Petition for Writ of Certiorari — Sherr v. Anaconda Wire & Cable Co.

TABLE OF CONTENTS

PAGE

Petition ror Writ or CERTIORARI 1

A—The Jurisdiction of this Court 1

B—Summary Statement of the Matter Involved..... 1

1. Character of the Action

2. The Proceedings below

3. The False Claims Statute, its interpreta-

tion by tuis Court and its 1943 amend-

ment

| 4. The issues below

5. The opinions below

C—The Questions Presented to This Court.

D—Grounds for Granting the Writ of Certiorari..

Brier iN Support oF Petition FoR CERTIORARI

Porxt I—"Jpon bringing a private suit under the

False Claims Statute, the relator acquires, by

operation of law, a property right in the cause

of action which is immune from governmental

interference

Porst I]—Petitioner also has a contract right

against the United States to prosecute this suit

to judgment and to collect his share of the re-

covery .......

Port I]1—Denial of federal jurisdiction by the

1943 amendment of the False Claims Statute

is tantamount to the destruction of petitioner’s

right itself

ii

PAGE

Porst TV—The 1943 amendment of the False

Claims Statute cannot be sustained on the

ground that petitioner may sue for compen-

sation in the Court of Claims

A—Congress made no contract to compensate

B—Even if Congress had contracted to compen-

sate petitioner, the taking of his property was

invalid since it was not “for publie use”... :

Appenpix A

The False Claims Statute Before the 1943 Amend-

ment

Appenpix B

The 1943 Amendment of the False Claims Statute...

