B-40237, APRIL 19, 1944, 23 COMP. GEN. 805

B-40237, APRIL 19, 1944, 23 COMP. GEN. 805

COURT COSTS - REMOVAL OF CASE FROM STATE TO FEDERAL DISTRICT COURT BY OFFICE OF PRICE ADMINISTRATION IN VIEW OF THE SOVEREIGN IMMUNITY OF THE UNITED STATES FROM THE PAYMENT OF COURT COSTS AND THE PROVISION OF THE EMERGENCY PRICE CONTROL ACT OF 1942 THAT "NO COST SHALL BE ASSESSED AGAINST THE ADMINISTRATOR OR THE UNITED STATES GOVERNMENT IN ANY PROCEEDINGS UNDER THIS ACT," THE FILING BY THE ADMINISTRATION OF A REMOVAL BOND UNDER SECTION 29 OF THE JUDICIAL CODE, FOR THE PURPOSE OF INDEMNIFYING COURT COSTS IN CASES REMOVED FROM A STATE COURT TO A FEDERAL DISTRICT COURT, WOULD SERVE NO USEFUL PURPOSE AND IS NOT REQUIRED, AND THEREFORE, THE PREMIUM ON SUCH A BOND MAY NOT BE PAID FROM APPROPRIATED FUNDS.

COMPTROLLER GENERAL WARREN TO PAUL MOORE, OFFICE OF PRICE ADMINISTRATION, APRIL 19, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 15, 1944, AS FOLLOWS:

THE ENCLOSED VOUCHER IN FAVOR OF THE FIDELITY AND DEPOSIT COMPANY OF MARYLAND, DENVER, COLORADO, IN THE AMOUNT OF $10.00, REPRESENTING THE PREMIUM ON A SURETY BOND FOR REMOVAL OF A CAUSE FROM A STATE COURT TO A UNITED STATES DISTRICT COURT, HAS BEEN PRESENTED TO THIS OFFICE.

ON SEPTEMBER 21, 1943, A CIVIL ACTION ( NO. A-38378A, DIVISION 3) FOR DECLARATORY JUDGMENT ASSERTING THAT RATION ORDER 5C AND PROCEDURAL REGULATION NO. 4 TO BE NULL AND VOID ON CONSTITUTIONAL GROUNDS WAS COMMENCED BY RUSSEL H. WEHNER, PLAINTIFF IN THE DISTRICT COURT OF THE CITY AND COUNTY OF DENVER, SECOND JUDICIAL DISTRICT, STATE OF COLORADO BY THE SERVICE OF A SUMMONS AND COMPLAINT UPON THE REGIONAL ADMINISTRATOR, CLEM W. COLLINS, AND DENVER DISTRICT DIRECTOR, GEORGE M. BULL BOTH OF WHOM WERE NAMED AS CO-DEFENDANTS WITH PRENTISS M. BROWN, ADMINISTRATOR, IN THEIR REPRESENTATIVE CAPACITIES.

IT IS PROVIDED IN SECTION 28 OF THE JUDICIAL CODE (28-USC-71) THAT ANY SUIT OF A CIVIL NATURE, AT LAW OR IN EQUITY, ARISING UNDER THE CONSTITUTION OR LAWS OF THE UNITED STATES * * * OF WHICH THE DISTRICT COURTS OF THE UNITED STATES ARE GIVEN JURISDICTION * * * IN ANY STATE COURT, MAY BE REMOVED BY THE DEFENDANTS THEREIN TO THE DISTRICT COURT OF THE UNITED STATES FOR THE PROPER DISTRICT. IN SECTION 29, OF THE JUDICIAL CODE (28-USC-72) THERE IS STATED THE REQUIREMENT THAT WHENEVER ANY PARTY ENTITLED TO REMOVE ANY SUIT MENTIONED IN SECTION 71 ABOVE, MAY DESIRE TO REMOVE SUCH SUIT FROM A STATE COURT TO A DISTRICT COURT OF THE UNITED STATES, HE SHALL MAKE AND FILE, WITH A DULY VERIFIED PETITION FOR THE REMOVAL, A BOND WITH GOOD AND SUFFICIENT SURETY * * * FOR PAYING ALL COSTS THAT MAY BE AWARDED BY THE SAID DISTRICT COURT IF SAID DISTRICT COURT SHALL HOLD THAT SUCH SUIT WAS WRONGFULLY OR IMPROPERLY REMOVED THERETO.

