BNUMBER:  B-259065
DATE:  December 21, 1995
TITLE:  Judgment Fund and Law Enforcement
Seizure Claims

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Matter of:Judgment Fund and Law Enforcement Seizure Claims

File:     B-259065

Date:December 21, 1995
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DIGEST

1.  As a general principle, the Judgment Fund, 31 U.S.C.  1304, is 
available to pay monetary awards arising from the government's failure 
to return seized property or to return such property in good 
condition.  The fact that a court orders an award in response to a 
request for the exercise of equitable authority does not render the 
Judgment Fund unavailable to cover the award.

2.  This Office will certify for payment from the Judgment Fund, 31 
U.S.C.  1304, litigative awards under the Federal Tort Claims Act, 28 
U.S.C. ch. 171, that arise from seizures of property by law 
enforcement officials, as described in 28 U.S.C.  2680(c), and are 
referred by the Department of Justice. 

3.  Litigative awards against the United States for the return of cash 
(or other property converted to cash) credited to the Justice 
Department's Asset Forfeiture Fund, 28 U.S.C.  524, must be paid from 
that fund, not from the Judgment Fund, 32 U.S.C.  1304.
______________________________________________________________________
DECISION

This decision addresses the use of the Judgment Fund, 31 U.S.C.  
1304, to pay litigative and administrative awards arising from the 
loss of cash or the loss or damage to personal property while in the 
government's custody as a result of law enforcement activities.[1]  
The typical factual setting of the awards before us involved loss of 
or damage to cash or property seized by law enforcement officers.  
These seizures were incident to the arrest and detention of a person 
suspected or convicted of violating the law, or because the property 
was forfeited as the "fruit" of criminal activities, or because law 
enforcement officers regarded the property as tainted or illegally 
imported or exported.  In virtually every case, the claimant initially 
sought return of the seized property, and later settled for or was 
awarded the payment of money in substitution for the property.  Among 
the authorities cited by the courts and agencies in making these 
awards are the Administrative Procedure Act (APA), 5 U.S.C.  702, 
704, Rule 41(e) of the Federal Rules of Criminal Procedure, the Tucker 
Act, 28 U.S.C.  1346(a), 1491, and the Federal Tort Claims Act 
(FTCA), 28 U.S.C. ch. 171.

The awards in question here present three issues.  First, are monetary 
awards that result from the exercise of a court's equitable authority 
to order the return of seized cash or property, such as the APA, 
payable from the Judgment Fund?  Second, may FTCA awards on claims 
that appear to be within the scope of that act's exception for 
seizures of money or property by law enforcement officers, 28 U.S.C.  
2680(c), be paid from the Judgment Fund?  Third, where a court has 
ordered a monetary award in an action to secure the return of money 
(or property which has been converted to cash) deposited into the 
Justice Department's Asset Forfeiture Fund, is that award payable from 
the Judgment Fund or the Asset Forfeiture Fund?  

We conclude that the Judgment Fund is available for payment of 
monetary awards which result from requests for exercise of a court's 
equitable power to order the return of property.  We also believe that 
the Judgment Fund is available to pay monetary awards ordered under 
the FTCA even if they appear to fall within the scope of the exception 
stated in section 2680(c), so long as they are final litigative awards 
or the Justice Department, in the exercise of its authority to 
supervise the various agencies, advises that it has approved the 
agencies' administrative allowance of such claims.  However, the 
Judgment Fund may not be used to pay awards that represent the refund 
of moneys deposited into the Asset Forfeiture Fund.  The Asset 
Forfeiture Fund must bear the burden of those awards.

DISCUSSION

Monetary Awards Made Under Equitable Authorities

The Judgment Fund is a permanent, indefinite appropriation.  31 U.S.C.  
1304.  It is used to pay most litigative and many administrative 
awards against the United States.  Generally, the Judgment Fund is 
available if the award:  (1) is "final," (2) has been made under one 
of the authorities specified in section 1304(a)(3), and (3) is "not 
otherwise provided for."  31 U.S.C.  1304(a).  See also 28 U.S.C.  
2414, 2517.

