B-200431.OM, DEC 31, 1981

B-200431.OM, DEC 31, 1981

SUBJECT: JAMES F. REGAN V. SULLIVAN, Z-2824638 (B-200431-O.M.) DIGEST: ISSUANCE BY COURT OF CERTIFICATE OF PROBABLE CAUSE UNDER 28 U.S.C. SEC. 2006 CONVERTS JUDGMENT AGAINST INDIVIDUAL REVENUE OFFICER TO JUDGMENT AGAINST UNITED STATES. WHERE CERTIFICATE IS ISSUED AND CASE IS WITHIN SCOPE OF 26 U.S.C. SEC. 7423 WHICH AUTHORIZES SECRETARY OF TREASURY TO REPAY JUDGMENTS IN CERTAIN SITUATIONS, PAYMENT MUST BE MADE FROM AGENCY APPROPRIATIONS. 56 COMP.GEN. 615. WHERE CERTIFICATE IS ISSUED AND CASE IS NOT WITHIN 26 U.S.C. SEC. 7423, JUDGMENT IS PAYABLE FROM PERMANENT JUDGMENT APPROPRIATION, 31 U.S.C. SEC. 724A. JUDGMENT AGAINST CUSTOMS AGENT WHERE COURT ISSUED CERTIFICATE SHOULD BE REIMBURSED FROM JUDGMENT APPROPRIATION SINCE ISSUANCE OF CERTIFICATE ESTABLISHED GOVERNMENT OBLIGATION AND 26 U.S.C. SEC. 7423 DOES NOT APPLY.

ACTING ASSOCIATE DIRECTOR, AFMD/CLAIMS:

YOUR PAYMENT BRANCH REQUESTED OUR ADVICE AS TO THE PROPER SOURCE OF FUNDS TO REIMBURSE SPECIAL AGENT DONALD J. GRATTAN, UNITED STATES CUSTOMS SERVICE, FOR $500 HE WAS REQUIRED TO PAY UNDER COURT ORDER IN THE SUBJECT CASE. MR. GRATTAN IS ENTITLED TO REIMBURSEMENT BECAUSE THE COURT ISSUED A CERTIFICATE OF PROBABLE CAUSE UNDER 28 U.S.C. SEC. 2006.

BECAUSE WE COULD FIND NO DISCUSSION OF 28 U.S.C. SEC. 2006 SINCE THE ENACTMENT OF THE PERMANENT JUDGMENT APPROPRIATION (31 U.S.C. SEC. 724A) IN 1956, WE CONDUCTED A RATHER DETAILED ANALYSIS. BRIEFLY, OUR CONCLUSIONS ARE AS FOLLOWS:

(1) IF A CERTIFICATE OF PROBABLE CAUSE IS ISSUED UNDER 28 U.S.C. SEC. 2006 AND THE CASE FALLS WITHIN THE SCOPE OF 26 U.S.C. SEC. 7423, PAYMENT OR REIMBURSEMENT MUST BE MADE FROM AVAILABLE TREASURY DEPARTMENT APPROPRIATIONS. 56 COMP.GEN. 615 (1977).

(2) IF A CERTIFICATE OF PROBABLE CAUSE IS ISSUED AND THE CASE DOES NOT FALL WITHIN THE SCOPE OF 26 U.S.C. SEC. 7423, PAYMENT OR REIMBURSEMENT SHOULD BE MADE FROM THE PERMANENT JUDGMENT APPROPRIATION, 31 U.S.C. SEC. 724A.

MR. GRATTAN'S LIABILITY AROSE FROM THE PERFORMANCE OF HIS OFFICIAL DUTIES UNDER THE CUSTOMS LAWS RATHER THAN THE INTERNAL REVENUE CODE. THEREFORE, 26 U.S.C. SEC. 7423 DOES NOT APPLY. SINCE THE FILE REFLECTS THAT THE $500 IN QUESTION WAS IN FACT PAID BY MR. GRATTAN, HE SHOULD BE REIMBURSED UNDER 31 U.S.C. SEC. 724A, THE PAYMENT TO BE CHARGED TO ACCOUNT 20X1741.

