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4.

United States Attorney General Opinion, January 30, 1879

16 U.S. Op. Atty. Gen. 259

COMPROMISE OF CLAIMS OF THE UNITED STATES.

[259] Under section 3469 Rev. Stat., the Solicitor of the Treasury may properly recommend the acceptance of a compromise offered in discharge of a claim of the United States before judgment, where the defendant is able to pay the amount of the claim, but where the district attorney advises acceptance upon the ground that, from what of evidence to establish the facts on which a verdict must depend, he doubts his ability to obtain a judgment. This case distinguished from that considered in the opinion of January 8, 1879 (see infra).

Although the case may belong to that class of cases for relief in which special provisions are found in the act of June 22, 1874, chap. 391, yet this does not prevent an application for compromise thereof being made under the more general provision in section 3469 Rev. Stat.

Hon. KENNETH RAYNER

Solicitor of the Treasury.

SIR:

Your letter of the 21st instant suggests that a former letter had not given fully the questions which you desired to submit to the Department, and that therefore the opinion rendered on the 8th instant did not meet all the matters which you had intended.

You now inquire whether under section 3469 of the Revised Statutes the Solicitor of the Treasury is authorized to recommend to the Secretary of the Treasury the acceptance of a compromise offered in discharge of a claim of the United States before judgment, where the proponent is fully able to pay the entire amount claimed, but in which case the district attorney recommends the acceptance upon the ground that [260] he doubts his ability to obtain a judgment, and expressly states that his doubts are based upon the want of evidence to establish the facts upon which a verdict must depend.

Section 3469 is a general section, relating to all claims in favor of the United States not elsewhere specifically provided for. The former letter from this Department expressed the opinion that under that section, where the defendant was entirely solvent, it was not the duty of the Solicitor of the Treasury to recommend a compromise upon the ground that circumstances of hardship existed affecting the defendant. It assumed that the United States was able fully to prove its claim, and merely determined that compromise ought not to be recommended because it was hard to enforce the claim.

The present inquiry, however, presents the additional fact that it is uncertain whether or not the Government can prove its case. There is therefore this distinct element in the case upon which a compromise can properly be made, resulting from the uncertainty in which the Government is placed as to its ability to obtain a verdict; and in such case it seems to me that a compromise may properly be recommended, not upon the ground that the case is a hard one as against the defendant, but upon the same ground upon which contested claims are often compromised by parties, in view of the uncertainty as to their obtaining a judgment.

It is not possible to give a definite standard by which the Solicitor should be guided in compromising claims. Among other things, however, to be taken into consideration, are the probability of obtaining a verdict and the probability of collecting the claim after a verdict is obtained. This probability may be greater or less in the various cases submitted to the Solicitor, and there is no rule that can guide him except his sound judgment as a lawyer upon the facts which are reported to him.

In rendering this opinion I have not found it necessary to consider the provisions which are made in the various parts of the statutes for a remission of fines, penalties, and forfeitures, or in mitigation or compromise of the same. Those are affected, of course, by the special provisions which relate to them. Your inquiry only discusses the general law which is embraced in the section 3469. If the case immediately before [261] us is one (as I infer from your letter it may be) relating to a forfeiture, while special provisions are made for relief in such cases, which are to be found in section 17 et seq. of the statute of June 22, 1874, yet those special provisions would not, in my opinion, prevent the party from applying, if he desired so to do, under the more general provision of section 3469 of the Revised Statutes.

Very respectfully, your obedient servant,

CHAS. DEVENS.