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Could military personnel be jailed for agency or military loyalty?
Dismissals in Government cases -- bad judges or bad litigant?
I. INTRODUCTION - FRAUD RECOVERY PROCEEDS MUST BE DELIVERED TO U.S. TREASURY DEPARTMENT.
PURPOSE: All penalties and government recoveries from defense industries' fraud, under the qui tam statute, were originally intended to be deposited in the federal treasury's "general funds" account which is sometimes called the "miscellaneous receipts account". U.S. ex rel Kelly v. Boeing Corp., 9 F.3d at 769
Title 31 U.S.C. § 3729-3733. The False Claims Act.
"Recent reports from the Department of Justice indicate that over a billion dollars has been recovered in civil fraud cases brought under the False Claims Act during the past decade. These substantial returns to the Treasury show the value of this Act. Edwin Meese III, 15 Aug. 1996
"Qui tam" is abbreviation of the Latin phrase "qui tarn pro domino rege quam pro si ipso in hac parte sequitur" meaning "Who sues on behalf of the King as well as for himself."
SUCCESSION: QUI TAM AWARDS - U.S. v. Florida-Vanderbilt Development Corp., D.C. Fla., 326 F.Supp. 289, 290. (It is an action brought by a relator, under a statute which establishes a penalty for the commission or omission of a certain act, and provides that the same shall be recoverable in a civil action, part of the penalty to go to any person who will bring such action and the remainder to the state or some other institution. It is called a "qui tam action" because the plaintiff states that he sues as well for the state as for himself.)
U.S. ex rel Gibeault v. Texas Instruments, 104 F.3d 276 (9th Cir. 1997) - "...were in part proceeds of the action and due to the public treasury."
U.S. ex rel Kelly v. Boeing Corp., 9 F.3d at 769 (All penalties and government recoveries from defense industries' fraud, under the qui tam statute, were originally intended to be deposited in the federal treasury's "general funds" account which is sometimes called the "miscellaneous receipts account".)
U.S. ex rel Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645, 649 (D.C. Cir. 1994) (qui tam provisions are meant to encourage insiders with "genuinely valuable information" which will return money to the Federal Treasury).
U.S. ex rel Jane Doe 1 et al. v. X, Inc. et al., 2000 WL 305742 (E.D. Va. March 23, 2000) - "The court noted that, even without intervention, the United States receives the majority of any amount recovered and retains significant rights over the litigation."
"Moreover, in the course of the qui tam proceedings, any findings of fact which show a potential for increased return to the Federal Treasury are material to the court's application of Section 3730(b)(5), (Comment added: Section 3730(b)(5) is the "first-to-file" bar)." Source: Page 3 - Brief of Taxpayers Against Fraud, The False Claims Act Legal Center as AMICUS CURIAE Supporting Appellant in United States of America, ex rel. Linda A. Lujan, Appellant, vs. Hughes Aircraft Company, Appellee, No, 00-55328, in the United States Court of Appeals For The Ninth Circuit.
Reference: DOJ, US Attorney's Manual (DOJ), § 4-1.511 - Cases Delegated To United States Attorneys., ¶ 2, (Rev.06/98.) - "Disposition of delegated cases, like the disposition of nondelegated cases, must be accurately reported on the Department's statistical reporting system. In particular, all money and property collected for the government should be reported."
Reference: DOJ, US Attorney's Manual, Title 4, 4-4.430 Collections. "A major responsibility of the Attorney General, the Civil Division, and the United States Attorneys is recovering sums owed the United States. "In particular, all referrals of money claims which come within the United States Attorneys' delegated authority up to $1,000,000 should be made through the National Central Intake Facility. Referrals beyond that amount should continue to be made directly to the Commercial Litigation Branch of the Civil Division."
II. WRIT OF MANDAMUS. A writ issued by a superior court ordering a public official or body or a lower court to perform a specified duty.
PURPOSE: To legally force the U.S. Treasury Department to issue Distress Warrants against any and every member of any identified and documented conspiracy or documented individual incident of fraudulent diversion of public fisc assets payable to the U.S. Treasury as taxpayers' funds or assets.
Title 28 U.S.C. § 1361. Writ of Mandamus.
Action to compel an officer of the United States to perform his duty. The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff. To serve or compel with such a writ.
n : an extraordinary writ commanding an official to perform a ministerial act that the law recognizes as an absolute duty and not a matter for the official's discretion; used only when all other judicial remedies fail [syn: writ of mandamus]
Latin mandmus, we order (used in such a writ), first person pl. present tense of mandre, to order. See man-2 in Indo-European Roots.