A DETAILED LEGAL ANALYSIS IS ATTACHED.

ATTACHMENT

SOURCE OF FUNDS FOR PAYMENT OF JUDGMENT WHEN CERTIFICATE OF PROBABLE CAUSE IS ISSUED UNDER 28 U.S.C. SEC. 2006

SUITS AGAINST INDIVIDUAL TAX COLLECTORS AND REVENUE AGENTS DERIVE FROM THE COMMON LAW AND HAVE BEEN AROUND FOR AS LONG AS THE GOVERNMENT HAS BEEN COLLECTING TAXES. THE PAYMENT OF THESE JUDGMENTS HAS BEEN THE SUBJECT OF NUMEROUS DECISIONS OF THIS OFFICE.

SINCE THE 19TH CENTURY, IT HAS BEEN THE POLICY OF THE UNITED STATES THAT JUDGMENTS AGAINST REVENUE AGENTS FOR ACTIONS TAKEN IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES SHOULD BE PAID AT LEAST ULTIMATELY BY THE GOVERNMENT AND NOT BY THE DEFENDANT EMPLOYEES PERSONALLY. THIS POLICY IS EMBODIED IN TWO STATUTES, SET FORTH BELOW:

(1) 28 U.S.C. SEC. 2006.

"EXECUTION SHALL NOT ISSUE AGAINST A COLLECTOR OR OTHER REVENUE OFFICER ON A FINAL JUDGMENT IN ANY PROCEEDING AGAINST HIM FOR ANY OF HIS ACTS, OR FOR THE RECOVERY OF ANY MONEY EXACTED BY OR PAID TO HIM AND SUBSEQUENTLY PAID INTO THE TREASURY, IN PERFORMING HIS OFFICIAL DUTIES, IF THE COURT CERTIFIES THAT:

"(1) PROBABLE CAUSE EXISTED; OR

"(2) THE OFFICER ACTED UNDER THE DIRECTIONS OF THE SECRETARY OF THE TREASURY OR OTHER PROPER GOVERNMENT OFFICER.

"WHEN SUCH CERTIFICATE HAS BEEN ISSUED, THE AMOUNT OF THE JUDGMENT SHALL BE PAID OUT OF THE PROPER APPROPRIATION BY THE TREASURY."

THIS STATUTE ORIGINATED AS THE ACT OF MARCH 3, 1863, CH. 76, SEC. 12, 12 STAT. 741, AND WAS FORMERLY DESIGNATED AS REVISED STATUTES SEC. 989. THE ORIGINAL ENACTMENT READ "PROPER APPROPRIATION FROM THE TREASURY." "FROM" WAS CHANGED TO "BY" IN ONE OF THE CODIFICATIONS.

(2) 26 U.S.C. SEC. 7423:

"THE SECRETARY OF THE TREASURY OR HIS DELEGATE, SUBJECT TO REGULATIONS PRESCRIBED BY THE SECRETARY OR HIS DELEGATE, IS AUTHORIZED TO REPAY -

"(1) COLLECTIONS RECOVERED. - TO ANY OFFICER OR EMPLOYEE OF THE UNITED STATES THE FULL AMOUNT OF SUCH SUMS OF MONEY AS MAY BE RECOVERED AGAINST HIM IN ANY COURT, FOR ANY INTERNAL REVENUE TAXES COLLECTED BY HIM, WITH THE COST AND EXPENSE OF SUIT; ALSO

"(2) DAMAGES AND COSTS. - ALL DAMAGES AND COSTS RECOVERED AGAINST ANY OFFICER OR EMPLOYEE OF THE UNITED STATES IN ANY SUIT BROUGHT AGAINST HIM BY REASON OF ANYTHING DONE IN THE DUE PERFORMANCE OF HIS OFFICIAL DUTY UNDER THIS TITLE."

THIS STATUTE ALSO DATES BACK TO THE 19TH CENTURY, AT LEAST TO 1866 (14 STAT. 111), AND WAS FORMERLY DESIGNATED AS REVISED STATUTES SEC. 3220.

