« PreviousContinue »
on the ground that the transaction under which this amount became due to you was separate and distinct from that under which the liquidated damages arose. Also, you stated that the claim of the Government for the additional liquidated damages under contract No. W-1096-eng-3857, still was unsettled. Accordingly, you requested that the facts surrounding the two claims be reviewed. Pursuant to your request the claims were reviewed and former Comptroller General Fred H. Brown, in decision to you dated September 15, 1939, held that the assessment of liquidated damages under contract No. W-1096-eng-3857 was correct, and that the collection of the additional sum of $150 due to the United States was proper. said decision of September 15, 1939, constituted a final adjudication of the matter insofar as the General Accounting Office is concerned. About 19 months thereafter there was received your letter of June 22, 1941, in which you requested review of the settlement of May 5, 1936, supra. However, the request for review was denied for the reason that the records showed that the claim had been considered fully by former Comptroller General Brown and that no authority existed for the review by me of the action taken.
Your letter of August 20, 1941, requesting further consideration of the matter, is as follows:
I have the honor to acknowledge receipt of your letter of August 19th, 1941, in the above-entitled claim, as follows:
"Reference is made to your letter of June 22, 1941, requesting review of settlement, dated May 5, 1936, which disallowed the claim of the Truscon Steel Company, Youngstown, Ohio, in the amount of $2,650, for remission of liquidated damages deducted from payments under contract No. W-1096-eng-3857, dated March 13, 1935, covering delivery of 22 million galvanized wire staples to the U. S. Engineer Depot, New Orleans, Louisiana.
"The records of this office show that at the time the claim was filed the claimant alleged that the application of the liquidated-damage clause resulted in the imposition of a forfeiture of penalty; that the matter was considered under the personal supervision of Comptroller General McCarl, who instructed the Claims Division of this office to disallow the claim and charge the contractor with $150 as liquidated damages accrued but not deducted on disbursing officers' vouchers; and that, following the collection of the sum of $150 by offset and the receipt of a protest of such action from the claimant, Comptroller General Brown, under date of September 15, 1939, advised claimant that such action was authorized by law.
"Since the matter appears to have been fully considered by my predecessors in office, and, since you have submitted no new material evidence which would appear to justify any modification of the conclusion heretofore reached, your request for review must be, and is, denied. See 16 Comp. Gen. 51; id. 118."
We did not know until the above-quoted letter was received that this claim had been considered by Comptroller General McCarl who signed an interoffice memorandum directing the Claims Division of your office to charge the contractor with $2,800 as liquidated damages for delays in completing the contract of March 13, 1935, and we insist that the action so taken does not preclude you from reviewing the settlement and correcting it for error of law. The certificate of settlement itself provides for review of the settlement and the regulations published in 1 Comp. Gen. 775, 776, prescribe the procedure for reviews and there is reserved in said regulations the right of the Comptroller General to review a settlement at any time, upon the presentation of proper facts in a particular case. The fact which we have presented in this case is,
that the settlement is erroneous for failure to follow both the decisions of your office and of the courts.
An interoffice memorandum in a particular case, signed by the Comptroller General, is not such a settlement as the claimant may appeal from, particularly when the claimant has no notice thereof and the Constitution itself, in the Fifth Amendment, provides that private property may not be taken for public use, without due process of law.
The $2,800 in this case was and is the private property of the Truscon Steel Company and represents a part of the contract price for material delivered under contracts with the United States. Among the elements of "due process of law" within the terms of the Constitution of the United States, is the right to be heard. In Washington ex rel Oregon River and Navigation Company v. Fairchild, 224 U. S. 510, it is held that the hearing which must precede the taking of private property is not a mere form but the owner must have the right to secure and present evidence material to the issue under investigation, must be given the opportunity by proof and argument to controvert the claim asserted against it before a tribunal, bound not only to listen, but to give legal effect to what has been established.
Further in Interstate Commerce Commission v. Louisville & Nashville Railroad Company, 227 U. S. 88, it is held that there is no due process even in a hearing where the owner does not know what evidence is offered or considered and is not given an opportunity to test, explain or refute. The Supreme Court of the United States thrice reversed the case of Morgan v. United States in 298 U. S. 468, 304 U. S. 1 and 307 U. S. 183, because a full and fair hearing was not accorded in that case.
