Petition — United States ex rel. Petrofsky v. Van Cott, Bagley, Cornwall & McCarthy

Riprem: Court, VU. a

: FILED

MAY 24 1979

MICHA; L RODAK, JR., CLERK

7 IN THE

SUPREME COURT OF THE UNITED STATES

“OCTOBER TERM, 1978

“ %8-1848

THEE SHRHES-B AMA LE! JULIUS PETROFSKY,

AND JULIUS PETROFSKY IN HIS OWN BEHALF,

Pettioners,

V

VAN COTT, BAGLEY, CORNWALL & McCARTHY, ET Al

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS FOR

[HE TENTH CIRCUITT.

Julius Petrofgty, pro se

for Pet 'S

4049 Balboa Street

San Francisco, Califorma

941?)

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No.

UNITED STATES OF AMERICA, EX REL. JULIUS PETROFSKY,

AND JULIUS PETROFSKY IN HIS OWN BEHALF,

; Petitioners,

V.

VAN COTT, BAGLEY, CORNWALL & McCARTHY, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT COURT OF

APPEALS FOR THE TENTH CIRCUIT.

Your petitioners, the United States of America ex rel. Julius Petrofsky and Julius

Petrofsky in his own behalf, respectfully petitions that a writ of certiorari be issued

to rewew the judgment of the United States Circuit Court of Appeals for the Tenth

Circuit entered in Case No. 1576 on December 21, 1977, rehearing denied on

January 24, 1978, which dismissed the lawsuit as untimely filed on the allegation

that the UNITED STATES isn't a (real) party in interest.

OPINIONS BELOW

The Opimons and Orders of the United States District Court, Centra! Division, of

and for the District of Utah, filed March 8, 1977 are unreported. Petitioner's

Complaint was dismissed based on the defendants’ (respondents’ herein) “MOTION

TO DISMISS” on the ground “that the Complaint fails to state a claim upon which

rewet can be granted”.

2

The unreported Court of Appeals Opinion (Appendix 1) was against the

Appellants (Petitioners herein}. It was claimed to have been based on Federal Rules

of Appellate Procedure, Rule 4ja}, that the appeal was untimely filed. That Opinion

affirmed Appellees’ (Respondents’ herein) argument (which wasn’t presented to the

U.S. District Court.) that the UNITED STATES wasn’t a party but merely an observer.

JURISDICTION

The Per Curiam Opinion by two judges to one was docketed on December 21,

1978. The Rehearing docketed on January 24, 1979 was denied by the panel.

Jurisdiction is conferred on this Court by the United States Code Title 28,

§1254(1).

QUESTIONS PRESENTED

1. Does the principle followed by the Supreme Court of the United States and

other Courts of Appeal that the United States of America is a real party in interest in

ex relator \awsuits prescribed by Title 31 U.S. Code §231, er seg, theFalse

Claims Act, apply to this action?

2. Was the Court of Appeals two-judge majority Opinion clearly erroneous that

the United States wasn't a [real] party in interest; therefore, asserting that the

appeal was untimely filed according to Federal Rules of Appellate Procedure, Rule

4la}?

3. Did the Opinion violate due process?

STATUTES INVOLVED

The relevant portions of the False Claims Acct, United States Code Title

31, § § 231-235, in the Complaint are § §231 and 232 (Appendix 2).

STATEMENT OF THE CASE

Under jurisdiction of the False Claims Act §232(6):

Except as hereinafter provided, such suit may be brought and

carried on by any person, as well as for himself as for the United

States, the same shall be at the sole cost and charge of such

3

person, and shail be in the the name of the United States, but shall

not be withdrawn or discontinued without the consent, in writing,

of the judge of the court and the United States attorney, first filed

in the case, setting forth their reasons for such consent; (Appendix

2)

and a portion of §232{C):

lf the Unixed States within said period (60) days shall enter an

appearance in such suit the same shail be carried on solely by the

United States; (Appendix 2}

petitions brought suit against repondents herein per § 232(B} in the United States

Court of and for the District of Utah.

