B-139703, AUGUST 27, 1959, 39 COMP. GEN. 133

B-139703, AUGUST 27, 1959, 39 COMP. GEN. 133

APPROPRIATIONS - AVAILABILITY - COURT COSTS - INDIGENT PERSONS - GOVERNMENT LIABILITY TRAVEL AND SUBSISTENCE EXPENSES INCURRED BY AN INDIGENT DEFENDANT'S ATTORNEY ATTENDING A DEPOSITION EXAMINATION MAY BE REGARDED AS EXPENSES INCIDENT TO THE RESPONSIBILITY OF THE COURT TO ASSURE DEFENDANTS AN ADEQUATE FORUM AND, THEREFORE, SUCH EXPENSES ARE FOR PAYMENT BY THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS UNDER RULE 15 (C) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE; HOWEVER, COMPENSATION AND TRAVEL EXPENSES OF DEPONENTS SUBPOENAED ON BEHALF OF AN INDIGENT DEFENDANT ARE REGARDED AS EXPENSES INCIDENT TO THE RESPONSIBILITY OF THE DEPARTMENT OF JUSTICE FOR THE PRODUCTION OF WITNESSES AND PAYABLE UNDER RULE 17 (B) FROM JUSTICE DEPARTMENT APPROPRIATIONS FOR WITNESS EXPENSES. EXPERT WITNESSES WHO ARE APPOINTED BY THE COURT UNDER RULE 28 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE ARE WITNESSES APPOINTED TO AID THE COURT IN THE DISCHARGE OF ITS DUTIES, AND EXPENSES OF SUCH WITNESSES SHOULD BE CHARGED TO THE APPROPRIATION FOR " TRAVEL AND MISCELLANEOUS EXPENSES" ( JUDICIARY APPROPRIATION ACT, 1959,) FOR NECESSARY TRAVEL AND MISCELLANEOUS EXPENSES, NOT OTHERWISE PROVIDED FOR, INCURRED BY THE JUDICIARY; LIKEWISE, EXPENSE OF PSYCHIATRIC EXAMINATIONS ORDERED UNDER 18 U.S.C. 4244-4248 TO AID THE COURT IN PASSING SENTENCE WOULD BE AN EXPENSE TO BE CHARGED TO APPROPRIATIONS OF THE ADMINISTRATIVE OFFICE OF THE COURTS. STENOGRAPHIC OR NOTARIAL EXPENSES INCIDENT TO DEPOSITIONS OF WITNESSES SUBPOENAED ON BEHALF OF AN INDIGENT DEFENDANT UNDER RULE 17 (B) THE FEDERAL RULES OF CRIMINAL PROCEDURE MAY BE REGARDED AS COSTS INCIDENT TO THE SUBPOENAING OF WITNESSES ON BEHALF OF THE GOVERNMENT, WHICH COSTS ARE CHARGEABLE TO APPROPRIATIONS OF THE DEPARTMENT OF JUSTICE. ALTHOUGH HABEAS CORPUS PROCEEDINGS BROUGHT BY INDIGENT PETITIONERS UNDER 28 U.S.C. 1915 ARE CIVIL ACTIONS, THE HABEAS CORPUS WRIT IS SO RELATED TO THE PROTECTION OF CONSTITUTIONAL RIGHTS OF INDIGENT DEFENDANTS UNDER RULE 17 (B) OF THE FEDERAL CRIMINAL RULES THAT THIS RULE, WHICH PROVIDES FOR THE PAYMENT BY THE GOVERNMENT OF THE COSTS AND FEES FOR WITNESSES SUBPOENAED ON BEHALF OF INDIGENT DEFENDANTS, IS FOR INVOCATION IN HABEAS CORPUS PROCEEDINGS UNDER THE PAUPER'S STATUTE; THEREFORE, COSTS OF HABEAS CORPUS PROCEEDINGS--- WHETHER STATE OR FEDERAL ARE PAYABLE FROM APPROPRIATIONS OF THE DEPARTMENT OF JUSTICE. IN FEDERAL HABEAS CORPUS PROCEEDINGS BROUGHT BY INDIGENT PETITIONERS UNDER 28 U.S.C. 1915 WHEN RULE 17 (B) OF THE FEDERAL CRIMINAL RULES WHICH PROVIDES FOR THE PAYMENT BY THE GOVERNMENT OF THE COSTS AND FEES FOR WITNESSES SUBPOENAED ON BEHALF OF INDIGENT DEFENDANTS IS FOR APPLICATION, THE MARSHAL IS NOT REQUIRED TO COLLECT HIS EARNINGS AT THE END OF THE CASE, UNLESS A JUDGMENT IS RENDERED MAKING THE PETITIONER LIABLE; HOWEVER, WITH RESPECT TO A STATE PROCEEDING THE UNITED STATES IS NOT TECHNICALLY THE RESPONDENT AND IS NOT LIABLE FOR THE COST OF THE PROCEEDINGS; HENCE, THE MARSHAL IS REQUIRED TO COLLECT HIS EARNINGS FROM THE UNSUCCESSFUL PARTY TO THE ACTION. IN SUITS BROUGHT BY SEAMEN UNDER 28 U.S.C. 1916 WHICH ALLOWS THEM TO PROCEED WITHOUT PREPAYMENT OF COSTS, THE UNITED STATES IS NOT LIABLE FOR FEES OR COSTS AS IN FEDERAL HABEAS CORPUS ROCEEDINGS; THEREFORE, THE MARSHAL IS REQUIRED TO COLLECT HIS EARNINGS AT THE CONCLUSION OF CASES INSTITUTED BY SEAMEN UNDER 28 U.S.C. 1916.

