B-181660 September 30, 1974

B-181660: Sep 30, 1974

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We have the honor to transmit our report and recommendation to the Congress concerning the clain of Mr. An identicial report is being transmitted to the President pro tempore of the Senate. It was apparently under the fear of a threat against his life and in view of an imminent attack upon his person by the employee. Who was standing nearby. The employee was suspended for 30 days. Andrews were exonerated from any blame in the matter. The supervisor's request was denied by the General Counsel of GSA. Apparently because at the time it was believed that he was the aggressor. Andrews request was also denied. Although no reason appears to have been given. The supervisor was cleared of the criminal charges.

B-181660 September 30, 1974

The Honorable Carl Albert Speaker of the House of Representatives

Dear Mr. Speaker:

Pursuant to the act of April 10, 1928, 45 Stat. 413, 31 U.S.C. 236, we have the honor to transmit our report and recommendation to the Congress concerning the clain of Mr. Joseph J. Andrews against the United States with the request that you present the same to the House of Representatives.

An identicial report is being transmitted to the President pro tempore of the Senate.

Sincerely yours,

Paul G. Dembling Acting Comptroller General of the United States

Enclosure

To the Congress of the United States:

Pursuant to the act of April 10, 1928, 45 Stat. 413, 31 U.S.C. 236, we submit the following report and recommendation on the claim of Mr. Joseph J. Andrews, an employee of the General Services Administration (GSA) in the amount of $225 for legal expenses he incurred incident to a court action brought against him by fellow GSA employee.

The facts indicate that on or about December 4, 1968, an incident occurred involving a fight between a custodial shift supervisor and a subordinate employee while on duty at a Federal building in Newark, New Jersey. Although the supervisor struck the only blow, it was apparently under the fear of a threat against his life and in view of an imminent attack upon his person by the employee.

Mr. Andrews, who was standing nearby, became involved in the incident, only to the extent that he intervened to separate the two men.

As a reslut of the incident, the employee was suspended for 30 days, by Region 2, GSA, and the supervisor and Mr. Andrews were exonerated from any blame in the matter. However, on December 1, 1970, the employee brought a civil action against the supervisor and Mr. Andrews, as well as criminal charges against the supervisor. Thereafter, both the supervisor and Mr. Andrews requested that a U.S. Attorney represent them in their pending litigation.

The supervisor's request was denied by the General Counsel of GSA, apparently because at the time it was believed that he was the aggressor. Mr. Andrews request was also denied, although no reason appears to have been given.

Represented by a private attorney, the supervisor was cleared of the criminal charges.

Thereafter, the supervisor and Mr. Andrews renewed their requests for representation by a United States Attorney and on January 5, 1972, the General Counsel of GSA endorsed both their requests for legal representation to the United States Attorney for the District of New Jersey stating:

"***we believe that their actions were within the scope and color of their employment and resulted directly from circumstances arising out of their employment which were beyond their control."

United States Attorneys were assigned to defend the civil action against the supervisor and Mr. Andrews, and they were successful in having the complaint dismissed.

However, Mr. Andrews was billed, and paid, $225 to an attorney for preparation of his defense to the civil action prior to the intervention of the United States Attorney. Mr. Andrews submitted a claim for $225 to GSA, but he was advised that the Department of Justice had ruled that although "as a matter of fairness reinbursement should probably be made," it would be unlawful for either the Department of Justice or GSA to do so, there being no funds lawfully available to either for such purposes.

However, at the suggestion of the Department of Justice, Mr. Andrews, witht he assistance of GSA, submitted a claim for $225 for our consideration under the Meritorious Claims Act of 1928.

We believe that this claim contains such elements of equity as to be deserving of the consideration of Congress.

If the Congress should concur in our recommendation, our opinion is that enactment of a statute in substantially the following language will accomplish the relief recommended:

"Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled. That the Comptroller General of the United States be, and hereby is authorized and directed to settle and adjust the claim of Joseph J. Andrews, an employee of the General Service Administration, for reinbursement of the amount he was required to pay in legal fees for preparation of his defense to a civil suit instituted against him by Burman Anderson. An amount not to exceed $225 may be allowed in full and final settlement of the claim. There is appropriated out of money in the Treasury not otherwise appropriated the sum of $225 for payment of said claim. No part of the amount appropriated in this act shall be paid or delivered to or received by any agent or attorney on account of services rendered in connection with this claim, and the some shall be unlawful, any contract to the contrary notwithstanding. Any person violating the provisions of this act shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in any sum not exceeding $1,000."

Paul G. Dembling Acting Comptroller General of the United States