filed a cross-appeal on January 22, 1992, challenging the court's calculation of damages. In an order dated December 7, 1992, the Third Circuit affirmed the district court in all respects, without opinion.
Following the affirmance, plaintiff obtained certified copies of the judgment and the orders of this court and the Third Circuit, which he then filed with the Comptroller General of the United States with a request for payment.
In a decision dated February 16, 1993, the Comptroller General advised plaintiff that he would not be awarded post-judgment interest, citing plaintiff's failure to comply with 31 U.S.C. § 1304.
Plaintiff received a check from the Comptroller General on March 9, 1993 in the amount of $ 682,367.00, the amount of the judgment, exclusive of post-judgment interest.
Plaintiff then filed the motion currently before this court (Record Document No. 89) seeking an order directing the United States to pay post-judgment interest from June 28, 1991 to March 8, 1993. The United States opposes the motion on the ground that post-judgment interest is recoverable from the federal government only if the prevailing plaintiff complies with all requirements of 31 U.S.C. § 1304, and then only for the period between the entry of judgment and the day before affirmance on appeal or notification by the Department of Justice (DOJ) that it does not intend to appeal the award. The United States asserts that plaintiff is not entitled to post-judgment interest under section 1304, because he did not notify the Comptroller General of the judgment until after that office had already been notified by the DOJ that a final judgment had been entered and it had no intention of filing a further appeal and requested that the judgment be paid.
Plaintiff concedes that he did not file the judgment with the Comptroller General before that office received notification and a request for payment from the DOJ, as provided for in section 1304, but argues that that statute does not apply to judgments entered in a FTCA action.
For the reasons discussed below, plaintiff's motion will be denied. We find that: 1) section 1304 governs the award of post-judgment interest against the United States in an FTCA action; 2) plaintiff did not file the judgment with the Comptroller General before that office was notified of the Third Circuit's affirmance by the DOJ; 3) under section 1304, post-judgment interest accrues only from the date the Comptroller General is notified of the judgment until the day before it receives notice that the judgment has been affirmed and that no further appeals will be taken; and 4) not having notified the Comptroller General until after the interest period had expired, plaintiff is not entitled to post-judgment interest.
"Interest is recoverable against the United states only when expressly provided for by statute." Hull v. United States, 971 F.2d 1499, 1506 (10th Cir. 1992), cert. denied, 123 L. Ed. 2d 469, 113 S. Ct. 1844 (1993), citing Library of Congress v. Shaw, 478 U.S. 310, 314, 92 L. Ed. 2d 250, 106 S. Ct. 2957 (1986). Section 1304 permits an award of post-judgment interest against the United States under certain conditions.
Because it operates as a waiver of sovereign immunity, section 1304 is strictly construed, and its requirements must be followed to the letter. See: United States v. Nordic Village, 117 L. Ed. 2d 181, 188, 112 S. Ct. 1011 (1992);
and Shaw, supra, 478 U.S. at 318.
As stated above, plaintiff argues that section 1304 should not apply to him because its application is inconsistent with the FTCA. Plaintiff argues that applying section 1304 to FTCA cases would place the United States on a different-footing than other tort defendants, in contravention of the FTCA mandate set forth in 28 U.S.C. § 2674 that the United States shall be liable for tortious conduct to the same extent as a private individual under like circumstances.
Plaintiff argues that section 2674 requires that post-judgment interest be awarded under the statute applicable to judgments entered against private civil litigants, 28 U.S.C. § 1961(a). Under section 1961(a),
post-judgment interest begins accruing automatically from the date judgment is entered. No action is required on the part of the judgment creditor for interest to begin accruing.
Section 1304 unquestionably applies to a judgment entered against the United States in an FTCA action. Hull, supra, 971 F.2d at 1508-09. Plaintiff's argument that its application is inconsistent with the FTCA, 28 U.S.C. § 2674, has been rejected by other courts. See: Lucas v. United States, 807 F.2d 414, 423 (5th Cir. 1986) (Fifth Circuit rejected plaintiff's argument that interest should accrue against the United States in an FTCA action in the same manner as it accrues against private citizens). Section 1304 supersedes section 2674. To the extent the two are inconsistent, section 1304, being the more specific statute, prevails. Radzanower v. Touche Ross & Co., 426 U.S. 148, 153-57, 48 L. Ed. 2d 540, 96 S. Ct. 1989, (1976) (In statutory construction, a specific statutory provision usually takes precedence over a general one.)
Plaintiff's argument is also invalidated by the provisions of section 1961(b). By its own terms, section 1961(b), which governs the interest accrual period, does not apply to judgments against the United States.
Section 1961(b) specifically excludes actions governed by 31 U.S.C. § 1304(b) from its accrual period provisions, stating:
Interest shall be computed daily to the date of payment except as provided in . . . section 1304(b) of title 31, and shall be compounded annually.
28 U.S.C. § 1961(b) (Emphasis supplied.) See: United States v. Wilson, 926 F.2d 725, 728 (8th Cir. 1991). Section 1961 applies in actions against the United States for the purpose of determining the rate of interest only. 28 U.S.C. § 1961(a).
Thus, it is clear that section 1304 determines the period of interest accrual on judgments against the United States under the FTCA, and that plaintiff can prevail on his claim for post-judgment interest only to the extent it permits such an award. Section 1304 permits a prevailing FTCA plaintiff to recover interest only for the period during which the judgment is on appeal, Desart, supra, 947 F.2d at 872, and then only from the date on which a transcript of the judgment is filed with the Comptroller General "through the day before the data of the mandate of affirmance" or notification by the DOJ that it will not appeal the award. Cardillo by Cardillo v. United States, 767 F.2d 33, 34 (2d Cir. 1985). Interest does not begin to accrue until the judgment is filed with the Comptroller General. Moyer v. United States, 612 F. Supp. 239, 241 (D.C.Nev. 1985).
Here, the relevant facts are undisputed. MacDonald did not file certified copies of the judgment and court orders with the Comptroller General until January 29, 1993, after that office had been notified by the DOJ of the Third Circuit's affirmance. Because plaintiff's judgment was not filed until after the Comptroller General received notice of affirmance and a request for payment from the DOJ, post-judgment interest never began to accrue. Plaintiff is entitled to recover the amount of the judgment only, and his motion for post-judgment interest will be denied.
James F. McClure, Jr., United States District Judge
ORDER - June 15, 1993, Filed
June 15, 1993
For the reasons set forth in the accompanying memorandum, IT IS ORDERED THAT:
Plaintiff's motion (Record Document No. 89) to compel payment of post-judgment interest is denied.
James F. McClure, Jr., United States District Judge