The ex relator informer as petitioner sought recovery for the UNITED STATES of

AMERICA as well as for himself. The case was assigned to Judge Ritter. The same

petitioner as herein then filed with the United States Court of Appeals for the Tenth

Circuit a Petition for a Writ in the Nature of a Mandamus to disqualify Judge Ritter.

Despite the fact that Petrofsky was suing Willis Ritter in the State of Utah District

Court and had filed a previous petition for a Writ in the Nature of a Mandamus in

order to stop Ritter’s prevention of Petrofsky’s inspection of public court records,

the Writ was denied.

The appellees (respondents herein] filed a Motion To Dismiss on the ground that

the Complaint failed to state a cause upon which relief can be granted. Judge Ritter

didn’t act on the motion’ during the year (approximately| between the filing of the

defendants’ Motion To Dismiss and his death. Only a few days after his death, Judge

Winner became the presiding judge. Thereupon, on March 9, 1977, he granted the

Motion To Dismiss, so the lawsuit wasn't heard on its merits.

The evidences supportive for the Complaint are, for brevity, omitted from this

petition. Their relevaiice will be established when this Court remands the lawsuit on

the basis that the UNITED STATES is a real party in interest so that the appeal was

tmely filed.

"Judge Ritter, by acting not on the Motion to Dismiss, prevented due process for

the petitioners

4

in the Circunt Court's 21st day of December, 1978 Slip Opinion for its judgment in

(Covell No. 78-1576 (Appendix 1, pp. 4-5) by which it dismissed the Petitioners’,

UNITED STATES of AMERICA ex relator JULIUS PETROFSKY, lawsuit as untimely, is

that the Court introduced sua sponte “/n re 0 Bryan”, 399 F 2rd 916 (10th Cir, 1968}

and Masyland Cas Co v Conner, 382 F 2nd 13 (10th Cir 1967) then discounted thei

materiality its other cited case 1s United States v. Baker-Lockwood Mfg. Co. 138 +

—>

5

have the same ettect as if the action had been commenced in the

name of the real party in interest.

The United States Code Title $1

§231. Liability of persons making false

claims

2nd 48 (8th Cir. 1943), intra, t decided diametncally opposite Circuit Judge ’ Any person...who shall...present...for payment or approval,..any

Riddick’s case law therein claim upon or against the Government of the United States, or any

Federal Rules of Appellate Procedure: nasrinnys or officer therof, knowing such claim to be false,

ictitious, or fraudulent, or who, for the purpose of obtaining or

Rule 4. Appeal as of Right--When Taken aiding to obtain the payment or approval of such claim,...shall

forfeit and pay to the United States the sum of $2,000, and, in

a) Appeals in Civil Cases. Ina civil case...in which addition, double the amount of damages which the United States

an appeal is permitted by law as of nght from a district court to a may have sustained by reason of the doing or committing suich

court of appeals the notice of appeal required by Rule 3 shall be act, together with the costs of suit; anid such forfeiture and

hled with the clerk of the district court within 30 days of the date damages shall be sued for in the same suit.

. Oe ey ee ee eee < established that the United States is the real party in interest in actions by 11 for

nited States or an officer or agency thereof is a party, the notice

of appee! may be fied by enw perty within 60 deys of such entry false clams made on it (Appendix 2). The United States Supreme Court referred to

§231 in Opinion of the Court and in the case law as the False Claims Act;

apples to petitioners appeal having been fied more than 30 days and less than 60 Rainwater v. United States, 356 US 590, 2L Ed 2nd 996,998, 78 S Ct 946;

days on the basis that the UNITED STATES was @ real party in interest from the and United States v. Bornstein, 423 US 303, 46 L Ed 2nd 514,519, 96 S

commencement of the action according to Federal Rules of Civil Procedure Ct §23.

