B-110945, AUGUST 29, 1952, 32 COMP. GEN. 118

B-110945, AUGUST 29, 1952, 32 COMP. GEN. 118

APPROPRIATIONS - NAVY DEPARTMENT - AVAILABILITY FOR EXPENSES OF COURT ACTIONS ON BEHALF OF THE UNITED STATES IN VIEW OF THE RESPONSIBILITY TO INSTITUTE, PROSECUTE, AND DEFEND ACTIONS ON BEHALF OF THE UNITED STATES IN MATTERS INVOLVING COURT PROCEEDINGS BEING VESTED BY LAW IN THE ATTORNEY GENERAL, AND THE NECESSARY EXPENSES INCIDENT THERETO BEING PAYABLE FROM FUNDS EXPRESSLY PROVIDED THEREFOR, APPROPRIATIONS AVAILABLE TO THE DEPARTMENT OF THE NAVY MAY NOT BE USED TO DEFRAY EXPENSES OTHERWISE CHARGEABLE TO THE DEPARTMENT OF JUSTICE APPROPRIATIONS TO OVERCOME PROHIBITION THEREIN AGAINST USE OF FUNDS IN PREPARATION OR PROSECUTION OF A PARTICULAR SUIT INSTITUTED BY THE DEPARTMENT OF JUSTICE AT THE INSTANCE OF THE DEPARTMENT OF THE NAVY.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, AUGUST 29, 1952:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 18, 1952, STATING THAT A MATTER OF GRAVEST IMPORTANCE TO THE NAVY DEPARTMENT HAS RECENTLY ARISEN AS A RESULT OF THE ENACTMENT OF SECTION 208 (D) OF THE DEPARTMENT OF JUSTICE APPROPRIATION ACT, 1953, APPROVED JULY 10, 1952, 66 STAT. 560, AS FOLLOWS:

NONE OF THE FUNDS APPROPRIATED BY THIS TITLE MAY BE USED IN THE PREPARATION OR PROSECUTION OF THE SUIT IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA, SOUTHERN DIVISION, BY THE UNITED STATES OF AMERICA AGAINST FALLBROOK PUBLIC UTILITY DISTRICT, A PUBLIC SERVICE CORPORATION OF THE STATE OF CALIFORNIA, AND OTHERS.

YOU STATE THAT THE LAWSUIT, ENTITLED " UNITED STATES OF AMERICA V. FALLBROOK PUBLIC UTILITY DISTRICT, ET AL., " REFERRED TO IN THE QUOTED LEGISLATIVE PROVISION, WAS INSTITUTED BY THE DEPARTMENT OF JUSTICE, AT THE INSTANCE OF YOUR DEPARTMENT, FOR THE PURPOSE OF QUIETING THE TITLE OF THE UNITED STATES TO ITS VESTED RIGHTS IN THE SANTA MARGARITA RIVER, CALIFORNIA; THAT THE LITIGATION INVOLVES THE PRIMARY WATER SUPPLY FOR CAMP JOSEPH H. PENDLETON, OCEANSIDE, CALIFORNIA, A MAJOR MARINE CORPS INSTALLATION; THAT IF THE SAID LITIGATION IS NOT SUCCESSFULLY PROSECUTED, THE UTILITY OF THE MILITARY INSTALLATION WILL BE MOST SERIOUSLY IMPAIRED; AND THAT IT IS THE VIEW OF THE NAVY DEPARTMENT THAT THE PROVISIONS OF THE ABOVE-QUOTED SECTION 208 (D), MAKING UNAVAILABLE APPROPRIATIONS FOR THE DEPARTMENT OF JUSTICE FOR THE PREPARATION OR PROSECUTION OF THE SUIT IN QUESTION ARE LIMITED TO THE DEPARTMENT OF JUSTICE AND DO NOT EXTEND TO ALL APPROPRIATIONS OR OPERATE TO DESTROY WHATEVER CLAIM OR CAUSE OF ACTION THE UNITED STATES MAY HAVE IN THIS SUIT.