This Office has long viewed the Judgment Fund as available only to pay 
specific monetary damage awards, as distinguished from the costs of 
complying with injunctive orders.  Typically, a monetary damage award 
directs the government to pay a sum certain as damages to the 
claimant, while an injunction orders the government to do or refrain 
from doing certain acts.  Of course, an award of injunctive relief, 
nevertheless, does cost the government a determinable amount of money; 
the expenses of obeying the court's commands can be estimated or 
quantified.  However, Congress did not intend the consequential 
expenses of complying with the injunctive orders of a court to be 
payable from the Judgment Fund.  70 Comp. Gen. 225, 228 (1991); 69 
Comp. Gen. 160, 162 (1990).  The Justice Department's Office of Legal 
Counsel (OLC) concurs in this view.  13 Op. Off. Legal Counsel 118, 
119 (1989).

The basis for this distinction can be seen in the legislative history 
of the Judgment Fund.  As OLC noted in 13 Op. Off. Legal Counsel 118 
(1989), the legislative history underpinning the Judgment Fund 
statutes:

     "manifests an understanding that the Judgment Fund was designed 
     to effect payments of final judgments without the need for the 
     enactment of specific appropriations bills . . .  That 
     understanding, which centers solely on monetary judgments 
     (judgments that previously required specific appropriations . . 
     .) supports the conclusion that the Judgment Fund is to be tapped 
     for final judgments requiring the United States to pay specified 
     sums of money."  Id. at 121-22 n.5 (underscoring omitted).

From this, OLC concluded that: 

     "by definition, [the law] only provides for disbursements from 
     the Judgment Fund that are payable, i.e., judgments that, by 
     their terms, require the United States to pay specified sums of 
     money to certain parties.  [Judgments] that require anything 
     other than the direct payment of specified sums of money may not 
     be paid from the Judgment Fund."  Id. (underscoring omitted).  

Some of the awards at issue here resulted from the courts' exercise of 
equitable authorities, the APA for example.  As a general principle, 
the courts resort to the exercise of equitable authority only where 
traditional remedies at law, i.e., money damages, are either 
unavailable or inadequate to do justice to the plaintiff's cause.  27 
Am. Jur. 2d Equity  87 (1966).  Consequently, the courts acting in 
equity do not usually order the payment of sums of money in 
compensation for damages suffered.  Id.,  106, 112.  Here, however, 
we are confronted with instances where a court, acting under equitable 
authorities, orders the government to make payment of money to 
compensate for loss of or damage to private property.[2]  For example, 
the APA allows claims against the United States for "relief other than 
money damages,"   5 U.S.C.  702, but the Supreme Court concluded that 
this does not foreclose monetary awards as an APA remedy.  Bowen v. 
Massachusetts, 487 U.S. 879, 910 (1988).[3] 

We have not previously addressed whether, for purposes of the 
availability of the Judgment Fund, we should treat "equitable" 
monetary awards such as these the same as traditional money damage 
awards.  While the consequential cost of taking specific action to 
comply with an equitable order is clearly not payable from the 
Judgment Fund,[4] we see no reason to treat monetary awards made under 
equitable authorities differently from other monetary awards.  
Certainly, the relief granted by these awards differs fundamentally 
from the relief conferred under the traditional exercise of equitable 
authority, where a particular act is ordered, or forbidden, to be 
performed.  Although the courts rendered some of the awards at issue 
here as monetary "damages" and others as "injunctive relief," the 
effect of the awards is the same.  In either case, the courts have 
ordered the government to disburse money to restore to the claimant 
the value of what he or she lost at the government's hands.  
Accordingly, to the extent that monetary awards made under equitable 
authorities otherwise satisfy the statutory criteria governing use of 
the Judgment Fund, those awards should be paid in the same manner as 
other monetary awards against the United States.

