United States v. Weekly Publications, 381.
| Decision Date | 28 July 1944 |
| Docket Number | No. 381.,381. |
| Citation | 144 F.2d 186 |
| Parties | UNITED STATES ex rel. RODRIGUEZ v. WEEKLY PUBLICATIONS, Inc., et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Morris D. Forkosch, of New York City, for Richard Rodriguez, relator-appellant.
Francis M. Shea, Asst. Atty. Gen., and James B. M. McNally, U. S. Atty., and Lawrence H. Axman, Asst. U. S. Atty., both of New York City (Joseph M. Friedman, Sp. Asst. to Atty. Gen., and Elihu Schott, Sp. Atty., Department of Justice, of Washington, D. C., of counsel), for the United States.
Before SWAN, AUGUSTUS N. HAND, and CLARK, Circuit Judges.
This is a qui tam action brought by the relator Rodriguez on November 18, 1943, for himself and the United States under the informer statute (Revised Statutes, §§ 3490-3493, 31 U.S.C.A. §§ 231-234) to recover $2,606,000 and statutory penalties, counsel fees and costs. The action is founded upon the claim that the defendants cheated the Post Office Department out of $1,303,000 by obtaining mailing rates for their publications which yielded that much less than the proper amount through false representations made to the Department. On December 23, 1943, Congress amended the Informer Statute by repealing § 3493 and by substantially reducing the maximum percentage of any recovery which might have been awarded to an informer under the prior statute and by enabling the court to fix the amount within limits which were lower than the 50% allowed before the amendment. The amendment provided that the court in which a suit is brought at the instance of the informer shall stay proceedings and cause written notice to be given forthwith to the Attorney General (who shall have sixty days to appear and carry on the suit) by sending to him a copy of the complaint together with substantially all information material to the effective prosecution of the proceeding. If the United States shall fail to enter an appearance within the period of sixty days or decline in writing to do so within that time the person bringing it may carry it on. But if the United States shall enter an appearance the suit shall be carried on solely by it. The amendment likewise states that the United States shall not be bound in its conduct of the suit by any action of 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 the suit with due diligence for 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" at the sole cost and charge of such person.
The amendment further provided that the court should have no jurisdiction to proceed with such a suit whenever it should appear that the suit was based upon evidence or information in possession of the United States at the time the suit was brought.
On December 9, 1943, and prior to the amendment of the act on December 23, 1943, the defendants moved to dismiss the complaint for insufficiency. This motion was heard by Judge Caffey. Before a decision could be rendered he was informed of the amendment. On January 6, 1944, a notice was served on the Attorney General informing him of the pendency of the suit and on January 17, 1944, Judge Caffey made an order staying proceedings therein until the further order of the court. On March 4, 1944 the United States Attorney entered an appearance for the United States as provided in the amendment.
On March 8, 1944 the relator moved in the District Court before Judge Bright for an order striking out and declaring void the notice of appearance of the United States and restoring the motion to dismiss the complaint to the District Court for decision. After argument of the motion to strike Judge Bright filed an opinion and made an order denying the motion and vacating the stay from which the relator has appealed.
The question confronting us at the outset is whether the order is appealable. This depends on whether it comes within the terms of Sections 128 and 129 of the Judicial Code.
Section 128, 28 U.S.C.A. § 225, provides that:
Section 129 of the Judicial Code, 28 U.S. C.A. § 227, provides that:
"Where, upon a hearing in a district court, or by a judge thereof in vacation, an injunction is granted, continued, modified, refused, or dissolved by an interlocutory order or decree, or an application to dissolve or modify an injunction is refused * * * an appeal may be taken from such interlocutory order or decree to the circuit court of appeals * * *."
We think it clear that the order here was not final. It did nothing but allow the intervention of the United States as a party in its own right pursuant to the terms of the amendment to the Informers' Act, rather than as a mere nominal party, for the amendment gave the United States no permanent status in its new capacity because control of the suit might be resumed by Rodriguez if the United States should fail to carry it on with due diligence...
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