A-41084, MARCH 10, 1932, 11 COMP. GEN. 338

A-41084: Mar 10, 1932

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

IS APPLICABLE TO SUCH EMPLOYEES WHETHER TESTIFYING AS FACT WITNESSES OR EXPERT WITNESSES. IT APPEARS THAT IT IS NOT NECESSARY. YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER THE COMPENSATION AND EXPENSES OF PART-TIME EMPLOYEES OF THE VETERANS' BUREAU WHO TESTIFY AS MEDICAL EXPERTS IN CASES TRIED IN THE UNITED STATES DISTRICT COURTS MAY PROPERLY OR LEGALLY BE PAID FROM THE APPROPRIATION "MISCELLANEOUS EXPENSES. " OR WHETHER THE APPROPRIATION UNDER THE CONTROL OF THE VETERANS' BUREAU IS THE MORE SPECIFIC AND AVAILABLE APPROPRIATION. TO BE PAID TO PART-TIME AND FEE-BASIS EMPLOYEES IN ADDITION TO THEIR REGULAR TRAVEL AND SUBSISTENCE ALLOWANCES WAS PLACED BY THE ACT WITHIN THE DISCRETION OF THE DIRECTOR OF THE VETERANS' BUREAU.

A-41084, MARCH 10, 1932, 11 COMP. GEN. 338

WITNESSES - EMPLOYEES OF VETERANS' ADMINISTRATION THE PROVISION IN SECTION 19 OF THE WORLD WAR VETERANS' ACT, AS AMENDED BY THE ACT OF JULY 3, 1930, 46 STAT. 992, AUTHORIZING AND LIMITING THE FEES WHICH MAY BE PAID TO PART-TIME AND FEE-BASIS EMPLOYEES OF THE VETERANS' ADMINISTRATION WHEN TESTIFYING AS WITNESSES IN GOVERNMENT INSURANCE CASES, IS APPLICABLE TO SUCH EMPLOYEES WHETHER TESTIFYING AS FACT WITNESSES OR EXPERT WITNESSES, THE FEES IN EITHER CASE BEING PAYABLE FROM THE APPROPRIATIONS OF THE VETERANS' ADMINISTRATION AND NOT FROM APPROPRIATION OF THE DEPARTMENT OF JUSTICE.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, MARCH 10, 1932:

THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 25, 1932, AS FOLLOWS:

IT OCCASIONALLY BECOMES NECESSARY FOR UNITED STATES ATTORNEYS IN THE VARIOUS JUDICIAL DISTRICTS TO SECURE THE ATTENDANCE OF SO-CALLED PART-TIME DOCTORS OF THE VETERANS-BUREAU TO QUALIFY AND TESTIFY AS MEDICAL EXPERTS FOR THE GOVERNMENT IN WAR RISK INSURANCE CASES, AND THE QUESTION ARISES WHETHER THE COMPENSATION AND EXPENSES OF SUCH EXPERTS CAN PROPERLY BE PAID FROM AN APPROPRIATION UNDER THE CONTROL OF THIS DEPARTMENT.

THE APPROPRIATION,"MISCELLANEOUS EXPENSES, UNITED STATES COURTS," 46 STAT. 1326, READ AS FOLLOWS:

"FOR SUCH MISCELLANEOUS EXPENSES AS MAY BE AUTHORIZED OR APPROVED BY THE ATTORNEY GENERAL FOR THE UNITED STATES COURTS AND THEIR OFFICERS, INCLUDING EXPERT AT SUCH RATES OF COMPENSATION AS MAY BE AUTHORIZED OR APPROVED BY THE ATTORNEY GENERAL, INCLUDING ALSO SO MUCH AS MAY BE NECESSARY IN THE DISCRETION OF THE ATTORNEY GENERAL FOR SUCH EXPENSES IN THE DISTRICT OF ALASKA AND IN COURTS OTHER THAN FEDERAL COURTS, AND INCLUDING TRAVELING EXPENSES PURSUANT TO THE SUBSISTENCE EXPENSE ACT OF 1926.'

