Citizens Bank & Trust Co. of Bloomington v. United States

240 F.2d 863, 100 U.S. App. D.C. 1, 1956 U.S. App. LEXIS 4719

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 20, 1956
• Docket: No. 12822
• Status: Published

Opinions

PER CURIAM.

Appellant complains of the dismissal of its suit against the United States filed December 4,1954, and based upon a judgment entered in appellant’s favor as of June 30, 1942. The original cause of action arose on a policy of war risk insurance. See United States v. Citizens Loan & Trust Co., 1942, 316 U.S. 209, 62 S.Ct. 1026, 86 L.Ed. 1387.

Various contentions have been made before us, chiefly concerning the statute of limitations of the District of Columbia, D.C.Code 1951, § 15-101, and the limitation contained in the World War Veterans’ Act of 1924, 38 U.S.C.A. § 445. At the outset, however, doubt appears as to whether the Government has consented to be sued on the 1942 judgment. Appellant urges that the statute making funds available for payment on insurance claims, 38 U.S.C.A. § 442, evidences congressional intention to allow the instant suit. This statute is not, however, a specific appropriation to pay a judgment already entered but is rather a designation of a fund out of which such judgments as may thereafter be entered (on insurance claims) shall be paid. Thus, this case differs from those in the Court of Claims in which suits against the United States on prior judgments have been allowed, for in each case there had been a specific appropriation after the first judgment.¹ We need not, however, decide whether an appropriation in advance of a judgment constitutes consent to a later suit upon that judgment, for in any event this suit was properly dismissed for failure to state a claim on which relief could be granted. Petitioner seeks nothing more than a reaffirmation of his first judgment. In this respect the case is similar to Hetfield v. United States, 1933, 78 Ct.Cl. 419, 422-423. There the action was dismissed both because there had been no appropriation and because plaintiff had put no question in issue other than that concluded by the prior judgment.² In appropriate cases, of course, mandamus may lie against Government officials to compel performance of their duty to honor a judgment of the present sort.³ But this suit is not brought in mandamus. It is a suit against the United States in which no issue not already litigated has been raised. That being so, we affirm the judgment of the District Court, but solely on the ground we have stated, Jones v. United States, 1955, 97 U.S.App.D.C. 81, 228 F.2d 52, and do not reach the other points in the case.

So ordered.

1 . See O’Grady’s Ex’rs v. United States, 8 Ct.Cl. 451, affirmed 1874, 22 Wall. 641, 89 U.S. 641, 22 L.Ed. 772; Eastport Steamship Co. v. United States, 1955, 130 F.Supp. 333, 131 Ct.Cl. 210; Stewart & Co. v. United States, 1930, 71 Ct.Cl. 126; Benedict v. United States, 1928, 66 ; Helvetia Milk Condensing Co. v. United States, 1933, 3 F.Supp. 662, 77 Ct.Cl. 734; Brown v. United States, 1870, 6 Ct.Cl. 171; Weld & Co. v. United States, 23 Ct.Cl. 126, affirmed 1888, 127 U.S. 51, 8 S.Ct. 1000, 32 L.Ed. 62.

2 . In each of the cases cited in note 1 there was a particular reason to justify the second suit (apart from the basic reason that the first judgment was unpaid). Thus, in Eastport and Stewart the administrative officer charged with payment was asserting a counterclaim, in Brown, O’Grady and Weld the officer had withheld from payment a deduction alleged to be improper, and in Benedict there was a dispute as to the amount of interest due on the initial judgment.

3 . Hines v. United States, 1939, 70 App.D.C. 206, 105 F.2d 85; Hammond v. Hull, 1942, 76 U.S.App.D.C. 301, 131 F.2d 23, certiorari denied 1943, 318 U.S. 777, 63 S.Ct. 830, 87 L.Ed. 1145.

1 . Since by its very terras it treats of judgments to be enforced “by execution issued tbereon,” and tie law makes no provision for issuance of execution against the Government. Cf. F.H.A. Region No. 4 v. Burr, 1940, 309 U.S. 242, 250, 60 S.Ct. 488, 84 L.Ed. 724.

2 . Hines v. United States, 1939, 70 App.D.C. 206, 214, 105 F.2d 85, 93.

3 . Agreeably to the statute, 28 U.S.C. § 2414 (1952), since the Attorney General had certified that no appeal would be taken.