Availability of Judgment Fund in Cases Not Involving a Money Judgment Claim ( 1989 )

Availability of Judgment Fund in Cases
Not Involving a Money Judgment Claim
The Judgment Fund is not available for suits that do not seek to require the government to
make direct payments of money to individuals, but merely would require the government
to take actions that result in the expenditure of government funds.
The Judgment Fund is available: (1) for the payment of final “money judgments" (but not
for “non-money judgments”) whose payment is not “otherwise provided for”; (2) for the
payment of tort settlements covered by statutory provisions listed in 31 U.S.C. § 1304(a);
and (3) for the payment of non-tort settlements authorized by the Attorney General or his
designee, whose payment is not “otherwise provided for,” if and only if the cause of
action that gave rise to the settlement could have resulted in a final money judgment.
April 14, 1989
M em orandum O pinion fo r the A ssistant A ttorney G eneral
C ivil D ivision
This memorandum responds to your request1 for the opinion of this
Office concerning the availability of the permanent appropriation estab­
lished pursuant to 31 U.S.C. § 1304 (“the Judgment Fund”) for the pay­
ment of judgments or settlements not involving “money judgment”
claims, i.e., “cases that are not framed in typical money damages terms
[that] may nevertheless, at bottom, seek the expenditure of money by the
government and are capable of compromise on that basis.” Civil
Memorandum at 1. We conclude: (1) that fined judgments whose payment
is not “otherwise provided for”2 are payable from the Judgment Fund if
1Memorandum for Douglas W Kmiec, Acting Assistant Attorney GeneraJ, Office of Legal Counsel, from
John R Bolton, Assistant Attorney General, Civil Division, Re: Use o f the Judgment Fund fo r Settlement
o f Cases or Payment o f Judgments that Do Not Involve a “Money Judgment” Claim (July 21, 1988)
(“Civil Memorandum”)
2 We reaffirm this Office’s traditional position that a payment is “otherwise provided for” in two different
situations. First, when a statute provides that particular kinds of judgments are to be paid from agency
appropriations, the “otherwise provided for” criterion is satisfied with respect to judgments and settle­
ments. Second, judgments or settlements incurred by agencies in the course of certain “business-type” pro­
grams are also “otherwise provided for.” See Memorandum for D Lowell Jensen, Acting Deputy Attorney
General, from Larry L. Simms, Deputy Assistant Attorney General, Office of Legal Counsel at 7-11 (Feb. 24,
1984); Memorandum for Abraham D Sofaer, Legal Adviser, Department of State, from Charles J Cooper,
Assistant Attorney General, Office of Legal Counsel, Re- Availability of Judgment Fund to Pay
Compivmise Settlement o f Iraman Claim at 4-5 (Feb. 16, 1988) The Comptroller General also has
endorsed this two-pronged test for determining whether a payment is “otherwise provided for.” See General
Continued
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they require the government to make direct payments of money to indi­
viduals, but not if they merely require the government to take actions that
result in the expenditure of government funds; (2) that a settlement is
payable from the Judgment Fund if it involves a tort claim statutorily rec­
ognized in 31 U.S.C. § 1304(a), and its “payment is not otherwise provid­
ed for”; and (3) that a non-tort settlement is payable from the Judgment
Fund under 28 U.S.C. § 2414 only if the litigation giving rise to the settle­
ment could have required the direct payment of money by the govern­
ment, had it resulted in a final judgment.
I. Analysis
We start as always with the plain language of the statutory text at issue.
The Judgment Fund statute, 31 U.S.C. § 1304, provides in pertinent part:
(a) Necessary amounts are appropriated to pay final judg­
ments, awards, compromise settlements, and interest and
costs specified in the judgments or otherwise authorized by
law when —
(1) payment is not otherwise provided for;
(2) payment is certified by the Comptroller General;
and
(3) the judgment, award, or settlement is payable —
(A) under section 2414, 2517, 2672, or 2677 of title
28;
(B) under section 3723 of this title;
(C) under a decision of a board of contract
appeals; or
(D) in excess of an amount payable from the
appropriations of an agency for a meritorious
claim under section 2733 or 2734 of title 10,
section 715 of title 32, or section 203 of the
National Aeronautics and Space Act of 1958
(42 U.S.C. 2473).
Section 1304 thus imposes three requirements that must be met before
the Judgment Fund may be utilized. First, the judgment must be payable
pursuant to one of a number of specified sections of the U.S. Code.
