United States v. Borth, 6037.

• Citation: 266 F.2d 521
• Decision Date: 07 May 1959
• Docket Number: No. 6037.,6037.
• Parties: UNITED STATES of America, Appellant, v. James Howard BORTH, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

266 F.2d 521 (1959)

UNITED STATES of America, Appellant, v. James Howard BORTH, Appellee.

No. 6037.

United States Court of Appeals Tenth Circuit.

May 7, 1959.

Howard E. Shapiro, Atty., Dept. of Justice, Washington, D. C. (George Cochran Doub, Asst. Atty. Gen., Wilbur G. Leonard, U. S. Atty., Topeka, Kan., and Alan S. Rosenthal, Atty., Dept. of Justice, Washington, D. C., with him on the brief), for appellant.

Vincent L. Bogart, Wichita, Kan. (David J. Wilson, Meade, Kan., and W. D. Jochems, Wichita, Kan., with him on the brief), for appellee.

Before BRATTON, Chief Judge, PICKETT, Circuit Judge, and KNOUS, District Judge.

PICKETT, Circuit Judge.

The United States brought this action to recover damages and the $2,000 statutory forfeiture provided for under the False Claims Act, 31 U.S.C.A. § 231.¹ The trial court entered a summary judgment in favor of the defendant. The determinative question presented is whether a false statement of an honorably discharged veteran of the armed services of the United States, made for the purpose of obtaining admission and free medical treatment in a Veterans' Administration hospital, creates a liability under the aforesaid statute. We agree with the trial court that it does not, and that summary proceedings were appropriate.

The pleadings and the admissions therein establish that on the 21st day of January, 1955, the defendant, a qualified veteran, made application to the Veterans' Administration for free hospitalization and treatment of a non-service-connected disability. In a sworn statement, he answered "No" to the following question: "Are you financially able to pay necessary expenses of hospital or domiciliary care?"² Attached to his application was an addendum, prepared as required by Veterans' Administration regulations, which contained defendant's sworn statement that he had real property of the value of $70,000; liquid assets of $6,000; average monthly income for the last six months of $400, with personal expenses of $180. The real estate was subject to a $16,000 mortgage. The Government contends that the application for free service was a claim within the meaning of the False Claims Act, and that the property statement constituted a prima facie showing that the application, insofar as it asserted an inability to defray necessary medical and hospital expenses, was false. Defendant admitted that the reasonable value of the hospital service was $231.50.

In United States v. McNinch, 356 U.S. 595, 598, 78 S.Ct. 950, 952, 2 L.Ed.2d 1001, it was said that the False Claims Act is actually "a criminal statute" and its provisions "must be carefully restricted, not only to their literal terms but to the evident purpose of Congress in using those terms, particularly where they are broad and susceptible to numerous definitions." In determining what should be considered a "claim against the Government", the court quoted from United States v. Tieger, 3 Cir., 234 F.2d 589, 591, certiorari denied 352 U.S. 941, 77 S.Ct. 262, 1 L.Ed.2d 237, as follows:

"* * * `the conception of a claim against the government normally connotes a demand for money or for some transfer of public property.\'"

The court also relied upon United States v. Cohn, 270 U.S. 339, 46 S.Ct. 251, 70 L.Ed. 616,³ and United States v. Cochran, 5 Cir., 235 F.2d 131, certiorari denied 352 U.S. 941, 77 S.Ct. 262, 1 L.Ed.2d 237. See also United States v. St. Paul Mercury Indemnity Co., 8 Cir., 238 F.2d 594; United States ex rel. Brensilber v. Bausch & Lomb Optical Co., 2 Cir., 131 F.2d 545, affirmed 320 U.S. 711, 64 S.Ct. 187, 88 L.Ed. 417.

The application of the defendant sought no money or property of the Government. Its acceptance entitled him to free hospital service and medical care, but in no sense, to money or property. Of course this service had a value and was furnished by the United States at a substantial cost, but an application for this service was no more a claim for money or property than was the application for F.H.A. credit insurance in the McNinch case.⁴

Although the defendant, in his answer, offered to pay the reasonable value of the services as alleged in the complaint, the liability for this amount has not been presented and we do not consider or decide that question. The United States concedes that the Veterans' Administration has no power of determination of the applicant's ability to pay for his hospitalization, but must conclusively accept his sworn statement as sufficient evidence of that fact. Congress evidently intended that this situation should remain, as in 1953, as pointed out in the Government's brief, it specifically refused to give the Veterans' Administration power to investigate an applicant's ability to pay. Hearings, 83rd Cong., 1st...