B-168623, JUN. 19, 1970

B-168623, JUN. 19, 1970

TO FRANCIS L. CLARK, JR; M.D.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 5, 1970, REQUESTING CLARIFICATION OF OUR DECISION OF FEBRUARY 17, 1970, B-168623, SUSTAINING OFFICE SETTLEMENT DATED NOVEMBER 14, 1969, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT OF A FEE OF $120 FOR PSYCHIATRIC EVALUATION IN THE CASE OF RAY E. SULLIVAN, CORPORAL, USMC.

YOUR LETTER REQUESTS AN ACCURATE STATEMENT OF THE GOVERNMENT'S POSITION IN THE MATTER OF EMPLOYMENT OF EXPERT WITNESSES IN COURT MARTIAL PROCEEDINGS, YOUR REQUEST APPARENTLY HAVING REFERENCE TO SUCH EMPLOYMENT WHEN NOT IN CONFORMITY WITH THE PROVISIONS OF THE MANUAL FOR COURTS- MARTIAL. YOU SAY THAT THIS STATEMENT WILL BE USED IN A SUMMARY YOU HAVE BEEN ASKED TO PREPARE FOR DISSEMINATION AMONG PSYCHIATRIC GROUPS. YOU ALSO INDICATE THAT A NUMBER OF PSYCHIATRISTS AND OTHER PHYSICIANS FEEL THAT THE GOVERNMENT'S POSITION WHICH PURPORTS TO BE IN THE INTERESTS OF ECONOMY IS ACTUALLY BASED ON THE DESIRE OF THE MILITARY TO DISCOURAGE CIVILIAN CONSULTATIONS IN COURT-MARTIAL PROCEEDINGS.

YOU REFER TO OUR DECISION IN WHICH WE STATED, QUOTING FROM THE COURTS MARTIAL MANUAL, THAT EITHER THE PROSECUTION OR DEFENSE ATTORNEYS COULD HAVE REQUESTED AUTHORIZATION FOR PAYMENT OF EXPERT WITNESS FEES. YOU CONTEND THAT FROM THE TRANSCRIPT OF YOUR DEPOSITION THERE SHOULD BE NO QUESTION AS TO YOUR STATUS AS AN EXPERT WITNESS. ALSO, THAT A DONATION OF YOUR SERVICES COULD NOT HAVE BEEN CONSIDERED SERIOUSLY UNDER THE CIRCUMSTANCES IN THE CASE. AND YOU SAY THAT THE ATTORNEYS, THE CONVENING AUTHORITY OR OTHER COURT-MARTIAL OFFICIALS, TO YOUR KNOWLEDGE NEVER RAISED THE QUESTION WHETHER AUTHORIZATION HAD BEEN OBTAINED FOR YOUR SERVICES.

YOU CONTEND FURTHER THAT THE REFERENCE TO LEGAL NOTICE OF FEDERAL REGULATIONS AS THE BASIS OF OUR REJECTION OF YOUR CLAIM, CITING FEDERAL CROPS INS. CORP. V. MERRILL, 332 U.S. 380 (1947), WAS A "WHITE WASH APPROACH" TO YOUR CASE, SINCE YOUR CONTACTS WITH GOVERNMENT AGENCIES WERE WITHOUT KNOWLEDGE OF THEIR RULES, REGULATIONS AND PROCEDURES.

YOU ALSO REFER TO THE ADMINISTRATIVE STATEMENT THAT CORPORAL SULLIVAN SHOULD HAVE PAID THE DEBT. HOWEVER, YOU SAY THAT THE MARINE CORPS HAS NOT FORWARDED ANY INFORMATION AS TO THE MEMBER'S WHEREABOUTS OR FURNISHED ANY OTHER ASSISTANCE IN THE COLLECTION OF THE DEBT.

AT THE TIME OF RECEIPT OF YOUR CLAIM, OUR FILES CONTAINED VERY LITTLE INFORMATION CONCERNING YOUR SERVICES OTHER THAN AS STATED IN THE LETTERS SUBMITTED WITH YOUR CLAIM. AN ADMINISTRATIVE REPORT FURNISHED AT OUR REQUEST STATED THAT THERE WAS NO RECORD OF YOUR SERVICES HAVING BEEN OBTAINED IN ACCORDANCE WITH REGULATIONS GOVERNING THE EMPLOYMENT OF AN EXPERT WITNESS. IN OUR DECISION DATED FEBRUARY 17, 1970, B 168623, WE CITED THE PERTINENT REGULATIONS WHICH PROVIDED IN SUBSTANCE THAT IN THE ABSENCE OF AN AUTHORIZATION BY PROPER AUTHORITY TO EMPLOY AN EXPERT WITNESS, NO FEES MAY BE PAID TO AN INDIVIDUAL FOR SUCH SERVICES. THEREFORE HELD THAT SINCE NO AUTHORIZATION WAS OBTAINED AS SPECIFICALLY REQUIRED BY THE REGULATIONS, THERE IS NO AUTHORITY FOR THE PAYMENT OF THE FEE CLAIMED.

