B-140600, MARCH 17, 1960, 39 COMP. GEN. 643

B-140600: Mar 17, 1960

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THE COSTS OF SUCH REPORT WORK WHICH ARE TO BE DISTINGUISHED FROM COSTS DIRECTLY INCIDENT TO COURT PROCEEDINGS AND PAYABLE FROM DEPARTMENT OF JUSTICE APPROPRIATIONS ARE PROPERLY FOR PAYMENT FROM THE AGENCY'S APPROPRIATIONS FOR GENERAL EXPENSES. IT APPEARS THAT THE UNITED STATES IS THE PRINCIPAL DEFENDANT IN 20 ACTIONS INVOLVING 310 PLAINTIFFS FOR APPROXIMATELY $13. THE COMPLAINTS FILED ALLEGE THAT THE UNITED STATES IS LIABLE BECAUSE THE CORPS OF ENGINEERS NEGLIGENTLY PLANNED. THESE REPORTS WERE THE BASIS OF VARIOUS MOTIONS FILED BY THE DEPARTMENT OF JUSTICE. THE RECORD DISCLOSES THAT AT THE BRIEFING CONFERENCE IT WAS AGREED THAT THE CORPS WOULD PREPARE CERTAIN DIGESTS AND STUDIES REQUESTED BY THE DEPARTMENT OF JUSTICE AS NECESSARY FOR THE GOVERNMENT'S DEFENSE IN THE LITIGATION.

B-140600, MARCH 17, 1960, 39 COMP. GEN. 643

APPROPRIATIONS - JUSTICE DEPARTMENT - LITIGATION EXPENSES - JUSTICE V. AGENCY FUNDS THE PREPARATION AND REVIEW OF REPORTS AND ENGINEERING STUDIES BY AN ADMINISTRATIVE AGENCY, AT THE REQUEST OF THE DEPARTMENT OF JUSTICE FOR USE IN THE DEFENSE OF A SUIT AGAINST THE GOVERNMENT ARISING FROM THE AGENCY'S ACTIVITIES, WHICH REPORTS AND STUDIES COULD ONLY BE PREPARED ON THE BASIS OF THE KNOWLEDGE, INFORMATION, AND EXPERIENCE OF THE AGENCY'S PERSONNEL AND FROM ITS RECORDS, MUST BE REGARDED AS A DUTY AND RESPONSIBILITY OF THE AGENCY, AND, THEREFORE, THE COSTS OF SUCH REPORT WORK WHICH ARE TO BE DISTINGUISHED FROM COSTS DIRECTLY INCIDENT TO COURT PROCEEDINGS AND PAYABLE FROM DEPARTMENT OF JUSTICE APPROPRIATIONS ARE PROPERLY FOR PAYMENT FROM THE AGENCY'S APPROPRIATIONS FOR GENERAL EXPENSES.

TO THE ATTORNEY GENERAL, MARCH 17, 1960:

A LETTER DATED AUGUST 25, 1959, AND ENCLOSURES, FROM THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL (REFERENCE A7), CONCERNS CERTAIN SUITS AGAINST THE UNITED STATES ARISING FROM FLOOD DAMAGES CAUSED BY BREAKS IN LEVEES CONSTRUCTED BY THE CORPS OF ENGINEERS IN THE VICINITY OF YUBA CITY, CALIFORNIA, ON THE FEATHER RIVER. THE LETTER REQUESTS A DECISION AS TO WHETHER, ON THE BASIS OF THE FACTS SET FORTH BELOW, THE DEPARTMENT OF JUSTICE MUST REIMBURSE THE DEPARTMENT OF THE ARMY FOR SERVICES PERFORMED BY THE CORPS OF ENGINEERS IN PREPARING MATERIAL FOR THE DEPARTMENT OF JUSTICE TO USE IN DEFENDING THE ABOVE REFERRED-TO SUITS.

