# Reply Brief — United States v. Halper > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0655%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1989 - **Citation:** 490 U.S. 435 ## Text In the Supreme Court of the United States OcToser Term, 1988 UNITED STATES OF AMERICA, APPELLANT Vv. IRWIN HALPER ON APPEAL FROM THE UNITED STATES DISTRICT COURT : FOR THE SOUTHERN DISTRICT OF NEW YORK : REPLY BRIEF FOR THE UNITED STATES CHARLES FRIED Solicuor General Deparimeni of Justice Washington, D.C. 20530 (202) 633-2217 TABLE OF AUTHORITIES Cases: Page Albernaz +. United States, 450 U.S. 333 (1981) ? Breed vy. Jones, 421 U.S. S19(1975). 29 Browning-Ferris Industries ¥. Kelco Disposal, Inc, cor granted, No. 88-556 (Dec. $, 1988) 17 Coffey v. United States, 116 U.S. 436 (1886) 6 Flemming v. Nestor, 363 U.S. 603 (1960) 7 Garrett ». United States, 471 U.S. 773 (1985) ? Green v. United States, 385 U.S. 184 (1957) 3 Helvering ¥. Michell, 903 U.S. 991 (1938) 12.3,4.6 Kennedy v. Mendova-Martinez, 372 U.S. 144 (1963) 14 Missouri v. Hunter, 499 U.S. 3991983) ? One Lot Emerald Cut Stones +. Untied States, 08 US. Ee ee ; Rainwater v. United States, 356 US. 990 (1958) 14-15 Rex Trailer Co. v. United States, 950 U.S. 148 (1956) 3, 4, 12, 13, 6 Tull v. United States, No. 85-1259 (Apr. 28, 1987) 9 United States ». Bornstein, 423 US. 303 (1976) 14 United States ». Chouteau, 102 U.S. 603 (1881) 6 United States v. La Franca, 232 US. S68 (1931). 4.6 United States v. Neifert-White Co., 990 U.S. 228 (1968) 14 United States v. One Assortment of 89 Firearms, 465 US. EN ate ce keds cade 2, 6, United States ¥. Ward, 448 US. 242 (1980) 29 United States v. Wilson, 420 U.S. 332 (1975) ; United States ex rel. Marcus ». Hess, MIT US. S37 (194)) | na aS .... 4 4,6, 10, 11, 1S, 16 Constitution and statutes: U.S. Const. Amend. V (Double Jeopardy Clause) pussemn Act of Mar 2, 1863, ch. 67, § 3, 12 Stat. 698 7, 1S False Claims Act, 31 U.S.C. 3729 ef seg. 2, 7, 8, 10, 12, 14, 18, 16 isusc. is ? NUSC. U9 ed)} 6 NUSC (Supp IV) dhe) LU) Mis cilaneous Cong. Globe, 37th Cong., 3d Sess. (1863): pp. 1322-1323 ,eecesonnnaee 1B J. Moore, J. Lucas & T. Currier, “Moore's Federal Praction 26 o8. UOGED « .... . «5. onc nnnscccceccsceses J. Sigler, Double Jeopardy (1969) ,ececesesnasssaneeel Westen, The Three Faces of Double Jeopardy Reflections on Government Appeals of Crumnal Sentences, 7% Ritch, 0. Row. SEBS GOGBED ... oon ccccccccccccscccses 18 C. Wright, A. Miller & E. Cooper, Federal Practice end Procedure (1981) Jn the Supreme Court of the United States OCTOBER TERM, 1988 No. 87-1383 UNITED STATES OF AMERICA, APPELLANT V. IRWIN HALPER ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK REPLY BRIEF FOR THE UNITED STATES As the Court, speaking through Justice Brandeis, wrote 50 years ago, “Congress may impose both a criminal and a civil sanction in regard to the same act or omission * * *.” Helvering v. Mitchell, 303 U.S. 391, 399 (1938). Whenever the defendant in an ostensibly civil action seeks to set up luis prior criminal prosecution as a bar to the proceeding, “{t}he question for decision is thus whether [the statute ap- plied in the second action] imposes a criminal sanction” (ibid.). That question, which “is one of statutory construc- tion” (ibid.), is the issue we addressed in our opening briet, just as it is the issue that the district court resolved in favor of appellee (see J.S. App. Sa (“the $130,000 penalty sought in this case amounts to a criminal penalty”)).' Neverthe- less, the amicus curiae invited by this Court to brief and ' Ct. Amicus Br. 14 (claiming that “[i}he ruling below was much narrower than the siraw man the government attacks”). (1) 2 argue this case in support of the judgment below insists (Br. 7) that “[t}he government * * * asks the wrong ques- tion,” and that the real question is not whether the statute requiring the monetary judgment sought against appellee imposes a criminal sanction. According to amicus, the Court should affirm the judgment below if it determines that the relief sought by the government under the False Claims Act in this case was “punishment,” whether or not that recovery was civil in nature (ibid.). Amicus’s position cannot be squared with numerous decisions of this Court and should be rejected once again. Contrary to amicus’s position, if the Court determines that the proceeding for civil penalties against appellee was civil rather than criminal in nature, then the Double Jeopardy Clause has no role to play in this case. And, as our open- ing brief demonstrated, that proceeding was indeed civil. 