Eastern School, a Partnership Consisting of Frank Simon, Benjamin Eizenman, Oscar Goldman, Phillip Laster and Samuel Frank v. The United States

95%, not showed schedule the revised calling three technical revision by completed 100%, to be of the work manuals, between issued Franklin to ac- if one were January 1963. Even June 1963. December 1962 and value, it cept plaintiff’s át face forecast production final It asked to furnish a was necessary unlikely work all the plans within These schedule two weeks. by 19. June finished have been submitted, timely and a second were not normally Board, there found February As request 1963. made on was up “carry-over” clean for “final that, was a project replied Plaintiff’s director target completion date organization after the work” received “At time this was schedule. Government work assignments person- these no submit- to review also allowed two weeks provi- place nel them available to into returned ted If a manual had work. sioning. However, time, per- since contractor, corrective work sonnel has become available and probably beyond the term have extended schedules will be as indicated submitted contractor and there then be new below.” The belated work schedules went proper at the site. for the Govern- beyond expiration Franklin’s contract contingencies. ment to consider these 19,1963 (one date of June ended schedule determining The Board did err in August 1963) rejected. and were On reassign decision cancel and February 7, Franklin resubmitted the responsible was within the bounds of schedules, planning now to have 95% discretion under the contract. completed the work June The Government found the schedules un- reasons, For- cannot acceptable projects. and cancelled the recover. The defendant’s motion Cancellation, however, only the affected summary granted judgment requirements parts narrative since the petition is denied. portion, work, as well as other had been dismissed. completed paid for. The ASBCA justified. found the cancellations agree. assigned normally

Even as to work

Marion, contract, Franklin’s as we noted, pro- did not it the exclusive make

ducer of the En- technical manuals for gineer certain Maintenance Center. circumstances, could Government SCHOOL, partnership con prepared have such manuals other EASTERN Benjamin Eiz sisting Simon, of Frank means. These included situations when Phillip Goldman, Laster enman, Oscar assignment the work “in excess and Samuel Frank capacity complete this contractor’s v. contract, under the or where the neces- sary UNITED STATES. capabilities technical cannot be equaled under this contract.” No. 229-57. provisions supports Either of these of Claims. Court States reassign-

Government’s cancellation and July many ment. These were indications that completed by the work would not be June 19, 1963—the contract termination date. project spoken

Plaintiff’s director had personnel

of the firm’s difficulties. The schedules, submission of the work them-

selves, completion was late. The date for rejected the first placed schedule was Then,

much period. the contract

prudence produced the G.I. Bills enacted for the benefit which were returning servicemen after World War typical II Korean and the War. case, primary “schools” issue a school entitled to whether higher instruc- tuition rate for veterans’ has allowed the Vet- tion than it been (VA). has erans’ Administration (although largely inquiry factual legal standard, governed e., “fair i. compensation”) and reasonable presented problems ac- of difficult counting There have and cost allocation. Douglaston, Benjamin Eizenman, N. subsidiary issues; example, for also been Y., plaintiff. point proper accrual of the Paige, and Louis Frances L. Nunn S. meaning action, terms cause of Washington, C., Asst. whom was D. “customary and “fair and cost tuition” Sanders, Atty. de- Gen. Barefoot compensation,” pres- and the reasonable fendant. presentation ence fraud present case claims to the VA. The COWEN, Judge, Chief Before primary raises issue both LARAMORE, DURFEE, DAVIS, COL- extremely subsidiary on an issues NICHOLS, LINS, SKELTON confusing, lengthy, record. and at times Judges. gratitude this time our We note at M. Trial Commissioner Franklin Stone OPINION thorough findings very prepared who Judge. trying LARAMORE, fact case under difficult this transcript circumstances.2 counsel are told We plete Com- with instances in which the last the so-called patience missioner acted with admirable Thus, opinion is “schools” cases.1 judicial juris- body restraint. our to a final contribution ; (1958) F.Supp. 637, States, g., 143 416 Ct.Cl. E. v. National Schools United Northwest-Broadcasting (1966) ; Sawyer, 578, F.2d 250 175 Ct.Cl. 361 d/b/a 610, States, F.Supp. Chicago Trades, 161 School v. United Inc. School of Automotive Little, ; (1958) ; (1964) States, 142 169 Ct.Cl. v. 167 Ct.Cl. 106 United d/b/a States, University v. United Southern School of Insurance v. West Coast United States, F.Supp. 84, (1963) ; 152 138 Ct.Cl. 773 Trade 162 Ct.Cl. Honolulu 310 (1957) ; School, Art v. United States, Center School 154 Ltd. v. United Ct.Cl. F.Supp. States, 916, ; (1961) 142 136 Ct.Cl. 218 Institute 397 Central Technical (1956) ; Schools, States, 377, Feener Inc. Technical 284 151 Ct. v. United F.2d States, F.Supp. 777, (1960) ; v. United 141 136 of Pho- Cl. 693 Germain School (1956); tography, States, School of Ct.Cl. 94 National 281 F.2d Inc. v. United Aeronautics, States, (1960) ; Inc. v. 142 F. United 150 & Len- Ct.Cl. 841 B. S. Supp. ; Hemp- (1956) States, School, 135 Ct.Cl. 343 ox Trade Inc. v. United Schools, States, ; Schools, hill (1959) Hemphill Inc. v. 133 Ct. United 145 Ct.Cl. 723 (1955) ; McSweeny School, States, Cl. 462 Trade Inc. v. 559 United 146 Ct.Cl. F.Supp. 591, States, (1959) ; Institute, Inc. v. United 127 Tennessee Mechanical (1955). States, 131 Ct.Cl. 445 Inc. v. Ct.Cl. 344 United 145 (1959) ; Empire Tailoring, Institute 2. refer here the conduct of one of States, F.Supp. Inc. v. partners partici- the Eastern who School (1958) ; Trade Ct.Cl. 165 Honolulu pated attorney trial both as an School, States, Ltd. v. United Ct.Cl. Perhaps personal witness. of his because (1958) ; College Massachusetts (in in the involvement effectually case which he is Pharmacy v. United Ct.Cl. fraud) accused of some- Training (1958) ; objections Radio-Television what overzealous in his Association, States, Inc. v. United cross-examinations of witnesses. ment, partnership person, known as such organized compen- of such “Eastern It was reasonable School.” fair operation sation as and commenced as a trade will exceed for an $500 ordinary year. City [Emphasis under name school add- school New York & Televi- ed.] of “Eastern of Radio School name of the sion” 1947. In 1949 the regulations July 1, made effective partner- school was abbreviated to arbitrarily the VA chose 30 weeks 1949, plaintiff ship name. On March period as the minimum for the establish- and the entered into VA contract customary ment only tuition cost. That specified V3006V-292 which institutions, nonprofit covered how- following rates courses two more,” ever. For “courses of 30 weeks January through December profit required institutions sub- course, 1949: Radio Technician “detailed, mit certified financial state- per student-hour; FM and Televi- $.495 showing ments most the recent actual course, per sion Technician stu- $.5866 experience cost of the for the institution dent-hour. These tuition are not rates specific courses involved” a “fair so that dispute proper in issue. The is over the compensation” could be and reasonable rate for a course called “Radio Tech- Change 7-5, determined. 4 to Manual nology” which offered for the regu- Ed.). (1949 C.F.R. 21.530 § 1, February time first 1949. This except expenses, lations “all stated that encompassed by course was also the expenses pro- for sales commissions supple- above-numbered contract in a plans, are reasonable motional agreement September 16, mental dated necessary operation courses for the of the by 1949. The rate tuition was set the in the cost involved will included be per Administrator of the VA at $.50 statement,” suggesting any reason- upon