TO THE ATTORNEY GENERAL, AUGUST 27, 1959:

BY LETTER DATED MAY 19, 1959, MR. S. A. ANDRETTA, ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL, REQUESTED OUR DECISION AS TO WHICH APPROPRIATIONS--- THOSE ADMINISTERED BY THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS OR THOSE OF THE DEPARTMENT OF JUSTICE--- SHOULD BE CHARGED WITH CERTAIN EXPENSES IN PROCEEDINGS BROUGHT OR DEFENDED BY INDIGENT PERSONS. DOUBT IN THE MATTER ARISES PRIMARILY BY VIRTUE OF VARIOUS STATUTES AND RULES OF PROCEDURE WHICH REQUIRE THAT CERTAIN EXPENSES IN PROCEEDINGS INSTITUTED BY INDIGENT PERSONS BE PAID BY THE UNITED STATES, WITHOUT SPECIFYING WHICH AGENCY OF THE GOVERNMENT SHALL BE RESPONSIBLE FOR MAKING PAYMENT. THE PRINCIPAL STATUTES AND RULES INVOLVED AND THE QUESTIONS RAISED IN REFERENCE LETTER WITH REGARD THERETO ARE QUOTED BELOW AND ANSWERED IN THE ORDER PRESENTED.

THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS WAS CREATED BY THE ACT OF AUGUST 7, 1939, 53 STAT. 1223, 28 U.S.C. 444. THE BASIC RESPONSIBILITIES PLACED UPON THE DIRECTOR OF THAT OFFICE CONCERN ADMINISTRATIVE MATTERS RELATED TO MAINTENANCE OF THE COURTS, THAT IS, HOUSEKEEPING FUNCTIONS NECESSARY TO ASSURE A FORUM FOR THE DISPOSITION OF CASES. WHERE AMBIGUITY EXISTS CONCERNING WHICH AGENCY'S APPROPRIATION SHOULD BE CHARGED FOR ITEMS OF EXPENSE CONNECTED WITH PROCEEDINGS INSTITUTED OR DEFENDED BY INDIGENTS, IT WOULD, THEREFORE, APPEAR THAT THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS SHOULD BE RESPONSIBLE ONLY IF THE EXPENSE IN QUESTION CONCERNS A MATTER RELATED TO THE ADMINISTRATIVE FUNCTIONS OF THAT OFFICE.

IT IS WITHIN THIS FRAMEWORK THAT WE SHALL EXAMINE THE SPECIFIC QUESTIONS RAISED.

1. RULE 15, FEDERAL RULES OF CRIMINAL PROCEDURE, SUBSECTION (B) AND (C):

(B) DEPOSITIONS. NOTICE OF TAKING. THE PARTY AT WHOSE INSTANCE A DEPOSITION IS TO BE TAKEN SHALL GIVE EVERY OTHER PARTY REASONABLE WRITTEN NOTICE OF THE TIME AND PLACE FOR TAKING THE DEPOSITION. THE NOTICE SHALL STATE THE NAME AND ADDRESS OF EACH PERSON TO BE EXAMINED. ON MOTION OF A PARTY UPON WHOM THE NOTICE IS SERVED, THE COURT FOR CAUSE SHOWN MAY EXTEND OR SHORTEN THE TIME.

(C) DEPOSITIONS, DEFENDANT'S COUNSEL AND PAYMENT OF EXPENSES. IF A DEFENDANT IS WITHOUT COUNSEL THE COURT SHALL ADVISE HIM OF HIS RIGHT AND ASSIGN COUNSEL TO REPRESENT HIM UNLESS THE DEFENDANT ELECTS TO PROCEED WITHOUT COUNSEL OR IS ABLE TO OBTAIN COUNSEL. IF IT APPEARS THAT A DEFENDANT AT WHOSE INSTANCE A DEPOSITION IS TO BE TAKEN CANNOT BEAR THE EXPENSE THEREOF, THE COURT MAY DIRECT THAT THE EXPENSES OF TRAVEL AND SUBSISTENCE OF THE DEFENDANT'S ATTORNEY FOR ATTENDANCE AT THE EXAMINATION SHALL BE PAID BY THE GOVERNMENT. IN THAT EVENT THE MARSHAL SHALL MAKE PAYMENT ACCORDINGLY.