1. The basic principle established in Helvering v. Mit- chell, supra—that only “criminal” penalties give rise to double jeopardy problems —has been reaffirmed by this Court many times. See United States v. One Assortment of 89 Firearms, 465 U.S. 354, 359-360, 365 (1984) (quoting Helvering v. Mitchell, supra); 465 U.S. at 360 (double jeopardy “inapposite” when remedy is “a civil, not a crim- inal, sanction”); id. at 362 (“Unless the forfeiture sanction was intended as punishment, so that the proceeding is essentially criminal in character, the Double Jeopardy Clause is not applicable.”) (emphasis added); United States v. Ward, 448 U.S. 242, 248 (1980) (“The distinction between a civil penalty and a criminal penalty is of some constitutional import. * * * See, e. g., Helvering v. Mit- chell, 303 U.S. 391, 399 (1938) (Double Jeopardy Clause protects only against two criminal punishments) * * *.”); Breed v. Jones, 421 U.S. 519, §28 (1975) ("[W]e have held that the risk to which the [Double Jeopardy] Clause refers is not presemt in proceedings that are not ‘essentially 3 criminal.’”) (quoting Helvering v. Mitchell, supra); United States v. Wilson, 420 U.S. 332, 344 n.13 (1975) (“On a number of occasions, the Court has observed that the Double Jeopardy Clause ‘prohibits merely punishing twice, Or attempting a second time to punish criminally, for the same offense.’ ”) (quoting Helvering v. Mitchell, supra), One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 235-236 (1972) (quoting Helvering v. Mitchell, supra), Rex Trailer Co. v. United States, 350 U.S. 148, 150-151 (1956) (quoting Helvering v. Mitchell, supra); United States ex rel. Marcus v. Hess, 317 U.S. $37, 549 (1943) (quoting Helvering v. Mitchell, supra).* As these’amply demonstrate, Helvering v. Mitchell can- not be distinguished, as amicus suggests (Br. 11-13), on the ground that the defendant in that case had been acquitted in the criminal prosecution. Indeed, prior convictions followed by civil actions for penalties are precisely what gave rise to the cases on which we principally relied in our opening brief. * See also 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4474, at 749 (1981) (“Problems arise only when it is asseried that a nominally civil action brought by the government in- volves an element of punishment that runs afoul of double jeopardy principles. Although no clear principle has emerged for distinguishing remedial from punitive actions, most decisions have permitted criminal prosecutions to be followed by civil actions for injunction, forfeiture, monetary penalties, or double damages.”) (footnote omit- ted); 1B J. Moore, J. Lucas & T. Currier, Moore's Federal Practice { 0.418[2), at 564 (2d ed. 1988) (“The protection against double jeopardy is afforded only to a defendant in a criminal case. "); ad 4 0.418[3], at 585-586 (discussing Helvering v. Mitchell, supra); ud § 0.418[3), at $90-592 (discussing One Lot Emerald Cut Stones \ United States, supra), J. Sigler, Double Jeopardy 60 & 1.93 (1969) (discussing cases supporting the criminal civil distinction and criticiz ing carly cases that suggest a different view) 4 Thus, in Rex Trailer Co. v. United States, supra, the defendant had been convicted, not acquitted, of fraud, and the issue before the Court was whether the Double Jeopardy Clause permitted the assessment of civil penalties in a later proceeding. To answer that question, the Court looked to the Helvering v. Mitchell test (350 U.S. at 150-151), not to some other test that supposedly governs when the multiple-punishment aspect of the Dou- ble Jeopardy Clause is at issue. The Court concluded its opinion by observing that “[o}n this record it cannot be said that the measure of recovery fixed by Congress in the Act is so unreasonable or excessive that it transformed what was clearly intended as a civil remedy info a criminal penalty” (350 U.S. at 154 (emphasis added)). If amicus’s position were the law, the Court’s concluding sentence would have been pointless, for only the status of the civil penalties as “punishment” vel non, not their status as “criminal” or “civil” penalties, would matter. Likewise, in United States ex rel. Marcus v. Hess, supra, the defendant had been convicted, not acquitted, under a general statute dealing with conspiracy to defraud the government,’ and the Double Jeopardy Clause