B-148069, FEBRUARY 12, 1962, 41 COMP. GEN. 541

B-148069: Feb 12, 1962

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JUDICIARY APPROPRIATIONS AN ORDER BY A UNITED STATES DISTRICT COURT REQUIRING THE GOVERNMENT TO PAY TRAVEL EXPENSES AND A FEE OF A PLAINTIFF'S ATTORNEY IN CONNECTION WITH THE TAKING OF DEPOSITIONS BY THE GOVERNMENT INCIDENT TO A CIVIL SUIT BROUGHT AGAINST THE UNITED STATES BY A SERVICEMAN WHO IS NOT ABLE TO AFFORD THE EXPENSE. IS. WITHIN THE DISCRETION OF THE COURT TO REQUIRE THE PARTY AT WHOSE INSTANCE A DEPOSITION IS TAKEN TO PAY REASONABLE EXPENSES. THE UNITED STATES AS THE PARTY MOVING TO TAKE THE DEPOSITION IS SUBJECT TO THE COURT'S DISCRETION. PAYMENT OF THE TRAVEL EXPENSES AND THE FEE OF THE PLAINTIFF'S ATTORNEY IS APPROVED. COSTS FOR TRAVEL OF A PLAINTIFF'S ATTORNEY AND THE ATTORNEY'S FEE IN CONNECTION WITH THE TAKING OF A DEPOSITION BY THE GOVERNMENT IN A SUIT BROUGHT AGAINST THE GOVERNMENT BY A SERVICEMAN WHO IS NOT ABLE TO AFFORD THE EXPENSE ARE REGARDED AS COSTS INCURRED BY THE GOVERNMENT IN PREPARING ITS DEFENSE RATHER THAN AS ATTORNEY'S EXPENSES AND FEES CHARGEABLE TO JUDICIARY APPROPRIATIONS.

B-148069, FEBRUARY 12, 1962, 41 COMP. GEN. 541

COURTS - COSTS - GOVERNMENT LIABILITY - DEPOSITIONS - APPROPRIATIONS - JUSTICE DEPARTMENT - LITIGATION EXPENSES - JUSTICE V. JUDICIARY APPROPRIATIONS AN ORDER BY A UNITED STATES DISTRICT COURT REQUIRING THE GOVERNMENT TO PAY TRAVEL EXPENSES AND A FEE OF A PLAINTIFF'S ATTORNEY IN CONNECTION WITH THE TAKING OF DEPOSITIONS BY THE GOVERNMENT INCIDENT TO A CIVIL SUIT BROUGHT AGAINST THE UNITED STATES BY A SERVICEMAN WHO IS NOT ABLE TO AFFORD THE EXPENSE, ALTHOUGH HE DID NOT BRING THE SUIT AS AN INDIGENT PLAINTIFF (FORMA PAUPERIS), IS, UNDER RULE 30 (B) OF THE FEDERAL RULES OF CIVIL PROCEDURE, 28 U.S.C. APP. RULE 30 (B) ( CIVIL PROC.), WITHIN THE DISCRETION OF THE COURT TO REQUIRE THE PARTY AT WHOSE INSTANCE A DEPOSITION IS TAKEN TO PAY REASONABLE EXPENSES, INCLUDING ATTORNEY'S FEES, AND THE UNITED STATES AS THE PARTY MOVING TO TAKE THE DEPOSITION IS SUBJECT TO THE COURT'S DISCRETION; THEREFORE, PAYMENT OF THE TRAVEL EXPENSES AND THE FEE OF THE PLAINTIFF'S ATTORNEY IS APPROVED. COSTS FOR TRAVEL OF A PLAINTIFF'S ATTORNEY AND THE ATTORNEY'S FEE IN CONNECTION WITH THE TAKING OF A DEPOSITION BY THE GOVERNMENT IN A SUIT BROUGHT AGAINST THE GOVERNMENT BY A SERVICEMAN WHO IS NOT ABLE TO AFFORD THE EXPENSE ARE REGARDED AS COSTS INCURRED BY THE GOVERNMENT IN PREPARING ITS DEFENSE RATHER THAN AS ATTORNEY'S EXPENSES AND FEES CHARGEABLE TO JUDICIARY APPROPRIATIONS; THEREFORE, SUCH COSTS ARE CHARGEABLE TO APPROPRIATIONS OF THE DEPARTMENT OF JUSTICE FOR LEGAL ACTIVITIES.