\Man*da"mus\, n. [L., we command, fr. mandare to command.] (Law) A writ issued by a superior court and directed to some inferior tribunal, or to some corporation or person exercising authority, commanding the performance of some specified duty.
III. UNITED STATES DEPARTMENT OF THE TREASURY. Treasury of the United States. The United States Government has a Treasury of the United States. The Treasury is in the Department of the Treasury. 31 U.S.C. § 302
PURPOSE: Receive and keep public money and give receipts for money deposited in the Treasury. Isuue and enforce Distress Warrants to recover money received by government employees by not deposited to Treasury according to law.
31 U.S.C. § 301. - Department of the Treasury (a) The Department of the Treasury is an executive department of the United States Government at the seat of the Government. (b) The head of the Department is the Secretary of the Treasury. The Secretary is appointed by the President, by and with the advice and consent of the Senate.
Please see: Fraud proceeds recovery must be delivered to U.S. Treasury or U.S. medical trust fund.
Sec. 3301. - General duties of the Secretary of the Treasury
(a) The Secretary of the Treasury shall -
(1) receive and keep public money;
(2) take receipts for money paid out by the Secretary;
(3) give receipts for money deposited in the Treasury;
(4) endorse warrants for receipts for money deposited in the Treasury;
(5) submit the accounts of the Secretary to the Comptroller General every 3 months, or more often if required by the Comptroller General; and
(6) submit to inspection at any time by the Comptroller General of money in the possession of the Secretary.
(b) Except as provided in section 3326 of this title, an acknowledgment for money deposited in the Treasury is not valid if the Secretary does not endorse a warrant as required by subsection (a)(4) of this section.
COMMENT: If $1.00 is hidden from the "entire proceeds of the action or settlement of the (False Claims Act) claim" then the filing Plaintiff, which the Department of Justice likes to call the "Whistle Blower", loses approximately $.15 but the taxpayers, in the form of the U.S. Treasury, loses not only the $.85 due it but also any taxes the Plaintiff and his or her attorneys would have been accessed. Treasury and the Public Fisc loses an amount 12 times greater than the Plaintiff (up to $.94).
MOTIVE: When the Department of Justice and a defrauded government agency fraudulent convert the proceeds to fraudulently concealed alternate remedies, the Public Fisc, in the form of the taxpayers' U.S. Treasury Department's General Fund, simultaneously loses a full 85% of the money discussed as the qui tam relator loses his or her 15%. The recovery is diverted back to the agency without Congressional review and oversight and takes the form of a concealed, windfall budget increase. The Congressional intent of the False Claims Act is evaded and the Executive Branch has successfully evaded the Checks and Balances effecting a knowingly induced "Aggrandizement" of their powers and "Impairment" of the duties of the federal courts, the U.S. Treasury and our U.S. Congress.
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>IV. FALSE CLAIMS ACT. The entire qui tam, fraud recovery, "proceeds of the action or settlement of the claim" must be delivered to the U.S. Treasury's "General Funds" Account.
PURPOSE: Force "any person" who has violated the False Claims Act to return the entire "proceeds of the action or settlement of the claim" to the U.S. Treasury's general receipts account.
31 U.S.C. § 3729. False claims
U.S. ex rel Gibeault v. Texas Instruments, 104 F.3d 276 (9th Cir. 1997) - "...were in part proceeds of the action and due to the public treasury."
U.S. ex rel Kelly v. Boeing Corp., 9 F.3d at 769 (All penalties and government recoveries from defense industries' fraud, under the qui tam statute, were originally intended to be deposited in the federal treasury's "general funds" account which is sometimes called the "miscellaneous receipts account".)
U.S. ex rel Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645, 649 (D.C. Cir. 1994) (qui tam provisions are meant to encourage insiders with "genuinely valuable information" which will return money to the Federal Treasury).
U.S. ex rel Jane Doe 1 et al. v. X, Inc. et al., 2000 WL 305742 (E.D. Va. March 23, 2000) - "The court noted that, even without intervention, the United States receives the majority of any amount recovered and retains significant rights over the litigation."
"Moreover, in the course of the qui tam proceedings, any findings of fact which show a potential for increased return to the Federal Treasury are material to the court's application of Section 3730(b)(5), (Comment added: Section 3730(b)(5) is the "first-to-file" bar)." Page 3 - Brief of Taxpayers Against Fraud, The False Claims Act Legal Center as AMICUS CURIAE Supporting Appellant in United States of America, ex rel. Linda A. Lujan, Appellant, vs. Hughes Aircraft Company, Appellee, No, 00-55328, in the United States Court of Appeals For The Ninth Circuit.