SECTION 19 OF THE WORLD WAR VETERANS' ACT, AS AMENDED BY THE ACT OF JULY 3, 1930, 38 U.S.C., SEC. 422, SUPP., CONTAINS THE FOLLOWING PROVISION:

"PART-TIME AND FEE-BASIS EMPLOYEES OF THE BUREAU, IN ADDITION TO THEIR REGULAR TRAVEL AND SUBSISTENCE ALLOWANCE, WHEN ORDERED IN WRITING BY THE DIRECTOR TO APPEAR AS WITNESSES IN SUITS UNDER THIS SECTION, MAY BE ALLOWED, WITHIN THE DISCRETION AND UNDER WRITTEN ORDERS OF THE DIRECTOR, A FEE IN AN AMOUNT NOT TO EXCEED $20 PER DAY.'

IT WOULD APPEAR THAT TWO APPROPRIATIONS, UNDER SEPARATE GOVERNMENT AGENCIES, SHOULD NOT BE REGARDED AS AVAILABLE FOR THE PAYMENT OF COMPENSATION AND EXPENSES OF THE SAME CHARACTER, BECAUSE OF THE DANGER OF THE PAYMENT OF DOUBLE COMPENSATION FROM DIFFERENT SOURCES FOR THE SAME SERVICE. WE DO NOT ASSUME THAT SUCH PART-TIME EMPLOYEES MAY PROPERLY BE PAID COMPENSATION BOTH BY THIS DEPARTMENT AND BY THE VETERANS' BUREAU FOR THE SAME SERVICE. IT APPEARS THAT IT IS NOT NECESSARY, UNDER THE VETERANS' ACT, SUPRA, THAT SUCH PART-TIME AND FEE BASIS EMPLOYEES TESTIFY AS EXPERTS, BUT THEY MAY RECEIVE THE AMOUNT SPECIFIED EVEN THOUGH THEY TESTIFY AS FACT WITNESSES ONLY.

IN VIEW OF THE FOREGOING, YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER THE COMPENSATION AND EXPENSES OF PART-TIME EMPLOYEES OF THE VETERANS' BUREAU WHO TESTIFY AS MEDICAL EXPERTS IN CASES TRIED IN THE UNITED STATES DISTRICT COURTS MAY PROPERLY OR LEGALLY BE PAID FROM THE APPROPRIATION "MISCELLANEOUS EXPENSES, U.S. COURTS," OR WHETHER THE APPROPRIATION UNDER THE CONTROL OF THE VETERANS' BUREAU IS THE MORE SPECIFIC AND AVAILABLE APPROPRIATION.

THE FIXING OF THE AMOUNT OF THE FEE OF NOT TO EXCEED $20 PER DAY AUTHORIZED BY THE ACT OF JULY 3, 1930, SUPRA, TO BE PAID TO PART-TIME AND FEE-BASIS EMPLOYEES IN ADDITION TO THEIR REGULAR TRAVEL AND SUBSISTENCE ALLOWANCES WAS PLACED BY THE ACT WITHIN THE DISCRETION OF THE DIRECTOR OF THE VETERANS' BUREAU, NOT A PART OF THE VETERANS' ADMINISTRATION. THE PROVISION DOES NOT MAKE ANY DISTINCTION BETWEEN EMPLOYEES DIRECTED TO APPEAR AS FACT WITNESSES AND THOSE DIRECTED TO APPEAR AS EXPERT WITNESSES, AND THEREFORE, MUST BE HELD TO INCLUDE BOTH CLASSES. THE FEES SO FIXED ARE NECESSARILY CHARGEABLE TO THE APPROPRIATION OF THE VETERANS' ADMINISTRATION. ACCORDINGLY, THE SPECIFIC PROVISION IN THE WORLD WAR VETERANS' ACT, AS AMENDED, MAKES TO APPROPRIATION OF THE VETERANS' ADMINISTRATION EXCLUSIVELY AVAILABLE FOR THE FEES OF ALL PART-TIME AND FEE -BASIS EMPLOYEES OF THAT SERVICE WHEN APPEARING AS WITNESSES IN GOVERNMENT INSURANCE CASES, AND THEY MAY NOT BE PAID ANY FEE UNDER APPROPRIATIONS UNDER YOUR JURISDICTION WHICH MIGHT OTHERWISE BE AVAILABLE FOR COMPENSATION OF EXPERT WITNESSES. SEE IN THIS CONNECTION DECISION OF JANUARY 7, 1932, A 36931, 11 COMP. GEN. 260.