THE TWO STATUTES ARE CLOSELY RELATED AND MUST BE CONSIDERED TOGETHER. U.S.C. SEC. 7423 AUTHORIZES REIMBURSEMENT IN CERTAIN SITUATIONS WHILE 28 U.S.C. SEC. 2006 IMPOSES A MANDATORY OBLIGATION ON THE GOVERNMENT IF THE CERTIFICATE IS ISSUED. AS A PRACTICAL MATTER, MOST CASES FOR WHICH A CERTIFICATE MAY ISSUE UNDER 28 U.S.C. SEC. 2006 WILL FALL WITHIN THE SCOPE OF 26 U.S.C. SEC. 7423.

THE SUPREME COURT DISCUSSED THE ORIGIN OF 28 U.S.C. SEC. 2006 IN UNITED STATES V. KALES, 314 U.S. 186, 197-98 (1941). ORIGINALLY, A TAXPAYER WHO BELIEVED HE WAS BEING WRONGFULLY ASSESSED OR OVERASSESSED MADE PAYMENT UNDER PROTEST. THE PROTEST WAS THEN FOLLOWED UP WITH A COMMON LAW ACTION AGAINST THE COLLECTOR FOR RESTITUTION. THE PROTEST SERVED TO NOTIFY THE COLLECTOR NOT TO ATTEMPT TO RELIEVE HIMSELF FROM LIABILITY BY PAYING THE MONEY INTO THE TREASURY. THUS, IF THE COLLECTOR LOST THE SUIT, HE PAID THE JUDGMENT HIMSELF BUT HE WAS PAYING OUT OF THE MONEYS HE HAD COLLECTED AND NOT FROM PERSONAL FUNDS. SUBSEQUENT LEGISLATION (NOW 26 U.S.C. SEC. 7809) REQUIRED THE COLLECTOR TO DEPOSIT THE COLLECTIONS INTO THE TREASURY REGARDLESS OF PROTEST. TO PRESERVE THE COLLECTOR'S PROTECTION AGAINST PERSONAL FINANCIAL LIABILITY, CONGRESS THEN ENACTED WHAT IS NOW 28 U.S.C. SEC. 2006.

THE SUPREME COURT HAS OFTEN POINTED OUT THAT THE PRACTICAL EFFECT OF 28 U.S.C. SEC. 2006 IS TO CONVERT THE JUDGMENT FROM A JUDGMENT AGAINST THE INDIVIDUAL TO A JUDGMENT AGAINST THE GOVERNMENT. UNITED STATES V. SHERMAN, 98 U.S. 565 (1878); UNITED STATES V. NORTH CAROLINA, 136 U.S. 211, 217 (1890); MOORE ICE CREAM CO. V. ROSE, 289 U.S. 373, 381 (1933). HOWEVER, THE COURT HAS ALSO BEEN CAREFUL TO STRESS THAT THE JUDGMENT IS NEVERTHELESS A PERSONAL JUDGMENT AGAINST THE COLLECTOR "TO WHICH THE UNITED STATES IS A STRANGER EXCEPT AS IT HAS OBLIGATED ITSELF TO PAY IT." UNITED STATES V. KALES, SUPRA, AT 199-200; SAGE V. UNITED STATES, 250 U.S. 33, 37 (1919); UNITED STATES V. NUNNALLY INVESTMENT CO., 316 U.S. 258 (1942). THE COURT HAS ALSO RECOGNIZED THAT THE PERSONAL LIABILITY OF THE COLLECTOR HAS BEEN REDUCED LARGELY TO A FICTION. UNITED STATES V. KALES, SUPRA, AT 200. UNFORTUNATELY, ALL THIS LITERATURE FROM THE SUPREME COURT IS OF LITTLE HELP IN RESOLVING THE ISSUE AT HAND - WHICH APPROPRIATION TO USE WHEN A CERTIFICATE OF PROBABLE CAUSE HAS BEEN ISSUED UNDER 28 U.S.C. SEC. 2006. THE ANSWER MUST BE OBTAINED BY TRACING THE EVOLUTION OF THE RELEVANT STATUTES AND THE ADMINISTRATIVE DECISIONS UNDER THEM.

