B-212134, JUN 29, 1983, OFFICE OF GENERAL COUNSEL

B-212134: Jun 29, 1983

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GENERAL LITIGATION SECTION: THE PURPOSE OF THIS LETTER IS TO CONFIRM RECENT INFORMAL DISCUSSIONS BETWEEN OUR RESPECTIVE STAFFS TO THE EFFECT THAT A MONETARY SETTLEMENT IN THE ABOVE-CAPTIONED LITIGATION MAY BE CERTIFIED FOR PAYMENT FROM THE PERMANENT JUDGMENT APPROPRIATION. THE SETTLEMENT AMOUNT CURRENTLY BEING DISCUSSED IS IN THE RANGE OF $30-40 MILLION. JUDICIAL REDRESS WOULD HAVE BEEN UNAVAILABLE. WE REVIEWED THE LEGISLATIVE HISTORY TO DETERMINE IF THIS PROVISION WAS INTENDED TO ADDRESS THE SOURCE OF FUNDS FOR PAYMENT. THE ORIGINAL HOUSE BILL WOULD HAVE AUTHORIZED THE SECRETARY OF THE INTERIOR TO ESTABLISH REGULATIONS AND PROCEDURES FOR CONSIDERING THE CLAIMS. WAS ULTIMATELY ENACTED. "THE COMMITTEE BELIEVES THAT THE SUBJECT MATTER OF THIS ISSUE IS ONE PECULIARLY WITHIN THE EXPERTISE OF THE JUDICIARY AND THAT ANY AFFIRMATIVE VERDICTS SHOULD STAND AS JUDGMENTS AGAINST THE UNITED STATES S.REP.

B-212134, JUN 29, 1983, OFFICE OF GENERAL COUNSEL

SUBJECT: JOSE HERRERO TORRES V. UNITED STATES, USDC, D. GUAM, CIVIL NO. 81 0112

THE HONORABLE CAROL E. DINKINS ASSISTANT ATTORNEY GENERAL:

ATTENTION: MYLES E. FLINT, ESQ. CHIEF, GENERAL LITIGATION SECTION:

THE PURPOSE OF THIS LETTER IS TO CONFIRM RECENT INFORMAL DISCUSSIONS BETWEEN OUR RESPECTIVE STAFFS TO THE EFFECT THAT A MONETARY SETTLEMENT IN THE ABOVE-CAPTIONED LITIGATION MAY BE CERTIFIED FOR PAYMENT FROM THE PERMANENT JUDGMENT APPROPRIATION, 31 U.S.C. SEC. 1304 (FORMERLY 31 U.S.C. SEC. 724A). THE SETTLEMENT AMOUNT CURRENTLY BEING DISCUSSED IS IN THE RANGE OF $30-40 MILLION.

THE LITIGATION INVOLVES CLAIMS BY GUAMANIANS FOR COMPENSATION FOR LAND ACQUIRED BY THE UNITED STATES DURING AND AFTER WORLD WAR II, ALLEGEDLY FOR LESS THAN FAIR MARKET VALUE. SECTION 204 OF THE OMNIBUS TERRITORIES ACT OF 1977, 48 U.S.C. SEC. 1424C (SUPP. IV 1980), GAVE THE UNITED STATES DISTRICT COURT IN GUAM AUTHORITY AND JURISDICTION TO HEAR THESE CLAIMS, EXCEPT FOR CERTAIN LAND ACQUISITIONS EFFECTED THROUGH JUDICIAL CONDEMNATION PROCEEDINGS. BUT FOR THE 1977 LEGISLATION, JUDICIAL REDRESS WOULD HAVE BEEN UNAVAILABLE.

