B-132854, SEP. 3, 1957

B-132854, SEP. 3, 1957

TO ADOLF SEIDEL AND LOTHER WOLFGANG:

YOUR LETTER OF JUNE 15, 1957, REQUESTS REVIEW OF OUR OFFICE DISALLOWANCE OF YOUR CLAIM FOR DM. 1,712.70 AND DM. 1,823.22, GERMAN CURRENCY. THE AMOUNT CLAIMED CONSISTS OF TRAVELING EXPENSES, AND EXPENSES ALLEGEDLY INCURRED BY YOU ON TELEPHONE CALLS, TELEGRAMS, TYPING, PER DIEM, TRANSLATIONS, PHOTOSTATING, AND POSTAGE EXPENSES, IN ATTEMPTING TO SECURE AND EXPEDITE SETTLEMENT OF YOUR PRINCIPAL CLAIM FOR DM. 4,711.77. THERE IS INCLUDED IN THE AMOUNT CLAIMED IN ADDITION TO SUCH EXPENSES, AN AMOUNT CLAIMED TO BE DUE ON ACCOUNT OF INTEREST ON THE PRINCIPAL AMOUNT FOR THE PERIOD OCTOBER 1, 1950, THROUGH JUNE 1, 1955, BECAUSE OF DELAYED PAYMENT BY THE UNITED STATES.

THE SERVICES FOR WHICH YOU INITIALLY MADE CLAIM WERE RENDERED IN 1950 TO THE UNITED STATES INFORMATION AGENCY PURSUANT TO AN ORAL AGREEMENT WITH REPRESENTATIVES OF THE ECONOMIC COOPERATION ADMINISTRATION, OFFICE OF PUBLIC AFFAIRS, AND HIGH COMMISSIONER OF GERMANY, EXHIBITIONS SECTION, NUREMBERG, IN CONNECTION WITH A EUROPEAN REHABILITATION PROGRAM EXHIBITION AT THE NUREMBERG FAIR. THE AMOUNTS PAID ON SUCH CLAIM WERE THOSE ITEMS SPECIFICALLY AGREED UPON OR EXPENSES NECESSARILY EXPENDED BY YOU IN CONNECTION WITH THE FAIR AND FOR WHICH YOU HAD IN EFFECT BEEN PROMISED REIMBURSEMENT.

THE EXPENSES CURRENTLY CLAIMED WERE ALLEGEDLY INCURRED BY YOU IN CONNECTION WITH YOUR EFFORTS TO SECURE AND EXPEDITE PAYMENT OF YOUR INVOICES SUBMITTED TO THE PERTINENT UNITED STATES REPRESENTATIVES IN THE AREA, IN CONNECTION WITH YOUR PRINCIPAL CLAIM. NO REIMBURSEMENT OF SUCH EXPENSES WAS EVER PROMISED TO YOU, THE ACTION TAKEN BY YOU IN INCURRING SUCH EXPENSES HAVING BEEN UNDERTAKEN ON YOUR OWN BEHALF, NOT IN THE INTEREST OF YOUR EMPLOYER, THE UNITED STATES. FURTHERMORE, SUCH EXPENSES WERE NOT MATERIAL TO THE FINAL ADJUDICATION OF YOUR CLAIM AND THEY MUST BE CONSIDERED PURELY PERSONAL EXPENSES FOR WHICH NO AUTHORITY EXISTS IN LAW FOR REIMBURSEMENT.

THE ADMINISTRATIVE REPORTS AND RECOMMENDATIONS OF THE HIGH COMMISSIONER OF GERMANY CLAIMS COMMITTEE FORWARDED WITH YOUR SUPPLEMENTAL CLAIM FOR INTEREST AND EXPENSES SHOW THAT THE FIRST INVOICE IN CONNECTION WITH YOUR PRINCIPAL CLAIM WAS SUBMITTED ON OCTOBER 16, 1950, AND THAT THE FINAL INVOICE WAS SUBMITTED ON DECEMBER 29, 1950, AFTER CERTAIN CORRECTIONS HAD BEEN MADE BY YOU. THEREAFTER, YOU MADE NO FURTHER EFFORT TO SECURE PAYMENT OF THE INVOICES UNTIL DECEMBER 3, 1953, WHEN YOU CONTACTED THE OFFICIAL WITH WHOM YOU HAD FIRST NEGOTIATED REGARDING THE PAYMENT. YOU EXPLAIN THAT THIS DELAY IN PURSUING YOUR CLAIM WAS CAUSED BY THE TRANSFER TO ANOTHER STATION OF THE OFFICIAL WITH WHOM YOU HAD FIRST FILED YOUR INVOICES. HOWEVER, THERE IS NOTHING IN THE RECORD TO SHOW THAT YOU HAD ATTEMPTED TO OBTAIN PAYMENT FROM THIS OFFICIAL'S SUCCESSOR IN YOUR AREA OR TO TRANSMIT A CLAIM AT THAT TIME TO THE APPROPRIATE OFFICIALS OF THE UNITED STATES IN GERMANY, ALL OF YOUR CLAIMED EXPENSES BEING CONFINED TO THE PERIOD AFTER DECEMBER 3, 1953. FROM THIS RECORD IT IS EVIDENT THAT THE DELAY IN PAYMENT WAS NOT WHOLLY ATTRIBUTABLE TO THE GOVERNMENT.

