B-134736, FEB. 3, 1958

B-134736, FEB. 3, 1958

TO RAY E. SOLIDAY, AUTHORIZED CERTIFYING OFFICER, INTERSTATE COMMERCE COMMISSION:

ON DECEMBER 23, 1957, YOU SUBMITTED FOR OUR ADVANCE DECISION TWO VOUCHERS PRESENTED TO YOU FOR CERTIFICATION PROPOSING REIMBURSEMENT TO MR. BERNARD H. ENGLISH AND MR. JOHN E. HAYDEN, EMPLOYEES OF THE COMMISSION, FOR ATTORNEYS' FEES PAID BY EACH IN THE AMOUNT OF $100. AS AN ALTERNATIVE TO THE APPROVAL OF THE VOUCHERS, YOU REQUESTED THAT THE CLAIMS BE REPORTED TO CONGRESS AS MERITORIOUS CLAIMS UNDER THE PROVISIONS OF 31 U.S.C. 236.

THE FILE SHOWS THAT THE FEES WERE PAID TO A PRIVATE ATTORNEY FOR DEFENDING THE TWO EMPLOYEES IN A CIVIL SUIT FILED AGAINST THEM BY RUFUS H. LAWSON, AN ATTORNEY, ALLEGING SLANDER AND, AS A RESULT, DAMAGES TO HIS REPUTATION. THE ALLEGED SLANDER, ACCORDING TO THE FILE, OCCURRED DURING THE COURSE OF AN INVESTIGATION OF MATTERS INVOLVED IN A CRIMINAL ACTION BEING PROSECUTED BY THE INTERSTATE COMMERCE COMMISSION AGAINST A CLIENT OF MR. LAWSON-S. THE COMPLAINT IN THE CIVIL ACTION WAS DISMISSED AFTER THE PLAINTIFF FAILED TO COMPLY WITH AN ORDER OF THE COURT ISSUED ON MOTION OF THE DEFENDANTS TO AMEND THE COMPLAINT. THE OPINION IS EXPRESSED IN YOUR SUBMISSION THAT THE SUIT WAS FRIVOLOUS; THAT IT WAS A DIRECT RESULT OF THE PENDING CRIMINAL CHARGES; AND THAT ITS PURPOSE WAS TO DISCREDIT THE INVESTIGATORS AND THWART THE FUNCTIONS OF THE COMMISSION.

MR. ENGLISH AND MR. HAYDEN REPORT THAT EVERY EFFORT WAS MADE TO OBTAIN LEGAL ASSISTANCE FROM THE LOCAL UNITED STATES ATTORNEY AFTER HAVING BEEN ADVISED BY THE COMMISSION THAT THE DEPARTMENT OF JUSTICE HAD DIRECTED SUCH ASSISTANCE. THEY REPORT, HOWEVER, THAT THE UNITED STATES ATTORNEY DID NOT ENTER THE CASE UNTIL SOME TIME AFTER THE MOTION WHICH RESULTED IN DISMISSAL OF THE SUIT HAD BEEN FILED BY THE PRIVATE ATTORNEY ENGAGED BY THE TWO EMPLOYEES. THEY SAY FURTHER THAT THE UNITED STATES ATTORNEY THEN REQUESTED THE PRIVATE ATTORNEY TO REMAIN AS CO-COUNSEL AND TO ARGUE THE MOTION BEFORE THE COURT.

THE FILE SHOWS THAT THE VOUCHERS WERE SUBMITTED TO THE DEPARTMENT OF JUSTICE WITH A REQUEST THAT THE DEPARTMENT MAKE PAYMENT. IN RESPONSE TO THAT REQUEST, THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL SAID IN A LETTER DATED AUGUST 27, 1956, THAT GOVERNMENT COUNSEL WAS AVAILABLE TO ENGLISH AND HAYDEN FROM THE INITIAL STAGES OF THE ACTION, IMPLYING THAT IT WAS NOT NECESSARY, AS THE TWO EMPLOYEES ALLEGE, FOR THEM TO HIRE PRIVATE COUNSEL. THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL FURTHER SAID THAT HE HAD BEEN UNABLE TO LOCATE ANY AUTHORITY IN LAW OR IN THE DECISIONS OF OUR OFFICE UNDER WHICH THE VOUCHERS COULD BE PAID BY THAT DEPARTMENT. EXPRESSED THE OPINION THAT THE LEGAL SERVICES IN QUESTION COULD NOT BE CONSIDERED AS HAVING BEEN SPECIALLY RETAINED UNDER 5 U.S.C. 315 OR 28 U.S.C. 503 AND HE CITED THE PROVISIONS OF 5 U.S.C. 314 AS POSSIBLY PRECLUDING PAYMENT FROM ANY APPROPRIATION.

