A-38406, OCTOBER 21, 1931, 11 COMP. GEN. 142

A-38406: Oct 21, 1931

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WITNESSES - GOVERNMENT EMPLOYEES SUBSISTENCE EXPENSES OF GOVERNMENT EMPLOYEES SENT AWAY FROM THEIR DUTY STATIONS AS WITNESSES FOR THE GOVERNMENT IN MATTERS WHICH CONSTITUTE A PART OF THE OFFICIAL DUTIES FOR WHICH THEY WERE EMPLOYED ARE NOT GOVERNED BY SECTION 850. SUBSISTENCE EXPENSES OF GOVERNMENT EMPLOYEES WHOSE TESTIMONY DOES NOT CONSTITUTE A PART OF THEIR OFFICIAL DUTIES ARE GOVERNED BY SECTION 850. ARE PAYABLE FROM THE APPROPRIATION "FEES OF WITNESSES. ARE RESTRICTED TO REIMBURSEMENT OF THE ACTUAL AND NECESSARY EXPENSES STATED IN ITEMS AND SWORN TO. AS FOLLOWS: YOUR DECISION IS RESPECTFULLY REQUESTED (A) WHETHER UNDER THE STATUTES AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS THIS DEPARTMENT MAY PROPERLY PRESCRIBE A MILEAGE ALLOWANCE OF 7 CENTS PER MILE.

A-38406, OCTOBER 21, 1931, 11 COMP. GEN. 142

WITNESSES - GOVERNMENT EMPLOYEES SUBSISTENCE EXPENSES OF GOVERNMENT EMPLOYEES SENT AWAY FROM THEIR DUTY STATIONS AS WITNESSES FOR THE GOVERNMENT IN MATTERS WHICH CONSTITUTE A PART OF THE OFFICIAL DUTIES FOR WHICH THEY WERE EMPLOYED ARE NOT GOVERNED BY SECTION 850, REVISED STATUTES, AND THE HEADS OF THE DEPARTMENTS OR ESTABLISHMENTS IN WHICH EMPLOYED MAY AUTHORIZE PER DIEMS IN LIEU OF SUBSISTENCE, AND/OR MILEAGE RATES FOR THE USE OF THE EMPLOYEE'S AUTOMOBILE, TO THE EXTENT PERMITTED BY THE SUBSISTENCE EXPENSE ACT OF 1926, 44 STAT. 688, THE MILEAGE ACT OF FEBRUARY 14, 1931, 46 STAT. 1103, AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. SUBSISTENCE EXPENSES OF GOVERNMENT EMPLOYEES WHOSE TESTIMONY DOES NOT CONSTITUTE A PART OF THEIR OFFICIAL DUTIES ARE GOVERNED BY SECTION 850, REVISED STATUTES, AND ARE PAYABLE FROM THE APPROPRIATION "FEES OF WITNESSES, UNITED STATES COURTS.' SUCH WITNESSES MAY NOT BE PAID PER DIEMS IN LIEU OF SUBSISTENCE NOR MILEAGE FOR THE USE OF THEIR PRIVATELY OWNED AUTOMOBILES, BUT ARE RESTRICTED TO REIMBURSEMENT OF THE ACTUAL AND NECESSARY EXPENSES STATED IN ITEMS AND SWORN TO.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, OCTOBER 21, 1931:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF AUGUST 31, 1931, AS FOLLOWS:

YOUR DECISION IS RESPECTFULLY REQUESTED (A) WHETHER UNDER THE STATUTES AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS THIS DEPARTMENT MAY PROPERLY PRESCRIBE A MILEAGE ALLOWANCE OF 7 CENTS PER MILE, SUBJECT, OF COURSE, TO THE LIMITATIONS OF THE TRAVEL REGULATIONS, FOR TRAVEL TO BE MADE BY GOVERNMENT EMPLOYEES, IN THEIR PERSONALLY OWNED AUTOMOBILES, TO ATTEND FEDERAL COURT AS WITNESSES FOR THE GOVERNMENT AND (B) WHETHER, UNDER THE PROVISIONS OF SECTION 6 OF THE SUBSISTENCE ACT OF 1926 (44 STAT. 688), THE DEPARTMENT MAY PROPERLY PRESCRIBE A PER DIEM IN LIEU OF SUBSISTENCE TO GOVERNMENT EMPLOYEES IN CONNECTION WITH THEIR ATTENDANCE ON COURT AS WITNESSES FOR THE GOVERNMENT. SEE SECTION 9 OF THE SUBSISTENCE ACT AND SECTION 850, R.S.

SECTION 850, REVISED STATUTES, PROVIDES:

WHEN ANY CLERK OR OTHER OFFICER OF THE UNITED STATES IS SENT AWAY FROM HIS PLACE OF BUSINESS AS A WITNESS FOR THE GOVERNMENT, HIS NECESSARY EXPENSES, STATED IN ITEMS AND SWORN TO, IN GOING, RETURNING, AND ATTENDANCE ON THE COURT, SHALL BE AUDITED AND PAID; BUT NO MILEAGE, OR OTHER COMPENSATION IN ADDITION TO HIS SALARY, SHALL IN ANY CASE BE ALLOWED.

SECTION 850, REVISED STATUTES, MAY BE CONSIDERED IN CONNECTION WITH SECTION 848, REVISED STATUTES, WHICH PRESCRIBES A FEE OF $1.50 PER DAY WHILE IN ATTENDANCE BEFORE THE COURT AND MILEAGE OF 5 CENTS PER MILE FOR THE DISTANCE IN GOING TO AND RETURNING FROM THE COURT TO BE PAID WITNESSES WHO WERE NOT GOVERNMENT EMPLOYEES. THIS SECTION WAS SUPERSEDED BY SECTION 3 OF THE ACT OF APRIL 26, 1926, 44 STAT. 324, WHICH PROVIDES:

WITNESSES ATTENDING IN SUCH COURTS, OR BEFORE SUCH COMMISSIONERS, SHALL RECEIVE FOR EACH DAY'S ATTENDANCE AND FOR THE TIME NECESSARILY OCCUPIED IN GOING TO AND RETURNING FROM THE SAME $2, AND 5 CENTS PER MILE FOR GOING FROM HIS OR HER PLACE OF RESIDENCE TO THE PLACE OF TRIAL OR HEARING AND 5 CENTS PER MILE FOR RETURNING: AND PROVIDED FURTHER, THAT WITNESSES (OTHER THAN WITNESSES WHO ARE SALARIED EMPLOYEES OF THE GOVERNMENT AND DETAINED WITNESSES) IN THE UNITED STATES COURTS, INCLUDING THE DISTRICT COURT OF HAWAII, THE DISTRICT COURT OF PORTO RICO, AND THE SUPREME COURT OF THE DISTRICT OF COLUMBIA, WHO ATTEND COURT OR ATTEND BEFORE UNITED STATES COMMISSIONERS, AT POINTS SO FAR REMOVED FROM THEIR RESPECTIVE RESIDENCES AS TO PROHIBIT RETURN THERETO FROM DAY TO DAY, SHALL, WHEN THIS FACT IS CERTIFIED TO IN THE ORDER OF THE COURT OR THE COMMISSIONER FOR PAYMENT, BE ENTITLED, IN ADDITION TO THE COMPENSATION PROVIDED BY EXISTING LAW, AS MODIFIED BY THIS ACT, TO A PER DIEM OF $3 FOR EXPENSES OF SUBSISTENCE FOR EACH DAY OF ACTUAL ATTENDANCE AND FOR EACH DAY NECESSARILY OCCUPIED IN TRAVELING TO ATTEND COURT AND RETURN HOME.