IT APPEARS THAT THE UNITED STATES IS THE PRINCIPAL DEFENDANT IN 20 ACTIONS INVOLVING 310 PLAINTIFFS FOR APPROXIMATELY $13,169,000 IN CLAIMED DAMAGES. THE COMPLAINTS FILED ALLEGE THAT THE UNITED STATES IS LIABLE BECAUSE THE CORPS OF ENGINEERS NEGLIGENTLY PLANNED, DESIGNED, CONSTRUCTED AND MAINTAINED THE LEVEES WHICH FAILED.

IT APPEARS THAT UPON NOTICE OF THE FILING OF THE SUITS THE CORPS OF ENGINEERS FURNISHED THE DEPARTMENT OF JUSTICE CERTAIN REPORTS, INFORMATION AND DOCUMENTS FOR USE IN DEFENSE OF THE LITIGATION. THESE REPORTS WERE THE BASIS OF VARIOUS MOTIONS FILED BY THE DEPARTMENT OF JUSTICE. IN ORDER TO PREPARE FOR EVENTUAL TRIAL ON THE MERITS IT APPEARS THAT THE CORPS OF ENGINEERS, AT THE REQUEST OF THE UNITED STATES ATTORNEY FOR THE NORTHERN DISTRICT OF CALIFORNIA, ARRANGED AND HELD A BRIEFING CONFERENCE FOR TWO ASSISTANT UNITED STATES ATTORNEYS AND CONDUCTED THEM ON A TOUR OF THE AFFECTED AREAS. THE RECORD DISCLOSES THAT AT THE BRIEFING CONFERENCE IT WAS AGREED THAT THE CORPS WOULD PREPARE CERTAIN DIGESTS AND STUDIES REQUESTED BY THE DEPARTMENT OF JUSTICE AS NECESSARY FOR THE GOVERNMENT'S DEFENSE IN THE LITIGATION. IT WAS FURTHER AGREED THAT THE "ASSEMBLIES OF DATA" BY THE CORPS WOULD BE FACTUAL IN NATURE AND WOULD NOT INCLUDE OPINIONS OR CONCLUSIONS. THE QUESTION OF THE DEPARTMENT OF JUSTICE REIMBURSING THE CORPS OF ENGINEERS FOR THE EXPENSES TO BE INCURRED BY THE CORPS IN PREPARING THE DIGESTS AND STUDIES APPARENTLY WAS NOT RAISED DURING THE BRIEFING CONFERENCE OR IN A SUBSEQUENT LETTER FROM THE DISTRICT ENGINEER TO THE UNITED STATES ATTORNEY TRANSMITTING A COPY OF A " MEMO FOR RECORD" WHICH OUTLINED THE TENTATIVE AGREEMENT REACHED AT THE BRIEFING CONFERENCE. IN THE LETTER THE DISTRICT ENGINEER STATED THAT THE AGREEMENTS (REACHED AT THE CONFERENCE) MET WITH HIS APPROVAL AND WOULD BE UNDERTAKEN BY THE SACRAMENTO DISTRICT.

SUBSEQUENTLY, BY LETTER DATED JANUARY 21, 1959, THE DISTRICT ENGINEER INFORMED THE UNITED STATES ATTORNEY THAT THE COSTS INCURRED BY THE SACRAMENTO DISTRICT FOR SERVICES AND ENGINEERING STUDIES WERE ESTIMATED AT $8,000 FOR FISCAL YEAR 1959 AND THAT COSTS INCURRED SUBSEQUENT TO FISCAL YEAR 1959 WOULD BE ADDED TO THE $8,000. HE REQUESTED THAT THE UNITED STATES ATTORNEY ADVISE HIM IN WRITING OF THE AVAILABILITY OF FUNDS AND AGREEMENT TO REIMBURSE THE CORPS FOR THE COST OF THE WORK IN QUESTION. LATER THE CORPS TRANSMITTED A PROPOSED " MEMORANDUM OF UNDERSTANDING" DATED JUNE 1, 1959, FOR THE DEPARTMENT OF JUSTICE TO SIGN WHICH PROVIDES THAT YOUR DEPARTMENT WILL REIMBURSE THE ARMY FOR THE WORK IN QUESTION AND WHEREIN IT IS STATED THAT THE COST OF THE SERVICES WAS PRESENTLY ESTIMATED TO BE $5,500.