2 (...continued)
Accounting Office, Principles o f Fedeinl Appropriations Law 12-14 (1982) (describing first test) (“GAO
Manual”), 62 Comp Gen. 12, 14 (1982) (descnbing second test) (Although the opinions of the Comptroller
General, an agent of Congress, are not binding on the executive branch, we regularly consult these opin­
ions for their informational and analytic value)
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Second, there must not be another source of funds available to pay the
judgment. Finally, payment of the judgment must be certified by the
Comptroller General.
The final requirement — the necessity of certification by the
Comptroller General — does not appear to impose any additional sub­
stantive requirements on access to the judgment fund. The Comptroller
General’s certification apparently follows from satisfaction of the other
two requirements and completion of the necessary paperwork.3 Thus, we
need only determine whether the first condition precludes the payment
of non-money judgment claims from the Judgment Fund. (The second
condition is analyzed in note 1, supra.)
Two distinct categories of claims are payable from the Judgment Fund:
final judgments and settlements. We examine those categories in turn.
A. Final Judgments
As indicated above, 31 U.S.C. § 1304(a) plainly states that “[n]ecessary
amounts are appropriated to pay final judgments, awards, compromise
settlements, and interest and costs ... when ... the judgment, award, or
settlement is payable” under any one of a specified list of statutory pro­
visions. The primary statutory provision4 in that list that applies to final
judgments is the first paragraph of 28 U.S.C. § 2414, which states (empha­
sis added):
Except as provided by the Contract Disputes Act of 1978,
payment of final judgments rendered by a district court or
the Court of International Trade against the United States
shall be made on settlements by the General Accounting
Office. Payment offinal judgments rendered by a State or
foreign court or tribunal against the United States, or
against its agencies or officials upon obligations or liabili­
ties of the United States, shall be made on settlements by
the General Accounting Office after certification by the
Attorney General that it is in the interest of the United
States to pay the same.
3 GAO itself takes this position, stating that the requirement of certification by the Comptroller General
“is an essentially ministerial function and does not contemplate review of the merits of a particular judg­
m ent B-129227 (Dec. 22, 1960); see also 22 Comp. Dec. 520 (1916), 8 Comp Gen 603, 605 (1929) " GAO
Manual, supra note 2, at 12-2. Indeed, w e believe that were the requirement of certification to be other
than a ministerial function it would raise serious questions under the Supreme Court’s holding in
Bowsker v. Synar, 478 U.S. 714 (1986) (Congress cannot constitutionally assign to the Comptroller
General, an arm of Congress, the duty of executing the laws)
4Two other provisions authorize the payment of final judgments in specific types of cases, viz , 28
U.S.C. § 2517 (authorizing the payment of final judgments rendered by the United States Claims Court
against the United States); and 31 U S.C. § 1304(a)(3)(C) (authorizing the payment of final judgments
under “decisionls] of ... board[s] of contract appeals”).
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Since section 2414 encompasses “payment offinal judgments," by def­
inition it only provides for disbursements from the Judgment Fund for
judgments that are payable, i.e., judgments that, by their terms, require
the United States to pay specified sums of money to certain parties.5
Applying this principle, final judgments that impose costs on the govern­
ment, but do not require the United States to make specific cash dis­
bursements, would appear to fall outside the scope of section 2414. Thus,
for example, final judgments that required the United States to furnish
subsidized housing,6 or that required the United States to correct struc­
tural defects in housing,7 would not be eligible for payment from the
Judgment Fund (even though they might impose readily ascertainable
money costs), because they would not require the United States to make
cash payments to individuals. In sum, under our analysis, final court judg­
ments against the United States that require anything other than the
direct payment of specified sums of money may not be paid from the
Judgment Fund.8
6The legislative history of section 2414 supports this conclusion, which is drawn from the plain mean­
ing of the statute. At the time the Judgment Fund statute was originally enacted in 1956 (Supplemental
Appropnation Act of 1957, Pub. L. No 84-814, § 1302, 70 Stat. 678, 694 (1956)), section 2414 only covered
final judgments rendered by a federal district court When the first paragraph of section 2414 was revised
in 1961 to authorize the payment of judgments rendered by state and foreign courts (previously that para­
graph had only authorized the payment of federal court judgments), and the payment of settlements, the
House and Senate Judiciary Committee Reports dealing with that revision favorably incorporated by ref­
erence a Justice Department letter that discussed the use of the Judgment Fund to pay judgments. With
respect to judgments, that letter stated in pertinent part:
Prior to the enactment of the [judgment fund statute],. a large percentage of the judgments
rendered against the United States were payable only upon the enactment of specific appro­
priations legislation for that purpose The enactment of that statute has materially reduced the
administrative and legislative burdens involved in effecting the payments of judgments ... and
it has substantially shortened the interval of the time between the entry of judgments and their
satisfaction The legislation has both reduced the interest charges accruing upon judgments
against the United States and the irritations inevitably associated with the delays occasioned
by the former method of payment. The attached draft bill would .. provide a corresponding
simplification in the procedures for the payment of judgments of State and foreign courts
S. Rep No 733, 87th Cong., 1st Sess 1-2 (1961), reprinted %n 1961 U.S.C.C A N 2439, 2439; H.R. Rep. No
428, 87th Cong., 1st Sess 2 (1961).