was put at issue im precisely the same way that it is here. The Court relied om the analysis of Helvering v. Mitchell, (317 U.S. at $48), framed the issue as whether the action before it was “criminal or remedial” (id. at 549), and based its judgment on the proposition that the action “d[id} not lose the quali- ty of a civil action” simply because more than actual Our opening brief was in error in stating (at 11) that the cony chon -as under the criminal false claims statute. However, the distinction belween a prior conviction under that statute and a prior conviction unde: the general fraud statute played no role in the Court's analysis. There ts thus no basis for amicus’s remarke that our misstatement ects “a rather eenificamt pomt” (Br. 1S 0.10) ee 5 damages were recovered (id. at 550). Most devastating to amicus’s position, the Court noted that “ ‘Punishment, in a certain and very limited sense, may be the result of the Statute before us so far as the wrong-doer is concerned,’ but this is not enough to label it a criminal statute” (ibid. (citation omitted)). Every one of those statements would have been beside the point if, as amicus contends, the distinction between “criminal” and “civil” remedies is ir- relevant in a multiple-punishment case. Indeed, amicus’s proposition leads to the astounding conclusion (Br. 35) that a defendant who is convicted in a criminal case, but receives a suspended sentence or a fine smaller than his prospective civil penalties, is better off than a defendant who is acquitted of criminal charges, for the former but not the latter would be able to claim the protection of double jeopardy in a subsequent civil action for “punitive” damages. The more sensible interpretation of the Clause—and the one more consistent with this Court’s cases—is that both a convicted and an acquitted defendant can invoke the Clause to protect against subse- quent criminal punishment for the same offense, but that neither can complain that a subsequent proceeding for civil penalties places him in “jeopardy” in the constitu- tional sense. Asserted against this overwhelming weight of authority is amicus’s reading of United States v. La Franca, 282 U.S. 568 (1931). La Franca, however, does not and cannot stand for the broad proposition — contrary to numerous later decisions —that any “punishment,” whether civil or criminal, is barred by the Double Jeopardy Clause when the defendant has already been criminally convicted for the conduct that gives rise to the second proceeding. As amicus recognizes (Br. 10-11 & n.7), the Double Jeopardy Clause was addressed in La Franca only to the limited ex- 6 tent of suggesting that it would create constitutional doubts if the statute at issue in that case were construed to permit the imposition of civil penalties following a ly as a matter of statutory interpretation: the Court con- strued the word “prosecution” in 27 U.S.C. (1926 ed.) 3 to include a civil action to recover penalties for an act declared to be a crime (282 U.S. at 574-575). La Franca therefore resolved no constitutional issues. Furthermore, the constitutional doubts alluded to by the Court were laid to rest just seven years later in Helvering v. Mitchell, supra, and have not been revived since.~ Amicus’s attempt to resurrect the proposition that the Double Jeopardy Clause applies to civil penalties that are not in fact “criminal” is not only contrary to precedent, but is also irreconcilable with the long understanding that no double jeopardy concerns. It cannot be seriously sug- * Some of the statements in La Franca, if taken to draw distinctions of importance for purposes of the Double Jeopardy Clause, certainly do not survive this Court's more recent decisions. Compare, e.g., La France, 282 U.S. at $73 (“The worm ‘penalty’ involves the idea of punishment, and its character is not changed by the mode in which it ts inflicted, whether by a civil action or a criminal prosecution.”), with One Assortment of 89 Firearms, 465 U.S. at 364 0.6 (“Mulcahey * * * argules} that inclusion of the forfeiure provision in thie] section [labeled “Penalties’) demonstrates Congress’ intention to create an ad- ditional criminal sanction. This argument ts unavailing; both cruminal and civil sanctions may be labeled ‘penalties." "), and Hess, 317 US. at $51. Indeed, as early as 1943, in Mess, 317 US. at $54 (concurring opmmon), Justice Frankfurter observed the need to “explain| | away uncritical language in [three specified] earher cases,” among them a France. The other two cases that Justice Frankfurter criticized were Lnwed States \. Chowteeu, 102 U.S. 603 (1881), which amicus cites (Br 7. 