iil

TABLE OF CASES

PAGE

Alabama v. U. S., 282 U. 8S, 502 (1931) 28, 29

Angle v. Chicago ete. R. Co., 151 U.S. 1 (1894). =

Atwater & Co. v. U. S., 275 U. S. 188 (1927)... 30

Ball Engineering Co. v. White & Co., 250 U. S. 46

(1919) 30

Bank of St. Mary’s v. Georgia, 12 Ga. 475 (1853). 20

Basso v. U. S., 239 U. S. 602 (1916) 27

Beadleston v. Sprague, 6 Johns. (N. Y.) 101 (1810)... 17

Brinkerhoff-Faris T. & S. Co. v. Hill, 281 U. S. 673

(1930) 26

Bush v. U. S., 13 Fed. 625 (C. C. Ore., 1882). 24

Caswell v. Allen, 10 Johns. (N. Y.) 118 (1813). 24

Combe v. Pitt, 3 Burr. 1423, 97 Eng. Rep. 907... 17

Commonwealth v. Howard, 13 Mass. 221 (1816)... 17

Couch v. Jefferies, 4 Burr. 2460, 98 Eng. Rep. 290

(1769) 15

Dr. Foster’s Case, 11 Coke 65 b, note, 77 Eng. Rep. 1235,

note 14

Ettor v. Tacoma, 228 U. S. 148 (1913). 18, 19, 26

Forbes Pioneer Boat Line v. Everglades Drainage Dis-

trict, 258 U. S. 338 (1922) 18

Graham v. Goodeell, 282 U. S. 409 (1931)... 18, 26

Hammon v. Griffith, Cro. Eliz. 583, 78 Eng. Rep. 826... 14

Hunt v. Rousmanier, 8 Wheat. (21 U.S.) 174 (1823)... 25

Hurley v, Kincaid, 285 U. S. 95 (1932) 8, 26

Hutchinson v. Thomas, 2 Lev. 141, 83 Eng. Rep. 488... 17

iv

PAGE

Jackson v. Gisling, Str. 1169, 93 Eng. Rep. 1105... 17

John Horstman Co. v. U. S., 257 U. S. 188 (1921)... 11

Klebe v. U. S., 263 U. S. 188 (1923) 30

Lockerty v. Phillips, 319 U. S. 182 (1943) 25

Lynch v. U. S., 292 U. 8. 571 (1984) 23

Marion & Rye V. R. Co. v. U. S., 270 U.S. 280 (1926)... 27

Marvin v. Trout, 199 U. S. 212 (1905) 13

Missouri Pac. R. Co. v. Nebraska, 164 U. S. 403 (1896)... 30

M’Lane v. U. S., 6 Pet. (31 U.S.) 404 (1882) nnn 20

Mullen Benev. Co. v. U. S., 290 U.S. 89 (1933)... 30

Nathanson v. U. S., 321 U. S. 746 (1944) 9

Norris v. Crocker, 13 How. (54 U. 8.) 429 (1854)... 7,19

Osborn v. Nicholson, 13 Wall. (80 U. S.) 654 (1872)... 18

Overnight Motor Transp. Co. v. Missel, 316 U. 8. 572

(1942) 19

Pearson v. U. S., 267 U. S. 423 (1925) 29

Pennock v. Dialogue, 2 Pet. (27 U. 8.) 1 (1829) 16

Perry v. U. S., 294 U.S. 330 (1935) 24

Pollock v. Steamboat Laura, 5 Fed. 133 (D. C., 8. D.

N. Y., 1880) 16

‘ Pope v. Lewis, 4 Ala. 487 (1842) 19

Pritchard v. Norton, 106 U. S. 124 (1882) 18

Richmond M. & L. Co. v. Wachovia B. & T. Co., 300 U.S.

124 (1937) 26

Rindge v. Los Angeles, 262 U. S. 700 (1923)... 8, 30

Robison v. Beall, 26 Ga. 17 (1858) 18

Russell v. Sebastian, 233 U. 8. 195 (1914) 21, 22

Schillinger v. U. S., 155 U. S. 162 (1894) 27

State v. Bishop, 7 Conn, 181 (1828) 17

PAGE

Stretton v. Tayler, Cro. Eliz. 138, 78 Eng. Rep. 395......... 14

Sutherland v. Int’l Ins. Co., 43 F. 2d 969 (C. C. A. 2,

1930) 13

Tempel v. U. 8., 248 U. S. 121 (1918) 8,11

U. 8. v. Anaconda Wire & Cable Co., 52 F. Supp. 824

(D. C., E. D. Pa., 19438) 17

U.S. v. Baker-Lockwood Mfg. Co., 138 F. 2d 48 (1948),

rev’d sub nom. Nathanson vy. U. S., 321 U. S. 746

(1944) 11, 17

U.S. v. Certain Lands, 78 F. 2d 684 (C. C. A. 6, 1935),

cert. dism. 297 U. 8. 726 30

U. S. v. Dwight Mfg. Co., 213 Fed. 522 (D. C. Mass.,

1914) 17

U.S. v. Great Falls Mfg. Co., 112 U. S. 645 (1884)... 28

U. S. v. Griswold, Fed. Cas. No. 15266 (D. C. Ore.,

1877) 16, 17, 24

U.S. v. Griswold, 24 Fed. 361 (D. C. Ore., 1885), aff’d

30 Fed. 762 (C. C. Ore., 1887) 16

U.S. v. Lynah, 188 U. 8. 445 (1903) 8, 11, 26, 28

U.S. v. North American Transp. & Trad. Co., 253 U.S.

330 (1920) 28

U. S. ex rel. Benjamin v. Hendritk, 52 F. Supp. 60

(D. C., S. D. N. Y., 1948) 17

U. S. ex rel. Mareus v. Hess, 317 U. S. 537 (1943)..4, 11, 19

U. S. ex rel. Rodriguez v. Weekly Publications, Inc.,

144 F. 2d 186 (C. C. A. 2, 1944). 7

W. B. Worthen Co. v. Kavanaugh, 295 U.S. 56 (1935)... 26

Wilkinson v. Leland, 2 Pet. (27 U. 8.) 627 (1829)... «18

Winne v. Snow, 19 Fed. 507 (D. C., S. D. N. Y., 1884). 24

Wood v. Duff-Gordon, 222 N. Y. 88 (1917) 21

Yearsley v. Ross Construction Co., 309 U.S. 18 (1940)_8, 26

vi

AUTHORITIES

PAGE

12 Am. Jur., Const. L., §406, p. 37. 21

Bacon’s Abridgment, verbo “Pardon” (B) .-.------——— 15

4 Blackstone, Commentaries, 399 15, 25

3 Coke Inst. 238 14, 25

Cong. Ree., 78th Cong., Ist Sess., p. 5872, col. 1; p.

7571, cols. 2-3; House Rep. No. 263 5

Cong. Ree. 78th Cong., Ist Sess., House Rep. No.

263 5

Cong. Ree., 78th Cong., Ist Sess., p. 10845, col. 3, p.