IN REPLY TO OUR REQUEST FOR THE DEPARTMENT OF THE ARMY'S COMMENTS IN THE MATTER, WE WERE ADVISED, IN EFFECT, THAT THE BASIS FOR THE CORPS' POSITION THAT IT SHOULD BE REIMBURSED IS THAT THE SERVICES IN QUESTION ARE NOT IN THE NATURE OF SERVICES CUSTOMARILY RENDERED BY AN ADMINISTRATIVE OFFICE WHERE THE UNITED STATES IS SUED BECAUSE OF THE ACTIVITIES OF THAT ADMINISTRATIVE OFFICE; THAT THE SPECIAL STUDIES ARE NOT INFORMATION OR DOCUMENTS SOLELY AVAILABLE TO THE CORPS OF ENGINEERS THAT MUST BE FURNISHED FOR EFFECTIVE DEFENSE OF THE LITIGATION; THAT THERE ARE NO APPROPRIATE FUNDS AVAILABLE TO THE CORPS WHICH COULD BE USED TO PAY THE EXPENSES IN QUESTION; AND THAT THE EXPENSE INCURRED IS REQUIRED TO BE DEFRAYED BY THE DEPARTMENT OF JUSTICE AS A NECESSARY INCIDENT TO LITIGATION WITHIN THE CONTEMPLATION OF 38 COMP. GEN. 343.

YOUR DEPARTMENT IN COMMENTING ON THE ABOVE VIEWS OF THE DEPARTMENT OF THE ARMY CONTENDS, IN SUBSTANCE, THAT THE STUDIES WERE AND ARE ESSENTIAL TO THE GOVERNMENT'S DEFENSE; THAT IT IS EQUALLY ESSENTIAL THAT THE STUDIES BE MADE BY THE CORPS, SINCE IT ALONE HAS THE BACKGROUND DATA, EXPERIENCE WITH THE SACRAMENTO FLOOD CONTROL PROJECT, AND FIRSTHAND KNOWLEDGE AND RECORDS OF THE EVENTS INVOLVED; THAT NO OTHER AGENCY, GROUP OR INDIVIDUAL HAS OR COULD POSSIBLY PROVIDE SUCH DATA, EXPERIENCE, KNOWLEDGE OR RECORDS; AND THAT THERE WAS NO DISCUSSION, MENTION OR EVEN INTIMATION AS TO REIMBURSEMENT FOR THE STUDIES WHEN THE CORPS AGREED TO UNDERTAKE THEM.

ON THE BASIS OF THE LATTER CONTENTIONS WE REQUESTED THE FURTHER COMMENTS OF THE DEPARTMENT OF THE ARMY. BY LETTER DATED JANUARY 18, 1960, FROM THE ASSISTANT SECRETARY OF THE ARMY ( MANPOWER, PERSONNEL AND RESERVE FORCES) WE WERE ADVISED, IN PERTINENT PART, AS FOLLOWS:

FURTHER EXAMINATION OF THE MATTER HAS BEEN MADE. THE REVIEW OF STATE PREPARED DATA REPRESENTS A RELATIVELY SMALL PERCENTAGE OF THE WORK INVOLVED. SOME OF THE REVIEW COULD BE PERFORMED BY ANY QUALIFIED ENGINEER. HOWEVER, BEFORE AN INDEPENDENT ENGINEER WOULD BE ABLE TO PROCEED, IT WOULD BE NECESSARY THAT HE BECOME FAMILIAR WITH BASIC DATA PREPARED BY THE CORPS OF ENGINEERS. THE FURNISHING OF THIS DATA TOGETHER WITH THE NECESSARY BRIEFING WOULD BE AS EXPENSIVE TO THE CORPS AS IF THE CORPS WERE TO COMPLETE THE REVIEW. THIS WOULD APPLY EQUALLY TO THE SPECIAL STUDIES MADE BY THE CORPS FOR THE UNITED STATES ATTORNEY SINCE MOST OF THE BASIC DATA WAS DEVELOPED BY THE CORPS.