11) for essentially the same proposition as la France, and Co/- fev» Unered States, 116 U.S 436 (1886), which this Court has since expressly overruled in Unwed States +. One Assortment of 59 Firearms, supra 7 gested, for example, that a treble-damages action under 15 U.S.C. 15 following a defendant’s conviction for price fix- ing is COnstitutionally impermissible unless it is somehow established that the extra twofold damages do not con- stitute “punishment.” Similarly, it cannot be maintained that, under the aegis of the Double Jeopardy Clause, a defendant successfully prosecuted for manufacturing a product that kills innocent people would thereafter escape, in“civil tort action, all punitive damages (which surely in- clude an element of “punishment”). More fundamentally, amicus never explains why it makes sense to analyze this case under the “multiple punishment” aspect of double jeopardy rather than the “multiple prosecution” aspect. This Court's decisions establish that the double jeopardy protection against multiple punishment is essentially a protection against punishment that the legislature has not authorized. “{T]}he question of what punishments are constitutionally permis- sible is not different from the question of what punish- ments the Legislative Branch intended to be imposed.” Albernaz v. United States, 480 U.S. 333, 344 (1981): Missouri v. Hunter, 489 U.S. 359, 366 (1983): Gerrert v. United States, 471 U.S. 773, 793 (1985). Congress plainly authorized cumulative criminal and civil remedies under the False Claims Act.’ Thus, the prohidition of multiple * In the original False Claims Act, Congress underscored its intent to make civil and crummal remedies cumulatively available by pro viding that a person “who shall do or commit any of the [protibucd acts} * * * shall forfeu and pay to the United States the sum of reo thousand dollars, and. in addition, double the amount of damages which the United States may have sustained * * * and every such per von shall in addition thereto, on Conv tion in any Court of Competent jurisdiction, be punished by imprisonment * * * oF by fine” (Act of Mar. 2, 1863, ch. 67, § 3, 12 Stat. 698 (emphass added The 1986 revisions of the Act bhewne cupressty Contemplate that a ond action 8 punishment would not have barred the government from seeking those remedies in a single proceeding, as amicus appears to concede (Br. 8, 23 n.16, 34). It therefore is not helpful to view the issue in this case as one of unconstitu- tional “multiple punishment,” since appellee is not being “punished” any more than Congress authorized, whether the government achieves its remedies in one proceeding or two. The only colorable double jeopardy claim here flows from appellee’s desire to be free of a second proceeding, after his criminal conviction has become final, in which the government seeks to recover the civil aspect of the False Claims Act remedy. The Double Jeopardy Clause does protect some finality interests of criminal deferdants, but the Court has made it abundantly plain that the pro- tection is available only when the second proceeding seeks to impose “criminal” penalties. See the cases cited at 2-3, supra; cf. Westen, The Three Faces of Double Jeopardy: Reflections on Government Appeals of Criminal Sentences, 78 Mich. L. Rev. 1001, 1026-1033 (1980) (distinguishing the purposes of the double jeopardy pro- tections against multiple punishment and multiple pro- ceedings). While it is plausible to ask whether the Double Jeopardy Clause has a role to play in the division of the False Claims Act remedies into separate criminal and civil proceedings (and to answer that it does not), amicus offers no explanation as to why the policies underlying that Clause require that this case be resolved under a doctrine may follow a criminal conviction by providing (31 U.S.C. (Supp. IV) 3731(d)) that a “final judgment rendered in favor of the United States in any criminal proceeding charging fraud or false statements * * * shall estop the defendant from denying the essential elements of the offense in any action which involves the same transaction as in the criminal proceeding and which ‘s brought under subsection (a) or (b) of section 3730” of Title 31. 