AUTHORITY TO REQUIRE EMPLOYEES TO REIMBURSE

GOVERNMENT FOR DAMAGE TO PROPERTY

Opinion, July 14, 1941

FEDERAL EMPLOYEES-DAMAGE TO GOVERNMENT PROPERTY-PROCEDURE FOR ENFORCEMENT OF CLAIMS BY UNITED STATES.

An administrative officer is without authority to require reimbursement, either by withholding compensation or otherwise, from an employee for damage to Government property caused by the employee's negligence, since an officer or employee may not be administratively deprived of his lawful compensation, and is as much entitled to his day in court as any other citizen against whom the United States may assert a claim. The appropriate procedure is to refer such a claim to the Department of Justice for action if a request for payment is unsuccessful.

GRAHAM, Assistant Solicitor:

This is with reference to Acting Commissioner Bashore's memorandum for the Solicitor, dated September 16, 1940, concerning a collision on December 4, 1938, between a Bureau of Reclamation truck and a truck assigned to the Indian Service, which appears to have been caused by the negligence of the latter's truck driver. The question presented is whether the United States should seek to obtain redress from its employee for the damage suffered to its property.

The following is quoted from an opinion of the Attorney General, dated March 25, 1941, addressed to the Secretary of Agriculture, dealing with a similar question:

The Acting Secretary of Agriculture, in his letter of February 5, requested my opinion "whether the Secretary of Agriculture, in taking disciplinary action against an employee of this Department on account of the employee's misconduct, can properly require the employee to reimburse the Government for a payment made by the Government to a private person for property damage resulting from the employee's negligence."

By way of illustration he cited the following case: An employee making an official trip in a Government car became intoxicated and collided with a privately owned vehicle. *

In the absence of statutory authority, express or implied, an officer or employee of the Government may not be administratively deprived of his lawful compensation. Speaking on this subject in Corcoran v. United States, 38 Ct. Cls. 341, 345, the court said:

"Two things are essential to deprive an officer of his statutory compensation: The first is that the power so to do must be lodged, directly or by necessary implication, in some official hands

* *

See also Smith v. Jackson, 246 U. S. 388; McCarl v. Cox, 8 F. (2d) 669, Cert. Denied, 270 U. S. 652; McCarl v. Pence, 18 F. (2d) 809; 34 Op. A. G. 517.

The act of December 28, 1922, under which the claim was adjusted and reported to the Congress does not provide for reimbursement by the employee, and no statute charges you with collecting the amount from him. If it were to be attempted the employee would, I think, be entitled to his day in court as in connection with other claims asserted by the United States against its citizens. Aside from these considerations, it is not within the power of the head of a department to enforce such demands by administrative action save with the

July 19, 1941

acquiescence of the employee; and the damage might be great, affecting both willingness and ability to repay.

For the foregoing reasons it is my opinion that there is no authority in the Secretary of Agriculture to require an employee to reimburse the Government for a payment made in settlement of a claim under the act of December 28, 1922. Of course, the employee may be subjected to suitable discipline, including dismissal, if warranted. [Vol. 40, No. 9.]

Although this opinion deals with the question of whether the United States can require reimbursement from the employee for payment made for private property damage, whereas in the instant case the question is whether the United States can require reimbursement from the employee for damage to Government property, there appears to be little distinction between the final results of the two situations. In both cases, the Government has suffered a pecuniary loss as the result of the negligence of its employee. It would appear that in both cases in the absence of voluntary payment by the employee, the Government cannot proceed administratively to collect payment for the damage by withholding compensation. This does not rule out proceeding to collect from the employee in the same way as claims are brought against private persons who negligently damage Government property. The latter procedure, as you may recall, is first to request payment and then if such request is refused to transmit the case to the Department of Justice for appropriate action.

There apparently is no way in which, by a transfer of funds, the Office of Indian Affairs may reimburse the Bureau of Reclamation for the damage to the latter's truck. I suggest, therefore, that an informal request for reimbursement be made upon the employee of the Office of Indian Affairs, and, if that fails, that the file be transmitted to the Department of Justice for collection in the same manner as other claims, if you regard such a procedure to be warranted administratively.

JURISDICTION OF UNITED STATES COMMISSIONERS TO TRY PETTY OFFENSES ON INDIAN RESERVATIONS

Opinion, July 19, 1941

INDIAN RESERVATIONS-JURISDICTION OF UNITED STATES COMMISSIONER OVER PETTY FEDERAL OFFENSES JURISDICTION OVER PETTY TRIBAL OFFENSES-OFFENSES UNDER LAW AND ORDER REGULATIONS.

The act of October 9, 1940, "To confer jurisdiction upon certain United States commissioners to try petty offenses committed on Federal reservations" provides an alternative procedure for the trial of petty offenses now within the jurisdiction of the Federal district courts and therefore, while it applies to such Federal offenses upon Indian reservations, the act does not apply to offenses defined by tribal law or the law and order regulations of the Interior Department, since such offenses are not Federal offenses cognizable in the Federal district courts.

MARGOLD, Solicitor:

The Commissioner of Indian Affairs has requested this office to prepare an opinion as to the bearing, if any, upon law and order among Indians of the act approved October 9, 1940, "To confer jurisdiction upon certain United States commissioners to try petty offenses committed on Federal reservations" (54 Stat. 1058). The Commissioner reports that it was the informal opinion of this office while the act was pending in Congress that if the act were passed it would be without effect except in matters already within the jurisdiction of the Federal district courts. He calls attention, however, to the discussion of the bill on the floor of the House indicating that some members of that body did think that the bill would include matters internal to Indian tribes not now subject to the jurisdiction of the Federal courts. A formal opinion of the Solicitor is desired which can be distributed to the field officers concerned with law enforcement among Indians.

