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000 IS RECOVERED ON A JUDGMENT AGAINST THE UNITED STATES. A SPECIAL APPROPRIATION FROM CONGRESS IS REQUIRED. TO SYNNESTVEDT AND LECHNER: REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 14 AND DECEMBER 8. THE JUDGMENT WAS ENTERED ON FEBRUARY 26. THE CLAIM WHICH WAS THE SUBJECT OF OUR DECISION OF SEPTEMBER 3 WAS FOR INTEREST ON THE JUDGMENT FROM THE DATE OF ITS ENTRY UNTIL ITS PAYMENT. 588 (1947) IT WAS STATED: " *** SECTION 177A (28 U.S.C. 2516(A)) THUS EMBODIES THE TRADITIONAL RULE THAT INTEREST CANNOT BE RECOVERED AGAINST THE UNITED STATES UPON UNPAID ACCOUNTS OR CLAIMS IN THE ABSENCE OF AN EXPRESS PROVISION TO THE CONTRARY IN A RELEVANT STATUTE OR CONTRACT. THIS RULE IS INAPPLICABLE. YOU HAVE PLACED GREAT EMPHASIS UPON THE PROVISION MADE BY 28 U.S.C. 2517(A) FOR THE PAYMENT OF FINAL JUDGMENTS OF THE COURT OF CLAIMS "ON PRESENTATION" TO OUR OFFICE OF A CERTIFICATION OF THE JUDGMENT.

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B-173904, FEB 18, 1972

CONTRACTS - INTEREST ON A JUDGMENT - EMINENT DOMAIN - JUST COMPENSATION DECISION AFFIRMING PRIOR DENIAL OF A CLAIM OF EASTERN ROTORCRAFT CORPORATION FOR INTEREST ON A JUDGMENT ENTERED IN ITS FAVOR BY THE COURT OF CLAIMS. PROTESTANT CONTENDS THAT FAILURE TO MAKE PAYMENT "ON PRESENTATION" OF A CERTIFICATE OF THE JUDGMENT PURSUANT TO 28 U.S.C. 2517(A), CONSTITUTES A TAKING OF PRIVATE PROPERTY FOR PUBLIC USE UNDER THE GOVERNMENT'S POWER OF EMINENT DOMAIN, AND THAT THE FIFTH AMENDMENT'S REFERENCE TO "JUST COMPENSATION" REQUIRES THE PAYMENT OF INTEREST FROM THE DATE OF THE TAKING TO THE DATE OF PAYMENT. WHEN AN AMOUNT IN EXCESS OF $100,000 IS RECOVERED ON A JUDGMENT AGAINST THE UNITED STATES, THE APPROPRIATION PROVIDED BY 31 U.S.C 724A DOES NOT APPLY, AND A SPECIAL APPROPRIATION FROM CONGRESS IS REQUIRED. IN THE ABSENCE OF REASONABLE DELAY OR ARBITRARY EXERCISE OF GOVERNMENTAL POWER, THE COMP. GEN. DOES NOT REGARD 28 U.S.C. 2517(A) AS REQUIRING THAT A JUDGMENT BE PAID IMMEDIATELY UPON PRESENTATION OF A VALID CERTIFICATE. ACCORDINGLY, THE PRIOR DENIAL OF THIS CLAIM MUST BE SUSTAINED.

TO SYNNESTVEDT AND LECHNER:

REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 14 AND DECEMBER 8, 1971, REQUESTING RECONSIDERATION OF OUR DECISION OF SEPTEMBER 3, 1971, WHEREIN WE AFFIRMED THE DISALLOWANCE OF THE CLAIM OF EASTERN ROTORCRAFT CORPORATION FOR INTEREST ON A JUDGMENT ENTERED IN ITS FAVOR BY THE COURT OF CLAIMS. THE JUDGMENT WAS ENTERED ON FEBRUARY 26, 1971 AND PAID ON JULY 6, 1971.

