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B-72774, MARCH 15, 1948, 27 COMP. GEN. 521

B-72774 Mar 15, 1948
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THIS OFFICE IS NOT RELIEVED OF THE RESPONSIBILITY PLACED UPON IT BY THE ACT OF JULY 31. MUST DECLINE TO APPROVE VOUCHERS COVERING SUCH PAYMENTS IN THE ABSENCE OF CERTIFICATION THAT THE AMOUNTS ARE CONSISTENT WITH THE APPLICABLE DECISIONS OF THIS OFFICE. 1948: REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 12. WAIMEA AND MANOA UNDER TIME CHARTERS WITH THE MATSON NAVIGATION COMPANY MUST BE SUPPORTED BY CERTIFICATES TO THE EFFECT THAT THE AMOUNTS TO BE PAID THEREON ARE CONSISTENT WITH THE PRINCIPLES OF THE APPLICABLE DECISIONS OF THIS OFFICE. IT IS POINTED OUT IN YOUR LETTER THAT THE AMOUNT OF $678. 689.82 ACTUALLY IS TO BE PAID IN SETTLEMENT OF CLAIMS IN LITIGATION IN MATSON NAVIGATION COMPANY V.

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B-72774, MARCH 15, 1948, 27 COMP. GEN. 521

VESSELS - JUST COMPENSATION PAYMENTS - CERTIFICATION REQUIREMENTS EVEN THOUGH THE AMOUNT PROPOSED TO BE PAID BY THE MARITIME COMMISSION AS JUST COMPENSATION FOR THE USE OF VESSELS UNDER TIME CHARTERS HAS BEEN APPROVED BY THE DEPARTMENT OF JUSTICE, THIS OFFICE IS NOT RELIEVED OF THE RESPONSIBILITY PLACED UPON IT BY THE ACT OF JULY 31, 1947, TO PREVENT EXCESSIVE PAYMENTS OF JUST COMPENSATION FROM THE AMOUNT APPROPRIATED THEREBY, AND MUST DECLINE TO APPROVE VOUCHERS COVERING SUCH PAYMENTS IN THE ABSENCE OF CERTIFICATION THAT THE AMOUNTS ARE CONSISTENT WITH THE APPLICABLE DECISIONS OF THIS OFFICE.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, UNITED STATES MARITIME COMMISSION, MARCH 15, 1948:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 12, 1948, IN WHICH YOU REQUEST ADVICE AS TO WHETHER MARITIME COMMISSION VOUCHERS NUMBERED 104 THROUGH 107 PROPOSING TO PAY THE AGGREGATE AMOUNT OF $678,689.82 AS THE BALANCE DUE AS JUST COMPENSATION FOR THE USE OF THE VESSELS HAWAIIAN MERCHANT, HAWAIIAN PLANTER, WAIMEA AND MANOA UNDER TIME CHARTERS WITH THE MATSON NAVIGATION COMPANY MUST BE SUPPORTED BY CERTIFICATES TO THE EFFECT THAT THE AMOUNTS TO BE PAID THEREON ARE CONSISTENT WITH THE PRINCIPLES OF THE APPLICABLE DECISIONS OF THIS OFFICE, AS REQUIRED BY DECISION DATED OCTOBER 13, 1947, B-30613, B 69148.

IT IS POINTED OUT IN YOUR LETTER THAT THE AMOUNT OF $678,689.82 ACTUALLY IS TO BE PAID IN SETTLEMENT OF CLAIMS IN LITIGATION IN MATSON NAVIGATION COMPANY V. UNITED STATES, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SOUTHERN DIVISION, ADMIRALTY NOS. 24095R AND 24141S, 11TH CAUSE OF ACTION, AND THAT THE VOUCHERS ARE SUPPORTED BY A PHOTOSTATIC COPY OF A LETTER FROM THE ASSISTANT ATTORNEY GENERAL APPROVING THE SETTLEMENTS--- PRESUMABLY THE LETTER DATED AUGUST 6, 1947, A COPY OF WHICH IS ATTACHED TO MARITIME COMMISSION VOUCHER NO. 104. YOUR LETTER FURTHER STATES THAT YOU ARE UNABLE TO DETERMINE THE APPLICABILITY OF SAID DECISION OF OCTOBER 13, 1947, SINCE THE VOUCHERS PROPOSE PAYMENT OF A CLAIM IN LITIGATION "SETTLED AND PPROVED" BY THE DEPARTMENT OF JUSTICE UNDER THE AUTHORITY OF EXECUTIVE ORDER 6166.