9 that asks only whether the two proceedings both involve “punishment.” ° Amicus is therefore wrong to suggest that the dispositive question in this case is whether the civil penalties the government seeks against appellee are in some sense “punishment.” Rather, amicus must shoulder the much heavier burden of showing by “the clearest proof” (Flem- ming v. Nestor, 363 U.S. 603, 617 (1960)) that “the statu- tory scheme [is] so punitive either in purpose or effect as to negate [Congress’s] intention” to establish a civil penalty. ° This Court has consistently expressed the values underpinning the Double Jeopardy Clause in terms that reflect the specific risks of criminal proceedings. “The underlying idea,” the Court has stated, “is that [the government] with ail its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and »rdeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States, 355 U.S. 184, 187-188 (1957). As we have observed, the risk to which the term jeopardy reters is that traditionally associated with “actions intended to authorize criminal punishment to vindicate public justice.” Because of its purpose and potential consequences, and the nature and resources of the State, such a proceeding imposes heavy pressures and burdens — psychological, physical, and financial —on a per- son charged. The purpose of the Double Jeopardy Clause is to re- quire that he be subject to that experience only once “tor the same offence.” Breed v. Jones, 421 U.S. 519, 529-530 (1975) (citations omitted). The Court has not suggested that civil actions pose comparable risks. 10 United States v. Ward, 448 U.S. 242, 248-249 (1980); United States v. One Assortment of 89 Firearms, 465 U.S. at 362-363 (same).’ 2. Amicus, who denies (Br. 14) that he even must undertake the effort prescribed by Ward, certainly has not succeeded in that effort. In fact, to the extent that he acknowledges the need to show that the statute in this case imposes a “criminal” penalty, amicus nevertheless pro- poses once again a test that differs considerably from the one mandated by this Court’s decisions: amicus focuses solely on whether the penalty is in some sease proportional to the government’s loss in this particular case rather than on whether the penalty is proportional to the harms that statute was designed to remedy as a general matter. As we showed in Our Opening brief (at 14-21, 30), it is the latter inquiry that this Court has mandated. This Court’s majority opinions in Hess and Rex Trailer make . clear that a case-by-case assessment of propor- tionality is inappropriate. Quite the contrary, the Hess majority stated that “the device of double damages plus a specific sum was chosen to make sure that the government would be made completely whole,” and stressed that “[{t}he inherent difficulty of choosing a proper specific sum which would give full restitution was a problem for Con- * That inquiry, and not an artificial “effort to find the one, true purpose behind the sanctions” (Amicus Br. 24), is what controls this case. One of the legitimate civil purposes of penalties under the civil False Claims Act is to deter fraud, just as other civil remedies such as punitive damages and treble damages serve a similar deterrent effect (see U.S. Br. 19-20). This Court, however, could not possibly have spoken more plainly in declaring that such a purpose, by itself, does not convert a civil remedy into a criminal one (see Hess, 317 US al 550-551). See also Tull v. United States, No. 85-1259 (Apr. 28, 1987) slip op. 9-10 (discussing common law history of actions for civil penalties). gress” (317 U.S. at 551-552). Amicus’s suggestion that the courts may impose a ceiling on civil remedies in any par- ticular case equal to what in the court’s view would con- stitute full restitution is thus simply contrary to Hess, both with respect to which branch of government should make the decision concerning the appropriate remedy, and with respect to the level of generality at which that decision can permissibly be made. Unable to find anything in the majority opinion in Hess that compels a case-by-case proportionality inquiry in order to determine whether a statute is “civil” or “criminal,” amicus relies instead (Br. 17-18) on Justice Frankfurter’s concurring opinion in Hess. Justice Frankfurter suggested that under the majority’s approach the defendants in any given case should be “allowed to prove that, as a matter of fact, the forfeiture and the dou- ble damages are punitive because they exceed any amount that could reasonably be regarded as the equivalent of compensation for the Government’s loss” (317 U.S. at 554). But the majority plainly intended no such thing. Justice Frankfurter’s apparent purpose in this portion of his opinion was to take the majority to task for not allow- ing such a factual inquiry, even though Justice Frankfurter regarded such an inquiry as a logical conse- quence of the majority’s approach.