B-155243, NOV. 16, 1964

B-155243, NOV. 16, 1964

TO MR. PARKER MAY:

THIS IS IN RESPONSE TO YOUR LETTER OF SEPTEMBER 22, 1964, TO THE CLAIMS DIVISION OF THIS OFFICE REQUESTING THAT WE REQUIRE THE DEPARTMENT OF THE TREASURY, BUREAU OF THE MINT, TO DELIVER TO YOU 100 SETS OF 1964 PROOF COINS. THE FACTS IN THE MATTER AS SHOWN BY THE RECORD AND SET FORTH IN YOUR LETTER MAY BE SUMMARIZED AS FOLLOWS:

THE BUREAU OF THE MINT ISSUED THE FOLLOWING CIRCULAR SETTING FORTH THE BASIS UPON WHICH PROOF COINS WOULD BE OFFERED TO THE PUBLIC:

"PROOF COIN SETS CONTAIN PIECES MADE FROM CAREFULLY SELECTED COIN BLANKS THAT HAVE BEEN HIGHLY POLISHED BEFORE BEING FED TO THE PRESSES. THE DIES MADE SOLELY FOR THIS PURPOSE ARE ALSO HIGHLY POLISHED, AND ARE BUFFED DURING USE. IN ORDER TO MINIMIZE SCRATCHES AND ABRASIONS, THE COINS ARE HAND-FED TO A SLOW-MOVING PRESS. THE SLOWER ACTION ASSURES SHARPER, MORE EVEN IMPRESSIONS AND MAKES THE DESIGN MUCH MORE DISTINCT. EACH COIN IS STRUCK TWICE. THE FINISHED COINS HAVE AN ALMOST MIRROR SURFACE.

"PROOF COINS ARE STRUCK ONLY AT THE PHILADELPHIA MINT, AND DURING THE CALENDAR YEAR INDICATED BY THE DATE ON THE COINS. THEY ARE SOLD ONLY IN SETS. A SET CONTAINS ONE EACH--- 50 CENTS, 25 CENTS, 10 CENTS, 5 CENTS AND 1 CENT (FIVE COINS). THE PRICE, $2.10 PER SET, INCLUDES POSTAGE AND INSURANCE.

"THE COINS ARE PACKAGES AS FOLLOWS: 1 SET ($2.10); 2 SETS ($4.20); 5 SETS ($10.50); 10 SETS ($21.00); 50 SETS ($105.00); AND 100 SETS ($210.00). THE MAXIMUM PER SINGLE ORDER IS 100 SETS. AN ADDITIONAL SERVICE CHARGE FOR MAILING ABROAD TO COVER SPECIAL HANDLING AND FEES SHOULD BE ADDED TO THE COSTS ABOVE, AS FOLLOWS:

TABLE

"NUMBER OF SETS SERVICE CHARGE

1 THROUGH 4 $1.50

5 THROUGH 100 $2.50

REQUESTS FOR PROOF COINS SHOULD BE DIRECTED TO THE SUPERINTENDENT, UNITED STATES MINT, PHILADELPHIA 30, PENNSYLVANIA, AND SHOULD BE ACCOMPANIED BY REMITTANCE IN FULL IN THE FORM OF A U.S. POSTAL MONEY ORDER, OR CHECK MADE PAYABLE TO THE SUPERINTENDENT, UNITED STATES MINT, PHILADELPHIA. PLEASE DO NOT SEND CASH.

"ACCEPTANCE OF ALL ORDERS IS CONTINGENT UPON THE MINT'S ABILITY TO MEET THE UNPREDICTABLE DEMAND. IF THE DEMAND EXCEEDS THE SUPPLY, A CUT-OFF DATE WILL BE ESTABLISHED, BEYOND WHICH ALL ORDERS WILL BE RETURNED. ORDERS ARE ACCEPTED IN ADVANCE, COMMENCING NOVEMBER 1ST OF EACH YEAR; THEY ARE PROCESSED IN SEQUENCE ACCORDING TO DATE OF RECEIPT, AND FILLED AS SOON AS POSSIBLE AFTER JANUARY 1ST OF THE FOLLOWING YEAR.

"NO SPECIAL APPLICATION IS NEEDED FOR THE PURCHASE OF PROOF COINS. HOWEVER, ANYONE PURCHASING PROOF COINS THIS YEAR WILL RECEIVE FROM THE MINT AN APPLICATION FOR NEXT YEAR'S COINS.