In short, this discussion manifests an understanding that the Judgment Fund was designed to effect pay­
ments of Final judgments without the need for the enactment of specific appmpriations bills, and to pre­
vent the accnial o f interest on unpaid final judgments That understanding, which centers solely on m on­
etary judgments (judgments that previously required specific appropriations and on which interest could
accrue), supports the conclusion that the Judgment Fund is to be tapped for final judgments requiring the
United States to pay specified sums of money Our interpretation squares with both the Civil Division’s
view and the Comptroller General’s view of the legislative history. See Memorandum for Michael Jay
Singer, Assistant Director, Appellate Staff, Civil Division, from Irene M. Solet, Attorney, Appellate Staff, Re:
Possible Use o f the Judgment Fund ” For Payment o f a Settlement in Garrett v City o f Hamtramck at
2 (July 12,1988) (“Solet Memorandum”) (“Congress contemplated that the fund would be used for money
judgments"), B-193323, 1980 WL 17186 (C G ), at *3 (Jan 31, 1980) (the judgment fund was “established
for the purpose of paying money judgments against the United States”) (emphasis added)
6See Solet Memorandum, supra note 5, at 3.
7See B-193323, discussed in Solet Memorandum, supra note 5, at 2-3.
8 Judgments rendered by the United States Claims Court (which are money judgments) and by boards
of contract appeals are also specifically made payable from the Judgment Fund. See supra note 4
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B. Settlements
Several statutory provisions found in the Judgment Fund statute pro­
vide for the payment of settlements, including 28 U.S.C. § 2672 (authoriz­
ing the settlement of “any claim for money damages” against the United
States for torts committed by the employee of any federal agency while
acting within the scope of his employment); 28 U.S.C. § 2677 (authorizing
the Attorney General to “arbitrate, compromise, or settle any claim cog­
nizable under” 28 U.S.C. § 1346(b), the jurisdictional provision that allows
courts to hear tort claims for money damages against the United States);
and 31 U.S.C. § 3723 (authorizing agency heads to settle small tort claims
for damage or loss, to private property due to a federal officer’s or
employee’s negligence). In addition, the Judgment Fund is available for
the payment of the “excess of an amount payable from the appropriations
of an agency for a meritorious claim under 10 U.S.C. §§ 2733-2734”
(authorizing the Secretaries of military departments to settle tort claims
arising out of the actions of their employees, at home or abroad), 32
U.S.C. § 715 (authorizing the Secretary of the Army or the Secretary of the
Air Force to settle certain tort claims arising out of certain actions by
members of the Army or Air National Guard), and 42 U.S.C. § 2473(authorizing the NASA Administrator to settle certain tort claims arising
out of NASA’s activities). In short, 31 U.S.C. § 1304(a) contains a variety
of specific provisions authorizing the payment of a variety of tort settle­
ments from the Judgment Fund. The primary provision authorizing the
payment of settlements from the Judgment Fund, is, however, 28 U.S.C. §
2414, the third paragraph of which provides:
Except as otherwise provided by law, compromise set­
tlements of claims referred to the Attorney General for
defense of imminent litigation or suits against the United
States, or against its agencies or officials upon obligations
or liabilities of the United States, made by the Attorney
General or any person authorized by him, shall be settled
and paid in a manner similar to judgments in like causes
and appropriations or funds available for the payment of
such judgments are hereby made available for the payment
of such compromise settlements.9
In short, under the third paragraph of section 2414, compromise set­
tlements of suits against the United States, its agencies, or officials, made
by the Attorney General or any person he authorizes, “shall be settled and
9 The second paragraph of section 2414, not reproduced in this memorandum, is not relevant to the
questions addressed herein That paragraph merely specifies that the Attorney General’s decision not to
appeal a court judgment renders it final.