31 U.S.C. § 3729.
(a) Liability for Certain Acts. - Any person who -
(1) knowingly presents, or causes to be presented, to an officer or employee of the United States Government or a member of the Armed Forces of the United States a false or fraudulent claim for payment or approval;
(2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government;
(3) conspires to defraud the Government by getting a false or fraudulent claim allowed or paid;
(4) has possession, custody, or control of property or money used, or to be used, by the Government and, intending to defraud the Government or willfully to conceal the property, delivers, or causes to be delivered, less property than the amount for which the person receives a certificate or receipt;
(5) authorized to make or deliver a document certifying receipt of property used, or to be used, by the Government and, intending to defraud the Government, makes or delivers the receipt without completely knowing that the information on the receipt is true;
(6) knowingly buys, or receives as a pledge of an obligation or debt, public property from an officer or employee of the Government, or a member of the Armed Forces, who lawfully may not sell or pledge the property; or
(7) knowingly makes, uses, or causes to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the Government, is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, plus 3 times the amount of damages which the Government sustains because of the act of that person, except that if the court finds that -
(A) the person committing the violation of this subsection furnished officials of the United States responsible for investigating false claims violations with all information known to such person about the violation within 30 days after the date on which the defendant first obtained the information;
(B) such person fully cooperated with any Government investigation of such violation; and
(C) at the time such person furnished the United States with the information about the violation, no criminal prosecution, civil action, or administrative action had commenced under this title with respect to such violation, and the person did not have actual knowledge of the existence of an investigation into such violation; the court may assess not less than 2 times the amount of damages which the Government sustains because of the act of the person. A person violating this subsection shall also be liable to the United States Government for the costs of a civil action brought to recover any such penalty or damages.
(b) Knowing and Knowingly Defined. - For purposes of this section, the terms "knowing" and "knowingly" mean that a person, with respect to information -
(1) has actual knowledge of the information;
(2) acts in deliberate ignorance of the truth or falsity of the information; or
(3) acts in reckless disregard of the truth or falsity of the information,
and no proof of specific intent to defraud is required.
(c) Claim Defined. - For purposes of this section, "claim" includes any request or demand, whether under a contract or otherwise, for money or property which is made to a contractor, grantee, or other recipient if the United States Government provides any portion of the money or property which is requested or demanded, or if the Government will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded.
(d) Exemption From Disclosure. - Any information furnished pursuant to subparagraphs (A) through (C) of subsection (a) shall be exempt from disclosure under section 552 of title 5. (e) Exclusion. - This section does not apply to claims, records, or statements made under the Internal Revenue Code of 1986.
V. DISTRESS WARRANTS. Regulatory tools used to force the return of the taxpayers' money, from an official or agent of the Government, if wrongfully obtained from the public fisc or Treasury Department by fraud or misconduct specifically including "any official receiving public money before it is paid to the Treasury" and failing to pay the money to the U.S. Treasury as prescribed by law.
PURPOSE: To force the exposure of documented conspiracy evidence and information through a plea bargain with the first defendant that agrees to document and testify after winning the "race-to-the-courthouse" to plead guilty.
31 USC §§ 3302(b), 3501, and 3502. Diversion of Public Fisc Assets.
Title 31, Subtitle III, Chapter 33, Subchapter I, Money And Finance, Financial Management, Depositing, Keeping, And Paying Money Deposits And Depositaries.
Custodians of money:
"...an official or agent of the Government receiving money for the Government from any source shall deposit the money in the Treasury..." 31 U.S.C. § 3302(b)
"...An official or agent not complying with subsection (b) of this section may be removed from office..." 31 U.S.C. § 3302(b)
Title 31, Subtitle III, Chapter 35, Subchapter IV, Money And Finance - Financial Management Accounting and Collection
Distress warrants:
"...When an official receiving public money before it is paid to the Treasury... does not... pay the money as prescribed by law, the Comptroller General shall make the account for the official and certify to the Secretary of the Treasury the amount due the Government..." 31 USC § 3541(a)
"...The Secretary shall issue a distress warrant against the official stating the amount due from the official and any amount paid. The warrant shall be directed to the marshal of the district in which the official resides..." 31 USC § 3541(b)
Carrying out distress warrants:
"...A marshal... shall seize the personal property of the official and sell the property... If the property does not satisfy the amount due under the warrant, the official may be sent to prison..." 31 U.S.C. § 3542(a)
"...The amount due... is a lien on the real property of the official..." 31 U.S.C. § 3542(b)(1)
"...If the personal property of the official is not enough to satisfy a distress warrant, the marshal shall sell real property of the official... A buyer of the real property has valid title against all persons claiming under the official..." 31 U.S.C. § 3542(b)(2)
Alternate Civil Actions To Recover Public Fisc Money:
31 U.S.C. § 3545. - Civil action to recover money. The Attorney General shall bring a civil action to recover an amount due to the United States Government on settlement of the account of a person accountable for public money when the person neglects or refuses to pay the amount to the Treasury. Any commission of that person and interest of 6 percent a year from the time the money is received by the person until repaid to the Treasury shall be added to the amount due on the account. The commission is forfeited when judgment is obtained.