"ONLY THOSE COINS CURRENTLY BEING MANUFACTURED FOR CIRCULATION ARE INCLUDED IN THE PROOF SETS. SILVER DOLLARS HAVE NOT BEEN COINED SINCE 1935.

"THE MINT HAS NO STOCK OF COINS OF PRIOR YEARS. BACK ISSUES ARE USUALLY OBTAINED FROM DEALERS OR COLLECTORS AT PRICES DETERMINED BY THEM. THE MINT DOES NOT RECOMMEND DEALERS OR COLLECTORS TO WHOM INQUIRY COULD BE MADE FOR THIS INFORMATION.

"PROOF COIN ORDERS ARE NOT SUBJECT TO CANCELLATION BY THE PURCHASER.'

IN NOVEMBER OF 1963, YOU ORDERED ONE HUNDRED SETS OF 1964 PROOF COINS IN COMPLIANCE WITH THE REQUIREMENTS SET OUT IN THE BUREAU'S CIRCULAR. YOUR CHECK IN FULL PAYMENT OF YOUR ORDER WAS NEGOTIATED AND THE PROCEEDS THEREOF WERE DEPOSITED ON DECEMBER 26, 1963, TO THE CREDIT OF THE UNITED STATES TREASURY. IN DECEMBER OF 1963, YOU RECEIVED A CARD FROM THE UNITED STATES MINT AT PHILADELPHIA WHICH READ AS FOLLOWS:

"PROOF COIN

ORDER ACKNOWLEDGEMENT

"YOUR PROOF COIN ORDER HAS BEEN PROCESSED

AND THE ESTIMATED SHIPPING DATE IS SHOWN

ON THE FACE OF THIS CARD.

SUPERINTENDENT, U.S. MINT

PHILADELPHIA 30, PA.'

THE FACE OF THE CARD SHOWS AN ASSIGNED ORDER NUMBER, 3254094, WITH AN APPROXIMATE SHIPPING DATE OF DECEMBER 1964.

SUBSEQUENT TO COMPLETION OF THE ABOVE TRANSACTIONS, THE MINT ON JANUARY 10, 1964, ANNOUNCED THAT NO MORE ORDERS FOR 1964 PROOF SETS COULD BE ACCEPTED AS ORDERS ALREADY RECEIVED FAR EXCEEDED PRODUCTION CAPACITY. AND IN MARCH 1964 YOU RECEIVED A TREASURY CHECK FOR $52.50 WITH THE FOLLOWING EXPLANATION:

"IN ORDER TO ACHIEVE A MORE EQUITABLE DISTRIBUTION OF THE SETS AVAILABLE, ACTION HAS BEEN TAKEN TO LIMIT ALL LARGE ORDERS RECEIVED THROUGH JANUARY 3, 1964, TO A MAXIMUM OF SEVENTY-FIVE (75) SETS PER ORDER. THIS ACTION MAKES A SUBSTANTIAL NUMBER OF SETS AVAILABLE FOR SALE TO INDIVIDUAL COLLECTORS, AND ORDERS FOR ONE OR TWO SETS ARE BEING ACCEPTED UNTIL FURTHER NOTICE. ALL ORDERS FOR MORE THAN TWO SETS RECEIVED AFTER JANUARY 3, 1964, ARE BEING RETURNED.

"ACCORDINGLY, THE ENCLOSED REFUND CHECK REPRESENTS THE AMOUNT DUE YOU ON THE UNFILLED PORTION OF YOUR 1964 PROOF COIN ORDER.'

IT APPEARS THAT AFTER THE ANNOUNCED JANUARY 10 CUT-OFF MANY SMALL COLLECTORS PETITIONED THE MINT URGING THAT ACTION BE TAKEN TO REDUCE THE 100 LOT ORDERS SO THAT THEY COULD OBTAIN THE CUSTOMARY ONE OR TWO SETS WHICH THEY PURCHASED EACH YEAR. THE MINT DEEMED IT TO BE IN THE PUBLIC INTEREST THAT THIS BE DONE. YOU CONTEND, HOWEVER, THAT THE TRANSACTIONS BETWEEN YOU AND THE MINT CULMINATED IN A CONTRACT PRIOR TO THE REDUCTION OF YOUR ORDER FROM 100 TO 75 SETS. AND THAT REGARDLESS OF THE PUBLIC INTEREST, IT IS IMPROPER TO SUBSERVE WHATEVER PUBLIC INTEREST MAY BE INVOLVED AT THE EXPENSE OF YOUR LEGAL RIGHTS WHICH BECAME VESTED AS THE RESULT OF PRIOR ACTIONS ON YOUR PART AND ON THE PART OF THE MINT. IT IS PURSUANT TO THESE OBLIGATIONS WHICH YOU VIEW AS CONTRACTUAL THAT YOU ARE CLAIMING THE RIGHT TO HAVE THE BUREAU OF THE MINT DELIVER 100 RATHER THAN 75 PROOF SETS.