We repeat that your office has, in effect, taken $2,800 of the money and property of the Truscon Steel Company and that Company has not had any hearing whatever with respect thereto, except possibly as to the item of $150 which was considered by former Comptroller General Brown on September 15, 1939, though he apparently grounded his action on the prior interoffice memorandum, whose date has not been given in the above quoted letter, signed by former Comptroller General McCarl. In other words the letter of June 22nd, 1941, appears to have been the first request of the Truscon Steel Company for a hearing as to at least $2,650 deducted from amounts otherwise due the Company and in the above quoted letter of August 19th, 1941, you have refused such a hearing on the merits because of the interoffice memorandum by Comptroller General McCarl, as to which the company had no notice until the above quoted letter. It is submitted that in the interest of justice, this Company is now entitled to a full and fair hearing by you and upon such a hearing you would undoubtedly follow the established decisions of your office, that it is illegal for the departments of the Government to prescribe the same rate of liquidated damages for delay in delivery of a few staples as for delay in delivery of 22 million staples; that is the decision in 16 Comp. Gen. 548, 551, as well as the court decisions referred to therein and numerous other unprinted decisions of your office.
The Statute of Limitations has run against the presentation of $2,650 of this claim to the Court of Claims and unless you will grant relief in this case, the Company will be compelled either to apply to the Congress for the passage of a private relief bill or to institute appropriate proceedings to test out the question whether your office has the right to withhold the private property of the Company without granting a full and fair hearing and giving "legal effect to what has been established."
With reference to your contention to the effect that you have not been granted a full hearing in the settlement of your claim, which you allege is erroneous, and that the refusal to review and correct said settlement constitutes a taking of your property without due process of law in violation of the fifth amendment to the Constitution of the United States, it may be said that the claim was considered by this office pursuant to the provisions of section 236 of the Revisel
Statutes, as amended by section 305 of the act of June 10, 1921, 42 Stat. 24, which provides as follows:
All claims and demands whatever by the Government of the United States or against it, and all accounts whatever in which the Government of the United States is concerned, either as debtor or creditor, shall be settled and adjusted in the General Accounting Office.
Said act does not prescribe that any definite form of procedure is to be followed in the settlement of claims presented to this office. There is no designation as to the manner in which the claims are to be presented, the manner of hearing which is to be had on said claims, or the form of decision which a settlement of this office is to take. Moreover, there is no provision in the act, or in any other statute, for the review of settlements of this office-but, of course, the refusal of this office to allow a claim such as the one here involved does not in any way affect the right of the claimant to have his rights in the matter judicially determined by any court having jurisdiction over such claims.
Furthermore, even if the disallowance of a claim for an amount withheld by an administrative office as liquidated damages under a contract could be regarded as a depriving of property within the meaning of the fifth amendment to the Constitution, it is settled that no particular form of procedure, either in a judicial or an administrative proceeding, is necessary to constitute due process of law under the Constitution. Davidson v. New Orleans, 96 U. S. 97, 102. "The fifth amendment guarantees no particular form of procedure; it protects substantial rights." National Labor Relations Board v. Mackay Radio and Telegraph Company, 304 U. S. 333, 351. Also, see Dohany v. Rogers, 281 U. S. 362, 369, in which the Supreme Court of the United States considered due process of law under the fourteenth amendment, which is similar to the fifth amendment except that it constitutes a restricion on the powers of the various States. There the court stated that
The due process clause does not guarantee to the citizen of a state any particular form or method of state procedure. Under it he may neither claim a right to trial by jury nor a right of appeal. Its requirements are satisfied if he has reasonable notice and reasonable opportunity to be heard and to present his claim or defense, due regard being had to the nature of the proceeding and the character of the rights which may be affected by it. Reetz v. Michigan, 188 U. S. 505, 508; Hurwitz v. North, 271 U. S. 40; Bauman v. Ross, 167 U. S. 548, 593; Backus v. Union Depot Co., supra, p. 569.
With respect to the settlement of your claim the record shows, as outlined above in detail, that when the liquidated damages were deducted by the disbursing officer in making payment under the contract you were advised of such fact and the reasons therefor, namely, that the damages were deducted because of your failure to have made shipments in accordance with the schedule contained in paragraph 2 of the specifications of the contract. Thereupon, you
presented a claim for the amount so deducted and you filed a brief in which you set forth various arguments in support of your contention that the liquidated damages were not proper for deduction. The claim and the arguments submitted in support thereof were considered by the proper administrative officials of the War Department and by this office. In the settlement of this office dated May 5, 1936, disallowing your claim, you were fully advised of the reasons for such action. Therefore, it is apparent that under the circumstances you were afforded reasonable notice and reasonable opportunity to be heard upon your claim.
