B-64967, MAY 20, 1947

B-64967: May 20, 1947

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THE SECRETARY OF STATE: REFERENCE IS MADE TO A LETTER OF MARCH 27. AS FOLLOWS: "THIS LETTER IS CONCERNED WITH CERTAIN SURPLUS PROPERTY IN FRANCE HELD BY THE OFFICE OF THE FOREIGN LIQUIDATION COMMISSION FOR SALE AT OVER ONE MILLION DOLLARS. IT WAS IN THE CUSTODY OF THE WAR DEPARTMENT. THE PROPERTY WAS RELEASED TO A PROSPECTIVE PURCHASER IN ADVANCE OF COMPLETION OF THE SALE AND BEFORE PAYMENT TO THE UNITED STATES. THE PROPERTY WAS THEN TRANSPORTED TO ENGLAND BY THIS PRIVATE INDIVIDUAL AND OFFERED FOR SALE. THE ONLY WAY TO STOP THIS ACTIVITY WAS TO SECURE THE IMMEDIATE ISSUANCE OF AN INJUNCTION TO PROHIBIT ADDITIONAL SALES OR USE OF THOSE ITEMS ALREADY SOLD. THE INJUNCTION WAS OBTAINED AND THE SALE PRICE OF $1.

B-64967, MAY 20, 1947

PRECIS-UNAVAILABLE

THE HONORABLE, THE SECRETARY OF STATE:

REFERENCE IS MADE TO A LETTER OF MARCH 27, 1947, FROM THE FOREIGN LIQUIDATION COMMISSIONER, AS FOLLOWS:

"THIS LETTER IS CONCERNED WITH CERTAIN SURPLUS PROPERTY IN FRANCE HELD BY THE OFFICE OF THE FOREIGN LIQUIDATION COMMISSION FOR SALE AT OVER ONE MILLION DOLLARS. PENDING SALE, IT WAS IN THE CUSTODY OF THE WAR DEPARTMENT. THROUGH ERROR, THE PROPERTY WAS RELEASED TO A PROSPECTIVE PURCHASER IN ADVANCE OF COMPLETION OF THE SALE AND BEFORE PAYMENT TO THE UNITED STATES. THE PROPERTY WAS THEN TRANSPORTED TO ENGLAND BY THIS PRIVATE INDIVIDUAL AND OFFERED FOR SALE; IN FACT, SEVERAL ITEMS ALREADY HAD BEEN SOLD WHEN THE FACTS BECAME KNOWN TO OFLC REPRESENTATIVES. THE ONLY WAY TO STOP THIS ACTIVITY WAS TO SECURE THE IMMEDIATE ISSUANCE OF AN INJUNCTION TO PROHIBIT ADDITIONAL SALES OR USE OF THOSE ITEMS ALREADY SOLD, A PROCEDURE REQUIRING THE IMMEDIATE ENGAGEMENT OF A FIRM OF ATTORNEYS IN LONDON. THE INJUNCTION WAS OBTAINED AND THE SALE PRICE OF $1,200,966.50 WAS RECOVERED.

"THE QUESTION BEFORE THIS OFFICE IS HOW TO EFFECT PAYMENT OF THE ATTORNEY'S FEES IN LONDON, AMOUNTING TO $5273.60. THE SURPLUS PROPERTY ACT DOES NOT PERMIT THE USE OF PROCEEDS FROM THE DISPOSITION OF SURPLUS PROPERTY FOR THE PAYMENT OF EXPENSES OF OPERATION. THE WAR DEPARTMENT ACCEPTS RESPONSIBILITY FOR THE UNAUTHORIZED RELEASE OF THE PROPERTY WHICH ULTIMATELY LED TO THE LEGAL EXPENSE IN QUESTION, AND AGREES THAT THESE FEES ARE REASONABLE IN AMOUNT, BUT TAKES THE POSITION THAT ITS APPROPRIATION DOES NOT SPECIFICALLY AUTHORIZE THE PAYMENT OF PRIVATE ATTORNEYS AS REQUIRED BY 5 U.S.C. 314. SIMILARLY, THE APPROPRIATION AVAILABLE TO THIS OFFICE FOR SURPLUS PROPERTY DISPOSAL MAKES NO MENTION OF ATTORNEY'S FEES. IT IS POSSIBLE THAT THE APPROPRIATION LANGUAGE OF EITHER THE WAR DEPARTMENT OR THE OFFICE OF THE FOREIGN LIQUIDATION COMMISSIONER WOULD BE BROAD ENOUGH TO COVER THE LEGAL FEES WERE IT NOT FOR THE EXPRESS PROHIBITION OF 5 U.S.C. 314, UNDER THE GENERAL PRINCIPLES FOLLOWED IN 17 COMP.GEN. 58.