Rule 17. Parties Plainufl and Defendant; §232. Same; suits; procedure

Capacity (A) The several district courts of the United States, the several

(a) Real Party in Interest. Every action shall be , district courts of the Territories of the United States, within whose

prosecuted in the name of the real party in interest..|A]nd when a | jurisdictional limits the person doing or committing such act shall

statute of the United States so provides, an action for the use or | be found, shall wheresoever such act may have been done or

benefit of another shall be brought in the name of the United

States. No action shall be dismissed on the ground that it 1s not

prosecuted in the name of the real party in interest until a

reasonable tme has been allowed after objection for ratification of

commencement of the action by, ut joinder or substitution of real

party in interest, and such ratification, jornder, or substitution shall

committes, have full power and jurisdiction to hear, try, and

determine such suit.

(B) Except as hereinatter provided, such suit may be brought

and carried on by any person, as well for himself as for the United

States, the same shall be at the sole cost and charge of such

person, and shall be in the name of the United States, but shall not

be withdrawn or discontinued without the consent, in writing, of

the judge of the court and the United States attorney, first filed in

the case, setting forth thew reasons for such consent.

by its introduction, “Same,” establishes that the United States is the real party in

imerest because it 1 part and parcel of the False Claims Act as is § 231, for which

there isn't question that the United States is the real party in interest. US. Justice

Black's “Opimon of the Court” in United States ex relator Marcus v.

Hess, 317 U.S. 538,540 871 Ed 443,447, 63 SC 379,382 recognized that § § 231

and 232 are of one act by:

The petitioner, in the name of the United States and on his own

behalf brought this action under § 5438 and § § 3490-3493 (31

USCA § § 231-234) of the Revised Statutes.

Its supported by the case law therein. Justice Black also provided a similar Opinion

in United States v. New Orleans Chapter, A.G.C. of A. on

the relation of Samuel Ostrager, 317 US. 562, 87 LEd 459, 63S Cr

393; an action substantially the same as the Marcus case, supra

Although the United States hadn't intervened in the first two Marcus cases in

the U.S. District Court, 41 F. Supp. 197 and 43 F. Supp. 12, this Court “REQUESTED”

the (U.S) Solicitor General to file a bref amicus curiae when Marcus’ Petition for a

Writ of Certionian was filed for this Court's October Term, 1942. On Oct. 12, 1942 the

Petition...was granted and the United States’ bret amicus curiae was filed on 8 Dec

1942. This Court by its “Request” for the United States to file a bref amicus cunae

gave de facto, if not de jure, recognition of the United Status as a real party in

interest in actions such as this

United States v. Ward Baking Co., 376 US 327,11 Ld 2d 743,

84S Ct 763 (1964), 765, footnote 2 of Justice Goldberg's Opinion of the Court is

The companies were also charged with violation the False Claims

Act, Revised Statues § § 3490, 3491, 3492, 5438, as amended,

31 USC. § §231-233, denved from Act of March 2, 1863 This was

settled.

/

Please note that the United States was a party in interest even though there wasn't

an ex relator This action by an ex relator (Petrofsky| doesn’t make the United States

lass a party in interest even though the United States declined to appear, 1 didn't

“withdraw”? It is for the reason of § 232IC)

PAOVIDED, That if the United States shall fail to carry on such suit

with due diligence within 4 period of six months from the date of

its appearence therein, or within such additional time as the court

after notice may allow, such suit may be carned on by the person

bringing the same in accordance with clause (B) of this section

That clause also has:

In carrying on such suit the United States shall hot 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.

Therefore, as long as in the final analysis the United States has contro! of the

proceeding, or can appeal from the judgment it 1s a party in interest as decided in

Burrell et al. v. United States, 147 F 44,46 by Judge Ross

The terms ‘parties’ include all persons who are directly interested

in the subject-matter, who have right to. appeal from the judg-

ment

infact in United States ex rel. Thompson v. Havs, 432 F Supp

253 (1976), 255 the United States was permitted to enter a special appearance” in

an action under the False Clams Act, 31 USC. § § 231-232.