31 U.S.C. § Sec. 3544. - Rights and remedies of the United States Government reserved. This subchapter does not affect a right or remedy the United States Government has by law to recover a tax, debt, or demand.
VI. PRESUMPTIONS. In lawsuits against Government agencies or employees there is a long-standing, two-part presumption held by the government and recognized by the courts: (1) The government always acts within the law and (2) The government is always right. The Plaintiff must attach documented evidence to his or her Original Complaint to affirmatively rebut this presumption.
PURPOSE: Attach documented evidence (of government agency misconduct or government employee misconduct) to the Request For Writ of Mandamus to rebut the Courts' presumption that "the government always acts within the law" and "the government is always right." Shift the burden of proof (both evidence and the burden of going forward) to the government to disprove any documented evidence attached to the Request For Writ of Mandamus against the U.S. Treasury Department. The purpose of the Writ of Mandamus is to force the U.S. Treasury Department to issue distress warrants to identified government agencys and employees to recover any fraudulently converted public assets in the form of the entire False Claims Act "proceeds of the action or settlement of the claims."
Tot v. U.S., U.S. v. Delia, 1943, 319 US 463, 63 S.Ct. 1241.
There is a long-standing, two-part presumption held by the government and recognized by the courts:
1. The government always acts within the law; and
2. The government is always right.
Every person or litigant must always challenge, rebut, disprove, deny and show to be false this presumption of legislative and procedural correctness affirmatively claimed and held by the government and affirmatively recognized by the courts. All of these actions must specifically take the form of documented evidence, not verbal or written arguments, when disagreeing with, or fighting the government.
It has been held that, insofar as criminal liability is concerned, a statutory presumption may run afoul of constitutional provisions (due process) unless there is a "rational connection" between the established fact and the presumed fact flowing therefrom. See Tot v. U.S., U.S. v. Delia, 1943, 319 US 463, 63 S.Ct. 1241.
The "state a claim upon which relief could be granted" wording in the FRCP and local court rules means PROVIDE EVIDENCE WHICH THE COURT CAN REVIEW AND BASE RELIEF UPON. When you FAIL to include EVIDENCE, in the document (original complaint) that you make the allegations in, then you have "failed to state a claim". You did not provide EVIDENCE upon which the judge could grant relief.
Citing lots of statutes and caselaw is not evidence and will not be considered evidence by the presiding judge. Neither written allegations nor written arguments rebut the government's and courts' presumption. You can cite many cases and make many claims of wrongdoing, but these are simply arguments and nothing more.
Attaching hard and documented evidence to an Original Complaint may seem to conflict with the local rules of a particular court but it must be done when allegations are made against the U.S. Government or government employees.
Please click here to read an important reference article by Jim Jensen.
STANDARD EXAMPLE:
VII. CONSPIRACY. "The essence of a conspiracy is an agreement to commit an unlawful act. That agreement is a distinct evil, which may be punished whether or not the substantive crime ensues." -- Justice Stephen Breyer
PURPOSE: Punish and convict all persons involved in any illegal diversion of money payable by law to the U.S. Treasury.
United States v. Jiminez Recio et al., Certiorari to the United States Court of Appeals for the Ninth Circuit, No. 01-1184. Argued November 12, 2002--Decided January 21, 2003.
The FCA provides for conspiracy claims, see 31 U.S.C. sec. 3729(a) (3), and general civil conspiracy principles apply. See, e.g., United States v. Murphy, 937 F.2d 1032, 1039 (6th Cir. 1991).
Conspiracy:
Conspiracy, Civil:
31 USC § 3729. False claims. (a) Liability for Certain Acts. - Any person who - (3) conspires to defraud the Government by getting a false or fraudulent claim allowed or paid;
VIII. CRIMINAL EXTORTION AND COERCION. Extortion is a crime when, by color of office, any person extorts...more than is due... 18 U.S.C.A. § 871 et seq.; § 1951. A person is guilty of criminal coercion if, with purpose to unlawfully restrict another's freedom of action to his detriment, he threatens to... take or withhold action as an official, or cause an official to take or withhold action.
PURPOSE: Punish government employees for fraudulently concealing and converting qui tam fraud recovery proceeds as alternate remedies, forfeitures or free present or future work after concealing or hiding them from the courts of jurisdiction and the U.S. Treasury.