SECTION 503, TITLE 28, U.S.C. AUTHORIZES THE ATTORNEY GENERAL TO APPOINT ATTORNEYS TO ASSIST THE UNITED STATES ATTORNEYS WHEN THE PUBLIC INTEREST SO REQUIRES. SECTION 315, TITLE 5, REQUIRES EVERY ATTORNEY SPECIALLY RETAINED UNDER AUTHORITY OF THE DEPARTMENT OF JUSTICE (EXCEPT FOREIGN COUNSEL IN SPECIAL CASES) TO BE COMMISSIONED AND TO TAKE THE OATH OF OFFICE. SO FAR AS IS PERTINENT HERE, SECTION 314, TITLE 5, REQUIRES, BEFORE COMPENSATION FOR LEGAL SERVICES IS PAYABLE TO OTHER THAN THE RESPECTIVE UNITED STATES ATTORNEYS AND THE ASSISTANT UNITED STATES ATTORNEYS, THE CERTIFICATE OF THE ATTORNEY GENERAL THAT THE LEGAL SERVICES WERE ACTUALLY RENDERED AND COULD NOT HAVE BEEN PERFORMED BY THE ATTORNEY GENERAL, SOLICITOR GENERAL, OR OFFICERS OF THE DEPARTMENT OF JUSTICE.

IN VIEW OF THESE SPECIFIC PROVISIONS OF LAW AND THE STATED POSITION OF THE ADMINISTRATIVE ATTORNEY GENERAL IN THE MATTER, WE MUST HOLD THAT THE CERTIFICATION AND PAYMENT OF THESE VOUCHERS, WHICH WOULD BE TANTAMOUNT TO PAYMENT BY THE UNITED STATES OF COMPENSATION TO SPECIALLY RETAINED PRIVATE ATTORNEYS, ARE NOT AUTHORIZED.

THE ONLY CLAIMS WHICH MAY BE CONSIDERED UNDER THE ACT OF APRIL 10, 1928, 31 U.S.C. 236, ARE THOSE WHICH, IN THE ABSENCE OF AN APPROPRIATION FOR THEIR ADJUSTMENT, CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY ON THE PART OF THE GOVERNMENT OR EQUITY IN FAVOR OF THE CLAIMANTS AS TO DESERVE THE CONSIDERATION OF CONGRESS. CONCERNING THE PRESENT CLAIMS, THERE IS NO STATUTE SPECIFICALLY IMPOSING UPON THE UNITED STATES A LEGAL OBLIGATION TO DEFEND, OR TO REIMBURSE EMPLOYEES FOR EXPENSES INCURRED IN DEFENDING, SUITS SUCH AS ARE INVOLVED HERE. ON THE CONTRARY THE PROVISIONS OF 5 U.S.C. 314 PRECLUDE THE PAYMENT OF COMPENSATION TO PRIVATE ATTORNEYS FOR LEGAL SERVICES EXCEPT ON CERTAIN CONDITIONS WHICH MUST BE CERTIFIED TO BY THE ATTORNEY GENERAL. IN THE ABSENCE OF THE PROPER CERTIFICATE, PAYMENT OF SUCH COMPENSATION IS EXPRESSLY BARRED, WHETHER IT BE BY DIRECT PAYMENT TO THE ATTORNEY OR BY REIMBURSEMENT TO AN EMPLOYEE.

WE MUST CONCLUDE, THEREFORE, THAT THE VOUCHERS MAY NOT BE CERTIFIED FOR PAYMENT AND THAT THE CLAIMS ARE NOT PROPER FOR SUBMISSION TO CONGRESS UNDER PROVISIONS OF THE ACT OF APRIL 10, 1928, SUPRA. ..END :