Honorable Strom Thurmond

• Decision Date: 18 December 1986
• Docket Number: B-224653
• Citation: 66 Comp.Gen. 157
• Parties: THE HONORABLE STROM THURMOND, UNITED STATES SENATE.
• Court: Comptroller General of the United States

66 Comp.Gen. 157

THE HONORABLE STROM THURMOND, UNITED STATES SENATE.

No. B-224653

Comptroller General of the United States

December 18, 1986

Appropriations/financial management - judgment payments - permanent/indefinite appropriation - purpose availability - real property - condemnation use of permanent judgment appropriation provided by 31 U.S.C. 1304(a), is inappropriate to pay judgment in favor of congaree limited partnership in united states v. 14, 770.65 acres of land, 616 F.Supp. 1235 (1985) that resulted from condemnation of land for congaree swamp national monument because land acquisition appropriations of the acquiring agency have always, as a matter of law, been available to pay land acquisition judgments, and judgment appropriation is available only when payment is "not otherwise provided for." Appropriations/financial management - judgment payments - permanent/ indefinite appropriation - purpose availability - real property - condemnation requiring condemnation to be funded through acquiring agency's budget enables congress to make informed decision with respect to both agency spending levels and pace of land acquisition and recognizes a condemnation is not result of agency wrongdoing but it a normal program activity. Appropriations/financial management - judgment payments - permanent/indefinite appropriation - purpose availability - real property - condemnation redwood national park litigation (b-212681(1), Sept. 27, 1983) is not applicable because redwood legislation expressly provides for use of judgment fund for amounts in excess of amount deposited with court. Klamath indian case (b-198352, April 18, 1980) is also distinguishable because klamath legislation directed land be acquired by condemnation, and congress provided line-item appropriation specifically and solely for klamath condemnation. Legislative history showed congress recognized appropriation as insufficient. Appropriations/financial management - judgment payments - permanent/ indefinite appropriation - purpose availability - real property - condemnation congaree acquisition is funded from land and water conservation fund with annual lump-sum appropriations made, allocated among various projects in committee reports, and these allocations do not create legally binding restrictions. Therefore, "exhaustion of appropriation" cited by park service here refers to allocation which can be reprogrammed although process May be inconvenient. Appropriations/financial management - judgment payments - permanent/ indefinite appropriation - purpose availability - real property - condemnation filing of declaration of taking by government, which vests immediate title in united states and irrevocably commits government to pay resulting judgment, does not render appropriation process unnecessary and would not create another limited exception to traditional treatment of land acquisition judgments. It is a decision taken by acquiring agency and does not permit access to judgment appropriation.

This is in response to your letter of August 29, 1986, concerning the availability of the permanent judgement appropriation (31 U.S.C. 1304) to pay the judgement in favor of congaree limited partnership in the case of united states v. 14770.65 acres of land in the county of richland, South Carolina, 616 F.Supp. 1235 (1985). We have carefully reviewed the various documents submitted with your letter as well as materials submitted by other interested parties. As we will explain below, it is our opinion that use of the judgement appropriation would be inappropriate in this case.

In brief, the judgement resulted from the condemnation of land for the congaree swamp national monument as authorized by pub.L. No. 94-545 (oct. 18, 1976), 90 Stat. 2517. The history of the condemnation is somewhat complicated and is set forth in detail in the decision of the united states district court for the district of South Carolina, reported at 616 F.Supp 1235 (1985). The "just compensation" to which congaree is entitled is the fair market value of the land in question, determined to be $46 million, PLUS interest from the date of taking, which the court found to be February 23 1978. Approximately $59 million has already been paid over to congaree from appropriations available to the national park service, department of the interior. The "deficiency " the subject of the judgement in question here, is $10 758, 283.12 with interest from February 13, 1986.

The discussion paper enclosed with your letter recognizes that "the normal process of land acquisition contemplates payment of judgments from appropriated land acquisition funds of the acquiring agency." Several possible grounds have been suggested to support different treatment of the congaree judgement. Specifically, it has been suggested that:

1) similar judgments have been paid from the permanent judgement appropriation in the past.

2) the appropriation process should be unnecessary when the united states has become irrevocably committed to an acquisition through the use of a declaration of taking.

3) in view of the unusual facts of this case, the deficiency can be viewed as more in the nature of an inverse condemnation award.

We will address each of these points in turn. To place our discussion in a more useful context, however, it May be helpful to first lay a more general foundation.

Background

To understand the treatment of the land acquisition judgments it is important to recognize that the permanent judgement appropriation was never intended to extend to all judgments against the united states. Prior to 1956, the majority of judgments against the united states could be paid only under specific appropriations. Thus, for example, if someone obtained a judgement against the united states in a tort action under the federal tort claims act or the suits in admiralty act, the judgment had to be submitted to congress for an appropriation. It could not be paid from funds of the respondent agency, regardless of how much money the agency May have had available to it. This situation was seen as undesirable and unduly cumbersome and, in 1956, congress enacted the permanent judgment appropriation, based upon a general accounting office recommendation. The judgment appropriation originally applied only to judgments not in excess of $100, 000, but this limitation was removed in 1977. Since the judgment appropriation is both permanent and indefinite, it is not subject to the annual authorization and appropriation process. It is essentially permanent authorization to draw money from the general fund to the treasury.

However, it was never the intent of the judgment appropriation to shift the source of funds of those types of judgments which could be paid from agency funds. To preserve the "status quo" with respect to judgments which could be paid from agency funds, the judgment appropriation was made available only where payment was "not otherwise provided for." 31 U.S.C. 1304(a)(1). If this were not the case, agencies would be in a position to avoid certain valid obligations by using the "back door" of the judgment appropriation, and to this extent their budget requests would present to the congress an artificially low picture of the true cost of their activities to the taxpayer.

Payment is "otherwise provided for" if some...