"THE QUESTION PRESENTED TO YOU, THEREFORE, IS WHETHER THE FEES OF THE PRIVATE ATTORNEYS RETAINED IN THIS CASE MAY BE PAID OUT OF THE APPROPRIATION AVAILABLE TO THE WAR DEPARTMENT OR FOR OVERSEAS SURPLUS DISPOSAL ACTIVITIES, RECOGNIZING THAT THE IMMEDIATE SERVICES OF SUCH ATTORNEYS WERE NECESSARY TO PROTECT THE INTERESTS OF THE UNITED STATES IN A FOREIGN AREA?"

SECTION 8 OF THE ACT OF JULY 31, 1984, 28 STAT. 207, AS AMENDED, 31 U.S.C. 74, PROVIDES IN PART THAT:

"DISBURSING OFFICERS, OR THE HEAD OF ANY EXECUTIVE DEPARTMENT, OR OTHER ESTABLISHMENT NOT UNDER ANY OF THE EXECUTIVE DEPARTMENTS, MAY APPLY FOR AND THE COMPTROLLER GENERAL SHALL RENDER HIS DECISION UPON ANY QUESTION INVOLVING A PAYMENT TO BE MADE BY THEM OR UNDER THEM, WHICH DECISION, WHEN RENDERED, SHALL GOVERN THE GENERAL ACCOUNTING OFFICE IN PASSING UPON THE ACCOUNT CONTAINING SAID DISBURSEMENTS."

IT WILL BE OBSERVED THEREFROM THAT THE AUTHORITY OF THE COMPTROLLER GENERAL TO RENDER DECISIONS TO THE HEADS OF DEPARTMENTS OR ESTABLISHMENTS ENCOMPASSES ONLY QUESTIONS INVOLVING PAYMENTS "TO BE MADE BY THEM OR UNDER THEM." SEE 18 COMP.GEN. 217. HENCE, I DO NOT HAVE JURISDICTION AND SHALL NOT ATTEMPT TO DECIDE ON THE BASIS OF THE PRESENT LETTER THAT PART OF THE QUESTION PRESENTED WHICH CONCERNS THE AVAILABILITY OF FUNDS APPROPRIATED TO THE WAR DEPARTMENT FOR USE IN PAYING THE CLAIM OF THE ATTORNEYS HERE INVOLVED.

MOREOVER, INSOFAR AS THE AFORESAID LETTER OF MARCH 27, REQUESTS A DECISION AS TO WHETHER FUNDS APPROPRIATED TO THE DEPARTMENT OF STATE FOR CARRYING OUT THE DISPOSAL OF SURPLUS PROPERTY IN FOREIGN COUNTRIES ARE AVAILABLE FOR THE PAYMENT OF THE AMOUNT HERE INVOLVED, IT IS TO BE NOTED THAT THE SAID LETTER IS NOT SIGNED BY YOU AS HEAD OF THE DEPARTMENT OF STATE OR BY AN ASSISTANT AUTHORIZED BY LAW TO ACT IN YOUR STEAD. WHILE, IN THE INSTANT CASE, A DECISION WILL BE RENDERED ON THE SAID QUESTION, THERE IS ENCLOSED HEREWITH FOR THE INFORMATION AND FUTURE GUIDANCE OF YOUR DEPARTMENT A COPY OF CIRCULAR LETTER B-62476, DECEMBER 13, 1946, 26 COMP.GEN. ***.