QUESTION THE PROBLEMS ARISING UNDER THIS RULE CONCERN AUTHORITY TO PAY THE DEPONENTS THEIR WITNESS FEES AND MILEAGE IN GIVING THEIR DEPOSITIONS. IF STENOGRAPHIC OR NOTARIAL EXPENSES ARE INVOLVED IN REPORTING AND AUTHENTICATING THE DEPOSITION, WHAT APPROPRIATIONS ARE CHARGEABLE? THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS PAYS TRAVELING EXPENSES OF THE INDIGENT'S ATTORNEY.

RULE 15 CONTINUED THE EXISTING LAW PERMITTING DEFENDANTS TO TAKE DEPOSITIONS IN CERTAIN CASES, 28 U.S.C. FORMER SECTION 644, AND PROVIDES FOR CERTAIN PROCEDURES TO BE FOLLOWED AND FOR WHAT PURPOSE AND WHEN DEPOSITIONS MAY BE USED AT TRIAL. SUBDIVISION (C) OF THE RULE INTRODUCED THE NEW FEATURE OF AUTHORIZING THE COURT TO DIRECT THAT EXPENSES OF TRAVEL AND SUBSISTENCE OF AN INDIGENT DEFENDANT'S ATTORNEY FOR ATTENDANCE AT THE EXAMINATION BE PAID BY THE GOVERNMENT FOR THE PURPOSE OF PROTECTING THE INDIGENT DEFENDANT'S RIGHTS. SEE NOTES OF ADVISORY COMMITTEE ON RULES FOLLOWING RULE 15, FEDERAL RULES OF CRIMINAL PROCEDURE, 18 U.S.C. 1958 ED., P. 3418. THE APPOINTMENT OF COUNSEL WOULD APPEAR TO BE THE RESPONSIBILITY OF THE COURT SYSTEM RELATED TO ASSURING THE DEFENDANT AN ADEQUATE FORUM FOR HIS CAUSE; AND, THEREFORE, PAYMENT BY THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS OF THE EXPENSES OF TRAVEL AND SUBSISTENCE OF THE INDIGENT'S ATTORNEY FOR ATTENDANCE AT A DEPOSITION EXAMINATION IS DEEMED PROPER UNDER RULE 15 (C).

HOWEVER, NO PROVISION IS MADE IN EITHER RULE 15 OR THE LAWS WHICH IT REPLACED FOR PAYMENT BY THE UNITED STATES OF THE COST OF TAKING SUCH DEPOSITIONS, INCLUDING WITNESS FEES AND MILEAGE EXPENSE OF THE DEPONENTS. SEE 21 COMP. GEN. 347, 348, 349, AND CASES CITED THEREIN. THEREFORE, EXPENSES OF TAKING DEPOSITIONS MAY NOT BE PAID BY THE UNITED STATES UNDER RULE 15, UNLESS THE WITNESSES INVOLVED COULD BE COMPELLED TO APPEAR AT THE EXAMINATION PURSUANT TO THE PROVISIONS OF THE RULE 17 (B), FEDERAL RULES OF CRIMINAL PROCEDURE, WHICH RULE CONSTITUTES THE SOLE AUTHORITY FOR PAYMENT BY THE UNITED STATES OF AN INDIGENT DEFENDANT'S WITNESSES.

SINCE AUTHORITY FOR PAYMENT BY THE UNITED STATES OF EXPENSES RELATED TO THE TAKING OF DEPOSITIONS THUS RESTS IN RULE 17 (B), IT FOLLOWS THAT ANY DIRECTIONS CONTAINED IN THAT RULE WOULD GOVERN AS TO HOW PAYMENT BY THE UNITED STATES IS TO BE EFFECTED.

ACCORDINGLY, THE EXPENSES ENUMERATED IN THE QUESTION QUOTED ABOVE, EXCEPT FOR ATTORNEY'S EXPENSES, MUST BE PAID IN ACCORDANCE WITH THE PROVISIONS OF RULE 17 (B), WHICH RULE IS THE BASIS FOR THE SECOND QUESTION RAISED AND DISCUSSED BELOW.

