B-155898, JAN. 22, 1965, 44 COMP. GEN. 421

B-155898, JAN. 22, 1965, 44 COMP. GEN. 421

COURTS - JUDGMENTS, DECREES, ETC. - INTEREST - PAYABLE FROM PERMANENT APPROPRIATION - TRANSCRIPT OF JUDGMENT FILING REQUIREMENT INTEREST PAYABLE ON A JOINT JUDGMENT ENTERED BY THE UNITED STATES DISTRICT COURT UNDER THE FEDERAL TORT CLAIMS ACT IN AN AMOUNT OVER $100,000, WHEN REDUCED BY THE AMOUNT PAID BY THE CO-DEFENDANT, PURSUANT TO COURT ORDER, TO LESS THAN $100,000 IS SUBJECT TO THE RESTRICTIONS OF THE PERMANENT APPROPRIATION ESTABLISHED BY SECTION 1302 OF THE SUPPLEMENTAL APPROPRIATION ACT OF 1957, AS AMENDED (31 U.S.C. 724A), FOR THE PAYMENT OF JUDGMENTS AND INTEREST FROM THE DATE THE TRANSCRIPT OF THE ORIGINAL JUDGMENT IS FILED WITH THE GENERAL ACCOUNTING OFFICE TO THE DATE OF THE MANDATE OF AFFIRMANCE AND 28 U.S.C. 2411 (B), PRESCRIBING INTEREST FROM DATE OF JUDGMENT TO DATE OF APPROPRIATION APPROVAL, IS NOT FOR APPLICATION, AND THERE BEING NO REQUIREMENT TO FILE A TRANSCRIPT UNTIL DECEMBER 14, 1964, THE DATE THE JUDGMENT ENTERED NOVEMBER 16, 1962 AND AFFIRMED JUNE 24, 1964 WAS REDUCED, THE STANDARDS ESTABLISHED BY SECTION 1302, OTHERWISE HAVING BEEN SATISFIED, INTEREST IS ALLOWABLE FROM THE DATE OF THE ORIGINAL JUDGMENT TO THE DATE OF THE MANDATE OF AFFIRMANCE.

TO THE ACTING ATTORNEY GENERAL, JANUARY 22, 1965:

BY LETTER DATED JANUARY 6, 1965, THE ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, REQUESTED A DECISION AS TO THE INTEREST, IF ANY, WHICH IS LAWFULLY PAYABLE ON A JUDGMENT IN THE CIRCUMSTANCES SET FORTH BELOW.

ON NOVEMBER 16, 1962, THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA ENTERED A JOINT JUDGMENT AGAINST THE UNITED AIRLINES AND THE UNITED STATES AND IN FAVOR OF JANICE WIENER, AS EXECUTRIX OF THE ESTATE OF MORTON WIENER, DECEASED. AS AGAINST UNITED AIRLINES, THE JUDGMENT AWARDS MRS. WIENER, $45,999.19; AS AGAINST THE UNITED STATES, THE JUDGMENT, ENTERED UNDER THE FEDERAL TORT CLAIMS ACT, AWARDS $128,429.75, WITH THE PROVISO THAT, EXCEPT AS TO COSTS AND INTEREST,"NO MORE SHALL BE COLLECTED BY PLAINTIFF FROM SAID DEFENDANTS THAN THE TOTAL AMOUNT OF $128,429.75.' SIMILAR JUDGMENTS IN VARYING AMOUNTS WERE ENTERED ON NOVEMBER 16,1962, IN 21 ADDITIONAL CASES. APPEALS BY BOTH UNITED AIRLINES AND THE UNITED STATES IN THESE 22 CASES RESULTED IN AN AFFIRMANCE OF THE PLAINTIFF'S JUDGMENTS BY THE COURT OF APPEALS FOR THE NINTH CIRCUIT. THE OPINION OF THE COURT OF APPEALS, DATED JUNE 24, 1964, IS REPORTED AT 335 F.2D 379.