IT IS STATED FURTHER THAT THE DUTY OF THE EXECUTIVE BRANCH OF THE GOVERNMENT, TO SAFEGUARD THE PROPERTY OF THE UNITED STATES, REQUIRES THAT EVERY LEGAL MEANS BE EMPLOYED TO SECURE A DETERMINATION OF THE RIGHTS HERE INVOLVED BY THE JUDICIAL PROCESSES PROVIDED BY LAW, AND THAT THE NAVY DEPARTMENT, BECAUSE OF ITS VITAL INTEREST IN THE MATTER, WITH THE CONCURRENCE OF THE DEPARTMENT OF JUSTICE, CONTEMPLATES PROVIDING THE NECESSARY PERSONNEL FOR THE CONDUCT OF THE SUIT ON BEHALF OF THE UNITED STATES, AND TO ASSUME SUCH OTHER OBLIGATIONS AS MAY BE REQUIRED AND FOR WHICH APPROPRIATED FUNDS ARE AVAILABLE TO YOUR DEPARTMENT.

YOU REQUEST A DECISION BEFORE TAKING SUCH ACTION AS TO WHETHER OR NOT APPROPRIATED FUNDS AVAILABLE TO THE NAVY DEPARTMENT ARE AFFECTED IN ANY WAY BY THE PROVISIONS OF SECTION 208 (D), SUPRA. FOR CONSIDERATION BY THIS OFFICE IN REACHING A CONCLUSION IN THE MATTER YOUR LETTER CITES VARIOUS CURRENT APPROPRIATION ACTS, WHICH CONTAIN LEGISLATIVE PROHIBITIONS LIMITING OR RESTRICTING THE EXPENDITURE AVAILABILITY OF FUNDS PROVIDED FOR THEREIN, AND CERTAIN PUBLISHED AND UNPUBLISHED OFFICE DECISIONS, WHICH ENUNCIATE THE STATUTORY PRINCIPLE THAT LEGISLATIVE RESTRICTIONS PLACED UPON THE EXPENDITURE OF FUNDS APPROPRIATED FOR A DEPARTMENT OR AGENCY OF THE GOVERNMENT DO NOT, AS A MATTER OF LAW, APPLY TO SIMILAR EXPENDITURES OTHERWISE PROPERLY INCURRED UNDER APPROPRIATIONS OF OTHER DEPARTMENTS AND AGENCIES, AND THAT WHERE THE CONGRESS INTENDS A COMPLETE PROHIBITION AGAINST THE USE OF APPROPRIATED FUNDS FOR A PARTICULAR PURPOSE IT HAS INVARIABLY USED THE WORDS "IN THIS OR ANY OTHER ACT" OR WORDS OF SIMILAR IMPORT, TO DESCRIBE THE FUNDS INTENDED TO BE ENCOMPASSED BY A PARTICULAR PROHIBITION.