Model Penal Code, § 223.4.
Extortion is a crime when, by color of office, any person extorts that which is not due, or more than is due, or before the time when it is due. 18 U.S.C.A. § 871 et seq.; § 1951.
The obtaining of property from another induced by wrongful use of actual or
threatened force, violence, or fear, or under color of official right. 18
U.S.C.A. § 871 et seq.; § 1951. A person is guilty of theft by extortion if he
purposely obtains property of another by threatening to:
inflict bodily injury on anyone or commit any other criminal offense; or
accuse anyone of a criminal offense; or
expose any secret tending to subject any person to hatred, contempt or
ridicule, or to impair his credit or business repute; or
take or withhold action as an official, or cause an official to take or
withhold action; or
bring about or continue a strike, boycott or other collective unofficial
action, if the property is not demanded or received for the benefit of the
group in whose interest the actor purports to act; or
testify or provide information or withhold testimony or information with
respect to anther's legal claim or defense; or
inflict any other harm which would not benefit the actor.
Model Penal Code, § 212.5., 144 F.Supp. 381, 34
A person is guilty of criminal coercion if, with purpose to unlawfully restrict another's freedom of action to his detriment, he threatens to:
(c) expose any secret tending to subject any person to hatred, contempt or ridicule, or to impair his credit or business repute; or
(Also see Duress: Extortion: Threst; Undue influence.)
IX. IMMUNITY. Misprision of Felony. "Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined not more than $500 or imprisoned not more than three years, or both." Title 18 U.S.C. § 4
PURPOSE: Force all persons listed below to quickly disclose any and all conspiracies (in process or completed) meant to fraudulently misrepresent, conceal and convert monies mandatorally payable to the U.S. Treasury.
Click Here to read a very important article about the validation or loss of immunity for government officials and employees as decided by the 5th Circuit Court of Appeals. When determining whether immunity exists, the Fifth Circuit uses a three-part inquiry. See Conroe Creosoting Co. v. Montgomery County, Tex., 249 F.3d 340 (5th Cir. 2001)
9. Government Employees
"...the courts will inquire as to whether the action taken was within the agency official's statutory authority, whether there was evidence before him/her in support of his/her determination to satisfy elementary standards of fairness and reasonableness. Lloyd Sabaudo Societa Anomina Per Azioni v. Elting, 287 U.S. 329
10. DOJ & FBI & Armed Services Employees:
"...the courts will inquire as to whether the action taken was within the agency official's statutory authority, whether there was evidence before him/her in support of his/her determination to satisfy elementary standards of fairness and reasonableness. Lloyd Sabaudo Societa Anomina Per Azioni v. Elting, 287 U.S. 329
Click Here to read a very important article about the loss of immunity for members of the Armed Services and asking "Could Military Personnel Be Jailed For Agency or Military Loyalty?"
11. Federal Judges:
To determine whether a judge's act is a "judicial" one, the Court is to consider four factors:
12. Defendants and their Lawyers:
31 U.S.C. § 3729. False claims. (a) Liability for Certain Acts. - Any person who -
(1) knowingly presents, or causes to be presented, to an officer or employee of the United States Government or a member of the Armed Forces of the United States a false or fraudulent claim for payment or approval;...
When determining whether immunity exists, the Fifth Circuit uses a three-part inquiry. See Conroe Creosoting Co. v. Montgomery County, Tex., 249 F.3d 340 (5th Cir. 2001).
1. First, a court must examine whether the plaintiff has alleged the violation of a constitutional right. See Conroe Creosoting Co. v. Montgomery County, Tex., 249 F.3d 340 (5th Cir. 2001)
A. A taking of the relator's property without remuneration.
2. Second, a court must determine whether the constitutional right was clearly established at the time the defendant acted. See Conroe Creosoting Co. v. Montgomery County, Tex., 249 F.3d 340 (5th Cir. 2001)
A. "For a right to be clearly established, there does not have to be a prior case directly on point, but the unlawfulness of the precipitating acts must be apparent in light of the existing law." Hassen v. Lubbock Indep. Sch. Dist. , 55 F. 3d 1075, 1079 (5th Cir. 1995) .
U.S. ex rel Gibeault v. Texas Instruments, 104 F.3d 276 (9th Cir. 1997) - "...were in part proceeds of the action and due to the public treasury."
U.S. ex rel Kelly v. Boeing Corp., 9 F.3d at 769 (All penalties and government recoveries from defense industries' fraud, under the qui tam statute, were originally intended to be deposited in the federal treasury's "general funds" account which is sometimes called the "miscellaneous receipts account".)