PRIOR TO 1919, JUDGMENTS AGAINST INDIVIDUAL EMPLOYEES FOR WHICH THE UNITED STATES ASSUMED LIABILITY UNDER R.S. SEC. 989 AND R.S. SEC. 3220 HAD TO THE REPORTED TO CONGRESS FOR PAYMENT. THIS WAS TRUE EVEN IF THE JUDGMENT INVOLVED THE RECOVERY OF TAXES COLLECTED SINCE APPROPRIATIONS FOR REFUNDING INTERNAL REVENUE TAXES (THEN IN THE FORM OF ANNUAL INDEFINITE APPROPRIATIONS) WERE VIEWED AS UNAVAILABLE FOR JUDGMENTS. 7 COMP.DEC. 471 (1901); 15 COMP.DEC. 387 (1908); 21 COMP.DEC. 180 (1914); 21 COMP.DEC. 705 (1915).

LEGISLATION ENACTED IN 1919 CHANGED THE METHOD OF APPROPRIATING FOR TAX REFUNDS. STARTING WITH FISCAL YEAR 1921, TAX REFUND APPROPRIATIONS BECAME REGULAR (DEFINITE) ANNUAL APPROPRIATIONS BASED ON BUDGET REQUESTS SUBMITTED BY THE TREASURY DEPARTMENT. THESE APPROPRIATIONS WERE SPECIFICALLY AVAILABLE FOR JUDGMENTS. UNDER THIS NEW SYSTEM, JUDGMENTS AGAINST INDIVIDUAL EMPLOYEES UNDER WHAT IS NOW 26 U.S.C. SEC. 7423(1) (RECOVERY OF TAXES COLLECTED) FOR WHICH A CERTIFICATE OF PROBABLE CAUSE WAS ISSUED, AS WELL AS TAX REFUND JUDGMENTS AGAINST THE UNITED STATES, WERE PAID DIRECTLY FROM THE TAX REFUND APPROPRIATIONS. HOWEVER, JUDGMENTS UNDER 26 U.S.C. SEC. 7423(2) (ACTIONS TAKEN IN THE PERFORMANCE OF OFFICIAL DUTIES NOT INVOLVING THE REFUND OF MONIES COLLECTED) FOR WHICH A CERTIFICATE OF PROBABLE CAUSE WAS ISSUED CONTINUED TO REQUIRE SPECIFIC CONGRESSIONAL APPROPRIATIONS. 27 COMP.DEC. 442 (1920); 2 COMP.GEN. 501 (1923); 2 COMP.GEN. 821 (1923); 5 COMP.GEN. 122 (1925); 7 COMP.GEN. 390 (1927); A-12287, DECEMBER 31, 1925. JUDGMENTS FOR WHICH A CERTIFICATE OF PROBABLE CAUSE HAD BEEN ISSUED BUT WHICH APPARENTLY WERE NOT WITHIN THE SCOPE OF 26 U.S.C. SEC. 7423 ALSO CONTINUED TO REQUIRE REPORTING TO CONGRESS. 1 COMP.GEN. 540 (1922); 15 COMP.GEN. 933 (1936).

A NUMBER OF EARLY CASES INVOLVED INTEREST AND COSTS IN SUITS AGAINST INDIVIDUAL COLLECTORS. SINCE THE JUDGMENT IS AGAINST THE INDIVIDUAL AND NOT THE UNITED STATES, RESTRICTIONS ON INTEREST AND COSTS AWARDABLE AGAINST THE UNITED STATES DO NOT APPLY. THUS, INTEREST AND COSTS MAY BE INCLUDED IN THE REIMBURSEMENT (OR DIRECT PAYMENT, AS THE CASE MAY BE) TO THE EXTENT AWARDED IN THE JUDGMENT. 21 COMP.DEC. 705 (1915); 8 COMP.GEN. 126 (1928); 12 COMP.GEN. 474 (1932); B-45014, NOVEMBER 4, 1944. IF THE JUDGMENT, WHETHER AGAINST THE UNITED STATES OR AN INDIVIDUAL EMPLOYEE, INVOLVES THE OVERPAYMENT OF ANY INTERNAL REVENUE TAX, INTEREST IS NOW ALLOWABLE AS A MATTER OF STATUTORY ENTITLEMENT. 28 U.S.C. SEC. 2411(A); 8 COMP.GEN. 126, SUPRA.

