B-175516, MAY 1, 1972, 51 COMP GEN 701

B-175516, MAY 1, 1972, 51 COMP GEN 701

ATTORNEYS - FEES - BAR MEMBERSHIP DUES - GOVERNMENT ATTORNEYS THE MEMBERSHIP DUES ASSESSED BY THE UNIFIED BAR FOR THE DISTRICT OF COLUMBIA (D.C.) ON GOVERNMENT ATTORNEYS WHO ARE MEMBERS OF THE DISTRICT OF COLUMBIA BAR ARE PERSONAL EXPENSES THAT ARE NOT PAYABLE FROM APPROPRIATED FUNDS. THEREFORE, SINCE ONLY THOSE ATTORNEYS OF THE U.S. PATENT OFFICE WHO ARE MEMBERS OF THE DISTRICT OF COLUMBIA BAR ARE SUBJECT TO THE DUES OF THE UNIFIED BAR TO BE PERMITTED TO APPEAR IN THE U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, THE COURT OF APPEALS FOR THAT CIRCUIT, AND THE U.S. COURT OF CUSTOMS AND PATENT APPEALS, THOSE ATTORNEYS WHO ARE NOT MEMBERS OF THE DISTRICT OF COLUMBIA BAR, MAY WITHOUT THE PAYMENT OF DUES TO THE UNIFIED BAR APPEAR BEFORE THE U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA IN THOSE CASES IN WHICH THE UNITED STATES IS A PARTY, AND IF ADMITTED TO PRACTICE BEFORE THE HIGHEST COURT OF ANY STATE, MAY BE ADMITTED TO PRACTICE BEFORE THE U.S. COURT OF APPEALS, THE U.S. COURT OF CLAIMS, AND THE U.S. COURT OF CUSTOMS AND PATENT APPEALS. GENERAL ACCOUNTING OFFICE - DECISIONS - ADVANCE - DISBURSING AND CERTIFYING OFFICERS - QUESTIONS NOT ON VOUCHER SINCE THE AUTHORITY OF THE U.S. GENERAL ACCOUNTING OFFICE TO ISSUE ADVANCE DECISIONS TO CERTIFYING OFFICERS IS LIMITED TO QUESTIONS INVOLVED IN SPECIFIC VOUCHERS PRESENTED TO THEM FOR CERTIFICATION, THE QUESTION OF WHETHER APPROPRIATED FUNDS MAY BE USED TO PAY MEMBERSHIP DUES TO THE UNIFIED BAR OF THE DISTRICT OF COLUMBIA PRESENTED BY A CERTIFYING OFFICER MUST BE TREATED AS A REQUEST FOR A DECISION FROM THE HEAD OF THE AGENCY UNDER 31 U.S.C. 74, AND THE REPLY DIRECTED TO HIM.

TO THE SECRETARY OF COMMERCE, MAY 1, 1972:

REFERENCE IS MADE TO LETTER OF MARCH 17, 1972, FROM L. L. NAHME, AUTHORIZED CERTIFYING OFFICER, OFFICE OF FINANCE, U.S. PATENT OFFICE, AS FOLLOWS:

AS A RESULT OF COURT REFORM LEGISLATION IN THE DISTRICT OF COLUMBIA, THE DISTRICT OF COLUMBIA COURT OF APPEALS WILL, ON APRIL 1, 1972, ASSUME JURISDICTION OVER THE PRACTICE OF LAW IN THE DISTRICT OF COLUMBIA. RULES OF COURT, THE SAID COURT HAS INSTITUTED A UNIFIED BAR FOR THE DISTRICT OF COLUMBIA, THE PERTINENT RULES BEING SET FORTH IN THE ATTACHED PHOTOCOPIES. YOU WILL NOTE THAT UNDER RULE XIIIA) NO ONE CAN PRACTICE LAW IN THE DISTRICT OF COLUMBIA UNLESS HE IS AN ACTIVE MEMBER OF THE DISTRICT OF COLUMBIA BAR. YOU WILL ALSO NOTE THAT UNDER RULE II, SECTION (4), THE PAYMENT OF MEMBERSHIP DUES WILL BE REQUIRED IN AN AMOUNT NOT EXCEEDING $50 PER YEAR. THE MEMORANDUM FROM ALBERT E. BRAULT, CHAIRMAN OF THE ORGANIZATION COMMITTEE, SHOWN IN THE ATTACHED PHOTOCOPY, WOULD SEEM TO ELIMINATE ANY POSSIBILITY THE GOVERNMENT EMPLOYED LAWYERS WHO PRACTICE IN THE COURTS ARE IMMUNE FROM THE ACTIVE MEMBERSHIP REQUIREMENTS.