Section 1 of the bill, which contains most of the provisions which are significant to this question, provides that:

any United States commissioner especially designated for that purpose by the court by which he was appointed shall have jurisdiction to try and, if found guilty, to sentence persons charged with petty offenses against the law, or rules and regulations made in pursuance of law, committed in any place over which the Congress has exclusive power to legislate or over which the United States has concurrent jurisdiction, and within the judicial district for which such commissioner was appointed. The probation laws shall be applicable to persons so tried before United States commissioners. For the purposes of this Act the term "petty offense" shall be defined as in section 335 of the Criminal Code (U. S. C., title 18, sec. 541). If any person charged with such petty offense shall so elect, however, he shall be tried in the district court of the United States which has jurisdiction over the offense. The commissioner before whom the defendant is arraigned shall apprise the defendant of his right to make such election and shall not proceed to try the case unless the defendant after being so apprised, signs a written consent to be tried before the commissioner.

Section 2 provides that an appeal shall lie from cases of conviction by the United States Commissioners to the district court of the United States for the district in which the offense was committed. The section also directs the Supreme Court to provide rules of procedure and practice for the trial of cases before the Commissioners and for appeals to the district courts.

Section 3 provides the standard of compensation to the Commissioners for services rendered under the act.

Section 4 directs that the act shall not be construed as repealing or limiting the existing jurisdiction of United States Commissioners, particularly Commissioners for the national parks and Commissioners in Alaska.

Section 5 excludes from application of the act the District of Columbia.

July 19, 1941

This act, in my opinion, provides an alternative procedure for the prosecution of petty offenses which are now within the jurisdiction of the Federal district courts. It accomplishes this by empowering the United States Commissioners to try and sentence persons charged with the commission of petty offenses on Federal reservations, provided that the defendant does not elect to be tried by the Federal district court which has jurisdiction over the offense. The act does not create any new Federal offenses nor make any substantive change in Federal law.

The purpose and the scope of the act are unmistakably revealed in the report on the bill of the Committee on the Judiciary to the House of Representatives, which report incorporated letters to that Committee discussing the bill from the Department of Justice and the War Department. The report emphasizes the need for a more speedy and convenient method of prosecuting minor Federal offenses which, under existing law, must be prosecuted in the Federal district courts. Reference is made principally to the distance of the Federal district courts, to the necessary delay in reaching trial, and to the inconvenience resulting to the defendant and to the Government. Similar arguments of procedural convenience are the burden of the letters of the Justice and War Departments (H. R. Report No. 2579, 76th Cong. 3d sess.).

This interpretation that the petty offenses covered by the act must be Federal offenses within the jurisdiction of the Federal courts is made inescapable by the provision in the act for election by the defendant of a trial before the Commissioner or before the Federal district court which has jurisdiction of the offense. If the offense is not one within the jurisdiction of a Federal district court, the purpose, as well as the provisions, of the bill no longer has application. The function of the United States Commissioner under the act is to relieve the Federal district court of the burden of the minor cases, to the advantage of all parties.

The act may, in my opinion, be held to apply to offenses committed on Indian reservations, although the matter is not entirely free from doubt. My reason is that the act may be characterized as a general law "as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States" and as such it becomes applicable to Indian reservations under 25 U. S. C. A. sec. 217, which section extends all such laws to the Indian country. It is not necessary, under this reasoning, to determine whether an Indian reservation is a place under the concurrent or exclusive jurisdiction of the United States to which the act by its terms directly applies. I conclude that any white person or Indian who commits within an Indian reservation a Federal offense which comes within the pre

scribed definition of a petty offense and for which he is subject to trial in a Federal district court may be tried before the United States Commissioner, provided he consents to such procedure.

However, as the law relates only to Federal offenses, it in no way affects the trial and punishment of offenses defined by tribal law and regulation. Such offenses continue to be tried by the tribal authorities and are not subject to prosecution before the Commissioner or the Federal district courts. The act, in my opinion, is no more applicable to offenses under tribal law than it is to offenses under State law committed within Indian reservations.

My conclusion is the same in regard to offenses defined by the law and order regulations of this Department as such offenses are not offenses over which the Federal district courts have jurisdiction. Section 1 of the act describes the offenses subject to the jurisdiction of the United States Commissioners as "petty offenses against the law, or rules and regulations made in pursuance of law." This reference to rules and regulations makes the act applicable to violations of Federal regulations which are made a Federal offense by statute. The law and order regulations of this Department have a peculiar status. There is no statute providing in terms for regulations governing the conduct of Indians on Indian reservations or making violation of such regulations a Federal offense cognizable in the Federal district courts. In the extensive analysis of the authority for these departmental law and order regulations, set forth in my memorandum of February 28, 1935, it was pointed out that these regulations were sanctioned by congressional appropriations over 60 years for the employment of Indian judges and Indian police and for maintaining law and order on Indian reservations. The authority for the regulations was also found in the tribal power over the internal relations of Indians on Indian reservations, the Interior Department assisting in this regard where tribal organization was weak.

The discussion of the bill on the floor of the House of Representatives on July 1, 1940, does indicate that two or three of the Congressmen participating in the discussion believed that the bill would permit the United States Commissioners to try offenses against tribal laws and regulations if the defendant and the tribal court consented to such procedure. Such an understanding of the bill is a natural one to reach without close scrutiny of all the terms of the bill, in view of the broad general language of the title of the bill and of the opening sentence. However, much of the discussion consisted in raising questions as to the application of the bill to Indian reservations and was not advanced as conclusive. The discussion, moreover, loses weight by reason of the fact that it was based upon the premise that tribal courts had jurisdiction over offenses by white persons on Indian res