2. RULE 17 (B), FEDERAL RULES OF CRIMINAL PROCEDURE

SUBPOENA, INDIGENT DEFENDANTS. THE COURT OR A JUDGE THEREOF MAY ORDER AT ANY TIME THAT A SUBPOENA BE ISSUED UPON MOTION OR REQUEST OF AN INDIGENT DEFENDANT. THE MOTION OR REQUEST SHALL BE SUPPORTED BY AFFIDAVIT IN WHICH THE DEFENDANT SHALL STATE THE NAME AND ADDRESS OF EACH WITNESS AND THE TESTIMONY WHICH HE IS EXPECTED BY THE DEFENDANT TO GIVE IF SUBPOENAED, AND SHALL SHOW THAT THE EVIDENCE OF THE WITNESS IS MATERIAL TO THE DEFENSE, THAT THE DEFENDANT CANNOT SAFELY GO TO TRIAL WITHOUT THE WITNESS AND THAT THE DEFENDANT DOES NOT HAVE SUFFICIENT MEANS AND IS ACTUALLY UNABLE TO PAY THE FEES OF THE WITNESS. IF THE COURT OR JUDGE ORDERS THE SUBPOENA TO BE ISSUED COSTS INCURRED BY THE PROCESS AND THE FEES OF THE WITNESS SO SUBPOENAED SHALL BE PAID IN THE SAME MANNER IN WHICH SIMILAR COSTS AND FEES ARE PAID IN CASE OF A WITNESS SUBPOENAED IN BEHALF OF THE GOVERNMENT.

QUESTION THE DEPARTMENT HAS BEEN PAYING FACT WITNESS FEES. IF THE WITNESS IS AN EXPERT, ARE OUR FUNDS SIMILARLY CHARGEABLE? IF THE COURT FOUNDS ITS ORDER ON THIS RULE WHEN AUTHORIZING THE TAKING OF DEPOSITIONS (RATHER THAN RULE 15), IS THE DEPARTMENT CHARGEABLE FOR THE DEPONENTS'S FEES? WOULD THE SAME ANSWER APPLY TO STENOGRAPHIC OR NOTARIAL SERVICES? PLEASE NOTE RULE IS NOT SPECIFIC AS TO WHETHER DEPARTMENT PAYS IN THAT IT SAYS "WITNESS * * * SHALL BE PAID IN THE SAME MANNER * * *" ( ITALICS SUPPLIED.)

RULE 17 (B) EXPLICITLY PROVIDES THAT THE COSTS AND FEES CHARGEABLE TO THE GOVERNMENT THEREUNDER ,SHALL BE PAID IN THE SAME MANNER IN WHICH SIMILAR COSTS AND FEES ARE PAID IN CASE OF A WITNESS SUBPOENAED IN BEHALF OF THE GOVERNMENT.' THE LANGUAGE IS UNEQUIVOCAL; THEREFORE, TO ANSWER THE QUESTIONS RAISED, IT IS ONLY NECESSARY TO DETERMINE IN WHAT MANNER THE ENUMERATED EXPENSES WOULD BE PAID WERE THE WITNESSES SUMMONED BY THE GOVERNMENT RATHER THAN ON BEHALF OF AN INDIGENT DEFENDANT. THE APPROPRIATION LANGUAGE CONTAINED IN THE " DEPARTMENT OF JUSTICE APPROPRIATION ACT, 1959" 72 STAT. 249, PROVIDES, UNDER THE HEADING " FEES AND EXPENSES OF WITNESSES: "

FOR EXPENSES, MILEAGE, AND PER DIEMS OF WITNESSES AND FOR PER DIEMS IN LIEU OF SUBSISTENCE, AS AUTHORIZED BY LAW, AND NOT TO EXCEED $225,000 FOR SUCH COMPENSATION AND EXPENSES OF WITNESSES (INCLUDING EXPERT WITNESSES) *

WITH REGARD TO COMPENSATION AND EXPENSES OF WITNESSES--- WHETHER FACT WITNESSES OR EXPERTS--- SUBPOENAED ON BEHALF OF AN INDIGENT DEFENDANT THE CONCLUSION APPEARS REQUIRED, ON THE BASIS OF THE LANGUAGE QUOTED, THAT SUCH ITEMS ARE PAYABLE OUT OF SUCH APPROPRIATIONS TO THE DEPARTMENT OF JUSTICE. NOR DO WE FIND ANY BASIS UPON WHICH IT MIGHT BE HELD THAT SUCH COMPENSATION AND EXPENSES OF WITNESSES SUBPOENAED ON BEHALF OF AN INDIGENT OUGHT TO BE PAID BY THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS. MOREOVER, THIS CONCLUSION WOULD APPLY TO DEPONENTS' FEES AS WELL AS TO FEES FOR WITNESSES APPEARING IN COURT, SINCE RULE 17 (B) MAKES NO DISTINCTION BETWEEN THE TWO; AND, AS SHOWN, IT IS THAT RULE WHICH IS CONTROLLING. THE FUNCTION OF PRODUCING WITNESSES AND EVIDENCE IS NOT INCIDENT TO MAINTAINING A COURT BUT, RATHER, IS TYPICALLY A FUNCTION OF THE DEPARTMENT UNDER ITS PARAMOUNT OBLIGATION TO PRESENT THE CASE TO THE COURT IN SEEKING THAT JUSTICE BE DONE.