SECTION 5 OF EXECUTIVE ORDER 6166, DATED JUNE 10, 1933, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

AS TO ANY CASE REFERRED TO THE DEPARTMENT OF JUSTICE FOR PROSECUTION OR DEFENSE IN THE COURTS, THE FUNCTION OF DECISION WHETHER AND IN WHAT MANNER TO PROSECUTE, OR TO DEFEND, OR TO COMPROMISE, OR TO APPEAL, OR TO ABANDON PROSECUTION OR DEFENSE, NOW EXERCISED BY ANY AGENCY OR OFFICER, IS TRANSFERRED TO THE DEPARTMENT OF JUSTICE. ( ITALICS SUPPLIED.) IT WILL BE NOTED THAT SAID PROVISION PURPORTS TO TRANSFER TO THE DEPARTMENT OF JUSTICE ONLY SUCH FUNCTIONS AS EXISTED IN SOME OTHER AGENCY OR OFFICER AT THE DATE OF THE PROMULGATION OF THE EXECUTIVE ORDER. IN FACT, THAT IS THE LIMIT OF THE AUTHORITY CONFERRED UPON THE PRESIDENT BY SECTION 16 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1517, PURSUANT TO WHICH THE SAID EXECUTIVE ORDER WAS ISSUED. AS OF JUNE 10, 1933, THE AUTHORITY TO COMPROMISE CLAIMS APPEARS TO HAVE BEEN THAT CONTAINED IN SECTIONS 5294 AND 5296, REVISED STATUTES, RELATING TO REMISSIONS OF FINES, PENALTIES, AND FORFEITURES UNDER LAWS RELATING TO VESSELS AND IN CONNECTION WITH INDIGENT CONVICTS; SECTION 3229, REVISED STATUTES, RELATING TO CIVIL OR CRIMINAL CASES ARISING UNDER THE INTERNAL REVENUE LAWS; SECTION 409, REVISED STATUTES, AS AMENDED BY THE ACT OF JUNE 10, 1921, 42 STAT. 24, AND THE ACT OF MARCH 4, 1925, 43 STAT. 1266, COVERING THE POSTAL SERVICE; AND SECTION 3469, REVISED STATUTES, WHICH PROVIDES AS FOLLOWS:

UPON A REPORT BY A DISTRICT ATTORNEY, OR ANY SPECIAL ATTORNEY OR AGENT HAVING CHARGE OF ANY CLAIM IN FAVOR OF THE UNITED STATES, SHOWING IN DETAIL THE CONDITION OF SUCH CLAIM, AND THE TERMS UPON WHICH THE SAME MAY BE COMPROMISED, AND RECOMMENDING THAT IT BE COMPROMISED UPON THE TERMS SO OFFERED, AND UPON THE RECOMMENDATION OF THE SOLICITOR OF THE TREASURY, THE SECRETARY OF THE TREASURY IS AUTHORIZED TO COMPROMISE SUCH CLAIM ACCORDINGLY. * * * ( ITALICS SUPPLIED.)

NO STATUTE HAS BEEN FOUND WHICH CONFERRED UPON ANY AGENCY OR OFFICER JURISDICTION TO COMPROMISE CLAIMS AGAINST THE UNITED STATES OF THE CLASS HERE UNDER CONSIDERATION. CONSEQUENTLY, NO AUTHORITY TO COMPROMISE SUCH CLAIMS COULD HAVE BEEN TRANSFERRED BY EXECUTIVE ORDER 6166 TO THE DEPARTMENT OF JUSTICE.

HOWEVER, ASIDE FROM THE QUESTION OF THE AUTHORITY OF THE DEPARTMENT OF JUSTICE TO COMPROMISE CLAIMS AGAINST THE UNITED STATES OF THE NATURE INVOLVED, IT DOES NOT APPEAR THAT THE AGREEMENT REACHED IN THIS CASE EVEN PURPORTS TO BE A COMPROMISE SETTLEMENT EFFECTED BY SAID DEPARTMENT. WHILE THE PROPOSED ACTION IS DENOMINATED A SETTLEMENT, IT APPEARS RATHER TO HAVE BEEN A WITHDRAWAL BY THE LIBELLANT OF ITS LIBELS ACCOMPANIED BY AN ACCEPTANCE OF THE AMOUNTS ORIGINALLY OFFERED BY THE WAR SHIPPING ADMINISTRATION, LESS AMOUNTS PREVIOUSLY PAID. THIS FACT IS RECOGNIZED BY THE DEPARTMENT OF JUSTICE IN AN INTRAOFFICE MEMORANDUM DATED JULY 9, 1947, TO THE ATTORNEY GENERAL, WHEREIN IT IS STATED:

* * * THE TRANSACTION IS DENOMINATED AS A "SETTLEMENT" OF LITIGATED CLAIMS, BUT IN REALITY IT IS RATHER AN ABANDONMENT BY LIBELLANT OF THE EXCESSIVE CLAIMS PUT FORTH IN THE LITIGATION. * * *

ACCORDINGLY, IT MUST BE HELD THAT THE MERE FACT THAT THE AMOUNTS PROPOSED TO BE PAID HAVE RECEIVED A CERTAIN LIMITED "APPROVAL" BY THE DEPARTMENT OF JUSTICE DOES NOT RELIEVE THIS OFFICE FROM THE RESPONSIBILITY PLACED UPON IT BY PUBLIC LAW 299, APPROVED JULY 31, 1947, 61 STAT. 698, TO PREVENT EXCESSIVE PAYMENTS OF JUST COMPENSATION FROM THE AMOUNT APPROPRIATED THEREBY. UNDER THE CIRCUMSTANCES, THIS OFFICE MUST DECLINE TO APPROVE THE SUBJECT VOUCHERS FOR PAYMENT IN THE ABSENCE OF THE CERTIFICATION SPECIFIED IN SAID DECISION OF OCTOBER 13, 1947.

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