B-22815, JANUARY 15, 1942, 21 COMP. GEN. 667

B-22815, JANUARY 15, 1942, 21 COMP. GEN. 667

COURTS - DEFENDANTS ABSENT IN MILITARY SERVICE - ATTORNEYS' COMPENSATION AND COURT FEES NEITHER THE ALASKA "C" FUND NOR ANY OTHER APPROPRIATED MONEYS ARE AVAILABLE FOR THE PAYMENT OF COMPENSATION TO ATTORNEYS WHO ARE APPOINTED PURSUANT TO THE SOLDIERS AND SAILORS CIVIL RELIEF ACT OF 1940 TO REPRESENT IN COURT PROCEEDINGS DEFENDANTS WHO ARE IN THE MILITARY SERVICE. THE PROVISIONS OF THE SOLDIERS AND SAILORS CIVIL RELIEF ACT OF 1940 RELATING TO THE APPOINTMENT BY THE COURT OF ATTORNEYS TO REPRESENT DEFENDANTS ABSENT IN THE MILITARY SERVICE HAVE THE EFFECT OF MODIFYING THE REQUIREMENTS OF SECTION 3 OF THE ACT OF FEBRUARY 11, 1925, WITH RESPECT TO THE PAYMENT OF FEES IN UNITED STATES COURTS, TO THE EXTENT OF AUTHORIZING SUCH ATTORNEYS TO FILE THEIR APPEARANCE ON BEHALF OF THE ABSENT DEFENDANTS WITHOUT PAYING THE FEES, SO THAT THE CLERKS OF UNITED STATES COURTS WILL NOT BE REQUIRED TO ACCOUNT FOR APPEARANCE FEES NOT COLLECTED IN SUCH CASES.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, JANUARY 15, 1942:

I HAVE YOUR LETTER OF DECEMBER 22, 1941, TRANSMITTING A COMMUNICATION DATED AT JUNEAU, ALASKA, DECEMBER 11, 1941, AND ADDRESSED TO THIS OFFICE BY HON. GEORGE F. ALEXANDER, JUDGE OF THE UNITED STATES DISTRICT COURT FOR THE FIRST DIVISION OF THE TERRITORY OF ALASKA, IN WHICH DECISION IS REQUESTED AS TO QUESTIONS ARISING UNDER THE SOLDIERS AND SAILORS CIVIL RELIEF ACT OF OCTOBER 17, 1940, 54 STAT. 1178. YOU REQUEST THAT JUDGE ALEXANDER BE ADVISED IN THE MATTER AND THAT A COPY OF THE DECISION BE SENT TO YOU.

AS THE MATTER SUBMITTED FOR CONSIDERATION APPEARS TO BE OF GENERAL IMPORT INVOLVING NOT ONLY THE UNITED STATES DISTRICT COURT FOR THE FIRST DIVISION OF THE TERRITORY OF ALASKA BUT ALL UNITED STATES DISTRICT COURTS, IT IS DEEMED MORE APPROPRIATE TO ADVISE YOU, RATHER THAN JUDGE ALEXANDER, WITH RESPECT THERETO, IT BEING ASSUMED THAT YOU WILL INFORM THE JUDGE OF THE ACTION TAKEN.

IN HIS LETTER OF DECEMBER 11, 1941, JUDGE ALEXANDER REFERS TO A PRIOR LETTER OF JULY 10, 1941, TO THE ATTORNEY GENERAL, IN WHICH, AFTER QUOTING IN PART SECTION 200 OF THE SOLDIERS AND SAILORS CIVIL RELIEF ACT OF 1940, RELATING TO THE APPOINTMENT BY THE COURTS OF ATTORNEYS TO REPRESENT DEFENDANTS WHO ARE IN THE MILITARY SERVICE AND TO PROTECT THEIR INTERESTS, TWO QUESTIONS ARE ASKED AS FOLLOWS:

1. BY WHOM AND FROM WHAT FUND ARE SUCH ATTORNEYS TO BE COMPENSATED OR ARE THEY SUPPOSED TO ACT WITHOUT COMPENSATION?

2. WHO IS GOING TO PAY THE APPEARANCE FEE REQUIRED TO BE PAID TO THE CLERK OF THE COURT BEFORE AN APPEARANCE CAN BE MADE IN ANY SUCH CASES?

