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B-131612, OCT. 31, 1957

B-131612 Oct 31, 1957
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DISALLOWING YOUR CLAIM WAS SUSTAINED. UPON RECONSIDERATION OF THE MATTER THE PRIOR ACTION WAS ADHERED TO IN OUR LETTER OF JULY 9. THIS ACTION IS EXPLAINED IN HOUSE OF REPRESENTATIVES REPORT NO. 695. IT IS FELT THAT THE PROPER OFFICIAL TO GIVE LEGAL ADVICE TO THE HEADS OF EXECUTIVE DEPARTMENTS (SUCH AS IS CONTEMPLATED IN THE DEPARTMENTAL REFERRAL CASES) IS THE DEPARTMENT OF JUSTICE OR THE ATTORNEY GENERAL. CONTRARY TO THE STATEMENT IN THE NEXT TO LAST PARAGRAPH OF YOUR LETTER INDICATING THAT THE WORD "MAY" AS USED IN THE STATUTE IS REQUIRED TO BE CONSTRUED AS "MUST. " THE LEGISLATIVE HISTORY OF THE PROVISION DISPELS ANY DOUBT THAT IT WAS INTENDED AS MANDATORY. IT WAS STATED ON PAGE 11 BY JUDGE MADDEN OF THE COURT OF CLAIMS.

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B-131612, OCT. 31, 1957

TO MR. WILLIAM D. MCGRAW:

YOUR LETTER OF SEPTEMBER 11, 1957, REQUESTS THAT YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES INCURRED IN TRAVEL PERFORMED BY YOU AND YOUR DEPENDENTS AND THE TRANSPORTATION OF YOUR HOUSEHOLD EFFECTS FROM TULLAHOMA, TENNESSEE, TO WASHINGTON, D.C., BE REFERRED TO THE COURT OF CLAIMS FOR TRIAL AND ADJUDICATION PURSUANT TO PROVISIONS OF THE DEPARTMENTAL REFERENCE STATUTE AS AMENDED BY SECTION 11, OF THE ACT OF JULY 28, 1953, PUBLIC LAW 158, 67 STAT. 227, 28 U.S.C. 2510.

BY DECISION OF MAY 21, 1957, B-131612, OUR SETTLEMENT OF APRIL 5, 1957, DISALLOWING YOUR CLAIM WAS SUSTAINED. UPON RECONSIDERATION OF THE MATTER THE PRIOR ACTION WAS ADHERED TO IN OUR LETTER OF JULY 9, 1957, TO YOU.

THE CITED AMENDATORY STATUTE REFERRED TO IN YOUR LETTER PROVIDES, AS FOLLOWS:

"THE COMPTROLLER GENERAL MAY TRANSMIT TO THE COURT OF CLAIMS FOR TRIAL AND ADJUDICATION ANY CLAIM OR MATTER OF WHICH THE COURT OF CLAIMS MIGHT TAKE JURISDICTION ON THE VOLUNTARY ACTION OF THE CLAIMANT, TOGETHER WITH ALL VOUCHERS, PAPERS, DOCUMENTS, AND PROOFS PERTAINING THERETO.

"THE COURT OF CLAIMS SHALL PROCEED WITH THE CLAIMS OR MATTERS SO REFERRED AS IN OTHER CASES PENDING IN SUCH COURT AND SHALL RENDER JUDGMENT THEREON. * * *"

SECTION 8 OF THE STATUTE REPEALED 28 U.S.C. 1493 AND SECTION 11 AMENDED 28 U.S.C. 2510 SO AS TO DISPENSE, GENERALLY, WITH DEPARTMENTAL REFERENCE CASES. THIS ACTION IS EXPLAINED IN HOUSE OF REPRESENTATIVES REPORT NO. 695, 83D CONGRESS, ON H.R. 1070, AS FOLLOWS:

"WITH THE EFFICIENT DEVELOPMENT OF THE DEPARTMENT OF JUSTICE, IT IS FELT THAT THE PROPER OFFICIAL TO GIVE LEGAL ADVICE TO THE HEADS OF EXECUTIVE DEPARTMENTS (SUCH AS IS CONTEMPLATED IN THE DEPARTMENTAL REFERRAL CASES) IS THE DEPARTMENT OF JUSTICE OR THE ATTORNEY GENERAL, AND NOT THE COURT OF CLAIMS. AT THE INSTANCE OF THE COMPTROLLER GENERAL, HOWEVER, AUTHORITY FOR THAT OFFICIAL TO TRANSMIT TO THE COURT OF CLAIMS FOR TRIAL AND ADJUDICATION ANY CLAIM OR MATTER OVER WHICH THE COURT MIGHT TAKE JURISDICTION ON THE VOLUNTARY ACTION OF THE CLAIMANT HAS BEEN RETAINED. THE CUMBERSOME AND ANACHRONISTIC PROCEDURE OF TRANSMITTING SUCH CLAIMS FOR ADJUDICATION THROUGH THE SECRETARY OF TREASURY, HOWEVER, HAS BEEN ELIMINATED.'

CONTRARY TO THE STATEMENT IN THE NEXT TO LAST PARAGRAPH OF YOUR LETTER INDICATING THAT THE WORD "MAY" AS USED IN THE STATUTE IS REQUIRED TO BE CONSTRUED AS "MUST," THE LEGISLATIVE HISTORY OF THE PROVISION DISPELS ANY DOUBT THAT IT WAS INTENDED AS MANDATORY. IN THE HEARINGS OF MARCH 26, 1953, BEFORE THE SENATE SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY WHICH CONSIDERED S. 1349, THE COMPANION BILL TO H.R. 1070, ENACTED AS PUBLIC LAW 158, IT WAS STATED ON PAGE 11 BY JUDGE MADDEN OF THE COURT OF CLAIMS, AS FOLLOWS:

"I THINK WE WOULD HAVE NO OBJECTION TO LEAVING THE SECOND PART OF 2510 IN, BUT REMOVING, AS YOU IMPLIEDLY SUGGESTED, THE CUMBERSOME MACHINERY OF IT AND ALLOWING THE COMPTROLLER GENERAL, IF HE DESIRED, TO SEND A CASE TO THE COURT OF CLAIMS IF HE WANTED OUR DECISION ON IT.'

IT THUS APPEARS THAT THE LEGISLATION WAS INTENDED TO AUTHORIZE THE COMPTROLLER GENERAL, IN HIS DISCRETION, WHEN IN DOUBT AS TO THE VALIDITY OF THE DEMANDS OF CLAIMANTS TO TRANSMIT THE ENTIRE RECORD TO THE COURT OF CLAIMS LEAVING THE CLAIMANTS TO PROVE THEIR CASES UNDER THE RULES AND FORM OF LAW.

OUR DETERMINATION IN YOUR CASE WAS MADE IN THE DECISION OF MAY 21 AND, UPON APPEAL, WAS AFFIRMED. WHILE THE STATUTE TO WHICH YOU REFER IS SUFFICIENTLY COMPREHENSIVE TO HAVE ORIGINALLY PERMITTED REFERRAL OF YOUR CASE TO THE COURT OF CLAIMS, WE VIEWED YOUR CLAIM AS PROPERLY FOR DISPOSITION HERE. OUR REFERRAL CASES UNDER THE STATUTE HAVE BEEN LIMITED TO THOSE INVOLVING CONFLICTING CLAIMS AND DOUBTFUL QUESTIONS OF LAW AND FACT WHICH IN THE INTERESTS OF THE UNITED STATES WERE CONSIDERED AS REQUIRING ADJUDICATION BY THE COURT OF CLAIMS. THEREFORE, YOUR REQUEST IS DENIED. IF YOU DESIRE TO HAVE THE COURT OF CLAIMS CONSIDER YOUR CLAIM IT WILL BE NECESSARY FOR YOU TO FILE A PETITION THEREIN.

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