B-239559 May 22, 1990

B-239559 May 22, 1990

Attorneys

Claims Group should certify the payment of interest from the Judgment Fund established by 31 U.S.C. Sec. 1304 (1992) on a medical malpractice claim against the United States brought under the Federal Torts Claims Act, 28 U.S.C. Sec.(s) 2671 et seq. (1982), as amended. The filing of an appeal by the government which was withdrawn by the government several days later, and which did not result in appellate consideration of the merits of the case or reversal of the judgment, was sufficient to subject the United States to interest on the judgment pursuant to section 1304 (b) .

Memorandum

DATE: May 22, 1990

TO: Judgment Group Manager, GGD/Claims - Ken Schutt

THRU: Acting Assistant General Counsel - Tom Armstrong

FROM: Attorney Advisor - Neill Martin-Rolsky

SUBJECT: Z-2896208, McPeak v. United States (B-239559)

This medical malpractice case, brought against the United States under the Federal Torts Claims Act, was submitted to me by Rufus Hill on the issue of post-judgment interest under 31 U.S.C. Sec. 1304(b). The twist it poses derives from last October's San Francisco earthquake.

From what Rufus tells me, the responsible Assistant U.S. Attorney (AUSA) filed a "protective" notice of appeal to the 9th Circuit Court of Appeals on October 6, 1989. (The district court had rendered judgment on August 10, 1989, and the plaintiff had made the filing required to preserve postjudgment interest rights on September 5, 1989.) However, it seems nature herself took offense at the government's appeal, for an earthquake was promptly delivered upon San Francisco. Fortunately, the AUSA saw the error of his ways and quickly withdrew the appeal on October 18, 1989. Thus, the imposition of further plagues upon the city was averted.

The problem we face here stems from the earthquake-caused disruption of mail delivery and judicial procedures: The district court was not physically able to forward the AUSA's notice of appeal to the appeals court before the AUSA's change of heart. Rufus wanted to know if this lack of delivery of the notice to the appeals court adversely affects the claimant's right to post-judgment interest under section 1304(b). I conclude that it does not.

As was explained in 62 Comp.Gen. 4, 6 (1982), so long as notice of appeal is "filed" by the government and the government's appeal is "unsuccessful,"appellate review of the case on its merits is not necessary to the payment of interest under section 1304(b) (previously codified at section 724a). In this context, Unsuccessful means that the lower court's judgment against the United States was not reversed (compare Bob Centola's Draft PFAL, at 14-133 through 134); while "filing" is defined, consistent with the terms of Federal Rule of Appellate Procedure No. 25(a), as reprinted in 28 U.S.C.A. (1980), as delivery of appropriate documents to the clerk of the court. You, Jon Ellifritz, and I discussed a variety of hypothetical variations upon this case. (For example, what if the AUSA walked into the clerk's office, filed the notice, and turned to leave; but then--presumably, as the earthquake struck--he changed his mind, returned to the clerk's desk, and withdrew the appeal?) However, the facts of this case are sufficiently simple and similar to those of GAO's prior cases (which involved stipulated dismissals of government appeals without appellate consideration on the merits) that we need not "split those hairs" here and now.

In filing the notice of appeal with the district court, the AUSA clearly did all that he must in order to initiate the appellate process; transmittal of the notice to the appellate court, as well as transmittal of copies of the notice to opposing counsel, is the lower court's responsibility. See Fed. Rules App. Proc. No. 3, as reprinted in 28 U.S.C.A. (1990 Supp.). Clearly, this action by the AUSA delayed payment of the judgment. Moreover, his withdrawal of the appeal did not result in reversal of the judgment against the United States. As was explained in 62 Comp.Gen. at 6, under these circumstances, "the ultimate resolution is the same as if there had been a mandate of affirmance." In other words, where the AUSA files a notice of appeal, but feels "moved" (geologically or otherwise) to withdraw his notice several days later, it matters not that the notice itself has not yet been physically transferred from the district to the appellate court, because the essential purpose of section 1304(b) is to compensate the government's judgment creditors for delays in payment occasioned by unsuccessful government appeals. Id. Accordingly, Claims Group should certify interest on this judgment from September 5, 1989 through October 17, 1989, pursuant to 31 U.S.C. Sec. 1304(b).

Because she has been calling recently to ascertain the status of this case, I called Ms. Penny Pass (509-3532767) of the cognizant U.S. Attorney's office, and advised her that we have decided to certify interest on this judgment. She asked that, given the age of this matter, it receive expedited treatment. To this end, I am closing OGC's file in this matter without further action, and returning your Z file as an attachment to this memorandum. Should you have any further questions concerning this matter, please feel free to call me.

Attachment