° Rex Trailer, decided 13 years «fter Hess, even more clearly refutes the use of a simple proportionality inquiry in determining whether civil sanctions can follow a convic- * Justice Frankfurter would have held (317 U.S. at 555) instead that “where two [separate] proceedings merely carry out the remedies which Congress has prescribed in advance for a wrong, they do not twice put a man in jeopardy for the same offense” — an approach that would readily require reversal in this case. 12 tion, and, concomitantly, is even less susceptible than Hess to the reading that amicus would give it (Amicus Br. 19-21). The government alleged and proved no specific damages in Rex Trailer (see 350 U.S. at 152-153), and there is thus no reason to believe that the penalty imposed in Rex Trailer was any less than 220 times the govern- ment’s direct loss from the defendant’s fraud (cf. Amicus Br. 17 n.11), or eight times the government’s total cost of investigation and prosecution (cf. id. at 6).? Thus, when * The figures we use in text are those that amicus uses to describe the result here, but we note that amicus takes considerable liberties in repeatedly characterizing as a factual finding (Amicus Br. 4, 6, 18, 21, 29) the district court’s estimate (J.S. App. 10a) of $16,000 as the amount necessary to compensate the government for its costs of in- vestigation and prosecution. The district court resolved this case on summary judgment (see id. at la, 6a) and thus was in no position to make factual findings. The district court’s $16,000 figure is more ac- curately characterized as a “guesstimate” than as a factual finding; in- deed, the court itself acknowledged that its figure “is at best an ap- proximation of the amount required to make the Government whole, [since] the Government, in keeping with the relief it seeks, has submit- ted no evidence of its expenses in this action” (id. at 11a). Though amicus believes (Br. 29) that the government could easily “adduce evidence” of its expenses in prosecuting appellee, there is no ready way for the government to account for the myriad types of costs it incurs in the investigation and prosecution of frauds, or to allocate such costs to a particular case. The rule proposed by amicus would thus thwart any real opportunity for the government to recoup the manifold costs it incurs in its effort to root out fraud. Cf. Rex Trailer, 350 U.S. at 153 (a lump sum functions to provide recovery when damages “may be dif- ficult or impossible to ascertain”). In any event, amicus’s desire to elevate the district court’s estimate into a factual finding that the government suffered a loss of $16,000 is ultimately perplexing, for it suggests that the government's $130,000 recovery under the False Claims Act would be only “eight times any reasonable notion of its total loss” (Amicus Br. 7), not the “220 times actual damages” that amicus elsewhere claims (id. at 17 n.11 (emphasis in original)). 13 the Rex Trailer Court suggested that “liquidated damages” prescribed by statute must be “reasonable” (350 U.S. al 151) in order not to be deemed criminal in nature, it could not possibly have meant that the reasonableness inquiry must be conducted by dividing the liquidated damages by the actual loss and deciding whether that number was too large. Similarly, the paragraph in which the Court con- cluded that the liquidated damages were not unreasonable “fo}n this record” (id. at 154) contains no discussion of the amount of the government’s injury, focusing only on the fact of injury (see id. at 153). Here, it is undeniably true that every one of appellee’s 65 frauds injured the govern- ment, and Rex Trailer therefore cannot be distinguished from this case. There is another reason why amicus’s suggested case-by- case approach is misguided. The protection against double jeopardy becomes relevant only when the punishment fac- ing the defendant is essentially criminal. That determina- tion can sensibly be made only by looking at specific statutory remedies and procedures, and by assessing them in light