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UNITED STATES EX REL. BAYARSKY v. BROOKS

January 31, 1953

UNITED STATES ex rel. BAYARSKY
v.
BROOKS et al.



The opinion of the court was delivered by: FOLLMER

This is a qui tam action brought under the False Claims Act, R.S. Secs. 3490-3494, 31 U.S.C.A. §§ 231-235. It was filed on January 5, 1942, by David Bayarsky in his own behalf and on behalf of the United States. On March 11, 1944, the United States entered its appearance in the suit. On March 4, 1952, shortly before the matter was reached for trial, the United States and the respective defendants entered into a compromise settlement of the case whereby the defendants, in consideration of dismissal by the United States of the instant suit, and the case of the United States v. Adametz, et al., Civil Action 2914 (D.C.N.J.) an independent suit filed by the United States in its own name on May 19, 1943, on the identical claim, agreed to, and did, pay to the United States the sum of $ 225,000. Following the settlement of the claim as above stated, the Court set the matter down for hearing on the sole question concerning the claim of an alleged informer for an informer's fee as provided by the False Claims Statute, supra.

At this hearing on July 16, 1952, claimant David Bayarsky, a lawyer, appeared pro se, also testifying as a witness in his own behalf. Lawrence Kramer, although not a party to this action, but who lays claim and entitlement to an informer's fee under the statute, appeared as a witness for the Government. Kramer was represented by counsel, and in view of his apparent adverse interest was permitted by the Court, without objection by any of the parties, to be examined by his counsel in open court, and to give such testimony as he had to present.

 From the files of the case and the testimony adduced at the hearing on the question of informer's fee, and after due consideration of the briefs and argument of counsel, I make the following:

 Findings of Fact

 1. The events leading up to the filing of the suit commenced in late 1935. At that time, to wit, in December 1935, one Lawrence Kramer requested the WPA through Elias Dort, then Director of Investigation, WPA, to investigate his complaint that stone supplied to WPA by his father, Philip Kramer (now deceased), operator of a stone quarry at Paterson, New Jersey, has been rejected because of his father's refusal to contribute to a vendors' ring formed by sand and stone producers and dealers in the area for the purpose of fixing prices on bids to WPA, and to exact money from members of the ring to be used to bribe various unnamed officials.

 2. As a result of the aforementioned complaint of Lawrence Kramer, a full scale WPA investigation was undertaken. The investigation was commenced with an interview of the said Kramer in December 1935 by WPA Investigator, Richard L. Snider. At said interview Kramer furnished Snider with various leads concerning witnesses and individuals who would be able to furnish the Government with greater detail concerning the alleged improper activities in question. From time to time thereafter, Kramer collaborated with the said Snider in the pursuance of the investigation in the same manner above mentioned.

 3. As a result of the aforesaid WPA investigation, the defendants herein were indicted in 1938 (Criminal No. 851b, D.C.N.J.). In December 1941, twenty-five of the said defendants entered pleas of guilty and were fined sums aggregating $ 20,000. The remaining defendants entered pleas of not guilty, and on January 5, 1942, orders for nolle prosequi were entered with respect to them.

 4. On the same date, to wit, January 5, 1942, the instant suit was filed by David Bayarsky as a qui tam action in his own behalf and on behalf of the United States. The allegations in the complaint files by Bayarsky were identical in substantial part with the allegations contained in the criminal indictment.

 5. The said Bayarsky furnished no information, data, or assistance to the United States before the commencement of the instant suit, or the appearance therein by the United States, nor indeed for a period of at least six years after said appearance by the United States.

 6. On December 23, 1943, Public Law 213, 57 Stat. 608, 31 U.S.C.A. § 232, amending the False Claims Statute was enacted. On that date, the instant civil suit had not progressed beyond the filing of the answers of certain defendants and the entry of an order on May 28, 1943, requiring the relator, Bayarsky, to furnish a bill of particulars to one of the defendants.

 7. On January 11, 1944, the District Court, pursuant to Clause (d) of Public Law 213, stayed all proceedings in this civil action and notified the Attorney General of its pendency. Thereafter, on March 11, 1944, the United States entered its appearance in the suit within the 60-day period prescribed in Public Law 213.

 8. On March 28, 1944, the relator filed a motion to strike the Government's entry of appearance, contending that Public Law 213 was unconstitutional. After a hearing and the submission of briefs, the District Court reserved decision on the motion.

 9. On September 20, 1944, certain defendants moved to dismiss the action on the ground that it was based upon information which had been in the Government's possession when the suit was brought, and that, therefore, the provisions of Public Law 213 had deprived the Court of jurisdiction over it. On January 17, 1945, the Court handed down an opinion granting the defendant's motion. United States ex rel. Bayarsky v. Brooks, D.C.N.J., 58 F.Supp. 714. Thereafter, the defendants who had not joined in the motion filed similar motions to dismiss the suit. On March 6, 1945, the Court entered an order abating the action as to all defendants for want of jurisdiction.

 10. On April 13, 1945, the United States filed a Notice of Appeal from the order of the court below. On March 7, 1946, the order of the court below was reversed by the Court of Appeals for the Third Circuit, ...


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