B-130754, MAR. 12, 1957

B-130754: Mar 12, 1957

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KOOYMAN: WE HAVE BEEN ADVISED BY THE UNITED STATES ATTORNEY. THAT YOU HAVE REFUSED TO EXECUTE A COMPLETE SATISFACTION OF JUDGMENT IN THE ABOVE ENTITLED ACTION BECAUSE OF THE FACT THAT THE COSTS AWARDED IN THIS CASE WERE NOT ALLOWED IN GENERAL ACCOUNTING OFFICE SETTLEMENT 2279357 AND. BECAUSE NO INTEREST WAS ALLOWED ON THE AMOUNT OF JUDGMENT OBTAINED BY YOU. YOUR REFUSAL TO EXECUTE A COMPLETE SATISFACTION OF JUDGMENT FOR THE REASONS INDICATED WILL BE REGARDED AS A REQUEST FOR REVIEW OF OUR SETTLEMENT CERTIFICATE. THE COSTS IN THE AMOUNT OF $98.90 HAVE NOT BEEN PAID BECAUSE THE VETERANS ADMINISTRATION ADVISED OUR OFFICE THAT YOU ARE INDEBTED TO THE UNITED STATES IN THE SUM OF $95. THEN THE COMPTROLLER GENERAL OF THE UNITED STATES SHALL WITHHOLD PAYMENT OF SUCH FURTHER AMOUNT OF SUCH JUDGMENT AS IN HIS OPINION WILL BE SUFFICIENT TO COVER ALL LEGAL CHARGES AND COSTS IN PROSECUTING THE DEBT OF THE UNITED STATES TO FINAL JUDGMENT.

B-130754, MAR. 12, 1957

TO MR. CASEY E. KOOYMAN:

WE HAVE BEEN ADVISED BY THE UNITED STATES ATTORNEY, SAN FRANCISCO, CALIFORNIA, THAT YOU HAVE REFUSED TO EXECUTE A COMPLETE SATISFACTION OF JUDGMENT IN THE ABOVE ENTITLED ACTION BECAUSE OF THE FACT THAT THE COSTS AWARDED IN THIS CASE WERE NOT ALLOWED IN GENERAL ACCOUNTING OFFICE SETTLEMENT 2279357 AND, ALSO, BECAUSE NO INTEREST WAS ALLOWED ON THE AMOUNT OF JUDGMENT OBTAINED BY YOU. YOUR REFUSAL TO EXECUTE A COMPLETE SATISFACTION OF JUDGMENT FOR THE REASONS INDICATED WILL BE REGARDED AS A REQUEST FOR REVIEW OF OUR SETTLEMENT CERTIFICATE.

THE COSTS IN THE AMOUNT OF $98.90 HAVE NOT BEEN PAID BECAUSE THE VETERANS ADMINISTRATION ADVISED OUR OFFICE THAT YOU ARE INDEBTED TO THE UNITED STATES IN THE SUM OF $95, THE BALANCE DUE ON THE OVERPAYMENT OF SUBSISTENCE ALLOWANCE PAID TO YOU BY THE VETERANS ADMINISTRATION FEBRUARY 1, TO 28, 1950. TITLE 31, U.S.C. SECTION 227, PROVIDES:

"WHEN ANY FINAL JUDGMENT RECOVERED AGAINST THE UNITED STATES DULY ALLOWED BY LEGAL AUTHORITY SHALL BE PRESENTED TO THE COMPTROLLER GENERAL OF THE UNITED STATES FOR PAYMENT, AND THE PLAINTIFF THEREIN SHALL BE INDEBTED TO THE UNITED STATES IN ANY MANNER, WHETHER AS PRINCIPAL OR SURETY, IT SHALL BE THE DUTY OF THE COMPTROLLER GENERAL OF THE UNITED STATES TO WITHHOLD PAYMENT OF AN AMOUNT OF SUCH JUDGMENT EQUAL TO THE DEBT THUS DUE TO THE UNITED STATES; AND IF SUCH PLAINTIFF ASSENTS TO SUCH SET-OFF, AND DISCHARGES HIS JUDGMENT OR AN AMOUNT THEREOF EQUAL TO SAID DEBT, THE COMPTROLLER GENERAL OF THE UNITED STATES SHALL EXECUTE A DISCHARGE OF THE DEBT DUE FROM THE PLAINTIFF TO THE UNITED STATES. BUT IF SUCH PLAINTIFF DENIES HIS INDEBTEDNESS TO THE UNITED STATES, OR REFUSES TO CONSENT TO THE SET-OFF, THEN THE COMPTROLLER GENERAL OF THE UNITED STATES SHALL WITHHOLD PAYMENT OF SUCH FURTHER AMOUNT OF SUCH JUDGMENT AS IN HIS OPINION WILL BE SUFFICIENT TO COVER ALL LEGAL CHARGES AND COSTS IN PROSECUTING THE DEBT OF THE UNITED STATES TO FINAL JUDGMENT. AND IF SUCH DEBT IS NOT ALREADY IN SUIT, IT SHALL BE THE DUTY OF THE COMPTROLLER GENERAL OF THE UNITED STATES TO CAUSE LEGAL PROCEEDINGS TO BE IMMEDIATELY COMMENCED TO ENFORCE THE SAME, AND TO CAUSE THE SAME TO BE PROSECUTED TO FINAL JUDGMENT WITH ALL REASONABLE DISPATCH. AND IF IN SUCH ACTION JUDGMENT SHALL BE RENDERED AGAINST THE UNITED STATES, OR THE AMOUNT RECOVERED FOR DEBT AND COSTS SHALL BE LESS THAN THE AMOUNT SO WITHHELD AS BEFORE PROVIDED, THE BALANCE SHALL THEN BE PAID OVER SUCH PLAINTIFF BY SUCH COMPTROLLER GENERAL OF THE UNITED STATES WITH 6 PERCENTUM INTEREST THEREON FOR THE TIME IT HAS BEEN WITHHELD FROM THE PLAINTIFF.'

