Alperstein v. United States
| Decision Date | 19 July 1961 |
| Docket Number | No. 18789.,18789. |
| Citation | 291 F.2d 455 |
| Parties | Louis I. ALPERSTEIN, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Martin S. Schwartz, Coral Gables, Fla., for appellant.
Alan S. Rosenthal, Howard E. Shapiro, Dept. of Justice, Washington, D. C., William H. Orrick, Jr., Asst. Atty. Gen., E. Coleman Madsen, U. S. Atty., Miami, Fla., for appellee.
Before TUTTLE, Chief Judge, and CAMERON and JONES, Circuit Judges.
The only question presented by this appeal is whether false statements of financial worth made in connection with a sworn application by a veteran for treatment for non-service connected illness in a United States Veterans Hospital are false "claims," "certificates," or "affidavits," used for the purpose of obtaining payment of a "claim upon or against the Government of the United States."1
With due deference to the views of the Court of Appeals of another Judicial Circuit, we cannot agree with the decision of the Court of Appeals for the Tenth Circuit in United States v. Borth, 266 F.2d 521, holding such affidavit and application not to be within the prohibitions of the Act. We are convinced that the filing of such false affidavit and application for hospitalization, involving as it does immediate outlay by the Government of substantial sums of money and the receipt by the patient of services, facilities, food and drugs of substantial cost to the Government, falls within the purview of the False Claims Act.
We cannot better state the facts or our views on the case in issue than did the District Court in its full and able opinion in the trial court. See 183 F.Supp. 584.
The judgment is affirmed.
The question presented by this appeal is exactly the same question as was presented to and decided by the Court of Appeals for the Tenth Circuit in United States of America v. Borth, 1959, 266 F.2d 521. In reaching the opposite result from that reached by the majority here, the Court of the Tenth Circuit wrote an opinion which I think is unanswerable and cited authorities which I think are controlling here, particularly United States v. McNinch, 356 U.S. 595, 78 S.Ct. 950, 2 L.Ed.2d 1001.
Based upon principle, backed by the Borth case and the authorities cited, it is my conviction that this case should be reversed and I respectfully dissent from the majority opinion affirming it.
Rehearing denied; Cameron, Circuit Judge, dissenting.
1 "Any person not in...
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...FCA because the value of the medical services, equipment, and medicines he received had a tangible financial value. Alperstein v. United States , 291 F.2d 455 (5th Cir. 1961). But see United States v. Borth , 266 F.2d 521, 523 (10th Cir. 1959) (reaching the opposite conclusion on similar fa......
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