WALLACE, District Judge.
The Government brings this action under the false claims act, Title 31 U.S.C.A. § 231, to recover civil damages for salary payments made to the defendant while he was employed as a physician for the Department of the Air Force; and, urges that each salary check paid to the defendant constituted a false claim against the Government inasmuch as each check "was paid upon presentment by the defendant because the Government hired the defendant in reliance on his false representations as set forth in said application, and the Government paid each claim or voucher in the mistaken belief that the defendant was qualified and competent to render the services for which he presented the claims."
The following facts are undisputed: On June 4, 1953, in the federal district court for the Western District of Texas, San Antonio Division, the defendant pleaded guilty to an indictment charging him with knowingly and wilfully concealing a material fact in his "Application for Federal Employment — Standard Form No. 57, U. S. Civil Service Commission" by answering "no" to the question "Since your 16th birthday, have you ever been convicted, or fined or imprisoned, or placed on probation, or have you ever been ordered to deposit bail, for the violation of any law, police regulation or ordinance (excluding minor traffic violations for which a fine of $25.00 or less was imposed)?" when previously to such application on November 7, 1949, in the County Court of Jim Wells County, Texas, the defendant had pleaded guilty to the offense of "Illegal Practice of Medicine" and was punished by confinement in the County Jail for four hours and fined $50.
Under the instant enactment one "who shall make or cause to be made * * * any claim upon or against the Government of the United States * * knowing such claim to be false, fictitious, or fraudulent" becomes civilly liable to the Government. Admittedly, the statute is penal in character and should be strictly construed.
It is immaterial that the Government has not alleged, and doubtless, cannot prove the exact monetary sum it has been damaged by virtue of any such false claims. The statute in allowing $2,000 for each fraudulent claim amounts to a Congressional declaration of liquidated damages, and may be awarded when a false or fraudulent claim is established, without allegation or proof of specific damage.
Although it is undisputed that the defendant failed to disclose in the application in question that he previously had pleaded guilty to the illegal practice of medicine, the court cannot say that such taken alone unequivocally establishes that the defendant was not professionally qualified to act as a physician and surgeon for the Government or that the Government would not have employed the defendant. Extenuating circumstances could have existed whereby at the time of the application the defendant was qualified to fill the applied for position and the Government even with knowledge of the previous law violation might have employed the defendant. It is not the purpose of summary judgment to dispose of litigation where some controversy over facts material to the decision exists, or where all facts necessary to resolve the issue in contest are not of record.
The defendant's motion to dismiss and the Government's motion for summary judgment are hereby overruled.