Reimbursement for Judgment Costs

B-176229, Reimbursement for Judgment Costs, OCT 5, 1972

CIVILIAN EMPLOYEE - JUDGMENT COSTS - REIMBURSEMENT - SCOPE OF DUTIES DECISION DENYING CERTIFICATION FOR PAYMENT OF A VOUCHER IN FAVOR OF          , AN EMPLOYEE OF THE BUREAU OF INDIAN AFFAIRS, FOR REIMBURSEMENT OF A JUDGMENT, INTEREST THEREON, AND COSTS ASSESSED AGAINST HIM. ALTHOUGH A GOVERNMENT EMPLOYEE, WHO IS SUED BECAUSE OF SOME OFFICIAL ACT DONE IN THE DISCHARGE OF AN OFFICIAL DUTY, SHOULD HAVE HIS EXPENSES INCIDENT THERETO REIMBURSED, 15 COMP. DEC. 621, AN EMPLOYEE, WHOSE LIABILITY DID NOT ARISE BY REASON OF EITHER THE PERFORMANCE OF HIS OFFICIAL DUTIES OR BECAUSE OF COMPLIANCE WITH HIS AGENCY'S POLICY, INSTRUCTIONS OR REGULATIONS, NOR PURSUANT TO ORDERS OF HIS SUPERIORS), MAY NOT BE REIMBURSED.

TO MR. FRANK A. SCHORR:

REFERENCE IS MADE TO YOUR LETTER OF JULY 26, 1972 (YOUR REFERENCE: FINANCE), AND ENCLOSURES, REQUESTING A DECISION AS TO THE PROPRIETY OF CERTIFYING FOR PAYMENT A VOUCHER IN THE AMOUNT $441.18 IN FAVOR OF              , AN EMPLOYEE OF THE BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, FOR REIMBURSEMENT OF A JUDGMENT, INTEREST THEREON AND COSTS, ASSESSED AGAINST HIM, WHICH HE BELIEVES RESULTED FROM ACTIONS ARISING WITHIN THE SCOPE OF HIS EMPLOYMENT AND ALLEGEDLY AT THE DIRECTION OF HIS SUPERIOR.

         IS EMPLOYED AS THE FEDERAL OFFICER-IN-CHARGE AT THE PUEBLO OF ZUNI (AN INDIAN RESERVATION), ZUNI, NEW MEXICO. THE RECORD SHOWS THAT A DISPUTE AROSE BETWEEN THE GOVERNOR OF THE PUEBLO OF ZUNI AND THE ZUNI LEGAL AID AND DEFENDER SOCIETY (LEGAL AID), AND THAT THE GOVERNOR HAD GIVEN ORDERS THAT "LEGAL AID ATTORNEYS WERE NOT ALLOWED" IN THE TRIBAL ADMINISTRATION BUILDING (A NON-FEDERAL BUILDING APPARENTLY WITH PUBLIC AREAS WHICH HOUSES BUREAU OF INDIAN AFFAIRS OFFICES AND TRIBAL OFFICES). IT APPEARS FROM THE RECORD BEFORE US THAT          SAW TWO LEGAL AID ATTORNEYS IN THE BUILDING WITH A CLIENT OF ONE OF THE ATTORNEYS AND REQUESTED THEM TO LEAVE. WHEN THE ATTORNEYS REFUSED, A FIGHT ENSUED WHICH RESULTED IN THE ATTORNEYS BRINGING A CIVIL ACTION AGAINST          FOR DAMAGES FOR ASSAULT AND BATTERY. ACCORDING TO THE RECORD THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO FOUND THAT          HAD ACTED OUTSIDE THE PERIMETER OF HIS OFFICAL DUTIES AND ORDERED THAT HE PAY DAMAGES TO THE PLAINTIFF TOTALING $111, PLUS INTERESTS AND COURT COSTS. APPARENTLY PURSUANT TO THE JUDGMENT          HAS PAID OUT $441.18 AND NOW SEEKS REIMBURSEMENT.

AS A BASIS FOR PAYING         , THE ENCLOSURES WITH YOUR LETTER MAKE REFERENCE TO _____ V. _______, 382 F.2D 589 (1967) AND _______ V. _____, 410 F.2D 1307 (1969), AND THE SUBSEQUENT SETTLEMENT OF OUR CLAIMS DIVISION (Z-2400367) ALLOWING THE EMPLOYEES INVOLVED REIMBURSEMENT FOR THE AMOUNT THEY WERE REQUIRED TO PAY AS A RESULT OF A COURT JUDGMENT.

IN THE _______ CASE THE COURT HELD THAT THREE GAME MANAGEMENT AGENTS OF THE BUREAU OF SPORTS FISHERIES AND WILDLIFE, DEPARTMENT OF THE INTERIOR, HAD ACTED BEYOND THE SCOPE OF THEIR AUTHORITY WHEN IN ORDER TO PROTECT WATERFOWL THEY KNOWINGLY MISAPPLIED FEDERAL HUNTING REGULATIONS BY ENTERING PRIVATE PROPERTY SURROUNDED ON THREE SIDES BY A NEW MEXICO STATE WATERFOWL REFUGE AND PLACING SIGNS PROHIBITING HUNTING. THEY WERE FOUND PERSONALLY LIABLE FOR THEIR ACTIONS, AND AFTER A STIPULATION BETWEEN THE PARTIES AS TO DAMAGES AND COSTS, THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEW MEXICO ENTERED A JUDGMENT AGAINST THE THREE EMPLOYEES IN THE AMOUNT OF $4,500.

