B-176944, NOV 14, 1972
Highlights
WAS RECEIVED IN YOUR OFFICE ON JANUARY 14. WERE DISALLOWED ON THE BASIS OF THE ONE-YEAR LIMITATION ESTABLISHED BY 28 U.S.C. 636 (1964 ED.). BISTLINE IS CONTENDING THAT EITHER THERE SHOULD BE AN EXCEPTION TO THE ONE -YEAR LIMITATION IN HIS CASE OR 28 U.S.C. 633(A)(8)(1964 ED.). SHOULD BE INTERPRETED TO MEAN THAT HIS RIGHT TO A FEE FOR HIS SERVICES IN A PETTY OFFENSE CASE DOES NOT ACCRUE UNTIL THE FINES INVOLVED ARE COLLECTED. FOR WHICH THE UNITED STATES IS LIABLE. ARE BARRED SINCE MR. BISTLINE IS CHARGEABLE WITH KNOWLEDGE OF THIS PROVISION OF THE LAW PROHIBITING PAYMENT OF FEES FOR SERVICES RENDERED MORE THAN ONE YEAR PRIOR TO THE DATE THE ACCOUNT IS PRESENTED FOR PAYMENT. 15 COMP. SINCE THE TIME LIMITATION IS IMPOSED BY STATUTE.
B-176944, NOV 14, 1972
CIVILIAN PERSONNEL - COMMISSIONER - ONE-YEAR LIMITATION - FILING OF ACCOUNTS DECISION DENYING THE CLAIM OF R. DON BISTLINE FOR SERVICES RENDERED AS A FORMER U. S. COMMISSIONER FOR THE DISTRICT OF IDAHO. A COMMISSIONER CANNOT BE PAID FOR SERVICES RENDERED MORE THAN ONE YEAR PRIOR TO HIS FILING OF ACCOUNTS FOR THESE SERVICES, 28 U.S.C. 636. THE FACT THAT FURTHER PROCEEDINGS MAY BE NECESSARY IN A PETTY OFFENSE CASE OVER WHICH HE PRESIDED DOES NOT DELAY ACCRUAL OF THE COMMISSIONER'S RIGHT TO A FEE TO A DATE AFTER THE TIME OF THE CASE'S HEARING OR SENTENCING UNDER 28 U.S.C. 633(A)(8), AND THEREFORE, DOES NOT AFFECT THE ONE-YEAR STATUTORY LIMITATION.
TO MR. ROWLAND F. KIRKS:
BY LETTER OF AUGUST 31, 1972, THE ASSISTANT DIRECTOR FOR MANAGEMENT AFFAIRS, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, REQUESTED OUR DECISION AS TO WHETHER ANY ADDITIONAL AMOUNT MAY BE PAID TO MR. R. DON BISTLINE UNDER THE PROVISIONS OF SECTIONS 633(A) AND 636 OF TITLE 28, UNITED STATES CODE (1964 ED.) FOR SERVICES RENDERED AS A FORMER UNITED STATES COMMISSIONER FOR THE DISTRICT OF IDAHO.
MR. BISTLINE'S FEE ACCOUNT COVERING THE PERIOD FROM NOVEMBER 30, 1970, THROUGH FEBRUARY 1, 1971, WAS RECEIVED IN YOUR OFFICE ON JANUARY 14, 1972. FEES CLAIMED FOR SERVICES RENDERED PRIOR TO JANUARY 14, 1971, WERE DISALLOWED ON THE BASIS OF THE ONE-YEAR LIMITATION ESTABLISHED BY 28 U.S.C. 636 (1964 ED.). FROM THE CORRESPONDENCE ENCLOSED WITH THE ASSISTANT DIRECTOR'S LETTER OF AUGUST 31, 1972, IT APPEARS THAT MR. BISTLINE IS CONTENDING THAT EITHER THERE SHOULD BE AN EXCEPTION TO THE ONE -YEAR LIMITATION IN HIS CASE OR 28 U.S.C. 633(A)(8)(1964 ED.) SHOULD BE INTERPRETED TO MEAN THAT HIS RIGHT TO A FEE FOR HIS SERVICES IN A PETTY OFFENSE CASE DOES NOT ACCRUE UNTIL THE FINES INVOLVED ARE COLLECTED.
