B-168559, AUG 25, 1972
Highlights
IS STILL UNDERGOING CONSIDERATION BY THE ATTORNEY GENERAL AND IN ACCORDANCE WITH THE LONG STANDING RULE OF GAO NOT TO ACT ON A MATTER WHICH IS IN LITIGATION IN A COURT OF COMPETENT JURISDICTION. WE MUST WITHDRAW THE DECISION TO FOLLOW THE RULE IN THE SCHMID CASE AND WITHHOLD ACTION ON SIMILAR CASES UNTIL THE CASS CASE IS FINALLY SETTLED. OUR DECISION WAS BASED ON OUR UNDERSTANDING THAT AN APPEAL TO THE JUDGMENT OF JUNE 21. IN FAVOR OF THE PLAINTIFF ON AUTHORITY OF THE SCHMID CASE WOULD BE USELESS AND CONSEQUENTLY AN APPEAL WAS NOT CONTEMPLATED. ADVISED THAT THE QUESTION OF WHETHER TO APPEAL THE CASS DECISION TO THE COURT OF APPEALS FOR THE NINTH CIRCUIT IS UNDER ACTIVE CONSIDERATION AND THERE IS A SUBSTANTIAL LIKELIHOOD THAT SUCH AN APPEAL WILL BE PROSECUTED.
B-168559, AUG 25, 1972
COMP. GEN. DECISION - SUSPENSION OF APPLICATION DECISION REGARDING THE PROCEDURE TO BE FOLLOWED IN APPLYING THE RULE OF DONALD C. CASS V. UNITED STATES, (JUNE 21, 1972, D. MONT.). SINCE THE QUESTION OF WHETHER TO APPEAL THE DECISION OF JUNE 21, 1972, IS STILL UNDERGOING CONSIDERATION BY THE ATTORNEY GENERAL AND IN ACCORDANCE WITH THE LONG STANDING RULE OF GAO NOT TO ACT ON A MATTER WHICH IS IN LITIGATION IN A COURT OF COMPETENT JURISDICTION, WE MUST WITHDRAW THE DECISION TO FOLLOW THE RULE IN THE SCHMID CASE AND WITHHOLD ACTION ON SIMILAR CASES UNTIL THE CASS CASE IS FINALLY SETTLED.
TO MR. SECRETARY:
THIS REFERS TO OUR LETTER DATED AUGUST 2, 1972, B-168559, IN WHICH WE SAID THAT WE WOULD FOLLOW THE RULE IN THE CASE OF SCHMID V. UNITED STATES, 193 CT. CL. 780 (1971), 436 F.2D 987 (1971), CERTIORARI DENIED, 404 U.S. 951 (1971), AND THAT SIMILAR CASES MIGHT BE PAID ADMINISTRATIVELY.
OUR DECISION WAS BASED ON OUR UNDERSTANDING THAT AN APPEAL TO THE JUDGMENT OF JUNE 21, 1972, IN THE CASE OF DONALD C. CASS V. UNITED STATES, CIVIL NO. 2014, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA, HELENA DIVISION, IN FAVOR OF THE PLAINTIFF ON AUTHORITY OF THE SCHMID CASE WOULD BE USELESS AND CONSEQUENTLY AN APPEAL WAS NOT CONTEMPLATED.
HOWEVER, BY LETTER ADDRESSED TO THE DEPARTMENT OF DEFENSE DATED AUGUST 11, 1972, THE ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, DEPARTMENT OF JUSTICE, ADVISED THAT THE QUESTION OF WHETHER TO APPEAL THE CASS DECISION TO THE COURT OF APPEALS FOR THE NINTH CIRCUIT IS UNDER ACTIVE CONSIDERATION AND THERE IS A SUBSTANTIAL LIKELIHOOD THAT SUCH AN APPEAL WILL BE PROSECUTED.
SINCE THERE IS A POSSIBILITY OF FURTHER ACTION IN THE CASS CASE AND IN ACCORDANCE WITH THE LONG STANDING RULE OF THIS OFFICE NOT TO ACT ON A MATTER WHICH IS IN LITIGATION IN A COURT OF COMPETENT JURISDICTION, WE MUST WITHDRAW OUR DECISION TO FOLLOW THE RULE IN THE SCHMID CASE AND WITHHOLD ACTION ON SIMILAR CASES UNTIL THE CASS CASE IS FINALLY SETTLED. ACCORDINGLY, PAYMENT OF SIMILAR CLAIMS SHOULD BE HELD IN ABEYANCE UNTIL FURTHER NOTICE.
THERE IS ENCLOSED FOR YOUR INFORMATION A COPY OF OUR LETTER OF TODAY, B- 173529, TO THE ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, DEPARTMENT OF JUSTICE, CONCERNING THIS MATTER.