B-167831, SEP. 22, 1969

B-167831: Sep 22, 1969

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DUNN AND CRUTCHER: THIS IS IN REFERENCE TO YOUR LETTER OF AUGUST 29. YOU STATE THAT YOUR CLIENT WAS A SUBCONTRACTOR TO THE LOCKHEED AIRCRAFT CORPORATION. WHICH IS ALSO A DEFENDANT IN THE PENDING ACTION. 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 SOLE DUTY OF THE ATTORNEY GENERAL. IT IS OUR OPINION THAT THE QUESTION OF WHETHER THE UNITED STATES WILL PARTICIPATE IN THE DEFENSE OF THE ACTION AGAINST YOUR CLIENT IS TO BE DECIDED BY THE DEPARTMENT OF JUSTICE.

B-167831, SEP. 22, 1969

TO GIBSON, DUNN AND CRUTCHER:

THIS IS IN REFERENCE TO YOUR LETTER OF AUGUST 29, 1969, WHEREIN YOU TENDERED TO OUR OFFICE AMONG OTHER GOVERNMENT AGENCIES, A REQUEST TO DEFEND IN A LEGAL ACTION BROUGHT AGAINST YOUR CLIENT, MENASCO MANUFACTURING COMPANY (MENASCO), BY THE COMMONWEALTH OF AUSTRALIA IN THE UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA, FOR DAMAGES IN THE AMOUNT OF $5,115,542.36 RESULTING FROM TOTAL DESTRUCTION OF A LOCKHEED P-3B ORION AIRCRAFT, INITIALLY PURCHASED BY THE UNITED STATES GOVERNMENT AND RE-SOLD BY IT TO THE GOVERNMENT OF AUSTRALIA. YOU STATE THAT YOUR CLIENT WAS A SUBCONTRACTOR TO THE LOCKHEED AIRCRAFT CORPORATION, THE MANUFACTURER OF THE DESTROYED PLANE, WHICH IS ALSO A DEFENDANT IN THE PENDING ACTION.

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 SOLE DUTY OF THE ATTORNEY GENERAL, AS CHIEF LAW OFFICER OF THE GOVERNMENT, TO INSTITUTE, PROSECUTE, COMPROMISE AND DEFEND ACTIONS ON BEHALF OF THE UNITED STATES IN MATTERS INVOLVING COURT PROCEEDINGS. THINK THIS RULE EXTENDS TO YOUR DEMAND THAT THE UNITED STATES GOVERNMENT FURNISH COUNSEL IN DEFENSE OF THE ACTION BROUGHT AGAINST YOUR CLIENT, AND THAT THE GOVERNMENT INDEMNIFY, SAVE AND HOLD HARMLESS MENASCO FROM ALL LOSSES AND DAMAGES OF EVERY KIND AND CHARACTER. 28 U.S.C. 516. SEE RICHTER V UNITED STATES, 190 F.SUPP. 159, AFFIRMED 296 F.2D 509, CERT. DENIED 369 U.S. 828.

IN VIEW OF THE FOREGOING, IT IS OUR OPINION THAT THE QUESTION OF WHETHER THE UNITED STATES WILL PARTICIPATE IN THE DEFENSE OF THE ACTION AGAINST YOUR CLIENT IS TO BE DECIDED BY THE DEPARTMENT OF JUSTICE, AND WE THEREFORE MUST DECLINE TO COMPLY WITH THAT PORTION OF YOUR REQUEST WHICH ASKS THAT THIS OFFICE JOIN IN SUCH DEFENSE.