THE LETTER OF DECEMBER 11, 1941, COMMENTS ON SUCH QUESTIONS AS FOLLOWS:

* * * SINCE WRITING MY LETTER OF JULY 10TH, I HAVE BEEN TO KETCHIKAN, THE OTHER PLACE IN MY DISTRICT WHERE I REGULARLY HOLD COURT, AND HAVE HAD AN OPPORTUNITY TO TALK WITH THE LAWYERS BOTH THERE AND HERE ABOUT THE MATTER OF ATTORNEYS' FEES, AND I FIND THEM GENERALLY WILLING TO SERVE WITHOUT COMPENSATION IN SUCH MATTERS AS MAY ARISE UNDER THE ADMINISTRATION OF THE " SOLDIERS AND SAILORS CIVIL RELIEF ACT" OF 1940, WHERE THE SERVICE REQUIRED IS NOT TOO ONEROUS OR EXTENDED, WHICH MEANS THAT THE ACT COULD BE ADMINISTERED WITH VERY LITTLE, IF ANY, EXPENSE, SO FAR AS THE ATTORNEYS ARE CONCERNED.

THERE REMAINS, HOWEVER, THE QUESTION OF FILING FEES IN PROCEEDINGS INVOLVING SOLDIERS AND SAILORS UNDER THIS ACT. THE LAW REQUIRES THAT THE CLERK COLLECT AN APPEARANCE FEE IN ALL CASES BEFORE AN APPEARANCE CAN BE MADE BY ANY LITIGANT, AND THE " SOLDIERS AND SAILORS CIVIL RELIEF CT" OF 1940 MAKES NO PROVISION FOR THE PAYMENT OF ANY SUCH FEES, NOR FOR FILING SUCH APPEARANCES WITHOUT THE PAYMENT OF SUCH FEES, AND THE CLERK HAS CALLED MY ATTENTION TO THE FACT THAT IF ANY SUCH FILINGS ARE MADE BY HIM BEFORE ANY APPEARANCE FEE IS PAID BY ANY SUCH DEFENDANTS, OR SOMEONE IN THEIR BEHALF, HE FEARS THAT THE FIRST EXAMINER WHO COMES ALONG WILL CHARGE HIM (THE CLERK) WITH ALL SUCH APPEARANCES, AND I SUPPOSE THAT IS TRUE, UNLESS THERE IS SOME WAY, OF WHICH I AM NOT ADVISED, IN WHICH SUCH MATTERS CAN BE HANDLED.

THE SOLDIERS AND SAILORS CIVIL RELIEF ACT OF 1940 PROVIDES, IN SECTION 200, 54 STAT. 1180, PARAGRAPHS 1 AND 3, AS FOLLOWS:

(1) IN ANY ACTION OR PROCEEDING COMMENCED IN ANY COURT, IF THERE SHALL BE A DEFAULT OF ANY APPEARANCE BY THE DEFENDANT, THE PLAINTIFF, BEFORE ENTERING JUDGMENT SHALL FILE IN THE COURT AN AFFIDAVIT SETTING FORTH FACTS SHOWING THAT THE DEFENDANT IS NOT IN MILITARY SERVICE. IF UNABLE TO FILE SUCH AFFIDAVIT PLAINTIFF SHALL IN LIEU THEREOF FILE AN AFFIDAVIT SETTING FORTH EITHER THAT THE DEFENDANT IS IN THE MILITARY SERVICE OR THAT PLAINTIFF IS NOT ABLE TO DETERMINE WHETHER OR NOT DEFENDANT IS IN SUCH SERVICE. IF AN AFFIDAVIT IS NOT FILED SHOWING THAT THE DEFENDANT IS NOT IN THE MILITARY SERVICE, NO JUDGMENT SHALL BE ENTERED WITHOUT FIRST SECURING AN ORDER OF COURT DIRECTING SUCH ENTRY, AND NO SUCH ORDER SHALL BE MADE IF THE DEFENDANT IS IN SUCH SERVICE UNTIL AFTER THE COURT SHALL HAVE APPOINTED AN ATTORNEY TO REPRESENT DEFENDANT AND PROTECT HIS INTEREST, AND THE COURT SHALL ON APPLICATION MAKE SUCH APPOINTMENT. * *