HOWEVER, UNDER RULE 28 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, PAGE 3425, TITLE 18, UNITED STATES CODE, 1958 USED., THE COURT MAY APPOINT AN EXPERT WITNESS OF ITS OWN SELECTION, INFORM THE WITNESS OF HIS DUTIES, DETERMINE THE REASONABLE COMPENSATION OF SUCH WITNESS AND DIRECT ITS PAYMENT OUT OF SUCH FUNDS AS MAY BE PROVIDED BY LAW. WHERE SUCH AN EXPERT WITNESS IS APPOINTED TO AID THE COURT IN DISCHARGING ITS OFFICIAL DUTY, IT WOULD APPEAR THAT THE EXPENSE THEREOF SHOULD BE CHARGED TO THE APPROPRIATION ENTITLED " TRAVEL AND MISCELLANEOUS EXPENSES" " JUDICIARY APPROPRIATION ACT, 1959, 72 STAT. 255) "FOR NECESSARY TRAVEL AND MISCELLANEOUS EXPENSES, NOT OTHERWISE PROVIDED FOR, INCURRED BY THE JUDICIARY, * * *" ( ITALICS SUPPLIED.) SIMILARLY, WHERE A PSYCHIATRIC EXAMINATION IS ORDERED TO AID THE COURT IN PASSING SENTENCE, IT WOULD APPEAR THAT THE EXPENSE THEREOF SHOULD BE BORNE BY APPROPRIATIONS OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS.

THIS LEAVES FOR RESOLUTION THE MATTER OF STENOGRAPHIC OR NOTARIAL SERVICES RELATED TO THE TAKING OF DEPOSITIONS RAISED IN BOTH QUESTIONS ABOVE.

RULE 17 (B) REFERS TO THE SUBPOENAING OF WITNESS AND PROVIDES ONLY FOR PAYMENT OF THE COSTS INCURRED BY THE PROCESS AND THE FEES OF THE WITNESSES SUBPOENAED. PROVISION FOR THE PAYMENT OF STENOGRAPHIC OR NOTARIAL EXPENSES INCURRED IN CONNECTION WITH THE TAKING OF DEPOSITIONS IS NOT SPECIFICALLY INCLUDED. HOWEVER, SINCE THE TESTIMONY OF A WITNESS SUBPOENAED UNDER RULE 17 (B) WOULD BE USELESS IF IT WERE NOT TRANSCRIBED AND NOTARIZED, AND THESE COSTS ARE PART AND PARCEL OF THE PURPOSE FOR WHICH THE DEPONENT IS SUBPOENAED IN THE FIRST INSTANCE, IT MUST BE CONCLUDED THAT, IN VIEW OF THE PROVISION TO PAY THE WITNESS FEES INVOLVED, THE EXPENSE OF PERPETUATING AND AUTHENTICATING HIS TESTIMONY IS EMBRACED AS PART OF "THE COSTS INCURRED BY THE PROCESS.' AND SINCE THESE EXPENSES ARE BORNE BY APPROPRIATIONS OF THE DEPARTMENT OF JUSTICE WHERE WITNESSES ARE SUBPOENAED ON BEHALF OF THE GOVERNMENT, IT FOLLOWS, UNDER THE DIRECTION CONTAINED IN RULE 17 (B), THAT WHERE THE DEPONENT IS SUBPOENAED ON BEHALF OF AN INDIGENT DEFENDANT EXPENSES OF STENOGRAPHIC AND NOTARIAL SERVICES MUST ALSO BE PAID BY THE DEPARTMENT IN A LIKE MANNER.

3. SECTION 1915, TITLE 28, U.S.C.

PROCEEDINGS IN FORMA PAUPERIS

(A) ANY COURT OF THE UNITED STATES MAY AUTHORIZE THE COMMENCEMENT, PROSECUTION OR DEFENSE OF ANY SUIT, ACTION OR PROCEEDING, CIVIL OR CRIMINAL, OR APPEAL THEREIN, WITHOUT PREPAYMENT OF FEES AND COSTS OR SECURITY THEREFOR, BY A CITIZEN WHO MAKES AFFIDAVIT THAT HE IS UNABLE TO PAY SUCH COSTS OR GIVE SECURITY THEREFOR. SUCH AFFIDAVIT SHALL STATE THE NATURE OF THE ACTION, DEFENSE OR APPEAL AND AFFIANT'S BELIEF THAT HE IS ENTITLED TO REDRESS.

