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CHAPTER 10

CLAIMS AGAINST THE UNITED STATES

General provisions :

Private property, loss or damage-Contd. Assignments and powers of attorney, 701. In the military service of the United Claims under exhausted appropriations, States, 714. 702.

By field exercises, 714a. Equitable claims, 703.

By operation of camps of instruction, NaProcuring attendance of witnesses, 705.

tional Guard, 714b. Prosecution by former officers and em- Property of Army personnel, loss or damage ployees, 706.

in the military service: Prosecution by members of the National General provision, 715.

Guard, District of Columbia, 707. Horses and equipment, 716. Set-off, 708.

Property of civilian employees, loss or damForeign nationals:

age in river and harbor service, 717. Contract claims, 708a.

Property of foreign nationals; damage by Death or injury, 708b.

operation of the Army, 717a. Private property, loss or damage :

Pay claims : By operations of the Army, 709.

Attorneys' fees, 718. By dredging operations, 710.

Longevity, 719. By operation of aircraft, 711.

National Guard in Federal service, 720. By river and harbor operations, 712.

Volunteers, time limit for filing, 721. By negligence of Government agents within

scope of their employment, 713. 701. Assignments and powers of attorney.-All transfers and assignments made of any claim upon the United States or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or of any part or share thereof, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof. Such transfers, assignments, and powers of attorney must recite the warrant for payment, and must be acknowledged by the person making them, before an officer having authority to take acknowledgments of deeds, and shall be certified by the officer; and it must appear by the certificate that the officer, at the time of the acknowledgment, read and fully explained the transfer, assignment, or warrant of attorney to the person acknowledging the same. R, S. 3477; 31 U. 8. C. 203.

Notes of Decisions In general.---The statute providing that, a "transfer" or "assignment" of a "claim" assignments of claims against the United against the United States within statute proStates are void does not apply to assign- viding that transfers and assignments of ments by operation of law (31 U. S. C. A. claims against the United States were void, sec. 203). Morgenthau v. Fidelity & Deposit notwithstanding that treasurer knew when Co. of Maryland (App. D. C., 1937), 94 F. | loan was made that an assignment of a claim (20) 632

against the United States was invalid unless A postal employee's agreement that his certain formalities were complied with. 31 monthly checks were to be held by treasurer U. S. C. 203. Richmond Postal Credit Union of corporate payee of note executed by em- v. Booker (Va., 1938), 195 S. E. 663. ployee for monthly payments on note was not

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702. Claims under exhausted appropriations.

And it shall be the duty of the several accounting officers of the Treasury to continue to receive, examine, and consider the justice and validity of all claims under appropriations the balances of which have been exhausted or carried to the surplus fund under the provisions of said section that may be brought before them within a period of five years. And the Secretary of the Treasury shall report the amount due each claimant, at the commencement of each session, to the Speaker of the House of Representatives, who shall lay the same before Congress for consideration: Provided, That nothing in this Act shall be construed to authorize the re-examination and payment of any claim or account which has been once examined and rejected, unless reopened in accordance with existing law. Sec. 4, act of June 14, 1878 (20 Stat. 130); 31 U. 8. C. 714.

The duties of the accounting officers of the Treasury are now performed by the General Accounting Office. See 1646, post.

For second and third paragraphs of the 1929 text of this section, see 1656, 1659, post. 702a. Compromise.

As to any case referred to the Department of Justice for defense, the function of decision whether and in what manner to defend, or to compromise, or to appeal, or to abandon defense, formerly exercised by any agency or officer, is transferred to the Department of Justice by Executive Order No. 6166 of June 10, 1933, issued under authority of Title IV, Part II, act of June 30, 1932 (47 Stat. 413), as amended.