HOWEVER, THERE APPEARS TO BE SOME QUESTION AS TO THE LIABILITY OFA GOVERNMENT AGENCY TO MAKE AND FILE A REMOVAL BOND IN APPROPRIATE CASES, IN VIEW OF THE EXEMPTION DESCRIBED IN 28-USC-870 WHICH STATES IN PART: "WHENEVER AN APPEAL OR OTHER PROCESS IN LAW * * * ISSUES FROM OR IS BROUGHT UP TO THE SUPREME COURT, OR A DISTRICT COURT, EITHER BY THE UNITED STATES OR BY DIRECTION OF ANY DEPARTMENT OF THE GOVERNMENT * * * NO BOND, OBLIGATION, OR SECURITY SHALL BE REQUIRED FROM THE UNITED STATES OR FROM ANY PARTY ACTING UNDER THE DIRECTION AFORESAID, EITHER TO PROSECUTE SAID SUIT, OR TO ANSWER IN DAMAGES OR COSTS.' IT SEEMS TO BE A MATTER OF INTERPRETATION AS TO WHETHER THE PROVISIONS OF SECTION 72 OF TITLE 28, U.S.C. WERE INTENDED TO INCLUDE OR EXCLUDE THE UNITED STATES IN THE REQUIREMENT TO FILE A SURETY BOND AS A REQUISITE TO REMOVAL OF A CAUSE FROM A STATE COURT TO A FEDERAL COURT; AND WHETHER SECTION 870 IN TITLE 28 WHEN READ IN CONJUNCTION WITH SECTION 28 OF THE JUDICIAL CODE (28-USC-71) IS INTENDED TO CREATE AN EXEMPTION BY RELIEVING THE UNITED STATES FROM FILING A REMOVAL BOND IN CASES SIMILAR TO THE EXAMPLE ILLUSTRATED BY THE ATTACHED VOUCHER. THERE IS SOME REASON TO BELIEVE THAT THE APPLICATION OF SECTION 870, TITLE 28 TO THIS CASE DEPENDS UPON THE MEANING OF "OTHER PROCESS IN LAW" AND "ISSUES FROM OR IS BROUGHT UP TO A DISTRICT COURT.'

AS TO THE REQUIREMENT FOR POSTING A REMOVAL BOND FOR THE PURPOSE OF INDEMNIFYING COURT COSTS, IT WOULD BE HELPFUL IF YOU WILL INDICATE YOUR CONCLUSIONS WITH RESPECT TO ACTIONS ARISING UNDER THE NATIONAL WAR AGENCIES APPROPRIATION ACT, 1944, THE SECOND WAR POWERS ACT OF 1942, AND THE EMERGENCY PRICE CONTROL ACT OF 1942, SECTION 205 (C) OF WHICH PROVIDES THAT "NO COSTS SHALL BE ASSESSED AGAINST THE ADMINISTRATION OR THE UNITED STATES GOVERNMENT IN ANY PROCEEDING UNDER THIS ACT.' ON THE OTHER HAND, IN DECISION B-34946 ON JUNE 9, 1943, YOU ADVISED THAT THE LATTER APPROPRIATION WAS AVAILABLE FOR THE PAYMENT OF THE NECESSARY COURT COSTS, FEES AND OTHER EXPENSES INCIDENT TO LITIGATION IN THE STATE COURTS, INCLUDING PAYMENT OF PREMIUMS FOR SECURITY FOR COST BONDS AND APPEAL BONDS, AS REQUIRED BY THE STATE LAW.