THE UNITED STATES OFFICIALS CONCERNED WERE IN GERMANY FOR THE PURPOSE OF REHABILITATING THE ECONOMY OF THE COUNTRY AND TO PROMOTE A DEMOCRATIC FORM OF GOVERNMENT THERE. THESE MEASURES WERE UNDERTAKEN IN A SOVEREIGN CAPACITY. DUE TO THE SCOPE OF THE ACTIVITIES UNDERTAKEN BY THE UNITED STATES IN THIS FUNCTION, ADMINISTRATIVE DUTIES WERE MANIFOLD AND COMPLEX AND THE USUAL CHANNELS FOR ADMINISTRATION OF DISBURSEMENTS WERE HEAVILY BURDENED. UNDER THESE CONDITIONS THERE IS DOUBT AS TO WHETHER THE DELAY ON THE PART OF THE GOVERNMENT IN MAKING PAYMENT TO YOU FOR THE SERVICES FOR WHICH YOU WERE EMPLOYED WAS UNREASONABLE OR WITHOUT JUSTIFICATION.

HOWEVER THAT MAY BE, AS WAS STATED IN THE DISALLOWANCE DATED MAY 14, 1957, THE UNITED STATES IS NOT LIABLE FOR INTEREST ON ITS OBLIGATIONS EXCEPT WHERE INTEREST IS STIPULATED FOR IN LEGAL AND PROPER CONTRACTS, OR WHERE THE ALLOWANCE OF INTEREST IS SPECIALLY PROVIDED FOR BY STATUTE. ANGARICA V. BAYARD, 127 U.S. 251; SEABOARD AIR LINE RY. V. UNITED STATES, 261 U.S. 299. IN THIS CONNECTION, 28 U.S.C. 2516, SPECIFICALLY PROVIDES THAT INTEREST ON A CLAIM AGAINST THE UNITED STATES SHALL BE ALLOWED IN A JUDGMENT OF THE COURT OF CLAIMS, ONLY UPON A CONTRACT OR ACT OF CONGRESS EXPRESSLY STIPULATING FOR THE PAYMENT OF INTEREST. THE TERMS OF THE GERMAN CIVIL CODE (BURGERLICHES GESETZBUCH) AND THE GERMAN COMMERCIAL CODE (HANDELSGESETZBUCH) DO NOT APPEAR TO BE APPLICABLE TO TRANSACTIONS WITH A SOVEREIGN. WHERE COMPENSATION TO BE PAID BY THE GOVERNMENT IS FIXED BY CONTRACT CONTAINING NO PROVISION FOR PAYMENT OF INTEREST, NO INTEREST RUNS AGAINST THE GOVERNMENT, EVEN THOUGH THE GOVERNMENT'S PAYMENT IS DELAYED. UNITED STATES V. JORDAN, 186 F.2D 803. THE SOVEREIGN IS NOT LIABLE FOR INTEREST UNLESS THERE IS A STATUTORY REQUIREMENT OR A CONTRACT TO PAY IT. BUSSER V. UNITED STATES, 130 F.2D 537, AND CASES CITED THEREIN. FURTHER, WHERE INTEREST IS NOT PAYABLE BY THE TERMS OF A CONTRACT, IT IS NOT A PART OF THE DEBT BUT AN INCIDENT TO IT AND PAYMENT OF ONE WOULD DISCHARGE THE OTHER. GREGORY V. JACOBS, 56 N.Y.S.2D 574.

UNDER THE CIRCUMSTANCES, SINCE THERE WAS NO CONTRACT EXPRESSLY STIPULATING FOR THE PAYMENT OF INTEREST AND SINCE THERE HAS BEEN FOUND NO STATUTORY AUTHORITY FOR THE PAYMENT OF INTEREST ON CLAIMS OF THIS NATURE, THE LONG-STANDING PROHIBITION AGAINST PAYING INTEREST ON CLAIMS AGAINST THE GOVERNMENT WITHOUT EXPRESS PROVISION THEREFOR IS FOR APPLICATION AND THE DISALLOWANCE OF MAY 14, 1957, APPEARS PROPER AND IS SUSTAINED.

THE DOCUMENTS SUBMITTED IN SUPPORT OF YOUR CLAIM HAVE BECOME A PART OF THE RECORDS OF OUR OFFICE AND MUST BE RETAINED. HOWEVER, SHOULD CERTIFIED COPIES THEREOF BE REQUIRED IN CONNECTION WITH ANY SUIT WHICH MAY BE FILED IN THE MATTER, THEY WILL BE MADE AVAILABLE TO THE COURT IN RESPONSE TO A SUBPOENA OR REQUEST OF THE COURT THEREFOR WHICH SHOULD BE ADDRESSED TO THE COMPTROLLER GENERAL OF THE UNITED STATES AND SERVED UPON THE CHIEF, RECORDS MANAGEMENT AND SERVICES BRANCH, OFFICE OF ADMINISTRATIVE SERVICES, GENERAL ACCOUNTING OFFICE, WASHINGTON 25, D.C. ..END :