student-hour based estimated the ably expense related be com- operation. 31, costs 1949, On December regulation pensable. was effect supplemental the contract and January 1, con- 1950 when agreement expired leaving the rate for tract, covering preceding months Technology the Radio course undeter- providing per a for rate of $.50 mined. student-hour, expired. point history helpful. At some particularly treat- This scheme— expired, After the initial contract a new “customary ment cost of tuition”— rate had to be established as veterans entirely satisfactory to either was not through continued to enroll in the course Congress schools, or re- VA the so fact, 1950—in until 1957. The adminis- sponded with two remedial bills. procedure origin trative had its Independent appended to the was 400(b) 1944 G.I. Bill. Section 1950, Appropriation Act of Offices Readjustment 1944, Servicemen’s Act of 631, (1949). provided It Stat. 284, 289, provided 58 Stat. as follows: subject for two for courses to contract years pay shall tuition rate [VA] Administrator successive by training to tion, recent the educational or be the the most institu- rate established person for a “cus- each courses without enrolled full contract. For part tomary cost,” time' or “fair and reasonable” time course of education a training, by customary or Ad- cost' tui- rate would be fixed VA. * * * ** tion, by *: ministrative was assured Provided review Appeals That if no creation Tuition such institution has “Veterans’ fee, bill, established Board.” The second enacted or if its estab- customary following year, preserved lished tuition fee shall found be changed first, inadequate Administrator cost definition of the compensation to the name of administrative board to such institution for furnishing Appeals Board” training, Education such education “Veterans*' (VEAB), provisions to provide pay- and elevated authorized to for the permanent Educa- fair and rate for status. Veterans’ reasonable law 1950, Training year calendar 1950 was stu- tion Amendments $.419 accordingly 336, history of dent-hour. 338-339. The Plaintiff was Stat. thoroughly year provisions paid is more at the rate $.419 Schools, plain- Hemphill Inc. v. Unit- 1950. For treated (1955). paid ed 465-468 rate 133 Ct.Cl. at the same because tiff end became the cus- $.419 Thus, at the time VA tomary of tuition. Plaintiff cost negotiating rate new right payments served its to contest Technology Radio calendar course for the in court. year 1950, interpreted the VA the law petition3 here filed Plaintiff prerequisite to mean that a cus- claiming difference May 15, tomary 2-year history, rate awas paid per student-hour the $.419 between customary that where there no rate of veterans instruction the VA a fair and reasonable rate would have to Technology course Radio in the enrolled contracting be determined officer. is al- per student-hour and $.533 contracting On October rate.4 legedly fair and reasonable officer determined that a $.3127 dif- Alternatively, plaintiff for the asks per student-hour was fair and reason- and $.50 ference between $.419 able, and offered a contract on alleges customary allegedly rate. objected basis. arbitrary, decision was the VEAB rejected Thereafter, rate and the offer. supported sub- capricious, and not 1, 1950, on November the VA renewed its charges evidence; specifically it stantial per offer with a rate of student- $.36 capri- “arbitrarily Board with appealed hour. Plaintiff de- second disregard [ing] sub- data ciously the cost termination VEAB on November fix[ing] School, Eastern mitted Appeal 10. Its Notice of contended that fair, reasonable neither rates that were per $.533 student-hour the minimum was equitable.” nor rate, alternatively, fair and reasonable or ptem customary that a cost of of government tuition on $.50 answered The Se per apply. student-hour should A hear- 13, 1957, the statute and raised ber ing year later, followed. one Almost defense. an affirmative as limitations 1, alleged 1951, hearing November a Ed.). VEAB ex- (1964 It 2501 28 U.S.C. § holding aminer announced his decision ac portion the claim which Technology 4, Radio course had not time- was 1951 June crued before acquired customary 1960, July later, cost of tuition be- years Three barred. cause it had not been under contract court leave obtained the defendant years, two successive so fair and three counter to add answer amend its reasonable tuition rate had be deter- second counter first and The claims. mined; this he set at student- $.51 False Claims on the founded claims were ap- hour. The any latter person determination was who provides that Act which pealed by making the Administrator of Veterans’ claim a false or aids submits January which, pay Affairs to the Board the United forfeit “shall 15, 1953, and, holding $2,000, in addi- issued a final decision the sum States erroneously Law 3. which was Public G.I. The Trial 1944 Bill Commissioner They (1944). re- are found that was 284 June 1957 the date of 58 Stat. day plaintiff filing. Also involved students. On to as “346” filed its first ferred students, petition printed “550” are so-called amended form. in this case The filing required although be- on their is made second original petition no claim because the They typewritten; who 550, veterans are Korean half. War rule 1(e) permits filing typewritten pe- Public Law benefits under received (1952). printed copies is Their titions on condition 66 Stat. 663 defendant’s be relevant in connection with filed within 20 thereafter. second counterclaim. higher The students whom the tuition is claimed under received benefits damages government tion, double the amount of under the standard Nager contract. States, Electric v. United the United States have sus- Co. (cid:127) —(cid:127) doing (1966). F.2d tained reason or com- Ct.Cl. We held together right mitting act, disputes action on the costs aris such ing (1964 Ed.). (disputes under the contract suit”. 31 clause U.S.C. § The based on the first accrues when the claims) first counterclaim is adminis * * * language: final, “Any person trative action who a like * * * upon shall make against or result should claim obtain “a claim’ ‘breach spawned under a of the United contract which has also * * * * * knowing litigation' ‘disputes-type’ States such claim items * false, fictitious, principle *.” because of or fraudulent indi one normally gives visible relates to “346” students whose tui- contract rise directly F.2d, tion from the received to one cause of action.” showing VA after it submitted vouchers Supreme adopted ap Court the attendance each student. sec- proach disputes as to clause claims ond based on lan- counterclaim is Crown Coat Front Co. v. United * * * who, guage person “Any : 386 U.S. L. 87 S.Ct. aiding purpose obtaining for the or (1967); Ed.2d 256 it did not reach the payment approval obtain the of [a question of time first accrual for * * * false to be causes claim] breach claims. * * * used, any made or false cer- * * tificate *.” It to “550” relates here for This case review whose, students6 rendered under administrative decision ceived from the students after the VA disputes 321- clause. See U.S.C. §§ paid them; plaintiff prepared the at- Ed.). (1964 Nor is it as here Nager tendance records the students sub- Electric breach claim. So mitted third counter- thought application. VA. How- no be ever, to have predicated reasoning claim section 266 of Pub- ex- used there is lic and establishing Law 550 1503 of 28 tremely section U.S.C. what instructive (1964 Ed.), allegedly applied would entitle case. formula in this should be overpayments Nager to recover starting point Electric was of An veterans’ benefits. additional general first accrual should rule that counterclaim raised in the trial. oc- be “the time all events have when It based on alleged section 2514 of 28 U.S.C. curred the Government’s to fix (1964 provides Ed.) for- entitling for the liability, de- claimant to any claim of claim- payment feiture entire mand sue here for his and practices prosecu- ant who fraud money.” F.2d, 851. It was fur- at tion of the claim. prerequisite that ther “[t]he stated that lawfully plaintiff de- be able to must We address ourselves first to stat- early payment goes mand back to the problem, ute of limitations to .then points of this court.” Ibid. Both higher of merits claim for a supported by were numerous citations. rate, finally to and defendant’s analysis of There then an followed counterclaims. rule in manda- contract cases before the I. STATUTE LIMITATIONS OF tory disputes era clause and discussion (1964 Ed.) by agreements, Section 2501 of 28 U.S.C. of aberrations caused bars pe- a claim special statutes, in this court “unless the and other factors. The tition years through running analysis thereon is filed within six thread single after such prin- claim first accrues.” Recent- “that there no inexorable ly the ciple litiga- court appli- reviewed detail the of limitations contract language cation terms, of accrual” “first tion but the individual con- disputes ditions, breach always practices claims and clause claims must be 4, supra. 5. See n. 6. Ibid. 1951; April 30, 1950; January 1 to F.2d, From at 852-853. studied.” 1,1951 also de- May This letter on. from off into

