B-78220, JUN. 10, 1958

B-78220, JUN. 10, 1958

TO HONORABLE WARREN OLNEY, III, DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS:

ON MAY 27, 1958, YOU REQUESTED OUR DECISION WHETHER UNDER THE LAW YOU MAY DELEGATE TO OFFICIALS OF YOUR OFFICE THE AUTHORITY TO APPROVE PAYMENT OF FEES CLAIMED BY UNITED STATES COMMISSIONERS, SUBJECT TO FINAL SETTLEMENT OF THE ACCOUNTS BY THE GENERAL ACCOUNTING OFFICE. YOU REFER TO OUR DECISION OF AUGUST 25, 1948, TO THE THEN DIRECTOR, WHICH DISAPPROVED SUCH A DELEGATION BASED UPON THE ACT OF JULY 10, 1946, 60 STAT. 526. THAT ACT WAS REPEALED AND SUPERSEDED BY THE ACT OF JUNE 25, 1948, 62 STAT. 869.

SECTION 636, TITLE 28, U.S.C.--- THE 1948 ACT CODIFIED PROVIDES:

"THE ACCOUNTS OF EACH UNITED STATES COMMISSIONER SHALL BE RENDERED QUARTERLY, IN DUPLICATE, UNDER REGULATIONS PRESCRIBED BY THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, AND TRANSMITTED TO THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT IN WHICH THE COMMISSIONER RESIDES. THE CLERK SHALL FILE THE DUPLICATE IN HIS OFFICE AND TRANSMIT THE ORIGINAL TO THE DIRECTOR. THE COURT SHALL NOT BE REQUIRED TO APPROVE SUCH ACCOUNTS.

"FEES OF A COMMISSIONER, FOR WHICH THE UNITED STATES IS LIABLE, SHALL BE PAID ONLY UPON RENDITION OF ACCOUNTS WITHIN ONE YEAR AFTER PERFORMANCE OF SERVICES, AND APPROVAL OF SUCH ACCOUNTS BY THE DIRECTOR. SUCH PAYMENT SHALL BE SUBJECT TO SETTLEMENT IN THE GENERAL ACCOUNTING OFFICE AND ANY ADJUSTMENTS NECESSITATED THEREBY. (JUNE 25, 1948, CH. 646, SEC. 1, 62 STAT. 17.)"

THE DUTIES OF THE DIRECTOR ARE SET OUT IN 28 U.S.C. 604, IN PERTINENT PART, AS FOLLOWS:

SEC. 604. DUTIES OF DIRECTOR GENERALLY.

(A) THE DIRECTOR SHALL BE THE ADMINISTRATIVE OFFICER OF THE COURTS, AND UNDER THE SUPERVISION AND DIRECTION OF THE JUDICIAL CONFERENCE OF THE UNITED STATES, SHALL:

(6) DETERMINE AND PAY NECESSARY OFFICE EXPENSES OF COURTS, JUDGES, AND THOSE COURT OFFICIALS WHOSE EXPENSES ARE BY LAW ALLOWABLE, AND THE LAWFUL FEES OF UNITED STATES COMMISSIONERS; * * *.'

THE AMOUNTS WHICH "UNITED STATES COMMISSIONERS * * * SHALL RECEIVE" AS FEES ARE PRESCRIBED IN 28 U.S.C. 633 IN DETAIL FOR EACH TYPE OF SERVICE RENDERED.

THE QUESTION HERE, IN VIEW OF THE EXPRESS TERMS OF THE STATUTE REQUIRING YOUR APPROVAL OF THE COMMISSIONER'S ACCOUNTS BEFORE PAYMENT, IS WHETHER SUCH APPROVAL INVOLVES THE EXERCISE OF DISCRETION OR PERSONAL JUDGMENT ON YOUR PART SUCH AS MAY NOT, UNDER THE WELL ESTABLISHED RULE, BE DELEGATED. 14 COMP. GEN. 698, 22 ID. 1083. IN ITS ORDINARY SENSE, THE TERM "APPROVAL," ITSELF IMPLIES THE NECESSITY FOR JUDGMENT OR DISCRETION. BUT WHEN THE PERTINENT SECTIONS OF THE STATUTES, AS QUOTED ABOVE, ARE CONSIDERED TOGETHER, IT IS APPARENT THAT CONGRESS DID NOT CONFER UPON THE DIRECTOR ANY DISCRETION AS TO WHAT AMOUNTS SHOULD BE PAID THE COMMISSIONERS AS FEES FOR THE VARIOUS SERVICES THEY RENDER. THE RESPONSIBILITY AND AUTHORITY TO DETERMINE THE FACTUAL CORRECTNESS OF THE AMOUNTS CLAIMED ACCORDING TO THE PRESCRIPTION IN SECTION 633 IS CHARGED TO THE DIRECTOR, BUT WE AGREE WITH YOU THAT THIS IS ESSENTIALLY AN AUDIT FUNCTION RATHER THAN A FUNCTION REQUIRING THE EXERCISE OF DISCRETION (CF. 14 COMP. GEN. 601).

THEREFORE, OUR OFFICE WILL INTERPOSE NO OBJECTION TO YOUR DELEGATING TO RESPONSIBLE OFFICIALS OF YOUR OFFICE THE AUTHORITY TO APPROVE IN YOUR BEHALF, ON THE BASIS OF A PROPER AUDIT, THE PAYMENT OF FEES TO UNITED STATES COMMISSIONERS, SUBJECT TO FINAL SETTLEMENT OF THE ACCOUNTS IN OUR OFFICE.