ON THE BASIS OF YOUR REQUEST FOR RECONSIDERATION OF YOUR CLAIM, WE OBTAINED A FURTHER REPORT DATED MAY 13, 1970, FROM THE OFFICE OF THE STAFF JUDGE ADVOCATE, MARINE CORPS BASE, QUANTICO, VIRGINIA. THE REPORT STATED THAT THE ADMINISTRATIVE RECORDS SHOW THAT WHILE CAPTAIN POST WAS APPOINTED DEFENSE COUNSEL FOR RAY E. SULLIVAN, HE WAS ONLY THE ASSISTANT DEFENSE COUNSEL IN THE CASE. THE CHIEF DEFENSE COUNSEL WHO WAS RETAINED BY CORPORAL SULLIVAN WAS A CIVILIAN ATTORNEY, MR. JOHN ELLIS, A MEMBER OF THE BAR OF VIRGINIA AND PREVIOUSLY IDENTIFIED AS A MEMBER OF THE LAW FIRM OF SCHWARTZ, ELLIS AND LIPSEN.

THE REPORT STATED FURTHER THAT THE ACCUSED WAS AFFORDED A PSYCHIATRIC EXAMINATION DURING THE PERIOD APRIL 11 TO 22, 1968, BY A PSYCHIATRIST AT THE U.S. NAVAL HOSPITAL, BETHESDA, MARYLAND, PRIOR TO THE COURT MARTIAL. THE EVALUATION MADE AT THAT TIME AS WELL AS A TRANSCRIPT OF YOUR TESTIMONY GIVEN AT GEORGETOWN UNIVERSITY, BECAME PART OF THE COURT MARTIAL PROCEEDINGS. IT INDICATED THAT YOUR TESTIMONY WAS RECEIVED AND ACCEPTED AS THAT OF AN EXPERT WITNESS. THE REPORT STATED THAT AT THE INTERVIEW AT GEORGETOWN UNIVERSITY THE MILITARY TRIAL AND DEFENSE COUNSEL WERE PRESENT AND ASKED YOU QUESTIONS, THE INFORMATION THEN BEING TRANSCRIBED BY A COURT REPORTER FOR INTRODUCTION AT THE TRIAL. IT WAS STATED THAT THIS WAS AN INFORMAL PROCEDURE AND NOT IN THE FORM OF A DEPOSITION.

THE REPORT INDICATED THAT THERE IS NOTHING IN THE RECORD OF THE TRIAL OR ALLIED PAPERS TO INDICATE THAT THE DEFENSE COUNSEL (CIVILIAN OR MILITARY) MADE ANY ATTEMPT TO REQUEST AUTHORIZATION FOR YOUR EMPLOYMENT EITHER AS AN EXPERT OR A NON-EXPERT WITNESS. IT STATED FURTHER THAT IT IS DOUBTFUL WHETHER SUCH A REQUEST, IF MADE, WOULD HAVE BEEN APPROVED, IN VIEW OF THE LENGTHY EVALUATION AND COMPLETE PSYCHIATRIC REPORT PREPARED AT THE NAVAL HOSPITAL.

THE RECORD BEFORE US DOES NOT SHOW WHY A REQUEST WAS NOT MADE FOR AN AUTHORIZATION TO EMPLOY YOU AS AN EXPERT IN THE COURT-MARTIAL PROCEEDINGS, BUT SINCE IT IS NOW REPORTED THAT CORPORAL SULLIVAN HAD ALREADY UNDERGONE AN EXTENSIVE PSYCHIATRIC EXAMINATION AT THE BETHESDA NAVAL HOSPITAL, IT MAY BE THAT THE DEFENSE COUNSEL CONSIDERED THAT SUCH A REQUEST, IF MADE, WOULD HAVE BEEN DENIED. HOWEVER, FROM THE STATEMENTS YOU MADE PREVIOUSLY AS WELL AS THOSE IN THE ADMINISTRATIVE REPORT, IT APPEARS TO HAVE BEEN THE UNDERSTANDING OF THE MILITARY DEFENSE COUNSEL THAT THE DEFENDANT, RAY E. SULLIVAN, WAS PERSONALLY RESPONSIBLE FOR THE PAYMENT OF THE FEE FOR YOUR SERVICES.

THE FACT THAT THE TRANSCRIPT OF THE INTERVIEW WITH YOU AT GEORGETOWN UNIVERSITY WAS INTRODUCED IN THE COURT-MARTIAL PROCEEDING AS EXPERT TESTIMONY DOES NOT PROVIDE AUTHORITY FOR THE PAYMENT OF YOUR FEES. PREVIOUSLY STATED, PARAGRAPH 116 OF THE MANUAL FOR COURTS-MARTIAL SPECIFICALLY REQUIRES THAT TO SUBSTANTIATE PAYMENT OF FEES OF EXPERT WITNESSES BY THE GOVERNMENT IN COURT-MARTIAL PROCEEDINGS, THE APPLICATION FOR THE EMPLOYMENT OF SUCH WITNESSES MUST BE APPROVED BY THE COURT-MARTIAL CONVENING AUTHORITY IN ADVANCE OF THE EMPLOYMENT UPON A STATEMENT BY COUNSEL OF THE NECESSITY THEREFOR AND THE PROBABLE COST.

