United States v. Daniel, Urbahn, Seelye and Fuller, 72 C 312.

• Court: United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
• Citation: 357 F. Supp. 853
• Docket Number: No. 72 C 312.,72 C 312.
• Parties: UNITED STATES of America For the Use of R. Rudnick and Company, an Illinois corporation, v. DANIEL, URBAHN, SEELYE AND FULLER, a partnership, et al.,
• Decision Date: 12 April 1973

357 F. Supp. 853

UNITED STATES of America For the Use of R. Rudnick and Company, an Illinois corporation, v. DANIEL, URBAHN, SEELYE AND FULLER, a partnership, et al.,

No. 72 C 312.

United States District Court, N. D. Illinois, E. D.

April 12, 1973.

John M. Burke, Chicago, Ill., for plaintiff.

James R. Thompson, U. S. Atty., by R. B. Schaeffer, Asst. U. S. Atty., Chicago, Ill., for defendants.

MEMORANDUM OPINION and ORDER

AUSTIN, District Judge.

Plaintiff, a corporation engaged in the general construction business, brought this suit under the Miller Act, 40 U.S.C. § 270a et seq. There are four defendants, one a partnership, Daniel, Urbahn, Seelye and Fuller (hereinafter referred to as "DUSAF"), alleged to be composed of the other defendants, which are another partnership and two corporations. The complaint has previously been dismissed as to five other defendants and two others were granted summary judgment.

The complaint alleges that DUSAF was the prime contractor for the United States and the Atomic Energy Commission (AEC) for the construction of proton beam enclosures at Batavia, Illinois.¹ Prior to submitting its bid, plaintiff examined the construction site and soil boring reports that were prepared by Soil Testing Services, Inc., (a previously dismissed defendant) and that were submitted by DUSAF in its "Invitation to Bid." Plaintiff alleges that based on its inspections and the soil boring reports it believed it would not encounter any unusual water conditions and determined the amount of its bid for the construction work accordingly. Its bid was accepted by DUSAF and after beginning performance plaintiff encountered an "unusual" amount of subsurface water, alleged to be an "unknown latent physical condition differing materially from those conditions usually encountered in work of this nature."

Plaintiff alleges that this condition falls within the provisions of two clauses of its contract with DUSAF that provide for an "equitable adjustment" of the contract by DUSAF; that it had increased costs of $497,559 as a result of the condition; that it demanded payment pursuant to the two contract clauses; and that DUSAF has refused to pay the additional costs.

Pending before the court are two motions, plaintiff's motion to strike the appearance of the U. S. Attorney and DUSAF's motion, filed by the U. S. Attorney, to dismiss or in the alternative, for summary judgment.

Motion to Strike the Appearance of the U. S. Attorney

In the court file is a copy of a letter from the Assistant United States Attorney General, Civil Division, which acknowledges receipt of a letter from the AEC that presumably asked the government to take part in this lawsuit. In that letter the Assistant Attorney General told the AEC that he was asking the U. S. Attorney in Chicago to undertake the defense of this case. The U. S. Attorney filed, on behalf of DUSAF, the aforementioned motion to dismiss or for summary judgment. He did not, however, file an appearance on behalf of DUSAF, as he is required to do under Local Civil Rule 6(b). Given the present posture of the case, the U. S. Attorney's filing a motion on behalf of DUSAF will be considered as equivalent to filing an appearance and therefore plaintiff's motion to strike the appearance is appropriate.

Plaintiff's contention is, in short, that because Miller Act suits are brought in the name of the United States, for the use of subcontractors, and because the purpose of the Act is to bestow a benefit upon subcontractors, it is inappropriate for the U. S. Attorney to represent a defendant contractor. The U. S. Attorney argues that because the contract between the AEC and DUSAF is a cost-plus-fixed-fee contract (CPFF),² under which the AEC will have to pay all of DUSAF's costs, the government has an interest in this case and under 28 U.S.C. §§ 516, 547 his appearance is proper.

The issue of the propriety of the government appearing on behalf of a defendant contractor in a Miller Act case is apparently one of first impression.³ Therefore, it is important to determine the intent of Congress in passing the Miller Act and the statutes enumerating the duties of U. S. Attorneys.

Duties of the U. S. Attorney

The U. S. Attorney relies upon 28 U. S.C. §§ 516 and 547 as giving him authority to represent the government's interest in this case, which means appearing on behalf of the contractor DUSAF. Section 547 provides in relevant part:

Except as otherwise provided by law, each United States attorney, within his district shall . . . prosecute or defend, for the Government, all civil actions, suits or proceedings in which the United States is concerned. . . .