U.S. ex rel Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645, 649 (D.C. Cir. 1994) (qui tam provisions are meant to encourage insiders with "genuinely valuable information" which will return money to the Federal Treasury).
U.S. ex rel Jane Doe 1 et al. v. X, Inc. et al., 2000 WL 305742 (E.D. Va. March 23, 2000) - "The court noted that, even without intervention, the United States receives the majority of any amount recovered and retains significant rights over the litigation."
"Moreover, in the course of the qui tam proceedings, any findings of fact which show a potential for increased return to the Federal Treasury are material to the court's application of Section 3730(b)(5), (Comment added: Section 3730(b)(5) is the "first-to-file" bar)." Source: Page 3 - Brief of Taxpayers Against Fraud, The False Claims Act Legal Center as AMICUS CURIAE Supporting Appellant in United States of America, ex rel. Linda A. Lujan, Appellant, vs. Hughes Aircraft Company, Appellee, No, 00-55328, in the United States Court of Appeals For The Ninth Circuit.
("...the courts will inquire as to whether the action taken was within the agency official's statutory authority, whether there was evidence before him/her in support of his/her determination to satisfy elementary standards of fairness and reasonableness.) See Lloyd Sabaudo Societa Anomina Per Azioni v. Elting, 287 U.S. 329 (1932).
Reference: DOJ, US Attorney's Manual (DOJ), § 4-4.110 - Civil Fraud Litigation, ¶ 4, Sentence 4 (Rev.06/98.) - "Flagrant frauds, justifying the initiation of suits for multiple damages and penalties under relevant statutes generally, should not be compromised for less than multiple damages and some forfeitures."
Reference: DOJ, US Attorney's Manual (DOJ), § 4-1.511 - Cases Delegated To United States Attorneys., ¶ 2, (Rev.06/98.) - "Disposition of delegated cases, like the disposition of nondelegated cases, must be accurately reported on the Department's statistical reporting system. In particular, all money and property collected for the government should be reported."
Reference: DOJ, US Attorney's Manual, Title 4, 4-4.430 Collections. "A major responsibility of the Attorney General, the Civil Division, and the United States Attorneys is recovering sums owed the United States. "In particular, all referrals of money claims which come within the United States Attorneys' delegated authority up to $1,000,000 should be made through the National Central Intake Facility. Referrals beyond that amount should continue to be made directly to the Commercial Litigation Branch of the Civil Division."
"Qui tam" is abbreviation of the Latin phrase "qui tarn pro domino rege quam pro si ipso in hac parte sequitur" meaning "Who sues on behalf of the King as well as for himself."
3. Finally, a court must "determine whether the record indicates that the . . . defendant actually engaged in the conduct that violated the clearly established right." Conroe Creosoting Co., 249 F.3d at 340; see Morris v. Dearborne, 181 F.3d 657, 666 (5t'' Cir. 1999).
A. Title 18 U.S.C. § 4 (misprision of felony). "Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined not more than $500 or imprisoned not more than three years, or both."
When the Department of Justice and a defrauded government agency fraudulent convert the proceeds to fraudulent concealed alternate remedies, , the Public Fisc, in the form of the taxpayers' U.S. Treasury Department's General Fund, simultaneously loses a full 85% of the money discussed as the qui tam relator loses his or her 15%. The recovery is diverted back to the agency without Congressional review and oversight and takes the form of a concealed, windfall budget increase. The Congressional intent of the False Claims Act is evaded and the Executive Branch has successfully evaded the Checks and Balances effecting a knowingly induced "Aggrandizement" of their powers and "Impairment" of the duties of the U.S. Treasury and our U.S. Congress.
EXAMPLES:
Joyce Riley, Plaintiff - Appellant, v. St. Lukes Episcopal Hospital, et. al. Defendants - Appellees, No. 97-20948 in the United States Court of Appeals for the Fifth Circuit, before Smith, DeMoss, and Stewart, Circuit Judges, Opinion by Jerry E. Smith, Circuit Judge.
Note 35. ...Qui tam actions, unlike title VII suits, aim to redress purely public injuries."
USA ex rel Covington, Sidicane v. Sisters of the Third Order of Saint Dominic of Hanford, California, d.b.a. - Sacred Heart Hospital, et. al., 61 F.3d 909, Unpublished Disposition, 1995 WL418311 (9th Cir. July 13, 1995)
The Government attempted to foreclose qui tam relators from receiving a share from a payment received from the defendant because the govemment classified the payment as "restitution" as opposed to "damages".
The appellate court succinctly rejected the Government's argument, pointing out that such a rule would allow the Government to eliminate recovery for qui tam relators by simply characterizing the nature of the defendant's conduct.