SECTION 204 INCLUDES A PROVISION, CODIFIED AT 48 U.S.C. SEC. 1424CE), TO THE EFFECT THAT AWARDS MADE UNDER THAT SECTION "SHALL BE JUDGMENTS AGAINST THE UNITED STATES." WE REVIEWED THE LEGISLATIVE HISTORY TO DETERMINE IF THIS PROVISION WAS INTENDED TO ADDRESS THE SOURCE OF FUNDS FOR PAYMENT. THE ORIGINAL HOUSE BILL WOULD HAVE AUTHORIZED THE SECRETARY OF THE INTERIOR TO ESTABLISH REGULATIONS AND PROCEDURES FOR CONSIDERING THE CLAIMS, AND INCLUDED AN AUTHORIZATION OF APPROPRIATIONS. SEE H.R. REP. NO. 95-228 (H.R. 6550), 95TH CONG., 1ST SESS. 5 (1977). THE SENATE REJECTED THAT APPROACH, HOWEVER, AND PASSED A DIFFERENT VERSION WHICH, WITH SOME FURTHER HOUSE AMENDMENTS, WAS ULTIMATELY ENACTED. IN REPORTING OUT THE SENATE VERSION, THE SENATE COMMITTEE ON ENERGY AND (WORDS OMITTED).

"THE COMMITTEE BELIEVES THAT THE SUBJECT MATTER OF THIS ISSUE IS ONE PECULIARLY WITHIN THE EXPERTISE OF THE JUDICIARY AND THAT ANY AFFIRMATIVE VERDICTS SHOULD STAND AS JUDGMENTS AGAINST THE UNITED STATES S.REP. NO. 95-332, 95TH CONG., 1ST SESS. 10 (1977); WITHOUT THE NECESSITY OF ADDITIONAL AUTHORIZATIONS AND THE UNCERTAINTY OF APPROPRIATIONS."

S. REP. NO. 95-332, 95TH CONG., 1ST SESS. 10 (1977); QUOTED WITHOUT DISCUSSION IN FRANQUEZ V. UNITED STATES, 604 F.2D 1239, 1242 (9TH CIR. 1979).

IN OUR VIEW, THIS MAKES IT CLEAR THAT JUDGMENTS UNDER 48 U.S.C. SEC. 1424C ARE TO BE PAID FROM THE PERMANENT JUDGMENT APPROPRIATION. THIS BEING THE CASE, A SETTLEMENT WOULD BE PAYABLE FROM THE SAME SOURCE. 28 U.S.C. SEC. 2414. THE FACT THAT THE LITIGATION INVOLVES COMPENSATION FOR LAND ACQUISITION IS, IN THIS CASE, IRRELEVANT.

ACCORDINGLY, WHEN THE SPECIFIC TERMS HAVE BEEN NEGOTIATED AND THE SETTLEMENT AGREEMENT PROPERLY EXECUTED, IT SHOULD BE SUBMITTED TO OUR CLAIMS GROUP FOLLOWING NORMAL PROCEDURES.

FINALLY, WE AGREE THAT THE SETTLEMENT SHOULD, AS FAR AS POSSIBLE, DISPOSE OF ALL CLAIMS COGNIZABLE UNDER 48 1.S.C. SEC. 1424C. FN1 AS INDICATED IN THE INFORMAL DISCUSSIONS, WE WILL BE HAPPY TO WORK WITH YOUR STAFF IN STRUCTURING THE SETTLEMENT AGREEMENT TO ENSURE THAT THE INTERESTS OF THE GOVERNMENT ARE PROTECTED AND THAT THE FUNDS ARE PROMPTLY DISBURSED TO THE INTENDED BENEFICIARIES. WE WILL ALSO BE CONTACTING YOUR STAFF TO DEVELOP PROCEDURES FOR DETERMINING WHETHER ANY OF THE PLAINTIFFS ARE INDEBTED TO THE UNITED STATES (31 U.S.C. SEC. 3728). SHOULD FURTHER QUESTIONS ARISE, PLEASE CONTACT MR. ROBERT CENTOLA OF THIS OFFICE AT 275-5544.

FN1 WE NOTE THAT ACTIONS NOT COMMENCED BY APRIL 1, 1982, APPEAR TO BE BARRED. PUB. L. NO. 96-205 (MARCH 12, 1980), SEC. 301(B), 94 STAT. 87.