B-145271, MAR. 26, 1962

B-145271, MAR. 26, 1962

TO FIRST LIEUTENANT J. P. FITZGERALD, AUS, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 2, 1962, IN WHICH YOU RESUBMIT YOUR CLAIM FOR INTEREST AND TAKE EXCEPTION TO THAT PART OF OUR DECISION OF JUNE 14, 1961, B-14527L, ADVISING YOU THERE IS NO BASIS FOR THE PAYMENT OF INTEREST ON THE AMOUNT ALLOWED YOU BY SETTLEMENT DATED OCTOBER 2, 1958, AS ADJUSTMENT OF RETIRED PAY DURING THE PERIOD JULY 6, 1944, TO OCTOBER 31, 1950, AS FIRST LIEUTENANT, ARMY OF THE UNITED STATES.

YOU HAVE CITED COURT DECISIONS HOLDING THAT THE UNITED STATES CAN RECOVER INTEREST ON AMOUNTS DUE THE GOVERNMENT, WHICH DECISIONS YOU APPARENTLY BELIEVE CAN BE APPLIED CONVERSELY TO SUPPORT YOUR CONTENTION THAT YOU ARE LEGALLY ENTITLED TO RECEIVE INTEREST ON THE AMOUNT WHICH WAS DUE YOU BY THE UNITED STATES.

INTEREST, WHICH WOULD HAVE BEEN RECOVERABLE AS AGAINST AN INDIVIDUAL IF PAYMENT WAS UNREASONABLY DELAYED, IS SUBJECT TO A DIFFERENT RULE WHERE THE GOVERNMENT IS INVOLVED. IT IS A WELL ESTABLISHED PRINCIPLE OF COMMON LAW THAT DELAY OR DEFAULT IN PAYMENT (UPON WHICH, IN THE ABSENCE OF EXPRESS AGREEMENT, THE RIGHT TO RECOVER INTEREST FROM AN INDIVIDUAL RESTS) CANNOT BE ATTRIBUTED TO THE SOVEREIGN, IN THIS CASE THE UNITED STATES. SECTION 2516 OF TITLE 28, UNITED STATES CODE, CITED IN OUR LETTER OF JUNE 14, 1961, CONSISTENT WITH THAT PRINCIPLE, PROVIDES THAT ,INTEREST ON A CLAIM AGAINST THE UNITED STATES SHALL BE ALLOWED IN A JUDGMENT OF THE COURT OF CLAIMS ONLY UNDER A CONTRACT OR ACT OF CONGRESS EXPRESSLY PROVIDING FOR PAYMENT THEREOF.' SEE UNITED STATES V. THAYER-WEST POINT HOTEL CO., 329 U.S. 585, 588; UNITED STATES V. GOLTRA, 312 U.S. 203, 207; UNITED STATES V. NORTH AMERICAN TRANSPORTATION AND TRADING COMPANY, 253 U.S. 330, 336; TILLSON V. UNITED STATES, 100 U.S. 43, 47. ALSO, SEE UNITED STATES V. NORTH CAROLINA, 136 U.S. 211, 216, WHEREIN THE SUPREME COURT OF THE UNITED STATES STATED:

"INTEREST, WHEN NOT STIPULATED FOR BY CONTRACT, OR AUTHORIZED BY STATUTE, IS ALLOWED BY THE COURTS AS DAMAGES FOR THE DETENTION OF MONEY OR OF PROPERTY, OR OF COMPENSATION, TO WHICH THE PLAINTIFF IS ENTITLED; AND, AS HAS BEEN SETTLED ON GROUNDS OF PUBLIC CONVENIENCE, IS NOT TO BE AWARDED AGAINST A SOVEREIGN GOVERNMENT, UNLESS ITS CONSENT TO PAY INTEREST HAS BEEN MANIFESTED BY AN ACT OF ITS LEGISLATURE, OR BY A LAWFUL CONTRACT OF ITS EXECUTIVE OFFICERS. UNITED STATES V. SHERMAN, 98 U.S. 565; ANGARIC V. BAYARD, 127 U.S. 251, 260, AND AUTHORITIES THERE COLLECTED; IN RE GOSMAN, 17 CH.D. 771.'

SO RIGOROUSLY IS THE RULE APPLIED THAT IN THE ADJUSTMENT OF MUTUAL CLAIMS BETWEEN AN INDIVIDUAL AND THE GOVERNMENT THE LATTER HAS BEEN HELD ENTITLED TO INTEREST ON ITS CREDITS ALTHOUGH RELIEVED FROM THE PAYMENT OF INTEREST ON THE CHARGES AGAINST IT. UNITED STATES V. VERDIER, 164 U.S. 213, 218- 219, AND UNITED STATES V. NORTH AMERICAN TRANSPORTATION AND TRADING COMPANY, SUPRA.

ACCORDINGLY, SINCE IT IS WELL SETTLED THAT INTEREST ON CLAIMS AGAINST THE UNITED STATES MAY BE PAID ONLY UNDER A CONTRACT OR ACT OF CONGRESS EXPRESSLY PROVIDING THEREFOR AND NO SUCH CONDITIONS PERTAIN IN YOUR CASE, THERE IS NO AUTHORITY FOR THE ALLOWANCE OF YOUR CLAIM FOR INTEREST, AND OUR DECISION OF JUNE 14, 1961, IN THE MATTER IS SUSTAINED.