THE METHOD OF APPROPRIATING FOR TAX REFUNDS CHANGED AGAIN IN 1948 WHEN CONGRESS PROVIDED A PERMANENT INDEFINITE APPROPRIATION FOR THAT PURPOSE. SEE B-137762.33, AUGUST 5, 1977. THIS CHANGE DID NOT AFFECT HOW JUDGMENTS WERE PAID. SEE 28 U.S.C. SEC. 2411(A).

THEN, IN 1956, CONGRESS ENACTED 31 U.S.C. SEC. 724A, THE PERMANENT JUDGMENT APPROPRIATION. WHILE THIS HAD NO EFFECT ON JUDGMENTS PAYABLE FROM AGENCY APPROPRIATIONS UNDER 26 U.S.C. SEC. 7423(1), WE INITIALLY VIEWED IT AS CHANGING THE METHOD OF PAYMENT UNDER 26 U.S.C. SEC. 7423(2). IN 40 COMP.GEN. 95 (1960), WE HELD THAT JUDGMENTS REIMBURSABLE UNDER SEC. 7423(2) SHOULD BE PAID FROM THE JUDGMENT APPROPRIATION, WE FOLLOWED THIS HOLDING IN SEVERAL LATER CASES: 53 COMP.GEN. 782 (1974); B-168211, DECEMBER 30, 1969; AND B-143673, NOVEMBER 11, 1976. WHILE NONE OF THESE CASES MENTION 28 U.S.C. SEC. 2006, IT SEEMS SAFE TO ASSUME THAT CERTIFICATES OF PROBABLE CAUSE WERE ISSUED IN AT LEAST SOME OF THEM.

IN ONE SENSE, THIS LINE OF DECISIONS WAS LOGICAL IN THAT JUDGMENTS UNDER SEC. 7423(2) REQUIRED SUBMISSION TO CONGRESS BEFORE THE ENACTMENT OF 31 U.S.C. SEC. 724A AND THE JUDGMENT APPROPRIATION WAS DESIGNED TO PICK UP THOSE JUDGMENTS WHICH REQUIRED SPECIFIC CONGRESSIONAL APPROPRIATIONS FOR PAYMENT. HOWEVER, THE CASES OVERLOOKED ONE IMPORTANT FACT. 26 U.S.C. SEC. 7423 EXPRESSLY PROVIDES THAT "THE SECRETARY OR HIS DELEGATE *** IS AUTHORIZED TO REPAY" THE JUDGMENTS. WE REVIEWED THE VARIOUS DECISIONS IN 56 COMP.GEN. 615 (1977), OVERRULED 40 COMP.GEN. 95 AND THE CASES THAT FOLLOWED IT, AND HELD THAT JUDGMENTS WITHIN THE SCOPE OF 26 U.S.C. SEC. 7423(2) WERE PAYABLE FROM GENERAL OPERATING APPROPRIATIONS. (THERE WAS NO NEED TO ADDRESS JUDGMENTS UNDER SEC. 7423(1) SINCE THESE HAD NEVER BEEN PAYABLE FROM THE JUDGMENT APPROPRIATION.) AGAIN, 28 U.S.C. SEC. 2006 WAS NOT MENTIONED, BUT THERE IS NOT REASON WHY THE ISSUANCE OF THE CERTIFICATE SHOULD MAKE ANY DIFFERENCE IN THE RESULT.