Section 516 provides:

Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General.

While on their faces these statutes might seem to grant the U. S. Attorney such authority, an examination of the legislative history makes their scope less clear.

Since § 547 is more clearly applicable to the instant case than § 516, its background will be examined first. The Judiciary Act of 1789 provided that a person should be appointed in each judicial district to

act as attorney for the United States . . . whose duty it shall be to prosecute in such district all delinquents for crimes and offences, cognizable under the authority of the United States, and all civil actions in which the United States shall be concerned. . . .

Act of Sept. 25, 1789, ch. 20, § 35, 1 Stat. 92. While on its face it would seem to provide that the district attorney (as he was known until 1948) would only prosecute criminal and civil actions, he in fact had much discretion in defending cases in which the government was concerned.⁴ In 1863 Congress provided that it was the attorneys' duty to appear on behalf of all revenue officers, Act of Mar. 3, 1863, ch. 76, § 13, 12 Stat. 741 now 28 U.S.C. § 547(3), although earlier it had provided for payment to them when they defended any officers of the United States for acts done in the "lawful discharge of their duties." Act of Aug. 16, 1856, ch. 124, § 12, 11 Stat. 50.⁵ The Supreme Court sanctioned district attorneys defending cases by interpreting the words "to prosecute all civil actions" as

covering any case in which the district attorneys are employed to prosecute the interests of the government in any civil action, whether such interest be the subject of attack or of defense.⁶

Thus, while the statute prescribing the duties of district attorneys in defending cases may have appeared to be limited in scope, it was not so interpreted by the courts and the Attorney General.

The provision covering duties, which consisted of the original language of 1789 plus the 1863 addition covering defense of revenue officers, remained unchanged until 1948. See 28 U.S.C. § 485 (1940). In that year Title 28 was revised, the purpose thereof being to create a "modern, workable" judicial code. 93 Cong.Rec. 8384 (1947) (Remarks of Representative Robison). The revision specificially denominated the attorney as the United States Attorney and in 28 U.S.C. § 507(a) (Supp. IV, 1950)^6a provided;

(a) It shall be the duty of each United States attorney, within his district, to:

. . . . . .

(2) Prosecute or defend, for the government, all civil actions, suits or proceedings in which the United States is concerned. . . .

Significantly, subsection (a)(2) contained the first statutory authorization for the U. S. Attorney to defend all civil actions in which the government was concerned. Presumably the revisers intended that the wording of the revision reflect the broad interpretation of the U. S. Attorney's duties by the courts and the Attorney General, yet there is no indication of that in either the Reviser's Notes, which accompanied the House Report, or the debate in Congress. The Reviser's Notes stated that the revision of the U. S. Attorney's duties merely changed the "arrangement and phraseology" and was a "consolidation" of prior law. H.R.Rpt. No. 308, 80th Cong., 1st Sess. A 60, 61 (1947), reprinted at 28 U.S.C.A. § 547 (1968). The only debate in Congress on the revision concerned the creation of the Tax Court. 93 Cong.Rec. 5049-50, 8384-92 (1947); 94 Cong.Rec. 7927-30, 8498-501 (1948).

In 1949 Congress amended various parts of the revision in order to "correct minor typographical and clerical errors.

. . ." 95 Cong.Rec. 5826 (1949) (Remarks of Senator O'Conor). Those involved in the revision may have realized that the U. S. Attorney's duties enumerated in the revision did not conform to the prior statutory law, because one of the amendments changed the first part of 28 U.S.C. § 507(a), which had read "It shall be the duty of each United States attorney. . . ." It was amended to read, "Except as otherwise provided by law, it shall be the duty of each United States attorney. . . ." Act of May 24, 1949, ch. 139, § 71, 63 Stat. 100. One of the purposes of the 1949 amendments was to clarify

"the language of some sections to conform more closely to the original law, or to remove ambiguities"

that had been discovered. H.R.Rpt. No. 352, 81st Cong. 1st Sess. 1 (1949). While neither the House Report nor floor debate⁷ indicates the reason Congress made that particular amendment, it is not unreasonable to assume that "Except as otherwise provided by law" was added to conform the revision more closely to the original law.

Thus, while courts, when faced with the question, have liberally construed the duties of U. S. Attorneys in appearing in cases in which the United States is "concerned,"⁸ there is not much evidence that Congress intended to give them unlimited discretion to appear in any and all cases.

A similar conclusion is reached when the background of the other provision upon which the U. S. Attorney relies, 28 U.S.C. §...