United States v. Johnston, Civ. No. 6528.

• Decision Date: 13 February 1956
• Docket Number: Civ. No. 6528.
• Parties: UNITED STATES of America, Plaintiff, v. Thomas A. JOHNSTON, Defendant.
• Court: U.S. District Court — Western District of Oklahoma

138 F. Supp. 525

UNITED STATES of America, Plaintiff, v. Thomas A. JOHNSTON, Defendant.

Civ. No. 6528.

United States District Court W. D. Oklahoma.

February 13, 1956.

Paul W. Cress, U. S. Atty., and George Camp, Asst. U. S. Atty., Oklahoma City, Okl., for plaintiff.

Young, Young & Young, Sapulpa, Okl., for defendant.

WALLACE, District Judge.

The Government brings this action under the false claims act, Title 31 U.S.C.A. § 231, to recover civil damages for salary payments made to the defendant while he was employed as a physician for the Department of the Air Force; and, urges that each salary check paid to the defendant constituted a false claim against the Government inasmuch as each check "was paid upon presentment by the defendant because the Government hired the defendant in reliance on his false representations as set forth in said application, and the Government paid each claim or voucher in the mistaken belief that the defendant was qualified and competent to render the services for which he presented the claims."¹

The following facts are undisputed: On June 4, 1953, in the federal district court for the Western District of Texas, San Antonio Division, the defendant pleaded guilty to an indictment charging him with knowingly and wilfully concealing a material fact in his "Application for Federal Employment — Standard Form No. 57, U. S. Civil Service Commission" by answering "no" to the question "Since your 16th birthday, have you ever been convicted, or fined or imprisoned, or placed on probation, or have you ever been ordered to deposit bail, for the violation of any law, police regulation or ordinance (excluding minor traffic violations for which a fine of $25.00 or less was imposed)?" when previously to such application on November 7, 1949, in the County Court of Jim Wells County, Texas, the defendant had pleaded guilty to the offense of "Illegal Practice of Medicine" and was punished by confinement in the County Jail for four hours and fined $50.² Upon these facts the defendant moves to dismiss; and, the Government moves for summary judgment.

The defendant asserts that the complained of acts do not fall within the purview of the relied upon statute inasmuch as a false, fictitious, or fraudulent application is not mentioned in the language of the statute.³ Moreover, the defendant urges that inasmuch as there is no complaint as to the quality of the services he rendered, and since he did actually perform work for the salary paid, the Government has not been damaged and the claims for salary cannot be deemed false or fraudulent.⁴

Under the instant enactment one "who shall make or cause to be made * * * any claim upon or against the Government of the United States * * knowing such claim to be false, fictitious, or fraudulent" becomes civilly liable to the Government. Admittedly, the statute is penal in character and should be strictly construed.⁵ Consequently, not every misrepresentation in an employment application would of itself lay a predicate for an action under this "false claims" section.⁶ However, such does not mean that a claim having its genesis in an employment application cannot fall within this statute's objectives. Where there are material misrepresentations which go directly to the competency and general qualification of the applicant to perform the applied for work and where clearly the applicant would not have been hired, or his employment continued, but for such misrepresentations, the claims for salary, under this continued state of concealment, are false and fraudulent and fall within this statute's scope. Thus, in the instant suit, although the Government's action was conceived in the employment application, the underlying basis of the Government's grievance is that the Government paid claims "in the mistaken belief that the defendant was qualified and competent to render the services for which he presented the claim"; and the lack of professional qualification and competency is the gist of the false and fraudulent claims.⁷ Moreover, in determining whether there were false and fraudulent misrepresentations touching qualification and competency, it is no defense to urge that the services actually rendered were satisfactory. The Government has the right to determine the class of persons with which it deals,⁸ and if it is clear that but for the misrepresentations and concealments the employee in nowise would have been employed or retained in such employment, submitted claims for salary must be considered corrupted with falsity and fraud.⁹

It is immaterial that the Government has not alleged, and doubtless, cannot prove the exact monetary sum it has been damaged by virtue of any such false claims. The statute in allowing $2,000 for each fraudulent claim amounts to a Congressional declaration of liquidated damages, and may be awarded when a false or fraudulent claim is established, without allegation or proof of specific damage.¹⁰

Although it is undisputed that the defendant failed to disclose in the application in question that he previously had pleaded guilty to the illegal practice of medicine, the court cannot say that such taken alone unequivocally establishes that the defendant was not professionally qualified to act as a physician and surgeon for the Government or that the Government would not have...