YOUR COMPLAINT MUST BE CONSTRUED AS IN THE NATURE OF A SUIT FOR AN INJUNCTION REQUIRING THE UNITED STATES GOVERNMENT TO FURNISH YOU 100 PROOF SETS UNDER A CONTRACTUAL OBLIGATION. IT IS WELL ESTABLISHED AND A FUNDAMENTAL PRINCIPLE OF LAW THAT NO SUIT CAN BE MAINTAINED AGAINST THE UNITED STATES OR ITS PROPERTY WITHOUT EXPRESS AUTHORITY OF CONGRESS. STANLEY V. SCHWALBY, 162 U.S. 155, 269 (1896); LARSON V. DOMESTIC AND FOREIGN COMMERCE CORP., 337 U.S. 682, 688 (1949). WHILE THE UNITED STATES BY VARIOUS ACTS OF CONGRESS HAS CONSENTED TO BE SUED IN ITS OWN COURTS IN CERTAIN CLASSES OF CASES, WE KNOW OF NO STATUTE WHICH COULD BE CONSTRUED AS CONSENT TO A SUIT FOR THE KIND OF RELIEF YOU ARE SEEKING. SEE UNITED STATES V. JONES, 131 U.S. 1 (1888), AND GEORGE W. HELME CO. V. THE UNITED STATES, 23 F.SUPP. 787 (1938), HOLDING THAT THE JURISDICTION OF THE COURT OF CLAIMS, 28 U.S.C. 1491, OVER CLAIMS AGAINST THE UNITED STATES FOUNDED UPON CONTRACT AND OTHER CAUSES IS LIMITED TO DEMANDS FOR MONEY.

ACCORDINGLY, THE RELIEF REQUESTED MUST BE AND IS DENIED.

ALTHOUGH THE CONTRACTUAL QUESTION IS NOT NECESSARY TO OUR DISPOSITION OF YOUR CLAIM, WE FEEL IT APPROPRIATE TO DEAL WITH YOUR CLAIM AS A WHOLE RATHER THAN TO RESTRICT OUR CONSIDERATION OF IT ON THE NARROW GROUND OF THE SPECIFIC RELIEF REQUESTED AND TO ADVISE YOU OF OUR VIEWS REGARDING YOUR CONTENTIONS. WE AGREE THAT COMPLIANCE WITH THE TERMS OF SALE ESTABLISHED BY THE BUREAU OF THE MINT AND THE ACKNOWLEDGMENT OF YOUR ORDER CARRY WITH THEM THE APPARENT INDICIA OF A CONTRACT BINDING UPON BOTH YOU AND THE MINT. HOWEVER, IN VIEW OF THE UNIQUE CHARACTER OF THE SUBJECT MATTER INVOLVED AND OF THE PUBLIC SERVICE ASPECTS RELATED THERETO, THERE IS CONSIDERABLE DOUBT AS TO WHETHER THE ARRANGEMENTS UNDER WHICH PROOF SETS ARE MADE AVAILABLE MAY BE SAID TO GIVE RISE TO A CONTRACTUAL RELATIONSHIP BETWEEN THE FEDERAL GOVERNMENT AS SELLER AND MEMBERS OF THE PUBLIC AS BUYERS. THE MANUFACTURE OF PROOF COINS DATES BACK TO 1860. THEY ARE FURNISHED BY THE BUREAU OF THE MINT SOLELY TO ACCOMMODATE THE PUBLIC DESIRE FOR THEM AND ARE AVAILABLE AT ONE PRICE TO ANY AND ALL PERSONS. BECAUSE PRODUCTION CAPACITY FOR THESE COINS IS LIMITED IN RELATION TO THE USUAL DEMAND FOR THEM, THE BUREAU OF THE MINT HAS FOUND IT NECESSARY, IN THE INTEREST OF MAKING AN EQUITABLE DISTRIBUTION OF THE SETS MANUFACTURED, TO LIMIT THE NUMBER OF SETS WHICH MIGHT BE ORDERED BY ANY SMUDGING ON WALLS AND PIPES IN THE INTERIOR AREAS AFTER THE BUREAU ANNOUNCED THE PROCEDURES IT WOULD FOLLOW IN FILLING ORDERS RECEIVED. THESE PROCEDURES AND THEIR DISTRIBUTION WERE OBVIOUSLY DESIGNED TO GIVE EVERY PERSON AS EQUAL AN OPPORTUNITY AS POSSIBLE FOR OBTAINING PROOF SETS WITHIN THE ALLOWED MAXIMUM. THE BUREAU'S ANNOUNCEMENT AND THE REGULATION UNDER WHICH IT WAS ISSUED, 31 C.F.R. 92.20, POINT OUT THAT THE MANUFACTURE AND ISSUANCE OF PROOF SETS ARE CONTINGENT UPON THE MINT'S ABILITY TO MEET THE UNPREDICTABLE DEMAND. PROOF SETS ARE NOT ISSUED PURSUANT TO ANY STATUTORY DIRECTIVE AND THERE IS, IN FACT, NO REQUIREMENT THAT THEY BE ISSUED AT ALL. CLEARLY THE GOVERNMENT IS NOT IN THE BUSINESS OF "SELLING" COINS NOR DOES THE DISTRIBUTION OF PROOF COIN SETS IN A CONTRACTUAL SENSE INURE TO THE GOVERNMENT'S BENEFIT EXCEPT AS TO THE RECOVERY OF THE COSTS INVOLVED IN MANUFACTURING AND DISTRIBUTING THEM. INHERENT IN THE SCHEME OF PROVIDING THIS SERVICE IS THE DESIRABILITY OF MAXIMUM EQUITY WITH RESPECT TO THOSE WHO DESIRE TO TAKE ADVANTAGE OF THE GOVERNMENT'S OFFER TO MAKE PROOF SETS AVAILABLE.