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paid in a manner sim ilar to judgments in like causes." (Emphasis
added.) By its very terms, this paragraph contemplates that the manner
of payment for a settlement approved by the Attorney General or his
designee turns upon the manner in which a “judgment[] in [a] like
cause[]” would have been paid. Since the term “like cause[]” is not statu­
torily defined,10and its meaning is not self-evident, we turn to the princi­
ple of statutory construction that statutory provisions “relating to the
same person or thing or having a common purpose” are in “pari materia
[and] are to be construed together,” i.e., in a consistent manner. Black’s
Law Dictionary 711 (5th ed. 1979).11 Applying this principle, we turn to
the first paragraph of section 2414 (which shares with the third paragraph
the “common purpose” of delineating the availability of the Judgment
Fund) to gain insight into the manner in which judgments are to be paid.
As previously discussed, the first paragraph makes it plain that final judg­
ments requiring the direct payment of money are payable from the
Judgment Fund, while non-money judgments must be paid from other
sources. Accordingly, it is logical to infer that the reference to the “man­
ner (of payment) similar to judgments in like causes” in the third para­
graph of section 2414 is a shorthand term for linking the payment of a set­
tlement to the payment either of a money judgment or of a non-money
judgment. Employing this logic, if the underlying “cause[]” of a settlement
could have led to a money judgment, had no settlement been reached,
then the settlement, similar to the judgment, is payable from the
Judgment Fund. On the other hand, if the underlying “cause[]” would
have led to a non-money judgment, then the settlement, similar to the
judgment, is not payable from the Judgment Fund. It therefore follows
that, in determining whether a proposed settlement is payable from the
Judgment Fund, the Attorney General or his designee should examine the
underlying cause of action, and decide whether the rendering of a final
judgment against the United States under such a cause would have
required a payment from the Judgment Fund.
10The only congressional discussion of the phrase referring to “like causes” is a brief reference in the
Senate and House Judiciary Committee Reports reiterating the plain statutory language H R Rep. No.
428, supra note 5, at 3 (“compromises effected by the Attorney General or any person authorized by him
shall be settled and paid in the same manner as judgments in like causes”), S. Rep. No 733, repnnted in
1961 U S.C C A.N. at 2441, supra note 5, at 3 (same).
11The federal courts have recognized that when statutes are in pan materia they should be construed
consistently, if at all possible See, e.g., Haig v. Agee, 453 U S. 280, 300-01 (1981) (statute making it
unlawful to travel abroad without a passport even in peacetime must be read in pan materia with —
i e., in a manner harmonious with — the Passport Act), FAIC Securities, Inc v. United States, 768
F.2d 352, 363 (D C. Cir 1985) (National Housing Act and Federal Insurance Corporation Act are in pari
materia since they share “the common purpose of insuring funds placed in depository institutions,”
and, therefore, “the two statutes .. cannot be construed to reach different results”); United States v
Stauffer Chemical Co , 684 F.2d 1174, 1184, 1188 (6th Cir 1982), cert granted, 460 U.S. 1080 (1983),
aff’d, 464 U.S 165 (1984) (provisions in pari m atena “should be given the same meaning . section 114
of the Clean Air Act and section 308 of the Clean Water Act are in pan materia, and (therefore) should
be interpreted the same way").
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Our conclusion that section 2414 only authorizes Judgment Fund dis­
bursements for settlements of causes that could have resulted in money
judgments is consistent with the historical development of the Judgment
Fund statute. When the Judgment Fund statute was enacted in 1956, only
the payment of money judgments was provided for, see supra note 5. Had
Congress wished to provide for the payment from the Judgment Fund of
all settlements when it amended the Judgment Fund statute in 1961, pre­
sumably it would specifically have so indicated. Its failure to do so sup­
ports the conclusion that in extending the Judgment Fund statute to
reach settlements, Congress believed it was only bringing within that
statute’s ambit settlements of causes that could have resulted in
Judgment Fund disbursements, had such causes resulted in final money
judgments, rather than settlements.
Finally, any conclusion that would permit the Judgment Fund to pay
out settlements in cases in which it would not pay out judgments would
provide agencies with an incentive to urge settlement of cases in order to
avoid payment from agency funds. We would not lightly attribute to
Congress an intent to create a structure that might encourage settlements
that would not otherwise be in the interest of the United States.
II. Conclusion
For the foregoing reasons, we conclude that the Judgment Fund is
available: (1) for the payment of final “money judgments” (but not “non­
money judgments”) whose payment is not “otherwise provided for”; (2)
for the payment of tort settlements covered by statutory provisions listed
in 31 U.S.C. § 1304(a); and (3) for the payment of non-tort settlements
authorized by the Attorney General or his designee, whose payment is
“not otherwise provided for,” if and only if the cause of action that gave
rise to the settlement could have resulted in a final money judgment.
DOUGLAS W. KMIEC
Assistant Attorney General
Office of Legal Counsel
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