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DEFENDANT HAS A LEGAL DUTY TO INVESTIGATE FURTHER
THE PAYMENT OF SALARIES FOR UNAUTHORIZED PURPOSES
AND TO TAKE APPROPRIATE ACTION TO RECOVER THEM FOR
THE BENEFIT OF THE TREASURY OF THE UNITED STATES.

The defendant's reply is, essentially, if there were any unauthorized payments, he has no obligation to do anything about the matter. In his view, his only duty is to determine that a certification of payments under the heading "White House salaries" was properly made and that there are appropriations for that avowed purpose; beyond that he claims to have no obligation. In our view, defendant's analysis is in error first because even on his own terms his obligations would extend to recovering the monies sought here, and more fundamentally he views his relation to the problem far too narrowly in light of his over-all responsibilities Treasury.

vis-a-vis the U.S.

Returning again to our analogy of the $100,000 check made

payable directly to the Committee to Re-elect the President, let us assume that in order to obtain the payment of that check, a duly certified voucher had been presented to the Division of Disbursement in the Treasury Department indicating that precise purpose. There can be little doubt that the duty to examine the voucher and approve the payment as an authorized one exists under 31 U.S.C. §§ 82c13 and 1008. It is equally clear that if that payment had by accident been made, the defendant would be obligated to attempt to recover the improperly paid monies.

The only difference between that hypothetical case and this one is that the certification was not facially defective in the present

13See the Carlock affidavit ¶2 responding to plaintiffs' interrogatories and ¶2 of defendant's statement pursuant to Rule 9(g).

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case, although facts have now come to light which make it clear that the expenditures were unlawful even though the certification appeared proper at the time that the payments were made. We submit that the same duties exist under sections 82c and 1008 on the facts of this case as would apply under the hypothetical under which there would be little question of the obligation of the defendant to seek recovery of monies. In fact, the doubtful legality of making certain of these payments was called to defendant's attention in plaintiffs' letters of October 10 and October 24, 1972, before all of the unauthorized payments were completed. (Complaint 14). Thus, defendant was on

notice before the event that the certifications may not have been proper in spite of their facial compliance with the law.

Moreover, in considering the obligations of the defendant,

it is important to recall his broad range of duties regarding the revenues and disbursement of funds as set forth in section 1002 of Title 31, as well as the duties of his subordinate the Treasurer of the United States which are contained in section 147. In addition, section 1011 requires the general counsel of the Treasury Department, a subordinate of defendant's, to guard against and take cognizance of "all frauds and attempted frauds upon the revenue .", a phrase which would appear broad enough to encompass the improper use of Federal funds proven here. 14

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Furthermore, defendant as a Federal

141n the context of a criminal conspiracy indictment charging a plot to "defraud the United States," a conviction was sustained without any proof that the Government had been defrauded out of a penny, where the prosecution showed a conspiracy to deprive the Government of the full services of one of its employees. United States v. Pell, 433 F.2d 48 (2d Cir. 1970), cert. denied, 401 U.S. 955 (1971). Seen in this light, there can be little doubt that the mandate of section 1014 would include an investigation into these matters.

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official is sworn to uphold the laws and Constitution of the United States and to take appropriate action to see that they are carried out. In this connection he surely would have an obligation to assist and collaborate with the Attorney General of the United States to recover improperly paid funds whenever he learned of unauthorized payments such as have been disclosed here. Thus, we submit that

the duties of the highest official in the land charged with the responsibilities for public monies--this defendant, the Secretary

of the Treasury--are sufficiently expansive to include an obligation to take further action now that the facts have been demonstrated to

establish serious and extensive violations of the law.

In our brief in opposition to defendant's motion to dismiss, we pointed to the fact that defendant had not suggested that anyone else had the obligation if he did not, and that surely someone must be under a duty to investigate these matters and to seek recovery of the funds for the benefit of the United States. At that time we suggested, as we do above, that defendant, as the person ultimately responsible for the handling of public monies, was the person on

whom the duty ought to develop in the absence of any specific, exclusive designation of those responsibilities to another member of the Executive

Branch.

In reply, defendant now suggests that a "perusal of the provisions of Title 31 of the United States Code would suggest] to plaintiffs their potential avenues of relief." (Brief p. 14). The avenue which defendant suggests, and which by his use of the term "perusal" implies was painfully obvious from the start, is through the Comptroller General who is head of the General Accounting Office. We fail to see,

however, why if such a solution was so obvious, defendant did not

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promptly advise plaintiffs of this alternative

letters of October 10 and October 24, 1972.

In response to their Nor is it clear why

defendant did not suggest these other alternatives in his motion to dismiss made in late February 1973, or for that matter in any document filed with this Court until his motion for summary judgment was filed in September well over 11 months after he received plaintiffs' first

letter.

In addition, as defendant concedes, the General Accounting Office is an instrumentality of Congress, and hence it is not certain that it has authority to take affirmative action to effect recoveries in the event that it concluded that improper payments were made. In particular, several of the sections relied upon by defendant15 indicate the strong relationship between the General Accounting Office and the Congress, with the former functioning as an auditor and an adviser for the benefit of the Congress. While we believe that none of the provisions of Title 31 cited by defendant has any particular relevance to the problem before this Court, we do acknowledge that section 71 of Title 31, which provides for the settling and adjusting by the General Accounting Office of all accounts of the United States, does provide a basis for the Comptroller General to examine into the matters raised in the proceeding. But the fact that the GAO might investigate is in no way dispositive of the question of whether the defendant has either concurrent or primary jurisdiction over the same matters, and surely does not preclude the possibility that the defendant has an obligation in addition to or in conjunction with that of the General Accounting Office. In short, the duty may run to more

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16To the extent that the obligation may be that of the Attorney General, that too should present no problems since the Attorney General has been defending this action from its inception and surely could be added as a party at this point with no prejudice to him.

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This potential jurisdictional dispute as to the primary responsibilities in this case need not be resolved at this time, for plaintiffs are only seeking a declaration of illegality and a declaration that the defendant has an obligation to do something to recover the improperly expended monies. We are confident that once this Court declares that defendant is responsible to take action

to effect these recoveries that he will, as an officer sworn to uphold the law, take appropriate steps to protect the public monies and to fulfill his obligation under the law. Of course, we would have no objection to the defendant requesting the GAO or any other instrumentali of the Government to assist him in this regard, and the selection of methods is his in the first instance.

Thus, after examining the

record he may well conclude that it is advisable to refer the matter to other agencies such as GAO and that such action on his part may, although need not necessarily, represent a proper discharge of his immediate responsibilities under the law. For the present, all that plaintiffs ask is that defendant take further steps to determine the extent of the violations and to seek to recover the monies that belong to all taxpayers and should be returned to the Treasury of the United States.

IV.

PLAINTIFFS HAVE STANDING TO MAINTAIN THIS ACTION. Although previously rejected by this Court in its Order of March 8, 1973, defendant again raises the claim of absence of standing. This Court's earlier decision in that regard should be followed under the salutory principle of the law of the case and the question cannot be relitigated "except in unusual circumstances." Insurance Group Comm v. Denver & Rio Grande W. Ry. Co., 329 U.S. 607,

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