IN THE MATTER OF REMOVAL BONDS, EVEN THOUGH INVOLVING SURETY FOR LITIGATION EXPENSES IN STATE AS WELL AS FEDERAL COURTS AND WHEREBY SUCH BOND IS FILED WITH THE STATE COURT, THE REQUIREMENT FOR SUCH FILING IS BY FEDERAL NOT STATE STATUTE. THEREFORE, THE ABOVE MENTIONED DECISION MAY NOT BE DIRECTLY APPLICABLE TO THE INSTANT CASE. THERE IS NO MENTION IN 28 -USC-72 AS TO WHETHER THE REQUIREMENT FOR FILING REMOVAL BONDS APPLIED TO THE UNITED STATES GOVERNMENT AS A PETITIONER. WHEREAS IT HAS BEEN CONTENDED THAT SINCE THE UNITED STATES GOVERNMENT WAS NOT SPECIFICALLY EXCLUDED, IT WAS NOT RELIEVED; YET THERE MAY BE SOME REASON TO CONCLUDE THAT THE FEDERAL STATUTE MAY NOT HAVE BEEN INTENDED TO REQUIRE THE UNITED STATES GOVERNMENT TO INDEMNIFY COURT COSTS BY NOT BEING SPECIFICALLY INCLUDED UNDER THE TERM "ANY PARTY.'

IT APPEARS TO BE A WELL-ESTABLISHED RULE THAT THE UNITED STATES GOVERNMENT DOES NOT PAY PREMIUMS ON BONDS FOR INDEMNIFICATION OF EXPENSES IN THE ABSENCE OF SPECIFIC LEGISLATION THEREFOR; ALSO IT IS UNDERSTOOD THAT UNLESS SPECIFICALLY MENTIONED, IT IS CONSIDERED THAT THE UNITED STATES GOVERNMENT IS EXCLUDED RATHER THAN INCLUDED IN PARTIES SUBJECT TO FEDERAL STATUTES ALTHOUGH THERE IS SOME DIFFERENCE OF OPINION ON THIS TOPIC.

BY FAILURE TO POST A REMOVAL BOND WITH THE STATE COURT AT THE TIME OF FILING THE PETITION FOR REMOVAL, THE DEFENDANT MAY FACE THE POSSIBILITY OF DISMISSAL OF THE ACTION IN THE FEDERAL COURT BY REASON OF PLEA BY THE PLAINTIFF OF NON-COMPLIANCE WITH THE FEDERAL STATUTE, OR MAY FORFEIT THE PRIVILEGE OF REMOVAL IN WHICH CASE THE STATE COURT WOULD CONTINUE TO EXERCISE JURISDICTION. ( MAHONEY VS. U.S. SHIPPING BOARD EMERGENCY FLEET CORPORATION, ET AL., SUPREME JUDICIAL COURT OF MASSACHUSETTS, SUFFOLK, JULY 3, 1925, 148 N.E. 454). PERTINENT MEMORANDA ON THE SUBJECT ARE ATTACHED FOR EXAMINATION.

YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER A REMOVAL BOND IS REQUIRED FROM THIS ADMINISTRATION, OR ANY PARTY ACTING UNDER ITS DIRECTION, TO REMOVE A CAUSE FROM A STATE COURT TO A FEDERAL COURT, AND WHETHER THE PREMIUM ON SUCH BOND IS PROPERLY PAYABLE FROM THE CURRENT APPROPRIATION OF THIS ADMINISTRATION.

AGAINST THE VIEW THAT THE REQUIREMENTS OF SECTION 29 OF THE JUDICIAL CODE (28 U.S.C. 72), SUPRA, ARE APPLICABLE TO THE GOVERNMENT, STANDS THE FAMILIAR CANON OF STATUTORY INTERPRETATION THAT THE SOVEREIGN IS NOT AFFECTED UNLESS EXPRESSLY NAMED OR INCLUDED BY NECESSARY IMPLICATION IN STATUTORY PROVISIONS. FOR A HISTORY OF THIS RULE AND ITS APPLICATION, SEE IN RE TIDEWATER COAL EXCHANGE, 280 F. 648, 650. HENCE, IT WOULD SEEM TO BE AT LEAST DOUBTFUL THAT THE UNITED STATES, OR ITS AGENTS, MAY BE DEEMED TO FALL WITHIN THE PURVIEW OF THE TERM "ANY PARTY" APPEARING IN SAID PROVISION OF LAW. HOWEVER, FOR REASONS HEREINAFTER STATED, A DETERMINATION OF THE QUESTION HERE INVOLVED DOES NOT REST ENTIRELY ON THAT POINT.