SINCE THE LITIGATION INVOLVES CONSTRUCTION TWENTY OR MORE YEARS OLD, RESEARCH AND ANALYSIS TO DETERMINE THE CRITERIA AND STANDARDS USED BY THE CORPS AT THAT TIME AND ADHERENCE THERETO ARE NECESSARY. THIS RESEARCH AND ANALYSIS, WHILE IT COULD BE PERFORMED BY OUTSIDE ENGINEERS, WOULD REQUIRE THE CONTINUING ASSISTANCE OF ENGINEERS OF THE CORPS WHO ARE, BY REASON OF THEIR EXPERIENCE, IN THE BEST POSITION TO RENDER THIS ASSISTANCE.

HOWEVER, THE DEPARTMENT OF THE ARMY ALSO SAYS THAT IT BELIEVES THAT THE STUDIES HERE SOUGHT ARE NOT WITHIN THE USUAL REPORTS ORDINARILY FURNISHED THE DEPARTMENT OF JUSTICE BUT ARE ENGINEERING STUDIES INITIATED IN PREPARATION FOR LITIGATION AND CAPABLE OF BEING PERFORMED BY ANY QUALIFIED ENGINEERING ORGANIZATION OR INDIVIDUAL WITH THE ASSISTANCE OF CORPS OF ENGINEERS PERSONNEL. THE DEPARTMENT FURTHER SAYS THAT WHILE COMPLETING THE REVIEW AND ANALYSIS WOULD APPROXIMATE THE TIME AND EFFORT NECESSARY TO BRIEF OUTSIDE ENGINEERS THERE IS DOUBT WHETHER THESE SERVICES ARE CONTEMPLATED BY 31 U.S.C. 686 AND ARE SIMILAR TO THOSE DISCUSSED IN OUR DECISION OF NOVEMBER 3, 1958, 38 COMP. GEN. 343.

IT DOES NOT APPEAR THAT WHEN THE CORPS OF ENGINEERS AGREED TO FURNISH THE SERVICES REQUESTED BY THE DEPARTMENT OF JUSTICE IT CONTEMPLATED RENDERING SUCH SERVICES PURSUANT TO 31 U.S.C. 686, SINCE NO REQUEST FOR REIMBURSEMENT WAS MADE AT THAT TIME. WE HAVE SAID IN PRIOR DECISIONS THAT THE GENERAL RULE IS 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 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 ACTIONS ON BEHALF OF THE UNITED STATES IN MATTERS INVOLVING COURT PROCEEDINGS, AND TO DEFRAY THE NECESSARY EXPENSES INCIDENT THERETO FROM APPROPRIATIONS OF THE DEPARTMENT OF JUSTICE RATHER THAN FROM APPROPRIATIONS OF THE ADMINISTRATIVE OFFICE WHICH MAY BE INVOLVED IN THE PROCEEDINGS. SEE B 45799, DECEMBER 5, 1944; B-122671, MARCH 28, 1955; 15 COMP. GEN. 81; 18 ID. 592; 19 ID. 551; 32 ID. 118; AND 38 ID. 343. HOWEVER, THE COSTS OR EXPENSES INVOLVED IN THOSE CASES WERE NOT OF THE TYPE INVOLVED HERE AND WE ARE OF THE VIEW THAT THOSE CASES ARE CLEARLY DISTINGUISHABLE FROM THE INSTANT CASE. THE COSTS INVOLVED IN THE DECISIONS CITED CONCERNED A CHARGE (INDEMNITY DEPOSIT) FOR A HEARING ON A PETITION (B-45799); COST OF A REMOVAL BOND (B-122671); FEES OF REFEREES AND SPECIAL MASTERS ORDERED BY THE COURT (15 COMP. GEN. 81 AND 19 ID. 551); LEGAL EXPENSES TO QUIET TITLE (18 COMP. GEN. 592); COST OF EMPLOYMENT AND RETENTION OF COUNSEL DIRECTLY TO REPRESENT THE UNITED STATES AND EXPENSES DIRECTLY CONNECTED WITH COURT PROCEEDINGS (32 COMP. GEN. 118); AND AUCTIONEERS' FEES AND ADVERTISING EXPENSES INCURRED BY THE DEPARTMENT OF JUSTICE INCIDENT TO A COURT ORDER TO SELL PROPERTY ON A FORECLOSURE SALE (38 COMP. GEN. 343). IN THE INSTANT CASE THE ADMINISTRATIVE AGENCY WHOSE ACTIVITIES RESULTED IN THE COURT PROCEEDING WAS REQUESTED TO REVIEW STATE-PREPARED REPORTS IN THE LIGHT OF, AND FURNISH MATERIAL BASED ON, KNOWLEDGE, INFORMATION, DATA, AND EXPERIENCE POSSESSED BY IT (IN ITS FILES) OR ITS PERSONNEL AND THE COSTS IN QUESTION WERE INCURRED INCIDENT THERETO.