IT IS MANDATORY UNDER THE LAW JUST QUOTED THAT WE WITHHOLD, FROM PAYMENT OF THE AMOUNT DUE YOU UNDER THE JUDGMENT, AT LEAST THE AMOUNT OF YOUR INDEBTEDNESS TO THE UNITED STATES PENDING THE ASCERTAINMENT OF WHETHER YOU WILL ASSENT TO SET-OFF OF THE AMOUNT OF YOUR INDEBTEDNESS TO THE UNITED STATES. OUR RECORDS SHOW THAT, ON DECEMBER 11, 1956, OUR CLAIMS DIVISION REQUESTED YOU TO ADVISE WHETHER THE AMOUNT OF THE DEBT, $95, MIGHT BE OFFSET AGAINST THE COSTS OTHERWISE DUE ON THE JUDGMENT BUT NO REPLY HAS BEEN RECEIVED. SINCE THE LETTER MAY NOT HAVE BEEN RECEIVED BY YOU AND SINCE THE LETTER FAILED TO SHOW FULLY THE REASON FOR THE REQUEST FOR ADVICE FROM YOU, WE WOULD APPRECIATE YOUR EARLY REPLY AS TO WHETHER YOU CONSENT TO APPLICATION OF $95 OF THE COSTS OTHERWISE DUE YOU TO LIQUIDATE YOUR INDEBTEDNESS TO THE UNITED STATES. IF YOU ASSENT TO THE SET-OFF, THE BALANCE OF THE AMOUNT OF THE COSTS WILL BE FORWARDED TO YOU. IF YOU DENY THIS INDEBTEDNESS AND REFUSE SUCH CONSENT, IT WILL BE OUR DUTY TO CAUSE LEGAL PROCEEDINGS TO BE PROMPTLY COMMENCED TO ENFORCE COLLECTION OF THE DEBT.

GENERALLY SPEAKING, PRIOR TO JULY 27, 1956, THERE WERE NO FUNDS AVAILABLE FOR THE PAYMENT OF JUDGMENTS RENDERED AGAINST THE UNITED STATES AND IT WAS NECESSARY THAT THE AMOUNT OF THE JUDGMENT BE CERTIFIED TO THE CONGRESS FOR A SPECIFIC APPROPRIATION FOR PAYMENT. SECTION 1302 OF PUBLIC LAW 814, 84TH CONGRESS, APPROVED JULY 27, 1956, 70 STAT. 694, ESTABLISHED A PERMANENT APPROPRIATION FOR THE PAYMENT OF JUDGMENTS (NOT IN EXCESS OF $100,000) AND INTEREST THEREON IN CERTAIN CASES. THAT SECTION PROVIDES:

"THERE ARE APPROPRIATED, OUT OF ANY MONEY IN THE TREASURY NOT OTHERWISE APPROPRIATED, AND OUT OF THE POSTAL REVENUES, RESPECTIVELY, SUCH SUMS AS MAY HEREAFTER BE NECESSARY FOR THE PAYMENT, NOT OTHERWISE PROVIDED FOR, AS CERTIFIED BY THE COMPTROLLER GENERAL, OF JUDGMENTS (NOT IN EXCESS OF $100,000 IN ANY ONE CASE) RENDERED BY THE DISTRICT COURTS AND THE COURT OF CLAIMS AGAINST THE UNITED STATES WHICH HAVE BECOME FINAL, TOGETHER WITH SUCH INTEREST AND COSTS AS MAY BE SPECIFIED IN SUCH JUDGMENTS OR OTHERWISE AUTHORIZED BY LAW: PROVIDED, THAT, WHENEVER A JUDGMENT OF A DISTRICT COURT TO WHICH THE PROVISIONS OF SUBSECTION 2411 (B) OF TITLE 28, U.S.C. APPLY, IS PAYABLE FROM THIS APPROPRIATION, INTEREST SHALL BE PAID THEREON ONLY WHEN SUCH JUDGMENT BECOMES FINAL AFTER REVIEW ON APPEAL OR PETITION BY THE UNITED STATES, AND THEN ONLY FROM THE DATE OF THE FILING OF THE TRANSCRIPT THEREOF IN THE GENERAL ACCOUNTING OFFICE TO THE DATE OF THE MANDATE OF AFFIRMANCE (EXCEPT THAT IN CASES REVIEWED BY THE SUPREME COURT INTEREST SHALL NOT BE ALLOWED BEYOND THE TERM OF THE COURT AT WHICH THE JUDGMENT WAS AFFIRMED):PROVIDED FURTHER, THAT WHENEVER A JUDGMENT RENDERED BY THE COURT OF CLAIMS IS PAYABLE FROM THIS APPROPRIATION, INTEREST PAYABLE THEREON IN ACCORDANCE WITH SUBSECTION 2516 (B) OF TITLE 28, UNITED STATES CODE, SHALL BE COMPUTED FROM THE DATE OF THE FILING OF THE TRANSCRIPT THEREOF IN THE GENERAL ACCOUNTING OFFICE.'

THE JUDGMENT IN THE INSTANT CASE IS IN AN AMOUNT LESS THAN $100,000; WAS RENDERED BY A DISTRICT COURT AGAINST THE UNITED STATES; HAS BECOME FINAL; AND, NO APPROPRIATION FOR ITS PAYMENT HAS OTHERWISE BEEN PROVIDED. THUS, THERE IS NO ROOM FOR DOUBT THAT IT PROPERLY WAS PAYABLE FROM THE APPROPRIATION MADE BY SECTION 1302. THE CLAIM ON WHICH THE JUDGMENT IS BASED IS NOT OF A TYPE THAT DRAWS INTEREST AS A MATTER OF LAW AND WHILE THE JUDGMENT PROVIDES THAT INTEREST WILL BE ALLOWED AT THE RATE "OF - PERCENT," NO RATE IS SPECIFIED THEREIN. IT THUS APPEARS INTEREST WOULD BE ALLOWABLE, IF AT ALL, ONLY BY VIRTUE OF 28 U.S.C. 2411 (B). THE INTENT AND EFFECT OF SECTION 1302 REGARDING DISTRICT COURT JUDGMENTS PAYABLE FROM THE PERMANENT APPROPRIATION WERE TO RESTRICT AND LIMIT INTEREST OTHERWISE ALLOWABLE UNDER 28 U.S.C. 2411 (B) SO AS TO PERMIT PAYMENT OF INTEREST ONLY IN CASES APPEALED BY THE UNITED STATES AND AFFIRMED BY THE APPELLATE COURT.

UNDER THE STATUTE YOUR CLAIM FOR INTEREST WOULD BE ALLOWABLE ONLY ON THE BASIS THAT THE GOVERNMENT'S ACTION IN FILING A PROTECTIVE NOTICE OF APPEAL ON AUGUST 31, 1956, WHICH WAS DISMISSED ON OCTOBER 31, 1956, CONSTITUTED A "REVIEW" AND AN "AFFIRMANCE" BY THE COURT OF APPEALS. THE ISSUANCE OF A MANDATE OF AFFIRMANCE PRESUPPOSES A REVIEW OF THE MERITS AND THE MERE DISMISSAL OF THE PROTECTIVE NOTICE OF APPEAL IN NO SENSE INDICATES SUCH ACTION HAS TAKEN PLACE. IN YOUR CASE, THERE HAVING BEEN NO "REVIEW" OF THE MERITS AND NO MANDATE OF AFFIRMANCE HAVING BEEN ISSUED, INTEREST IS NOT PAYABLE UNDER SECTION 1302. SEE, IN THIS CONNECTION, 30 COMP. GEN. 238.

THUS THE ACTION TAKEN IN THE SETTLEMENT IN NOT ALLOWING INTEREST ON THE JUDGMENT APPEARS CORRECT AND IS SUSTAINED. ACTION CONCERNING PAYMENT OF COSTS WILL BE WITHHELD PENDING RECEIPT OF THE ADVICE REFERRED TO ABOVE AS TO WHETHER YOU CONSENT TO OFFSET THEREFROM OF THE AMOUNT OF YOUR INDEBTEDNESS TO THE UNITED STATES. IN ORDER THAT WE MAY COMPLY WITH THE PROVISIONS OF 31 U.S.C. 227, A PROMPT REPLY FROM YOU IN THIS REGARD WILL BE APPRECIATED, YOUR ATTENTION BEING CALLED TO THE FACT THAT SHOULD IT BECOME NECESSARY TO REDUCE YOUR INDEBTEDNESS BECAUSE OF THE VETERANS ADMINISTRATION OVERPAYMENT TO JUDGMENT, COURT COSTS AND INTEREST CHARGES MAY ALSO ACCRUE AGAINST YOU.