B-167087, OCT. 31, 1969

B-167087: Oct 31, 1969

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EXAMINATION OF THE FILE DISCLOSES THAT A SIMILAR ARGUMENT WAS PRESENTED TO THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN SUPPORT OF A MOTION FOR PRODUCTION OF RECORD WHICH WAS OPPOSED IN A WRITTEN MEMORANDUM SUBMITTED BY DAVID S. THE MEMORANDUM WAS FILED WITH THE COURT AND ON NOVEMBER 29. COPIES WERE SERVED ON COUNSEL FOR ALL PARTIES OF RECORD BY FIRST CLASS MAIL. THE MATTER WAS ARGUED BEFORE JUDGE FREDERICK VAN PELT BRYAN ON APRIL 5. WAS ADDRESSED TO JUDGE BRYAN IN WHICH IT WAS STATED AMONG OTHER THINGS THAT "COUNSEL FOR PLAINTIFF HAS AGREED TO ORDER. YOU ARE HEREBY AUTHORIZED TO PREPARE AND CERTIFY ALL OTHER ITEMS IN THE DOCKETS INVOLVED IN THIS CASE AT THE EXPENSE OF THE PLAINTIFF AND TO FORWARD THE ENTIRE RECORD TO THE CLERK.

B-167087, OCT. 31, 1969

TO MR. WILLIAM R. BURT:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF OCTOBER 1, 1969, WHICH, IN EFFECT REQUESTS REVIEW OF MY DECISION, B-167087 OF JULY 25, 1969, TO YOU, AS TO YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $928.90.

THE AMOUNT OF $928.90 REPRESENTS THE FEES CHARGED FOR REPRODUCING AND CERTIFYING CERTAIN RECORDS OF THE INTERSTATE COMMERCE COMMISSION FOR USE IN CONNECTION WITH THE CASE OF INTERSTATE INVESTORS, INC., PLAINTIFFS V UNITED STATES OF AMERICA AND INTERSTATE COMMERCE COMMISSION, DEFENDANTS, TRANSCONTINENTAL BUS SYSTEM, INC., INTERVENOR, CIVIL ACTION NO. 66 CIV. 3004 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. IN YOUR LETTER OF OCTOBER 1, 1969, AS WELL AS IN CORRESPONDENCE PREVIOUSLY CONSIDERED YOU URGE THAT 5 U.S.C. 140, WHICH HAS BEEN RECODIFIED AS 31 U.S.C. 483A, DOES NOT PROVIDE A STATUTORY BASIS FOR THE INTERSTATE COMMERCE COMMISSION TO CHARGE YOU WITH THIS AMOUNT BUT THAT IN ACCORDANCE WITH THE PROVISIONS OF 28 U.S.C. 2112 THE EXPENSE OF REPRODUCING AND CERTIFYING THE RECORDS, SHOULD REST UPON THE INTERSTATE COMMERCE COMMISSION.

EXAMINATION OF THE FILE DISCLOSES THAT A SIMILAR ARGUMENT WAS PRESENTED TO THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN SUPPORT OF A MOTION FOR PRODUCTION OF RECORD WHICH WAS OPPOSED IN A WRITTEN MEMORANDUM SUBMITTED BY DAVID S. J. BROWN, ATTORNEY, DEPARTMENT OF JUSTICE, DONALD F. TURNER, ASSISTANT ATTORNEY GENERAL, ROBERT M. MORGANTHAU, UNITED STATES ATTORNEY, ATTORNEYS FOR THE UNITED STATES OF AMERICA, AND ROBERT W. GINNANE, GENERAL COUNSEL, AND JEROME NELSON, ATTORNEYS FOR THE INTERSTATE COMMERCE COMMISSION. THE MEMORANDUM WAS FILED WITH THE COURT AND ON NOVEMBER 29, 1966, COPIES WERE SERVED ON COUNSEL FOR ALL PARTIES OF RECORD BY FIRST CLASS MAIL, POSTAGE PREPAID. THE MATTER WAS ARGUED BEFORE JUDGE FREDERICK VAN PELT BRYAN ON APRIL 5, 1967.

