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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. S. 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. sec. 203). Morgenthau v. Fidelity & Deposit Co. of Maryland (App. D. C., 1937), 94 F. (2d) 632.

A postal employee's agreement that his monthly checks were to be held by treasurer of corporate payee of note executed by employee for monthly payments on note was not

claims against the United States were void, notwithstanding that treasurer knew when loan was made that an assignment of a claim against the United States was invalid unless certain formalities were complied with. 31 U. S. C. 203. Richmond Postal Credit Union v. Booker (Va., 1938), 195 S. E. 663.

* * And it shall be the

702. Claims under exhausted appropriations.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. S. 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 19, 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 he 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 sued without its consent, and Congress has absolute discretion to specify cases and contingencies in which liability of government may be determined by courts.

One seeking to sue United States must show that his case is clearly within terms of

statute in which government consents to be sued.

Congress may impose new conditions upon which consent of United States to be sued is granted. Butler et al. v. Carney (D. C., 1936), 17 F. Supp. 133.

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 subpoena for any witness being within the jurisdiction of such court, to appear at a time and place in the subpoena 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. S. C. 94.

Witnesses subpœnaed 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. S. C. 95.

If any witness, after being duly served with such subpœna, 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 subpoena ad testificandum issued by such court. R. S. 186; 5 U. S. C. 96.

In addition to the authority conferred by this section, like provision was made for the issue of subpoenas 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. S. 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. S. C. 227.

Notes of Decisions

In general. As the effect of the act of 1875 was to take away the discretion which accounting officers previously had in exercising the right of set-off and to require them to make set-offs in respect to both judgments and claims, so now the effect of the amendment of March 3, 1933 (47 Stat. 1516), is to restore the discretion of exercising the setoff right with respect to claims and to limit the duty of making set-offs to judgments. (1933) 37 Op. Atty. Gen. 215.

Interest. This section as amended authorizes interest only on "final judgments" against the Government, payment of which has been withheld to apply as set-off in payment of alleged claims in favor of the Gov

ernment. The amendment is not retroactive, and interest on duly allowed claims other than final judgments is allowable up to the date of the amendment. Whitbeck, Receiver, v. U. S. (1933), 77 Ct. Cl. 309.

The amendment of this section limiting, to final judgments only, interest on allowed claims against the Government the payment of which has been erroneously withheld to apply as a set-off in payment of claims in favor of the Government, is not retroactive, and interest is recoverable on a duly allowed claim other than a judgment up to the enactment of such amendment, March 3, 1933.

The Act of March 3, 1933, 47 Stat. 1489, did not repeal but merely amended the Act

of March 3, 1875. The plaintiff's claim for interest is a claim arising under the 1875 Act, and is therefore within the jurisdiction of the court.

A statute should not be given a retrospective effect unless such clearly and unequivocally appears to have been the legislative intent in its enactment. Chicago, I. & L. Ry. v. U. S. (1933), 78 Ct. Cl. 96.

recover not only the amount of its claim but also interest thereon in accordance with this section. Allis-Chalmers Mfg. Co. v. U. S. (1934), 79 Ct. Cl. 453.

Where United States wrongfully withheld from seller payments for merchandise sold to War and Navy Departments to offset amount due against claimed but nonexistent indebtedness due United States, seller held entitled to interest on amounts due at 6 percent per annum during time payments were wrongfully withheld (31 U. S. C. A. 227). Reynolds Tobacco Co. v. U. S. (1936), 82 Ct. Cl. 545.

Where the Comptroller General, under the act of March 3, 1875, as amended, withheld

certain contracts with the Government to satisfy an erroneous claim against the contractor under another contract with the Government, the contractor is entitled to interest on the money so withheld from him. Edwards v. U. S. (1937), 84 Ct. Cl. 615.

Interest on an allowed claim against the Government, other than a judgment, payment of which has been withheld by the Comptroller General as a set-off against an erroneous claim by the Government, is allowable only up to March 3, 1933. Detroit, T. & I. R. R. Co. v. U. S. (1934), 79 Ct. Cl. 227. Where the Comptroller General refuses pay-payment of money due a contractor under ment of a claim admittedly due the contractor under one contract, setting off against it a claimed indebtedness of the contractor to the Government under another contract, which claim of indebtedness is held invalid by the court, the contractor is entitled to 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 and the Netherlands Government concerning the price to be paid to the Netherlands Government for war materials taken over by the United States in 1917, which were to be furnished to a foreign government, is within the

out of the agreement to adopt as a basis for ascertaining just compensation the costs of the supplies in lieu of the market value is within the scope of this section. (1932) 36 Op. Atty. Gen. 547.

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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