10846, col. 1 10

Cong. Ree., 78th Cong., Ist Sess., p. 7572; Sen. Rep.

No. 291, Part 1 31

78th Cong., Ist Sess., Sen. Rep. No. 291, Parts 1 and

2; House Rep. Nos. 263 and 933 5

Cong. Ree., pp. 2800-1, 5871-3, 7347, 7424, 7437-44,

7570-9, 7596-9, 7600-17, 10696, 10741-52, 10844-9_. 5

Constitution, Art. IIT, $1 7, 9, 25, 29

Constitution, Fifth Amendment 3, 9, 26

Court of Claims Act, Judicial Code, $145 (1), 28

U.S. C., $250 (1) 8, 27

False Claims Statute, 12 Stat. 698; R. S., §§3490-3493 ;

31 U.S. C., §§231-234

False Claims Statute, Ch. 377, Public Law No. 213,

78th Congress, First Session, 57 Stat. 608-9... 2,5

Hawkins, Pleas of the Crown, bk. 2, ch. 26, 964 (7th

Ed., 1795) 15, 17

Iudicial Code, §256 (2), 28 U. S. C., §371 (2)..—-4, 7, 26

Vii

PAGE

Letter of Attorney General, Cong. Rec., 78th Cong.,

Ist Sess., p. 7612, col. 1 24

Restatement, Agency, §1, Comment (d) 24

Restatement, Agency, §§118, 455 24

Restatement, Agency, §§138, 139 25

Restatement, Contracts, §28 21

Restatement, Contracts, $31 21

Restatement, Contracts, $§45, 90 21

Restatement, Trusts, §8, Comments (a), (b), (¢)...... 25

R. S., §13, 1 U.S. C., $29 19

R. S., $3490. 4, 19, 25

R. S., §3491 4, 5, 22, 24

R. S., $3491 (C), as amended 6, 10, 30

R. S., §3492 12

R. S., $8493 4, 5, 18, 22, 24, 30

Rule 24, F. R. C. P 12

- Tucker Act, 28 U. S. C., §41 (20) 27

35 U. S. C., $50. 11

Year Book 1 Henry VII, fol. 3a (Mich. T., Plea 2

(1485) ) 13

Williston, Contracts (Rev. Ed., 1936), Vol. I, §32, pp.

77 et seq 21

Williston, Contracts (Rev. Ed., 1936), Vol. I, $60,

p. 166 21

_ Williston, Contracts (Rev. Ed., 1936), Vol. I, §60A,

p. 170 21

Supreme Court of the United States

OCTOBER TERM 1945

Moszs B. SHERR,

Petitioner,

against

Awnaconpa Wire AND CasLe Company and

Unttep States or AMERICA,

Respondents.

PETITION FOR WRIT OF CERTIORARI

To the Supreme Court of the United States and to the

Honorable the Chief Justice and the Justices thereof:

The petition of the relator, Moses B. Sherr, for a writ of

certiorari to the United States Circuit Court of Appeals

for the Second Circuit respectfully shows to this Court:

A

The Jurisdiction of This Court

The jurisdiction of this Court rests upon §240 of the

Judicial Code, 28 U.S. C., $347.

Summary Statement of the Matter Involved

Petitioner asks this Court to review the Cireuit Court’s

affirmance (R. 69) of the judgment of the District Court

for Southern New York dismissing the action for lack of

jurisdiction (R. 46). A review is also sought of the Cir-

cuit Court’s denial of rehearing (R. 68).

2

‘ The opinion of the District Court (R. 47), by Leibell,

D. J., is reported 57 F. Supp. 106. That of the Circuit

Court (R. 60), by L. Hand and Clark, C. JJ. (Clark, C,

J., concurring), is reported 149 F. 2d 680.

The Circuit Court filed its opinion on May 25, 1945 (R.

60). On June 5, 1945, within the fifteen days allowed by

Rule 27 of the Cireuit Court, petitioner moved for a re-

hearing (R. 62) which the Cireut Court denied on June

8, 1945 (R. 68). The Cireuit Court's judgment of affirm.

ance was entered June 16, 1945 (R. 69).

1. Character of the action

This is a qui tam action brought by the petitioner as ie-

lator on behalf of himself and the United States against

the Anaconda Wire and Cable Company (“Anaconda” here-

after) pursuant to the False Claims Statute, 12 Stat. 698;

R. S., §§3490-3493 ; 31 U. S. C., §§231-234 (Appendix A, in-

fra, p. 32).