there the court branched covering procedures forth fined and set analysis special rule for a of the reason make-up absences, in- attendance, judicial of where “first accrual” procedures which had thereto- ripen claim administra- cannot until struction — fore been undetermined. stop remedy short tive is exhausted. We here, confining inquiry ourselves suggests us pattern This fact contracting to a review situation position plaintiff in a plaintiff between VA which higher rate payment until demand proper should indicate for de- course prob July 17, 1952, earliest, and at the termination time of first accrual. appears ably September on, plaintiff It should be recalled that the contract and the that from 1950 both anticipated covering Technology VA the Radio course would establish rate contract which 31, 1949, terminated on December but retroactively apply prospectively plaintiff continued to instruct vet- govern procedure for de would plain- erans thereafter. The VA advised termining compensable number September 6, tiff on it 1950 that would fact, parties hours of instruction. pay an “interim rate” of [tuition] $.30 agree a formal never able (as compared student-hour with $.50 unilaterally had to contract and the VA contract). under the old The letter as- procedure substan establish plaintiff payment sured in- tiating for veteran stu tuition claims prejudice terim rate would be “without importantly, * * * * dents, perhaps * * more right [its] absences. reasonable standards receive such rate as established September Before it did the final contract.” rate interim de perhaps have plaintiff could date was boosted to on November $.375 higher of a payment manded plaintiff appeal filed its refusal, upon any sued time, plaintiff offer. At $.36 arrange with the inconsistent have set- was instructed to submit vouchers contracting contemplated ment ting total number hours forth knew, the VA parties. For furnished, instruction without given every ultimately it designation individual students desired; not un thing least was it it number hours furnished to them. negotiate for reasonable These also advised instructions arrange years, hoping the final two ultimately prepare have to short, satisfactory. In ments listing each veteran itemized schedule the is a case think this applicable fees, and all be submitted oc accrual principle familiar In of a final rate. determination perform completion only upon curs January 1951, 30, a letter dated the VA individual “the bend to ance should arrangement. billing continued this bulk practices” conditions, of the terms, 17, July 1952, the its On VA reversed situation, point here particular method; position billing it bulk 26, time when September 1952 “as given two notified it would be * * * to fix the occurred all events prepare in de- months to final vouchers Nager liability”. alleged Government’s for tail and with to each veteran F.2d, Co., supra, at 851. 368 Electric period payments, and that interim therefore entire claim Plaintiff’s payments henceforth interim be timely. billings only made on the detailed basis government attention our directs September Then, for each veteran. Tailoring, v. Inc. Empire 26, 1952, spec- Institute letter the VA sent another 409, F.Supp. Ct. States, 142 ifying procedure pay- 161 interim (1958), schools similar regard a rather Cl. 165 ments of the follow- each time- 31, a claim ing court held periods: January which the case 1 to December brought being per six tuition rate for not within student-hour $.419 barred Technology years performance of the services. Radio of the course was fair rejected tolling argument reasonable, (2) A was there the esti- grounds administrative mated annual on the instructional hours for the mandatory. 148,720 hours) appeal proceeding course not should was be was 411, capricious, F.Supp., Ct.Cl., “arbitrary, erroneous, at at 168: and not supported by A more recent case referred to us substantial evidence.” On Congress, admittedly in conflict with basis record administrative Empire Chicago and the Institute. of Au- record made in a School trial de novo Trades, him, tomotive Inc. v. United before he determined that the fair (1964). 167 Ct.Cl. 106 In the view we and reasonable rate of tuition for present case, however, it take period commencing January 1, 1950 was necessary for us resolve this con- per $.494 student-hour and that flict and cause of determine whether proper figure annual instructional hour action adminis- accrued the time the 145,090. urges adop- Plaintiff now process completed. trative are tion of these as modified simply holding that on of this facts addition of $.024 student-hour case, particular reference to the ne- supervisory allocable per- cost gotiating posture parties, plaintiff argues sonnel. Defendant practically pay- could not have demanded Board decision should overturned higher ment of the until VA or modified unilaterally because its conclusions were procedure for established the supported by itemizing vouchers attendance record made before it.7 formula. really argument This is the ad- ministrative decision is entitled to final- The Trial Commissioner found the de- ity.8 (holding (1) cision of the VEAB negotiating pre-Bianchi purposes 7. For this a new tuition court era. See year 1950, Co., for the United States Carlo Bianchi rate gave calendar v. & peri- 709, 1409, the VA a cost U.S. 83 S.Ct. 10 L.Ed. statement (1963). Actually signifi- 1, od November 2d to October are Actually, cant differences between the cost statement covered period process contract administrative 9-month of the Radio Tech- and the process, nology life, February e., VA’s administrative course’s i. suggest scope negotiations a broader October con- pos- review 1950, making latter area. tinued into November sible for to submit a more recent The VEAB was first established in cost statement for the November permanent and was made a fixture of Hearing 1949 to October 1950. The year. following VA the 63 Stat. Examiner refused to consider later (1949); (1950). 64 Stat. reviewing cost statement. the Examin- gave right Both statutes contractors the fixing rate, er and a new the VEAB did to Board review of the Administrator’s de- cost consider later statement as well subjected proceedings cisions and Board the earlier. Both now as statements are provisions of sections 5 11 of parts before court as the adminis- the Administrative Procedure Act. It was trative record. provided also that Board “shall decisions raised, constitute the final 8. Since the issue has been think administrative deter- say appropriate, something mination.” it is The combination of section about Act, scope judicial of of 10 the Administrative cases. Procedure review these scope judicial ostensibly applied which limits the of review The Commissioner has decisions, here, of administrative and the “final familiar substantial evidence test thereby language suggesting perhaps thought administrative determination” of that he statutes,' might that, finality suggest the VA decision was VEAB entitled to VEAB decisions should nality to fi- under be entitled Wunderlich Act standards. See 41 judicial (1964 Ed.). with review to the U.S.C. 321-322 His de- limited §§ now familiar standard. cision to See conduct de novo trial to build United Mining Co., States v. new Utah Construction & record was not inconsistent finality (1966). 384 U.S. S.Ct. on administrative because review a First, regarding application accepted procedure de novo of the Ad- record was correctly the esti- The Board determined We think the Commissioner Radio Tech- in the mated enrollment not Board decision was found that 148,720 nology annual should be Course supported by substantial year hours for the calendar it, instructional the de- if so whole record before this finality, It will be remembered it could entitled to cision were figure purpose of divisor for the is the the Commis- think We also be vacated. allocating aggregate findings costs. It arrived properly on the made sioner assuming arbitrarily figure by an at this true whether This be rate. tuition of students in each session it If enrollment is final. the Board decision (78.57% capacity of course, prob- of the maximum is, final, no is not may by City build- lem; final, New York permitted de- the court if it is by concluding multiplying ing regulations) this proper rate after termine the per sup- week original instruction 65 hours of decision per (44 evidence, given students by ported because sessions in three substantial proceedings per x weeks suspend week futile to x 65 hours it would be session passing by year). per Board noted redetermination for administrative longer consistent See United exists. estimate was board that no Mining cost experience Construction & shown States v. Utah the actual Co., months L.Ed. first 10 statement 384 U.S. S.Ct. adjusted (1966). adopt all the Com- Commissioner 2d 1950. The Trial We figure tuition rate on the the Board's take account missioner's holidays supervisory personnel. fall each except which those six national gives year. instructional This annual per rate The tuition student-hour 145,090 par- figure both hour totaling expenditures determined adopt. accept which we ties dividing following items and each regulations, plaintiff was each number of instructional total Under VA through compensated spread: be over should entitled to be hours “[ajctual Sup- Teaching Personnel, cost Consumable Maintenance, teaching personnel at reason- plies, Operation and Taxes and related (re- category salaries,” Insurance, Expenses, Administrative latter able Advertising. “personnel Depreciation, personnel) Rent include lated teaching as per produces function such the correct allocation essential profit laboratory supply item. A room attendants student-hour of each cost assisting personnel of all teachers allowance of one-ninth the total clerical material preparation added to of instructional costs student-hour is then 21.530(b) (1) briefly produce tuition rate. records.” 38 C.F.R. § We undisputed components appears (1949 Ed.). view each of the contested be generally in- should a tuition rate below. important Act, language, it should it is ministrative Procedure tive determination” sitting very language to note we are not as a court noted different be disputes appeals of an ad standard to review the actions from that used body; provides [of us the “decision this case before ministrative clause jurisdiction. contracting be final and Plain shall officer] under our Tucker Act parties upon hereto.” tiff to review conclusive also have entitled more Fed does no than determination in another conclude the statute the rate court, the end a Board marks eral it chose instead to sue state that decision process. party Of course other of the administrative States as the United Hemphill Schools, to some is entitled the transaction. See the Board decision weight, great weight, perhaps and it v. 133 Ct.Cl. Inc. policy (1955). suggestion to defer in the as a matter There is no desirable expertise. However, statutes of the Admin Board’s standards very apply policy kind is different istrative Procedure Act decision should govern- system although standard from the mandate the another of review — disputes Sec ment clause. be an unreasonable result. contract’s ond, “final administra- to the assistants’, per year teachers’, laboratory furnished 52 weeks elude supervisors’ and “teaching for the salaries the cost of necessitated substitute teachers as permanent period personnel.” teachers question The here were on plaintiff proved is that its vacation. evidence is clear that whether has The employees qualify. were to three weeks instructors entitled pay vacation with so it must be conclud- regard instructors, With to the alloca- figures ed the Board’s under- total tion of their cost each student-hour salary stated true cost. We depends instruction on student- computa- method of Commissioner’s ratio, teacher ratio —the lower the multiplies tion which teachers for 2% higher projected The cost. Board (the applied each session ratio to 44 18:1 per of 44 session enrollment students per students times the annual session) that two determined teachers would augmented compensation per as teacher adequate. produced be This a ratio by a vacation allowance. 22 to 1. have reviewed We adjustment which was before con- the Board and Plaintiff asks for a similar (to proper clude leave) 18 to 1. ratio is take account of annual for its Technology laboratory The expense. Radio course two assistants’ It also aspects; taught theory urges figure by students were allowed laboratory practice substantially adjusted lecture classes and should Board upward be laboratory classes. The breakdown hours to reflect of a the cost percent every per- lecture classes or stock assistant room man for laboratory capacity apparently cent classes. The session. The Board deter- laboratory figure plaintiff’s was 14 students. This mined that used in might support period information alone cost statement November figure (as higher well as some or 1949 to October was correct ratio). evidence, figure accordingly. lower There is other and decided That however, indicating high. likely 22 to 1 is too most takes account annual VA, cost; presenting The its to both leave from case this follows the fact Hearing plaintiff’s prior Examiner and the Board statement ac- cost appeal, asked for an 18 to 1 ratio. counted for the effect annual leave period personnel. agree data for from cost with the We through plaintiff November October Commissioner that has not experience figure unsupport- showed that the actual shown the Board to be was a 12.8 to ratio. ed note substantial evidence. We also suggests prop- plaintiff prove information that the able has not been something er figure present ratio is less than than more accurate supported 1to ratio is the Board’s. figure evidence and in fact a satis- regulations’ earlier, As noted defi- factory VA, to both if and the “teaching personnel” nition of suf- not to counsel. ficiently comprehend super- broad to applied visory personnel. The student-teacher ratio is Defendant con- projected student enrollment cede this on condition that su- compensation annual per pervisors “necessary perform- teacher to the compute figure the total for “teachers’ ance function in the instructional computation particular salaries.” In its the cost course involved.” The Board instruction, prove the Board its 22 to used held that failed to salary figures necessity supervisors ratio and the stated three course, teaching ($5,565 Technology union contracts annum of the Radio teachers; day agreed. $3,339 per annum for our Commissioner night teachers). objects prevail to this conclude should computation grounds. objects point, two reason- that its allocation is salary fig- supervisors to the ratio and contends the able. issue reviewing charged ures are understated because instruction the conduct of laboratory required salaries, $37,375; tors’ teachers, preparing assist- forms salaries, $2,709.25; supervisors’ Department ants’ of Edu- New York State salaries, $3,312; (4.6% payroll assuring properly tax cation, tests were “Teaching $43,396.25), $1,996.23; reviewing progress given, stu- total laboratory Personnel,” “Teaching $45,392.48; dents, guaranteeing Per- and per ($45,392.48 experiments sonnel” student-hour had check sheets and by 145,090 hours), graded. These divided completed properly $.3129. closely to instruc- related functions are also made The Commissioner necessary tion, for instruc- and indeed operation mainte- with nance, depreciation, to proof plaintiff's It on this tion. is true expenses. and rent point Board and in the both before plaintiff case each he found that self-serving primarily novo is de trial not shown that the Board’s decision was partners. is It of one of evidence, unsupported substantial supervisors was of the also true that one proof refused consider offers However, partner. rea- another seems supported allocation theories (at sonable conclude least as to did, presented to Board. He how- supervisors) that the su- two unrelated pervisors modify ever, computations to the Board’s necessary business, changed take en- account of student contrary. showing to the absent some figure. plaintiff rollment nor Neither proved this much. has findings at defendant contest the this possible functions could also that their stage. ,adopt the Commissioner’s functions, be described as administrative computations for reason and omit they com- but in either would be case references to substantial evidence pensable (though perhaps in test and the refusal consider offers course). factor rate of Another another proof. persuades supervisors’ sal- us the supervisors’ The addition of the “teaching aries should be included profit on them salaries allowance personnel” cost included brings (%) “Teaching Personnel” supervisory in other similar costs YA “fair and reasonable” tuition amounts, cost As for the contracts. per This is more student-hour. $.5209 statement for November 1949 to claimed than the student-hour $.50 su- October shows three by plaintiff as the alternative pervisors wages annual total “customary doubt of tuition.” No cost $26,820. roughly 12 Plaintiff allocated happy to abandon percent figure of this Tech- the Radio now, and the defendant alternative nology reasoning course, alloca- that the quite it. it is like us to thinkWe tion should be on each course’s based scheme, statutory how clear from the share of the number instructional total “customary ever, plaintiff had no produced hours for the school. This course cost tuition” 1950 since the supervisory figure $3,312 total cost old, so 11 months the VA pay. which includes vacation This allo- sought quite properly to estab the Board quite cation seems reasonable. It is rate which lish “fair and reasonable” same ad- formula as that used to allocate we have redetermined. expenses, ministrative and defendant challenged ex- administrative III. DEFENDANT’S COUNTER- pense allocation. CLAIMS subject per- All salaries were 4.6 (A) First Counterclaim— dispute payroll cent tax. There is no Students “846” salary part cost to that this was alleges counterclaim Defendant’s be included Simon, Benjamin Thus, “Teaching Eizenman that Frank Personnel” cost. School, “Teaching computation partnership, Eastern their correct prepared and submitted item false vouchers Personnel” as follows: instruc- 432 get payments