THIS OFFICE EXTENDS FULL RECOGNITION TO SUCH WELL-ESTABLISHED PRINCIPLES OF STATUTORY CONSTRUCTION, BUT SUBMITS THAT IN EACH OF THE CITED CASES, THE INTERPRETATION THERE GIVEN HAS BEEN BASED UPON THE CONTEXT OF THE LAW BEING CONSTRUED TOGETHER WITH A CONSIDERATION OF THE PARTICULAR FACTS AND CIRCUMSTANCES INVOLVED. AND IN NONE OF THOSE CASES WAS THE RULE APPLIED SO AS TO COMPLETELY DISSIPATE THE EFFECTIVENESS OF, AND MAKE MEANINGLESS, THE PROVISION IN THE APPROPRIATION ACT WHICH APPLIED. THAT WOULD BE THE RESULT WERE SUCH RULE APPLIED HERE. IN THAT CONNECTION, IT IS WORTHY OF NOTE THAT THE DECISION 30 COMP. GEN. 516, CITED AND PARTIALLY QUOTED IN YOUR LETTER, AFTER HOLDING THAT THE ECONOMIC STABILIZATION AGENCY WAS NOT SUBJECT TO THE EXPENDITURE RESTRICTIONS CONTAINED IN SECTION 1212 OF THE GENERAL APPROPRIATION ACT, 1951, 64 STAT. 768, BY REASON OF THE FACT THAT FUNDS FOR THE AGENCY WERE NOT CONTAINED IN THE SAID ACT, WENT ON TO STATE ,HOWEVER, HAVING IN MIND THAT, BY THE ENACTMENT OF SAID PROVISION (SECTION 1212), THE PURPOSE OF THE CONGRESS WAS TO RESTRICT GENERALLY PAYMENT TO GOVERNMENT EMPLOYEES FOR ANY ANNUAL LEAVE EARNED DURING THE CALENDAR YEAR 1950 AND UNUSED AT THE CLOSE OF BUSINESS ON JUNE 30, 1951, IT WOULD APPEAR TO BE IN KEEPING WITH THE SPIRIT OF THE ACT IF YOU RECOMMENDED TO EMPLOYEES OF YOUR AGENCY THAT THEIR 1950 ANNUAL LEAVE BE USED BY JUNE 30, 1951.' BUT HOWEVER THAT MAY BE, THE MORE IMPORTANT QUESTION PRESENTED IN THIS CASE IS WHETHER THE LAW AND APPROPRIATIONS MADE AVAILABLE TO THE NAVY DEPARTMENT IN PURSUANCE THEREOF EXPRESSLY AUTHORIZE OR REQUIRE THAT DEPARTMENT DIRECTLY TO INSTITUTE, PROSECUTE, AND DEFEND ACTION ON BEHALF OF THE UNITED STATES IN MATTERS INVOLVING COURT PROCEEDINGS.

CONSIDERATION OF THAT QUESTION NECESSARILY INVOLVES THE PROVISIONS OF SECTIONS 189, 357, 359, 361, 363, 365 AND 367, OF THE REVISED STATUTES, CODIFIED AS 5 U.S.C., 49, 306, 307, 309, 312, 314 AND 316, RESPECTIVELY, AS FOLLOWS:

SEC. 49. NO HEAD OF A DEPARTMENT SHALL EMPLOY ATTORNEYS OR COUNSEL AT THE EXPENSE OF THE UNITED STATES; BUT WHEN IN NEED OF COUNSEL OR ADVICE, SHALL CALL UPON THE DEPARTMENT OF JUSTICE, THE OFFICERS OF WHICH SHALL ATTEND TO THE SAME. ** * * * * * *

SEC. 306. THE OFFICERS OF THE DEPARTMENT OF JUSTICE, UNDER THE DIRECTION OF THE ATTORNEY GENERAL, SHALL GIVE ALL OPINIONS AND RENDER ALL SERVICES REQUIRING THE SKILL OF PERSONS LEARNED IN THE LAW NECESSARY TO ENABLE THE PRESIDENT AND HEADS OF DEPARTMENTS, AND THE HEADS OF BUREAUS AND OTHER OFFICERS IN THE DEPARTMENTS, TO DISCHARGE THEIR RESPECTIVE DUTIES; AND SHALL, ON BEHALF OF THE UNITED STATES, PROCURE THE PROPER EVIDENCE FOR, AND CONDUCT, PROSECUTE, OR DEFEND ALL SUITS AND PROCEEDINGS IN THE SUPREME COURT AND IN THE COURT OF CLAIMS, IN WHICH THE UNITED STATES, OR ANY OFFICER THEREOF, AS SUCH OFFICER, IS A PARTY OR MAY BE INTERESTED; AND NO FEES SHALL BE ALLOWED OR PAID TO ANY OTHER ATTORNEY OR COUNSELOR AT LAW FOR ANY SERVICE HEREIN REQUIRED OF THE OFFICERS OF THE DEPARTMENT OF JUSTICE, EXCEPT IN THE CASES PROVIDED BY SECTION 312 OF THIS TITLE.