THE ANNOUNCED PROCEDURES FOR THE DISTRIBUTION OF PROOF SETS HAD BEEN FOUND OVER A COURSE OF YEARS TO BE SATISFACTORY IN MEETING AN UNPREDICTABLE DEMAND FAIRLY. HOWEVER, THE DEMAND FOR 1964 PROOF SETS WAS OVERWHELMING, AND IT WAS FELT THAT TO FOLLOW THE USUAL PRACTICE WOULD NOT RESULT IN A FAIR DISTRIBUTION IN LIGHT OF THIS UNPRECEDENTED DEMAND. WITHOUT CONSIDERING THE MERIT OF THE BUREAU'S ACTION IN UNILATERALLY CUTTING BACK RECEIVED ORDERS, WE ARE OF THE VIEW THAT INDIVIDUALS WHOSE ORDERS HAVE BEEN ACKNOWLEDGED ARE NOT POSSESSED OF ANY RIGHTS OTHER THAN TO BE TREATED EQUALLY WITH OTHERS SIMILARLY SITUATED AND TO HAVE REFUNDED ANY MONEYS FOR WHICH SETS ARE NOT FURNISHED. WE THINK IT IMPLICIT IN THE REGULATION AND PROCEDURES UNDER WHICH PROOF SETS ARE ISSUED, PARTICULARLY IN THE ABSENCE OF ANY GOVERNING STATUTE, THAT THERE IS NOT PRESENT A SITUATION WHICH SHOULD BE CONSIDERED AS BEING THE SUBJECT MATTER OF A CONTRACTUAL RELATIONSHIP. IN ANY EVENT, WE BELIEVE THE QUESTION IS SUFFICIENTLY DOUBTFUL TO PRECLUDE THIS OFFICE FROM REACHING A CONTRARY CONCLUSION. SEE CHARLES V. UNITED STATES, 19 CT.CL. 316, AND LONGWILL V. UNITED STATES, 17 CT.CL. 288, CONCERNING THE PRINCIPLE THAT IN DOUBTFUL CASES, THE ACCOUNTING OFFICERS OF THE GOVERNMENT SHOULD LEAVE CLAIMANTS TO THEIR REMEDIES IN THE COURTS.

FOR THE REASONS SET FORTH ABOVE, THERE IS NO BASIS UPON WHICH WE MIGHT PROPERLY GRANT ANY RELIEF WITH RESPECT TO YOUR CLAIM. THE TREASURY CHECK IN THE AMOUNT OF $52.50 WHICH YOU SUBMITTED WITH YOUR CLAIM IS ENCLOSED.