U.S.A. ex rel. Peter Jensen Thornton v. Science Applications International Corporation, et al., Order Awarding Statutory Share of Settlement And Denying Request For Attorney Fees, filed September 17, 1998, Civil Action No. 3:94-CV-0749-T, In The U.S. District Court for the Northern District of Texas, Dallas Division, defined ..qui tam proceeds and defined the requirements for the relator to successfully request and receive attorney's fees.
A qui tam plaintiff should receive between 15% and 20% of the proceeds, depending on how much the person substantially contributed to the prosecution of the claim. See 31 U.S.C. 3730(d)(l).
Based on (1) the plain meaning of the word "proceeds," (2) the terms of the settlement agreement, and (3) the representations of the parties, the Court concludes that the claims released (or abandoned) by Defendants are included in the proceeds of the settlement. ...In sum, the Court concludes that the $... cash and the claims abandoned by Defendants should be included as the proceeds of the settlement.
U.S. ex rel Neher, as Personal Representative of the Estate of Arthur P. Williams v. NEC Corp., No. 92-2854 (11th Cir. Apr. 28, 1995) recently defined the conditions of an illegal "de facto" intervention and termination of the lawsuit by the actions of the government lacking Court approval. It stated:
The 11th Circuit characterized the Government's arguments as "specious" and as an attempt "to take advantage of its blatant violations of the statute."
In a strongly worded opinion, critical of the Government's handling of the case, the appellate court concluded that the government's settlement with the defendant constituted an election to intervene in the lawsuit and that the estate of the deceased relator was entitled to 15 percent of the settlement.
The court held that the Government's settlement with NEC constituted an election to intervene in the lawsuit and proceed with the action within the meaning of the False Claims Act.
...the settlement effectively terminated the lawsuit, except for the determination of William's statutory share under 3730(d)(l) of between 15 and 25 percent (as well as attorneys' fees and expenses.)
U.S.A. ex. rel. Robert J. Merena v. SmithKline Beecham Corp., SmithKline Beecham Clinical Laboratories, Inc., Judgement, dated April 8, 1998, Civil Action No. 93-5974, originally filed on July 23, 1997, In The U.S. District Court for the Eastern District of Pennsylvania.
Footnote # 10 - "The Government did not elect to intervene until after it had agreed with (defendant) on specific settlement terms to resolve all of the claims in the (plaintiffs') cases and long after the (date) agreement in principle had been negotiated."
Page 30 - "The necessary element under the statute is not an investigation but rather public disclosure. Government investigations are ordinarily not publicly disclosed until they are completed. Merely because a qui tam complaint may make allegations that correspond with or parallel allegations that a Government agency may be investigating, the qui tam action is not barred, nor is the qui tam relator precluded from an appropriate statutory share of any resulting recovery."
Page 37 - "Were a qui tam action is filed, and the Government intervenes and expands the allegations of the complaint, or settles the action, including broader claims than alleged in the qui tam action, this should not preclude the qui tam relator..from ..receiving the minimum statutory qui tam share of l5 percent of the entire settlement, as well as a percent above the 15 percent minimum up to a maximum of 25 percent "...depending upon the extent to which the person (qui tam Relator) substantially contributed to the prosecution of the action."
Page 41 - "There is absolutely no evidence on the record before me, beyond the unacceptable waiver argument, to establish any allocation among various claims. The Relators repeatedly sought explanation from the Government, both informally and in discovery, as to the Government's allocation calculations. The Government's only response is, and always has been, that the calculations were based on rational estimates of losses and complex negotiations among various governmental agencies and that the parties and the court are bound to accept the Government's calculations. It seems to me to be almost a "trust us, we are not wrong, we are correct" attitude. The Government tries, at a minimum, to require Relators to prove the allocations are in error without providing Relators with any discovery on the issue, although such discovery was reguested. This I cannot accept. I conclude on this issue, that the Relators are not bound by the allocations assigned by the Government as to the... and the... qui tam allegations. It is the Government that attempts to reduce the individual and total qui tam award shares by assigning particular values to various claims.
Page 70 - "I am left with the impression that the attorneys in charge of the... investigation, conducted... by the DOJ seek to take far more credit for the overall success of the proceeds.
Page 72 - "Perhaps the reason the litigation has been presented in this light is because the Government wants to minimize the contributions of the Relators in order to lower their ultimate award.
Page 72 - "I recognize that some of the arguments presented by the Government attorneys may have been caused by a sincere desire to save as much of the proceeds as possible for the Government. However, an Act of Congress provides for substantial awards in order that persons who acquire first hand knowledge of false claims being presented to the Government will come forth and file meritorious qui tam complaints. The success of this legislation in continuing to achieve its goals can only be assured by unstintingly providing the qui tam awards dictated by Congress irrespective of the size of the awards."