TO THE ATTORNEY GENERAL, FEBRUARY 12, 1962:

BY LETTER OF JANUARY 29, 1962, THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL TRANSMITTED A REQUEST (YOUR DEPARTMENT'S FORM 25 B) FROM THE UNITED STATES ATTORNEY AT WILMINGTON FOR AUTHORITY TO PAY CERTAIN EXPENSES FOR TRAVEL OF THE PLAINTIFF'S ATTORNEY TO BE PRESENT AT THE TAKING OF DEPOSITIONS BY THE GOVERNMENT IN CONNECTION WITH LEONARD G. GLASSPOOL AND CAROLE A. GLASSPOOL V. UNITED STATES, CIVIL ACTION NO. 2173, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE. THE EXPENSES INVOLVED TOTAL $1,155.43 AND COVER PER DIEM ALLOWANCES, TRAVELING EXPENSES AND AN ATTORNEY'S FEE. ALSO INCLUDED WITH THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL'S LETTER WAS A COPY OF THE COURT'S ORDER STIPULATING THAT PAYMENT OF THESE ITEMS BY THE GOVERNMENT SHALL BE A CONDITION PRECEDENT TO THE TAKING OF THE DEPOSITIONS AND RESERVING JURISDICTION WITH RESPECT TO TAXING THEM AT A LATER DATE AS COSTS OF THE PROCEEDINGS.

THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL STATES THAT THE PLAINTIFF IN THE CASE IS A SERVICEMAN SUING FOR APPROXIMATELY $800,000 AND THAT THE TAKING OF THE DEPOSITIONS IS DEEMED THE ONLY SATISFACTORY MEANS FOR OBTAINING NECESSARY INFORMATION. HE STATES FURTHER THAT GOVERNMENT COUNSEL ARGUED IN OPPOSITION TO THE PLAINTIFF'S REQUEST FOR PAYMENT OF HIS ATTORNEY'S EXPENSES, ADDING THAT, WHILE THE PLAINTIFF DID NOT ENTER SUIT IN FORMA PAUPERIS, IT APPEARS THE GOVERNMENT IS BEING ORDERED TO PAY BECAUSE THE PLAINTIFF CANNOT AFFORD THE EXPENSE.

OUR OPINION IS REQUESTED AS TO WHETHER THE EXPENSES SHOWN ON THE DEPARTMENT FORM 25 B REFERRED TO US MAY PROPERLY BE APPROVED FOR PAYMENT AND, IF SO, WHETHER THE PAYMENT MAY BE MADE FROM FUNDS OF YOUR DEPARTMENT OR THOSE OF THE JUDICIARY.

THE COURT ORDERED IN THIS CASE WAS ISSUED UNDER RULE 30 (B) OF THE FEDERAL RULES OF CIVIL PROCEDURE, 28 U.S.C. APP., WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

AFTER NOTICE IS SERVED FOR TAKING A DEPOSITION BY ORAL EXAMINATION, UPON MOTION SEASONABLY MADE BY ANY PARTY OR BY THE PERSON TO BE EXAMINED AND UPON NOTICE AND FOR GOOD CAUSE SHOWN, THE COURT IN WHICH THE ACTION IS PENDING MAY MAKE * * * ANY * * * ORDER WHICH JUSTICE REQUIRES TO PROTECT THE PARTY OR WITNESS FROM ANNOYANCE, EMBARRASSMENT, OR OPPRESSION.

THERE WOULD NOT APPEAR TO BE ANY QUESTION BUT THAT UNDER RULE 30 (B) IT LIES WITHIN THE DISCRETION OF THE COURTS TO REQUIRE A PARTY AT WHOSE INSTANCE A DEPOSITION IS TAKEN TO PAY THE REASONABLE EXPENSES, INCLUDING ATTORNEY'S FEE, INCURRED BY THE ADVERSE PARTY FOR HIS REPRESENTATION BY COUNSEL AT THE TAKING OF THE DEPOSITION. SEE GIBSON V. INTERNATIONAL FREIGHTING CORPORATION, 173 F.2D 591, 596 (1949); VARELTZIS V. LUCKENBACH STEAMSHIP COMPANY, 20 F.R.D. 383 (1956); MORRISON EXPORT CO. V. GOLDSTONE, 12 F.R.D. 258 (1952); TRANS WORLD FILMS, 11 F.R.D. 197 (1951); AND THE ANNOTATION AT 70 A.L.R.2D 758, COSTS AND FEES. NOR DOES THERE APPEAR TO BE ANY QUESTION BUT THAT THE UNITED STATES, AS A PARTY MOVING TO TAKE DEPOSITIONS, IS SUBJECT TO THE COURT'S DISCRETION IN THIS REGARD. NORTH ATLANTIC AND GULF S.S. CO. V. UNITED STATES, 209 F.2D 487, 490 (1954). AND WE DO NOT FIND ANYTHING IN THE CIVIL RULES OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE WHICH WOULD OPERATE TO ABROGATE THE GENERAL DISCRETION GRANTED BY RULE 30 (B). THEREFORE, IN THE ABSENCE OF ANY INDICATION THAT THE ORDER HERE INVOLVED WAS AN ABUSE OF THE COURT'S DISCRETION, WE ARE OF THE OPINION THAT THE EXPENSES AND ATTORNEY'S FEE QUESTIONED MAY PROPERLY BE APPROVED FOR PAYMENT.