FTCA Awards

The second issue is whether an award under the Federal Tort Claims Act 
(FTCA) for money damages for property seized by law enforcement 
officials that is either lost or damaged may be certified for payment 
from the Judgment Fund.  The FTCA waives sovereign immunity for any 
claim for money damages caused by the negligent or wrongful act of a 
federal employee while acting within the scope of his duties under 
circumstances where a private employer would be liable under 
applicable state law.  These awards can be made by the courts, by the 
Justice Department in compromise settlements of actual or imminent 
litigation, or by government agencies in administrative settlements 
rendered under the supervision of the Attorney General.  28 U.S.C.  
1346(b), 2672, 2677.  All litigative FTCA awards and those 
administrative FTCA awards in excess of $2,500 are to be paid "in a 
manner similar to judgments and compromises in like causes."  28 
U.S.C.  2672.  The Judgment Fund's statute adds that it is generally 
available to cover awards "payable under . . . [the FTCA]."  31 U.S.C.  
1304(a)(2)(A). 

Many of the FTCA awards at issue here resulted from attempts to obtain 
orders compelling the return of property that was found to have been 
seized improperly.  Upon discovering the loss of or damage to this 
property, courts have awarded monetary damages.  Unlike monetary 
awards made in response to requests for injunctive relief, awards 
under the FTCA are monetary awards in the strictest sense and, so long 
as the applicable criteria of the Judgment Fund statute are otherwise 
met, may be certified for payment from the fund.  Questions concerning 
the availability of the fund arose because of the FTCA's exception to 
the waiver of sovereign immunity for 

     "[a]ny claim arising in respect of . . . the detention of any 
     goods or merchandise by any officer of customs or excise or any 
     other law-enforcement officer."  28 U.S.C.  2680(c).

In Kosak v. United States, 465 U.S. 848 (1984), the Supreme Court held 
that section 2680(c) precluded recovery under the FTCA against the 
United States for damage to a serviceman's art collection sustained 
during temporary detention of the property by the Customs Service.  
Some courts and administrative agencies have attempted to limit 
application of section 2680(c) and the Kosak decision to seizures by 
the Customs Service, as opposed to seizures by other law enforcement 
officers.  E.g., Kurinsky v. United States, 33 F.3d 594 (6th Cir. 
1994); Formula One Motors, Ltd. v. United States, 777 F.2d 822, 825 
(2d Cir. 1985) (Oakes, J., concurring).  Others have given this 
exception a broader application based on the broad reference in 
section 2680(c) to "law enforcement officers."  E.g., Halverson v. 
United States, 972 F.2d 654 (5th Cir. 1992), cert. denied, 113 S. Ct. 
1297 (1993); Garnay, Inc. v. M/V Lindo Maersk, 816 F. Supp. 888 
(S.D.N.Y. 1993)(criticizing Mora v. United States, 955 F.2d 156 (2d 
Cir. 1992)).  

This Office has no authority to review the merits of a given award or 
to take unilateral action to correct a real or perceived error of fact 
or law.  B-124720, B-129346, Sept. 23, 1981.  Once a court makes an 
award there are only two alternatives.  The authorized representatives 
of the United States may either contest the judgment through 
appropriate judicial channels, or comply with it as written.  Id.  
Once all rights of appeal have been exhausted in any particular case, 
or it has been decided to forego appeal, the court's decision becomes 
final, which is also to say conclusive and binding upon the government 
and the Judgment Fund process.  Similarly, compromise settlements of 
actual or imminent litigation that are negotiated by the Justice 
Department are conclusive and binding on the Judgment Fund process.  
28 U.S.C.  2414 (compromise settlements are payable in the same 
manner as judgments on like causes of action).  With regard to 
administrative settlements of claims, the FTCA specifically vests in 
the Attorney General authority to supervise such resolutions by 
agencies.  28 U.S.C.  2672, 2677.  See also 28 C.F.R. pt. 14 (Justice 
Department FTCA regulations).  Agency dispositions of FTCA claims that 
comply with the Justice Department's supervision and regulations[5] 
are also conclusive and binding on the Judgment Fund process.  

Our role under section 1304(a)(3)(A) is to assure, insofar as relevant 
here, that the award is payable under the FTCA.  This role is largely 
ministerial.  Once we establish that an award has been made under the 
FTCA and that that award has become final, our inquiry concerning 
payability under the FTCA is at an end.[6]  Consequently, the 
applicability of section 2680(c) to any award which has become final 
is not relevant to our processing of awards under section 1304. 