THE EMPLOYMENT OF PRIVATE ATTORNEYS OR COUNSEL BY GOVERNMENT AGENCIES IS SUBJECT TO THE PROVISIONS OF SECTIONS 364, 365, 366 AND 189, REVISED STATUTES. SEE 5 U.S.C. 314, 315 AND 49. THE SAID SECTION 365 PROVIDES THAT:

"NO COMPENSATION SHALL HEREAFTER BE ALLOWED TO ANY PERSON, BESIDES THE RESPECTIVE DISTRICT ATTORNEYS AND ASSISTANT DISTRICT ATTORNEYS FOR SERVICES AS AN ATTORNEY OR COUNSELOR TO THE UNITED STATES, OR TO ANY BRANCH OR DEPARTMENT OF THE GOVERNMENT THEREOF, EXCEPT IN CASES SPECIALLY AUTHORIZED BY LAW, AND THEN ONLY ON THE CERTIFICATE OF THE ATTORNEY- GENERAL THAT SUCH SERVICES WERE ACTUALLY RENDERED, AND THAT THE SAME COULD NOT BE PERFORMED BY THE ATTORNEY-GENERAL, OR SOLICITOR GENERAL, OR THE OFFICERS OF THE DEPARTMENT OF JUSTICE, OR BY THE DISTRICT ATTORNEYS."

IT APPEARS THAT THE FUNDS AVAILABLE TO THE DEPARTMENT OF STATE FOR CARRYING OUT ITS FOREIGN SURPLUS PROPERTY DISPOSAL PROGRAM DURING THE FISCAL YEAR 1947 ARE THOSE APPROPRIATED IN THE DEPARTMENT OF STATE APPROPRIATION ACT, 1947, TITLE I OF THE ACT OF JULY 5, 1946, 60 STAT. 446, 448 UNDER THE HEADING "SURPLUS PROPERTY DISPOSAL." SUCH FUNDS ARE AUTHORIZED TO BE EXPENDED--

"FOR ALL EXPENSES NECESSARY TO ENABLE THE DEPARTMENT OF STATE TO CARRY OUT ITS FUNCTIONS AND ACTIVITIES RELATIVE TO DISPOSITION OF SURPLUS PROPERTY PURSUANT TO THE PROVISIONS OF THE SURPLUS PROPERTY ACT OF 1944 (PUBLIC LAW 457), AS AMENDED, INCLUDING PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA AND ELSEWHERE, AND EMPLOYMENT OF PERSONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES WITHOUT REGARD TO CIVIL-SERVICE AND CLASSIFICATION LAWS *** STENOGRAPHIC REPORTING, TRANSLATING, APPRAISING, AND OTHER SERVICES IN FOREIGN COUNTRIES BY CONTRACT, ALL WITHOUT REGARD TO SECTION 3709 OF THE REVISED STATUTES ***."

WHILE SAID LAW DOES NOT EXPRESSLY PROVIDE FOR THE EMPLOYMENT OF ATTORNEYS, IN VIEW OF THE BROAD AUTHORITY CONTAINED IN THE LANGUAGE THEREOF, AND SINCE THE FOREIGN ATTORNEYS HERE INVOLVED WERE EMPLOYED IN AN EMERGENCY FOR THE PERFORMANCE OF PROFESSIONAL SERVICES IN THEIR OWN COUNTRY WHICH COULD NOT BE OBTAINED FROM THE DEPARTMENT OF JUSTICE, THIS OFFICE WILL NOT BE REQUIRED TO OBJECT TO PAYMENT OF THE PRESENT CLAIM OUT OF THE FUNDS APPROPRIATED TO THE DEPARTMENT OF STATE BY THE SAID LAW, SUBJECT TO ADMINISTRATIVE DETERMINATION AS TO THE REASONABLENESS OF THE AMOUNT CHARGED IN THE LIGHT OF THE SERVICE ACTUALLY REQUIRED AND FURNISHED.