The complaint (R. 3) alleges that Anaconda, under con-

tracts with the Army and Navy, delivered defective wire

and cable. Anaconda and some ef its officials—who are

named as defendants but have not been served—fraudu-

lently concealed the defects and thus induced the Govern-

ment to accept delivery and to pay the contract price. The

complaint demands judgment in favor of the United States

and petitioner for double the damages sustained by the

United States, for the statutory forfeitures, for interest

and costs.

2. The proceedings below

The action was commenced December 23, 1942, in the

District Court for Southern New York (R. 1). Concededly

it was based on information which was then in the posses

sion of the United States (R. 35).

One year after the suit was brought, on December 23,

1943, Congress amended the False Claims Statute: Ch.

377, Public Law No. 213, 78th Congress, First Session, 57

3

Stat. 608-9 (Appendix B, infra, p. 35). In March, 1944,

following the amendment, the Government entered its ap-

pearance in this action (R. 8, 9). But two months later,

in May, 1944, it commenced an independent suit of its own

for the wrongs herein alleged (R. 36, 19).

In the present action the following motions were then

made:

1. Petitioner moved to strike the Government’s ap-

pearance (R. 10);

2. The Government moved to stay the prosecution

of this action pending determination of its own suit

(R. 13); and

3. Anaconda moved to dismiss this action on the

ground that the 1943 amendment of the False Claims

Statute had deprived the District Court of jurisdic-

tion (R. 28).

Petitioner predicated his motion, and opposed those of

the Government and of Anaconda, on the ground, among

others, that the 1943 amendment, as applied to this case,

deprives him of his property without due process of law,

in violation of the Fifth Amendment of the Constitution

(R. 11-12, 36-37).

The District Court denied the motions of petitioner and of

the Government (R. 47). It found (as was conceded) that

this suit is based on information in the possession of the

United States at the time this suit was brought (R. 47); it

sustained the constitutionality of the 1943 amendment; and

it dismissed the action on the ground that the amendment

had deprived it of jurisdiction (R. 46).

The Cireuit Court, likewise upholding the new statute,

affirmed (R. 60, 69) and, without further opinion, denied re-

hearing (R. 68).

4

3. The False Claims Statute, its interpretation by this

Court, and its 1943 amendment

(a) The pre-1943 statute: The False Claims Statute

(Appendix A, infra, p. 32) requires any person making

fraudulent claims against the United States Government to

pay it double damages, a forfeiture of $2,000 and the costs

of the suit; R. S., §3490. The district courts of the United

States have exclusive jurisdiction of such suits; R. 8.

§3491; Judicial Code, §256 (2), 28 U.S. C., §371 (2). These

provisions have not been affected by the 1943 amendment.

Prior to the 1943 amendment the statute permitted “any

person” to bring and carry on such suit “as well for him-

self as for the United States”. The relator had to bear

the “sole cost and charge” of the suit; he was not to with-

draw it without the written consent of the Judge and the

District Attorney; R. S., $3491.

The person “bringing said suit and prosecuting it to

final judgment” was entitled to “one-half the amount of

such forfeiture, as well as one-half the amount of the dam-

ages he shall recover and collect”, and to all costs the Court

might award against the defendant. The other half of the

forfeiture and damages was to “belong to and be paid

over to the United States”. The relator was to be “liable —

for all costs incurred by himself” and was to “have no |

claim therefor on the United States”. Costs were to be

taxed according to any law or rule governing “suits be-

tween private parties”; R. S., $3493.

(b) The interpretation of the statute by this Court:

In U. S. ex rel. Marcus v. Hess, 317 U. S. 537, at 545-8

(1943), this Court held, over the strenuous objection of

the Government appearing as amicus curiae, that a relator

could prosecute a qui tam action under the False Claims

Statute even though he had derived all his information

from the Government. “One of the chief purposes of the

Act * * * was to stimulate action to protect the government

against war frauds” (p. 547), even where the frauds were

known to the Government. The statute was born out of the

5

apprehension of Congress that, because of official inertia,

ineptness or dishonesty, even those frauds known to the

Government would not be prosecuted with due zeal and

skill. Congress therefore applied to the citizenry at large;

invited them to undertake, at their own expense, the pro-

tection of their Government against fraud; and assured

them, if successful, of a generous reward.