SUPREME COURT REVIEW OF THE APPELLATE DECISION WILL NOT BE SOUGHT BY EITHER UNITED AIRLINES OR THE UNITED STATES. AS MATTERS PRESENTLY STAND, UNITED AIRLINES HAS SATISFIED THE JUDGMENT AGAINST IT IN THE WIENER CASE AND ON DECEMBER 14, 1964, THE DISTRICT COURT ENTERED AN ORDER REDUCING THE NOVEMBER 16, 1962 JUDGMENT AGAINST THE UNITED STATES TO $82,430.56 ($128,429.75 MINUS $45,999.19) "PLUS INTEREST, IF ANY, AT THE LAWFUL RATE.' PLAINTIFFS' COUNSEL HAVE NOW TAKEN THE POSITION THAT THEY ARE LAWFULLY ENTITLED TO INTEREST UNDER THE TERMS OF 28 U.S.C. 2411 (B).

SECTION 2411 (B), TITLE 28, U.S.C. PROVIDES THAT:

EXCEPT AS OTHERWISE PROVIDED IN SUBSECTION (A) OF THIS SECTION, ON ALL FINAL JUDGMENTS RENDERED AGAINST THE UNITED STATES IN ACTIONS INSTITUTED UNDER SECTION 1346 OF THIS TITLE, INTEREST SHALL BE COMPUTED AT THE RATE OF 4 PERCENTUM PER ANNUM FROM THE DATE OF THE JUDGMENT UP TO, BUT NOT EXCEEDING, THIRTY DAYS AFTER THE DATE OF APPROVAL OF ANY APPROPRIATION ACT PROVIDING FOR PAYMENT OF THE JUDGMENT.

SUBSEQUENTLY THERE WAS ENACTED INTO LAW SECTION 1302 OF THE SUPPLEMENTAL APPROPRIATION ACT OF 1957, PUBLIC LAW 814, APPROVED JULY 27, 1956, 70 STAT. 694. AS AMENDED BY THE ACT OF AUGUST 30, 1961, 75 STAT. 415, 31 U.S.C. 724A (1958 ED., SUPP. V), THIS SECTION READS AS FOLLOWS--- QUOTING FROM THE CODE:

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 JULY 27, 1956 BE NECESSARY FOR THE PAYMENT, NOT OTHERWISE PROVIDED FOR, AS CERTIFIED BY THE COMPTROLLER GENERAL, OF FINAL JUDGMENTS AND COMPROMISE SETTLEMENTS (NOT IN EXCESS OF $100,000, OR ITS EQUIVALENT IN FOREIGN CURRENCIES AT THE TIME OF PAYMENT, IN ANY ONE CASE) WHICH ARE PAYABLE IN ACCORDANCE WITH THE TERMS OF SECTIONS 2414 OR 2517 OF TITLE 28, 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): * * *.

GENERALLY SPEAKING, PRIOR TO THE ENACTMENT OF SECTION 1302 OF PUBLIC LAW 814 (31 U.S.C. 724A) INTO LAW 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 SPECIFIED APPROPRIATION FOR PAYMENT. SECTION 1302 ESTABLISHED A PERMANENT APPROPRIATION FOR THE PAYMENT OF JUDGMENTS NOT IN EXCESS OF $100,000 AND INTEREST THEREON AS OTHERWISE AUTHORIZED BY LAW, SUBJECT TO THE LIMITATIONS SET FORTH THEREIN. THUS, AS TO JUDGMENTS PROPERLY PAYABLE UNDER SECTION 1302, INTEREST FORMERLY AUTHORIZED UNDER 28, U.S.C. 2411 (B) IS LIMITED AND RESTRICTED BY THE LANGUAGE OF SECTION 1302.

THE JUDGMENT OF THE DISTRICT COURT AGAINST THE UNITED STATES IN THE AMOUNT OF $128,429.75 WAS ENTERED ON NOVEMBER 16, 1962, AND AFFIRMED BY THE COURT OF APPEALS FOR THE NINTH CIRCUIT ON JUNE 24, 1964. IT WAS NOT UNTIL DECEMBER 14, 1964, THAT THE DISTRICT COURT ENTERED AN ORDER REDUCING THE NOVEMBER 16, 1962 JUDGMENT AGAINST THE UNITED STATES TO $82,430.56,"PLUS INTEREST, IF ANY, AT THE LAWFUL RATE.' THUS, IN VIEW OF THE REDUCTION OF THE JUDGMENT AGAINST THE UNITED STATES TO LESS THAN $100,000 THERE APPEARS TO BE NO ROOM FOR DOUBT THAT THE JUDGMENT IS PROPERLY PAYABLE FROM THE APPROPRIATION MADE BY SECTION 1302.