THE CLAIM WHICH WAS THE SUBJECT OF OUR DECISION OF SEPTEMBER 3 WAS FOR INTEREST ON THE JUDGMENT FROM THE DATE OF ITS ENTRY UNTIL ITS PAYMENT. YOUR LETTER OF OCTOBER 14, YOU CHANGE THE NATURE OF YOUR REQUEST FROM ONE FOR INTEREST ON THE JUDGMENT TO ONE FOR "JUST COMPENSATION FOR THE UNWARRANTED DELAY IN PAYMENT." YOU CONTEND THAT THE GOVERNMENT'S "ARBITRARY" WITHHOLDING AND "SEQUESTERING" OF THE JUDGMENT PROCEEDS FOR A PERIOD OF FOUR MONTHS CONSTITUTED AN EXERCISE OF ITS POWER OF EMINENT DOMAIN, AS TO WHICH THE FIFTH AMENDMENT TO THE CONSTITUTION PROVIDES " *** NOR SHALL PRIVATE PROPERTY BE TAKEN FOR PUBLIC USE, WITHOUT JUST COMPENSATION." YOU OBSERVE THAT IN UNITED STATES V THAYER-WEST POINT HOTEL CO., 329 U.S. 585, 588 (1947) IT WAS STATED:

" *** SECTION 177A (28 U.S.C. 2516(A)) THUS EMBODIES THE TRADITIONAL RULE THAT INTEREST CANNOT BE RECOVERED AGAINST THE UNITED STATES UPON UNPAID ACCOUNTS OR CLAIMS IN THE ABSENCE OF AN EXPRESS PROVISION TO THE CONTRARY IN A RELEVANT STATUTE OR CONTRACT. THIS RULE IS INAPPLICABLE, HOWEVER, WHERE THE UNITED STATES TAKES PROPERTY UNDER ITS POWER OF EMINENT DOMAIN; IN SUCH CASES IT HAS CONSISTENTLY BEEN HELD THAT THE FIFTH AMENDMENT'S REFERENCE TO 'JUST COMPENSATION' ENTITLES THE PROPERTY OWNER TO RECEIVE INTEREST FROM THE DATE OF THE TAKING TO THE DATE OF PAYMENT AS A PART OF HIS JUST COMPENSATION."

IN THIS CONNECTION, YOU HAVE PLACED GREAT EMPHASIS UPON THE PROVISION MADE BY 28 U.S.C. 2517(A) FOR THE PAYMENT OF FINAL JUDGMENTS OF THE COURT OF CLAIMS "ON PRESENTATION" TO OUR OFFICE OF A CERTIFICATION OF THE JUDGMENT. YOU ASSERT THAT FAILURE TO MAKE IMMEDIATE PAYMENT "ON PRESENTATION" OF THE CERTIFICATE AMOUNTS TO A TAKING OF PRIVATE PROPERTY FOR PUBLIC USE.

THERE IS AUTHORITY FOR THE VIEW THAT ONE "CANNOT BE SAID TO BE DEPRIVED OF HIS PROPERTY IN A JUDGMENT BECAUSE AT THE TIME HE IS UNABLE TO COLLECT IT." LOUISIANA EX REL. FOLSOM V NEW ORLEANS, 109 U.S. 285, 289 (1883). FURTHERMORE, WE ARE OF THE OPINION THAT YOUR ARGUMENT FAILS TO FULLY REFLECT 28 U.S.C. 2517(A), WHICH STATES IN ITS ENTIRETY:

"EVERY FINAL JUDGMENT RENDERED BY THE COURT OF CLAIMS AGAINST THE UNITED STATES SHALL BE PAID OUT OF ANY GENERAL APPROPRIATION THEREFOR, ON PRESENTATION TO THE GENERAL ACCOUNTING OFFICE OF A CERTIFICATION OF THE JUDGMENT BY THE CLERK AND CHIEF JUDGE OF THE COURT."