SUCH AUTHORIZATION IS NOT GIVEN AS A MERE MINISTERIAL ACT, BUT THE PARAGRAPH APPARENTLY CONTEMPLATES THAT THE AUTHORIZATION WILL BE GIVEN, OR DENIED, IN THE PROPER EXERCISE OF DISCRETION BY THE CONVENING AUTHORITY. IN THE ABSENCE OF A PREVIOUS AUTHORIZATION, PARAGRAPH 116 PROVIDES, AS PREVIOUSLY POINTED OUT, THAT NO FEES OTHER THAN ORDINARY WITNESS FEES ARE AUTHORIZED FOR THE EMPLOYMENT OF AN INDIVIDUAL AS AN EXPERT.

ANY STATEMENTS THAT MAY HAVE BEEN MADE TO THE EFFECT THAT THE MARINE CORPS WOULD BE RESPONSIBLE IF CORPORAL SULLIVAN DID NOT PAY FOR YOUR SERVICES WERE MADE OUTSIDE OF THE SCOPE OF THE AUTHORITY OF THE PERSONS MAKING SUCH STATEMENTS AND, IN OUR OPINION, PROVIDE NO BASIS FOR THE PAYMENT OF YOUR CLAIM.

OUR OFFICE IS GOVERNED BY THE RULE STATED BY THE MAJORITY OF THE SUPREME COURT IN FEDERAL CROPS INS. CO. V. MERRILL, CITED IN OUR PREVIOUS DECISION. IT IS BASED ON THE PRINCIPLE THAT THE UNITED STATES MAY ACT ONLY THROUGH ITS AGENTS, I.E; ITS OFFICERS AND EMPLOYEES AND THAT THE GOVERNMENT IS NOT BOUND BY THE ACTS OF ITS AGENTS MADE BEYOND THE SCOPE OF THEIR AUTHORITY. THE COURTS HAVE TAKEN THE POSITION THAT THOSE DEALING WITH THE GOVERNMENT, WHICH INCLUDES ITS EMPLOYEES, ARE CHARGEABLE WITH NOTICE OF STATUTORY AND REGULATORY LIMITATIONS ON THE AUTHORITY OF GOVERNMENT AGENTS, OFFICERS, OR EMPLOYEES TO OBLIGATE THE FUNDS OF THE UNITED STATES.

SECTION 307 (NOW SECTION 1507) OF TITLE 44, U.S.C. PROVIDED AT THE TIME INVOLVED THAT THE PUBLICATION OF RULES AND REGULATIONS IN THE FEDERAL REGISTER, AS REQUIRED BY SECTION 305 OF THAT TITLE, INCLUDING EXECUTIVE ORDERS OF GENERAL APPLICABILITY, GIVES LEGAL NOTICE OF THEIR CONTENT. THE COURT-MARTIAL MANUAL, 1951, WAS PROMULGATED BY EXECUTIVE ORDER NO. 10214 OF FEBRUARY 8, 1951, AND PUBLISHED IN THE FEDERAL REGISTER, 16 F.R. 1303. HENCE, THE FACT THAT YOU WERE NOT FAMILIAR WITH THE REGULATIONS SET FORTH IN PARAGRAPH 116 GOVERNING THE EMPLOYMENT OF EXPERTS DOES NOT EXEMPT YOU FROM THEIR RESTRICTIONS.

INASMUCH AS THE RECORD ESTABLISHES THAT THERE WAS NO AUTHORIZATION BY THE GOVERNMENT FOR YOUR EMPLOYMENT AS AN EXPERT WITNESS, THERE IS NO BASIS FOR PAYMENT OF YOUR FEE AS AN EXPERT FOR THE SERVICES RENDERED. ACCORDINGLY, WE HAVE NO CHOICE OTHER THAN TO AFFIRM OUR DECISION OF FEBRUARY 17, 1970.

WITH RESPECT TO YOUR REQUEST FOR INFORMATION AS TO THE PRESENT WHEREABOUTS OF RAY E. SULLIVAN, IT IS SUGGESTED THAT FURTHER INQUIRY BE MADE TO THE MARINE CORPS HEADQUARTERS, WASHINGTON, D.C; FOR SUCH INFORMATION. ALSO, IT MAY BE THAT MR. JOHN ELLIS WHO WAS EMPLOYED AS THE MEMBER'S COUNSEL MAY HAVE INFORMATION EITHER AS TO THE ADDRESS OF THE MEMBER HIMSELF OR HIS HOME OF RECORD.