United States v. Martin Tieger

234 F.2d 589, 1956 U.S. App. LEXIS 4702

• Court: Court of Appeals for the Third Circuit
• Decided: June 14, 1956
• Docket: 11591
• Status: Published

Opinions

HASTIE, Circuit Judge.

On motion, the district court dismissed for failure to state a cause of action¹ certain counts of a complaint wherein the United States sued defendant Tieger for a statutory civil penalty under the False Claims Act. R.S. §§ 3490, 5438, 31 U.S. C. § 231. This appeal² requires decision whether that which Tieger is alleged to have done is a violation of the False Claims Act.

Tieger is a realtor who, to enable his clients to borrow money needed for down payments on the purchase of property, is alleged to have misrepresented the proposed transactions as improvement loans on structures already owned by the borrowers. Each count is based upon a loan obtained by one of Tieger’s clients from a private lending institution and insured routinely by the United States as a property improvement loan, insurable under Title I of the Federal Housing Act.³

The essence of the complaint is that the United States was induced to guarantee repayment of the loan, thus changing its legal position detrimentally, by willfully false representations concerning the circumstances of the borrower and the intended use of the money, submitted by Tieger as part of the loan application with the intention that the United States, as well as the lender, should rely upon them. However, in each case, the loan was répaid in full by the borrower so that no claim was made upon the United States as guarantor.

In these circumstances the government contends that Tieger is liable under the following provision of the False Claims Act:

“Any person * * * who shall * * * cause to be presented, for payment or approval * * * any claim upon or against the * * * United States * * *, knowing such claim to be * * * fraudulent, or who, for the purpose of obtaining * .* * the payment or approval of such claim, makes, uses, or causes to be made or used, any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or fictitious statement or entry, * * * shall forfeit and pay to the United States the sum of $2,000, and, in addition, double the amount of damages which the United States may have sustained * * 31 U.S.C. § 231.

Only the statutory penalty is claimed, it being admitted that the United States has suffered no loss.⁴

It will be observed that this section covers both the presentation of a fraudulent “claim” against the United States for “payment or approval” and the use of false supporting documents to obtain “the payment or approval of such claim.” The latter alternative seems more nearly applicable to the present facts. Accordingly, we will treat this as a case in which the defendant is charged with using a “false * * * certificate” in order “to obtain the payment or approval” of a “claim upon or against the * * * United States.”

■ [2, 3] But whatever combination of words may seem most favorable to the government, the statute can apply to this case only if the government’s contractual undertaking to repay a private bank loan if the borrower should default, itself constituted the “payment or approval” of a “claim against the * * * United States.” We think this is a fair and accurate statement of the government’s legal problem. At the same time it reveals the inherent difficulty and weakness of the position the government has to take. For the conception of a claim against the government normally connotes a demand for money or for some transfer of public property. Believing that connotation applies here, we shall affirm the judgment below simply on the ground that when Congress legislated against fraud in connection with the “payment or approval” of “any claim upon or against the * * * United States” it did not cover fraud in inducing the United States to make a guarantor's promise, performance of which was conditioned upon an event which never occurred. True, the contract Tieger induced might have led to what would undoubtedly be considered a claim against the United States, but it never did.⁵ And certainly, there is no indication that Tieger intended or even anticipated any default by the borrower and consequent claim on the guarantor.

Actually, the alleged claim against the United States here is no more than the privilege of the lending bank, in such a case as the loan application falsely represented this to be, to negotiate a unilateral contract under which the bank pays a modest consideration and receives in return the promise of the United States to make good if a borrower shall default. It is possible to view this commercially advantageous privilege of exchanging a little money for such an aleatory promise as a claim. But this privilege of contracting certainly is not a claim in normal business or legal usage and terminology. For familiar example, a policy of life insurance often accords the owner during the life of the insured a privilege of converting the policy into a new and different contract. It seems as strange to describe the exercise of this privilege of contracting as a claim, as it is normal so to denominate an application for the sum payable upon the death of the insured.

Both the legislative history⁶ and certain language ⁷ of the False Claims Act point to the soundness of the construction which thus restricts “claim * * * against the * * * United States” to this conventional meaning of demand for money or property. But resort to these is unnecessary because the Supreme Court has so clearly stated its view of the matter.