Refund Awards

The final issue involves whether the Justice Department's Asset 
Forfeiture Fund must pay awards which represent the return of cash (or 
property converted to cash) which has been deposited into that fund as 
the result of a law enforcement seizure that is later overturned by 
the courts.  This fund is available without fiscal year limitation for 
use at the discretion of the Attorney General for a wide variety of 
expenses and purposes.  Included among the allowable discretionary 
purposes are "equitable sharing payments" to other federal, state, and 
local law enforcement agencies.  With only a few exceptions, the fund 
receives all amounts from the forfeiture of property under any law 
enforced or administered by the Justice Department.  28 U.S.C.  524.  
This fund is administered by the Executive Office for Asset Forfeiture 
(EOAF).  

EOAF argues that the Asset Forfeiture Fund is not legally available to 
pay refund orders because there is nothing in the fund's authorizing 
legislation which expressly allows it to be used for that purpose.  On 
the contrary, because of the nature of a refund, no such authorization 
is necessary.  Refunds are intended to return to the claimant cash (or 
the cash value of property) that was received by the agency. Agencies 
are prohibited from retaining or using moneys that they receive unless 
such is expressly allowed by law.  E.g., 31 U.S.C.  3302(b).  
Consequently, orders to refund monies deposited to the credit of a 
fund other than the general fund of the United States Treasury are 
normally paid from the fund so benefitted, rather than from the 
Judgment Fund.  61 Comp. Gen. 224 (1982); 17 Comp. Gen. 859, 860 
(1938).  Refunds are necessarily "otherwise provided for" within the 
meaning of section 1304(a)(1).  B-257131, May 30, 1995; B-197742, Aug. 
1, 1986.  To allow payment in such instances from the Judgment Fund, 
instead of requiring payment from the fund that was benefitted, would 
permit the receiving agency to augment the sums made available to it 
by Congress.  72 Comp. Gen. 164, 165-66 (1993).  On the other hand, 
where the agency has credited the amount it received to the general 
fund of the Treasury or where the agency disgorges what it received, 
there is no augmentation.  In this context, once the agency returns to 
the claimant as much as it received, the remaining claim for loss or 
damage to the property is not a refund, but rather money damages.

In support for its position, EOAF cites Chief Justice Rehnquist's 
concurring opinion in Republic National Bank of Miami v. United 
States, 113 S. Ct. 554, 562-63 (1992).  In Republic, a bank was 
seeking to recover property seized and forfeited as the fruit of 
illegal activities engaged in by an otherwise unrelated borrower.  The 
property at issue (a house) was sold at auction and the proceeds were 
deposited into the Justice Department's Asset Forfeiture Fund.  The 
issue before the Supreme Court was whether the deposit of the sale 
proceeds into the Treasury deprived the lower courts of the "in rem" 
jurisdiction over the property necessary to resolve the underlying 
claim for the value of the forfeited house.  The Court ruled it did 
not.  Id. at 562.  In his concurring opinion, the Chief Justice noted 
that the proceeds might be retrieved from the Treasury without an 
express appropriation for that purpose, but added that it was 
unnecessary "to plow that uncharted ground here," since he believed 
payment could also come from the Judgment Fund.  Id. at 563.  

We do not find this comment dispositive.  Other Justices expressed 
differing views,[7] and the Court did not resolve this aspect of the 
matter because its resolution was not necessary to decide the case 
then before the Court.  Instead, the Court simply noted, neither 
approving nor disapproving, that this Office "has long assumed that, 
in certain situations, an erroneous deposit can be corrected without a 
specific appropriation."  Id. at 561.  See also Id. at 562 (similar 
observation made in footnote to the Chief Justice's concurring 
opinion).  

EOAF argues, additionally, that it is often not practical to return 
the funds and property received by the Asset Forfeiture Fund because, 
once it exercises its discretion to share a portion of the assets of 
its fund with other federal, state, and local law enforcement 
authorities, it is difficult to convince the recipients of that aid to 
return it.  Although we understand EOAF's concerns, these difficulties 
do not alter the fact that, by virtue of the court's order or the 
agreement of the parties, the distributed assets do not belong to the 
government and are not properly creditable to or distributable from 
the fund.  Distribution of those amounts to other law enforcement 
agencies cannot legitimize the fund's previous retention or usage of 
them. 

