B-147769, NOVEMBER 27, 1964, 44 COMP. GEN. 312

B-147769: Nov 27, 1964

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APPROPRIATIONS - PERMANENT INDEFINITE FOR JUDGMENTS - CONTEMPT FINES ALTHOUGH A CONTEMPT OF COURT FINE WHICH WAS IMPOSED BY A FEDERAL COURT AGAINST AN EMPLOYEE ACTING IN COMPLIANCE WITH ADMINISTRATIVE REGULATIONS AND INSTRUCTIONS IS A JUDGMENT OF A COURT. A FINE IS DIFFERENT IN NATURE. PRINCIPLE AND PURPOSE FROM A JUDGMENT WHICH IS PAYABLE FROM THE PERMANENT INDEFINITE APPROPRIATION ESTABLISHED BY SECTION 1302 OF THE ACT OF JULY 27. IF THERE IS AN ADMINISTRATIVE DETERMINATION THAT THE FINE WAS INCURRED IN THE ACCOMPLISHMENT OF OFFICIAL BUSINESS FOR WHICH THE DEPARTMENT'S SALARIES AND EXPENSES APPROPRIATION IS MADE. 1964: REFERENCE IS MADE TO LETTER OF OCTOBER 23. REQUESTING TO BE ADVISED AS TO WHETHER THE APPROPRIATIONS MADE FOR THE DEPARTMENT OF JUSTICE OR ANY OTHER FUND IS AVAILABLE FOR THE PAYMENT OF A FINE OF $500 IMPOSED BY THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS.

B-147769, NOVEMBER 27, 1964, 44 COMP. GEN. 312

APPROPRIATIONS - PERMANENT INDEFINITE FOR JUDGMENTS - CONTEMPT FINES ALTHOUGH A CONTEMPT OF COURT FINE WHICH WAS IMPOSED BY A FEDERAL COURT AGAINST AN EMPLOYEE ACTING IN COMPLIANCE WITH ADMINISTRATIVE REGULATIONS AND INSTRUCTIONS IS A JUDGMENT OF A COURT, A FINE IS DIFFERENT IN NATURE, PRINCIPLE AND PURPOSE FROM A JUDGMENT WHICH IS PAYABLE FROM THE PERMANENT INDEFINITE APPROPRIATION ESTABLISHED BY SECTION 1302 OF THE ACT OF JULY 27, 1956, 31 U.S.C. 724 A, AND, THEREFORE, WHILE THE CONTEMPT FINE MAY NOT BE PAID FROM THE PERMANENT APPROPRIATION FOR JUDGMENTS, IF THERE IS AN ADMINISTRATIVE DETERMINATION THAT THE FINE WAS INCURRED IN THE ACCOMPLISHMENT OF OFFICIAL BUSINESS FOR WHICH THE DEPARTMENT'S SALARIES AND EXPENSES APPROPRIATION IS MADE, THE FINE WOULD BE PAYABLE FROM SUCH APPROPRIATION.

TO THE ACTING ATTORNEY GENERAL, NOVEMBER 27, 1964:

REFERENCE IS MADE TO LETTER OF OCTOBER 23, 1964, WITH ENCLOSURES,ACKNOWLEDGED NOVEMBER 13, FROM THE ASSISTANT ATTORNEY GENERAL FOR ADMINISTRATION, REQUESTING TO BE ADVISED AS TO WHETHER THE APPROPRIATIONS MADE FOR THE DEPARTMENT OF JUSTICE OR ANY OTHER FUND IS AVAILABLE FOR THE PAYMENT OF A FINE OF $500 IMPOSED BY THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, ON AN EMPLOYEE OF THE DEPARTMENT'S FEDERAL BUREAU OF INVESTIGATION FOR AN OFFENSE COMMITTED WHILE IN THE PERFORMANCE OF HIS OFFICIAL DUTIES.

THE ASSISTANT ATTORNEY GENERAL STATES IN HIS LETTER THAT THE DEPARTMENT DESIRES TO COMPLY WITH THE COURT'S DIRECTIVE FOR PAYMENT OF THE CONTEMPT FINE, IF POSSIBLE, AND SUGGESTS USE OF THE FUNDS APPROPRIATED BY THE AUTOMATIC PAYMENT OF JUDGMENTS ACT, 31 U.S.C. 724A, FOR SUCH PURPOSE.

IT APPEARS FROM THE RECORD THAT DURING A PROCEEDING ENTITLED SAM GIANCANA V. J. EDGAR HOOVER AND MARLIN W. JOHNSON, HELD IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS ON PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION TO SECURE AND PROTEST HIS CIVIL RIGHTS BY REASON OF CERTAIN ALLEGED ACTIVITIES BY AGENTS OF THE FEDERAL BUREAU OF INVESTIGATION, THE COURT ORDERED JOHNSON, AGENT IN CHARGE, CHICAGO OFFICE OF THE FEDERAL BUREAU OF INVESTIGATION, TO ANSWER CERTAIN QUESTIONS PUT TO HIM BY PLAINTIFF'S COUNSEL. SEE SAM GIANCANNA V. J. EDGAR HOOVER, 322 F.2D 789 (1963). JOHNSON DECLINED TO ANSWER THE QUESTIONS DESPITE THE COURT'S ORDER ON THE GROUNDS OF CERTAIN DEPARTMENT REGULATIONS AND SPECIFIC INSTRUCTIONS RECEIVED FROM THE ATTORNEY GENERAL OF THE UNITED STATES, WHICH REGULATIONS AND INSTRUCTIONS WERE BROUGHT TO THE ATTENTION OF THE COURT AND MADE A PART OF THE RECORD.