them to differ on terclaim because somewhat YA application Specifically, proper defend- of the burden “346” students. test; alleges knowingly proof per- ant over- defendant not that eight convincing stated suaded us evi- the attendance of veterans partners overpayment that or or in the dence resulted agents hours, knowingly 213.5 false claims. or Under the False submitted $89.33. Act, (1964 Ed.), Claims 31 U.S.C. § convincing most, there is clear and At proof allegation of this entitle de- eight evidence that five of the veterans (double fendant $178.66 $89.33 they periods absent for when were were damage suffered) plus (five $10,000 for- present, the five marked and that four of $2,000 each, representing feitures of Simon, who were absent informed Eizen- falsely five vouchers or claims they be man or an that instructor ported eight the attendance of the vet- absent. As the of the five vet- sketches erans) . The Commissioner on the found show, erans below these facts do will testimony eight basis of vet- prove Equally fraud.9 consistent with erans and other evidence that there explanation fraud facts is the ex- convincing” “clear and that five evidence planation sys- attendance eight longer of the pe- were absent deficient, rec- tem have been or its riods than their in- attendance vouchers ord-keeping practices possibly were inac- dicated and that Frank Simon Ben- sloppy. prove or curate To fraud jamin knowledge Eizenman had of this defendant would circumstances fact so that the vouchers “constituted or Eizenman show that Simon payment false fraudulent claims for management person group another presented against agency an only “knew” these students ab- the United States.” sent, wilfully but also decided to mark present VA-required on them vouch- agree We with the Commissioner ers, policy or that mis- was a prove has the defendant burden report, or Eizenman that Simon convincing” “clear and evidence made no effort certain that stu- question knew claims they whom dents knew were absent false, fictitious, here were or fraudulent. reported absent. The evidence 778, States, See Klein v. United 285 F.2d required showing might for this be the (1961); Ct.Cl. Kamen testimony regarding employee his Soap Co. v. Products United instructions from Simon or Eizenman F.Supp. 608, 620, 619, 642 129 Ct.Cl. prom- or the of students that a (1954); Grannis, States v. present. ise made them to mark cert, Cir.), (4th denied, F.2d 507 337 U.S. record the “346” students is barren (1949); 69 S.Ct. 93 L.Ed. 1727 such evidence. McCormick, (1954). And Evidence § example, we are For found of the the fa Commissioner mindful fact Anthony Papevies presumption P. miliar was absent of correctness of days July although findings least seven Commissioner’s has additional import force to the showed here because voucher submitted VA obvious days. credibility Papevies ance of him absent demeanor and two vacationing effectively “cold, cannot be testified that he recalled reviewed in Pennsylvania during printed Note, Appellate Re full record.” See two weeks Findings July. view in is reasonable to assume the Federal Courts of Requiring Preponderance absent than that his recollection reliable More proof contrary. Evidence, He also testified 60 Harv.L.Rev. (1946). However, adopt he told or Eizenmen we do not either Simon findings planned absent, his coun- to be and that the first ultimate comment; parties have not ex- the Commissioner’s out regarding cepted other with- to them. the three veterans finding was absent would be “all DeCuir him it assured one them days August however, not find not, do right.” Papevies ex- did fraud right” clear plain The VA “all meant. what plaintiff’s part. permitted of an- students 80 rules know, leave; or for Simon nual we relating Louis Fish- to The evidence right” on “all it Eizenman meant was July days alleged in man’s absence yet assumption taken his an- had he not testimony again recollection 1955 is adopt short, we nual allotment. by re- to seeks discredit which Papevies that Commissioner’s ferring to a statement written July 1955, days in but was absent seven gave He the FBI in 1958. Fishman convincing evi- not clear and do find we apparently he vacationed said then that dence of fraud. July statement in 1955. June or evidence; in would not' introduced it was unreported of Maurice E. absence plaintiff’s purpose it if were. not serve August days in 1954 is DeCuir for 12 finding adopt the Commissioner’s We proved only by testimony also not his but days for 11 school that he absent was stamped envelopes by in- airline ticket July 1955, find fraud. in do not but in cluded the record on an offer of testimony is not even Here there conflicting proof.10 is in There evidence it him told that Simon or Eizenman apparent- the form of an attendance card only away; right he be all to be would ly signed every day DeCuir on school an that told Eizenman testified he August in not resolve the He did from this cannot infer instructor. We testimony. conflict his He was unre- reported was absent fact that he sponsive on redirect exami- when asked truly days two that completed he nation whether an at- ever knowledge had the absences. tendance on card an extended requires standard only way one occasion. The recon- showing something a that one more than cile the is conflict to assume stopped a hundreds school student regarding testimony trip his and the cor- report prospective in hall officer provided by roboration the airline ticket absence. envelopes consider- should entitled to weight ably more than the attendance said of can be Much same very easily relating Rudolph card which could at- have Stone’s evidence signed This, course, reported time. does one absent He was tendance. August plaintiff’s part July on days show fraud with- in two each plain- out the witness statement testified that he was vaca- but gave agents or its July tiff him card in and the tion last week they complete eight August blank and him told total of school week —a falsely. testimony days. it his Nor does doubt DeCuir’s reason to There is no significance greater him “someone” the office told it recollection. Of right issue, would be all to “take the vacation” that he told the fraud he testified prove representative fraud. There no evidence that some unidentified away going he was not entitled to as much vacation and this he school that was adopt he as took. it in person the Commissioner’s care of will said “we take witness, noting agree ruling, was After DeCuir excused as a that this and his evidently problems with him and defendant talked of similar evidence a number govern- duplicate airplane found he out that had have been avoided had could Many envelope, stamped thoroughly. prepared tickets ticket more ment testimony. his indicated would corroborate witnesses requested they al- have Defendant that DeCuir be cross-examination testify again their lowed to because of this could corroborate some records which testimony. “newly Evidently government nev- discovered evidence.” The Com- information, testimony attempted get there- missioner offer took an er proof, by making proof difficult. al- its case more but after the trial decided to low the new evidence. We suggests fraud, Steinberg the office.” This but should have on the examined it is all clear does. For and con- circumstances of his discussions with vincing expect stopped we Simon Eizenman and not representative having Steinberg testify identification he repre- at least an assurance it was absent and told also, worry. sentative. Then determine There fraud in the a hint of meaning words, setting us, record before the facts are also they spoken, important. interpreta- consistent with an innocent government might made tion. We find- Commissioner’s proof ing if Steinberg it examined on the sur- Stone for seven was absent rounding circumstances, July 1955; or if had de- of both 1954 veloped through Stone some evidence do not fraud. find tying conduct the al- to (B) Counterclaim —“550” Second lowance VA of a full subsistence Students for the check in which the unre- ported absences al- counterclaim occurred. Instead second Defendant’s simply stopped Benjamin Simon, Eizen- leges its examina- Frank that establishing tion after Eastern partnership, the absence and their man and of recollection sub- School, prepared the conversation. We and vouchers false adopt finding of Commissioner’s on on behalf to VA mitted them 8-day absence, but P.L. we do not under find fraud. to benefits entitled veterans alleges Specifically, defendant 550.11 relating The evidence to fraud in the knowingly overstated preparation and submission of the vouch- dif- of nine veterans attendance Joseph Steinberg perhaps for ers over- resulted ferent certificates which strongest of He after all. testified that Under payments to the veterans. informing both of Simon Eizenman and (1964 Act, False Claims U.S.C. § plans July vacation for and 1955 e., allegation, Ed.) proof i. of this worry he told: “Go Don’t ahead. * * * used, [a] “made Again, problem about it.” there is the * * * * * * certificate false meaning intended of that advice. * ** aiding to obtain purpose of Objectively, nothing there claim],” would payment false [of falsify words to indicate an intent to (12 forfei- $24,000 entitle defendant Subjectively, however, they records. representing $2,000 each, tures of permit well the inference Simon reported the falsely certificates promised Steinberg and Eizenman veterans). of the nine attendance report school would not him absent. on the basis found Commissioner supported by This inference Stein- testimony three of the nine veterans berg’s got his $60 taught “550” who students teachers per month subsistence allowance both longer of the nine were absent five periods absence, that he knew VA training periods than the certificates days allowed 30 before de- leave indicated, and that Frank Simon ducting day absence, for each $2 knowledge Benjamin Eizenman had that he had had a substantial number fact, “con- the certificates so that early probably of absences in 1955 which claims false and fraudulent stituted up days. used his 30 But this inference against presented payment requirements does not meet the of clear agency States.” convincing Stone, evidence. As with convincing the defendant able think there is clear and prove knowingly pre- case had it conducted a more evidence that thorough It respect of its pared examination witness. Jose false claims with directly VA, paid 11. Under Public Law 66 Stat. 663 which then benefits (1952), paid who, turn, it will be recalled schools sent to the veterans certifying vouchers veterans’ attendance to schools the “fair tuition. and reasonable” Huertos-Ramos, completed