Promptly after the decision of the Marcus case the Gov-

ernment asked Congress to amend the False Claims Stat-

ute (Cong. Rec., 78th Cong., Ist Sess., p. 5872, col. 1; p.

7571, col. 2-3; House Rep. No. 263). The amendment was

enacted on December 23, 1943, one year after the com-

mencement of this action (57 Stat. 608-9). References to

the Congressional debates and other legislative materials

are set forth in the footnote.*

(c) The 1943 amendment of the False Claims Statute:

The amendment (Appendix B, infra, p. 35), repealed

R. S., §3493, and completely reframed R. S. §3491. Qui

tam actions (whether pending at the time of the amendment

or brought thereafter) can be maintained only if they are

based on information original with the relator. Notice of

any such suit must be given to the United States Attorney

who, within sixty days, may enter his appearance in the

suit and take it over. If he does, the relator may be awarded

reasonable compensation for the disclosure of his evidence

or information, but not more than one-tenth of the recov-

ery. If the United States Attorney does not take over,

the relatur may prosecute the action, in which case he may

be awarded up to one-fourth of the recovery.

For present purposes it suffices to quote only one pro-

vision of the amendment:

“The court shall have no jurisdiction to proceed

with any * * * 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

* 78th Cong., Ist Sess., Sen. Rep. No. 291, Parts 1 and 2; House

Rep. Nos. 263 and 933; Cong. Rec., pp. 2800-1, 5871-3, 7347, 7424,

0-9 074) - 0844.

)

- HO0- ley,

—

6

of the United States, or any agency, officer or em-

ployee thereof, at the time such suit was brought”

R. S., §3491 (C), as amended).

Once a qui tam suit is dismissed under this provision,

the Government may bring an action of its own upon the

same cause, for the whole amount of the forfeiture and

damages allowed by the statute; and the relator in the

first suit has no right to share in the Government’s re-

covery.

The Courts below dismissed this action on the strength

of the quoted provision.

4. The issues below

In the Courts below the basic question, whether the 1943

amendment takes petitioner’s property without due process

of law, resolved itself into several sharply contested issues.

(a) Petitioner contended that he has a contract right

against the United States, protected by the Constitution,

to prosecute this suit to judgment and to collect his half

of the recovery. The pre-1943 False Claims Statute, said

petitioner, constituted an offer of such a contract; and by

commencing this suit petitioner accepted it (see Brief,

infra, pp. 20-25).

Respondents denied that the False Claims Statute was

an offer: but if it was, they argued that it could be revoked

at any time before petitioner recovered final judgment;

and the 1943 amendment effected the revocation.

(b) Independent of his contract theory, petitioner con-

tended that upon commencement of this suit he became by

operation of law the owner (as assignee ex lege) of one-

half of the Government’s claim against Anaconda; as such

he had a vested right in the eause of action which could

not be reappropriated by the Government. For this con;

tention petitioner invoked a long line of authorities in

England and in this country (see Brief, infra, pp. 13-20).

Respondents denied their applicability.

7

(c) Petitioner contended that his rights were taken by

the 1943 amendment. For although in terms the amend-

ment purported only to terminate the jurisdiction of the

district courts, it in effect destroyed petitioner’s rights,

since the district courts were the only and exclusive forum

available to him, 28 U. S. C., §371 (2) (see Brief, infra,

pp. 25-26).

Respondents, in turn, insisted that Congress is free to

regulate the jurisdiction of the district courts (Constitu-

tion, Art. III, §1) and that the 1943 amendment was only

an exercise of that power.

Such were the issues below. But the Circuit Court, as

will presently be seen, avoided their determination and

preferred to place its decision on a ground not raised,

argued or briefed by any of the parties.

5. The opinions below

(a) The District Court’s opinion (R. 47): In sustain-

ing the constitutionality of the 1943 amendment, the Dis-

trict Court followed the reasoning of a dictum in U. S.

ex rel. Rodriquez v. Weekly Publications, Inc., 144 F. 2d

186, at 188 (C. C. A. 2, 1944). In the Rodriguez case the

Cireuit Court had stated (on the authority of Norris v.