This Court of Appeals for the Tenth Circut in Boeing Airplane

Company v. Perry, 322 F.2d 589,591 (1963) case law [1,2| by Murrah, Chret

Judge, held

And, the ‘real party in interest’ 1s the one, who under applicable

substantive law, has the legal nght to bring the suit

®Spe Appendix |, p 5

)

The False Claims Act clearly provides not only that the United States has the

legai night to bang the suit butt goes sa tar under § 292(C)(2) as 10 determine an ex

relators share of the recovery FOR THE UNITED STATES by

In any such sui not carned on by the United States as herein

provided,... the court may award to the person who brought such

suit and prosecuted it to final wdqment, or to settlement, as

provided in clause (B).?

in Curtner Et Ab. vo United States, 149 US. 890,893, 1s

But we are of the opinion that since the right of the government of

the United States to institute such sat depends upon the same

general principles which would authorize a private citizen to apply

10 a court of justice for relief against an instrument obtained fromm

him by fraud, or deceit, or any of those practices which are

admitted to justify a court in granting relief, the government must

show that like @ private individual, it has such an interest in the

relief sought as entitles 1 to move in the matter

This petition’s action involved the conditions set forth immediately above except

that it is by an ex relator for the United States per Title 31, § §231 and 232

That government as a real party in interest is also discussed by Judge Sanborn in

United States v. DeQueen & Eastern R.R. Co., 271 F 2nd

997,599, case law |1|

Reduced to its simplest times the situation as we see it, 1s that the

defendent has in its possession unearned Government funds

which were paid to it by mistake, and which it has no legal night to

retain...

This action ts of tar great public interest even though the Government for reason

Hf its OWN merely deciined to appear in a matter of fraud; not just mistake, as

ibove

—_——————

| Appendix ? b

: It involves a corrupt US. Chet Judge which was a thorn in the side of the US

Uepartment of Justice's Crmina! Division

)

in United States v. Baker- Lockwood Mfg. Co. Inc. etal,

infra, Appendix 1, Judge Riddick, p. 51, case law |1,2]

THE UNITED STATES IS NOT ONLY A PARTY ON THE RECORD IN

THE NATHANSON SUIT, IT IS A REAL PARTY IN INTEREST, AND, AS

SUCH, WE THINK IT HAS A RIGHT 10 APPEAR AND BE HEARD IN

THE PROTECTION OF ITS INTERESTS. jemphasis ours}

This Court’s mandate No. 560, Feb. 7, 1944, 321 US. 744 & 746, 88 L Ed 1048 %

1049, occasioned the appearance of the United States in the Baker- Lockwood case

per relevant docket entnes of Appendix 3.

The affirrnative answer to the questions 1s best answered by Judge Logan's

dissent Appendix 1, p. 6}

LOGAN, Circuit Judge, dissenting:

With respect, | must dissent in this case. I

agree with the reasoning of Judge Friendly

quoted in the majority opinion. The harm in

applying a 30-day requirement is that an

appeal is denied because an attorney (or here

a pro se litigant) read the statute literally,

without recognizing the distinctions Courts

have drawn between cases where the govern:

ment is considered to be a real party in

interest and those where itis a nominal party.

The only social cost in applying a permissive

or liberal reading of the statute is that parties

in these actions have 30 extra days to prepare

onappeal, and an appellate court will have to

(reat on its merits a case which it could

otherwise dismiss. Lam not anxious to add to

our caseload, but believe that the narrow

reading “introduces an element of uncertain:

isin the very critical, because regarded as

jurisdictional, area ofthe time forappeal, and

W

Hooupght not find faver” 9 Moore's Federal

Practice J 204.10, at 924 (2d ed. 7). | would

choose a broad reading of Fed. R.App.P. 4a),

making the 60-day pernod applicable.

IMPORTANCE OF THE QUESTIONS

The question here is whether the plain language of the

statute is to be yudicially limited and in large part nullified

by a Rule technicality. No other legislation confers the

right to recover penalues and double damanges for

frauds in connection with claims against the United

States. The pressing need for such a remedy for this

specific evil has been recently recognized in this Court.

See United States v. Cooper Cop, 312 U.S. 600,614. Judicial

recognition of the plain intent of Congress and the

preservation of the remedies and safeguards created by it

require that the decision of the court below be brought

here for review.

Where it is respectfully submitted that this petition for

ceruorari should be granted and that a mandate for

remand is issued as in the Baker-Lockwood case, supra.

