B-29950, DECEMBER 14, 1950, 30 COMP. GEN. 238

B-29950: Dec 14, 1950

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

IS NOT ENTITLED TO ANY ADDITIONAL AMOUNT TO COVER FEES PAID TO THE CLERK OF THE COURT OF CLAIMS OR THE CLERK OF THE SUPREME COURT. 1950: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 6. IT IS STATED IN YOUR LETTER THAT THE SAID JUDGMENT OF JULY 11 WAS PRESENTED TO THE TREASURY ON OCTOBER 24. THE JUDGMENT WAS AFFIRMED DECEMBER 19. - IT IS OUR BELIEF. THAT THE CLAIM HAS NOT YET BEEN FULLY SETTLED AND THAT A SMALL AMOUNT IS STILL DUE AND OWNING FROM THE UNITED STATES COVERING (A) FEES PAID TO THE CLERKS OF THE COURT OF CLAIMS AND OF THE SUPREME COURT AND (B) INTEREST AT FOUR PERCENT PER ANNUM FROM THE DATE OF THE FILING OF THE TRANSCRIPT OF THE JUDGMENT IN THE TREASURY DEPARTMENT TO THE DATE OF THE MANDATE OF AFFIRMANCE.

B-29950, DECEMBER 14, 1950, 30 COMP. GEN. 238

COURT COSTS AND INTEREST - GOVERNMENT LIABILITY GENERALLY IN VIEW OF THE DISCRETIONARY POWER OF A DISTRICT COURT OF THE COURT OF CLAIMS UNDER SECTION 2412 (B) OF TITLE 28 U.S.C. TO ALLOW COSTS TO THE PREVAILING PARTY IF THE UNITED STATES PUTS IN ISSUE PLAINTIFF'S RIGHT TO RECOVER, A PLAINTIFF WHO RECOVERS A SPECIFIC SUM UNDER A COURT OF CLAIMS JUDGMENT, WHICH DOES NOT SPECIFICALLY ALLOW ANY AMOUNT AS COSTS, IS NOT ENTITLED TO ANY ADDITIONAL AMOUNT TO COVER FEES PAID TO THE CLERK OF THE COURT OF CLAIMS OR THE CLERK OF THE SUPREME COURT. THE DENIAL BY THE SUPREME COURT OF AN APPLICATION BY THE UNITED STATES FOR CERTIORARI TO REVIEW A JUDGMENT OF THE COURT OF CLAIMS DOES NOT CONSTITUTE A REVIEW AND AFFIRMANCE OF SUCH JUDGMENT BY THE SUPREME COURT WITHIN THE MEANING OF SECTION 2516 (B) OF TITLE 28 U.S. CODE, SO AS TO ENTITLE PLAINTIFF TO INTEREST ON SAID JUDGMENT FROM THE DATE OF FILING OF THE TRANSCRIPT OF THE JUDGMENT IN THE TREASURY DEPARTMENT TO THE DATE OF DENIAL OF CERTIORARI.

COMPTROLLER GENERAL WARREN TO PETER A. CAMPBELL, DECEMBER 14, 1950:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 6, 1950, REQUESTING IN BEHALF OF WILLIAM WINTERS AND CO., REVIEW OF SETTLEMENT DATED JULY 25, 1950, WHICH ALLOWED THE SUM OF $16,093.34 IN PAYMENT OF A JUDGMENT RENDERED JULY 11, 1949, BY THE COURT OF CLAIMS OF THE UNITED STATES IN FAVOR OF WILLIAM WINTERS AND COMPANY.

IT IS STATED IN YOUR LETTER THAT THE SAID JUDGMENT OF JULY 11 WAS PRESENTED TO THE TREASURY ON OCTOBER 24, 1949, AND, AFTER REVIEW ON PETITION OF THE UNITED STATES TO THE SUPREME COURT, THE JUDGMENT WAS AFFIRMED DECEMBER 19, 1949. ON SUCH STATEMENT OF THE FACTS YOU ASSERT THAT---

IT IS OUR BELIEF, HOWEVER, THAT THE CLAIM HAS NOT YET BEEN FULLY SETTLED AND THAT A SMALL AMOUNT IS STILL DUE AND OWNING FROM THE UNITED STATES COVERING (A) FEES PAID TO THE CLERKS OF THE COURT OF CLAIMS AND OF THE SUPREME COURT AND (B) INTEREST AT FOUR PERCENT PER ANNUM FROM THE DATE OF THE FILING OF THE TRANSCRIPT OF THE JUDGMENT IN THE TREASURY DEPARTMENT TO THE DATE OF THE MANDATE OF AFFIRMANCE. IN THIS CONNECTION, YOUR ATTENTION IS INVITED TO SECTIONS 2412 (B) AND 2516 (B) OF THE UNITED STATES CODE.