IN VIEW OF THE HISTORY OUTLINED ABOVE, WE CONCLUDE THAT WHERE A CERTIFICATE OF PROBABLE CAUSE IS ISSUED UNDER 28 U.S.C. SEC. 2006, AND THE CASE FALLS WITHIN THE SCOPE OF EITHER SUBSECTION OF 26 U.S.C. SEC. 7423, PAYMENT MUST COME FROM AGENCY APPROPRIATIONS. 56 COMP.GEN. 615. THIS WILL COVER THE MAJORITY OF CASES. IN THIS SITUATION, 28 U.S.C. SEC. 2006 MAKES THE GOVERNMENT'S OBLIGATION MANDATORY AND FURTHER INSULATES THE DEFENDANT AGAINST HAVING TO COME UP WITH THE MONEY TO PAY THE JUDGMENT IN THE FIRST INSTANCE, WHILE 26 U.S.C. SEC. 7423, AS DISCUSSED IN 56 COMP.GEN. 615, PROVIDES THE AUTHORITY TO USE OPERATING APPROPRIATIONS TO PAY THE JUDGMENT (OR REIMBURSE THE EMPLOYEE IF HE HAS PAID THE JUDGMENT DIRECTLY).

WHERE, HOWEVER, A CERTIFICATE OF PROBABLE CAUSE IS ISSUED AND THE CASE DOES NOT FALL WITHIN 26 U.S.C. SEC. 7423, WE MUST FALL BACK ON THE RULE THAT AGENCY APPROPRIATIONS MAY NOT BE USED TO PAY JUDGMENTS UNLESS SPECIFICALLY MADE AVAILABLE FOR THAT PURPOSE. IN THIS SITUATION, THE PROPER SOURCE OF FUNDS IS THE PERMANENT JUDGMENT APPROPRIATION. SINCE THIS CATEGORY OF CASES MAY INCLUDE CASES IN WHICH THE JUSTICE DEPARTMENT WAS NOT INVOLVED, THE DOCUMENTATION REQUIRED FOR PAYMENT WILL HAVE TO BE ADJUSTED ACCORDINGLY.

IN EITHER OF THE ABOVE SITUATIONS, IT IS IMMATERIAL WHETHER THE GOVERNMENT IS BEING ASKED TO PAY THE JUDGMENT DIRECTLY OR TO REIMBURSE THE EMPLOYEE.

CLAIM OF DONALD J. GRATTAN

TURNING NOW TO THE SUBJECT CASE, DONALD J. GRATTAN IS A SPECIAL AGENT EMPLOYED BY THE UNITED STATES CUSTOMS SERVICE AND STATIONED AT JOHN F. KENNEDY INTERNATIONAL AIRPORT IN NEW YORK. IN 1973, A GROUP OF ARMED AND MASKED MEN STOLE A SHIPMENT OF WATCHES FROM A WAREHOUSE NEAR KENNEDY AIRPORT. (AMUSINGLY, THEY TURNED OUT TO BE LARGELY MICKEY MOUSE, BARBIE, AND SPACE EXPLORER WATCHES WORTH NO MORE THAN $4 APIECE.) A WITNESS IDENTIFIED PLAINTIFF JAMES REGAN AS ONE OF THE GUNMEN AND REGAN WAS ARRESTED. THE WITNESS LATER EQUIVOCATED FROM HIS ORIGINAL IDENTIFICATION. REGAN WAS RELEASED, AND THE CHARGES WERE DISMISSED REGAN THEN FILED SUIT AGAINST SEVERAL DEFENDANTS, INCLUDING MEMBERS OF THE NEW YORK CITY POLICE DEPARTMENT, THREE AGENTS OF THE FEDERAL BUREAU OF INVESTIGATION, AND SPECIAL AGENT GRATTAN. THE PARTIES SETTLED THE SUIT IN 1979 FOR $19,500. OF THIS SUM, THE CITY DEFENDANTS WERE ORDERED TO PAY $17,500, AND THE FEDERAL DEFENDANTS WERE ORDERED TO PAY THE REMAINING $2,000. SPECIAL AGENT GRATTAN THEN PAID $500, HIS SHARE OF THE SETTLEMENT. AFTER MAKING THE PAYMENT, MR. GRATTAN SOUGHT AND OBTAINED A CERTIFICATE OF PROBABLE CAUSE FROM THE COURT UNDER 28 U.S.C. SEC. 2006. FIRST, WE NOTE THAT THERE IS PRECEDENT FOR CONSIDERING A CUSTOMS AGENT A "COLLECTOR OR OTHER REVENUE OFFICER" FOR PURPOSES OF 28 U.S.C. SEC. 2006. 1 COMP.GEN. 540 (1922). IN ANY EVENT, THE COURT ISSUED THE CERTIFICATE AND THAT FACT INDISPUTABLY ESTABLISHES MR. GRATTAN'S RIGHT TO REIMBURSEMENT. (PRESUMABLY BECAUSE THE FBI AGENTS COULD NOT QUALIFY AS "COLLECTORS OR OTHER REVENUE OFFICERS," THE CERTIFICATE WAS LIMITED TO MR. GRATTAN.)

