B-181992, MAR 31, 1975

B-181992, MAR 31, 1975

FEDERAL EMPLOYEE'S CLAIM FOR LEGAL FEES INCURRED IN CONNECTION WITH A DEPOSITION IN A CIVIL SUIT IS NOT RECOMMENDED TO CONGRESS FOR PAYMENT UNDER THE MERITORIOUS CLAIMS ACT. THERE IS NO ELEMENT OF LEGAL LIABILITY OR EQUITY DESERVING OF CONSIDERATION BY CONGRESS BECAUSE AN AGENCY ATTORNEY REPRESENTED THE EMPLOYEE AT THE DEPOSITION WITH RESPECT TO THE PROPER EXERCISE OF HIS DUTIES AS AN EMPLOYEE, AND BECAUSE THE EMPLOYEE RETAINED PRIVATE COUNSEL TO PROTECT HIMSELF AGAINST THE REMOTE POSSIBILITY OF CRIMINAL CHARGES ARISING OUT OF ACCUSATIONS OF IMPROPER CONDUCT MADE AGAINST HIM BY THE PLAINTIFF'S PRESIDENT.

CLAIM OF JOHN E. FLACK FOR PAYMENT OF LEGAL FEES UNDER THE MERITORIOUS CLAIMS ACT:

THIS DECISION TO JOHN E. FLACK, AN EMPLOYEE OF THE GENERAL SERVICES ADMINISTRATION (GSA) DENIES HIS REQUEST THAT A CLAIM FOR $857 IN LEGAL FEES HE INCURRED IN CONNECTION WITH HIS DEPOSITION IN A CIVIL ANTITRUST SUIT BE RECOMMENDED FOR CONSIDERATION BY CONGRESS UNDER THE MERITORIOUS CLAIMS ACT, 31 U.S.C. SEC. 236.

MR. FLACK IS EMPLOYED BY GSA AS A FEDERAL SUPPLY SERVICE QUALITY ASSURANCE SPECIALIST. AS AN ENGINEER HIS DUTIES ARE TO PROVIDE TECHNICAL GUIDANCE TO GSA FIELD INSPECTORS WHO INSPECT THE QUALITY OF THE CONTRACT ITEMS OF VARIOUS CONTRACTORS WHO SUPPLY GOODS TO THE GOVERNMENT. IN THE COURSE OF HIS DUTIES MR. FLACK HAS BEEN REQUIRED TO DETERMINE THE ACCEPTABILITY OF HAND POWER TOOLS WHICH BOSTON PNEUMATICS, INC., HAS OFFERED UNDER SEVERAL CONTRACTS WITH GSA.

IN THE CIVIL ANTITRUST SUIT OF BOSTON PNEUMATICS, INC. V. INGERSOLL RAND CO., U.S.D.C., E.D. PA., CIVIL ACTION NO. 72-1729, THE PLAINTIFF ALLEGED THAT UNNAMED FEDERAL EMPLOYEES, ACTING ON BEHALF OF THEIR AGENCIES, ASSISTED THE DEFENDANT IN VIOLATING VARIOUS ANTITRUST LAWS. THE PLAINTIFF'S PRESIDENT, IN AN ORAL DEPOSITION, ALLEGED THAT JOHN E. FLACK, A GSA EMPLOYEE, RECEIVED MONETARY AND OTHER FAVORS FROM THE DEFENDANT IN RETURN FOR DIVERTING GOVERNMENT CONTRACT BUSINESS FROM THE PLAINTIFF TO THE DEFENDANT OR ITS COCONSPIRATORS.

THEREUPON, MR. FLACK, AND SEVERAL OTHER GSA EMPLOYEES WERE NOTIFIED BY THE DEFENDANT TO APPEAR FOR ORAL DEPOSITIONS DURING THE WEEK OF JANUARY 14, 1974. THE DEPARTMENT OF JUSTICE DECLINED TO REPRESENT GSA AT THAT TIME STATING THAT, SINCE NEITHER GSA NOR ANY OF ITS EMPLOYEES WAS A PARTY TO THE LAWSUIT, THE INTERVENTION OF THE DEPARTMENT OF JUSTICE WOULD BE PREMATURE.

A GSA ATTORNEY WAS AUTHORIZED TO REPRESENT MR. FLACK AT HIS DEPOSITION HEARING, BUT ONLY WITH REGARD TO THE PROPER EXERCISE OF HIS DUTIES AS A GSA EMPLOYEE. SINCE THE ALLEGATIONS AGAINST MR. FLACK CONCERNED POSSIBLE CRIMINAL CONDUCT, IT WAS SUGGESTED THAT HE CONSIDER RETAINING PRIVATE COUNSEL TO REPRESENT HIM FOR ANY ALLEGED ACTS WHICH MIGHT BE CRIMINAL IN NATURE. MR. FLACK DID RETAIN PRIVATE COUNSEL AND AT HIS DEPOSITION HE WAS REPRESENTED BY BOTH A GSA ATTORNEY AND A PRIVATE ATTORNEY.