A JOINT LETTER DATED THE FOLLOWING DAY, APRIL 6, 1967, SIGNED BY JEROME NELSON, COUNSEL FOR THE INTERSTATE COMMERCE COMMISSION AND FREDERICK W. P. LORENZEN, COUNSEL FOR INTERSTATE INVESTORS, NC., WAS ADDRESSED TO JUDGE BRYAN IN WHICH IT WAS STATED AMONG OTHER THINGS THAT "COUNSEL FOR PLAINTIFF HAS AGREED TO ORDER, AT PLAINTIFF'S EXPENSE, CERTIFIED COPIES OF ALL MATTERS IN THE ABOVE DOCKETS FOR FILING WITH THE COURT.'

BY LETTER DATED APRIL 7, 1967, RUSSEL H. BEATIE, JR. OF THE FIRM OF ROYALL, KOEGEL, ROGERS AND WELLS ADDRESSED A LETTER TO THE OFFICE OF THE SECRETARY, INTERSTATE COMMERCE COMMISSION IN WHICH HE STATED:

"PURSUANT TO AUTHORIZATION BY OUR CLIENT, INTERSTATE INVESTORS, INC., I ENCLOSE A STENOGRAPHER'S TRANSCRIPT OF THE PROCEEDINGS IN THIS CASE FOR CERTIFICATION AND INCLUSION AS PART OF THE RECORD ON APPEAL BEFORE THE THREE-JUDGE COURT SITTING IN THE SOUTHERN DISTRICT OF NEW YORK. YOU ARE HEREBY AUTHORIZED TO PREPARE AND CERTIFY ALL OTHER ITEMS IN THE DOCKETS INVOLVED IN THIS CASE AT THE EXPENSE OF THE PLAINTIFF AND TO FORWARD THE ENTIRE RECORD TO THE CLERK, UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK, FOLEY SQUARE, NEW YORK, NEW YORK.'

"* * * WE UNDERSTAND THAT THE COST TO BE BORNE BY THE PLAINTIFF FOR REPRODUCTION OF THIS RECORD IS LIMITED TO ANY PAGES WHICH BY VIRTUE OF UNOFFICIAL MARKINGS IS UNACCEPTABLE TO THE COMMISSION. CERTIFICATION AND ANY REPRODUCTION WILL BE GOVERNED BY THE JOINT LETTER OF THE PLAINTIFF AND THE INTERSTATE COMMERCE COMMISSION TO JUDGE FREDERICK VAN PELT BRYAN, DATED APRIL 6, 1967.' IN ACCORDANCE WITH THAT LETTER SIGNED BY MR. BEATIE THE REQUESTED MATERIAL WAS SENT TO THE UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK.

BY LETTER DATED APRIL 26, 1967, MR. BEATIE WAS NOTIFIED BY THE INTERSTATE COMMERCE COMMISSION OF THE COSTS INVOLVED. THAT AGENCY ALSO ADDRESSED REQUESTS FOR PAYMENT TO MR. BEATIE ON JANUARY 24, AND MARCH 26, 1968.

BECAUSE OF A LACK OF RESPONSE TO THOSE REQUESTS, THE BUDGET AND FISCAL OFFICE OF THE INTERSTATE COMMERCE COMMISSION ON FEBRUARY 5, 1969, ADDRESSED A LETTER REQUESTING PAYMENT TO MR. FREDERICK W. P. LORENZEN OF THE FIRM OF ROYALL, KOEGEL, ROGERS AND WELLS. A REPLY DATED FEBRUARY 7, 1969, WAS RECEIVED FROM MR. LORENZEN IN WHICH HE POINTED OUT THAT MR. BEATIE'S LETTER (DATED APRIL 7, 1967) ADVISED THAT THE COSTS WOULD BE PAID BY INTERSTATE INVESTORS, INC., AND THAT INTERSTATE INVESTORS WOULD AGAIN BE REQUESTED TO MAKE THE PAYMENT. ACCORDINGLY THE BUDGET AND FISCAL OFFICE OF THE INTERSTATE COMMERCE COMMISSION ON FEBRUARY 11, 1969, ADDRESSED A LETTER TO YOU INFORMING YOU OF THE INCURRING OF THE OBLIGATION, THE CORRESPONDENCE WITH YOUR ATTORNEYS, AND REQUESTING IMMEDIATE LIQUIDATION OF THE INDEBTEDNESS.