THE RECORD IN THE _______ CASE DISCLOSED, HOWEVER, THAT THE LIABILITY OF THE THREE EMPLOYEES AROSE FROM THEIR ACTIONS TAKEN IN ACCORDANCE WITH BUREAU POLICY, INSTRUCTIONS OF HIGHER AUTHORITY AND THE ADVICE OF THE UNITED STATES ATTORNEY, DISTRICT OF NEW MEXICO. STATEMENTS IN THE BUREAU'S ADMINISTRATIVE FILE AND THE COURT OF APPEALS OPINION AT 410 F.2D 1309, 1310, INDICATED THAT THE EMPLOYEES' SUPERIORS HAD KNOWLEDGE OF THE FACTS AND CIRCUMSTANCES LEADING UP TO THE CLAIMANTS' TRESPASS AND HUNTING PROHIBITION.

THUS, IT WAS APPARENT IN THE _______ CASE THAT THE EMPLOYEES ACTED AT THE DIRECTION OF THEIR SUPERIORS AND WITH LEGAL ADVICE UPON WHICH THEY WERE ENTITLED TO RELY; THAT THEY WERE REQUIRED TO ACT IN THE LINE OF DUTY, AND THAT THEY INTENDED FAITHFULLY TO CARRY OUT THE LAW ENFORCEMENT ACTIVITY OF THE BUREAU. UNDER THESE CIRCUMSTANCES AND ESPECIALLY SINCE THE ACTIONS OF THE EMPLOYEES WERE DIRECTED BY THEIR SUPERIORS IT WAS FELT THAT THE GOVERNMENT SHOULD COMPENSATE THEM.

THE INSTANT CASE IS CLEARLY DISTINGUISHABLE FROM THE _____ CASE. THE INSTANT CASE IT APPEARS FROM THE RECORD BEFORE US THAT          WAS ATTEMPTING TO ENFORCE AN ORDER OF THE GOVERNOR OF THE PUEBLO OF ZUNI, WHO - ACCORDING TO INFORMAL ADVICE FROM A REPRESENTATIVE OF THE DEPARTMENT OF THE INTERIOR - IS AN ELECTED TRIBAL OFFICIAL WHO RECEIVES NO SALARY FROM THE FEDERAL GOVERNMENT AND WHO IS NOT A FEDERAL EMPLOYEE. ALSO WE WERE INFORMALLY ADVISED THAT THE PRIMARY FUNCTION OF A FEDERAL OFFICER-IN- CHARGE ON AN INDIAN RESERVATION IS TO SIGN DOCUMENTS THAT ARE REQUIRED BY LAW TO BE SIGNED BY A FEDERAL OFFICIAL AND THAT A FEDERAL OFFICER-IN- CHARGE HAS NO POLICE FUNCTIONS. IN FACT THE RECORD INDICATES THAT THE ZUNI TRIBE HAS ITS OWN LAW ENFORCEMENT OFFICERS. WE WERE FURTHER ADVISED THAT A FEDERAL OFFICER-IN-CHARGE IS NOT SUBJECT TO THE ORDERS OF A TRIBAL OFFICIAL. MOREOVER, WE FOUND NOTHING IN THE RECORD BEFORE US TO SUPPORT THE STATEMENT OF THE ACTING ASSISTANT AREA DIRECTOR FOR ADMINISTRATION THAT         WAS FOLLOWING THE ORDERS OF HIS SUPERIOR. FURTHER, THERE IS NOTHING IN THE RECORD TO INDICATE THAT           LIABILITY AROSE FROM ACTIONS TAKEN IN ACCORDANCE WITH BUREAU OF INDIAN AFFAIRS' POLICY OR THAT HE RELIED ON LEGAL ADVICE FROM FEDERAL OFFICIALS.

IT HAS BEEN HELD THAT WHERE AN OFFICER AND EMPLOYEE OF THE GOVERNMENT IS SUED BECAUSE OF SOME OFFICIAL ACT DONE IN THE DISCHARGE OF AN OFFICIAL DUTY THE EXPENSE INCURRED BY HIM IN THE DISCHARGE OF SUCH DUTIES SHOULD BE BORNE BY THE UNITED STATES. SEE 15 COMP. DEC. 621, 44 COMP. GEN. 246, AND 31 ID. 246. UNDER THE FACTS AND CIRCUMSTANCES RECITED ABOVE, HOWEVER, IT DOES NOT APPEAR THAT            LIABILITY AROSE BY REASON OF EITHER THE PERFORMANCE OF HIS OFFICIAL DUTIES AS AN EMPLOYEE OF THE DEPARTMENT OF THE INTERIOR OR BECAUSE OF COMPLIANCE WITH THE DEPARTMENT'S POLICY, INSTRUCTIONS OR REGULATIONS, NOR PURSUANT TO ORDERS OF HIS SUPERIORS IN THE DEPARTMENT. ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.