by in the office later someone A. Rosa-Garcia and Jose present. to show the student Glikin and find- the Commissioner’s Paniague or Eisenman told ings respect same said Simon For the to them. occasions mark some them on several we did reasons find present who been absent students of a violation beyond 2-day period. Rancier consideration Act in our False Claims practice counterclaim, called was a continuous not find we do the first from seven 1952 to 1957. violation with do, however, adopt witnesses. We other deny in does regarding Commissioner’s leave structed teachers to the attendance witnesses, other the attendance record blank after two of absence. omitting is- his conclusions the fraud explains procedure designed this as a sue. put keep good pressure on veterans that he went Jose Rosa-Garcia testified e., attendance —i. administra school Rico on March to Puerto quickly put pro tion notice stayed died, until his mother longed absences and able to deal with death April is corroborated problem. addition, Simon and Eizen returned, he dis When he certificate. they man both in testified never di On Simon. cussed absence with his report structed teachers to students could examination Rosa-Garcia rect present who were Plaintiff at absent. He re to him. recall what Simon said tempted contrary discredit to testi given only an at was called that he mony eliciting testi the teachers sign to and di in blank tendance card mony happy that teachers were not On cross-ex to to class. rected return working with conditions moved a and to amination, quite firm in declar he was competitor school. there such Where ing mark him that never told to he Simon weight conflict, great we think should promise present he did Simon that nor given to the Trial Commissioner’s fact, present. be marked In opportunity conclusions. to He had only him for four marked school absent observe the witnesses' demeanor days evi in March whereas credibility. evaluate their in this he absent at least 12 dence is clear was stance, he concluded that the teachers all, days. have If this were telling adopt were the truth. this to to as we did conclude conclusion. although counterclaim, that exceptions Plaintiff asserts in its was absent Rosa-Garcia shows findings that Rancier days the Commissioner’s March it does not show teacher and that Rosa- is shifted the was Rosa-Garcia’s fraud. The balance teachers, notably testimony Garcia told Rancier on March that of his mother’s death his intention Pablo R. who was Rosa-Gar Rancier go Rancier, Meyer Glikin, day Puerto Rico that her instructor. cia’s this, plaintiff Ralph Paniague, From infers funeral. testified sympathy they Rancier “out of Eizenman for the student were Simon and told hardship meetings which caused the ab- written memo staff and in sence, present stop marking absent marked the when randa to a student student actually he finds Accom absent.” two consecutive absences. Paniague’s support panying inference in an ex those instructions was occasionally planation marked do this he teachers should * * * present give students absent with- be who were “to a break [students] they approval. something, inference out office’s cause sickness proof absent, told falls with the that Rosa-Garcia the check [from have been Although Rancier Simon about the absence. would be short.”12 VA] prepared proof there is no that Simon he left stated that the entries blank Tr., p. 846. training, days.13 Rosa-Garcia’s certifícate of about 15 The certificate of train- ing reported knew about instructions to teachers four further absences. He regarding absences and must known testified on his return he wrote that either Rancier or of- the school someone officials and then went to see (who, course, fice under them because he was worried that he control) get would would Simon’s “short' check” Eizenman’s from VA procedure away. follow the and mark Rosa- for the plained he was He “ex- present. (or pos- Garcia not facts These are the situation” to Simon equally sibly Eizenman, definitely which are consistent with one of them) interpretation. replied, worry clerical error There is who about “don’t plain- assauged by it.” evidence that His worries were later falsify tiff instructed the teachers at- the check from the YA which was tendance, Rancier followed short.” Plaintiff cross-ex- “three policy many occasions, closely quite that he knew amined Huertos-Ramos absence, trip Rosa-Garcia’s that Simon Puerto his about the recollection (who responsible get say with Eizenman Rico. It him was able policy) absence, frequently knew of the and that Rico he travelled to Puerto training report the certificate of did not the mid that his mother and late ’50s and prolonged absence. Plaintiff cannot avoid illness. doubt had This casts sponsibility ability testify certainty for the false certificate his these circumstances. We Com- Rico in 1963 that he went to Puerto finding missioner’s February situation, is clear In this it is convincing proof of a violation to defer to trier fact who best False Claims Act so that defendant is en- was the credi- best situated to evaluate titled to from bility recover Eastern of the witness. The Commissioner School, Simon, Benjamin Frank proved found Huertos- defendant Eizenman, jointly severally, $2,000 during period; and Ramos was absent as a forfeiture. adopt noting conclusion we witness’ supported by absence is recollection relating The evidence Huer- to Jose A. memory in his of a storm similar, although plaintiff tos-Ramos is Rico, delayed return, his Puerto which establishing proof comes close that the trip— as well as the circumstances of the unreported absence is less than e., responded i. he to a letter from his convincing. We think defend- mother. ant burden, has met its Huer- however. adding proved by The fraud is the fact tos-Ramos testified that time in some that Rancier teach- was Huertos-Ramos’ February 1956 he to Puerto Rico to went together enough very er. This to tie visit his mother who His was ill. absence, knowledge recollection was that he was school fact absent Simon’s agent only any “signed” statements, FBI An testified at the trial but also prepared approv- adopted a written on the statement statements “otherwise ed,” 3500(e) (1), basis of an interview in he had reason of and that § sign produce Huertos-Ramos who refused to failure to defendant’s the state- question, statement because “he couldn’t remember in ment Huer- the exact date” of his absence. Com- tos-Ramos should be stricken. missioner ruled that the defendant did not made the We think the Commissioner produce ruling. have to the statement or show it correct It should be noted first plaintiff unsigned applies because it Jencks Act crim- approved. Citing Campbell proceedings express v. United inal § terms. 3500(a). 373 U.S. 83 S.Ct. This is neither a criminal nor a (1963), quasi-criminal proceeding L.Ed.2d 501 which was decided as the discussion subsequent argues trial, plaintiff jeopardy infra, text, of double in the Act, Second, now that under the Jencks 18 U.S.C. makes clear. it should be em- (1964 plaintiff Ed.), phasized sign § was entitled that Huertos-Ramos did not statement, pro- approve to see the that statements the statement or otherwise ducible under the Jencks Act include not contents. counterclaim, spect do not so report to this we fact, policy to school’s present discuss it. students were absent. As who Rosa-Garcia, respect concluded with press here a new Defendant does the cumulative facts effect meets on 28 U.S.C. § counterclaim based require- proof the clear and (1964 Ed.) provides forfei ment; they equally are not consist- “by of a claim ture States interpreta- ent with a clerical error any person corruptly practices or at who It tion. is no answer to the fore- tempts against practice fraud going that Huertos-Ramos was enti- statement, proof, United States days tled to 30 of annual leave and establishment, or allowance thereof.” probably he had used it forfei fraud would work a Proof of this February or that his ill- mother’s claim. ture of entire ness reason for an against this counterclaim defends excused Absences must absence. ground apprised of it for ported regardless they of the fact received defendant’s time when it be allowable. We Com- answering It in November brief finding missioner’s there is clear 14(b) (9 present rule cites this court’s convincing proof of a violation of the edition) (b) prior provides False Claims Act so that defendant is en- (in (1) of fraud that “in all averments titled to recover from Eastern cluding plea by United States School, Simon, Benjamin Frank attempted practiced or Eizenman, jointly severally, $2,000 meaning practice fraud within as a forfeiture. * * * 2514) circum U.S.C. § * ** The evidence with Gabino constituing shall fraud stances Ocasio-Santiago, Diaz, Marcos and En- particularity.” In review be stated rique proves transcript, ing Nieves-Maldonado absences we observed that day days February 9, 1963, 1956), (14 (July days last trial, government March, to amend April moved 1956), counsel (4 government’s counter January answer December 11 in proof. 1957), respectively, considerably Section claim to conform to the subject mo reported. matter of exceed the number 2514 was the Like the So, relating claim com cannot to the “346” students in tion. however, correct, surprise. counterclaim, however, plete the first the evi- proving rule failed to follow the dence that defendant these absences not does prove prerequisite main proves fraud. out the At most which sets it that We, taining Simon or counterclaim. Eizenman a section 2514 of knew ab- reject therefore, with worry. sences and counterclaim told the students not to reaching any There is no tie-in out merits. of the teach- Accordingly, ers. we the Commis- (D) Defenses Plaintiff’s sioner’s that these students were absent, but judgment argues omit his to fraud. references that Act under the False Claims defendant (C) Third Counterclaim& Claim of exposes double Eizenman to Simon and Forfeiture jeopardy Amendment be- Fifth under the already they been tried cause have The third counterclaim is founded on acquitted each (1964 in a criminal action as to Ed.) gives 28 U.S.C. § alleged this is jurisdiction give judgments this court item of fraud. Allied to upon argument allegedly a second set-offs. that doctrines The set-off is judicata by estoppel should provisions or res collateral warranted those of the G.I. In apply prior acquittal. recovery Bill because allow the of over- considering arguments, payments assume we veterans. defendant ac- damages correct the criminal neither submitted evidence requested findings facts. tion involved same nor of fact with argument jeopardy dis- CONCLUSION