Mav 21, 1979 Julius Petrotsky, pro se

4049 Balboa St.

San Francisco, Cal. 94121

= 7

A

APPENDIN 1

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUTI

UNITED STATE of Amenca

UNITED STATES of America

ex relator JULIUS PETROFSKY,

Piaintifts- Appellants,

V

VAN COTT, BAGLEY, CORNWALL,

McCARTHY, a Utah law firm

which is also a Utah corporation,

and Utah attorneys. C KEITH

ROOKER, CLIFFORD ASHTON,

ROBERT M ANDERSON, GRANT

H BAGLEY, DENNIS McCARTHY, No 78-1576

RAY G. MARTINEAU, RICHARD

W GIAUQUE, BRENT GIAUQUE,

RICARDO 8 FERRARI, HALDOR

T BENSON, SCOTT & SAVAGE,

DALE A KIMBALL, SRANI

MACFARLANE, JR, CHRIS

WANCSGARD, and

DAVID GREENWOOD,

and JOHN DOE #1 through

JOHN DOE #10,

Defendants-Appellees

2

Appeal From the United States Distnet Court

For The Central District of Utah

0-77-0045

Appellant Julius Petrotsky filed a pro se memorandum in support of jurisdiction

Oee V Benson of Snow, Christensen & Martineau, Salt Lake City, Utah, filed a

memorandum in support of dismissal

Before McWILUIAMS, BARRETT and LOGAN, Circunt

Judges

PER CURIAM

Appellant Julius Petrotsky brought a pro se action against a Salt Lake City law

firm under the False Clams Act, 31 USC. § 231. Private individuals may sue under

this Act in the name of the United States to uncover fraudulent claims made against

the United States. 37 USC. § 232(B) The statute requires the government join or

Aithdraw from the suit within 60 days. If the United States joins, it controls the

gation, if it withdraws, the person bringing the action may proceed individually

3) USA §232(C). The United States specifically declined to enter Petrotsky’s suit

and the action was dismissed by the United States District Court for the Central

Oistrict of Utah for failure to state a claim upon which relief may be granted. Exactly

0 days later Petrofsky appealed that dismissal to this Court

The issue 1s whether, under Rule 4{a) of the Federal Rules of Appellate

Procedure, “the United States or an officer or agency thereof is a party” to this

action, thereby extending to 60 days the 30-day time limit for filing appeals

More time to appeal is needed when the United States 1s a party because the

government must process its decision through internal channels before a decision

S made fairness dictates that opposing non-governmental parties be given’ the

same time 9 Moore's Federal Practice 4 204.10, at 924 (2d ed 7)

Ths crcuit has an established rule interpreting private actions under the Miller

Act, 10 USC §270 er seg, in the name of the Unried States as including the

a ee

3

government as a real party in interest Uniied States v Uowglas Constr Co, Ine, 941

F 2d 478 (VOth Cir 1976); Barnard-Curmss Co yv United States, 252 F 2d 94 (10th

Cir 1958) The rationale for these cases 1s stated in United States fidelity & Guat

Co. v United States, 204 US. 349,356 (1907)

The United States is not Here a merely nominal or formal party. It

has the legal night, was a principal party to the contract, and, in

view of the words of the statute, may be said to have an interest in

the pertormance of all ts provisions. It may be that the interests of

the government, as involved in the construction of public works,

will be subserved if contractors for such works are able to obtain

materials and supplies with certainty and promptly. To that end

Congress may have deemed it important to assure those who

furnish such materials and supplies that the government would

exert its power directly for thei protection.

Other cases have given Fed. RApp.P. 4(a) a broad reading because the rule is

stated in absolute terms as to any action involving the United States. Division of

Labor Law Enforcement v. Stanley Restaurants, 228 F.2d 420 (9th Cir. 1955). In

United States v American Society of Composers, Authors and Publishers, 331 F.2d

117,119 (2d Cit) cert demed 377 US. 997 (1964), Judge Friendly stated the

rationale for a broad reading under the predecessor rule, as follows:

It is in the last ded#ee undesirable to read into a procedural

Statute or rule, fixing the ime within which action may be taken, a

hidden exception or qualification that will result in the rights of

chents being sacrificed when capable counsel have reasonably

relied on the language Section 2107 of Title 28 and FR Civ Proc

73la) unequivocally allow ‘to all parties” 60 days to appeal in any

action “iy which the United States or an officer or agency thereof

iSa pany. The stated cutenon is whether the United States ts a

party to the action, a test clearly satsted here, and not whether

ihe United States 1s concerned with the particular order sought to

be appealed-—-something that often cannot be accurately

determined with the order is made

M4

Courts have not hesitated to apply the 30-day rule, however, when the United

States’ interest 1s tangential or nominal Consequently, thie Court dismssed an

appeal under Fed A App P. 4{a) when the appellant claimed the United States was a

party only because a federal district judge entorced his disbarment /n re O'Bryan,

499 2d 916 (10th Cir 1968) We also held to the same effect when the only United

States involvement was plainttt’s assertion of a len against a United States

corporation that was dismissed from the suit. Maryland Cas. Co v. Conner, 382 2d

13 (10th Cr 1967).

Petrofsky based his claim in the lower court on the False Claims Act That statute

was enacted during the Civi! War to encourage citizens to personally prosecute

instances of ‘aud perpetrated against the United States. It has received little

attention in modern history. Uniike our cases under the Miller Act, there 1s no clear

precedent to support a continuing governmental interest in these suits after the

United States has opted out. In fact, a case decided by the Eighth Circuit clearly

distinguishes the government's interest and that of the private lingant, and states

the government's interest cannot be affected by the plaintiffs actions. United

States v. Baker-Lockwood Mfg Co., 138 F2d 48 (8th Cir 1943)

The statute gives the government the option to prosecute the case itself, or

withdraw. Here the government withdrew Petrofsky knew this, and so did the

defendant. It was clear at that time the United States would net participate in the

suit and that proceeding in its name was merely a statutory formality While this

Court recognizes the need for an open interpretation of Fed RApp.P 4{aj to assure

innocent parties not be prejudiced by too strict a reading, the rule achieves no such

purpose in this case Ali parties were aware the government disclaimed any

participation in the suit and there are no other circumstances which indicate a need

for more than the usual 30 days to make the appeal For these reasons, we hold the

60-day provision inapplicable and dismiss the appeal for failure to file withwn the 20

day requirement of Fed R App P jal

LOGAN, Circut Judge, dissenting

With respect, | must dissent in this case | agree with the reasoning of Judge

Frendly quoted in the majorty opimon The harm in applying a dU) day requirement

15

is that an appeal is demed because an attorney (or here a pro se litigant) read the

Statute literally, without recognizing the distinctions courts have drawn between

cases where the government 1s considered to be a real party in interest and those

where it 1s a nominal party. The only social cost in applying a permissive or liberal

reading of the statute 1s that parties in these actions have 30 extra days to prepare

on appeal, and an appellate court will have to treat on its merits a case which it

could otherwise dismiss. | am not anxious to add to our caseload, but believe that

the narrow reading “introduces an element of uncertainty in the very critical,

because regarded as jurisdictional, area of the time for appeal, and it ought not find

favor” 9 Moore's Federal Practice §] 204.10, at 924 (2d ed. 7). | would choose a

broad reading of Fed RAppP. 4a), making the 60-day period applicable

APPENDIX 2.

Tithe 31, $231: Liability of persons making

false clans

Any person not in the military or naval forces of the United States, or in the

rulitia called inte or actually employed in the service of the United States. who shall

make or cause to be made, or present or cause to be presented, for payment or

approval, to of by any person or officer im the civil, military, or naval service of the

