage subsidy], the six-year statute of limitations period of § 3731(b)(1) ‘begins to run on the date the claim is made, or, if the claim is paid, on the date of payment.’” Supra, at 1157 (quoting Blusal Meats, Inc. v. United States, 638 F.Supp. 824, 829 (S.D.N.Y.1986), aff'd 817 F.2d 1007 (2d Cir.1987)). Thus, the government’s claims under the False Claims Act are timely with respect to each claim for a mortgage subsidy payment, and each payment of CDBG funds to the Village, after March 22, 1984. Kreindler also held that the government’s knowledge of the falsity of a claim does not automatically bar the claim for a False Claim Act violation. In rejecting the defendant’s claim that government knowledge of a claim’s falsity automatically bars any False Claims Act action, the court adopted the Ninth Circuit’s holding in United States ex rel. Hagood v. Sonoma County Water Agency, 929 F.2d 1416, 1421 (9th Cir.1991), that if the defendants knowingly presented or caused to be presented false or fraudulent claims, then it is not a defense that the government officials also knew the claims were false but continued to pay the claims. Kreindler, 985 F.2d at 1156. Although government knowledge of the relevant information may show that the defendant had made full disclosure and did not submit false claims knowingly or with reckless disregard for the truth, that is not the instant case. The undisputed facts demonstrate that the Village Defendants knowingly caused false claims to be presented and that, after the government became aware of the underlying scheme, it continued to pay claims only because it had already become contractually bound to make those payments as a result of the defendant’s fraudulent course of conduct. In this situation, the rule of Kreindler and Hagood provides that government knowledge of the falsity of the claims is not a defense at all. The defendants further claim that the False Claims Act claims are preempted by the Fair Housing Act because the alleged false claims involve racial discrimination in housing and a failure to implement the requirements of the AFHMP regulations promulgated under Section 3608(e)(5) of the Fair Housing Act. The defendants cite United States v. Davis, 803 F.Supp. 830, 865 (S.D.N.Y.1992) in which Judge Conboy held that the government was precluded from pursuing claims under the False Claims Act and federal common law, despite allegations that contracts had been awarded to a subcontractor in exchange for bribes and kickbacks because those remedies were preempted by the more precisely drawn, detañed Anti-Kickback Act. However, this aspect of the district court’s decision in Davis was reversed by the Second Circuit, United States v. General Dynamics Corp., 19 F.3d 770 (2d Cir.1994), which adopted the view recently expressed by the Supreme Court that “[r]edundaneies across statutes are not unusual events in drafting, and so long as there is no ‘positive repugnancy’ between two laws, a court must give effect to both.” Connecticut National Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) (quoting Wood v. United States, 41 U.S. (16 Pet.) 342, 363, 10 L.Ed. 987 (1842)). Thus, whether or not the acts that form the basis for the False Claims Act violations also form the basis for Fair Housing Act violations is irrelevant. As the Second Circuit has stated: We “are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary to regard each as effective.” 417 U.S. 535, 551, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974). See also Romano v. Luther, 816 F.2d 832, 840 (2d Cir.1987). Local 1814, International Longshoremen’s Ass’n, v. New York Shipping Ass’n, 965 F.2d 1224, 1237 (2d Cir.), cert. denied, — U.S. -, 113 S.Ct. 406, 121 L.Ed.2d 331 (1992). In fact, Congress specifically recognized the possibility that False Claims Act violations may involve the violation of some other federal statute or regulation. The Act’s legislative history indicates that it was intended to cover “each and every claim submitted under a contract ... which was originally obtained by means of false statements or other corrupt or fraudulent conduct, or in violation of any statute or applicable regulation ...” S.Rep. No. 345, 99th Cong.2d Sess. at 9 (1986) (emphasis added), reprinted in 1986 U.S.Code Cong. & Admin.News, 5266, 5274. Thus, in view of the Second Circuit’s rejection of Judge Conboy’s decision in United States v. Davis, there is no support for the Vülage Defendants’ position that the government’s False Claims Act claims are preempted by the Fair Housing Act. Accordingly, the government is entitled to summary judgment against the Village Defendants under the False Claims Act for each mortgage subsidy payment made by HUD to Lend-Mor and each payment of CDBG funds made to the Village after March 22, 1984. C. False Claims Act Violations: Brady and Párente. The government bases its claim that Brady and Párente are hable for False Claims Act violations on the theory that Brady and Párente conspired with Scully, or the Village, to violate the Act — Brady by selecting purchasers in violation of the first-come, first-served selection principle and Párente by giving Scully a note telling him to give houses to Trustee McGinty’s sons. See Plaintiffs Renewed Memorandum of Law, pp. 55-57. The general principle that each co-conspirator is guilty for the acts of a co-conspirator applies to violations of the False Claims Act. See United States v. Bd. of Education, 697 F.Supp. 167, 177 (D.N.J.1988); United States v. Uzzell, 648 F.Supp. 1362, 1368 (D.D.C.1986). However, an essential element of any cause of action for conspiracy, including one brought under the provisions of the False Claims Act, is an “agreement among two or more persons to commit a crime ...” Blusal Meats, Inc. v. U.S., 638 F.Supp. at 828 (citing United States v. Martino, 664 F.2d 860, 876 (2d Cir.1981), cert. denied, 458 U.S. 1110, 102 S.Ct. 3493, 73 L.Ed.2d 1373 (1982)). Although the government has established certain acts committed by Párente and Brady which may have contributed to the Village’s False Claims Act violations, the government has failed to establish the existence of an agreement or meeting of minds among the alleged co-conspirators. Accordingly, there is a genuine issue of material fact that is fatal to the government’s motion for summary judgment against Brady and Párente based on violations of the False Claims Act committed by the Village Defendants. However, in view of the court’s rejection of the Village Defendants’ legal arguments in opposition to the government’s motion and the failure of Brady, Párente and McGinty to establish a lack of involvement in specific acts which may have resulted in False Claims Act violations, those defendants are not entitled to summary judgment dismissing those claims. D. The Government’s Remedy. Under 31 U.S.C. § 3729(a), civil penalties are to be imposed for each false or fraudulent claim that the Village Defendants caused to be presented, for each false statement or record used to get a false or fraudulent claim paid and for each conspiracy to defraud. 