The cases cited in your letter of August 20, involved statutes in which Congress expressly provided for a "full hearing." In the case of Morgan v. United States, 304 U. S. 1, 18, Chief Justice Hughes stated that under a statute providing for a "full hearing" such hearing embraced not only the right to present evidence but, also, a reasonable opportunity to know the claims of the opposing party and to meet them. Examination of the record in the instant case reveals that the requirements for a "full hearing" as thus set forth by the Supreme Court of the United States were complied with in the settlęment of your claim even though no such "full hearing" was required by any statute applicable thereto. In other words, you were notified of the reason why the liquidated damages were deducted and you were afforded ample opportunity to present, and you did present, complete and detailed arguments as to why you deemed the position of the Government was erroneous. Your claim and the arguments in support thereof were considered and appraised both by the administrative office and by this office before the settlement of May 5, 1936, was issued. Hence, it appears that your claim was disallowed only after you were afforded an adequate hearing such as contemplated by the due-process clause of the fifth amendment to the Constitution of the United States as construed by decisions of the Supreme Court of the United States.
With reference to your contention that you are entitled to a review by the Comptroller General of the United States, of the settlement of May 5, 1936, and that my refusal to grant such review is a denial of due process of law, your attention is invited to the fact that, as hereinbefore shown, your claim was considered by this office under authority of section 305 of the Budget and Accounting Act of June 10, 1921, supra, which provides that all claims and demands by the Government of the United States or against it shall be settled and adjusted in the General Accounting Office, and there is nothing in said act, or in any other statute, providing that settlements of claims. by the General Accounting Office are to be reviewed by the Comptroller General of the United States. Moreover, while under section
8 of the act of July 31, 1894, 28 Stat. 207, a claimant had a right of appeal from a settlement by an auditor to the Comptroller of the Treasury, it is provided expressly in section 304 of the act of June 10, 1921, supra, that the review by the Comptroller General of settlements made by the six auditors should be discontinued except as to settlements made before July 1, 1921. Accordingly, while the Comptroller General can, and under some circumstances does, review settlements of the General Accounting Office, such action is not required or specifically provided for by law, and there is no statute giving any person a vested right to have a settlement of the General Accounting Office reviewed by the Comptroller General of the United States.
Furthermore, apart from statutory provisions, you have no vested right under the fifth amendment to the Constitution to a review by me personally, as an essential element of due process of law, of the settlement here involved. The rule is well established that the United States may not be sued without its consent. See Schillinger v. United States, 155 U. S. 163; Ickes v. Fox, 300 U. S. 82, 96, and Munro v. United States, 303 U. S. 36. Consent to sue the United States is a privilege accorded; not the grant of a property right protected by the Fifth Amendment." Lynch v. United States, 292 U. S. 571, 581. Therefore, in granting to an individual permission to present a claim or to file a suit against it, the United States may prescribe the manner and extent to which the right is to be exercised. Munro v. United States, supra, at page 41. Also, see, Luckenbach Steamship Company v. United States, 272 U. S. 533, 536, wherein the court stated in pertinent part as follows:
The presentation of the case on behalf of the claimant has proceeded on the assumption that our power to review is as broad as the power of the Court of Claims to hear and determine in the first instance, and that such a review if not otherwise provided for is vouchsafed by the due process of law clause of the Fifth Amendment. But the assumption is a mistaken one. The Court of Claims is a special tribunal established to hear and determine suits against the United States on claims of specified classes. Except as Congress has con sented, there is no right to bring these suits against the United States, and therefore the right arising from the consent is subject to such restrictions as Congress has imposed. McElrath v. United States, 102 U. S. 426, 440. And, apart from the nature of these suits, the well settled rule applies that an appellate review is not essential to due process of law, but is a matter of grace. McKane v. Durston, 153 U. S. 684, 687; Andrews v. Swartz, 156 U. S. 272, 275; Kohl v. Lehlback, 160 U. S. 293, 297, 299; Reetz v. Michigan, 188 U. S. 505, 508; The Francis Wright, 105 U. S. 381, 386; Montana Company v. St. Louis Mining and Milling Company, 152 U. S. 160, 171.
Therefore, since the Congress has not provided by statute that settlements of the General Accounting Office on claims presented to it shall be reviewed by the Comptroller General of the United States, there is no basis for your contention that such review is necessary in order to insure due process of law.
Also, it is stated in your letter of August 20, that there has been no review by a Comptroller General of the action taken in the