AN APPEAL MAY NOT BE TAKEN IN FORMA PAUPERIS IF THE TRIAL COURT CERTIFIES IN WRITING THAT IT IS NOT TAKEN IN GOOD FAITH.

(B) IN ANY CIVIL OR CRIMINAL CASE THE COURT MAY, UPON THE FILING OF A LIKE AFFIDAVIT, DIRECT THAT THE EXPENSE OF PRINTING THE RECORD ON APPEAL, IF SUCH PRINTING IS REQUIRED BY THE APPELLATE COURT, BE PAID BY THE UNITED STATES, AND THE SAME SHALL BE PAID WHEN AUTHORIZED BY THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS.

(C) THE OFFICERS OF THE COURT SHALL ISSUE AND SERVE ALL PROCESS, AND PERFORM ALL DUTIES IN SUCH CASES. WITNESSES SHALL ATTEND AS IN OTHER CASES, AND THE SAME REMEDIES SHALL BE AVAILABLE AS ARE PROVIDED FOR BY LAW IN OTHER CASES.

(D) THE COURT MAY REQUEST AN ATTORNEY TO REPRESENT ANY SUCH PERSON UNABLE TO EMPLOY COUNSEL AND MAY DISMISS THE CASE IF THE ALLEGATION OF POVERTY IS UNTRUE, OR IF SATISFIED THAT THE ACTION IS FRIVOLOUS OR MALICIOUS.

(E) JUDGMENT MAY BE RENDERED FOR COSTS AT THE CONCLUSION OF THE SUIT OR ACTION AS IN OTHER CASES, BUT THE UNITED STATES SHALL NOT BE LIABLE FOR ANY OF THE COSTS THUS INCURRED. IF THE UNITED STATES HAS PAID THE COST OF A STENOGRAPHIC TRANSCRIPT OR PRINTED RECORD FOR THE PREVAILING PARTY, THE SAME SHALL BE TAXED IN FAVOR OF THE UNITED STATES.

QUESTION (A) COURTS HAVE PERMITTED HABEAS CORPUS PROCEEDINGS BY INDIGENTS WHO SUBPOENA WITNESSES UNDER THE AUTHORITY OF THE SECTION. ARE DEPARTMENT OF JUSTICE FUNDS CHARGEABLE WITH SUCH WITNESS FEES AND EXPENSES? A HABEAS CORPUS PROCEEDING MAY INVOLVE EITHER FEDERAL PRISONERS ON FEDERAL QUESTIONS, OR STATE PRISONERS AS TO WHOM THE FEDERAL GOVERNMENT HAS NO OFFICIAL CONNECTION. DOES YOUR ANSWER APPLY EQUALLY TO BOTH CLASSES? THIS DEPARTMENT CONSIDERS HABEAS CORPUS PROCEEDINGS ARE CIVIL ACTIONS, AND HENCE, THE MANDATORY REQUIREMENTS OF RULE 17 (B), FEDERAL CRIMINAL RULES DO NOT APPLY. (B) WHILE THIS SECTION PRECLUDES THE MARSHAL FROM REQUIRING PREPAYMENT OF HIS EARNINGS, IS THE MARSHAL REQUIRED TO COLLECT THEM DESPITE AN UNDERSTANDING THAT THE COURT EXPECTED THE SERVICES TO BE FREE OF ULTIMATE CHARGE REGARDLESS OF THE OUTCOME OF THE CASE?

IN 21 COMP. GEN. 347 WE HELD THAT THE PROVISO "THAT THE UNITED STATES SHALL NOT BE LIABLE FOR ANY OF THE COSTS THUS INCURRED" CONTAINED IN 28 U.S.C., FORMER SECTION 836, PRECLUDED THE EXPENSE OF TAKING A DEPOSITION BEING CHARGED TO THE UNITED STATES WHERE A DEFENDANT WAS AUTHORIZED TO PROCEED IN FORMA PAUPERIS UNDER 28 U.S.C., FORMER SECTION 832. HOWEVER, THAT HOLDING WAS BASED EXCLUSIVELY ON THE FACT THAT DEFENDANT'S WITNESS RESIDED OUTSIDE THE PERIMETER OVER WHICH THE COURT HAD JURISDICTION UNDER 28 U.S.C. FORMER SECTION 656, TO ISSUE AN ORDER FOR SUBPOENA OF WITNESSES. HAD THE WITNESS RESIDED WITHIN THAT PERIMETER, OUR DECISION WOULD HAVE BEEN TO ALLOW THE CHARGE. SEE PAGE 352 OF THE DECISION. THE RATIONALE OF THAT DECISION REQUIRES THAT THE UNITED STATES MAY NOT BE CHARGED ANY COSTS UNDER SECTION 1915--- OTHER THAN THOSE PROVIDED FOR--- UNLESS THERE IS SOME OTHER STATUTE AUTHORIZING SUCH CHARGE, WHERE SUCH OTHER STATUTE IS APPLICABLE TO THE PROCEEDING UNDER SECTION 1915.