The double by posed ex rel. United States conclusion, plain we hold that 537, Hess, Marcus v. 317 U.S. S.Ct. timely filed, tiff’s claim (1943), 379, 87 L.Ed. 443 and its suc- “fair and reasonable” rate of States, cessor, Rex Trailer Co. v. Technology the Radio course $.5209 148, 219, 100 350 U.S. L.Ed. S.Ct. per student-hour which takes account of (1956). cases, In those Court held adjustments “Teaching Personnel” predecessor provisions category including cost allowance remedial, False Claims Act were civil supervisors’ salaries, and that criminal, subject persons not so $2,000 is liable for two forfeitures criminally already them who had each under the False Claims Act.14 prosecuted put jeop- not in were double Judgment shall entered for ardy. $2,000 Court noted in the amount the difference between pay” provision “forfeit and double student-hour $.521 damages appear- th sanction have o by Board, $.419 determined times being punitive, U.S., ance 1,042,900.3 hours,15 $106,375.83, they 63 S.Ct. fact in amount $4,000 shall be reduced appropriate damages measures civil judgment on defendant’s second counter- e., Congress actions of this kind —i. did government’s claim. The third arbitrarily exceed bounds in set- counterclaims, as well as its counterclaim ting these indices of full restitution. based on 28 U.S.C. shall § be dis- missed. Unless the False Claims Act can nature, be considered criminal Judge NICHOLS, (concurring): judicata doctrines of res and collateral estoppel application. can no See I concur the result and in all Murray Sorenson, & Inc. v. United opinion except part the court’s able relating 207 F.2d 42 A.L.R.2d to 28 2514. As to U.S.C. § that, (1st 1953). I reach the same destination Cir. This follows from agree I different road. coun- proof. differences burden of Ac rejected. terclaim should be