THE RECORD DISCLOSES THAT THE COURT OF CLAIMS IN THE INSTANT CASE ORDERED THE ENTRY OF THE FOLLOWING JUDGMENT:

IT IS ADJUDGED AND ORDERED THAT THE PLAINTIFFS RECOVER OF AND FROM THE UNITED STATES THE SUM OF SIXTEEN THOUSAND NINETY-THREE DOLLARS AND THIRTY- FOUR CENTS ($16,093.34). SECTION 2412 (B) OF TITLE 28 U.S.C. PROVIDES THAT---

IN AN ACTION UNDER SUBSECTION (A) OF SECTION 1346 OR SECTION 1491 OF THIS TITLE, IF THE UNITED STATES PUTS IN ISSUE PLAINTIFF'S RIGHT TO RECOVER, THE DISTRICT COURT OR COURT OF CLAIMS MAY ALLOW COSTS TO THE PREVAILING PARTY FROM THE TIME OF JOINING SUCH ISSUE. SUCH COSTS SHALL INCLUDE ONLY THOSE ACTUALLY INCURRED FOR WITNESSES AND FEES PAID TO THE CLERK. (ITALICS SUPPLIED.)

THE FOREGOING PROVISION INCORPORATES AND RESTATES THE PROVISION FORMERLY APPEARING IN SECTION 258. SUCH FORMER PROVISION PROVIDED IN PART THAT---

IF THE GOVERNMENT OF THE UNITED STATES SHALL PUT IN ISSUE THE RIGHT OF THE PLAINTIFF TO RECOVER, THE COURT MAY, IN ITS DISCRETION, ALLOW COSTS TO THE PREVAILING PARTY * * *. (ITALICS SUPPLIED.)

IT IS CLEAR THAT UNDER SUCH FORMER PROVISION THE MATTER OF TAXING COSTS WAS DISCRETIONARY WITH THE COURT, AND IN THOSE CASES IN WHICH COSTS WERE ALLOWED AGAINST THE GOVERNMENT, THE JUDGMENT OF THE COURT SPECIFICALLY PROVIDED THEREFOR. FURTHERMORE, IT HAS BEEN HELD THAT THE COSTS REFERRED TO APPLY ONLY TO THOSE INCURRED IN THE TRIAL COURT. SEE UNITED STATES V. JACOBS, 63 F.2D 326.

THEREFORE, AS THE INSTANT JUDGMENT DOES NOT SPECIFICALLY ALLOW ANY AMOUNT AS COSTS AND SINCE I FIND NOTHING IN SECTION 2412 (B) WHICH REMOVES THE MATTER OF ASSESSING COSTS FROM THE DISCRETION OF THE COURT, IT APPEARS THAT THE PLAINTIFF IS NOT ENTITLED TO ANY ADDITIONAL PAYMENT TO COVER THE FEES PAID TO THE CLERK OF THE COURT OF CLAIMS OR TO THE CLERK OF THE SUPREME COURT.

WITH RESPECT TO YOUR CLAIM FOR INTEREST ON THE SAID JUDGMENT IT IS NOTED THAT PRIOR TO ENACTMENT OF THE REVISED JUDICIAL CODE OF THE UNITED STATES, U.S.C. TITLE 28, BY THE ACT OF JUNE 25, 1948, 62 STAT. 869, INTEREST ON JUDGMENTS OF THE COURT OF CLAIMS WAS ALLOWABLE ONLY AS PROVIDED BY SECTION 1090, REVISED STATUTES, AS AMENDED BY THE ACT OF SEPTEMBER 30, 1890, 26 STAT. 537--- I.E., ,ON JUDGMENTS IN FAVOR OF CLAIMANTS WHICH HAVE BEEN APPEALED BY THE UNITED STATES AND AFFIRMED BY THE SUPREME COURT.' SEE UNITED STATES V. BARBER, 74 F. 483; PACIFIC COAST STEAMSHIP COMPANY V. UNITED STATES, 33 C.1CLS. 36; 5 COMP. GEN. 832.