ALL OF THE LAWYERS IN THE OFFICE OF THE SOLICITOR, U.S. PATENT OFFICE, (9 IN NUMBER) ARE REQUIRED AS A REGULAR PART OF THEIR DUTIES TO APPEAR IN THE U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, THE COURT OF APPEALS FOR THAT CIRCUIT, AND THE U.S. COURT OF CUSTOMS AND PATENT APPEALS. THE PAYMENT OF THE BAR DUES WILL BE MANDATORY IF THEY ARE TO PERFORM THEIR DUTIES.

UNDER THE RECITED CIRCUMSTANCES, IS THERE ANY POSSIBILITY THAT ALL OR A PART OF THE DUES COULD BE PAID OUT OF PATENT OFFICE APPROPRIATIONS?

THE AUTHORITY OF THIS OFFICE TO ISSUE ADVANCE DECISIONS TO CERTIFYING OFFICERS IS LIMITED TO QUESTIONS INVOLVED IN SPECIFIC VOUCHERS PRESENTED TO THEM FOR CERTIFICATION. 31 U.S.C. 82D; SEE E.G., 26 COMP. GEN. 797, 799-800 (1947). FOR THIS REASON, WE TREAT THE INSTANT SUBMISSION AS A REQUEST FOR DECISION FROM YOU UNDER 31 U.S.C. 74 AND OUR REPLY IS MADE TO YOU AS HEAD OF THE DEPARTMENT INVOLVED. SEE 47 COMP. GEN. 70, 71 (1967); CF. 41 ID. 767 (1962).

THE STATEMENT IN MR. NAHME'S LETTER THAT UNDER THE "RULES GOVERNING THE BAR OF THE DISTRICT OF COLUMBIA" NO ONE CAN PRACTICE LAW IN THE DISTRICT OF COLUMBIA UNLESS HE IS A MEMBER OF THE DISTRICT OF COLUMBIA BAR IS NOT CORRECT INSOFAR AS FEDERAL AGENCIES AND FEDERAL COURTS ARE CONCERNED. MEMBER OF THE BAR OF ANY STATE, THE DISTRICT OF COLUMBIA, OR PUERTO RICO, IS ELIGIBLE FOR EMPLOYMENT AS A GOVERNMENT ATTORNEY, I.E., FOR EMPLOYMENT IN AN ATTORNEY POSITION IN A FEDERAL AGENCY. ALSO, INSOFAR AS THE U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA IS CONCERNED, ATTORNEYS WHO ARE MEMBERS IN GOOD STANDING OF THAT COURT ON APRIL 1, 1972, CONTINUE TO BE MEMBERS WITHOUT FORMAL APPLICATION; AND ATTORNEYS EMPLOYED OR RETAINED BY THE UNITED STATES WHO ARE NOT MEMBERS OF THE BAR OF SUCH COURT MAY UPON LEAVE OF COURT ENTER THEIR APPEARANCE AND SIGN PLEADINGS AND PAPERS IN CASES IN WHICH THE UNITED STATES OR ONE OF ITS AGENCIES IS A PARTY. SEE REVISED RULE 93 (SEC. (2)) DATED MARCH 14, 1972, RULES OF THE U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA. THUS, IT WOULD SEEM THAT GOVERNMENT ATTORNEYS WHO ARE NOT MEMBERS OF THE DISTRICT OF COLUMBIA BAR MAY APPEAR BEFORE THE U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA IN CASES IN WHICH THE UNITED STATES IS A PARTY.