Crocker, 13 How. (54 U. S.) 429 (1854), and similar cases)

that the “privilege of conducting the suit on behalf of the

United States and sharing in the proceeds of any judgment

recovered was an award of statutory creation which, prior

to final judgment, was wholly within the control of Con-

gress”, and that the claim of unconstitutionality was

“wholly illusory”.

(b) The Circuit Court’s per curiam opinion (R. +t

Upon petitioner’s appeal herein, the Circuit Court pro-

fessed to “see no reason to recede from the position”

taken in the Rodriguez case. Having so said, the Circuit

Court promptly abandoned that position and advanced an

altogether new ground. It assumed, for argument, that

petitioner was right in contending that the 1943 amend-

8

ment effected a “taking” of his property. But that “taking”,

it held, was not unconstitutional since it was not without

“just compensation”. For, according to the Cireuit Court,

by taking petitioner’s property the Government impliedly

contracted to pay him compensation, U. S. v. Lynah, 188

U. S. 445 (1903) ; petitioner may sue upon that implied con-

tract in the Court of Claims, 28 U. S. C., §250 (1) ; and that

recourse is an adequate remedy, Yearsley v. Ross Con-

struction Co., 309 U. 8. 18 (1940); Hurley v. Kincaid, 285

U. S. 95 (1932).

In his application for rehearing (R. 62) petitioner

urged that’not every governmental taking of property

raises an implied contract to pay compensation; such con-

tract is implied only where the Government “takes prop-

erty the ownership of which it concedes to be in an indi-

vidual”; U. S. v. Lynah, supra, 188 U. S., at 465; Tempel

v. U. S., 248 U. S. 121, at 129-130 (1918). Here not even

the Cireuit Court “conceded” that petitioner had owner-

ship rights in the property taken (i.e., the claim against

Anaconda) ; much less did Congress so concede (see Brief,

infra, pp. 27-30). Hence, no promise to pay compensation

ean be implied. Furthermore, even if it were assumed that

Congress promised to pay compensation, still, under the

Fifth Amendment, it could take petitioner’s property only

“for public use”; Rindge v. Los Angeles, 262 U.S. 700, at

705 (1923). <A taking which, as here, merely swells the

general treasury of the United States does not meet this

test and is, therefore, without due process of law (see

Brief, infra, pp. 30-31).

Cc

The Questions Presented to This Court

The precise question before this Court is:

Does the 1943 amendment of the False Claims

Statute, as applied to this case, deprive petitioner of

9

his property without due process of law, in violation

of the Fifth Amendment of the Constitution of the

United States?

In Nathanson v. U. S., 321 U. S. 746 (1944), this ques-

tion was reserved. It is now squarely presented.

The answer depends on a number of subsidiary ques-

tions :

1. Has the relator in a private suit under the False

Claims Statute a contract right against the United

States, protected by the Constitution, to seek judgment

for and to collect his half of the recovery?

The Cireuit Court’s per curiam opinion avoids an an-

swer. But if, as we believe, the Cireuit Court’s own

ground of decision (that petitioner has an adequate rem-

edy in the Court of Claims) fails, the question must be

answered.

Even if a contract between the United States and peti-

tioner were denied, the question would remain:

2. Does a relator suing under the False Claims

Statute acquire, by operation of law, a property right

in the cause of action, protected by the Constitution?

Again the Circuit Court, although apparently impressed

by our authorities, avoided the answer. But again that

answer is called for, if, as we propose to show, the Cir-

cuit Court’s own ground lacks force.

3. Does the power of Congress to regulate the

jurisdiction of the district courts (Constitution, Art.

IIT, $1) sustain the 1943 amendment?

Respondents so argued. But under the guise of regu-

lating jurisdiction the 1943 amendment deprived petitioner

of the only forum available to him, thereby in effect de-

stroying his right.

10

Finally, the question going to the heart of the Circuit

Court’s decision is:

4. Can the taking of petitioner’s property be sus-

tained on the ground that he may sue the United

States for compensation in the Court of Claims?

D

Grounds for Granting the Writ of Certiorari

1. The constitutionality of the 1943 amendment of the

False Claims Statute, as applied to qui tam actions pend-

ing at the time of its enactment, has not been, but should

be, determined by this Court.

(a) The rights of a litigant under the Constitution are

commended to the particular vigilance and protection of

this Court. The Court below ruled that the constitution-

ality of the 1943 amendment is “the bare question before

us” (R. 61). An application for review in such a case

should strongly appeal to the discretion of this Court.