(3) IN ANY ACTION OR PROCEEDING IN WHICH A PERSON IN MILITARY SERVICE IS A PARTY IF SUCH PARTY DOES NOT PERSONALLY APPEAR THEREIN OR IS NOT REPRESENTED BY AN AUTHORIZED ATTORNEY, THE COURT MAY APPOINT AN ATTORNEY TO REPRESENT HIM; AND IN SUCH CASE A LIKE BOND MAY BE REQUIRED AND AN ORDER MADE TO PROTECT THE RIGHTS OF SUCH PERSON. BUT NO ATTORNEY APPOINTED UNDER THIS ACT TO PROTECT A PERSON IN MILITARY SERVICE SHALL HAVE POWER TO WAIVE ANY RIGHT OF THE PERSON FOR WHOM HE IS APPOINTED OR BIND HIM BY HIS ACTS.

INSOFAR AS CONCERNS THE FIRST QUESTION, AND REGARDLESS OF WHETHER THE LAWYERS HAVE OR HAVE NOT AGREED TO SERVE WITHOUT COMPENSATION, IT SHOULD BE READILY APPARENT THAT NO PROVISION IS MADE IN THE ACT FOR THE PAYMENT OF COMPENSATION TO SUCH ATTORNEYS OUT OF PUBLIC FUNDS; SO THAT, EVEN THE SO-CALLED " FUND C" REFERRED TO IN JUDGE ALEXANDER'S LETTER OF JULY 10, IS NOT AVAILABLE FOR THE PURPOSE. THE AUTHORITY TO USE SUCH " FUND C" (48 U.S.C. 106) FOR "INCIDENTAL EXPENSES" OF THE UNITED STATES COURTS IN ALASKA, CLEARLY DOES NOT CONTEMPLATE THE USE OF MONEYS IN THAT FUND FOR THE PURPOSE HERE INVOLVED, AND, AS TO THE USE OF APPROPRIATED FUNDS GENERALLY THEREFOR, NOT ONLY IS THERE NO APPROPRIATION MADE BY LAW FOR THE PURPOSE BUT THE ACT SHOWS NO INTENT THAT THE GOVERNMENT WAS TO BE LIABLE FOR THE PAYMENT OF COMPENSATION TO ATTORNEYS SO APPOINTED. IT MAY BE WHAT WAS CONTEMPLATED UNDER SAID RELIEF ACT, CONTAINING IDENTICAL PROVISIONS AS CONTAINED IN A PRIOR ACT OF MARCH 8, 1918, 40 STAT. 440, WAS THAT THE ATTORNEYS APPOINTED BY THE COURTS SHOULD LOOK TO THE PARTIES WHOSE INTERESTS THEY ARE APPOINTED TO REPRESENT FOR COMPENSATION, ALTHOUGH THE AUTHORITY FOR SUCH APPOINTMENTS IS NOT MADE SUBJECT TO A PREREQUISITE THAT THE ATTORNEYS SHOULD RECEIVE ANY COMPENSATION. SEE IN THIS CONNECTION WHELAN V. MANHATTAN RAILWAY COMPANY, 86 FED. 219, INVOLVING A SOMEWHAT SIMILAR SITUATION. IN ANY EVENT, WHATEVER ARRANGEMENTS MAY BE MADE OR MAY RESULT IN CONSEQUENCE OF APPOINTMENTS BY UNITED STATES DISTRICT COURTS UNDER THE SOLDIERS AND SAILORS CIVIL RELIEF ACT OF 1940--- WHICH MATTERS ARE NOT FOR THE CONSIDERATION OF THIS OFFICE--- IT MAY BE SAID THAT PUBLIC FUNDS ARE NOT AVAILABLE FOR THE PAYMENT OF COMPENSATION TO SUCH ATTORNEYS UNLESS OR UNTIL SPECIFICALLY APPROPRIATED BY LAW FOR THE PURPOSE.

