B-141540 March 24, 1960

B-141540 March 24, 1960

Harry Richards, Esquire United States Attorney Eastern District of Missouri St. Louis 1, Missouri

Re: Robert Steppelmann, a minor, etc. v. United States of America No. 570133(1)

Dear Mr. Richards:

Your letter of August 31, 1959, transmitted a copy of a letter dated August 6 from the Counsel for the plaintiff in the above-captioned case and requested our views as to the contents thereof.

The letter of August 6 was writeen as a result of our disallowance in our Certificate of Settlement dated July 21, 1959, Claim No. Z 1985901, of the interest awarded by the judgement of the United States District Court, Eastern District of Missouri, rendered in the above case on July 31, 1958. since the letter of June 23, 1959, from the Assistant Attorney General, which transmitted a certified copy of the said judgment to our Office, stated that no proceedings for review of the judgment would be taken, our settlement disallowed interest on the basis that section 1302 of Public Law 814, 84th Congress, limits payment of interest on judgments of the district courts to such judgments as have become final after review on appeal or petition by the United States. The letter from plaintiff's attorneys states that an appeal was taken by the United States and, hence, interest is payable under section 1302. We have been advised by the Department of Justice that the statement in the letter of June 23 that no proceedings for review of the judgment would be taken was in error and have been furnished a certified copy of the mandate of affirmness in this case handed down by the United States Court of Appeals, 8th Circuit, under date of May 12, 1959. However, for the reasons set out below, we are still of the poinion that no interest is payable in this case.

The preposition that interest may be charged against the United States only if specifically provided by statute or by a valid contract is as well established as to require no discussion. That this prohibition against charging interest is applicable to the courts is equally well established. In the case of United States v. New York Rayon Importing Co., Inc., 329 U. S. 654, the United States Supreme Court stated on page 663:

"***But the immunity of the United States from liability for interest is not to be waived by policy arguments of this nature. Courts lack the power to award interest against the United States on the basis of what they think is or is not sound policy. We reiterate that only express language in a statute or contract coan justify the imposition of such interest.***"

Since the case here involved across from a tort, no contract exists and, hence, it is apparent that interest may be paid on this judgment only if authorized by statute.

Section 1302 of Public Law 814, 84th Congress, approved July 27, 1956, 70 Stat. 694, 31 U.S.C. 724a, provides as follows:

"There are appropriated, out of any money in the Treasury not otherwise appropriated, and out of the postal revenues, respectively, such sums as may on and after July27, 1956, be necessary for the payment, not otherwise provide 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 section 2411(b) of Title 28, 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 section 2516(b) of Title 28 shall be computed from the date of the filing of the transcript thereof in the General Accounting Office."

While the first portion of section 1302 appropriates money for the payment of judgments against the United States "together with such interest and costs as may be specified in such judgments" it is obvious that this provision of itself does not authorize the inclusion of interest in judgments against the United States, but merely renders money available to pay such interest where interest is properly included in a judgment pursuant to a specific statute or contract. Also, it appears from the legislative history of section 1302 that the language with reference to interest specified in the judgment was intended to pertain to interest on the claim itself as distinguished from interest on the judgment. See page 835, Hearings Before the Subcommittee of the Committee on Appropriations, Hourse of Representatives, 84th Congress, 2d Session, on the Supplemental Appropriation Bill, 1957. It is clear from the wording in the judgment itself rather than the claim. Moreover, since 28 U.S.C. 2674 prohibits the charging of interest against the United States in tort claims prior to judgment, the court could not properly have included in the judgment interest on the claim itself.

Thus, the only statutory authority under which interest would be payable on this judgment is section 2411(b) of Title 28, United States Code, which authorizes interest on all final judgments rendered against the United States in actions instituted under section 1346 of Title 28. Since tort actions against the United States are instituted under said section 1346, it follows that interest on the judgment here involved is authorized by section 2411(b). However, the interest authorized to be paid on district court judgments by 28 U.S.C. 2411(b) is limited by the first proviso of section 1302 of the Supplemental Appropriations Act, 1957, quoted above. That proviso in clear and unequivocal language limits such interest to those judgments which become final after review an appeal or petition by the United States, and further limits the period for which such interest may be paid to the period from the date of the filing of the transcript of the judgment in the General Accounting Office to the date of the mandate of affirmance.

In the present case, the judgment was rendered by the District Court on July 31, 1958. However, the first filing thereof in the General Accounting Office was accomplished by the Assistant Attorney General's letter of June 23, 1959, received in the General Accounting Office on June 24, 1959. As stated above, the mandate of affirmance was handed down on the date of May 12, 1959. Since the date of the mandate of affirmance proceded the date of filing of the transcript of the judgment in the General Accounting Office, it is obvious that the payment of any interest on the judgment is prohibited by the limitation contained in the first proviso of section 1302.

Sincerely yours,

JOSEPH CAMPBELL Comptroller General of the United States