THE NEXT QUESTION IS WHETHER AGENCY APPROPRIATIONS ARE AVAILABLE UNDER THE RULE SET FORTH IN 56 COMP.GEN. 615, SUPRA. SUBSECTION (1) OF 26 U.S.C. SEC. 7423 CONCERNS THE RECOVERY OF TAXES COLLECTED AND HENCE DOES NOT APPLY HERE. SUBSECTION (2) DEALS WITH "ANY SUIT BROUGHT AGAINST AN EMPLOYEE BY REASON OF ANYTHING DONE IN THE DUE PERFORMANCE OF HIS OFFICIAL DUTY UNDER THIS TITLE." 68A STAT. 877. LOGICALLY, THERE WOULD SEEM TO BE NO REASON TO DIFFERENTIATE BETWEEN A CUSTOMS AGENT AND AN INTERNAL REVENUE SERVICE AGENT. HOWEVER, THE STATUTE USES THE PHRASE "UNDER THIS TITLE." ABSENT ANY INDICATION OF LEGISLATIVE INTENT TO THE CONTRARY, AND WE HAVE FOUND NONE, THESE WORDS SHOULD BE GIVEN THEIR PLAIN MEANING. THUS, "UNDER THIS TITLE" REFERS TO TITLE 26 OF THE U.S.C. THE INTERNAL REVENUE CODE.

THE CUSTOMS LAWS ARE FOUND IN TITLE 19 OF THE UNITED STATES CODE. THUS, SPECIAL AGENT GRATTAN WAS PERFORMING OFFICIAL DUTY NOT "UNDER THIS TITLE" BUT UNDER TITLE 19. WE ARE AWARE OF NO STATUTORY OR OTHER BASIS ON WHICH TO CONSTRUE 26 U.S.C. SEC. 7423(2) AS APPLICABLE TO THE PERFORMANCE OF DUTIES UNDER TITLE 19, AT LEAST IN THIS CASE.

BY WAY OF ANALOGY, WE HAVE STRICTLY CONSTRUED SIMILAR STATUTE AUTHORIZING A REWARD FOR RECOVERIES MADE UNDER THE "CUSTOMS LAWS" DID NOT AUTHORIZE A REWARD WHERE THE RECOVERY WAS MADE UNDER THE NAVIGATION LAWS. 7 COMP.GEN. 337 (1927). THAT PARTICULAR STATUTE WAS THEN AMENDED TO READ "CUSTOMS LAWS OR NAVIGATION LAWS." WE THEN HELD THAT A REWARD COULD NOT BE PAID WHERE RECOVERY WAS MADE UNDER SEVERAL LAWS AND IT WAS IMPOSSIBLE TO DETERMINE THE AMOUNT ATTRIBUTABLE TO THE CUSTOMS LAWS OR THE NAVIGATION LAWS. COMP.GEN. 405 (1953).

ACCORDINGLY, SINCE MR. GRATTAN'S JUDGMENT PAYMENT HAS BECOME AN OBLIGATION OF THE UNITED STATES BY VIRTUE OF 28 U.S.C. SEC. 2006, AND SINCE 26 U.S.C. SEC. 7423 AND 56 COMP.GEN. 615 DO NOT APPLY, HE MAY BE REIMBURSED FROM THE PERMANENT JUDGMENT APPROPRIATION, 31 U.S.C. SEC. 724A.