B-150010, NOV. 16, 1962

B-150010: Nov 16, 1962

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JUDGE SPEARS WAS SERVING IN HIS PRESENT OFFICE UNDER A RECESS APPOINTMENT AT THE TIME THE TRAVEL WAS PERFORMED. YOU SUGGESTED TO THE JUDGE THAT HE REFUND THE TRAVEL EXPENSE REIMBURSEMENT IN QUESTION APPARENTLY BECAUSE THE TRAVEL PERFORMED WAS NOT AUTHORIZED AS BEING INCIDENT TO OFFICIAL BUSINESS OF THE JUDICIARY. WE DO NOT FIND THAT WE PREVIOUSLY HAVE HAD OCCASION TO RULE UPON THE QUESTION WHETHER THE TRAVEL EXPENSE OF A RECESS APPOINTEE TO WASHINGTON TO APPEAR BEFORE THE COMMITTEE OF THE SENATE WHICH IS CONSIDERING THE CONFIRMATION OF HIS NOMINATION TO BE A FEDERAL JUDGE IS A PROPER CHARGE AGAINST APPROPRIATIONS FOR THE JUDICIAL BRANCH. YOU SAID: "WHILE THERE HAVE BEEN A NUMBER OF OCCASIONS IN THE PAST WHERE WE HAVE REIMBURSED A JUDGE FOR TRAVEL EXPENSE FOR A TRIP TO AND FROM WASHINGTON DURING WHICH HE TESTIFIED AT HIS OWN CONFIRMATION HEARING.

B-150010, NOV. 16, 1962

TO THE DIRECTOR ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS:

WE REFER TO THE PAYMENTS MADE PURSUANT TO THE TRAVEL VOUCHER OF THE HONORABLE ADRIAN A. SPEARS, DISTRICT JUDGE FOR THE WESTERN DISTRICT OF TEXAS, TO REIMBURSE HIM FOR THE COST OF TRAVELING FROM SAN ANTONIO, TEXAS, TO WASHINGTON, D.C., AND RETURN IN MARCH 1962, FOR THE PURPOSE OF APPEARING BEFORE A SUBCOMMITTEE OF THE SENATE JUDICIARY COMMITTEE AS A WITNESS AT THE HEARING HELD UPON THE CONFIRMATION OF HIS NOMINATION TO THE POSITION HE NOW HOLDS. JUDGE SPEARS WAS SERVING IN HIS PRESENT OFFICE UNDER A RECESS APPOINTMENT AT THE TIME THE TRAVEL WAS PERFORMED.

IN YOUR LETTER OF AUGUST 24, 1962, TO JUDGE SPEARS, A COPY OF WHICH YOU FURNISHED US PURSUANT TO OUR REQUEST FOR REPORT, DATED OCTOBER 5, 1962, YOU SUGGESTED TO THE JUDGE THAT HE REFUND THE TRAVEL EXPENSE REIMBURSEMENT IN QUESTION APPARENTLY BECAUSE THE TRAVEL PERFORMED WAS NOT AUTHORIZED AS BEING INCIDENT TO OFFICIAL BUSINESS OF THE JUDICIARY. THE VICE PRESIDENT HAS REFERRED TO US JUDGE SPEARS' LETTER TO HIM ASKING THAT THE PROPRIETY OF THE REQUESTED REFUND BE CONSIDERED BY US.

WE DO NOT FIND THAT WE PREVIOUSLY HAVE HAD OCCASION TO RULE UPON THE QUESTION WHETHER THE TRAVEL EXPENSE OF A RECESS APPOINTEE TO WASHINGTON TO APPEAR BEFORE THE COMMITTEE OF THE SENATE WHICH IS CONSIDERING THE CONFIRMATION OF HIS NOMINATION TO BE A FEDERAL JUDGE IS A PROPER CHARGE AGAINST APPROPRIATIONS FOR THE JUDICIAL BRANCH.

IN YOUR LETTER OF AUGUST 24, 1962, TO JUDGE SPEARS, SUGGESTING REFUND OF THE AMOUNT PAID TO HIM, YOU SAID:

"WHILE THERE HAVE BEEN A NUMBER OF OCCASIONS IN THE PAST WHERE WE HAVE REIMBURSED A JUDGE FOR TRAVEL EXPENSE FOR A TRIP TO AND FROM WASHINGTON DURING WHICH HE TESTIFIED AT HIS OWN CONFIRMATION HEARING, IT APPEARS THAT IN EVERY SUCH INSTANCE OTHER AND ADDITIONAL OFFICIAL BUSINESS REQUIRED THE JUDGE'S PRESENCE IN WASHINGTON. HE WAS PAID FOR THAT REASON AND NOT BECAUSE HE APPEARED AS A WITNESS BEFORE THE SENATE COMMITTEE.'

JUDGE SPEARS, IN HIS LETTER OF AUGUST 31, 1962, TO THE VICE PRESIDENT, A COPY OF WHICH HE SENT YOU, HAS THE FOLLOWING TO SAY REGARDING HIS TRIP TO WASHINGTON:

"NEEDLESS TO SAY, WHILE THE APPEARANCE BEFORE THE SUBCOMMITTEE WAS THE PRIMARY REASON FOR GOING TO WASHINGTON, WE DERIVED MANY BENEFITS FROM THE CONFERENCES WHICH ALL OF US HAD IN WASHINGTON WITH OFFICIALS OF THE ADMINISTRATIVE OFFICE * * *.'

DOUBTLESS, THE CONFERENCES TO WHICH JUDGE SPEARS REFERS BETWEEN HIMSELF AND THE OTHER JUDGES SIMILARLY SITUATED AND REPRESENTATIVES OF YOUR OFFICE COULD HAVE BEEN OF MATERIAL USE TO THOSE JUDGES ESPECIALLY SINCE THEY HAD NOT BEEN LONG IN OFFICE. THEREFORE, SHOULD YOU CONCLUDE THAT THE CONFERENCES WERE OF SUBSTANTIAL BENEFIT TO THE ADMINISTRATION OF THE JUDICIARY, WE WOULD INTERPOSE NO OBJECTION TO OTHERWISE PROPER PAYMENTS IN THESE CASES BASED UPON AN ADMINISTRATIVE APPROVAL OF THE TRAVEL.

REGARDING A CASE IN WHICH THE NOMINEE TRAVELS TO WASHINGTON SOLELY TO TESTIFY BEFORE A COMMITTEE OF THE SENATE IN BEHALF OF HIS CONFIRMATION BY THE SENATE AND WHO, WHILE IN WASHINGTON, PERFORMS NO OFFICIAL BUSINESS OF THE JUDICIARY, WE ARE OF THE OPINION THAT SO FAR AS THE USE OF JUDICIAL BRANCH APPROPRIATIONS IS CONCERNED SUCH TRAVEL IS PERSONAL TO THE NOMINEE AND THAT THE EXPENSE THEREOF SHOULD BE BORNE BY HIM.