United States v. Gable
Decision Date | 15 April 1963 |
Docket Number | Civ. No. 9078. |
Citation | 217 F. Supp. 82 |
Parties | UNITED STATES of America v. Sidney B. GABLE. |
Court | U.S. District Court — District of Connecticut |
Robert C. Zampano, U. S. Atty., New Haven, Conn., Irving H. Perlmutter, Asst. U. S. Atty., New Haven, Conn., for plaintiff.
W. Paul Flynn, of Kopkind & Flynn, New Haven, Conn., for defendant.
Defendant's motion to dismiss, pursuant to Rule 12(b) (2), Fed.R.Civ.P., and plaintiff's motion to substitute a party defendant, pursuant to Rule 25(a) (1), Fed.R.Civ.P., raise the question whether a cause of action under the forfeiture and damage provisions of the False Claims Act1 is penal in nature, hence not surviving death of defendant, or is civil in nature, hence surviving such death.
This Court holds such cause of action is civil in nature and does survive death of defendant. Accordingly, defendant's motion to dismiss is denied; plaintiff's motion to substitute defendant's administratrix as party defendant is granted.
Plaintiff commenced this action December 8, 1961 to recover expenses incurred by the Veterans Administration for hospital treatment or domiciliary care of defendant who claimed he was not able financially to pay such expenses. Plaintiff alleges such claim was false in that defendant was able to pay such expenses.
Defendant died April 2, 1962. The pleadings were not closed. Interrogatories had been propounded by defendant but not answered by plaintiff.
Rosylin P. Gable was appointed administratrix of defendant's estate April 26, 1962 by the Probate Court for the District of Stamford; she has qualified and is acting in that capacity.
This case is controlled, in the opinion of this Court, by United States ex rel. Marcus v. Hess, 317 U.S. 537, 550-552, 63 S.Ct. 379, 87 L.Ed. 443 (1943), where the Supreme Court held the forfeiture and damage provisions of the False Claims Act constituted a civil sanction and were remedial only.2
The Court of Appeals for the Second Circuit, on the other hand, in United States ex rel. Brensilber v. Bausch & Lomb Optical Co., 131 F.2d 545, 547 (2 Cir. 1942), aff'd by an equally divided Court, 320 U.S. 711, 64 S.Ct. 187, 88 L. Ed. 417 (1943), has held this statute "* * * not only penal but drastically penal."3
The Brensilber case was decided by the Second Circuit November 5, 1942.4 The Marcus case was decided by the Supreme Court January 18, 1943.5 The Brensilber case was affirmed by an equally divided Supreme Court November 8, 1943 in a per curiam decision.6 Despite the Supreme Court's affirmance of the Second Circuit's decision in Brensilber subsequent to the Supreme Court's decision in Marcus, the latter remains as the controlling law. The Supreme Court's affirmance of Brensilber by a divided court, while conclusive upon the parties thereto, cannot be invoked as stare decisis; and certainly cannot be construed as overruling Marcus, absent an express holding to that effect.7
If free to choose between the Marcus and Brensilber decisions, this Court would follow the Second Circuit decision in Brensilber, believing its construction of the forfeiture provisions of the False Claims Act as penal in nature to be correct. If free to indulge in crystal ball reading,8 this Court is not so sure that the presently constituted Supreme Court would reach the same result as was reached in Marcus two decades ago.
Being free neither to exercise such choice nor to indulge in such speculation, this Court, reluctantly, follows what it believes to be the controlling authority of the Supreme Court decision in Marcus.9
Since this case presents a controlling question of law as to which there is substantial ground for difference of opinion and an immediate appeal from this Court's order may materially advance the ultimate termination of this litigation, a certificate pursuant to 28 U.S.C. § 1292 (b) has been issued.
2 Other cases which have held these forfeiture provisions civil in nature include United States v. Grannis, 172 F.2d 507 (4 Cir. 1949), cert. denied, 337 U.S. 918, 69 S.Ct. 1160, 93 L.Ed. 1727 (1949); United States v. Posner, 269 F.2d 742 (3 Cir. 1959), cert. denied, 361 U.S. 931, 80 S.Ct. 369, 4 L.Ed.2d 353 (1960); United States v. Templeton, 199 F.Supp. 179 (E.D.Tenn.19...
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United States v. Ridglea State Bank
...be awarded even in the absence of actual damage, the forfeiture provision is penal and must be strictly construed); United States v. Gable, 217 F.Supp. 82 (D.Conn. 1963) (action for forfeiture and double damages is civil, not penal, and hence survives the death of the What is important for ......