B-126888, OCT. 22, 1963

B-126888, OCT. 22, 1963

TO MR. ROBERT E. GAFFNEY:

ON SEPTEMBER 8, 1963, YOU REQUESTED THAT WE RECONSIDER GENERAL ACCOUNTING OFFICE SETTLEMENT OF AUGUST 27, 1963, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL REIMBURSEMENT OF EXPENSES YOU INCURRED INCIDENT TO THE TRAVEL YOU PERFORMED BETWEEN JUNE 19 AND 27, 1963, FROM SAN FRANCISCO, CALIFORNIA, TO HONOLULU, HAWAII AND RETURN AS A WITNESS FOR THE UNITED STATES.

PAYMENT OF PER DIEM SUBSISTENCE AND TRAVEL EXPENSES TO INDIVIDUALS SERVING AS WITNESSES IN UNITED STATES COURTS IS PROVIDED IN SECTION 1821 OF TITLE 28 OF THE U.S.C. IN PERTINENT PART AS FOLLOWS:

"A WITNESS ATTENDING IN ANY COURT OF THE UNITED STATES, OR BEFORE A UNITED STATES COMMISSIONER, OR BEFORE ANY PERSON AUTHORIZED TO TAKE HIS DEPOSITION PURSUANT TO ANY RULE OR ORDER OF A COURT OF THE UNITED STATES, SHALL RECEIVE $4 FOR EACH DAY'S ATTENDANCE AND FOR THE TIME NECESSARILY OCCUPIED IN GOING TO AND RETURNING FROM THE SAME * * *. WITNESSES WHO ARE NOT SALARIED EMPLOYEES OF THE GOVERNMENT AND WHO ARE NOT IN CUSTODY AND WHO ATTEND AT POINTS SO FAR REMOVED FROM THEIR RESPECTIVE RESIDENCE AS TO PROHIBIT RETURN THERETO FROM DAY TO DAY SHALL BE ENTITLED TO AN ADDITIONAL ALLOWANCE OF $8 PER DAY FOR EXPENSES OF SUBSISTENCE INCLUDING THE TIME NECESSARILY OCCUPIED IN GOING TO AND RETURNING FROM THE PLACE OF ATTENDANCE: PROVIDED, THAT IN LIEU OF THE MILEAGE ALLOWANCE PROVIDED FOR HEREIN, WITNESSES WHO ARE REQUIRED TO TRAVEL BETWEEN THE TERRITORIES AND POSSESSIONS, OR TO AND FROM THE CONTINENTAL UNITED STATES, SHALL BE ENTITLED TO THE ACTUAL EXPENSES OF TRAVEL AT THE LOWEST FIRST-CLASS RATE AVAILABLE AT THE TIME OF RESERVATION FOR PASSAGE, BY MEANS OF TRANSPORTATION EMPLOYED: * * *.' SEE KNOX V. ANDERSON, 163 F.SUPP. 822 (D.C. HAWAII, 1958).

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

THEREFORE, GENERAL ACCOUNTING OFFICE SETTLEMENT OF AUGUST 27, 1963, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL TRAVEL EXPENSES IS CORRECT AND MUST BE SUSTAINED.

CONCERNING THE QUESTION PRESENTED IN THE LAST PARAGRAPH OF YOUR LETTER, YOU ARE INFORMED THAT THE DECISIONS OF OUR OFFICE ARE BINDING UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. HOWEVER, YOUR ATTENTION IS DIRECTED TO 28 U.S.C. 1491, REGARDING THE JURISDICTION OF THE COURT OF CLAIMS.