SEC. 307. WHENEVER A QUESTION OF LAW ARISES IN THE ADMINISTRATION OF THE DEPARTMENT OF WAR OR THE DEPARTMENT OF THE NAVY, THE COGNIZANCE OF WHICH IS NOT GIVEN BY STATUTE TO SOME OTHER OFFICER FROM WHOM THE HEAD OF THE DEPARTMENT MAY REQUIRE ADVICE, IT SHALL BE SENT TO THE ATTORNEY GENERAL, TO BE BY HIM REFERRED TO THE PROPER OFFICER IN HIS DEPARTMENT, OR OTHERWISE DISPOSED OF AS HE MAY DEEM PROPER. * * * * * * * *

SEC. 309. EXCEPT WHEN THE ATTORNEY GENERAL IN PARTICULAR CASES OTHERWISE DIRECTS, THE ATTORNEY GENERAL AND SOLICITOR GENERAL SHALL CONDUCT AND ARGUE SUITS AND APPEALS IN THE SUPREME COURT AND SUITS IN THE COURT OF CLAIMS IN WHICH THE UNITED STATES IS INTERESTED, AND THE ATTORNEY GENERAL MAY, WHENEVER HE DEEMS IT FOR THE INTEREST OF THE UNITED STATES, EITHER IN PERSON CONDUCT AND ARGUE ANY CASE IN ANY COURT OF THE UNITED STATES IN WHICH THE UNITED STATES IS INTERESTED, OR MAY DIRECT THE SOLICITOR GENERAL OR ANY OFFICER OF THE DEPARTMENT OF JUSTICE TO DO SO. * *

SEC. 312. THE ATTORNEY GENERAL SHALL, WHENEVER IN HIS OPINION THE PUBLIC INTEREST REQUIRES IT, EMPLOY AND RETAIN, IN THE NAME OF THE UNITED STATES, SUCH ATTORNEYS AND COUNSELORS AT LAW AS HE MAY THINK NECESSARY TO ASSIST THE DISTRICT ATTORNEYS IN THE DISCHARGE OF THEIR DUTIES, AND SHALL STIPULATE WITH SUCH ASSISTANT ATTORNEYS AND COUNSEL THE AMOUNT OF COMPENSATION, AND SHALL HAVE SUPERVISION OF THEIR CONDUCT AND PROCEEDINGS. * * * * * *

SEC. 314. NO COMPENSATION SHALL BE ALLOWED TO ANY PERSON, BESIDES THE RESPECTIVE DISTRICT ATTORNEYS AND ASSISTANT DISTRICT ATTORNEYS, FOR SERVICES AS AN ATTORNEY OR COUNSELOR TO THE UNITED STATES, OR TO ANY BRANCH OR DEPARTMENT OF THE GOVERNMENT THEREOF, EXCEPT IN CASES SPECIALLY AUTHORIZED BY LAW, AND THEN ONLY ON THE CERTIFICATE OF THE ATTORNEY GENERAL THAT SUCH SERVICES WERE ACTUALLY RENDERED, AND THAT THE SAME COULD NOT BE PERFORMED BY THE ATTORNEY GENERAL, OR SOLICITOR GENERAL, OR THE OFFICERS OF THE DEPARTMENT OF JUSTICE, OR BY THE DISTRICT ATTORNEYS.

SEC. 316. THE SOLICITOR GENERAL, OR ANY OFFICER OF THE DEPARTMENT OF JUSTICE, MAY BE SENT BY THE ATTORNEY GENERAL TO ANY STATE OR DISTRICT IN THE UNITED STATES TO ATTEND TO THE INTERESTS OF THE UNITED STATES IN ANY SUIT PENDING IN ANY OF THE COURTS OF THE UNITED STATES, OR IN THE COURTS OF ANY STATE, OR TO ATTEND TO ANY OTHER INTEREST OF THE UNITED STATES.

