B-136946, FEB. 27, 1961

B-136946, FEB. 27, 1961

TO MR. LAVERN R. DILWEG:

REFERENCE IS MADE TO OUR LETTER OF MAY 20, 1960, AND PRIOR CORRESPONDENCE BETWEEN US CONCERNING YOUR INTEREST IN CERTAIN CLAIMS DUE VARIOUS FILIPINOS UNDER THE MISSING PERSONS ACT, AS AMENDED, 50 APP. U.S.C. 1001 ET SEQ.

BY DECISION B-136946 OF OCTOBER 14, 1958, PUBLISHED AT 38 COMP. GEN. 304, WE RULED, QUOTING FROM THE SYLLABUS, THAT:

"IN THE SETTLEMENT OF AN AMOUNT DUE UNDER THE MISSING PERSONS ACT ON ACCOUNT OF THE DEATH OF A PHILIPPINE SCOUT WHO DIED PRIOR TO JANUARY 1, 1956, WHILE DOMICILED IN THE PHILIPPINES, THE ACT OF JUNE 30, 1906, AS AMENDED BY THE ACT OF FEBRUARY 25, 1946 AND SECTION 58 OF TITLE 78, PHILIPPINE ANNOTATED LAWS, REQUIRE THAT THE JUDGE ADVOCATE GENERAL OF THE ARMED FORCES IN THE PHILIPPINES BE RECOGNIZED AS THE LAWFUL CLAIMANT AND A POWER OF ATTORNEY FROM THE WIDOW DOES NOT CONSTITUTE AUTHORITY TO SEND ANY AMOUNT IN CARE OF THE ATTORNEY OR TO PAY THE ATTORNEY A FEE FOR SERVICES RENDERED IN FILING THE APPLICATION FOR THE AMOUNT DUE.'

FOLLOWING THIS DECISION YOU FILED SUIT IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, CIVIL ACTION NO. 444-59, ASSERTING AN ATTORNEY'S LIEN ON THE FUNDS INVOLVED IN A NUMBER OF CLAIMS SIMILAR TO THE ONE COVERED IN THE DECISION AND PRAYING FOR A TEMPORARY INJUNCTION RESTRAINING PAYMENT OF THE CLAIMS. ON THE BASIS OF YOUR SUIT, INSTRUCTIONS WERE ISSUED TO SUSPEND PAYMENT OF THE CLAIMS INVOLVED UNTIL THE MATTER OF YOUR INTEREST THEREIN WAS RESOLVED.

SUBSEQUENTLY, QUESTION AROSE CONCERNING A POSSIBLE INTEREST OF YOURS IN CLAIMS IDENTICAL TO THOSE ON BEHALF OF DECEASED BENEFICIARIES WHICH WERE THE SUBJECT OF CIVIL ACTION NO. 444-59, EXCEPT THAT THE CLAIMANTS ARE ALIVE. AND EXCEPT FOR THE QUESTION OF PAYMENT TO THE JUDGE ADVOCATE GENERAL OF THE ARMED FORCES IN THE PHILIPPINES, THE CONSIDERATIONS PERTAINING TO YOUR INTEREST IN THE "LIVE" CLAIMS ARE SUBSTANTIALLY SIMILAR TO THOSE IN THE "DECEASED" CLAIMS. WE ADVISED YOU, WITH A FULL EXPLANATION OF OUR REASONS, THAT WE DID NOT CONSIDER THERE WAS ANYTHING BINDING THE GOVERNMENT TO MAKE PAYMENT UNDER THE "LIVE" CLAIMS OTHER THAN DIRECTLY TO THE CLAIMANTS INVOLVED BUT THAT IN VIEW OF THE SIMILARITY OF THE QUESTIONS TO BE RESOLVED WITH THOSE FOR RESOLUTION BY THE COURT AS TO THE "DECEASED" CLAIMS, WE WOULD, UNTIL THE OUTCOME OF THE COURT ACTION, SUSPEND PAYMENT OF THE AMOUNTS POSSIBLY DUE YOU. WE SERVED YOU NOTICE THAT IF THE GOVERNMENT PREVAILED IN YOUR ACTION WITH RESPECT TO DECEASED BENEFICIARIES, WE PROPOSED TO DIRECT DELIVERY OF CHECKS FOR THE AMOUNTS WITHHELD, DIRECTLY TO THE CLAIMANTS.

WE HAVE RECENTLY BEEN ADVISED BY THE DEPARTMENT OF JUSTICE THAT YOU MOVED TO DISMISS CIVIL ACTION NO. 444-59 AND THAT JUDGE WALSH HAS SIGNED AN ORDER DISMISSING THE ACTION WITH PREJUDICE TO YOU. AS THE WITHHOLDING OF PAYMENTS DUE THE CLAIMANTS, BOTH LIVING AND DECEASED, WAS BASED UPON THIS ACTION, NOW DISMISSED, THIS IS TO ADVISE THAT IN VIEW OF YOUR MOVE FOR DISMISSAL AND OF JUDGE WALSH'S ORDER, WE HAVE ISSUED INSTRUCTIONS TODAY DIRECTING THAT THE FULL AMOUNT OF MONEYS DUE THE CLAIMANTS INVOLVED BE PAID DIRECTLY TO THEM.