B-106816, DECEMBER 21, 1951, 31 COMP. GEN. 232

B-106816: Dec 21, 1951

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PERSONAL SERVICES - APPROPRIATION AVAILABILITY - COMPENSATION OF CONSULTANT APPOINTED BY COURT ORDER AN EXPERT ENGINEERING CONSULTANT APPOINTED UNDER A COURT ORDER WHICH PROVIDED THAT TECHNICAL SERVICES WERE TO BE PERFORMED FOR AND UNDER THE SOLE DIRECTION OF THE COURT AND THAT COSTS THEREOF WERE TO BE BORNE BY THE BUREAU OF RECLAMATION. IS NOT AN EMPLOYEE OF THE BUREAU AND THEREFORE IS NOT ENTITLED TO PAYMENT FROM APPROPRIATIONS OTHERWISE AVAILABLE TO THE BUREAU FOR COMPENSATION OF EXPERTS AND CONSULTANTS. 1951: REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 16. WHICH WAS TRANSMITTED TO THIS OFFICE BY LETTER DATED NOVEMBER 30. REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED TO CERTIFY FOR PAYMENT.

B-106816, DECEMBER 21, 1951, 31 COMP. GEN. 232

PERSONAL SERVICES - APPROPRIATION AVAILABILITY - COMPENSATION OF CONSULTANT APPOINTED BY COURT ORDER AN EXPERT ENGINEERING CONSULTANT APPOINTED UNDER A COURT ORDER WHICH PROVIDED THAT TECHNICAL SERVICES WERE TO BE PERFORMED FOR AND UNDER THE SOLE DIRECTION OF THE COURT AND THAT COSTS THEREOF WERE TO BE BORNE BY THE BUREAU OF RECLAMATION, DEFENDANT IN PENDING LITIGATION, IS NOT AN EMPLOYEE OF THE BUREAU AND THEREFORE IS NOT ENTITLED TO PAYMENT FROM APPROPRIATIONS OTHERWISE AVAILABLE TO THE BUREAU FOR COMPENSATION OF EXPERTS AND CONSULTANTS.

COMPTROLLER GENERAL WARREN TO GEORGE W. HARVEY, DEPARTMENT OF THE INTERIOR, DECEMBER 21, 1951:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 16, 1951, WITH ENCLOSURES, FILE: SJ-300, WHICH WAS TRANSMITTED TO THIS OFFICE BY LETTER DATED NOVEMBER 30, 1951, FILE: 370, FROM THE ASSISTANT DIRECTOR OF PROGRAMS AND FINANCE, BUREAU OF RECLAMATION, REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED TO CERTIFY FOR PAYMENT, A VOUCHER FOR $1,251.21 COVERING COMPENSATION FOR SERVICES RENDERED AND EXPENSES INCURRED BY HERBERT H. WHEATON, FRESNO STATE COLLEGE, FRESNO, CALIFORNIA, AS AN EXPERT ENGINEERING CONSULTANT PURSUANT TO ORDERS OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA ENTERED DURING AUGUST AND SEPTEMBER 1951, IN THE CASE OF EVERETT G. RANK, ET. AL., V. JULIUS A. KRUG, ET AL., CIVIL NO. 685-ND.

IT APPEARS FROM THE RECORD SUBMITTED BY YOU THAT ON THE DAY BEFORE THE DATE SET FOR ACTIVATION OF THE INITIAL FEATURES OF THE CENTRAL VALLEY PROJECT, CALIFORNIA, SEVERAL PROPERTY OWNERS ALONG THE SAN JOAQUIN RIVER, BELOW THE FRIANT DAM, WHICH APPARENTLY IS AN INTEGRAL PART OF THE CENTRAL VALLEY PROJECT, PETITIONED THE UNITED STATES DISTRICT COURT IN A CLASS ACTION FOR A TEMPORARY RESTRAINING ORDER REQUIRING THE RELEASE OF CONSIDERABLE MORE CUBIC FEET OF WATER PER SECOND, PENDING FINAL ADJUDICATION OF THEIR CLAIMS, THAN THE OFFICIALS OF THE DEPARTMENT OF THE INTERIOR BELIEVED TO BE NECESSARY FOR THE PETITIONERS' NEEDS AND WHICH IT IS STATED IN THE LETTER OF NOVEMBER 16, WOULD SERIOUSLY CRIPPLE THE OPERATION OF THE CENTRAL VALLEY PROJECT.