SECTION 5 OF EXECUTIVE ORDER NO. 6166 OF JUNE 10, 1933, ISSUED IN PURSUANCE OF SECTION 16 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1517, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

THE FUNCTIONS OF PROSECUTING IN THE COURTS OF THE UNITED STATES CLAIMS AND DEMANDS BY, AND OFFENSES AGAINST, THE GOVERNMENT OF THE UNITED STATES, AND OF DEFENDING CLAIMS AND DEMANDS AGAINST THE GOVERNMENT, AND OF SUPERVISING THE WORK OF UNITED STATES ATTORNEYS, MARSHALS, AND CLERKS IN CONNECTION THEREWITH, NOW EXERCISED BY ANY AGENCY OR OFFICER, ARE TRANSFERRED TO THE DEPARTMENT OF JUSTICE.

AS TO ANY CASE REFERRED TO THE DEPARTMENT OF JUSTICE FOR PROSECUTION OR DEFENSE IN THE COURTS, THE FUNCTION OF DECISION WHETHER AND IN WHAT MANNER TO PROSECUTE, OR TO DEFEND, OR TO COMPROMISE, OR TO APPEAL, OR TO ABANDON PROSECUTION OR DEFENSE, NOW EXERCISED BY ANY AGENCY OR OFFICER, IS TRANSFERRED TO THE DEPARTMENT OF JUSTICE.

BY REASON OF THE PLAIN AND UNAMBIGUOUS TERMS OF THESE PROVISIONS OF THE LAW AND IN THE LIGHT OF DECISIONS BY THE COURTS, THE DECISIONS OF THE ACCOUNTING OFFICERS HAVE LONG RECOGNIZED THE RULE THAT, IN THE ABSENCE OF SPECIFIC AUTHORITY BY THE CONGRESS FOR DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT TO RESORT TO LITIGATION IN THE COURTS, IN CONNECTION WITH THE PERFORMANCE OF THE DUTIES AND RESPONSIBILITIES WITH WHICH THEY ARE CHARGED IT IS THE DUTY OF THE ATTORNEY GENERAL, AS CHIEF LAW OFFICER OF THE GOVERNMENT, TO INSTITUTE, PROSECUTE, AND DEFEND ACTION ON BEHALF OF THE UNITED STATES IN MATTERS INVOLVING COURT PROCEEDINGS, AND TO DEFRAY THE NECESSARY EXPENSES INCIDENT THERETO FROM FUNDS EXPRESSLY PROVIDED THEREFOR. SEE CAUSEY V. UNITED STATES, 240 U.S. 399, 402 AND CASES CITED THEREIN; UNITED STATES V. CALIFORNIA, 332 U.S. 19, 27-28; UNITED STATES V. HALL, 145 FED./2D) 781; BOOTH ET AL. V. FLETCHER, 101 FED. (2D) 676, 681; SUTHERLAND, ALIEN PROPERTY CUSTODIAN V. INTERNATIONAL INSURANCE CO. OF NEW YORK, 43 FED (2D) 969, CERTIORARI DENIED 282 U.S. 890; 12 COMP. DEC. 742; 22 ID. 230; 4 COMP. GEN. 386; 6 ID 517; 15 ID. 5; 17 ID. 58; 24 ID. 216; CF. A-7650, APRIL 24, 1925; A-27566, JUNE 29, 1929; B-34946, JUNE 9, 1943; 15 ID. 81; 19 ID. 551. SUCH RULE HAS ALSO BEEN RECOGNIZED BY THE ATTORNEY GENERAL. SEE 21 OP. ATTY. GEN. 195.