quittal criminal action means no As I read section it was intended prosecution more than was not prac- claim if the forfeit claimant guilt prove beyond able to reasonable thereof, prosecution ticed fraud prose doubt. It does not mean that only Congress Ex- before the or the cution could not have obtained a con branch, ecutive but before court also. prove guilt viction had Clearly, therefore, plead the failure pre evidence or a section 2514 at the outset would not bar ponderance. Supreme Court cases its invocation if the fraud occurred show False Claims Act is not pleadings Clearly too closed. Accordingly, criminal in nature. hold falsity, though begun earlier, con- acquittal the of and that Simon Eizen pleadings tinues after if have closed proceeding man in can the criminal have the claimant in or othewise no actually effect in this not case. continues to assert what is (This only subject to defendant be entitled The is the matter course. claim.) govern- Claims Act. “costs of suit” under the False of the affirmative item, counterclaim, how- is made for this No allowance in its first ment asserts ever, students, plain- has not offer- because the defendant “346” that which relates to any costs, concerning over-reported ed for 213.5 evidence tiff attendance any adopted claim therefor. nor has it made We have Commission- hours. plaintiff over-re- er’s that agree parties show 15. The the vouchers Accordingly, ported have 119.0 hours. we 1,043,019.3 plaintiff provided of a total compensable hours the number of reduced compensable to “346” hours of instruction 1,042,900.3. Technology to in the Radio students enrolled

