B-240135 August 14, 1990

B-240135 August 14, 1990

DIGEST

J. William Bennett, Esq. Benjamin Rosenthal, Esq. 811 S.W. Front Avenue, Suite 630 Portland, Oregon 97204

Gentlemen:

This replies to your letter of December 4, 1989, and your previous correspondence with our Claims Group, concerning whether the judgment in favor of William Delay in the amount of $140,430 against the Pacific Northwest River Basins Commission in Civil No. 80-549, U.S.D.C., Oregon, may be paid from the Judgment Fund, 31 U.S.C. Sec. 1304.

We conclude that since the judgment in question is not against the United States, the Judgment Fund is not available as a source of funding. Also, for the same reason, we may not recommend to the Congress that Mr. Delay's claim be considered for payment under the Meritorious Claims Act, 31 U.S.C. Sec. 3702(d).

We appreciate the care you have taken to assemble the background data regarding the Commission and to describe and document the procedural journey of this case from its filing in the United States District Court for the District of Oregon, its transfer to the Court of Claims (now Claims Court), its dismissal by the Claims Court, its revival in the Court of Appeals for the Federal Circuit, and its return to the Federal District Court in Oregon, which resulted in the judgment in question.

For our purposes, the conclusive document is the Claims Court opinion filed September 28, 1983, dismissing the complaint. The Claims Court held that the plaintiff's claim against the Pacific Northwest River Basins Commission, based on unlawful termination of his employment, was not a claim against the United States for the purpose of satisfying the jurisdictional prerequisite of that court--i.e., a monetary claim against the United States under 28 U.S.C. Sec. 1491(a). Although you have ably argued that the Claims Court was incorrect, you admit that this question was not involved in the appeal to the Federal Circuit. Thus, the Claims Court's conclusion is the law of the case and we consider ourselves to be bound by it.

The Judgment Fund is available only to pay money judgments against the United States. The caption of a suit does not have to indicate that the United States is a defendant; we look to the reality of whether the United States is in fact the defendant. See 58 Comp.Gen. 311, 315-316 (1979). In this case, the United States was not a party in the district court suit, the judgment was entered against the Pacific Northwest River Basins Commission, and we find conclusive the jurisdictional holding of the Claims Court that the Commission is not a part of the United States. Since it is our responsibility to certify for payment from the Judgment Fund only those judgments that are entered against the United States, the judgment against the Commission may not be paid from the Judgment Fund. Cf. Thomas E. Witter, B-198202, Dec. 29, 1980.

The Meritorious Claims Act allows the Comptroller General to recommend to the Congress that a claim against the United States (currently phrased as the "Government") that cannot be paid with an existing appropriation be considered for payment by enactment of a special appropriation. We believe that the term "Government" in the Meritorious Claims Act is the same concept as the term "United States" in the Judgment Fund statute, 31 U.S.C. Sec. 1304. Thus, if a judgment is not against the United States for purposes of the Judgment Fund, a claim based upon that judgment is not against the government for purposes of the Claims Act. The Comptroller General may recommend to the Congress only claims against the United States. Since we have concluded, as explained above, that the judgment against the Pacific Northwest River Basins Commission is not against the United States, the claim here is not against the government, and we, therefore, may not recommend it for consideration to Congress under the Meritorious Claims Act.

Sincerely yours,

James F. Hinchman General Counsel