WITH RESPECT TO FEES TO BE PAID BY PARTY DEFENDANTS IN SUITS BROUGHT IN UNITED STATES DISTRICT COURTS UNDER ORDINARY CIRCUMSTANCES, SECTION 3 OF THE ACT OF FEBRUARY 11, 1925, 43 STAT. 857, PROVIDES, IN PART, AS FOLLOWS:

UPON THE FILING OF ANY ANSWER OR PAPER JOINING ISSUE, OR THE ENTERING OF ORDER FOR TRIAL, THERE SHALL BE CHARGED AND COLLECTED BY THE CLERK, FROM THE PARTY OR PARTIES FILING ANY SUCH ANSWER OR PAPER, FOR SERVICES PERFORMED AND TO BE PERFORMED BY SAID CLERK IN SAID CASE OR PROCEEDING, THE FURTHER SUM OF $5: PROVIDED, THAT AFTER ONE FEE, AS HEREINBEFORE PROVIDED IN THIS SECTION, HAS BEEN PAID BY ANY DEFENDANT, CROSS- PETITIONER, INTERVENOR, OR PARTY, OTHER DEFENDANTS, CROSS-PETITIONERS, INTERVENORS, OR PARTIES, SEPARATELY APPEARING OR FILING ANY ANSWER OR PAPER IN SAID SUIT OR PROCEEDING, SHALL PAY A FURTHER FEE OF $2, FOR EACH ANSWER OR PAPER SO FILED: * * *

SECTION 1 OF THE SAME ACT PROVIDES THAT THE UNITED STATES SHALL NOT BE LIABLE FOR ANY FEE OR SUM THEREIN PROVIDED.

CERTAIN EXCEPTIONS HAVE BEEN MADE TO THE FEE BILL PROVIDED BY THE SAID ACT WHICH WAS AN AMENDMENT OF PRIOR ACTS CONTAINING SIMILAR FEE BILLS, PARTICULARLY IN THE CASE OF POOR SUITORS AND SEAMEN WHO ARE AUTHORIZED BY STATUTE TO ENTER AND PROSECUTE SUITS UNDER PRESCRIBED CIRCUMSTANCES WITHOUT PREPAYMENT OF FEES OR COSTS. SEE IN THIS RESPECT THE ACT OF JULY 20, 1892, 27 STAT. 252, AS AMENDED, AND THE ACT OF JUNE 12, 1917, 40 STAT. 157.

THE SOLDIERS AND SAILORS CIVIL RELIEF ACT DOES NOT IN SPECIFIC TERMS WAIVE PREPAYMENT OF FEES OR COURT COSTS BUT IT DOES PROVIDE IN SPECIFIC TERMS FOR THE APPOINTMENT OF AN ATTORNEY TO REPRESENT THE ABSENT SOLDIER OR SAILOR EVEN WITHOUT HIS KNOWLEDGE OR CONSENT. IT IS EVIDENTLY CONTEMPLATED UNDER SUCH PROVISIONS OF LAW THAT THE ATTORNEY SO APPOINTED SHALL TAKE WHATEVER ACTION MAY BE NECESSARY TO PROTECT THE INTERESTS OF THE ABSENT DEFENDANT IN MILITARY SERVICE AND FOR THAT PURPOSE THE ATTORNEY APPOINTED BY THE COURT OBVIOUSLY MUST APPEAR FOR THE PARTY HE HAS BEEN APPOINTED TO REPRESENT. TO DENY HIM THE RIGHT TO FILE HIS APPEARANCE ON BEHALF OF THE ABSENT SOLDIER OR SAILOR WITHOUT PREPAYMENT OF THE FILING FEE WOULD TEND TO DEFEAT THE EVIDENT PURPOSE OF THE RELIEF ACT. HENCE, IT MUST BE CONCLUDED THAT THE REQUIREMENTS WITH RESPECT TO PAYMENT OF FEES IN UNITED STATES COURTS HAVE BEEN MODIFIED BY THE SOLDIERS AND SAILORS CIVIL RELIEF ACT, AT LEAST TO THE EXTENT OF AUTHORIZING THE ATTORNEY SO APPOINTED BY THE COURT TO FILE HIS APPEARANCE ON BEHALF OF THE ABSENT DEFENDANT IN MILITARY SERVICE WITHOUT THE PAYMENT OF SUCH FEES.

FOR THE FOREGOING REASONS, I HAVE TO ADVISE THAT INSOFAR AS THE MATTER MAY CONCERN THIS OFFICE, THE CLERKS OF UNITED STATES COURTS WILL NOT BE REQUIRED TO ACCOUNT FOR APPEARANCE FEES NOT COLLECTED IN THE CASES REFERRED TO. ..END :