B-167087, FEB. 17, 1970

B-167087, FEB. 17, 1970

MISCELLANEOUS--FEES FOR FURNISHING RECORDS DECISION TO INTERSTATE INVESTORS, INC; SUSTAINING DECISIONS OF JULY 25, 1969 AND OCTOBER 31, 1969, THAT FIRM IS LIABLE FOR FEES CHARGED BY INTERSTATE COMMERCE COMMISSION FOR REPRODUCTION AND CERTIFICATION OF REQUESTED DOCUMENTS.

TO INTERSTATE INVESTORS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 7, 1969, WHICH, IN EFFECT, REQUESTS REVIEW OF OUR DECISIONS OF JULY 25, 1969, AND OCTOBER 31, 1969, B -167087, TO YOU, CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $928.90.

THE AMOUNT OF $928.20 REPRESENTS THE FEES CHARGED FOR REPRODUCING AND CERTIFYING CERTAIN RECORDS OF THE INTERSTATE COMMERCE COMMISSION (ICC) FOR USE IN CONNECTION WITH THE CASE OF INTERSTATE INVESTORS, INC; PLAINTIFFS V. UNITED STATES OF AMERICA AND INTERSTATE COMMERCE COMMISSION, DEFENDANTS, TRANSCONTINENTAL BUS SYSTEM, INC; INTERVENOR,CIVIL ACTION NO. 66 CIV. 3004 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. IN OUR DECISION OF JULY 25, 1969, TO YOU, WE HELD THAT THE CHARGES LEVIED BY ICC FOR THE REPRODUCTION AND CERTIFICATION OF CERTAIN RECORDS WERE AUTHORIZED UNDER 31 U.S.C. 483A (FORMERLY 5 U.S.C. 140) AND THAT THE PROVISIONS OF 28 U.S.C. 2112 WERE NOT FOR APPLICATION. AT YOUR REQUEST WE REVIEWED THAT DECISION AND SUSTAINED IT BY OUR DECISION OF OCTOBER 31, 1969.

IN YOUR CURRENT LETTER YOU STATE THAT:

"IT IS NOT THAT 28 U.S.C. 2112 APPLIES. IT IS THAT DURING THE LEGISLATIVE HISTORY OF 28 U.S.C. 2112; IT WAS MADE CLEAR THAT THE COST OF PREPARING AND FILING WITH THE COURTS THE ADMINISTRATIVE RECORD FOR REVIEW WAS PROPERLY 'A CHARGE UPON THE FEDERAL TREASURY' * * *. THUS DESPITE THAT 5 U.S.C. 140 HAD BEEN ENACTED SIX YEARS EARLIER * * * 5 U.S.C. 140 WAS NOT CONSIDERED AUTHORITY FOR A DIFFERENT CONCLUSION * * *."

THE ACT OF AUGUST 28, 1958, PUB. L. 85-791, 72 STAT. 941, AMENDED TITLE 28 OF THE UNITED STATES CODE BY ADDING SECTION 2112 THERETO AND ALSO AMENDED VARIOUS OTHER STATUTES. SECTION 2112 IN EFFECT, AUTHORIZES THE FURNISHING OF ABBREVIATED RECORDS TO FEDERAL COURTS OF APPEAL BY FEDERAL ADMINISTRATIVE AGENCIES INCIDENT TO THE REVIEW OR ENFORCEMENT OF ORDERS OF SUCH AGENCIES BY THE APPELLATE COURTS.

MANY OF THE VARIOUS STATUTES AMENDED BY PUBLIC LAW 85-791 HAD REQUIRED ADMINISTRATIVE AGENCIES WHOSE ORDERS WERE TO BE REVIEWED BY A FEDERAL COURT OF APPEALS TO FILE A TRANSCRIPT OF THE "ENTIRE RECORD" WITH THE COURT. THESE VARIOUS STATUTES AS AMENDED BY PUBLIC LAW 85 791 PROVIDE THE RECORD MAY BE FURNISHED IN ACCORDANCE WITH 28 U.S.C. 2112. THUS, ADMINISTRATIVE AGENCIES NOW CAN FURNISH, IN MOST CASES, AN ABBREVIATED RECORD TO APPELLATE COURTS IN ACCORDANCE WITH 28 U.S.C. 2112, AND THAT WILL BE "DEEMED FULL COMPLIANCE WITH ANY PROVISION OF LAW REQUIRING THE FILING OF THE RECORD." 28 U.S.C. 2112 (A).