United States, any claim upon or against the Government of the United States, or

any department or officer thereof, knowing such claim to be false, fictitious, oF

fraudulent, of who, for the purpose of obtaining or aiding to obtain the payment or

approval of such claim, makes, uses, or causes to be made or used, any false bill,

recept, voucher, roll, account, claim, certiticate, affidavit, or deposition, knowing the

same fo Contam any fraudulent or fict'tous statement or entry, or who enters into

any agreement, combination, or conspiracy to defraud the Government of the

United States, or any department or officer thereof, by obtaining or aiding to obtain

the payment or allowance of any false or fraudulent claim, or who, having charge,

possession Custody, of control of any money or other public property used or to be

used in the rultary or naval service, who, with intent to defraud the United States or

willfu'y © conceal such money or other property, delivers or causes to be delivered,

to any other person having authonty to receive the same, any amount of such

16

money or other property less than that for which he received a certificate or took a

receipt, and every person authorized to make or deliver any certticate, voucher,

receipt, or other paper certifying the recept of arms, ammunition, provisions,

clothing, or other property so used or to be used, who mekes or delivers the same to

any other person without a full knowledge of the truth of the facts stated therein,

and with intent to defraud the United States, and every person who knowingly

purchases or receives in pledge for any obligation or indebtedness from any solder,

officer, sailor, or other person called into or employed in the military or naval service

any arms, equipments, ammunition, clothes, military stores, or other public

property, such soldier, sailor, officer, or other person not having the lawtul right to

pledge or sell the same, 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 by reason of the doing or committing such act, together with the costs of

suit, and such forfeiture and damages shall be sued for in the same suit.

RS. § §3490, 5438.

31, $232: Same; suits; procedure

\A) The several district courts of the United States, the several district courts of

the Territones of the United States, within whose jurisdictional limits the person

doing or committing such act shall be found, shall wheresoever such act may have

been done or committed, have full power and jurisdiction to hear, try, and deter-

mine such suit,

(B) Except as hereinafter provided, such suit may be brought and carried on by

any person, as well for himself as for the United States, the same shall be at the sole

cost and charge of such person, and shall be in the name of the United States, but

shall not be withdrawn or discontinued without the consent, in writing, of the judge

of the court and the United States attorney, first filed in the case, setting forth their

reasons for such consent.

IC) Whenever any such suit shall be brought by any person under clause (B) of

this section notice of the pendency of such suit shall be given to the United States

by serving upon the United States attorney for the district in which such States by

serving upon the United States attorney for the district in which such suit shall have

been brought 4 copy of the bill of complaint and by sending, by registered mail, or by

V7

certitied mail, to the Attorney General of the United States at Washington, District of

Columbia, a copy of such bill together with a disclosure in writing of substantially all

evidence and information in his possession matenal to the effective prosecution of

such suit, The United States shall have sucty days, after service as above provided,

within which to enter appearance in such suit. If the United States shall fail, or

decline in wating to the court, during said period of sixty days to enter any such suit,

such person may carry on such suit. If the Untied States within said period shall

anter appearance in such suit the same shall be carned 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 1 were

instituting the suit Provided, That if the United States shail fail to. carry on such suit

with due diigence within a period of sue months from the date of its appearance

therein, or within such additional time as the court alter notice may allow, such suit

may be cared on by the person bringing the same in accordance with clause (B} of

this section. The court shall have no junsdiction to proceed with any such surt

brought under clause (B) of this section of pending suit brought under this section

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 thereol, at the time such suit was brought, Provided however, That no

abatement shall be had as to a suit pending on December 23, 1943, if before such

suit was filed such person had in his possession and voluntarily disclosed to the

Atromey General substantial evidence and information which was not theretofore in

the possession of the Department of Justice

(0) In any suit whether or not on appeal pending December 23, 1943, brought

under ts section, the court in whieh such suit is pending shall stay all further

proceedings, and shail forthwith cause written notice, by registered mail, or by

certihed 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 im accordance with clause (C) of this section

{E}(1) In any such sunt, if carned on by the United States as herein provided, the

court may award to the person who brought such suit, out of the proceeds of such

suit or any settlement of any claim involved there:, which shall be collected, an

amount which in the judgment of the court 1s fair and reasonable compensation to

18

such person for disclosure of the information or evidence not in the possession of

the United States when such suit was brought. Any such award shall in no event

exceed one-tenth of the proceeds of such suit or any settlement thereof.

