United States Ostrager v. New Orleans Chapter Associated General Contractors of America/Opinion of the Court

This action is substantially similar to that in United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. --, decided this day. Relying on §§ 5438 and 3490-93, Revised Statutes, 18 U.S.C.A. §§ 80, 82-86, 31 U.S.C.A. §§ 231-234, the petitioner charges that the respondents caused the government $7,620 damages by submitting fraudulent collusive bids on a hospital constructed with Federal Public Works Administration financial assistance. The petitioner in a qui tam action asks double damages plus $2,000 from each of seventeen respondents. The respondents had previously been indicted by the United States government in a criminal action and had paid fines totalling $5,000.

The respondents answered on the merits, made other pleadings not relevant at this stage of the case, and offered two special defenses; that the action placed them in double jeopardy in violation of the Fifth Amendment and that the statutes involved did not provide a basis for such a cause of action. The district court, without reaching the merits, dismissed the complaint on the theory of double jeopardy. The Circuit Court of Appeals affirmed the dismissal of the complaint but rested its conclusion on the belief that no claim against the United States was involved since the United States was not a party to the contract. It relied heavily on the Hess case as decided by the Circuit Court.

For the reasons set forth in our opinion in the Hess case, we believe that the decision below should be reversed.

It is so ordered.

Reversed.

Mr. Justice FRANKFURTER joins in this opinion but concurs on the question of double jeopardy for the reasons set forth in his opinion in No. 173, United States ex rel. Marcus v. Hess. Mr. Justice JACKSON dissents for the reasons set forth in his opinion in the same case.

Mr. Justice MURPHY took no part in the consideration or disposition of this case.