Notes of Decisions Authority of Attorney General.--In cases of offers in compromise, and when be has wherein the Treasury Department is called so terminated such a suit his action is final upon to make tax refunds after settlements and binding on all other executive officers have been agreed upon by the Department of the Government as to the merits thereof of Justice, under section 5 of Executive Or- and not subject to review by the Treasury der No. 6166, the Attorney General has ample Department. (1934) 38 Op. Atty. Gen. 124. power to terminate suits by the acceptance

703. Equitable claims.---That when there is filed in the General Accounting Office a claim or demand against the United States that may not lawfully be adjusted by the use of an appropriation theretofore made, but which claim or demand in the judgment of the Comptroller General of the United States contains such elements of legal liability or equity as to be deserving of the consideration of the Congress, he shall submit the same to the Congress by a special report containing the material facts and his recommendation thereon. Act of Apr. 10, 1928 (45 Stat. 413); 31 U. S. C. 236.

The act of Mar. 2, 1919 (40 Stat. 1272), authorized the Secretary of War to adjust, pay, or discharge upon a fair and equitable basis any agreement, express or implied, that had been entered into during the late emergency and prior to Nov. 12, 1918. The effect of this act was said by the Comptroller of the Treasury to be to give the Secretary of War orig. inal jurisdiction in the settlement of claims arising thereunder and to suspend temporarily further action by the accounting officers. In the same opinion, the Comptroller outlined the procedure which should be followed by claimants. See (1919) 25 Comp. Dec. 774.

Notes of Decisions

In general.-United States may not be statute in which government consents to sued without its consent, and Congress bas be sued. absolute discretion to specify cases and con- Congress may impose new conditions upon tingencies in which liability of government which consent of United States to be sued may be determined by courts.

is granted. Butler et al. v. Carney (D. C., One seeking to sue United States must 1936), 17 F. Supp. 133. show that his case is clearly within terms of

704. For text of this section as published in the 1929 Edition, see 1671, post.

705. Procuring attendance of witnesses.--Any head of a department or bureau in which a claim against the United States is properly pending may apply to any judge or clerk of any court of the United States, in any State, District, or Territory, to issue a subpæna for any witness being within the jurisdiction of such court, to appear at a time and place in the subpæna stated, before any officer authorized to take depositions to be used in the courts of the United States, there to give full and true answers to such written interrogatories and cross-interrogatories as may be submitted with the application, or to be orally examined and cross-examined upon the subject of such claim. R. S. 184; 5 U. 8. C. 94.

Witnesses subpænaed pursuant to the preceding section shall be allowed the same compensation as is allowed witnesses in the courts of the United States. R. S. 185; 5 U. 8. C. 95.

If any witness, after being duly served with such subpæna, neglects or refuses to appear, or, appearing, refuses to testify, the judge of the district in which the subpoena issued may proceed, upon proper process, to enforce obedience to the subpoena or to punish the disobedience, in like manner as any court of the United States may do in case of process of subpæna ad testificandum issued by such court. R. 8. 186; 5 U. 8. C. 96.

In addition to the authority conferred by this section, like provision was made for the issue of subpænas for witnesses, upon the application of the Commissioner of Pensions, on investigation or examination into the merits of pension claims, by act July 25, 1882, sec. 3.

For fees allowed witnesses in United States courts, see 767, post.

The act of July 3, 1926 (44 Stat. 835), entitled "An act relating to contempts," provides for the manner of obtaining testimony of citizens of the United States or persons who are domiciled therein when they are beyond the jurisdiction thereof and for punishment for contempt of recusant witnesses.

706. Prosecution by former officers and employees.-It shall not be lawful for any person appointed after the first day of June, one thousand eight hundred and seventy-two, as an officer, clerk, or employee in any of the departments to act as counsel, attorney, or agent for prosecuting any claim against the United States which was pending in either of said departments while he was such officer, clerk, or employee, nor in any manner, nor by any means, to aid in the prosecution of any such claim, within two years next after he shall have ceased to be such officer, clerk, or employee. R. S. 190; 5 U. S. C. 99.