United States v. Cohn, 1926, 270 U.S. 339, 46 S.Ct. 251, 70 L.Ed. 616, was a criminal prosecution in which one of the charges was the violation of the very provision now in suit, which then was effectuated and enforcible by a criminal as well as a civil sanction.⁸ Referring to this provision the court explicitly considered whether the conduct of the defendant amounted to “obtaining the approval of a ‘claim upon or against’ the Government, within the meaning of the statute [False Claims Act].” It then construed the decisive language of the statute, saying: “While the word ‘claim’ may sometimes be used in the broad juridical sense of ‘a demand of some matter as of right, made by one person upon another, to do or to forbear to do some act or thing as a matter of duty,’ Prigg v. Commonwealth of Pennsylvania, 16 Pet. 539, 615 (10 L.Ed. 1060), it is clear in the light of the entire context, that in the present statute, the provision relating to the payment or approval of a ‘claim upon or against’ the Government relates solely to the payment or approval of a claim for money or property to which a right is asserted against the Government, based upon the Government’s own liability to the claimant.” 270 U.S. at 345-346, 46 S.Ct. at page 252.

Seeking to minimize the force of this construction the government calls it “dictum”, meaning, apparently, that this construction was more restrictive than the exigencies of the case required. But, to an inferior federal court, such a plain statement of a statute’s meaning, adopted. by the Supreme Court as the basis of its decision is much more than “dictum”, however apparent it may seem to analysts that the court could have gone on a narrower ground, had it chosen to do so.

The district court correctly concluded that the statute deals only with false claihis upon the government for money or property and that no such claim is revealed in the counts which have been dismissed.

The judgment will be affirmed.

1 . As authorized by Rule 12(b) (6), Fed.Rules Civ.Proc., 28 U.S.C.

2 . Judgment was entered on 5 of 7 counts and appeal taken in accordance with Rule 54(b), Fed.Rules Civ.Proe., 28 U.S.C.

3 . Since 1934, Title I of the National Housing Act, 48 Stat. 1246, 12 U.S.C.A. 1701 et seq., has authorized the Federal Housing Administrator to insure qualified lending institutions against losses on certain types of real property'improvement loans. ' Tn practice an institution first qualifies with the - administrator and receives a general undertaking of the government to make good any losses on a certain category of business up to a stated maximum. When the institution makes a particular loan, it submits all required data on the transaction to the administrator who, if the transaction is in order, then acknowledges it for insurance and makes the appropriate charge against the institution for this protection.

4 . This court has recognized that a false claim may be actionable though in the given case the- government ,h.as not been injured by its assertion. United States v. Rohleder, 3 Cir., 1946, 157 F.2d 126.

5 . Contrast United States ex rel. Marcus v. Hess, 1943, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443, where the gravamen of the offense was not merely inducing the United States to enter into a contract pursuant to collusive bidding, but, beyond that, the development of the transaction to the point where the government could be and was confronted with a demand for payment in performance of the contract.

6 . See the Senate debate, Cong.Globe, 1803, 37th Cong., 3d Sess. 952-8 and tlie House Report, H.R.Rep. No. 2, 37th Gong., 2d Sess., which preceded the passage of the original Act of March 2, 1803, C. 67, 12 Stat. 69G, from which the presently questioned language of the False Claims Act is derived. This legislation during the grimmest days of the Civil War was the aftermath of great scandal in military procurement and a legislative investigation which had confirmed charges of widespread and corrupt profiteering in the acquisition and disposition of supplies and •material, including much rather informal transaction of business in and with field commands. The submission of false bills and vouchers to support the payment of money and other transfer of property was a characteristic means of perpetrating such wrongs. So, in drafting remedial legislation Congress used language decriptive of this kind of cheating. For brief discussions of the statutory history, see United States ex rel. Marcus v. Hess, 3 Cir., 1942, 127 F.2d 233, 235-236; Note, 1956, 69 Harv.L.Rev. 1106, 1107.

7 . The “claim” must be presented for “payment or approval.” This describes the usual procedure in making a demand for money or property but is not an apt characterization of what is done in calling upon another to enter into a contx-act.

The enumeration of false tokens supporting false claims specifies “any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition.” Here too the types of token are those which normally support a demand for money or property but are unusual where the making of a contract is the transaction in view.

8 . The bnsie language of the False Claims Act and the supporting criminal sanction then in force appeared in Section 35 of the Penal Code, as amended by the Act of October 23, 1918, C. 194, 40 Stat. 1015.

The analogous present criminal sanctions appear in 18 U.S.C. §§ 286, 287.