Felder v. United States

• Decision Date: 26 August 1977
• Docket Number: B-183576
• Parties: FELDER v. UNITED STATES:
• Court: Comptroller General of the United States

FELDER v. UNITED STATES:

No. B-183576

Comptroller General of the United States

August 26, 1977

Where federal tort claims act judgment awarded more than $100, 000 to named plaintiffs and also made awards of less than $100 000 to named plaintiffs on behalf of their children, lesser awards were correctly paid under 31 U.S.C. 724a, and ordinarily interest would be disallowed since transcript of judgment was not filed with general accounting office (GAO) as required by section 724a.However, GAO has duty to pay interest here in compliance with specific terms of final judgment.

This decision responds to a request for reconsideration of the disallowance by our claims division of interest on part of a judgment awarded against the United States in Felder v United states, infra, under the circumstances set forth below.

Felder v. United states was a wrongful death action brought in the United States district court for the district of Arizona under the federal tort claims act, 28 U.S.C. 1346(b) 2671-2680(1970).The suit resulted from the crash of a small airplane and the deaths of its three occupants.The three surviving spouses-- gloria felder, betty ann henschen, and lynda M. Burns-- joined to bring suit in their own right and on behalf of their minor children.The district court awarded judgment to plaintiffs on November 29, 1974.

The United States appealed.On September 29, 1976, the court of appeals of the 9th circuit affirmed the judgment on the issue of liability but modified the award of damages.543 F.2d 657.The case was remanded to the district court with instructions to enter a modified judgment.The mandate of affirmance further specified: "interest allowed at the statutory rate of 4% on the modified award to each respective plaintiff * * * from November 29, 1974."

On December 15, 1976, the district court issued its amended judgment, which reads as pertains to plaintiff burns:

"It is further ordered, adjudged, and decreed that the plaintiff lynda M. Burns * * * have and recover judgment against the United States of america the sum of five hundred ninety thousand dollars ($590, 000.00) allocated to and for the use and benefit of the following heirs and dependents entitled to recover, to-wit: lynda M. Burns, surviving spouse, $500, 000.00; and timothy burns, $90, 000.00, with interest thereon at the statutory rate of four percent (4%) per annum from November 29, 1974."

The awards to plaintiffs felder and henschen are worded similarly.Each case the amount allocated to the surviving spouse was in excess of $100, 000 and the amount allocated to each of the minor children was less than $100, 000.The award of interest had been made pursuant to 28 U.S.C 2411(b)(1970), which provides that on all final judgments rendered against the United States under the federal tort claims act--

" * * * interest shall be computed at the rate of 4 per centum per annum from the date of the judgment up to, but not exceeding, thirty days after the date of approval of any appropriation act providing for payment of the judgment."

On February 4, 1977, the justice department certified the judgments as final, grouping the awards into two categories those in excess of $100, 000 and those less than $100, 000.The awards of less than $100, 000 were presented to the general accounting office (GAO) for settlement pursuant to 31 U.S.C. 724a, the permanent indefinite appropriation for payment of judgments, which provided in part at that time:

"There are appropriated * * * such sums as May * * * be necessary for the payment * * * of final judgments, awards, and compromise settlements (NOT in excess of $100, 000 * * * in any one case) which are payable in accordance with the terms of sections * * * 2414 of title 28 * * * provided, that, whenever a judgment of a district court to which the provisions of section 2411(b) of title 28 apply, is payable from this appropriation, interest shall be paid thereon only when such judgment becomes final after review on appeal or petition by the United States, and then only from the date of the filing of the transcript thereof in the general accounting office to the date of the mandate of affirmance * * *.

Since the awards to the three surviving spouses each exceeded the $100, 000 limitation then applicable under 31 U.S.C. 724a, these portions of the judgment were submitted to the congress for separate appropriation.The awards to the surviving spouses were provided for in the supplemental appropriations act, 1977, pub. L. No. 95-26(MAY 4, 1977), 91 Stat. 61, 96, and they have been paid with four percent interest from the date of the original judgment as authorized by 28 U.S.C. 2411(b), supra.^[1]

In March 1977 our claims division had issued settlements for payment of the awards of less than $100, 000 to the minor children pursuant to 31 U.S.C. 724a, and the awards have since been paid.However, interest on these awards was disallowed because a transcript of the judgment had not been filed with GAO as required by the first proviso of section 724a, supra.

The attorney for plaintiff burns, on behalf of all plaintiffs in the action, now asks us to reconsider the disallowance of interest on the awards of less than $100, 000.He contends that the justice department and our claims division erred in treating these awards as separate judgments payable under 31 U.S.C. 724a.Rather, he asserts that the amounts awarded to each surviving spouse and her children constituted a single judgment, so that the judgment in each case exceeded $100, 000.He relies on nunez v. Nunez, 25 ariz.App. 558, 545 p.2d 69(1976), in which the Arizona court of appeals stated that under the Arizona wrongful death statute--

"* * * there is 'one action' for damages occasioned by a wrongful death.There is also but one plaintiff, one of the persons designated by statute, and therefore there is but one judgment, the proceeds of which are held by the statutory plaintiff as trustee for the persons on whose behalf the suit was brought. * * * "545 p.2d at 73.

Based on this premise, the attorney maintains that settlement of the entire amount awarded to each named plaintiff should have been effected through the separate appropriation act.Had this been done, the awards of less than $100, 000 to the children would not have been payable under, or subject to the requirements of 31 U.S.C. 724a with respect to the payment of interest.Interest on these amounts would then also have been allowed under 28 U.S.C. 2411(b) at 4 percent per annum from November 29, 1974.

We believe that the justice department and our claims division had authority to separate out the awards here in question and to pay these awards under 31 U.S.C. 724a.This approach was consistent with prior decisions of our office and of the courts.See40 Comp.Gen. 307(1960);United States v. State of Maryland, 349 F.2d 693(d.C.Cir. 1965);United States v. Varner, 400 F.2d 369(5th Cir.1968).

Our decision pointed out that the primary purpose of 31 U.S.C. 724a"was to provide for the prompt payment of judgments and to thereby eliminate or greatly reduce the costs of interest thereon."Id. At 308.

The question of severability of judgments for purposes of 31 U.S.C. 724a was also addressed in United States v. State of Maryland, 349 F.2d 693(d.C.Cir. 1965).In that case a wrongful death action had been brought against the United States in the name of the state of Maryland on behalf of the decedent's widow and children.The judgment awarded various sums to the widow and each child.Each of the amounts awarded was less than $100, 000, although the aggregate of the individual awards exceeded that amount.Observing that only one action would lie under the Maryland wrongful death statute, the district court had held that there was only one judgment, even though the judgment directed payment of specific sums to the various dependents.The district court therefore concluded that the judgment was not subject to 31 U.S.C. 724a and its interest provisions.229 F.Supp. 280(d.D.C. 1964).

The court of appeals reversed, holding that the judgment was payable under section 724a, and that interest was barred by failure to file a transcript of the judgment with...