B-7246, DECEMBER 4, 1939, 19 COMP. GEN. 551

B-7246, DECEMBER 4, 1939, 19 COMP. GEN. 551

COURTS - COSTS - APPROPRIATION CHARGEABLE - PROCEEDINGS UNDER NATIONAL LABOR RELATIONS ACT WHILE THE GENERAL RULE IS THAT EXPENSES OF ALL COURT ACTIONS UNDER CONTROL OF THE JUSTICE DEPARTMENT ARE CHARGEABLE TO THE APPROPRIATIONS OF THE JUDICIARY RATHER THAN TO THE APPROPRIATIONS OF THE ADMINISTRATIVE OFFICE INVOLVED, WHERE A CASE IS INITIATED OR DEFENDED BY THE NATIONAL LABOR RELATIONS BOARD, THROUGH ITS ATTORNEYS, UNDER ITS STATUTORY AUTHORITY, THE EXPENSES OF THE PROCEEDINGS, INCLUDING THE FEES OF A SPECIAL MASTER WHEN ORDERED BY THE COURT TO BE PAID, MAY BE PAID FROM THE BOARD'S APPROPRIATION AS REPRESENTING ITS "AUTHORIZED AND NECESSARY EXPENDITURES.'

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, NATIONAL LABOR RELATIONS BOARD, DECEMBER 4, 1939:

I HAVE YOUR LETTER OF NOVEMBER 21, 1939, AS FOLLOWS:

IN A CASE NOW PENDING BEFORE THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT, THE COURT CONTEMPLATES APPOINTING A SPECIAL MASTER AND HAS INQUIRED WHETHER THE BOARD WOULD BE ABLE TO PAY SUCH MASTER IF ORDERED TO DO SO BY THE COURT.

WE RESPECTFULLY REQUEST YOUR OPINION AS TO WHETHER OR NOT THE BOARD MAY PAY FOR SPECIAL MASTER'S SERVICES, IF NECESSARY, SINCE UNDER THE APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1940, OUR FUNDS MAY BE USED "FOR THREE BOARD MEMBERS AND ALL AUTHORIZED AND NECESSARY EXPENDITURES OF THE NATIONAL LABOR RELATIONS BOARD IN PERFORMING THE DUTIES IMPOSED BY LAW OR IN PURSUANCE OF LAW. * * *"

IT APPEARS THAT THE DECISION REPORTED IN 15 COMP. GEN. 81 BEARS A MARKED SIMILARITY TO THE MATTER HERE UNDER CONSIDERATION.

WE WOULD APPRECIATE AN EARLY REPLY SINCE THE CASE IS NOW PENDING BEFORE THE CIRCUIT COURT.

THE GENERAL RULE IS AS STATED IN THE DECISION 15 COMP. GEN. 81, CITED IN YOUR LETTER, THAT THE EXPENSES OF ALL COURT ACTIONS, INCLUDING FEES OF REFEREES AND SPECIAL MASTERS, UNDER CONTROL OF THE DEPARTMENT OF JUSTICE ARE CHARGEABLE TO THE APPROPRIATIONS OF THE JUDICIARY RATHER THAN TO THE APPROPRIATIONS OF THE ADMINISTRATIVE OFFICE WHICH MAY BE INVOLVED IN THE PROCEEDINGS. IN THE SAME DECISION, HOWEVER, IT IS POINTED OUT THAT THE RULE IS NOT NECESSARILY FOR APPLICATION IN CASES WHERE THE DEPARTMENT OF JUSTICE HAS NO CONTROL OVER THE INSTITUTION OF THE PROCEEDINGS OR THE AMOUNT OF THE EXPENSES INVOLVED.

BASED UPON THE FOREGOING RULE IT MAY BE SAID THAT IF THE CASE TO WHICH YOU REFER IN YOUR SUBMISSION IS ONE INITIATED OR DEFENDED BY THE BOARD UNDER SECTION 10 (E) OR 10 (F) OF THE NATIONAL LABOR RELATIONS ACT, 49 STAT. 449, OR OTHER PROVISION OF LAW, AND THE BOARD HAS DIRECTED ITS ATTORNEYS TO "APPEAR FOR AND REPRESENT THE BOARD" AS AUTHORIZED UNDER SECTION 4 (A) OF THE SAME ACT, THE CASE WOULD NOT BE ONE UNDER THE DIRECT CONTROL OF THE DEPARTMENT OF JUSTICE AND THE APPROPRIATIONS OF THE JUDICIARY WOULD NOT NECESSARILY BE INVOLVED.

ON THE OTHER HAND, THE APPROPRIATION FOR THE SALARIES AND EXPENSES OF THE BOARD AS MADE BY THE ACT OF MARCH 16, 1939, PUBLIC, NO. 8, 53 STAT. 537, PROVIDES IN SPECIFIC TERMS, AS STATED IN YOUR LETTER, FOR "AUTHORIZED AND NECESSARY EXPENDITURES OF THE NATIONAL LABOR RELATIONS BOARD IN PERFORMING THE DUTIES IMPOSED BY LAW OR IN PURSUANCE OF LAW; " AND IN A CASE SUCH AS REFERRED TO ABOVE, SINCE THE EXPENSES OF THE LEGAL PROCEEDINGS INCLUDING THE FEES OF A SPECIAL MASTER WHEN ORDERED BY THE COURT TO BE PAID, WOULD REPRESENT AUTHORIZED AND NECESSARY EXPENDITURES OF THE BOARD, THEY WOULD BE CHARGEABLE, AS SUCH, TO SAID APPROPRIATION.