THE INTENT AND EFFECT OF THE PERTINENT LANGUAGE OF SECTION 1302 WAS TO CHANGE THE PROCEDURE WITH RESPECT TO DISTRICT COURT JUDGMENTS, PAYABLE FROM THE APPROPRIATION, SO AS TO PERMIT THE PAYMENT OF INTEREST ON JUDGMENTS, TO WHICH THE PROVISIONS OF 28 U.S.C. 2411 (B) APPLY, ONLY IN CASES APPEALED BY THE UNITED STATES AND AFFIRMED ON APPEAL. ALSO, THE PROVISO GENERALLY PERMITS PAYMENTS IN SUCH CASES ONLY FROM THE DATE OF FILING OF THE TRANSCRIPT OF JUDGMENT WITH THE GENERAL ACCOUNTING OFFICE TO THE DATE OF MANDATE OF AFFIRMANCE BY THE APPELLATE COURT. HOWEVER, WE RECOGNIZE THAT IN THE WIENER CASE THE PROVISIONS OF SECTION 1302 WERE NOT FOR APPLICATION UNTIL EITHER DECEMBER 14, 1964, THE DATE THE JUDGMENT AGAINST THE UNITED STATES WAS REDUCED FROM $128,429.75 TO $82,430.56, OR UNTIL THE DATE THE JUDGMENT AGAINST UNITED AIRLINES WAS PAID. BOTH OF THESE ACTIONS APPARENTLY TOOK PLACE APPROXIMATELY 6 MONTHS AFTER THE DATE (JUNE 24, 1964) THE COURT OF APPEALS AFFIRMED THE DISTRICT COURT JUDGMENT AS TO THE PLAINTIFF WIENER AND, WE ASSUME, SUBSEQUENT TO THE DATE OF THE MANDATE OF AFFIRMANCE BY THE APPELLATE COURT. THUS, IN CONNECTION WITH THE PAYMENT OF INTEREST IN THE WIENER CASE, THERE WAS NO REQUIREMENT OR REASON FOR FILING A TRANSCRIPT OF THE ORIGINAL DISTRICT COURT JUDGMENT WITH THIS OFFICE AT THE TIME IT WAS RENDERED BY THE DISTRICT COURT AND THERE WAS NO ACTION WE PROPERLY COULD HAVE TAKEN DURING THE PENDENCY OF THE APPEAL. ACCORDINGLY, AND ASSUMING THAT EXCEPT FOR SUCH NONFILING, THE STANDARDS ESTABLISHED BY SECTION 1302 (31 U.S.C. 724A) FOR PAYMENT OF INTEREST DURING THE PENDENCY OF THE APPEAL HAVE BEEN SATISFIED, WE WILL ALLOW INTEREST ON THE JUDGMENT IN THE WIENER CASE (AND THE OTHER SIMILAR JUDGMENT/--- IF PRESENTED HERE--- FROM THE DATE OF THE ORIGINAL DISTRICT COURT JUDGMENT--- WHICH ASSUMES THE FILING IN THIS OFFICE, ON THE DATE OF ENTRY, OF THE ORIGINAL JUDGMENT--- TO THE DATE OF THE MANDATE OF AFFIRMANCE. CF. B-129946, FEBRUARY 4, 1957, AND B-133851, OCTOBER 4, 1957.

WE BELIEVE THAT YOU WILL UNDERSTAND, FROM WHAT IS SET OUT ABOVE, THAT NO INTEREST PROPERLY CAN BE ALLOWED FOR ANY PERIOD AFTER THE DATE OF THE MANDATE OF AFFIRMANCE.