U.S. ex rel. Petrofsky v. Van Cott, Bagley, Cornwall, McCarthy

• Decision Date: 24 January 1979
• Docket Number: No. 78-1576,78-1576
• Citation: 588 F.2d 1327
• Parties: 25 Cont.Cas.Fed. (CCH) 82,936 UNITED STATES of America ex rel. Julius PETROFSKY, Plaintiff-Appellant, v. VAN COTT, BAGLEY, CORNWALL, McCARTHY, a Utah Law Firm which is also a Utah Corporation; and Utah attorneys: C. Keith Rooker, Clifford Ashton, Robert M. Anderson, Grant H. Bagley, Dennis McCarthy, Ray G. Martineau, Richard W. Giauque, Brent Giauque, Ricardo B. Ferrari, Haldor T. Benson, Scott E. Savage, Dale A. Kimball, Grant Macfarlane, Jr., Chris Wangsgard, and David Greenwood, and John Doe # 1 through John Doe # 10, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1327

588 F.2d 1327

25 Cont.Cas.Fed. (CCH) 82,936

UNITED STATES of America ex rel. Julius PETROFSKY, Plaintiff-Appellant, v. VAN COTT, BAGLEY, CORNWALL, McCARTHY, a Utah Law Firm which is also a Utah Corporation; and Utah attorneys: C. Keith Rooker, Clifford Ashton, Robert M. Anderson, Grant H Bagley, Dennis McCarthy, Ray G. Martineau, Richard W Giauque, Brent Giauque, Ricardo B. Ferrari, Haldor T Benson, Scott E. Savage, Dale A. Kimball, Grant Macfarlane Jr., Chris Wangsgard, and David Greenwood, and John Doe # 1 through John Doe # 10, Defendants-Appellees.

No. 78-1576.

United States Court of Appeals, Tenth Circuit.

Submitted Sept. 7, 1978.

Decided Dec. 21, 1978.

Rehearing Denied Jan. 24, 1979.

Julius Petrofsky, pro se.

Dee V. Benson of Snow, Christensen & Martineau, Salt Lake City, Utah, for defendants-appellees.

Before McWILLIAMS, BARRETT and LOGAN, Circuit Judges.

PER CURIAM.

Appellant Julius Petrofsky brought a pro se action against a Salt Lake City law firm under the False Claims Act, 31 U.S.C. § 231. Private individuals may sue under this Act in the name of the United States to uncover fraudulent claims made against the United States. 31 U.S.C. § 232(B). The statute requires the government join or withdraw from the suit within 60 days. If the United States joins, it controls the litigation; if it withdraws, the person bringing the action may proceed individually. 31 U.S.C. § 232(C). The United States specifically declined to enter Petrofsky's suit and the action was dismissed by the United States District Court for the Central District of Utah for failure to state a claim upon which relief may be granted. Exactly 60 days later Petrofsky appealed that dismissal to this Court.

The issue is whether, under Rule 4(a) of the Federal Rules of Appellate Procedure, "the United States or an officer or agency thereof is a party" to this action, thereby extending to 60 days the 30-day time limit for filing appeals.

More time to appeal is needed when the United States is a party because the government must process its decision through internal channels before a decision is made. Fairness dictates that opposing non-governmental parties be given the same time. 9 Moore's Federal Practice P 204.10, at 924 (2d ed. 1975).

This circuit has an established rule interpreting private actions under the Miller Act, 40 U.S.C. § 270 et seq., in the name of the United States as including the government as a real party in interest. United States v. Douglas Constr. Co., Inc., 531 F.2d 478 (10th Cir. 1976); Barnard-Curtiss Co. v. United States, 252 F.2d 94 (10th Cir. 1958). The rationale for these cases is stated in United States Fidelity & Guar. Co. v. United States, 204 U.S. 349, 356, 27 S.Ct. 381, 383, 51 L.Ed. 516 (1907):

The United States is not here a merely nominal or formal party. It has the legal right, was a principal party to the contract, and, in view of the words of the statute, may be said to have an interest in the performance of all its provisions. It may be that the interests of the government, as involved in the construction of public works, will be subserved if contractors for such works are able to obtain materials and supplies with certainty and promptly. To that end Congress may have deemed it important to assure those who furnish such materials and supplies that the government would exert its power directly for their protection.

Other cases have given Fed.R.App.P. 4(a) a broad reading because the rule is stated in absolute terms as to any action involving the United States. Division of Labor Law Enforcement v. Stanley Restaurants, 228 F.2d 420 (9th Cir. 1955). In United States v. American Society of Composers, Authors and Publishers, 331 F.2d 117, 119 (2d Cir.) Cert. denied, 377 U.S. 997, 84 S.Ct. 1917, 12 L.Ed.2d 1048 (1964), Judge Friendly stated the rationale for a broad reading under the predecessor rule, as follows:

It is in the last degree undesirable to read into a procedural statute or rule fixing the time within which action may be taken, a hidden exception or qualification that will result in the rights of clients being sacrificed when capable counsel have reasonably relied on the language. Section 2107 of Title 28 and F.R.Civ.Proc. 73(a) unequivocally allow "to all parties" 60 days to appeal in any action "in which the United States or an officer or agency thereof is a party." The stated criterion is whether the United States is a party to the action, a test clearly satisfied here, and not whether the United States is concerned with the particular order sought to be appealed something that often cannot be accurately determined when the order is made.

Courts have not hesitated to apply the 30-day rule, however, when the United States' interest is tangential or nominal. Consequently, this Court dismissed an appeal under Fed.R.App.P. 4(a) when the appellant claimed the United States was a party only because a federal district judge enforced his disbarment. In re O'Bryan, 399 F.2d 916 (10th Cir. 1968). We also held to the same effect when the only United States involvement was plaintiff's assertion of a lien against a United States...