GSA'S POSITION IS THAT IT WAS PRECLUDED FROM REPRESENTING MR. FLACK FOR ALLEGED ACTIVITIES BEYOND THE SCOPE OF HIS WORK AS A GSA EMPLOYEE, AND THAT IT IS ALSO BARRED FROM PAYING THE EXPENSE HE INCURRED IN OBTAINING PRIVATE COUNSEL TO PROTECT HIS INTERESTS.

ALTHOUGH THE LITIGATION IS STILL IN PROGRESS, GSA HAS STATED THAT IT HAS NO REASON TO BELIEVE THE PLAINTIFF'S ACCUSATIONS AGAINST MR. FLACK AND THAT HIS ACTIONS APPEAR TO HAVE BEEN PROPER IN ALL RESPECTS.

THE MERITORIOUS CLAIMS ACT PROVIDES THAT WHEN A CLAIM IS FILED IN THIS OFFICE THAT MAY NOT BE LAWFULLY ADJUSTED BY USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM, IN OUR JUDGMENT, CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF CONGRESS, IT SHALL BE SUBMITTED TO THE CONGRESS WITH OUR RECOMMENDATIONS. THE REMEDY IS AN EXTRAORDINARY ONE AND ITS USE IS LIMITED TO EXTRAORDINARY CIRCUMSTANCES.

THE CASES WE HAVE REPORTED FOR THE CONSIDERATION OF THE CONGRESS GENERALLY HAVE INVOLVED EQUITABLE CIRCUMSTANCES OF AN UNUSUAL NATURE AND WHICH ARE UNLIKELY TO CONSTITUTE A RECURRING PROBLEM, SINCE TO REPORT TO THE CONGRESS A PARTICULAR CASE WHEN SIMILAR EQUITIES EXIST OR ARE LIKELY TO ARISE WITH RESPECT TO OTHER CLAIMANTS WOULD CONSTITUTE PREFERENTIAL TREATMENT OVER OTHERS IN SIMILAR CIRCUMSTANCES. SEE B 175278, APRIL 12, 1972. 53 COMP. GEN. 157 (1973).

WE NOTE FIRST THAT AN ATTORNEY OF THE GSA WAS AUTHORIZED TO REPRESENT MR. FLACK AT THE DEPOSITION WITH RESPECT TO THE PROPER EXERCISE OF HIS DUTIES AS A GSA EMPLOYEE, AND THAT THE GSA ATTORNEY DID IN FACT REPRESENT HIM AT THE DEPOSITION. WE NOTE FURTHER THAT THERE IS NO INDICATION THAT MR. FLACK WAS THREATENED WITH ANY ADVERSE ACTION BY GSA AS A RESULT OF THE PLAINTIFF'S CHARGES. FINALLY, ALTHOUGH IT APPEARS FROM THE RECORD THAT GSA SUGGESTED TO MR. FLACK THAT HE SHOULD CONSIDER RETAINING PRIVATE COUNSEL FOR ANY ACTS THAT MIGHT BE CONSTRUED TO BE CRIMINAL IN NATURE, AND THAT MR. FLACK ADVISED GSA REPRESENTATIVE THAT HE WAS RETAINING HIS OWN ATTORNEY AND EXPECTED GSA TO REIMBURSE HIM FOR THE COSTS, THERE IS NO EVIDENCE THAT HE WAS TOLD THE GOVERNMENT WOULD PAY ANY LEGAL FEE INVOLVED.

THUS, MR. FLACK'S DECISION TO RETAIN A PRIVATE LAWYER WHEN HE KNEW THAT AN AGENCY ATTORNEY WOULD BE PRESENT AT THE DEPOSITION TO REPRESENT HIM IN CONNECTION WITH HIS DUTIES AS A GSA EMPLOYEE WAS A PERSONAL DECISION TO PROTECT HIMSELF AGAINST THE POSSIBILITY OF FUTURE CRIMINAL CHARGES. ANY LEGAL EXPENSE RESULTING FROM THAT DECISION REPRESENTS A PERSONAL EXPENSE OF MR. FLACK FOR WHICH WE FIND NO BASIS TO RECOMMEND THE CLAIM TO CONGRESS FOR PAYMENT UNDER THE MERITORIOUS CLAIMS ACT.