* * That it shall be unlawful for any person who, as a commissioned officer of the Army, or officer or employee of the United States, has at any time since April 6, 1917, been employed in any bureau of the Government and in such employment been engaged on behalf of the United States in procuring or assisting to procure supplies for the Military Establishment, or who has been engaged in the settlement or adjustment of contracts or agreements for the procurement of supplies for the Military Establishment, within two years next after his discharge or other separation from the service of the Government, to solicit employment in the presentation or to aid or assist for compensation in the prosecution of claims against the United States arising out of any contracts or agreements for the procurement of supplies for said bureau, which were pending or entered into while the said officer or employee was associated therewith. A violation of this provision of this chapter shall be punished by a fine of not more than $10,000 or imprisonment for not more than one year, or both: Provided, That all Acts or parts of Acts inconsistent with any of the provisions of this Act are hereby repealed. Chap. IV, act of July 11, 1919 (41 Stat. 131); 5 U. 8. C. 100.

Officers and employees are forbidden to prosecute claims against the United States by sec. 109, Criminal Code, post, 840.

By act of April 14, 1934 (48 Stat. 590), the first paragraph of this section was made inapplicable to attorneys employed by the Attorney General for prosecution of cases under

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the National Recovery Act, and, by act of May 25, 1934 (48 Stat. 804), to attorneys employed by the Attorney General for prosecution of cases involving hydroelectric power, navigation, or water rights upon the New and Kanawha Rivers.

For other exceptions to this section, see 840, post.

707. Prosecution by members of the National Guard of the District of Columbia.-_*

Provided, That members of the National Guard of the District of Columbia who receive compensation for their services as such shall not be held or construed to be officers of the United States, or persons holding any place of trust or profit, or discharging any official function under or in connection with any executive department of the Government of the United States within the provisions of section fifty-four hundred and ninety-eight of the Revised Statutes of the United States :

Sec. 1, act of Mar. 1, 1901 (31 Stat. 844); 18 U. S. C. 198a. R. S. 5498 is incorporated in sec. 109, Criminal Code, 840, post.

708. Set-off.-That when any final judgment recovered against the United States duly allowed by legal authority shall be presented to the Comptroller General of the United States for payment, and the plaintiff therein shall be indebted to the United States in any manner, whether as principal or surety, it shall be the duty of the Comptroller General of the United States to withhold payment of an amount of such judgment equal to the debt thus due to the United States; and if such plaintiff assents to such set-off, and discharges his judgment or an amount thereof equal to said debt, the Comptroller General of the United States shall execute a discharge of the debt due from the plaintiff to the United States. But if such plaintiff denies his indebtedness to the United States, or refuses to consent to the set-off then the Comptroller General of the United States shall withhold payment of such further amount of such judgment as in his opinion will be sufficient to cover all legal charges and costs in prosecuting the debt of the United States to final judgment. And if such debt is not already in suit, it shall be the duty of the Comptroller General of the United States to cause legal proceedings to be immediately commenced to enforce the same, and to cause the same to be prosecuted to final judgment with all reasonable dispatch. And if in such action, judgment shall be rendered against the United States, or the amount recovered for debt and costs shall be less than the amount so withheld as before provided, the balance shall then be paid over to such plaintiff by such Comptroller General of the United States with 6 per centum interest thereon for the time it has been withheld from the plaintiff. Act of Mar. 3, 1875 (18 Stat. 481); sec. 13, Title II, act of Mar. 3, 1933 (47 Stat. 1516); 31 U. 8. O. 227.

Notes of Decisions

In general. -As the effect of the act of ernment. The amendment is not retroactive, 1875 was to take away the discretion which and interest on duly allowed claims other accounting officers previously had in exer- than final judgments is allowable up to the cising the right of set-off and to require them date of the amendment. Whitbeck, Receiver, to make set-offs in respect to both judgments v. U. S. (1933), 77 Ct. Cl. 309. and claims, so now the effect of the amend- The amendment of this section limiting, to ment of March 3, 1933 (47 Stat. 1516), is to final judgments only, interest on allowed restore the discretion of exercising the set-claims against the Government the payment off right with respect to claims and to limit of which has been erroneously withheld to the duty of making set-offs to judgments. apply as a set-off in payment of claims in (1933) 37 Op. Atty. Gen. 215.

favor of the Government, is not retroactive, Interest.-This section as amended author- and interest is recoverable on a duly allowed izes interest only on "final judgments" claim other than a judgment up to the enactagainst the Government, payment of which ment of such amendment, March 3, 1933. has been withheld to apply as set-off in pay- The Act of March 3, 1933, 47 Stat. 1489, ment of alleged claims in favor of the Gov. I did not repeal but merely amended the Act

of March 3, 1875. The plaintiff's claim for recover not only the amount of its claim but interest is a claim arising under the 1875 also interest thereon in accordance with this Act, and is therefore within the jurisdiction section. Allis-Chalmers Mfg. Co. v. U. S. of the court.