439 Congress I think the theory 19 U.S.C. § invok- The Government’s true. ing rely the Executive branch intended to implying I this. 2514 as section read pro- apply all such and on courts in I believe that circumstances manner related in a reasonable here, visions spelled but which not need out legislation, purpose apparent occur, may any it time at language. just Church to its literal duty 2514 section of this court to invoke States, Holy Trinity of v. spcmte, position of the sua whatever 457, 511, L.Ed. U.S. S.Ct. law officers. Government’s (1892). forfeit To the entire claim hold in Coal v. United We said Pewee Co. falsity out in two items on account of States, F.Supp. 958, Ct.Cl. discourage thousands would do more to cert, (1958), denied 359 U.S. doing persons with from business honest (1959): 3 L.Ed.2d 574 S.Ct. it to deter than would United States under this sanction forfeiture construed, reasonably If false claims. statutory provision harsh, it is and can harsh, though cer- section tainly only be invoked when the Government findings, think court, as I drastic. pleading assumes the burden disclose modified fail to corruptly proving a claimant has anything sweeping justify a more ulti- practiced attempted practice finding corruptly mate practiced * * * fraud. proof with fraud The Government disclaimed generally, nence, I claim reliance section 2514 two items restrict forfeiture to applicability stated that the sec- shown be false. tion was not before us. Department record of fine (concurring Judge SKELTON, part in in Justice our lifetimes make un- dissenting part): thinkable to us Government counsel of the well-written I concur all themselves connive fraud on except majority opinion, exhaustive Government, statute, but old guilty portion finds R.S. the historic view it is filing of reference fraud all too thinkable that this could occur. students, Jose “550” of the two claims Hence, again, the silence or belated A. Huertos-Ramos. and Jose Rosa-Garcia activity of defendant’s counsel does not failed my opinion, the defendant necessarily duty mean that we no evidence show perform premises. cannot, in the I knowingly prepared false justify my therefore, wholly concurrence intent these students claims for on the lateness of the hour when the de- government. to defraud the fendant here invoked section 2514. Rosa-Garcia, of Jose In the case held Little v. United from he absent shows F.Supp. 84, (1957) (an- 138 Ct.Cl. 773 days, marked but he was school twelve training case) other veteran’s school days by “someone” four absent relating fraud items to some of a multi- (unknown) When he school. item claim forfeits sec- all them under turned, absence with discussed his falsity widespread tion but mentioned Simon, neither them general. Here a few tuition of present or be marked whether he would only, thousands, two students out card, signed an attendance He absent. false claim that remains blank, ma- to class. The returned screening com- conscientious jority opinion these facts states that missioner, apply and of court. To opinion not fraud. The show alone do logic Little ease to elevate by the fraud then establishes experience. over reason and disgruntled school teachers of the three plaintiff’s employ apparent- and who had left Such drastic forfeitures are law, gone competing diffi- ly provided g., school after to a in our for elsewhere e. culties question. The on institution. weaker the fraud He said days, teachers testified Simon and Eizen- he was absent fifteen he was stop days. man had instructed mark- them to marked absent four On return his ing a student absent to after two consecu- he talked Simon Eizenman or about his absences, tive and that on several oc- absence. He he to went Puerto testified casions Simon them Rico often in and Eizenman told the mid and late 1950’sbe- prolonged to (they mark “some students” were not cause of the illness of his identified) present mother. who absent There had been was considerable doubt beyond two-day period. testify certainty that he The could with two- day by explained plain- rule 1963 that he absence went to Puerto Rico in Feb- ruary prepared tiff so it would 1956. No one who notice of absences knows pressure put majority and could on the students his attendance record. remedy to opinion again the situation. Plaintiff de- once the fact relies nied told ever to mark Rancier was teacher to teachers Huertos-Ramos’ says present when absent. establish fraud. gether this ties student he was to- absence, knowledge prepared None of the at- teachers Simon’s thereof, policy report tendance record of to Jose Rosa-Garcia and the school’s majority present absent, no one knows who did. students who were opinion although all of states that no the cumulative effect of this is proof particular prepared proof that Simon his of fraud as to stu- certificate this training, by convincing known” dent is shown “must have my opinion, either In teacher Rancier evidence. it is or someone neither (under convincing nor office Simon’s clear is not and Eizenman’s the kind control) “procedure” required follow the of evidence show fraud in present. prepare this, and majority him mark this case. The From teacher did not plaintiff guilty student, finds of fraud. the attendance of this record my opinion, neither did falls far Simon or Eizenman. The evidence required short of that fraud. teacher was not to mark this show told student convincing present It does show not clear when he All that was absent. plaintiff knowingly suspicion pre- top evidence that have is and inference pared enough. a false of inference. attendance for this This is not There record student, knowingly nor that clear is no evidence that prepared plaintiff knowingly prepared a false or claim for at- certificate false presentment government him for tendance record student or for this know- ingly prepared with intent claim defraud. This false certificate or conspiracy enough presented government case and it is not alleged general show student intent to de- part acts of misconduct fraud. plaintiff. specific It is accused of a here Accordingly, I would hold defend- specific act fraud reference to a prove ant has failed to clear con- proven student. The fraud not been vincing by plaintiff a violation required by as law. of the False Act and is en- Claims anything A. Jose titled recover from case is Huertos-Ramos case, only similar Jose on its second counterclaim. Rosa-Garcia

Case Details

Case Name: Eastern School, a Partnership Consisting of Frank Simon, Benjamin Eizenman, Oscar Goldman, Phillip Laster and Samuel Frank v. The United States

Court Name: United States Court of Claims

Date Published: Jul 20, 1967

Citation: 381 F.2d 421

Docket Number: 229-57

Court Abbreviation: Ct. Cl.