WHEN, AS IN THE INSTANT CASE, ONE RECOVERS OVER $100,000 IN AN ACTION BROUGHT AGAINST THE UNITED STATES, THE APPROPRIATION PROVIDED BY 31 U.S.C. 724A DOES NOT APPLY, AND A SPECIAL APPROPRIATION FROM CONGRESS IS REQUIRED. 31 U.S.C. 724A PROVIDES FOR A LUMP SUM OF MONEY FOR PAYMENT OF JUDGMENTS NOT IN EXCESS OF $100,000. WHEN A JUDGMENT IN EXCESS OF $100,000 IS OBTAINED, A CERTIFIED COPY OF THE JUDGMENT IS TRANSMITTED TO THE BUREAU OF ACCOUNTS OF THE TREASURY DEPARTMENT. IN THIS CASE, THAT WAS DONE BY YOUR LETTER OF MARCH 2, 1971. ON MARCH 30, 1971, THE DEPARTMENT OF JUSTICE ADVISED THE TREASURY DEPARTMENT THAT IT HAD NO OBJECTION TO THE PAYMENT OF THE JUDGMENT OF $150,000. THE BUREAU OF ACCOUNTS THEN ASSEMBLED THE NECESSARY PAPERS AND RECOMMENDATIONS FOR SUBMISSION TO THE OFFICE OF MANAGEMENT AND BUDGET (OMB).

AS THE TIME FOR THE NEXT SUPPLEMENTAL APPROPRIATION REQUEST APPROACHED, OMB SO ADVISED THE TREASURY DEPARTMENT AND THAT DEPARTMENT FORWARDED ITS RECOMMENDATIONS WITH DOCUMENTATION TO OMB FOR INCLUSION IN THE SUPPLEMENTAL APPROPRIATION REQUEST. THIS INFORMATION WAS THEN PRESENTED TO CONGRESS. SEE H.R. DOC. NO. 92-103, 92D CONG., 1ST SESS. 11-12 (1971). AFTER THE SUPPLEMENTAL BILL WAS ENACTED INTO LAW (SECOND SUPPLEMENTAL APPROPRIATIONS ACT, 1971, PUB. L. 92-18, APPROVED MAY 25, 1971, 85 STAT. 40), THE TREASURY DEPARTMENT SUBMITTED THE JUDGMENT AND PERTINENT PAPERS REGARDING THE MATTER TO THIS OFFICE.

ON JUNE 10, 1971, WE REQUESTED THAT AN OFFICIAL OF EASTERN ROTORCRAFT CORPORATION FURNISH US WITH A STATEMENT OVER HIS HAND-WRITTEN SIGNATURE SHOWING THE ADDRESS TO WHICH THE CHECK IN PAYMENT OF THE JUDGMENT SHOULD BE MAILED. WE RECEIVED SUCH A STATEMENT ON JUNE 17, 1971, AND ON THE FOLLOWING DAY A STATEMENT OF SETTLEMENT OF CLAIM WAS MADE IN FAVOR OF YOUR CLIENT. ON JUNE 23, 1971, THIS OFFICE ISSUED ITS CERTIFICATE OF SETTLEMENT, UPON THE BASIS OF WHICH A CHECK IN THE APPROPRIATE AMOUNT ISSUED FROM THE TREASURY DEPARTMENT.

WE DO NOT REGARD 28 U.S.C. 2517(A) AS REQUIRING THAT THE JUDGMENT IN THE INSTANT CASE BE PAID SIMULTANEOUSLY WITH THE PRESENTATION OF THE CERTIFICATION OF JUDGMENT ON MARCH 3, 1971. PAYMENT OF THAT JUDGMENT WAS CONDITIONED UPON THE AVAILABILITY OF AN APPROPRIATION THEREFOR, WHICH WAS NOT APPROVED UNTIL MAY 25, 1971. TWENTY-SIX DAYS (OF WHICH 18 WERE WORKING DAYS) ELAPSED BETWEEN OUR RECEIPT FROM THE BUREAU OF ACCOUNTS OF THE DOCUMENTS NECESSARY FOR PREPARATION OF A CERTIFICATE OF SETTLEMENT AND THE ISSUANCE OF THAT CERTIFICATE. A PORTION OF THAT TIME CAN BE ATTRIBUTED TO THE NECESSITY OF OBTAINING PAYMENT INSTRUCTIONS FROM YOUR CLIENT. UNDER THESE CIRCUMSTANCES WE ARE UNABLE TO CONCLUDE THAT THERE WAS ANY UNREASONABLE DELAY IN PAYING THE JUDGMENT, OR THAT THERE WAS AN ARBITRARY "TAKING" OF PRIVATE PROPERTY FOR PUBLIC USE. OUR DECISION OF SEPTEMBER 3 IS THEREFORE AFFIRMED.

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