(2) In any such suit when not carried on by the United States as herein provided,

whether heretofore or herafter brought, the court may award to the person who

brought such suit and prosecuted it to final judgment, or to settlement, as provided

in clause (B} of this section, out of the proceeds of such suit or any settlement of any

claim involved therein, which shall be collected, an amount, not in excess of one-

fourth of the proceeds of such suit or any settlement thereof, which in the judgment

of the court is fair and reasonable compensation to such person for the collection of

any forfeiture and damages; and such person shall be entitled to receive to his own

use such reasonalbe expenses as the court shall find to have been necessarily

incurred and all costs the court may award against the defendant, to be allowed and

taxed according to any provision of law or rule of court in force, or that shall be force

in suits between private parties in said court: Provided, That such person shall be

lable for all costs incurred by himself in such case and shall have no claim therefor

on the United States.

AS. §3491; June 25, 1936, c. 804, 49 Stat. 1921; Dec. 23, 1943, c. 377, §1, 57

Stat. 608; June 25, 1948, c. 646, § §1, 32{bj, 62 Stat. 909, 991; May 24, 1949, c.

139, § 127, 63 Stat. 107; June 11, 1960, Pub.L 86-507, § 1{28),(29), 74 Stat. 202.

APPENDIX 3.

UNITED STATES DISTRICT COURT

Docket 1407

U.S. ex rel Lou Nathanson vs. Baker-Lockwood Mfg. Co.

Contnued from page 139

Mar. 23, 1944, Mandate from U.S. Supreme Court filed.

(remanding with instructions}.

Witnenteewneccee | et ee

19

Mar. 27, 1944, Entry of appearance of the United States,

and Notice of appearance and demand filed.

Apr. 26, 1944, Plaintiff's Motion to strike, etc. filed;

Suggestions in support filed, Request for oral

argument filed. Notice of filing motion filed.

May 16, 1944, Brief for the United Siates in opposition to

motion to strike the United States’ entry of

appearance filed.

May 16, 1944, Motion and Notice of motion; affidavit in

support of motion, memorandum in support of

motion filed. (cont to Page 148)

May 17, 1944, Affidavit of Irene H. McEntyre filed.

May 22, 1944, Plantiff's motion to strike appearance of

United States, and motion to dismiss argued,

submitted and taken under advisement.

May 29, 1944, Case passed.

June 23, 1944, Memorandum and order overruling motion to

strike appearance of the United States filed

Memorandum and order on motion to dismiss,

plantiff allowed 20 days to file counter affidavit.

July 20, 1944, Order dismissing case filed.

June 28, 1945, Motion of Continental Casualty Co. for order

approving payment of penalty of bond, etc. filed.

Order approving payment and discharging

bond filed.

20

ADDENDUM TO APPENDIX |

(inadvertently omitted by Clerk of the Court for first printing)

JANUARY TERM - January 24, 1979

Before Honorable Robert H. McWilliams, Honorable James £. Barrett and

Honorable James K. Logan, Circuit Judges

United States of America ex relator,

JULIUS PETROFSKY,

Plaintiff - Appellant,

VS.

VAN COTT, BAGLEY, CORNWALL, McCARTHY,

a Utah law firm and corporation; and

Utah attorneys: C. KEITH ROOKER,

CLIFFORD ASHTON, ROBERT M. ANDERSON, No. 78-1576

GRANT H. BAGLEY, DENNIS McCARTHY,

RAY G. MARTINEAU, RICHARD W. GIAQUE,

RICARD B. FERRARI, HALDOR T. BENSON,

SCOTT E. SAVAGE, DALE A KIMBALL,

GRANT MACFRALANE, JR., CHRIS WANSGARD,

and DAVID GREENWOOD; and JOHN DOE #1

through JOHN DOE #10,

Defendants - Appellees.

this matter comes on for consideration of the petition for rehearing tendered

for filing by the appellant on January 17, 1979

Upon consideration whereof, it is ordered that the petition for rehearing be

filed as of January 17, 1979.

It is further ordered that the petition for rehearing 1s denied.

Julius Petrofsky, pro se HOWARD K. PHILLIPS, Clerk

4049 Balboa St.

San Francisco, Cal. 94121 By Robert L. Hoecker

Chief Deputy Clerk