United States v. Pittman, 11395.

• Decision Date: 07 January 1946
• Docket Number: No. 11395.,11395.
• Citation: 151 F.2d 851
• Parties: UNITED STATES v. PITTMAN et al.
• Court: U.S. Court of Appeals — Fifth Circuit

151 F.2d 851 (1945)

UNITED STATES v. PITTMAN et al.

No. 11395.

Circuit Court of Appeals, Fifth Circuit.

November 6, 1945.

Rehearing Denied January 7, 1946.

Francis M. Shea, Asst. Atty. Gen., Rawlings Ragland, Acting Head, Claims Division, Department of Justice, Joseph M. Friedman, Chief, War Frauds Civil Section, and George W. Meuth and J. Gregory Bruce, Attys., Department of Justice, all of Washington, D. C., and Jim C. Smith, U. S. Atty., and William H. Burton, Jr., Asst. U. S. Atty., both of Birmingham, Ala., for appellant.

J. K. Brockman, of Birmingham, Ala., for appellees.

Before SIBLEY and McCORD, Circuit Judges, and KENNAMER, District Judge.

SIBLEY, Circuit Judge.

A qui tam suit under R.S. § 3491, 31 U.S.C.A. § 232, was brought on August 5, 1943, by Charles M. Hewitt as relator in the name of the United States against the appellees. After R.S. § 3491 was amended by the Act of Dec. 23, 1943, 57 Stats. 608, and under the provisions of the amendment, the United States appeared in the suit and asserted a purpose to carry it on. The defendants-appellees moved to dismiss the suit (1) because the plaintiff Hewitt had not given notice to the Attorney General of the pendency of the suit as required by the Act, and (2) because the plaintiff had not disclosed to the United States or the Attorney General any information or evidence not already possessed, the court therefore having no jurisdiction under the Act. The district court dismissed the suit for want of jurisdiction, apparently on the second ground. The United States appeals.

As to the first ground of the motion, clause D of the amending Act relates to suits under R.S. § 3491 pending at its passage, and provides that "the court in which said suit is pending shall stay all further proceedings, and shall forthwith cause written notice, by registered mail, to be given the Attorney General that such suit is pending, and the Attorney General shall have sixty days from the date of such notice to appear and carry on such suit in accordance with clause (C)." This notice given by the court is, we think, the only notice necessary of a suit pending on Dec. 23, 1943. The notice required by clause C to be given by the plaintiff on bringing a suit after that date is not necessary. The notice given here seems to have been that ordered by the court on suspending proceedings under clause D. If any other or more formal notice was required than was given, its only purpose was to cause an appearance by the United States within sixty days, and that was accomplished in this case. The general appearance of the United States waived any defect in the notice given, just as such appearance by a defendant in an ordinary suit waives defects in process or the service thereof. The appellees were prejudiced in no manner.

The second ground of the motion presents greater difficulty. Clause D as above quoted indicates that the pending suits to which it applies are, after notice to the Attorney General, to be carried on in accordance with clause C which regulates new suits. Clause C states: "If the United States shall fail, or decline in writing to the court, during said period of sixty days (after notice) to enter any such suit, such person (i. e. the relator) may carry on such suit. If the United States within said period shall enter appearance in such suit the same shall be carried on solely by the United States. In carrying on such suit the United States shall not be bound by any action taken by the person who brought it, and may proceed in all respects as if it were instituting the suit: Provided, That if the United States shall fail to carry on such suit with due diligence within a period of six months from the date of its appearance therein, or within such additional time as the court after notice may allow, such suit may be carried on by the person bringing the same in accordance with clause (B) above. The court shall have no jurisdiction to proceed with any such suit brought under clause (B) or pending suit brought under Section 3491 of the Revised Statutes whenever it shall be made to appear that such suit was based upon evidence or information in the possession of the United States, or any agency, officer or employee thereof, at the time such suit was brought: Provided, however, That no abatement shall be had as to a suit pending at the effective date of this Act, if before such suit was filed such person had in his possession and voluntarily disclosed to the Attorney General substantial evidence and information which was not theretofore in the possession of the Department of Justice." (Italics added.) Clause (E) then provides for rewarding the relator for such disclosure in a suit taken over by the United States and successfully carried on or settled, in an amount fixed by the court not exceeding one-tenth of the proceeds; or an award of not exceeding one-fourth of the proceeds when not carried on by the United States, but by the relator.

The persons here sued proved by the relator and his attorney that when the latter brought this suit they had no information not in the possession of the United States and disclosed none to the Attorney General, but based the complaint on a federal indictment returned against the defendants and on nothing else. The district court thought the words of clause C denying jurisdiction to proceed under such circumstances were intended to...