Eastern School, a Partnership Consisting of Frank Simon, Benjamin Eizenman, Oscar Goldman, Phillip Laster and Samuel Frank v. The United States , 381 F.2d 421 ( 1967 )

NICHOLS,

Judge (concurring):

I concur in the result and in all of the court’s able opinion except the part relating to 28 U.S.C. § 2514. As to that, I reach the same destination by a different road. I agree that the counterclaim should be rejected.

As I read section 2514, it was intended to forfeit any claim if the claimant practiced fraud in the prosecution thereof, not only before the Congress or the Executive branch, but before this court also. Clearly, therefore, the failure to plead section 2514 at the outset would not bar its invocation if the fraud occurred after the pleadings had closed. Clearly too the falsity, though begun earlier, continues after the pleadings have closed if the claimant in testimony or othewise continues to assert what is actually not true. The Government’s theory invoking section 2514 I read as implying this. I believe that in circumstances which need not be spelled out here, but which may at any time occur, it would be the duty of this court to invoke section 2514 sua spcmte, whatever the position of the Government’s law officers.

We said in Pewee Coal Co. v. United States, 161 F.Supp. 952, 958, 142 Ct.Cl. 796, 806 (1958), cert, denied 359 U.S. 912, 79 S.Ct. 588, 3 L.Ed.2d 574 (1959):

The sanction of forfeiture under this statutory provision is harsh, and it can be invoked only when the Government assumes the burden of pleading and proving that a claimant has corruptly practiced or attempted to practice fraud. * * *

The Government there had disclaimed any reliance on section 2514 and we stated that the applicability of that section was not before us.

The fine record of the Department of Justice in our lifetimes may make it unthinkable to us that Government counsel would themselves connive in a fraud on the Government, but this is an old statute, R.S. 1086, and in the historic view it is all too thinkable that this could occur. Hence, again, the silence or belated activity of defendant’s counsel does not necessarily mean that we have no duty to perform in the premises. I cannot, therefore, justify my concurrence wholly on the lateness of the hour when the defendant here first invoked section 2514.

We held in Little v. United States, 152 F.Supp. 84, 138 Ct.Cl. 773 (1957) (another veteran’s training school case) that fraud relating to some items of a multiitem claim forfeits all of them under section 2514, but the falsity was widespread and general. Here a few days tuition of two students only, out of thousands, is all the false claim that remains after the conscientious screening of the commissioner, and of the court. To apply the Little ease would be to elevate logic over reason and experience.

Such drastic forfeitures are apparently provided for elsewhere in our law, e. g., 19 U.S.C. § 1592. I think the Congress intended to rely on the Executive branch and on the courts to apply all such provisions in a reasonable manner related to the apparent purpose of the legislation, not just to its literal language. Church of the Holy Trinity v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892). To hold the entire claim forfeit on account of falsity in two items out of thousands would do more to discourage honest persons from doing business with the United States than it would to deter false claims. If reasonably construed, section 2514 is not harsh, though certainly drastic. I think the findings, as modified by the court, fail to disclose anything to justify a more sweeping ultimate finding that plaintiff has corruptly practiced fraud with respect to the proof of the claim generally, nence, I would restrict the forfeiture to the two items shown to be false.