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(a) You file a complaint against the government replete with truthful allegations,
(b) The D.O.J. attorney answers the complaint with a motion to dismiss under either FRCP Rule 12(b)(6) for failure to state a claim upon which relief can be granted, or Rule 12(b)(1) for lack of subject matter jurisdiction. Under 12(b)(6) failure to state a claim means that the complainant has not provided evidence upon which the judge can grant relief. Under 12(b)(1) lack of jurisdiction means that the complainant has not rebutted (with evidence) the presumption of sovereign immunity the government carries.
(c) The D.O.J. attorney files a motion for a protective order against discovery and the court grants it.
(d) The judge dismisses the matter or finds summary judgment in favor of the government without allowing discovery of any kind.
Term carries with it the idea of agreement, concurrence and combination, and hence is inapplicable to a single person or thing, and one cannot agree or conspire with another who does not agree or conspire with him.
1. A combination or confederacy between two or more people formed for the purpose of committing, by their joint effort, some unlawful or criminal act, or some act which is lawful in itself, but becomes unlawful when done by the concerted action of the conspirators, or for the purpose of using criminal or unlawful means to the commission of an act not in itself unlawful. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he: (a) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or (b) agrees to aid such other person or persons in the planning or commission of such crime or an attempt or solicitation of such crime. Model Penal Code, 5.03.
2. Crime of conspiracy is distinct from the crime contemplated by the conspiracy (target crime). Com. vs. Dyer 243 Mass. 472, 509, 138 N.E. 296, 314, cert. denied, 262 US 751, 43 S.Ct. 700, 67L.Ed. 1214.
3. Some states do not require an overt act as an element of the crime. Com. vs. Harris, 232 Mass. 588, 122 N.E. 749.
4. A conspiracy may be a continuing one; actors may drop out and others in; the details of the operation may change from time to time; that members need not know each other or the part played by others; a member need not know all the details of the plan or the operations; he must however know the purpose of the conspiracy and agree to become a party to a plan to effectuate that purpose. Craig vs. U.S., C.C.A.Cal., 81 F.2d 816, 822.
The essence of a "civil conspiracy" is a concert or combination to defraud or cause other injury to person or property of the plaintiff. To engage in conspiracy. Term carries with it the idea of agreement, concurrence and combination, and hence is inapplicable to a single person or thing, and one cannot agree or conspire with another who does not agree or conspire with him.
(d) take or withhold action as an official, or cause an official to take or withhold action. It may be... implied, legal or constructive,... where one party is constrained by subjugation to other... to do what his free will would refuse. Compelled to compliance; constrained to obedience, or submission in a vigorous or forcible manner.
(1) whether the act complained of is one normally performed by a judge;
(2) whether the act occurred in the courtroom or an appropriate adjunct such as the judge's chambers;
(3) whether the controversy centered around a case pending before the judge; and
(4) whether the act arose out of a visit to the judge in his judicial capacity."
Malina v. Gonzales, 994 F.2d 1121, 1124 (5th Cir. 1993).
(2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government;...
(3) conspires to defraud the Government by getting a false or fraudulent claim allowed or paid;...
(7) knowingly makes, uses, or causes to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the Government, is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, plus 3 times the amount of damages which the Government sustains because of the act of that person...
B. SUCCESSION: QUI TAM AWARDS - U.S. v. Florida-Vanderbilt Development Corp., D.C. Fla., 326 F.Supp. 289, 290. (It is an action brought by a relator, under a statute which establishes a penalty for the commission or omission of a certain act, and provides that the same shall be recoverable in a civil action, part of the penalty to go to any person who will bring such action and the remainder to the state or some other institution. It is called a "qui tam action" because the plaintiff states that he sues as well for the state as for himself.)
B. Such an inquiry requires an assessment of whether, at the time of the alleged violation, the right was so clearly established that a "reasonable persona in the defendant's situation would have understood that his conduct violated that right. See Siegert v. Gilley, 500 U.S. 226, 231-32 (1991); Conroe Creosoting Co., 249 F.3d at 340; Brewer v. Wilkinson, 3 F.3d 816, 820 (5th Cir. 1993), cert. denied, 510 U.S. 1123 (1994).
C. The established destination of all False Claims Act "proceeds of the action or settlement of the claim" is the public treasury. Qui Tam "Proceeds" Are Paid To The U.S. Treasury's "General Funds" Account.
Could military personnel be jailed for agency or military loyalty?
Dismissals in Government cases -- bad judges or bad litigant?