FURTHER, ATTORNEYS WHO HAVE BEEN ADMITTED TO PRACTICE BEFORE THE HIGHEST COURT OF ANY STATE ARE ELIGIBLE FOR ADMISSION TO THE BAR OF THE U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, THE U.S. COURT OF CLAIMS AND THE U.S. COURT OF CUSTOMS AND PATENT APPEALS. SEE IN THIS CONNECTION, 28 U.S.C. APPENDIX, RULE 46, FEDERAL RULES OF APPELLATE PROCEDURE; 28 U.S.C. APPENDIX, RULE 201, RULES OF COURT OF CLAIMS; AND 35 U.S.C. RULE II, RULES OF THE U.S. COURT OF CUSTOMS AND PATENT APPEALS. HENCE, ATTORNEYS EMPLOYED OR RETAINED BY THE FEDERAL GOVERNMENT WHO ARE NOT MEMBERS OF THE DISTRICT OF COLUMBIA BAR BUT WHO HAVE BEEN ADMITTED TO PRACTICE BEFORE THE HIGHEST COURT OF ANY STATE MAY BE ADMITTED TO PRACTICE BEFORE THE U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, THE U.S. COURT OF CLAIMS, AND THE U.S. COURT OF CUSTOMS AND PATENT APPEALS, IF OTHERWISE QUALIFIED.

IN ANY EVENT IT HAS BEEN REPEATEDLY HELD THAT FEES INCIDENT TO OBTAINING PERMITS OR LICENSES NECESSARY TO QUALIFY A FEDERAL EMPLOYEE TO PERFORM THE DUTIES OF A POSITION ARE PERSONAL EXPENSES FOR WHICH APPROPRIATED FUNDS ARE NOT AVAILABLE. SEE 23 COMP. DEC. 386 (1917); 3 COMP. GEN. 663 (1924); 6 COMP. GEN. 432 (1926); 21 COMP. GEN. 769 (1942); AND 31 COMP. GEN. 81 (1951).

WE HAVE APPLIED THE FOREGOING PRINCIPLES IN SEVERAL DECISIONS CONCERNING FEES AND EXPENSES INCIDENT TO THE PRACTICE OF LAW. IN 22 COMP. GEN. 460 (1942), WE HELD THAT AN ATTORNEY COULD NOT RECEIVE REIMBURSEMENT FOR THE PAYMENT OF A COURT ADMISSION FEE WHICH WAS NECESSARY TO QUALIFY HIM TO REPRESENT THE GOVERNMENT IN A PARTICULAR CASE. THIS DECISION WAS REAFFIRMED UNDER SIMILAR FACTS IN 47 COMP. GEN. 116 (1967). FINALLY, IN OUR DECISION OF MARCH 2, 1971, B-171677, WHICH APPEARS TO BE INDISTINGUISHABLE FROM THE INSTANT CONTEXT, WE HELD THAT APPROPRIATED FUNDS COULD NOT BE APPLIED TO THE EXPENSE INCURRED BY A FEDERAL ATTORNEY INCIDENT TO MAINTAINING HIS STATUS AS AN ATTORNEY IN GOOD STANDING OF THE STATE BAR OF CALIFORNIA, WHICH IS A "UNIFIED" OR "INTEGRATED" BAR JURISDICTION. WE NOTED THEREIN THAT THE PRINCIPLE IS THE SAME WHETHER APPLIED TO AN ISOLATED FEE OR TO DUES OR FEES CHARGEABLE ON A RECURRENT BASIS.

IN LIGHT OF THE FOREGOING IT MUST BE HELD THAT PATENT OFFICE APPROPRIATIONS MAY NOT BE USED TO PAY ALL OR ANY PART OF THE FEE OR DUES IN QUESTION, ABSENT STATUTORY AUTHORITY SPECIFICALLY SO PROVIDING.