of the interests Congress sought to advance. If a statute is intended to be civil and there is no showing that “the measure of recovery fixed by Congress in the Act is so unreasonable or excessive that it transformed what was clearly intended as a civil remedy into a criminal penalty (Rex Trailer, 350 U.S. at 154 (emphasis added)), an action under that statute does not raise double jeopardy concerns simply because the measure of recovery 1s asserted to work “punishment” in one case. The line that the Constitution draws between civil and criminal proceedings, in the Dou- ble Jeopardy Clause as elsewhere, reflects an assessment of the different kinds of risks that are present In each type of proceeding (see note 6, supra). The imposition of criminal penalties represents the moral condemnation of the community and carries with it various collateral conse- 14 quences that are generally absent from civil proceedings, even when those proceedings seek to impose a deterrent remedy or “punitive” damages. Viewed on a case-by-case basis, many “civil” proceedings brought after criminal convictions, such as debarment from government con- tracting or the loss of a professional license, may be view- ed as imposing disproportionately harsh remedies, or “punishment,” compared with the actual harm inflicted by the individual. But such proceedings have never been held lo raise double jeopardy problems. Despite their significance to the persons involved, those kinds of pro- ceedings, judged in light of the statutes that authorize them, simply do not carry the kind of criminal overtones that bring the Double Jeopardy Clause into play.'® Likewise, the proceeding against appellee here was brought under the civil False Claims Act, which this Court has long understood to have remedial, not criminal, objec- lives. United States v. Bornstein, 423 U.S. 303, 314 (1976) (noting compensatory objective of the civil False Claims Act); United States v. Neifert-White Co., 390 U.S. 228 233 (1968) (noting remedial nature of the civil False Claims Act); Rainwater v. United States, 356 U.S. $90, 1 Of course, it is always open for an individual to try to show that the legislature did in fact intend to establish a criminal remedy while pur porting (to create only a civil one (Kennedy v. Mendoza-Martinet 3°72 US. 144, 168-169 (1963)), but amicus has made no real effort to show that the civil False Claims Act falls into that category. Amicus notes (Br. 24-25) that the double damages and $2000 payment provi- sions Were part of a bill designed to “punish” frauds, but the legislative history makes clear that those remedies were not regarded as criminal Indeed, the original bill debated in the Senate was criticized precisely because it lacked provision for criminal “punish{ment] by fine and im- Prisonment™ and was therefore insu/ficiently severe. Cong. Globe 3°th Cong., 3d Sess. 954-955 (1863). The bill then passed the Senate without criminal penalties (id. at 958), but the House added them as an additional remedy (id. at 1307), and the Senate concurred in the amendment without debate (id. at 1322-1323) 15 592 & n.8 (1958) (noting the creation of separate civil and criminal sanctions in the original False Claims Act); Hess, 317 US. at 551-552 (noting purpose of providing restitu- tion in the civil False Claims Act).'' Amicus’s objection to the remedy in this case flows only from the fact that ap- pellee defrauded the government 65 separate times and is liable for a civil penalty for each such fraud under the '} Amicus insists (Br. 25-26) that the designation of the remedies under 31 U.S.C. 3729 as “civil penalt{ies]” is of little significance, since that term appeared in the 1982 revisions that were not intended to make substantive changes. However, it is more sensible to read the “civil” designation as reflecting an understanding that those remedies were always civil in nature, and history buttresses that understanding. In the original version of the False Claims Act, Congress expressly provided both for double damages and a $2000 payment and, “in ad- dition thereto,” criminal penalties (Act of Mar. 2, 1863, ch. 67, § 3, 12 Stat. 698 (emphasis added)). Moreover, the remedy Congress provid- ed is a civil money judgment enforceable just as any other civil judg- ment would be. The Court underscored that fact in Hess, stating (317 U.S. at 551), that although the word “forfeit” in the original Act might “under other circumstances be an appropriate word to suggest a fine upon the failure to pay which an individual might be imprisoned, no such punishment is provided here upon default in payment.” The text of the Act was therefore “wholly consistent with a civil action for damages” (ibid.). 