B-141554, DEC. 24, 1959

B-141554, DEC. 24, 1959

TO THE HONORABLE CLARENCE G. MORSE, ADMINISTRATOR, MARITIME ADMINISTRATION:

ON DECEMBER 22, 1959, THE ACTING MARITIME ADMINISTRATOR REQUESTED OUR DECISION WHETHER YOUR AGENCY'S APPROPRIATIONS ARE AVAILABLE TO PAY THE EXPENSES OF COMPLYING WITH THE COURT'S ORDER UNDER THE FOLLOWING STATED FACTS AND CIRCUMSTANCES.

ON AUGUST 19, 1954, THE DEPARTMENT OF JUSTICE, ON BEHALF OF THE UNITED STATES, FILED A COMPLAINT IN THE UNITED STATES DISTRICT COURT IN SAN FRANCISCO, AGAINST BASALT ROCK COMPANY, INC., A CALIFORNIA CORPORATION, SUTRO A. FROST AND PETER A. GASSER, SEEKING TO RECOVER DAMAGES FOR BREACH OF A CONTRACT TO SCRAP A SURPLUS NAVY DESTROYER TENDER. THE MARITIME ADMINISTRATION WAS THE CONTRACTING AGENCY INVOLVED. ON NOVEMBER 4, 1959, THE DEFENDANTS' ATTORNEY SERVED A NOTICE OF TAKING DEPOSITION ON THE U.S. ATTORNEY IN SAN FRANCISCO, UNDER RULE 30 (A) OF THE FEDERAL RULES OF CIVIL PROCEDURE, CALLING ON TWO EMPLOYEES IN THE WASHINGTON, D.C., OFFICE OF THE MARITIME ADMINISTRATION TO GIVE THEIR DEPOSITIONS IN SAN FRANCISCO ON DECEMBER 4, 1959, AS AGENTS OF THE UNITED STATES WHO ARE CONCERNED WITH THE SCRAPPING CONTRACT. THE NOTICE WAS OPPOSED BY THE DEPARTMENT OF JUSTICE ON NOVEMBER 12, 1959, BY A MOTION FOR A PROTECTIVE ORDER, UNDER RULE 30 (B) OF THE FEDERAL RULES OF CIVIL PROCEDURE, TO DEFINE THE SCOPE OF THE EXAMINATION AND TO CHANGE THE PLACE OF THE TAKING OF THE DEPOSITIONS FROM SAN FRANCISCO TO WASHINGTON, D.C. ON DECEMBER 4, 1959, THE COURT DENIED THE PROTECTIVE MOTION BUT PROVIDED, AS AN ALTERNATIVE, THAT:

"IF PLAINTIFF, (UNITED STATES) ELECTING NOT TO COME TO THIS FORUM, AND ELECTING TO HAVE THE DEPOSITIONS IN WASHINGTON, D.C., SHALL FILE AND SERVE HEREIN WITHIN TEN DAYS HEREOF, ITS CONSENT TO PAY ALL EXPENSES, INCLUDING TRANSPORTATION AND MAINTENANCE, AND A REASONABLE ATTORNEY FEE, * * *, THEN IN SUCH EVENT THE PLAINTIFF'S MOTION IS TO BE DEEMED GRANTED AS HEREIN SET FORTH, * * *.'

THE QUESTIONS PRESENTED ARE AS FOLLOW:

"/1) ARE THIS AGENCY'S APPROPRIATIONS AVAILABLE TO PAY THE EXPENSES AND FEE OF THE DEFENDANTS' ATTORNEY, AS ORDERED BY THE COURT, ASSUMING THE COST TO THE UNITED STATES WILL BE REDUCED BY SELECTING THIS ALTERNATIVE?;

"/2) IF THE ANSWER TO THE ABOVE QUESTION IS IN THE NEGATIVE, ARE THE EXPENSES INCIDENT TO SENDING THE TWO EMPLOYEES TO SAN FRANCISCO, CHARGEABLE TO THE APPROPRIATIONS OF THE MARITIME ADMINISTRATION OR THE DEPARTMENT OF JUSTICE?

28 U.S.C. 1823 (A) PROVIDES FOR THE PAYMENT OF NECESSARY EXPENSES INCURRED BY OFFICERS AND EMPLOYEES WHEN SUMMONED AS WITNESSES ON BEHALF OF THE UNITED STATES. HOWEVER, WE ARE NOT AWARE OF ANY STATUTORY AUTHORITY WHICH AUTHORIZES YOUR AGENCY TO PAY SUCH EXPENSES WHEN AN EMPLOYEE IS DIRECTED BY SUBPOENA OR OTHERWISE TO TESTIFY IN HIS OFFICIAL CAPACITY ON BEHALF OF A PRIVATE PARTY. IN THE PRESENT CASE, IT APPEARS THAT THE ONLY PURPOSE THAT WOULD BE SERVED BY THE EMPLOYEES' TRAVELING TO SAN FRANCISCO AT THIS TIME WOULD BE FOR THE CONVENIENCE OF THE DEFENDANTS IN TAKING THEIR DEPOSITIONS. IN THESE CIRCUMSTANCES OUR VIEW IS THAT THE APPROPRIATIONS OF YOUR AGENCY ARE NOT AVAILABLE TO PAY THE EXPENSES WHICH WOULD BE INCURRED IN SUCH TRAVEL BY YOUR EMPLOYEES. ALSO, WE DO NOT KNOW OF ANY PROVISION OF LAW WHICH WOULD AUTHORIZE YOUR AGENCY TO PAY ANY EXPENSES INCURRED BY THE DEFENDANTS OR THEIR ATTORNEYS FOR THE PURPOSE OF TAKING THE DEPOSITIONS IN WASHINGTON, D.C. MOREOVER, SINCE YOUR PRIMARY CONCERN RELATES TO THE QUESTION OF THE AVAILABILITY OF YOUR AGENCY'S APPROPRIATIONS, OUR REPLY IS CONFINED THERETO.

IN VIEW OF THE INTEREST OF THE DEPARTMENT OF JUSTICE IN THE CASE, WE ARE FURNISHING THAT DEPARTMENT A COPY OF THIS DECISION.