IT IS ALSO STATED IN THE LETTER THAT A SPEEDY CONCLUSION OF THE HEARINGS WAS ESSENTIAL IN ORDER TO AVOID A WASTE OF SEVERAL HUNDRED ACRE-FEET OF WATER PER DAY, WHICH WERE BEING UNNECESSARILY RELEASED. IN FURTHERANCE THEREOF AND BY CONSENT AGREEMENT AMONG THE PARTIES TO THE SUIT AND THE PRESIDING JUDGE, THE COURT DESIGNATED MR. WHEATON AS ITS EXPERT AGENT TO OBSERVE AND APPROVE THE REDUCTION IN THE FLOW OF WATER AND THE RELATED ADJUSTMENTS THEREIN AND IN THE PHYSICAL FACILITIES OF THE CENTRAL VALLEY PROJECT SO AS TO INSURE THAT THE AFFECTED LAND OWNERS WOULD NOT BE DEPRIVED OF WATER ESSENTIAL TO THEIR NEEDS, AND TO REPORT THEREON TO THE COURT.

THE COURT ORDERS FURTHER PROVIDE IN SUBSTANCE THAT THE COST OF THE WORK DONE AND THE FEES OF THE COURT'S AGENT ARE TO BE BORNE BY THE UNITED STATES AND PAID BY THE BUREAU OF RECLAMATION WITH A RESERVATION OF POWER IN THE COURT TO THEREAFTER ASSESS SAID COMPENSATION AGAINST THE PARTIES TO THE SUIT AS COSTS.

THE RULE IS WELL ESTABLISHED THAT AN "EXPERT" WHILE EMPLOYED ON BEHALF OF THE GOVERNMENT AND WHO PERFORMS SERVICES UNDER THE SUPERVISION AND CONTROL OF GOVERNMENT OFFICERS IS AN OFFICER OR EMPLOYEE OF THE UNITED STATES WITHIN THE LAWS AFFECTING COMPENSATION AND TRAVEL EXPENSES GENERALLY, 27 COMP. GEN. 695. ALSO, IT IS FUNDAMENTAL THAT THE EARNINGS ACCRUING UNDER SUCH EMPLOYMENT ARE PAYABLE FROM APPROPRIATIONS MADE AVAILABLE TO THE EMPLOYING OFFICER FOR THAT PURPOSE.

THE SEVERAL ORDERS OF THE COURT IN THE CASE LEAVE NO ROOM FOR DOUBT BUT THAT MR. WHEATON WAS APPOINTED BY THE COURT AS ITS AGENT IN THE CAPACITY OF AN EXPERT TO PERFORM TECHNICAL SERVICES UNDER THE SOLE DIRECTION OF THE COURT. THERE IS NOTHING IN THE RECORD BEFORE THIS OFFICE TO SHOW THAT HE WAS SO EMPLOYED BY THE BUREAU OF RECLAMATION. CONSEQUENTLY, THE APPROPRIATIONS OF THE BUREAU OF RECLAMATION OTHERWISE MADE AVAILABLE FOR THE COMPENSATION OF EXPERTS AND CONSULTANTS BY THE INTERIOR DEPARTMENT APPROPRIATION ACT, 1952, PUBLIC LAW 136, 65 STAT. 248, APPROVED AUGUST 31, 1951, ARE NOT AVAILABLE FOR THE PAYMENT OF MR. WHEATON'S COMPENSATION AND TRAVEL EXPENSES.

WITH REFERENCE TO THE RESERVATION OF POWER IN THE ORDER OF THE COURT DATED AUGUST 29, 51,"HEREAFTER TO ASSESS SAID COMPENSATION AGAINST THE PARTIES AS COSTS IN SUCH MANNER AS MAY BE EQUITABLE," IT MAY BE OBSERVED THAT COMPENSATION TO A PUBLIC OFFICER FOR SERVICES RENDERED DURING THE PROGRESS OF A SUIT, IS NOT AN ITEM OF EXPENSE INCURRED IN THE TRIAL OF THE CASE. 15 C.J. 20; 21 COMP. GEN. 350. ALSO, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORIZATION THE UNITED STATES IS NOT TAXABLE WITH COURT COSTS IN A SUIT TO WHICH IT IS A PARTY. RULE 54 (D) OF THE RULES OF CIVIL PROCEDURE FOR THE UNITED STATES DISTRICT COURTS, 28 U.S.C., PAGE 3314; 23 COMP. GEN. 807.

ACCORDINGLY, UPON THE EXISTING RECORD, YOU ARE NOT AUTHORIZED TO CERTIFY FOR PAYMENT, THE VOUCHER FOR $1,251.21 IN FAVOR OF MR. WHEATON, WHICH IS RETURNED HEREWITH.