IT WILL BE OBSERVED THAT THE PURPOSE OF THE BOND REQUIRED TO BE FILED BY SECTION 29 OF THE JUDICIAL CODE, SUPRA, IS "FOR PAYING ALL COSTS THAT MAY BE AWARDED BY THE SAID DISTRICT COURT IF SAID DISTRICT COURT SHALL HOLD THAT SUCH SUIT WAS WRONGFULLY OR IMPROPERLY REMOVED THERETO.' (ITALICS SUPPLIED). THUS, THERE IS PRESENTED THE QUESTION AS TO WHAT EXTENT--- IF AT ALL--- SUCH COSTS MAY BE ASSESSED AGAINST THE UNITED STATES, OR ITS AGENCIES.

IT IS AN UNBROKEN RULE OF LAW THAT WHEN THE UNITED STATES IS A LITIGANT, WHETHER SUITOR OR DEFENDANT, COSTS ARE NOT TAXABLE AGAINST IT IN THE ABSENCE OF DIRECT STATUTORY AUTHORIZATION. UNITED STATES V. CHEMICAL FOUNDATION, 272 U.S. 1, 20; UNITED STATES V. WORLEY, 281 U.S. 339, 344; UNITED STATES, V. HOOE, ET AL., 3 CRANCH 73, 92; UNITED STATES V. KNOWLES' ESTATE, 58 F.2D 718; UNITED STATES V. PACIFIC FRUIT AND PRODUCE CO., 138 F.2D 367. AND THIS IS SO, EVEN THOUGH THE UNITED STATES HAS THE RIGHT TO RECOVER COSTS WHEN IT IS THE PREVAILING PARTY. UNITED STATES V. VERDIER, 164 U.S. 213; PINE RIVER LOGGING CO. V. UNITED STATES, 186 U.S. 279; EX PARTE PETERSON, 253 U.S. 300; GRANT BROS. CONST. CO. V. UNITED STATES, 232 U.S. 647. THAT THE CONGRESS HAS CLOTHED THE OFFICIALS OF THE OFFICE OF PRICE ADMINISTRATION WITH THIS SOVEREIGN IMMUNITY FROM COSTS IS INDICATED BY THE SPECIFIC TERMS OF SECTION 205 (C) OF THE EMERGENCY PRICE CONTROL ACT OF 1942, APPROVED JANUARY 30, 1942 (56 STAT. 23), WHICH PROVIDE THAT "NO COSTS SHALL BE ASSESSED AGAINST THE ADMINISTRATOR OR THE UNITED STATES GOVERNMENT IN ANY PROCEEDING UNDER THIS ACT.'

SINCE IT THUS WOULD APPEAR THAT A DISTRICT COURT IS INHIBITED FROM AWARDING COSTS AGAINST THE GOVERNMENT OR THE OFFICE OF PRICE ADMINISTRATION, UNDER SECTION 29 OF THE JUDICIAL CODE, SUPRA, IT IS EVIDENT THAT THE REMOVAL BOND REFERRED TO IN SAID PROVISION OF LAW WOULD SERVE NO USEFUL PURPOSE AND, SUCH BEING THE CASE, IT MUST BE HELD, IN THE ABSENCE OF AN AUTHORITATIVE JUDICIAL DETERMINATION TO THE CONTRARY, THAT SUCH BOND IS NOT REQUIRED TO BE FILED.

ACCORDINGLY, YOU ARE ADVISED THAT THE VOUCHER TRANSMITTED WITH YOUR LETTER MAY NOT BE CERTIFIED FOR PAYMENT. THE SAID VOUCHER IS RETURNED HEREWITH.