16 False Claims Act, not because he is being subjected to an action “intended to authorize criminal punishment to vin- dicate public justice” (317 U.S. at 548-549). That latter factor, however, is necessary to invoke the protections of the Double Jeopardy Clause. !? Amicus’s position is especially odd because it posits a limitation on the power of Congress to prescribe remedies, yet that limitation comes into effect only when the pro- ceeding in which the “excessive” remedy is sought follows an earlier, criminal proceeding.'* Thus, although amicus '2 In the civil False Claims Act, Congress chose a reasonable fixed sum of $2000 as a civil sanction ($5000 to $10,000 under the current version of the Act) to compensate the government for each false claim made and to deter such fraud in the first place. That measure of recovery cannot be deemed to be “unreasonable or excessive” (Rex Trailer, 350 U.S. at 154) in this case unless Congress must —as a mat- ter of constitutional imperative — anticipate that there are “economies of scale” involved in investigating and recovering damages for many small frauds and must provide a measure of recovery specially devised for that situation in order to avoid having its civil statutes become criminal in a given setting. Considering the vast range of government business and the diversity of contractors that the False Claims Act covers, Congress can hardly be deemed to have inadvertently crossed the threshold from a civil to a criminal sanction by adopting a stand- ard measure of recovery to ensure full compensation to the govern- ment and to discourage wrongdoers who might otherwise hope that their frauds are too small to justify the time and effort of ap civil ac- tion. ‘> Amicus’s suggestion (Br. 32) that this Court might somehow view the False Claims Act $2000-per-claim payment provision as discre- tionary is completely unfounded. The original language of the act pro- vided that a person “who shall do or commit any of the [prohibited acts] * * * shall forfeit and pay to the United States the sum of two thousand dollars” (see note 5, supra (emphasis added)). That the pro- vision is mandatory is confirmed by ample authority, cited in our opening brief (at 17 n.12). The district court was therefore correct in holding in its second opinion that it was compelled to award a separate $2000 payment for each of the false claims made by appellee. ae 17 poses hypothetical examples of extremely large penalties for extremely small losses in an effort to paint the govern- ment’s position as unreasonable (Br. 27-28), amicus would have to concede that every one of the hypothetical penalties he identifies is one that Congress could impose and the Executive Branch could obtain so long as the government forbears from first bringing a criminal prose- cution. Indeed, amicus’s concessions appear to go further and suggest that the government can, without any double jeopardy problem, obtain in a single proceeding whatever penalties Congress intends, no matter how large (see 7-8, supra).'* What is at stake between amicus s position and ours, therefore, is not the protection of defendants in civil cases from excessive penalties, but a restructuring of the way in which the government can obtain those penalties. There is no sound basis to invoke the Double Jeopardy Clause to compel such a drastic restructuring of the rela- tionship between criminal and civil proceedings. . For the foregoing reasons and the reasons stated in our opening brief, the judgment of the district court should be reversed. Respectfully submitted. - CHARLES FRIED Solicitor General DECEMBER 1988 '4 Depending on how this Court decides Browning-Ferris Industries v. Kelco Disposal, Inc., cert. granted, No. 88-556 (Dec. 5, 1988), it is conceivable that some of amicus’s hypothetical examples might raise Eighth Amendment issues, but for present purposes it suf fices to note that amicus’s position in this case would do nothing to aid defendants faced with the large penalties that amicus hypothesizes, unless they had been previously convicted. - US GOVERNMENT PRINTING OFFICE 1986— 241.699 00038 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0655%3A6. Public record. Not legal advice.