(b) At the time of the enactment of the 1943 amend-

ment there were pending more than 250 private actions

under the False Claims Statute (Cong. Rec., 78th Cong,

Ist Sess., p. 10845, col. 3, p. 10846, col. 1). Their fate

will be controlled by the decision of this Court.

(c) This Court’s decision will also control qua tam ac-

tions hereafter to be brought under the 1943 amendment.

For where the Government fails or refuses to enter its

appearance in such an action within the sixty-day period

allowed by R. S., §3491(C), as amended, the relator’s posi-

tion under the new statute is substantially the same as

under the old. If the decision below is permitted to stand,

the relator in any such action will, until final judgment

therein, remain in danger of being ousted by the Govern-

ment, be it by legislative or executive action. To cast such

11

a cloud of uncertainty upon every future gui tam action

would hardly encourage the institution of this type of suit,

although Congress manifestly intended its preservation.

And this is equally applicable to the numerous other types

of gui tam actions authorized by federal statutes, such as 35

U.S. C., $50, and other statutes cited in U. S. ex rel. Marcus

v. Hess, supra, 217 U. S., at 541, n. 4.

Even before the 1943 amendment was enacted, the Eighth

Cireuit Court held, in U. 8S. v. Baker-Lockwood Mfg. Co.,

138 F. 2d 48, at 52-3 (1943), rev’d on other grounds sub

nom. Nathanson v. U. S., 321 U.S. 746 (1944), that the Gov-

ernment may supersede an earlier qui tam action by filing a

suit of its own. Respondents deduce that the relator in a

qui tam suit can have no vested right. But the Court below

declared the Baker-Lockwood case “open to conceivable

doubt” (R. 61); it is, we submit, in conflict with earlier

authorities (infra, p. 17); and it seems refuted by this

Court’s dictum in U. S. ex rel. Marcus v. Hess, supra, 317

U. S., at 547-8, that only the filing of a prior suit by the

Government bars a later qui tam action. But the Govern-

ment claims that the Baker-Lockwood case is still con-

trolling (R. 20). The conflict of authorities emphasizes the

need for review by this Court.

2. In ruling that petitioner’s property was not unconsti-

tutionally taken because he may sue for compensation in

the Court of Claims, the Cireuit Court decided a federal

question in a way probably in conflict with applicable de-

cisions of this court, such as U. S. v. Lynah, 188 U. 8. 445

(1903) ; Tempel v. U. S., 248 U. S. 121 (1918) ; John Horst-

man Co. v. U. S., 257 U.S. 138 (1921). We propose to show

this conflict in our brief (infra, pp. 27-30). If the deci-

sion below were permitted to stand, it would have most

prejudicial effects. The Government, although not pur-

porting to act under its power of eminent domain, could be

made a condemnor in invitum of property which it never

intended to expropriate; and it could be sued for compen-

sation in the Court of Claims although it demonstrably

12

never intended to make a contract for compensation. And

on the other hand the Circuit Court’s decision would expand

the concept of “public use”, for which property may be

taken by eminent domain, beyond all limits heretofore rec-

ognized by this Court.

If the decision below is reversed and petitioner is per-

mitted to prosecute this action, the Government need not

fear that it cannot safeguard its interests. Its remedy is

by intervention, Rule 24 F. R. C. P., which may even be

obligatory upon the Government, R. 8., §3492. Petitioner

will certainly not oppose it.

Wuenrerore, petitioner prays that a writ of certiorari to

the Circuit Court of Appeals for the Second Cireuit be

granted,

Moses B, SuHerr,

Petitioner pro se.

Sratre or New York,

County or New York,\""’

Mosss B. Suerr, being duly sworn, deposes and says;

that he is the petitioner herein; that he has read the within

petition and knows the contents thereof; that the same is

true to his own knowledge, except as to those matters

therein stated upon information and belief, and that as to

those matters he believes it to be true.

Mosss B. SHERR.

Sworn to before me this

12th day of September, 1945.

Syivia SoBELMAN,

Notary Public.

King’s Co. Clk’s No. 357, Reg. No. 36556.

N. Y. Co. Clk’s No. 468, Reg. No. 271586.

Commission expires March 30, 1946.