I AM AWARE OF NO SPECIFIC AUTHORITY IN TITLE IV OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1953, APPROVED JULY 10, 1952, 66 STAT. 523, MAKING APPROPRIATIONS FOR THE DEPARTMENT OF THE NAVY, OR OTHER LAW, WHICH WOULD AUTHORIZE THE DEPARTMENT OF THE NAVY TO REPRESENT THE UNITED STATES IN MATTERS INVOLVING COURT PROCEEDINGS, OR INCUR EXPENDITURES DIRECTLY CONNECTED THEREWITH. ACCORDINGLY, NO REASONABLE BASIS APPEARS FOR NOT APPLYING THE CITED RULE TO THE INSTANT CASE. WITH RESPECT TO YOUR CONTENTION THAT THE DUTY OF THE EXECUTIVE BRANCH OF THE GOVERNMENT TO SAFEGUARD THE PROPERTY OF THE UNITED STATES REQUIRES THAT EVERY LEGAL MEANS BE EMPLOYED TO SECURE A JUDICIAL DETERMINATION OF THE GOVERNMENT'S RIGHT HERE INVOLVED, IN THE CASE OF UNITED STATES V. CALIFORNIA, SUPRA, THE COURT SAID THAT ARTICLE 4, SECTION 3, CLAUSE 2 OF THE CONSTITUTION VESTS IN THE CONGRESS THE POWER TO DISPOSE OF AND MAKE ALL NEEDFUL RULES AND REGULATIONS RESPECTING PROPERTY BELONGING TO THE UNITED STATES.

I FULLY APPRECIATE THE DEEP CONCERN WHICH YOU AND OTHERS FEEL IN THIS MATTER. HOWEVER, THE MATTER HAS RECEIVED CAREFUL CONSIDERATION AND IN ANSWER TO THE SPECIFIC QUESTION PRESENTED IN YOUR LETTER IT MUST BE HELD THAT THE EMPLOYMENT OR RETENTION BY YOU AND PAYMENT FROM THE FUNDS AVAILABLE TO THE NAVY DEPARTMENT OF COUNSEL DIRECTLY TO REPRESENT THE UNITED STATES IN THE PREPARATION, PROSECUTION, OR DEFENSE OF THE SUIT IN QUESTION, AND THE DEFRAYMENT THEREFROM OF EXPENSES CONNECTED WITH SUCH LITIGATION, WOULD BE IN DIRECT CONTRAVENTION OF LAW AND IS NOT AUTHORIZED. SUCH BEING THE RULE, THE ANSWER IS OBVIOUS AS TO WHY IT WAS UNNECESSARY FOR THE CONGRESS TO APPLY THE PROHIBITION TO OTHER THAN THE DEPARTMENT OF JUSTICE APPROPRIATIONS. IF THE RULE WERE OTHERWISE, THE EVIDENT PURPOSE OF THE CONGRESS IN APPROVING THE PROVISION IN QUESTION SEEMS SO CLEAR THAT I COULD NOT APPROVE PROCEDURAL OR MECHANICAL DEVICES DESIGNED TO OVERCOME A TECHNICALITY IN ORDER TO CIRCUMVENT THAT PURPOSE. THERE HAS ALSO BEEN RECEIVED A LETTER DATED AUGUST 21, 1952, WITH ENCLOSURES, FROM THE JUDGE ADVOCATE GENERAL OF THE NAVY TO MR. E. L. FISHER OF THIS OFFICE. ONE OF THE ENCLOSURES IS IN THE FORM OF A COPY OF A CROSS-COMPLAINT FILED IN THE SUIT IN QUESTION ON JULY 14, 1952, BY ATTORNEYS FOR DEFENDANTS MAX H. HENDERSON AND AURELIE S. HENDERSON.