(1934), 79 Ct. Cl. 453. A statute should not be given a retrospec- Where United States wrongfully withheld tive effect unless such clearly and unequivo- from seller payments for merchandise sold cally appears to have been the legislative to War and Navy Departments to offset intent in its enactment. Chicago, I. & L. amount due against claimed but nonexistent Ry. v. U. S. (1933), 78 Ct. CI. 96.

indebtedness due United States, seller held Interest on an allowed claim against the entitled to interest on amounts due at 6 Government, other than a judgment, payment percent per annum during time payments of which has been withheld by the Comp-were wrongfully withheld (31 U. S. C. A. troller General as a set-off against an er- 227). Reynolds Tobacco Co. v. U. S. (1936), roneous claim by the Government, is allow 82 Ct. Cl. 545. able only up to March 3, 1933. Detroit, T. Where the Comptroller General, under the & I, R. R. Co. v. U. S. (1934), 79 Ct. C1, 227. act of March 3, 1875, as amended, withheld

Where the Comptroller General refuses pay payment of money due a contractor under ment of a claim admittedly due the con certain contracts with the Government to tractor under one contract, setting off against satisfy an erroneous claim against the conit a claimed indebtedness of the contractor tractor under another contract with the Govto the Government under another contract, ernment, the contractor is entitled to inwhich claim of indebtedness is held invalid terest on the money so withheld from him. by the court, the contractor is entitled to Edwards v. U. S. (1937), 84 Ct. Cl. 615.

708a. Contract claims; foreign nationals.-That the Secretary of War, through such agency as he may designate or establish is empowered, upon such terms as he or it may determine to be in the interest of the United States, to make equitable and fair adjustments and agreements, upon the termination or in settlement or readjustment of agreements or arrangements entered into with any foreign government or governments or nationals thereof, prior to November twelfth, nineteen hundred and eighteen, for the furnishing to the American Expeditionary Forces or otherwise for War purposes of supplies, materials, facilities, services, or the use of property, or for the furnishing of any thereof by the United States to any foreign government or governments, whether or not such agreements or arrangements have been entered into in accordance with applicable statutory provisions; and the other provisions of this Act shall not be applicable to such adjustments. Sec. 3, act of Mar. 2, 1919 (40 Stat. 1273).

Notes of Decisions Claims within.—The agreement made be- purview of this section. The claim arising tween the representative of the United States out of the agreement to adopt as a basis for and the Netherlands Government concerning ascertaining just compensation the costs of the price to be paid to the Netherlands Gov- the supplies in lieu of the market value is ernment for war materials taken over by the within the scope of this section (1932) 36 United States in 1917, wbich were to be fur-Op. Atty. Gen. 547. nished to a foreign government, is within the

708b. Death or injury; foreign nationals. That when any act of omission of any officer, employee, or agent of the Government of the United States, including all officers, enlisted men and employees of the Army, Navy, and Marine Corps, results in the personal injury or death of any person, not an American national, in any foreign country in which the United States exercises privileges of extraterritoriality, the Secretary of State may consider, adjust, and determine any claim, arising after the passage of this Act, for the damage occasioned by such injury or death in an amount not in excess of $1,500, United States currency, in any one case, and such amount as may be found to be due to any claimant shall be certified to Congress as a legal claim for payment out of appropriations that may be made by Congress therefor, together with a brief statement of the character of each claim, the amount claimed, and the amount allowed: Provided, That this authorization shall not apply to cases of per

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