IT WILL BE NOTED THAT WHILE THE ACT OF APRIL 26, 1926, SUPRA, ENLARGED THE COMPENSATION WHICH MIGHT BE PAID WITNESSES, OTHER THAN SALARIED GOVERNMENT EMPLOYEES, AND ALSO PROVIDED FOR A PER DIEM IN LIEU OF SUBSISTENCE UNDER CERTAIN CIRCUMSTANCES, IT MADE NO CHANGE IN THE PROVISIONS OF SECTION 850, REVISED STATUTES.

THERE HAS BEEN MADE FOR YEARS A DISTINCTION BETWEEN (1) GOVERNMENT OFFICERS OR EMPLOYEES WHO APPEARED AS WITNESSES IN MATTERS WHICH CONSTITUTED A PART OF THE OFFICIAL DUTIES FOR WHICH THEY WERE EMPLOYED, AND (2) THOSE GOVERNMENT EMPLOYEES WHOSE TESTIMONY DID NOT CONSTITUTE A PART OF THEIR OFFICIAL DUTIES. IT HAS BEEN REPEATEDLY HELD THAT THE EXPENSES OF THE FIRST CLASS OF WITNESSES WERE NOT GOVERNED BY SECTION 850, REVISED STATUTES, BUY BY THE LAWS AND REGULATIONS APPLICABLE TO THE SERVICE IN WHICH EMPLOYED AND WERE PAYABLE FROM THE APPROPRIATIONS FOR THAT SERVICE. 7 COMP. DEC. 293; 27 ID 199; ID. 1039; 2 COMP. GEN. 629; ID. 801; 4 ID. 1070. AS TO THIS CLASS OF EMPLOYEES THE HEADS OF THE DEPARTMENTS OR SERVICES IN WHICH EMPLOYED MAY PRESCRIBE A PER DIEM IN LIEU OF SUBSISTENCE OR AUTHORIZE THE USE OF THEIR PRIVATELY OWNED AUTOMOBILES AT MILEAGE RATES TO THE EXTENT PERMITTED BY THE SUBSISTENCE ACT OF 1926, 44 STAT. 688, AND THE MILEAGE ACT OF FEBRUARY 14, 1931, 46 STAT. 1103, AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.

WITH RESPECT TO THE SECOND CLASS OF EMPLOYEES, THAT IS, EMPLOYEES WHOSE TESTIMONY DOES NOT CONSTITUTE A PART OF THEIR OFFICIAL DUTIES, THEIR EXPENSES ARE GOVERNED BY SECTION 850, REVISED STATUTES, AND ARE PAYABLE UNDER THE JUDICIAL APPROPRIATION "FEES OF WITNESSES, UNITED STATES COURTS.' OBVIOUSLY, IN SUCH CASES, THE HEADS OF THE DEPARTMENTS OR SERVICES IN WHICH SUCH PERSONS ARE EMPLOYED WOULD HAVE NO JURISDICTION TO PRESCRIBE THE RATE OR MANNER OF FEES PAYABLE UNDER THE JUDICIAL APPROPRIATION. IT ALSO FOLLOWS THAT AS SUCH WITNESSES ARE NOT EMPLOYEES OF THE DEPARTMENT OF JUSTICE THE PROVISIONS OF THE SUBSISTENCE ACT OF 1926 OR OF THE MILEAGE ACT OF FEBRUARY 14, 1931, WHICH CONTEMPLATE ADVANCE AUTHORITY BY THE HEADS OF THE DEPARTMENTS OR SERVICES IN WHICH THE TRAVELER IN REGULARLY EMPLOYED COULD HAVE NO APPLICATION TO TRAVEL EXPENSES PAYABLE UNDER AN APPROPRIATION UNDER YOUR ADMINISTRATIVE CONTROL.

YOUR QUESTIONS (A) AND (B) MUST, THEREFORE, BE ANSWERED IN THE NEGATIVE.