B-185734 June 14, 1977

B-185734: Jun 14, 1977

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Treen: This is in reference to your letter dated May 10. Whether there is any provision of law or regulations whereby a claimant may pursue directly with the Department of the Army. A "stay order" was issued in that matter on October 6. The enclosure further asserts that since the Department of the Army has made a determination that the decision to discharge the member was unlawful and that he has been retained as an officer in the U.S. We have no information as to the facts in the case of Lieutenant Colonel Chambers other than the statements set forth in the enclosure to your letter. We are not aware of any law authorizing payment by the Government of private attorney's fees incurred in circumstances such as described.

B-185734 June 14, 1977

The Honorable David C. Treen House of Representatives

Dear Mr. Treen:

This is in reference to your letter dated May 10, 1977, in which you requested advice as to the proper procedures for pursuing a claim under the Meritorious Claims Act, the acat of April 10, 1928, ch. 334, 45 Stat. 413, 31 U.S.C. 236 (1970). Also, whether there is any provision of law or regulations whereby a claimant may pursue directly with the Department of the Army, a claim for attorney's fees against the United States in the circumstances described.

According to the enclosure which accompanied your letter, Lieutenant Colonel Benjamin chambers, Jr., a member of the United States Army Reserve, incurred certain legal fees in connection with an action brought in Federal court to enjoin the Secretary of the Army from denying his reversion rights to former enlisted status. A "stay order" was issued in that matter on October 6, 1975, and remained in effect and unchallenged until withdrawn without prejudice on January 28, 1977. The enclosure further asserts that since the Department of the Army has made a determination that the decision to discharge the member was unlawful and that he has been retained as an officer in the U.S. Army and in fact has been promoted, it appears that he would be entitled to equitable relief from the loss of expensive attorney's fees.

We have no information as to the facts in the case of Lieutenant Colonel Chambers other than the statements set forth in the enclosure to your letter. However, we are not aware of any law authorizing payment by the Government of private attorney's fees incurred in circumstances such as described.

Generally, the employment and payment of an attorney is a matter between the claimant and the attorney and, in the absence of a statutory provision or a valid agreement based on a statutory provision, there is no authority for payment of such an attorney's fee by the Government. 28 U.S.C. 2412 (1970). Compare Edelman v. United States, 117 Ct. Cl 400, 413 (1950), and Piggly Wiggly v. United States, 112 Ct. Cl. 391, 432 (1949); B-185612, August 12, 1976, copy enclosed. We are not aware of any provision in law or regulation that a claim for attorney's fees in the circumstances described could be pursued directly with the Department of the Army or any other Government agency.

Conerning the application of the Meritorious Claims Act of 1928, 45 Stat. 413, 31 U.S.C. 236 (1970), that act provides as follows:

"When there is filed in the General Accounting Office a claim or demand against the United States that may not lawfully be adjusted by the use of an appropriation theretofore made, but which claim or demand in the judgment of the Comptroller General of the United States contains such elements of legal liability or equity as to be deserving of the consideration of the Congress, he shall submit the same to the Congress by a special report containing the material facts and his recommendation thereon."

As can be seen from these provisions, the Comptroller General is authorized to refer claims to the Congress which in his judgment are deemed meritorious. Such referrals become matters for consideration of Congress only if introduced by an appropriate member as a bill. The act gives no authority to the Comptroller General to authorize payment of claims which may not otherwise be legally paid.

It has been the consistent position of this Office that the procedure provided by the Meritorious Claims Act is an extraordinary one, and its use is limited to extrordinary circumstances. The cases reported for the consideration of the Congress generally involve 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.

In the case presented there appear to be no elements of unusual legal liability or equity which would justify reporting the claim to the Congress for its consideration under the Meritorious Claims Act. On the contrary it is well established that the United States is not liable for attorney's fees incurred by individuals in actions against the United States.

We trust this serves the purpose of your inquiry and regret that we are unable to provide a more favorable response. We are returning herewith the enclosure with your letter.

Sincerely yours,

R. F. KELLER Deputy Comptroller General of the United States

Enclosures - 2