THAT HABEAS CORPUS PROCEEDINGS ARE CIVIL ACTIONS IS WELL SETTLED. PARTE TOM TONG, 108 U.S. 556, 27 L. USED. 826. WHILE WE KNOW OF NO BASIS UPON WHICH THE UNITED STATES MAY BE CHARGED WITNESS COSTS IN CIVIL PROCEEDINGS, THE WRIT OF HABEAS CORPUS IS SO RELATED TO THE PROTECTION OF CONSTITUTIONAL RIGHTS AFFORDED INDIGENT DEFENDANTS BY RULE 17 (B), THAT TO IGNORE THAT RULE IN A HABEAS CORPUS PROCEEDING UNDER THE PAUPER'S STATUTE MAY WELL RAISE GRAVE QUESTIONS OF CONSTITUTIONALITY. THUS THE COURT, IN UNITED STATES V. CAVELL, 171 FED. SUPP. 417, STATED:

IN THE HABEAS CORPUS STATUTE OF 1867, 14 STAT. 385, 28 U.S.C.A. SECTION 2241 ET SEQ., CONGRESS DECIDED THAT A DISTRICT COURT SHOULD PASS ON FEDERAL CONSTITUTIONAL QUESTIONS PRESENTED BY A STATE PRISONER AFTER HIS CLAIMS HAD BEEN CONSIDERED BY THE STATE COURTS. THIS COMMAND WOULD BE AN EMPTY GESTURE IF AN IMPOVERISHED AND FRIENDLESS PRISONER IN THE PENITENTIARY, UNABLE TO INTERVIEW WITNESSES, WAS DENIED THE RIGHT TO SUBPOENA THOSE PERSONS HE EXPECTED WOULD PROVE THE ALLEGED VIOLATIONS.

WE THINK IT IMPLICIT BY THESE PROVISIONS (28 U.S.C. 1915 (A), (C) AND (E) ( THAT A STATE PRISONER, PERMITTED TO PROCEED IN FORMA PAUPERIS, IS ENTITLED TO HAVE HIS WITNESSES SUBPOENAED BY THE UNITED STATES MARSHAL; THAT THE WITNESSES SO SUBPOENAED BY ORDER OF COURT SHALL ATTEND AS IN OTHER CASES, AND THE SAME REMEDIES SHALL BE AVAILABLE AS ARE PROVIDED BY LAW IN OTHER CASES. ,OTHER CASES" INCLUDE CRIMINAL CASES WHEREIN THE COURT IS AUTHORIZED TO ORDER SUBPOENAS ISSUED ON BEHALF OF AN INDIGENT FEDERAL PRISONER AT THE EXPENSE OF THE UNITED STATES. RULE 17 (B), FED. R. CRIM. P., 18 U.S.C.A. IN CASE OF CONVICTION THE COURT MAY SENTENCE THE DEFENDANT TO PAY COSTS, OR IT MAY NOT; NONETHELESS, PAYMENT OF THE DEFENDANT'S WITNESSES IS ASSURED.

THE CAVELL CASE INVOLVED A HABEAS CORPUS PROCEEDING BY A CONVICTED STATE PRISONER AND HELD AT,"THE UNITED STATES IS AN INTERESTED PARTY IN A STATE HABEAS CORPUS PROCEEDING.' SECTION 2241 (C) (3) OF TITLE 28, U.S.C. PROVIDES THE STATE PRISONER WITH A FEDERAL COURT IN WHICH HE MAY CHALLENGE HIS INCARCERATION ON GROUNDS ARISING UNDER THE CONSTITUTION OR LAWS OR TREATIES OF THE UNITED STATES. THE PETITION TO THE UNITED STATES COURT FOR WRIT OF HABEAS CORPUS BY A STATE PRISONER IS BROUGHT BY RELATION IN THE NAME OF THE UNITED STATES. WE AGREE WITH THE COURT IN THE CAVELL CASE THAT "THE UNITED STATES IS AS VITALLY INTERESTED IN PROTECTING A PAUPER FROM VIOLATION OF HIS CONSTITUTIONAL RIGHTS IN A STATE PROSECUTION AS ANY INDIGENT DEFENDANT IN A FEDERAL PROSECUTION.' AND QUOTING FROM HOUSE REPORT NO. 1079, 52D CONGRESS, 2D SESSION (1892) 2, RECOMMENDING PASSAGE OF THE BILL WHICH BECAME 28 U.S.C. FORMER SECTIONS 832-836,"THE GOVERNMENT WILL NOT DETERMINE QUESTIONS INVOLVING THE LIBERTY OF THE CITIZEN WITHOUT FURNISHING HIM HIS WITNESSES ON HIS DEMAND.' SEE EX PARTE ROISER, 133 F.2D 316, 328.