THE DISTRICT COURT HELD THAT JOHNSON WAS NOT JUSTIFIED IN HIS REFUSAL TO ANSWER THE QUESTIONS, AND IN A RELATED ACTION ENTERED ITS SUMMARY ORDER OF COMMITMENT FOR CRIMINAL CONTEMPT AGAINST HIM. JOHNSON WAS FINED $500 FOR HIS REFUSAL TO ANSWER UNDER AUTHORITY OF 18 U.S.C. 401 AND 18 U.S.C. APP. RULE 42 (A), FEDERAL RULES OF CRIMINAL PROCEDURE. THE UNITED STATES COURT OF APPEALS AFFIRMED THE CONTEMPT ORDER OF THE DISTRICT COURT, IN THE CASE OF SAM GIANCANA V. MARLIN W. JOHNSON, 335 F.2D 372 (7TH CIR. 1964), AND THE DEPARTMENT HAS DECIDED AGAINST APPEAL OF THE MATTER TO THE UNITED STATES SUPREME COURT.

THUS, IT IS CLEAR THAT THE OFFENSE FOR WHICH JOHNSON WAS CHARGED AND FINED AROSE BY REASON OF THE PERFORMANCE OF HIS DUTIES AS AN EMPLOYEE OF THE DEPARTMENT'S FEDERAL BUREAU OF INVESTIGATION AND HIS COMPLIANCE WITH DEPARTMENT REGULATIONS AND INSTRUCTIONS, AND WAS WITHOUT FAULT OR NEGLIGENCE ON HIS PART. IT HAS BEEN HELD THAT WHERE AN OFFICER OR EMPLOYEE OF THE GOVERNMENT IS SUED BECAUSE OF SOME OFFICIAL ACT DONE IN THE DISCHARGE OF AN OFFICIAL DUTY THE EXPENSE INCURRED BY HIM IN THE DISCHARGE OF SUCH DUTIES SHOULD BE BORNE BY THE UNITED STATES. SEE 15 COMP. DEC. 620; 9 OP.ATTY.GEN. 51, 52; ID. 146, 148. CF. 31 COMP. GEN. 246.

WITH REFERENCE TO THE SOURCE OF FUNDS THAT MAY BE USED IN PAYMENT OF THE FINE, WE WISH TO POINT OUT THAT WHILE A FINE IMPOSED FOR A CONTEMPT OF COURT IS A JUDGMENT OF THE COURT, A FINE IN ITS NATURE, PRINCIPLE, AND PURPOSE IS A VERY DIFFERENT THING FROM THE JUDGMENTS THE PAYMENT OF WHICH THE CONGRESS HAD IN VIEW IN ENACTING THE PERMANENT APPROPRIATION ESTABLISHED BY SECTION 1302 OF THE ACT OF JULY 27, 1956, 70 STAT. 694, AS AMENDED, 31 U.S.C. 724A (SUPP. V). SEE EX PARTE SHULL, 121 S.W. 10, 11; FRABIZZIO V. STATE, 59 A.2D 452; WORDS AND PHRASES "FINE," VOL. 17, P. 52. CONSEQUENTLY, WE DO NOT BELIEVE THE USE OF THIS PERMANENT APPROPRIATION FOR PAYMENT OF THE CONTEMPT FINE IS PROPER.

ON THE OTHER HAND, IT IS A SETTLED RULE THAT WHERE AN APPROPRIATION IS MADE FOR A PARTICULAR OBJECT BY IMPLICATION IT CONFERS AUTHORITY TO INCUR EXPENSES WHICH ARE NECESSARY OR PROPER OR INCIDENT TO THE ACCOMPLISHMENT OF THE OBJECT OR PURPOSE FOR WHICH MADE, EXCEPT AS TO EXPENDITURES IN CONTRAVENTION OF LAW, OR FOR SOME PURPOSE FOR WHICH OTHER APPROPRIATIONS ARE MORE SPECIFICALLY AVAILABLE. SEE 38 COMP. GEN. 782, 785; 32 ID. 326. THE APPROPRIATION "SALARIES AND EXPENSES, FEDERAL BUREAU OF INVESTIGATION," CONTAINED IN THE DEPARTMENTS OF STATE, JUSTICE, AND COMMERCE, THE JUDICIARY, AND RELATED AGENCIES APPROPRIATION ACT, 1964, PUBLIC LAW 88-245, APPROVED DECEMBER 30, 1963, 77 STAT. 776, 782, PROVIDES IN GENERAL TERMS FOR, AMONG OTHER THINGS,"FOR EXPENSES NECESSARY FOR THE DETECTION AND PROSECUTION OF CRIMES AGAINST THE UNITED STATES * * *.'

WHETHER THE CONTEMPT FINE IMPOSED ON JOHNSON WAS NECESSARILY INCURRED IN THE ACCOMPLISHMENT OF OFFICIAL BUSINESS FOR WHICH THE APPROPRIATION WAS MADE IS, OF COURSE, A FACTUAL MATTER PRIMARILY FOR ADMINISTRATIVE DETERMINATION IN THE LIGHT OF THE CIRCUMSTANCES OF THE PARTICULAR CASE. ACCORDINGLY, AND SINCE IT APPEARS FROM THE FACTS REPORTED AND OUTLINED HEREIN THAT THE EXPENSE OF THE FINE REASONABLY WOULD FALL INTO THAT CATEGORY, WE CONCLUDE THAT PAYMENT OF THE CONTEMPT FINE OF $500 MAY BE REGARDED AS A PROPER CHARGE AGAINST THIS APPROPRIATION.