YOUR REPLY OF FEBRUARY 14, 1969, REFERRED TO 5 U.S.C. 140 (NOW 31 U.S.C. 483A) AND 28 U.S.C. 2112 AND STATED YOUR REASONS FOR BELIEVING THAT NO BASIS EXISTS FOR THE CHARGE. YOU REQUESTED THAT THE OPINION OF THE ATTORNEY GENERAL BE SOUGHT. THE FILE WAS THEN REVIEWED IN THE INTERSTATE COMMERCE COMMISSION AND REFERRED TO THE CLAIMS DIVISION, UNITED STATES GENERAL ACCOUNTING OFFICE FOR FURTHER COLLECTION PROCEEDINGS.

THE CLAIMS DIVISION, UNITED STATES GENERAL ACCOUNTING OFFICE ON APRIL 8, 1969, WROTE YOU AND REQUESTED PAYMENT OF THE DEBT. YOUR REPLY OF APRIL 18, 1969, AND ENCLOSURE AGAIN REFERRED TO 5 U.S.C. 140 (NOW 31 U.S.C. 483A) AND 28 U.S.C. 2112. THE LETTER STATED THAT IT WOULD APPEAR NECESSARY FOR THE ATTORNEY GENERAL TO PASS ON THE INTERPRETATION OF THE INTERSTATE COMMERCE COMMISSION. IT WAS ALSO REQUESTED THAT THE ISSUES RAISED IN THE LETTER BE GIVEN THE SERIOUS CONSIDERATION THAT THEY REQUIRED.

THE ISSUES RAISED IN YOUR LETTER OF APRIL 18, 1969, WERE FULLY CONSIDERED AND DISCUSSED IN MY DECISION, B-167087 OF JULY 25, 1969, TO YOU WHICH CONCLUDED THAT THE CHARGES LEVIED BY THE INTERSTATE COMMERCE COMMISSION FOR THE REQUESTED REPRODUCTION OF RECORDS WERE AUTHORIZED UNDER 31 U.S.C. 483A AND THAT YOU ARE IN DEBT TO THE UNITED STATES IN THE AMOUNT OF $928.90. IT IS CONSIDERED UNNECESSARY TO REPEAT THE REASONS FOR THAT DECISION HERE.

THE ENTIRE FILE AND THE ISSUES PRESENTED HAVE AGAIN BEEN THOROUGHLY REVIEWED. IT IS AGAIN CONCLUDED THAT YOU ARE INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $928.90. IT SHOULD BE NOTED THAT THE ISSUES RAISED BY YOU HAVE APPARENTLY BEEN CONSIDERED BY THE OFFICE OF THE UNITED STATES ATTORNEY FOR THE SOUTHERN DISTRICT OF NEW YORK, THE OFFICE OF THE ASSISTANT ATTORNEY GENERAL OF THE UNITED STATES, ATTORNEYS FOR THE INTERSTATE COMMERCE COMMISSION, JUDGE FREDERICK VAN PELT BRYAN OF THE SOUTHERN DISTRICT OF NEW YORK, COUNSEL EMPLOYED TO REPRESENT YOU IN THE LITIGATION WHICH GAVE RISE TO THE INDEBTEDNESS, AND ON TWO OCCASIONS BY THIS OFFICE.

ACCORDINGLY UNLESS THE AMOUNT OF $928.90 IS RECEIVED IN THIS OFFICE FROM YOU BY RETURN MAIL, THE MATTER OF YOUR INDEBTEDNESS WILL BE REFERRED TO THE DEPARTMENT OF JUSTICE.

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