SECTION 633(A)(8) OF TITLE 28, U.S.C. (1964 ED.), PROVIDES IN PERTINENT PART AS FOLLOWS:
"UNITED STATES COMMISSIONERS IN EACH JUDICIAL DISTRICT, EXCEPT NATIONAL PARK COMMISSIONERS, SHALL RECEIVE THE FOLLOWING FEES ONLY FOR ALL SERVICES RENDERED ***
"(8) FOR EACH DEFENDANT TRIED OR SENTENCED BY HIM FOR A PETTY OFFENSE, IN LIEU OF ALL OTHER FEES PROVIDED IN THIS SECTION, A FEE GRADUATED ACCORDING TO THE AGGREGATE NUMBER OF CASES IN EACH QUARTERLY ACCOUNTING PERIOD, IN THE SUM OF $16 FOR EACH OF THE FIRST TWENTY-FIVE CASES AND $12 FOR EACH ADDITIONAL CASE."
SECTION 636 OF TITLE 28, U.S.C. (1964 ED.), PROVIDES:
"THE ACCOUNTS OF EACH UNITED STATES COMMISSIONER SHALL BE RENDERED QUARTERLY, IN DUPLICATE, UNDER REGULATION 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."
PAYMENT FOR SERVICES RENDERED PRIOR TO JANUARY 14, 1971, ARE BARRED SINCE MR. BISTLINE IS CHARGEABLE WITH KNOWLEDGE OF THIS PROVISION OF THE LAW PROHIBITING PAYMENT OF FEES FOR SERVICES RENDERED MORE THAN ONE YEAR PRIOR TO THE DATE THE ACCOUNT IS PRESENTED FOR PAYMENT. 15 COMP. GEN. 323 (1935). ALSO, SINCE THE TIME LIMITATION IS IMPOSED BY STATUTE, NEITHER THE GENERAL ACCOUNTING OFFICE NOR YOUR OFFICE MAY MAKE AN EXCEPTION TO SUCH LIMITATION.
REGARDING THE INTERPRETATION OF 28 U.S.C. 633(A)(8) (1964 ED.), THE ASSISTANT DIRECTOR IN HIS LETTER OF AUGUST 31, 1972, STATES THE FOLLOWING:
"*** FOR FEE PURPOSES, A CASE IS CLOSED WHEN A HEARING HAS BEEN HELD AND/OR SENTENCE IS IMPOSED, AND THE DATE A FEE BECOMES DUE IS NOT CONTINGENT UPON THE COLLECTION OF A FINE. THE ENFORCEMENT OF ANY JUDGEMENT IS WITHIN THE PROVINCE OF THE DEPARTMENT OF JUSTICE. ALSO, UNDER THE RULES OF PROCEDURE FOR TRIALS BEFORE COMMISSIONERS, MOTIONS SUBSEQUENT TO JUDGEMENT OF CONVICTION COULD NOT BE ENTERTAINED BY THE COMMISSIONERS. ACCORDINGLY, IT IS OUR POSITION THAT THE COLLECTION OF FINES IS NOT AN INTEGRAL PART OF A JUDICIAL PROCEEDING BUT RATHER A MINISTERIAL FUNCTION."
WE ALSO NOTE THAT THE STATUTE PROVIDES THAT THE ONE FEE FOR THE HEARING AND/OR SENTENCING IN PETTY OFFENSE CASES IS "IN LIEU OF ALL OTHER FEES PROVIDED IN THIS SECTION," AND THAT UNDER THE SIMPLIFIED FEE SCHEDULE WHICH 28 U.S.C. 633 (1964 ED.) REPRESENTS, A SEPARATE FEE WOULD NOT BE PAYABLE IF A SECOND HEARING WAS NECESSARY. SEE 44 COMP. GEN. 10 (1964). HOWEVER, THE FACT THAT FURTHER PROCEEDINGS MAY BE NECESSARY DOES NOT AFFECT THE COMMISSIONER'S STATUTORY ENTITLEMENT TO A FEE WHEN A DEFENDANT IS TRIED OR SENTENCED BY HIM FOR A PETTY OFFENSE. IN VIEW OF THIS AND SINCE THE DEPARTMENT OF JUSTICE IS RESPONSIBLE FOR THE ENFORCEMENT OF THE JUDGEMENT, WE HAVE CONCLUDED THAT THE HEARING OR THE SENTENCING DETERMINES THE ACCRUAL OF THE RIGHT TO THE FEE PROVIDED FOR IN 28 U.S.C. 633(A)(8) (1964 ED.).
ACCORDINGLY, WE CONCUR WITH YOUR INTERPRETATION OF THIS PROVISION OF LAW AND FIND NO BASIS FOR PAYMENT TO MR. BISTLINE OF THE ITEMS CLAIMED.