BY SECTION 3 OF THE ACT OF FEBRUARY 13, 1925, 43 STAT. 939, THE PROCEDURE FOR REVIEW BY THE SUPREME COURT OF JUDGMENTS OF THE COURT OF CLAIMS WAS CHANGED FROM APPEAL TO CERTIORARI. IN THE CODIFICATION OF THE LAWS OF THE UNITED STATES INTO THE U.S.C. THE ABOVE PROVISIONS WERE EMBODIED IN SECTION 226 OF TITLE 31, AND TO GIVE EFFECT TO THE CITED ACT OF FEBRUARY 13, 1925, THE LANGUAGE WAS MODIFIED TO READ "ON JUDGMENTS IN FAVOR OF CLAIMANTS WHICH HAVE BEEN REVIEWED UPON PETITION OF THE UNITED STATES AND AFFIRMED BY THE SUPREME COURT," AND IN THIS FORM WAS ENACTED AS SECTION 2516 (B), TITLE 28 U.S. CODE, BY THE ABOVE MENTIONED ACT OF JUNE 25, 1948, WHICH EXPRESSLY REPEALED THE PRIOR LAWS REFERRED TO.

WHILE IT IS STATED IN YOUR LETTER THAT AFTER REVIEW ON PETITION OF THE UNITED STATES TO THE SUPREME COURT, THE JUDGMENT WAS AFFIRMED DECEMBER 19, 1949, AN EXAMINATION OF THE RECORD DISCLOSES THAT A PETITION FOR A WRIT OF CERTIORARI WAS FILED WITH THE SUPREME COURT ON OCTOBER 7, 1949, AND THAT THE SUPREME COURT DID NOT ON DECEMBER 19, 1949, AFFIRM THE JUDGMENT OF THE COURT OF CLAIMS BUT, RATHER, MERELY DENIED CERTIORARI. SEE 338 U.S. 903. ( UNITED STATES V. WINTERS, ET AL.) UNDER THE APPLICABLE LAW AS ABOVE STATED, YOUR CLAIM FOR INTEREST WOULD BE ALLOWABLE ONLY ON THE BASIS THAT THAT ACTION CONSTITUTED A "REVIEW" AND "AFFIRMANCE" OF THE JUDGMENT OF THE COURT OF CLAIMS.

IN HAMILTON SHOE COMPANY V. WOLF BROTHERS, 240 U.S. 251, AT PAGE 258, IT WAS STATED THAT REFUSAL BY THE SUPREME COURT OF A WRIT OF CERTIORARI "IS IN NO CASE EQUIVALENT TO AN AFFIRMANCE OF THE DECREE THAT IS SOUGHT TO BE REVIEWED," AND IT WAS ACCORDINGLY HELD IN A DECISION OF THIS OFFICE, 7 COMP. GEN. 128, THAN AN APPLICATION BY THE UNITED STATES FOR CERTIORARI TO REVIEW A JUDGMENT OF THE COURT OF CLAIMS, AND DENIAL THEREOF, DID NOT ENTITLE THE PLAINTIFF TO INTEREST, EITHER UNDER THE ACT OF SEPTEMBER 30, 1890, SUPRA, OR UNDER SECTION 1117 OF THE ACT OF FEBRUARY 26, 1926, 44 STAT. 120, RELATING TO JUDGMENTS FOR REFUND OF TAXES ERRONEOUSLY COLLECTED AND PROVIDING FOR INTEREST THEREON "IF SUCH JUDGMENT IS REVIEWED BY AN APPELLATE COURT, TO THE DATE OF ENTRY OF FINAL GMENT.'

IN VIEW OF THE FOREGOING, IT APPEARS THAT THE SETTLEMENT OF JULY 25, 1950, WAS STATED IN ACCORDANCE WITH THE APPLICABLE PROVISION OF LAW AND THEREFORE MUST BE SUSTAINED.