B-135979, OCT. 20, 1964

B-135979, OCT. 20, 1964

TO MR. VICTOR R. SMITH:

YOUR LETTER OF SEPTEMBER 28, 1964, REQUESTS REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT OF SEPTEMBER 22, 1964, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $2,000 REPRESENTING A FINE IMPOSED UPON YOU IN A COURT MARTIAL PROCEEDING UNDER A STATUTE WHICH SUBSEQUENTLY WAS HELD BY THE SUPREME COURT TO BE UNCONSTITUTIONAL.

YOUR LETTER REFERS TO CERTAIN ASPECTS OF YOUR CASE WHICH ARE NOT BEFORE US FOR REVIEW, THE ONLY QUESTION FOR OUR CONSIDERATION BEING WHETHER IN THE ABSENCE OF AN APPROPRIATION EXPRESSLY PROVIDING FOR REFUNDS OF FINES IN CASES SUCH AS YOURS WE HAVE JURISDICTION TO AUTHORIZE THE PAYMENT CLAIMED.

IN NOVEL CASES AND LACKING PRECEDENTS IN DECISIONS OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT, WE LOOK TO THE DECISIONS OF THE COURTS AND PARTICULARLY OF THE SUPREME COURT, THE DECISIONS OF WHICH WE DEEM BINDING ON US, FOR GUIDANCE.

IN THE CASE OF UNITED STATES V. GETTINGER, ET AL., 272 U.S. 734, THE SUPREME COURT FOUND THAT A UNITED STATES DISTRICT COURT WAS WITHOUT JURISDICTION TO ENTERTAIN A SUIT FOR RECOVERY OF A FINE IMPOSED UNDER A STATUTE SUBSEQUENTLY HELD TO BE UNCONSTITUTIONAL. ESSENTIALLY YOUR CASE IS SIMILAR TO THE GETTINGER CASE.

THE COURT OF CLAIMS IN THE CASE OF NATHAN MALLOW V. UNITED STATES, CT.CL. NO. 372-61, DECIDED APRIL 5, 1963--- A CASE ARISING UNDER THE SAME STATUTE AS YOUR OWN--- SOUGHT TO DISTINGUISH THE MALLOW CASE FROM THE GETTINGER CASE AND RENDERED JUDGMENT FOR THE PLAINTIFF WHO, LIKE YOU, HAD BEEN FINED AS A CONSEQUENCE OF A COURT MARTIAL PROCEEDING IN JAPAN.

BOTH THE COURT OF CLAIMS AND THE UNITED STATES DISTRICT COURTS ARE VESTED WITH JURISDICTION OVER ANY CLAIM AGAINST THE UNITED STATES FOUNDED EITHER UPON THE CONSTITUTION OR ANY ACT OF CONGRESS. THEREFORE, IN THE GETTINGER CASE THE SUPREME COURT IN REVERSING THE JUDGMENT OF THE DISTRICT COURT DIRECTING REFUND OF THE FINE WAS FREE TO CONSIDER THE CONSTITUTIONAL ASPECTS OF THE CASE. WE REGARD IT AS SIGNIFICANT THAT IT DID NOT DO SO.

WHILE WE GIVE GREAT WEIGHT TO THE DECISIONS OF THE COURT OF CLAIMS THEY ARE NOT REGARDED AS BINDING PRECEDENTS, PARTICULARLY WHEN WE CONCLUDE THAT THEY ARE OR MAY BE AT VARIANCE WITH DECISIONS OF THE SUPREME COURT.

OUR JURISDICTION TO SETTLE CLAIMS AND DEMANDS BY THE UNITED STATES AND AGAINST IT MAY BE, IN SOME RESPECTS, BROADER THAN THAT OF THE UNITED STATES DISTRICT COURTS. HOWEVER, THE DECISIONS OF THE SUPREME COURT IN THE GETTINGER CASE CREATES A DOUBT WHETHER CLAIMS FOR REFUNDS OF FINES LEVIED AS IN CASES SUCH AS YOURS CREATE A LEGAL OBLIGATION ON THE PART OF THE UNITED STATES TO PAY. THEREFORE, SO LONG AS THE GETTINGER CASE STANDS AS LAW AND NO APPROPRIATION IS EXPRESSLY MADE AVAILABLE BY THE CONGRESS TO REFUND FINES IN LIKE CASES, WE MAY NOT AUTHORIZE PAYMENT FOR SUCH CLAIMS.

IT FOLLOWS THAT WE REGARD THE CONCLUSION REACHED IN OUR OFFICE SETTLEMENT OF SEPTEMBER 22, 1964, AS CORRECT AND UPON REVIEW IT MUST BE AND IS SUSTAINED.