ACCORDINGLY, AUTHORITY FOR CHARGING THE UNITED STATES WITH WITNESS FEES AND EXPENSES IN HABEAS CORPUS PROCEEDINGS--- WHETHER STATE OR FEDERAL--- RESTING IN RULE 17 (B), SUCH COSTS ARE CHARGEABLE TO THE DEPARTMENT OF JUSTICE FOR REASONS STATED ABOVE.

AS TO PART (B) OF THE QUESTION RAISED, WE DO NOT BELIEVE THAT THE MARSHAL IS REQUIRED TO COLLECT HIS EARNINGS AT THE END OF A FEDERAL HABEAS CORPUS CASE, UNLESS A JUDGMENT IS RENDERED MAKING THE PETITIONER LIABLE THEREFOR. THIS CONCLUSION IS BASED UPON THE APPLICABILITY OF RULE 17 (B) TO HABEAS CORPUS PROCEEDINGS. WHERE THAT RULE IS APPLICABLE IT WOULD APPEAR TO BE WITHIN THE DISCRETION OF THE COURT AS TO WHETHER A JUDGMENT FOR FEES AND COSTS WILL BE RENDERED AGAINST THE INDIGENT. WITH RESPECT TO A STATE PROCEEDING, HOWEVER, ALTHOUGH THE UNITED STATES HAS AN INTEREST IN PROTECTING THE RIGHTS OF AN INDIGENT PETITIONER, IT IS NOT TECHNICALLY THE RESPONDENT AND THEREFORE SHOULD NOT IN ANY EVENT BEAR THE COST OF THE PROCEEDING. IN SUCH CASES THE STATE SHOULD BEAR THE COSTS IF PETITIONER IS SUCCESSFUL AND, IF NOT SUCCESSFUL, PETITIONER SHOULD BEAR THE COSTS. SEE UNITED STATES V. CAVELL, ABOVE. IN STATE PROCEEDINGS, THEREFORE, OUR ANSWER WOULD BE THAT THE MARSHAL IS REQUIRED TO COLLECT HIS EARNINGS FROM THE UNSUCCESSFUL PARTY TO THE ACTION.

4. SECTION 1916, TITLE 28, U.S.C.

IN ALL COURTS OF THE UNITED STATES, SEAMEN MAY INSTITUTE AND PROSECUTE SUITS AND APPEALS IN THEIR OWN NAMES AND FOR THEIR OWN BENEFIT FOR WAGES OR SALVAGE OR THE ENFORCEMENT OF LAWS ENACTED FOR THEIR HEALTH OR SAFETY WITHOUT PREPAYING FEES OR COSTS OR FURNISHING SECURITY THEREFOR.

QUESTION UNLIKE SECTION 1915, THE PRIVILEGE UNDER THIS SECTION IS NOT DEPENDENT UPON FINANCIAL ABILITY TO PREPAY THE CHARGES.

WOULD YOUR ANSWER TO (B) ABOVE LIKEWISE APPLY TO THIS SECTION?

IT HAS BEEN HELD THAT THE PROVISION ALLOWING SEAMEN TO PROCEED WITHOUT PREPAYMENT OF COSTS DOES NOT REMOVE THE OBLIGATION TO PAY THE COSTS OR REMOVE THE COSTS FROM GENERAL CONNECTION WITH THE CASE, BUT SOLELY RELATES TO THE QUESTION OF PREPAYMENT. STALKER V. SOUTHEASTERN OIL DELAWARE, NC., 103 F.1SUPP. 436; AND SEE THEODORAKIS V. XILAS, 200 F.2D 107, CERTIORARI DENIED 345 U.S. 936; AND TAYLOR V. COLMAR S. S. CO., 35 F.1SUPP. 335.

SECTION 551 OF TITLE 28, U.S.C. PROVIDES THAT "EACH UNITED STATES MARSHAL SHALL COLLECT, AS FAR AS POSSIBLE, HIS LAWFUL FEES AND ACCOUNT FOR THE SAME AS PUBLIC MONEYS.' THUS, IT WOULD APPEAR, THERE BEING NO BASIS UPON WHICH A SEAMAN MAY RELY FOR THE UNITED STATES PAY TO PAY FEES OR COSTS, AS IN FEDERAL HABEAS CORPUS PROCEEDINGS DISCUSSED ABOVE, THAT THE MARSHAL IS REQUIRED TO COLLECT HIS EARNINGS AT THE CONCLUSION OF THE CASE.