IT IS STATED THAT THE CROSS-COMPLAINT WAS FILED UNDER AUTHORITY OF SECTION 208 (A) OF THE DEPARTMENT OF JUSTICE APPROPRIATION ACT, 1953, SUPRA, WHICH GIVES STATUTORY CONSENT TO JOIN THE UNITED STATES AS A DEFENDANT IN THE SUIT SUCH AS THE FALLBROOK CASE. IT IS SUGGESTED THAT SUCH CROSS-COMPLAINT MAKES THE UNITED STATES A DEFENDANT IN THE SUIT AND IMPOSES UPON THE ATTORNEY GENERAL A DUTY TO DEFEND THE RIGHTS OF THE UNITED STATES, POINTING OUT THAT THE PROHIBITION OF SECTION 208 (D), SUPRA, AGAINST THE USE OF FUNDS APPROPRIATED FOR THE DEPARTMENT OF JUSTICE IN THE PREPARATION OR PROSECUTION OF THE FALLBROOK SUIT, CONTAINS NO RESTRICTION UPON THE USE OF SUCH FUNDS BY THAT DEPARTMENT IN DEFENSE OF THE SAID SUIT.

THE JUDGE ADVOCATE GENERAL OF THE NAVY FURTHER STATES THAT IT IS HIS INFORMATION THAT THE COURT IN WHICH THE FALLBROOK SUIT IS PENDING WILL INCORPORATE IN THE PRE-TRIAL ORDER A STIPULATION SUBSTANTIALLY AS FOLLOWS:

THE COURT FINDS THAT IT IS IN THE BEST INTERESTS OF THE PARTIES AND IN THE PUBLIC INTEREST THAT ALL RIGHTS TO THE USE OF WATER IN THE SANTA MARGARITA RIVER OF ALL PARTIES TO THIS ACTION BE DETERMINED AS AGAIN STALL OTHERS AND THAT THE FILING OF CROSS-COMPLAINTS IS UNNECESSARILY BURDENSOME AND EXPENSIVE, PROVIDED THAT THE ORDER SETTING THIS CAUSE FOR SEPARATE ACTION IS NOT AFFECTED. AND THAT IT APPEARS, THEREFORE, THE UNITED STATES MUST DEFEND AGAINST THE ASSERTED CLAIMS OF ALL OTHER PARTIES TO THE SUIT, AND THAT THE ADJUDICATION WILL QUIET AND FIX NOT ONLY THE RIGHTS OF THE UNITED STATES BUT THE RIGHTS OF ALL OTHER PARTIES THERETO.

IT IS MANIFEST THAT IT IS NOT A FUNCTION OF THIS OFFICE TO CONCERN ITSELF IN PROCEDURAL MATTERS IN THE COURT. FURTHERMORE, WHETHER OR NOT IT IS A DUTY OF THE DEPARTMENT OF JUSTICE TO DEFEND THE RIGHTS OF THE UNITED STATES BY REASON OF THE COUNTER CLAIM ASSERTED AGAINST IT BY THE DEFENDANTS MAX M. HENDERSON AND AURELIE S. HENDERSON AND SIMILAR CLAIMS WHICH MIGHT BE CONSIDERED BY THE COURT DURING THE PROCEEDINGS, AND WHETHER OR NOT SUCH ACTION IS WITHOUT THE PURVIEW OF THE PROHIBITION OF SECTION 208 (D), SUPRA, ARE MATTERS PRIMARILY FOR CONSIDERATION BY THAT DEPARTMENT.

UNDER SECTION 8 OF THE ACT OF JULY 31, 1894, 28 STAT. 207, AS AMENDED, 31 U.S.C. 74, THE AUTHORITY OF THE COMPTROLLER GENERAL TO RENDER DECISIONS TO THE HEADS OF DEPARTMENTS OR ESTABLISHMENTS ENCOMPASSES ONLY QUESTIONS INVOLVING PAYMENTS "TO BE MADE BY THEM OR UNDER THEM.' SEE 18 COMP. GEN. 217, 220. HENCE, I DO NOT HAVE JURISDICTION AND SHALL NOT ATTEMPT TO DECIDE ON THE BASIS OF THE PRESENT LETTERS THAT PART OF THE CONTENTION WHICH CONCERNS THE AVAILABILITY OF FUNDS APPROPRIATED TO THE DEPARTMENT OF JUSTICE FOR USE IN THE DEFENSE OF ACTIONS ARISING FROM THE FALLBROOK CASE.