*1 America, UNITED STATES of Appellant,

v. for the Use OF MARYLAND

STATE Appellees. Mary al., Jane MEYER et America,

UNITED STATES of Appellant,

STATE OF MARYLAND for the Use of al., Vance Lewman BRADY et Appellees.

Nos. 18677. Appeals

United States Court of

District of Columbia Circuit.

Argued Nov. 1964.

Decided March Rehearing

Petition for Banc En April Denied Rose, Attorney, Depart- Mr. David L. Danaher, Judge, Circuit dissented. Atty. Justice, ment of Asst. with whom Messrs, Gen., Douglas, C. John David W. Acheson, Atty., Hol- and Morton U. S. Justice, lander, Attorney, Department of brief, appellant. Mr. Q. Nebeker, Atty., U. also Frank Asst. S. appellant. appearance entered an *2 694 Galiher, Washington,

Mr. Richard W. We think this order must be reversed C., Davidson, except D. and Mr. Louis G. Chica- as to interest on the award of go, III., Supreme $175,000 of the of the bar Court Brady. to Vance Lewman yro Illinois, vice, special hac leave appellee Each other than Vance Lew- court, with whom Mr. William E. man recovered a sum less than Jr., Stewart, C., Washington, D. $100,000; and each failed to take brief, appellees. steps necessary in that situation to ob Before and Fahy, Burger, Danaher prompt payment. tain Each is accord Judges. Circuit ingly precluded recovering interest, from against which is not recoverable Judge: FAHY, Circuit except United States as authorized statute or contract. United States v. Maryland, In United v. State of Goltra, 203, 207, U.S. 61 S.Ct. U.S.App.D.C. 259, 322 F.2d provided L.Ed. 776 It is in denied, cert. 2411(b) (1958) except U.S.C. § (1963), 11 L.Ed.2d 314 affirmed a (a), otherwise in subsection judgment of the District Court in favor which calls for interest in certain in appellees under Tort Federal stances per at the rate of per six cent Act, (1946) Claims Ch. Stat. annum, judgments interest on final (codified in U. various sections against the United States entered under S.C.). copy pertinent parts A of the the Federal Tort Claims Act shall be judgment Appen is set in forth computed per at per the rate of four cent opinion, dix to this from it which will be judgment annum up from the date of seen that it contains several individual exceeding but thirty days not after the money awards.1 any date appropriation act payment judgment; Appellees moved in the District but 31 (Supp. V, 1959-63)2 U.S.C. 724a require pay Court to the United States to partially provisions. overrides these judgment. interest on the The court appropriates granted payment, for the motion, ordering, not sums provided, otherwise of final “the require motion to defendant against a district court the United pay judgments, interest on in ac- * * * “not in excess of provisions cordance with the of Title any case,” one provided that as to a 2411(b), United States judgment 2411(b) ap to which Section hereby Code Annotated be and is plies, payable granted, which is from defendant, and the appropriation, America, paid States of be and shall be hereby pay judg- “only directed to from the date of the cases, ments entered in these two transcript thereof the General Ac together interest, which shall counting Officeto the date of the mandate computed at the rate of * * 4% of affirmance *.” judg- annum from the date of the transcript in this up to, ments but not case was not filed the General Account- thirty days ap- the date of ing Office, that, except proval appropriation as to pro- Vance act viding payment Brady, Lewman award of interest ments.” was erroneous unless the ren- grew airplane 1. The ease itself out of an est were then are here the survivors Maryland resulting collision over named in the pilot co-pilot. death of the The sur separate vivors sued in two actions which 2. This was Section 1302 of the Supplemental Appropriation consolidated for trial in the District Act of Appellee Court. name is the State of 70 Stat. and was amend- Maryland; but the real in inter- ed Stat. 416 Act, a re- is to be considered tained under the Tort Claims dered awaiting prompt one case.” “in excess of ceive without special appropriation, Appellees contend that there is re- a obligation oc- for each deaths which case curred, lieve the United States of the separate 1, supra, interest, paying note bad conscience or of a group doing so, of survivors for each as it were for while the *3 They point principal to the unpaid. of excess remains As 3 Wrongful legislative which purposes Death Act of appear from brought requires Cong., history H.R.Rep.No.2638, that the “action shall be 84th Mary- by Hay- (1957); name of and the the State 2d Sess. 72 and see Harue person persons Chicago, Comp.Gen. ; ashi, (1960) land for the use of the 40 307 damages,” States, recov- entitled to the amount Rock & United Island Pac. R. R. v. among F.Supp. (S.D.Ia.1962). ered to be divided These 206 795 damages, than purposes by permitting entitled to not more and each are served respect of lie “one action shall for and and individual who recovers a severable subject complaint.”4 the same matter of distinct amount not in excess of paid under Each to be 724a. Section statute, The how- Federal specific such claimant has a and severable applied ever, is be construed and Each award final according purposes own mean- to its a therefore considered award be ing. necessarily The is not any judgment “in that ex- one case” as “in be construed as only one case” because pression is used in statute. Each filed death was action each more individual thus awarded no $100,000 than according Maryland re- This law. complied could have with quirement purpose has no transcript a liability United related to the ment; en- have been each would then purpose re- is States interest. Its the inter- titled to receive litigation in lated to the convenience of 724a; and each est authorized Maryland. paid. have Harue indeed would been See Judgment any one case” “in Hayashi, supra at 309. necessarily suit does not mean in one law regard position appellees not devoid The is without character support; our con- problem of for the result of as it bears on the language give re- is that an who struction individual interest. should We it, special meaning, a covers must await if the bear a words will during period appropriation, in- purposes of the which carries out which accumulates, though in- terest while the several not the literal even meaning case whose dividuals in the same over-all aggregate of the words considered when Shirey, $100,000 are exceed United v. recoveries isolation. States paid 255, 260-261, 3 the further attention without 359 79 S.Ct. U.S. Congress. Frankly, a (1959); do not have we L.Ed.2d States Trucking Ass’ns., perfectly a clear solution. American however, reach, The better solution L.Ed. Congressional plan, purposes the Federal stat carries out the The obvious language a one who has ute are to enable lends itself well used enough Moreover, not in ob- excess there to that end. Maryland’s require Tort refers The Federal Claims Act conflicts refer- rules specifically law to “the where other ence to state’s rules. act or omission U.S.C. occurred.” 28 1346(b) Ann., Richards v. United Md.Code Art. 4§ brought U.S. L.Ed. S.Ct. that be action 2d held the Act refers the name of the State of body state to the whole law of the has been eliminated a amend- occurrence, including (Supp.1964). its conflict of ment. Art. suggested No one laws rules. has appear policy no considerations Ordered outweigh operate which those which Meyer Mary Jane recover of the de- take. favor of the view we fendant United States America the $85,000.00, sum of