AS TO WHOSE APPROPRIATIONS ARE CHARGEABLE WITH THESE ITEMS, THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL SUGGESTS, BECAUSE IT APPEARS THE GOVERNMENT IS BEING ORDERED TO PAY DUE TO THE PLAINTIFF'S INABILITY TO AFFORD THE EXPENSE, THAT OUR DECISION OF AUGUST 27, 1959, TO YOU, 39 COMP. GEN. 133, CONCERNING SUITS BROUGHT IN FORMA PAUPERIS, MIGHT HAVE A BEARING IN THE MATTER. THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL APPARENTLY HAS REFERENCE TO OUR STATEMENT AT PAGE 135 OF THE DECISION THAT: " THE APPOINTMENT OF COUNSEL WOULD APPEAR TO BE THE RESPONSIBILITY OF THE COURT SYSTEM RELATED TO ASSURING THE DEFENDANT AN ADEQUATE FORUM FOR HIS CASE; AND, THEREFORE, PAYMENT BY THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS OF THE EXPENSES OF TRAVEL AND SUBSISTENCE OF THE INDIGENT'S ATTORNEY FOR ATTENDANCE AT A DEPOSITION EXAMINATION IS DEEMED PROPER UNDER RULE 15 (C) ( FEDERAL RULES OF CRIMINAL PROCEDURE, 18 U.S.C. APP.).' BUT THIS STATEMENT WAS MADE WITH REGARD TO DEPOSITIONS TO BE TAKEN AT THE INSTANCE OF INDIGENT DEFENDANTS IN CRIMINAL CASES FOR PROSECUTION OF THEIR DEFENSE, AND IS NOT APPLICABLE TO THE QUESTION BEING CONSIDERED. HERE THE DEPOSITIONS ARE TO BE TAKEN FOR THE CONVENIENCE OF THE GOVERNMENT; AND THE COURT, IN EFFECT, HAS RULED THAT, UNDER THE CIRCUMSTANCES INVOLVED, THE GOVERNMENT'S CONVENIENCE WILL NOT BE FURTHERED AT THE EXPENSE OF DEPRIVING THE PLAINTIFF OF HIS RIGHT TO CROSS-EXAMINE THE GOVERNMENT'S WITNESSES MERELY BECAUSE HE CANNOT AFFORD TO PAY THE COSTS OF ATTENDING THE DEPOSITION TAKING. AS THE COURT SAID IN THE NORTH ATLANTIC CASE, ABOVE, THERE IS A DISTINCTION TO BE DRAWN BETWEEN ATTORNEYS' FEES IN GENERAL WHICH ARE PAID ATTORNEYS BY PARTIES IN LITIGATION WITH THE GOVERNMENT, AND ATTORNEYS' FEES AND EXPENSES WHICH WERE THE BASIS FOR COMPUTING WHAT WAS HERE ALLOWED AS COSTS IN CONNECTION WITH THE TAKING OF A DEPOSITION. WHILE THE AMOUNT OF THE PAYMENT ORDERED TO BE MADE WAS MEASURED BY THE AMOUNT OF THE EXPENSES AND FEES OF AN ATTORNEY, NEVERTHELESS THE TOTAL AMOUNT WAS A LAWFULLY IMPOSED CONDITION UPON THE TAKING OF THE DEPOSITION AND WAS NOT IN THE NATURE OF COSTS IN THE ORDINARY SENSE.

APPLYING THE COURT'S REASONING IN THE NORTH ATLANTIC CASE WHICH LED TO THE CONCLUSION THAT PAYMENT BY THE GOVERNMENT OF A FEE FOR PLAINTIFF'S ATTORNEY UNDER CIRCUMSTANCES SIMILAR TO THOSE HERE INVOLVED DID NOT CONSTITUTE AN ASSESSMENT OF COSTS AGAINST THE GOVERNMENT WITHIN THE MEANING OF SECTION 2412 (C) OF TITLE 28, U.S.C. PROHIBITING THE ASSESSMENT OF ATTORNEY FEES AS COSTS IN ACTIONS BROUGHT UNDER THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. 2671, ET SEQ., WE CONCLUDE, WITH RESPECT TO THE APPROPRIATION QUESTION UNDER CONSIDERATION, THAT THE ITEMS OF EXPENSE IN QUESTION ARE TO BE CONSIDERED AS PART OF THE EXPENSE NECESSARILY INCURRED BY THE GOVERNMENT IN PREPARING ITS DEFENSE AND, AS SUCH, PROPERLY CHARGEABLE TO APPROPRIATIONS MADE TO THE DEPARTMENT OF JUSTICE FOR CARRYING OUT ITS LEGAL ACTIVITIES.