B-136707, DEC. 14, 1962

B-136707, DEC. 14, 1962

TO CAPTAIN JAMES CLANCY WELLS, RETIRED:

REFERENCE IS MADE TO LETTER OF NOVEMBER 16, 1962, FROM YOUR ATTORNEY, MR. ROBERT H. BROWN OF THE LAW FIRM OF READY AND BROWN, SUBMITTING TO HONORABLE ROBERT T. STAFFORD, HOUSE OF REPRESENTATIVES, FOR REFERRAL TO OUR OFFICE FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, CH. 334, 45 STAT. 413, 31 U.S.C. 236, A CLAIM ON YOUR BEHALF FOR AN ATTORNEY'S FEE OF $3,829.40 PAID BY YOU ON JANUARY 7, 1960, TO THE LAW FIRM OF EMERY AND WOOD, WASHINGTON, D.C.

YOUR ATTORNEY STATED IN HIS LETTER, IN SUBSTANCE, THAT YOU PRESENTED A CLAIM AGAINST THE ARMY FOR INCREASED RETIRED PAY BECAUSE THE RETIRED PAY YOU WERE THEN RECEIVING WAS NOT BASED ON THE HIGHEST PERMANENT GRADE HELD BY YOU IN THE ARMY AND THAT AFTER EMERY AND WOOD INSTITUTED SUITIN THE COURT OF CLAIMS AND SUCH CLAIM WAS SUCCESSFULLY SETTLED--- BY OUR CLAIMS DIVISION ON AUTHORITY OF THE JAKWAY CASE, 146 CT.CL. 482 (1959/--- YOU PAID THAT FIRM AN ATTORNEY'S FEE IN THE AMOUNT OF $3,829.40.

GENERALLY, THE MATTER OF THE EMPLOYMENT AND PAYMENT OF AN ATTORNEY IS A MATTER BETWEEN THE CLAIMANT AND THE ATTORNEY AND, IN THE ABSENCE OF A STATUTORY PROVISION OR A VALID AGREEMENT BASED ON A STATUTORY PROVISION, THERE IS NO AUTHORITY FOR THE ALLOWANCE OF AN ATTORNEY'S FEE TO A PARTY IN A CLAIM OR SUIT AGAINST THE GOVERNMENT, WHETHER OR NOT HE HAS BEEN SUCCESSFUL. SEE 37 COMP. GEN. 485, 487. IN SUITS AGAINST THE UNITED STATES IT HAS BEEN PROVIDED THAT THE UNITED STATES SHALL BE LIABLE FOR FEES AND COSTS ONLY WHEN SUCH LIABILITY IS EXPRESSLY PROVIDED FOR BY AN ACT OF CONGRESS. 28 U.S.C. 2412 (A).

UNDER THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, WE HAVE AUTHORITY TO RECOMMEND TO THE CONGRESS ONLY THOSE CLAIMS WHICH AFTER FAVORABLE CONSIDERATION CANNOT BE PAID FROM EXISTING APPROPRIATIONS, BUT WHICH, IN OUR JUDGMENT, CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF CONSIDERATION BY THE CONGRESS. WHILE IT APPEARS THAT YOUR ATTORNEY IS AWARE OF THE FACT THAT THERE IS NO LEGAL BASIS FOR THE PAYMENT OF YOUR CLAIM, HE HAS REFERRED TO NO EQUITABLE CIRCUMSTANCE WHICH DISTINGUISHES YOUR CLAIM, HE HAS REFERRED TO NO EQUITABLE WHICH DISTINGUISHES YOUR CASE FROM THAT OF THOUSANDS OF OTHER SUCCESSFUL CLAIMANTS WHO HAVE PAID THE FEES OF ATTORNEYS THEY HIRED TO PROSECUTE THEIR CLAIMS AGAINST THE GOVERNMENT. WE SEE NO EQUITABLE REASON WHY THE GOVERNMENT SHOULD PAY SUCH FEES OR FOR SUGGESTING TO THE CONGRESS THAT THE POLICY EMBODIED IN 28 U.S.C. 2412 (A) IS BASED ON INEQUITABLE GROUNDS. SINCE WE DO NOT VIEW YOUR CLAIM AS CONTAINING ANY ELEMENT OF EQUITY WARRANTING ITS PAYMENT, IT WILL NOT BE REFERRED TO THE CONGRESS UNDER THE 1928 ACT.