/s/Robert Murphy
for Comptroller General
of the United States

1. This decision responds to inquiries from the Torts Branch of the 
Justice Department's Civil Division, the Executive Office for Asset 
Forfeiture (EOAF), the Drug Enforcement Administration (DEA), the 
Customs Service, and the Office of the United States Attorney for the 
Eastern District of New York.

2. See, e.g., Gallerstein v. United States, Civ. No. 91-1277-S, USAO 
No. 9120651 (S.D. Cal., Mar. 22, 1993), Z-2924526 (APA, 5 U.S.C.  
702, 704); United States v. $207,112.29, Civ. No. M-91-249 (S.D. Tex., 
Jan. 20, 1994), Z-2935508 (Rule 41(e) of the Federal Rules of Criminal 
Procedure); United States v. Articles of Food, No. 92-C-5507, (N.D. 
Ill., Nov. 19, 1993), Z-293133 (Tucker Act, 28 U.S.C.  1491(a)(2), 
(3)). 

3. While recognizing that normally neither equity nor the APA 
authorize "money damages" against the government, the Court 
distinguishes between "money damages" and "money judgments."  The 
latter, the Court maintains, are allowed under equity and the APA when 
they represent "injunctive" or "specific" relief.  Bowen v. 
Massachusetts, 487 U.S. at 891-901.  See also, e.g., Zellous v. 
Broadhead Associates, 906 F.2d 94, 96-99 (3rd Cir. 1990).

4. See, for example, 69 Comp. Gen. 160 supra, in which an agency, 
ordered to develop and implement measures to remedy past 
discriminatory practices, entered into a court-approved agreement 
requiring the agency to pay a specified amount to cover both the 
government's and the plaintiff's anticipated costs in fashioning the 
court-ordered remedy.  This agreement did not convert the court's 
award of injunctive relief into a monetary award payable from the 
Judgment Fund.  Id. at 162.  See also 52 Comp. Gen. 175 (1972) (Civil 
Service Retirement Fund); B-236414, Feb. 22, 1991 (military Survivor 
Benefit Plan).  

5. Agencies are required by Justice's regulations to obtain the 
department's approval before allowing any claims under the FTCA which 
present new precedent, points of law, or policy issues.  28 C.F.R.  
14.6(d) (1994).  

6. Consistent with requests by the Torts Branch of the Department of 
Justice's Civil Division, prior to certifying payment from the 
Judgment Fund, we refer to that Office any claims administratively 
allowed which appear to fall within the scope of section 2680(c) but 
do not appear from the record to have been previously approved by the 
Justice Department staff responsible for litigating this issue.

7. Justice Blackmun (writing for a minority in this regard) rejected 
the Chief Justice's suggestion that payment could be made from the 
Judgment Fund.  He claimed that "funds held in the Treasury during the 
course of an ongoing in rem forfeiture proceeding can[not] properly be 
considered public money" since the purpose of such proceedings is to 
determine the ownership of the funds at issue.  Id. at 561.  From this 
he posited that a "formal appropriation" is not required to secure the 
return of such funds.  Instead, he cited 28 U.S.C.  2465 which 
requires the prompt return of seized property upon the entry of 
judgment for the claimant in any proceeding to condemn or forfeit that 
property.  While acknowledging that it "is hardly standard language of 
appropriation," he had "difficulty imagining how an 'appropriation' of 
funds determined upon appeal not to belong to the United States could 
ever be more specific."  Id. at 560-61.  He added that mandating 
payment from the Judgment Fund in such situations would be 
"problematic" and would improperly augment the Asset Forfeiture.  Id. 
at 560-61 n.6.  Justice White argued in his concurring opinion that 
the issue of what source to pay a possible, future award was not ripe 
for consideration and should not be addressed.  Id. at 564.  Several 
additional opinions were filed by other Justices.  Id. at 565-66.