When the District Court ordered “Mary Meyer Jane recover of the defend- Jeffrey Meyer, Paul recover of the $85,000.00”, sum ant United States defendant United America the States example, separable there arose $25,000.00, sum of 724a, pay- final under Section Lynn Meyer of the de- Susan recover upon affirmance, able to her notwith- fendant United of America the standing-that same document en- $30,000.00, sum of “Judgment” titled awards were made in de- Pamela Ann recover of the aggregate exceeding $100,- an amount of America the fendant United States 000.00. $30,000.00; sum of and it is further *4 urges Jr., The United as Canfield, Ordered That Austin F. all, including Brady, Lewman Ancillary Vance of the Estate Administrator of interest could not recovered in Meyer, Paul of the defend- Frank recover event because neither of of ant United America the sum States of the District Court nor our of $1,000.00, and it is further affirmance for interest. We Ordered That disagree with this 28 U.S.C. contention. Brady Vance recover of the Lewman 2411(b) explicitly provides for interest America defendant United States of on such final as are here in $175,000.00, sum of $100,000.00. volved if in excess of Brady award Virginia Lewman Brady Vance was recover of the defend- $100,000, excess of so 724a does ant America the sum of United States of coverage her remove case from the of $35,000.00, 2411(b). 28 U.S.C. an Act of Where Brady, Jr., of Kendall recover Jesse Congress speaks the absence of America defendant United States of provision interest $38,000.00, it is further sum of itself, affirmance, or in the mandate of ****** does not render ineffective. Jr., Canfield, Austin F. Ordered emphasize We that we are concerned Ancillary of the Estate Administrator judgment, not, with interest after as in Brady, of Kendall recover Jesse Briggs Pennsylvania R., R. 334 U.S. of America the defendant United States 1039, (1948), 92 L.Ed. S.Ct. $1,000.00, further sum and it is prior with the allowance of interest ****** judgment. Washington Nor re is In & Georgetown R., R. (1891), controlling, 35 L.Ed. 339 Judge (dissent- DANAHER, Circuit explicit statutory since it involved no ing) : The District entered its Court Mary Meyer, Reversed as to Jane Paul After ment on December Jeffrey Lynn Meyer, Meyer, Susan Pam- affirmed, court had the District Court Meyer, Canfield, Jr., ela Ann F. Austin April order entered its further Virginia ancillary administrator, as awarding interest at the rate Brady, Brady, Jesse Kendall Jr. original cent from the date of the Brady. Affirmed as to Vance Lewman “up to, but not days thirty date of after the Appendix any appropriation act for the