28 U.S.C. 2112, IN AND OF ITSELF, DOES NOT REQUIRE FEDERAL AGENCIES TO CHARGE FOR REPRODUCING AND CERTIFYING RECORDS, NOR DOES IT AUTHORIZE OR REQUIRE FEDERAL AGENCIES TO FURNISH SUCH RECORDS WITHOUT CHARGE. NOR, IN OUR OPINION, IS THERE ANYTHING IN THE LEGISLATIVE HISTORY OF 28 U.S.C. 2112 (PUBLIC LAW 85-791) WHICH MAKES IT CLEAR THAT THE COSTS INVOLVED HERE ARE PROPERLY "A CHARGE UPON THE FEDERAL TREASURY." THE SENTENCE IN WHICH THE ABOVE-QUOTED PHRASE APPEARS READS AS FOLLOWS:

"* * * THE COST OF PREPARING THE TRANSCRIPT IN NEARLY ALL CASES RESTS WITH THE AGENCY AND IS, THEREFORE, A CHARGE UPON THE FEDERAL TREASURY.

IT IS CLEAR FROM THE LEGISLATIVE HISTORY OF PUBLIC LAW 85-791, AS WELL AS FROM THE PROVISIONS OF THE STATUTE ITSELF (28 U.S.C. 2112 (D)), THAT THE CONCERN OF THE CONGRESS WAS WITH RECORDS REQUIRED TO BE FILED IN APPELLATE COURTS. ALSO, THE ABOVE-QUOTED SENTENCE INDICATES THAT THE COSTS OF PREPARING TRANSCRIPTS, EVEN FOR THE APPELLATE COURTS, DOES NOT IN ALL CASES REST WITH THE FEDERAL AGENCY. THUS, WE CANNOT AGREE WITH THE INTERPRETATION YOU PLACE ON THE PHRASE QUOTED IN YOUR LETTER. IT IS OUR VIEW THAT THE SENTENCE CONTAINING THE PHRASE YOU QUOTE REFERS ONLY TO INSTANCES WHERE A STATUTE REQUIRES THE FEDERAL AGENCY INVOLVED TO FILE A RECORD IN THE APPELLATE COURT. SEE FOR EXAMPLE 15 U.S.C. 45; 15 U.S.C. 21; 7 U.S.C. 94; 7 U.S.C. 8; 7 U.S.C. 9, 15; AND 19 U.S.C. 1641. ALSO, IN CONNECTION WITH THE MATTER, WE WOULD AGAIN POINT OUT THAT SUBSECTION (D) OF SECTION 2112 SPECIFICALLY PROVIDES THAT THE SECTION IS NOT APPLICABLE IN CASES WHERE THE PROCEEDING IS IN THE DISTRICT COURT.

THE LEGISLATIVE HISTORY OF SECTION 501 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1952, 65 STAT. 290 (31 U.S.C. 483A (FORMERLY), 5 U.S.C. 140), DISCLOSES THAT THE PURPOSE THEREOF IS TO PROVIDE AUTHORITY FOR GOVERNMENT AGENCIES TO MAKE CHARGES FOR SERVICES IN CASES WHERE NO CHARGE WAS MADE AT THE TIME OF ITS ENACTMENT, AND TO REVISE CHARGES WHERE CHARGES THEN IN EFFECT WERE TOO LOW, EXCEPT IN CASES WHERE THE CHARGE IS SPECIFICALLY FIXED BY LAW OR THE LAW SPECIFICALLY PROVIDES THAT NO CHARGE SHALL BE MADE. (PAGE 3, H. REPT. NO. 384, 82ND CONGRESS, 1ST SESS.) 48 COMP. GEN. 24 (1968).

IN ANY EVENT THERE IS NO RULE OF STATUTORY CONSTRUCTION WHICH REQUIRES THE CONCLUSION THAT THE ENACTMENT OF 28 U.S.C. 2112 EITHER DIMINISHES THE AUTHORITY OF THE ICC UNDER 31 U.S.C. 483A TO CHARGE A FEE FOR THE REPRODUCTION AND CERTIFICATION OF RECORDS OR ENTITLES A PARTY TO SAID RECORDS FREE OF COST IN DISTRICT COURT PROCEEDINGS. THEREFORE, IT IS THE OPINION OF THIS OFFICE THAT THE CHARGES LEVIED BY THE ICC FOR THE REPRODUCTION AND CERTIFICATION OF THE RECORDS INVOLVED HERE, WERE AUTHORIZED UNDER 31 U.S.C. 483A (5 U.S.C. 140) AND THEREFORE YOU ARE INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $928.90. ACCORDINGLY, UNLESS THIS AMOUNT IS RECEIVED IN THIS OFFICE FROM YOU BY RETURN MAIL, THE MATTER OF YOUR INDEBTEDNESS WILL BE REFERRED TO THE DEPARTMENT OF JUSTICE.