WHILE IT MAY BE THAT IN THE INSTANT CASE OUTSIDE ENGINEERS CAN PERFORM SOME OF THE REVIEW WORK AND MAKE THE SPECIAL STUDIES REQUESTED BY THE DEPARTMENT OF JUSTICE, IT APPEARS THAT THE OUTSIDE ENGINEERS WOULD HAVE TO BECOME FAMILIAR WITH BASIC DATA WHICH WOULD HAVE TO BE PREPARED BY THE CORPS, BE BRIEFED ON SUCH DATA, AND BE CONTINUALLY ASSISTED BY ENGINEERS OF THE CORPS. IT FURTHER APPEARS THAT THE FURNISHING OF THE BASIC DATA, THE NECESSARY BRIEFING, AND THE CONTINUED ASSISTANCE OF ENGINEERS OF THE CORPS WOULD TAKE AS MUCH TIME AND EFFORT AND BE AS EXPENSIVE TO THE CORPS AS IF THE CORPS COMPLETED THE REVIEWS AND MADE THE SPECIAL STUDIES ITSELF. THUS, IT IS CLEAR THAT OUTSIDE ENGINEERS COULD NOT PERFORM THE SERVICES IN QUESTION INDEPENDENTLY OF THE CORPS OF ENGINEERS AND IT IS EQUALLY CLEAR THAT ONLY THE CORPS POSSESSES (EITHER IN ITS FILES OR THROUGH ITS PERSONNEL) THE DATA AND INFORMATION NECESSARY TO MAKE THE SPECIAL STUDIES AND REVIEW THE STATE PREPARED DATA.

WE ARE OF THE VIEW THAT AN ADMINISTRATIVE AGENCY WHOSE ACTIVITIES RESULT IN A SUIT AGAINST THE UNITED STATES, AND WHICH, BECAUSE OF THE KNOWLEDGE AND INFORMATION PERTAINING TO THE SUBJECT MATTER OF THE SUIT POSSESSED BY IT OR ITS PERSONNEL ALONE, IS IN A POSITION TO REVIEW REPORTS AND FURNISH MATERIAL REQUIRED BY THE DEPARTMENT OF JUSTICE TO DEFEND THE ACTION AGAINST THE GOVERNMENT, HAS A DUTY TO REVIEW OR FURNISH SUCH MATERIAL TO THE DEPARTMENT OF JUSTICE WITHOUT REIMBURSEMENT. THEREFORE, IT IS OUR CONCLUSION THAT IN THE INSTANT CASE THE DEPARTMENT OF JUSTICE IS NOT REQUIRED TO REIMBURSE THE CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, FOR THE SERVICES IN QUESTION AND THAT SUCH COSTS ARE PROPERLY PAYABLE FROM OTHERWISE AVAILABLE APPROPRIATIONS OF THE CORPS OF ENGINEERS FOR GENERAL EXPENSES.