Jankowitz v. United States

Nichols, Judge,

concurring in part, dissenting in part:

This pay case presents us with interesting puzzles. Though first inclined the other way, I am persuaded by Judge Bennett’s able analysis that the Civil Service Commission does not disapprove, but in fact recommends, that a person indicted for the reason Mr. Jankoiwitz was here should be suspended because of the indictment until the outcome of his trial. This assumes, of course, that the offense charged *508 had such a connection with the job situation that it would be irrational to expect useful or dependable work from the employee until the charges were resolved. Suspension being a proper course to have taken, the unsuccessful outcome of the trial, from the Government’s point of view, does not make the suspension from the beginning an “unjustified or unwarranted personnel action”. To hold otherwise would read into the statute what is not in it.

I have more difficulty than he does with United States v. Bornstein, 423 U.S. 303 (1976). This case construes the word “act” in the False Claims statute to mean the false assertion of the initial violator. This is for the purpose of counting the number of “acts” penalized at $2,000 per “act”, when the misstatements are passed onto the Government by a third party who may have been innocent. In Bomstein there were three false invoices by Bornstein’s company, a subcontractor, to the prime contractor, causing thirty-five by it to the Government. Held, by the majority, there were three $2,000 “acts”, not thirty-five. We must here construe the limitation provision Which is very much in pari materia and bars suit for the forfeitures after six years from the “acts”. How can we give the same word “act” a different meaning, employing ordinary and accepted techniques of statutory construction ?

The only persuasive reason is that the interpretation consistent with Bomstein produces an absurd result which Congress could not have intended. It would cause limitations to run on some $2,000 forfeitures before the Government’s claim even accrued. These results would occur in few cases and it is possible to argue, though not very persuasively, that Congress intended them. Plaintiff’s counsel did so argue.

I think the reasons not sufficient for a non-literal interpretation. It is true, in everybody’s favorite Supreme Court decision, Church of the Holy Trinity v. United States, 143 U.S. 457 (1892), it is said that statutes may be construed contrary to their literal language to avoid absurd results, contrary to the manifest intention of Congress. P. 459. But this is said in course of relieving the well-meaning but technically guilty church from a civil penalty. The authorities cited there deal with that situation. Thus at 459 Lord Coke is quoted:

*509 * * * “Acts of Parliament are to be so construed as no man that is innocent or free from injury or wrong be, by a literal construction, punished or endamaged.”

Here we are invited to fix up defective language to assess a penalty, not to relieve from one. In the very Bomstem decision that makes us the trouble, the Court notes at fn. 8, p. 813, that we are actually construing a criminal statute and that such provisions:

“* * * must be carefully restricted, not only to their literal terms but to the evident purpose of Congress in using those terms, particularly where they are broad and susceptible to numerous definitions.” (Citing United States v. McNinch, 356 U.S. 595, 598 (1958).)

I read this to mean that a False Claims Act penalty must meet a double test. The assessment must be within the literal language and it must be within the Congressional intent as judicially conceived. Therefore, the designated culprit is not liable for the penalty if the literal language does not cover the case, even though Congress may have wanted to cover it and thought it had done so. I am constrained to hold that limitations on the $2,000 claims have run.