Judgment judgments.” The total Meyer hearing, having case was This cause come on for the awards among day it is this the several 6th allocated December original Meyer judg- broken down beneficiaries into individual awards to ment, great separate case, with no one award as as In claimants. the other Brady $100,000. case The awards was No. State single aggregated $249,000 plaintiff award with a for the use of members Brady Brady family, Lewman Vance with individual awards payable $249,000. with lesser amounts to other sur- which total There was My colleagues 6, 1961, judgment, vivors. amounts treat December respective separate respective apportion- of the individual awards to with the though Meyer Brady survivors as each was the result ments to the individual separate they of a reverse “case.” Thus claimants. except the District Court’s 1964 order When for the use of the suit recognize insofar as the award Brady like for the survivors Vance Lewman to be valid since it pursuant commenced to Article sec- myself was in I find excess of tion 4 of the Annotated Code of reversal, unable to in a our differ- concur (1957), death actions for having respect ence arisen with brought only required name to be construction of 31 724a U.S.C. § in behalf State amended, 694 (1956), as Stat. the dece- various named beneficiaries of Stat. Maryland’s 1962 dent. Even under legislation perti- In that and as here amendment of section 4 (Ann.Code Congress nent, appropriated “such sums Md., only one (Supp.1964)), Art. 4§ necessary” pay- hereafter be may have such action will lie. Those who *5 judgments, ment of certain final as certi- right to refuse to become but by Comptroller General; fied the it was bringing a do so are excluded from subse- simply “housekeeping” a fiscal quent action on own State their account. apply judg- only intended to to Bashe, Md. to Use Through ments of less than 19 A. L.R.A. Congress sought mechanism, pro- such Wrongful own statute2 Our Death procedure whereby per vide a some 98 provides “[e]very shall such action that judgments against cent of final rendered brought by name of the be and in the might the Government be satisfied ”* * * personal representative the

through Comptroller action the Gen- expressly held This has decedent. court eral, with to run thereon “requirement is the statute that the from the date of the the tran- unambiguous language.”3 plain in script of a final in the Gen- Accounting eral Office to the date of the an action It is fundamental that mandate of affirmance.1 wrongful unless a not lie death does Congress to itself final reserved con- “use” provides. the Since respect per sideration to the cent parties, if plaintiffs mandatory are judgments (not of “final in excess of all,4 they the are bound are to sue at * * * case)” in Conversely the when entered. legislation which virtue of the single bringing redounds of a action beyond power Comptroller the the alleged advantage feasor tort satisfy. problem General to Our derives necessity of spared the who thus will be from the fact in that No. 18676 the State Nothing defending multiple suits. contrary plaintiff was 17(a) in “one case” Fed.R.Civ.P. is here; necessary for the use of the The respect claimants. of the result there amounted to accorded effect be indeed whatever 1. Certain additional limitations need not 2. D.C.Code 16-1202 § pertinent now be mentioned as not here. Embrey, App.D.C. 3. Harris v. speaking only F.2d We are aris ing under 4. Ibid. the Federal Tort Claims Act. €98

pressly tion claims clusive death.” dictional dure, ized to does 171 which 28 U.S.C. § the Rule subject the District Courts shall our statute of 6 (Footnote added.) held that against jurisdiction bring modify prescribes in situations where a 1346(b) (1965) provides an action for the United States substantively, arises, repeal of civil actions provisions tort party claims “specifica- have have ex- the Rule author- of ch. proce- juris- ex- whose behalf the action versely, living federal tained are ^[*] of the use class as named statute, respect could be made. devolve Thus, if Thus the ^[*] ^[*] ” statutes, supra, upon no there mandatory plaintiffs.10 Meyer action, like the claim for members of the classes the Government.9 were no same Obviously, under the no wrongful subject might main- living liability members matter would death Con- negligence brought only death suit, caused as it could have been Government “under circumstances where brought accordance with —in private person, the United if a Maryland. case.” was “one law would be liable to claimant in ac- $100,000.11 final exceeded The cordance law of where Therefore the District Court the order of the act or omission occurred.” correctly provided “be for interest provides 28 U.S.C. computed per centum at rate of 4 shall be liable tort up 1961] annum from [December claims “in the same manner and to the days thirty to, but not private same extent as a individual under any appropriation the date of * * like circumstances *.”7 payment of the Act Maryland statute, Article sec- 2411(b). ment.” 28 U.S.C. § amended, explicit: supra, tion I would affirm. only “one action shall lie for and in plaintiffs. 20. Those Cf. Fed.R.Ctv.P. provides 5. D.C.Code 16-1202 possessing were involved the latter status “Every brought such action shall be *6 Comp- considered personal rep- and in the name of the Hayashi opinion, 40 troller General person resentative such deceased a, Decs-Comp-Gex. he where claims, less than ruled that each 219, Braden, U.S.App.D.C. 6. Paris v. might judgment-creditor children 220, 40, 234 F.2d administratively. opin- processed to Rev.L.Hawaii ion referable The latter section continues permits caused, action for 246-2 which an case wherein if death was under maintained either death to be “the law of or where act representative legal complained the decedent’s omission of occurred” recov- damages punitive And of kin. the enumerated next erable ture, are na- Hayashi, States v. Harue United States shall be liable for 11, compensatory damages. n. A.L.R. F.2d text and actual or 1960). (9 2d 754 Cir. history 8. For the judg State, Conrad, 11. It makes no difference that see McKeon v. to Use of apportioned ment was as was 211 Md. 127 A.2d 635 running statute instead of Maryland, 9. See State of of Burk to Use Mary nominally in favor of the State of States, hardt v. United 165 F.2d land for the use benefit of the several (4 1947) ; Young 1 A.L.R.2d 213 Cir. cf. participate. individuals Cf. entitled U.S.App.D.C. v. United United States v. South Carolina State 184 F.2d 21 A.L.R.2d 1458 Highway Dept., (4 171 F.2d Cir. 1948). is obvious from the record before us dealing permissive that we are not