31 U.S.C. § 3729(a)(1), (2), (3). As discussed above, the government has failed to prove a conspiracy under the False Claims Act. The defendants are however liable for civil penalties with respect to each monthly mortgage subsidy claim submitted by LendMor since March 22, 1984 and for each false statement or record used to get a false or fraudulent claim paid. The government has requested that the court schedule an inquest to determine the precise amount of the' civil penalties for which the Village Defendants are hable. The determinations which must be made at that inquest are: (1) the number of mortgage subsidy claims submitted by Lend-Mor since March 22, 1984; (2) the number of false statements or records used to get a false claim paid since March 22, 1984; and (3) the damages sustained by the government because of the False Claims Act violations. The amount of damages sustained by the government includes ah the CDBG funds and Section 235 mortgage subsidies paid by the government since March 22, 1984. As a result of the Village Defendants’ fraudulent conduct, these funds were paid by the government to attain goals in contravention of HUD’s affirmative obligation to administer its programs to further the purposes of the Fair Housing Act, 42 U.S.C. § 3609, by inter alia ensuring equal access to “individuals of similar income levels ... regardless of race.” 24 C.F.R. § 200.610. The limited funds that were diverted by the defendants’ fraudulent course of conduct would otherwise have been available to HUD to further its goals. Accordingly, the amount of those funds is an appropriate measure of the damages sustained by the government. The government seeks treble damages as well as a penalty of between $5,000 to $10,-000 for each of the false claims. The 1986 amendments to the False Claims Act changed the civil penalties from double to treble damages and from $2,000 per claim to the range sought by the government. The false claims that are the subject of this action include both claims that predate these amendments, as well as claims made after the enactment of the 1986 amendments to the False Claims Act. The amount of the penalties for which the defendants are liable with respect to violations that pre-date the 1986 amendments depends on whether the False Claims Act amendments are applied retroactively. Neither the language of the statute nor its legislative history provide guidance as to Congress’ intention with respect to retroactive application of these amendments. See United States v. Murphy, 937 F.2d 1032, 1036-37 (6th Cir.1991). In Landgraf v. USI Film Products, — U.S. -, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), which concerned the retroactivity of provisions of the Civil Rights Act of 1991, the Court addressed the “apparent tension” between two principles of retroactivity — the rule that “a court is to apply the law in effect at the time it renders its decision,” Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974), and the contrasting rule that “Metro-activity is not favored in the law,” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 471, 102 L.Ed.2d 493 (1988). The Supreme Court concluded that, in the absence of clearly expressed legislative intent which requires retroactive application, a statute should not be applied retroactively if “it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Landgraf, at -, 114 S.Ct. at 1505. Thus, the increased penalty provisions would clearly not apply to any of the claims that predate the 1986 False Claims Act. Furthermore, although the action against the Village Defendants is timely with respect to claims made after March 22,1984, it is not at all clear that the increased penalties should apply to those claims. All of defendants’ conduct which forms the basis of those claims occurred prior to enactment of the 1986 amendments. Although that fraudulent conduct remained inchoate and emerged to render the claims false when made, under the rule expressed by the Court in Landgraf, it would be inappropriate to apply the treble damages and increased penalty provisions to increase defendants’ liability for conduct engaged in by defendants prior to the enactment of the 1986 amendments to the False Claims Act. III. Fair Housing Act. A. Village Defendants’ Liability for Scully’s Acts. The government bases its Fair Housing Act claims against the Village Defendants in large part on Scully’s acts in administering the Section 235 program. As discussed above with respect to the False Claims Act, the Village Defendants would be liable for these acts, because they were within the scope of Scully’s actual and apparent authority, under principles of respondeat superior. The applicability of respondeat superior to violations of the Fair Housing Act has been widely recognized. Chicago v. Matchmaker Real Estate Sales Center, Inc., 982 F.2d 1086, 1096 (7th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2961, 125 L.Ed.2d 662 (1993); Marr v. Rife, 503 F.2d at 740-42; United States v. Northside Realty Associates, Inc., 474 F.2d 1164, 1168 (5th Cir.1973), cert. denied, 424 U.S. 977, 96 S.Ct. 1483, 47 L.Ed.2d 747 reh’g denied, 425 U.S. 985, 96 S.Ct. 2192, 48 L.Ed.2d 810 (1976). Thus, these acts can form the basis of the Village Defendants’ liability under the Fair Housing Act. B. Fai