A-42532, SEPTEMBER 6, 1932, 12 COMP. GEN. 331

A-42532: Sep 6, 1932

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WITNESSES - GOVERNMENT EMPLOYEES AN OFFICER ATTENDING AND TESTIFYING AS A WITNESS FOR THE GOVERNMENT IN DEFENSE OF A SUIT PENDING IN THE COURT OF CLAIMS DURING THE FISCAL YEAR 1932 IS ENTITLED TO ACTUAL EXPENSES ONLY UNDER SECTION 850. " THE APPROPRIATION TO WHICH THE VOUCHERS IN QUESTION WERE ORIGINALLY CHARGED. THE BASIS FOR THE FOREGOING ACTION BY THIS OFFICE WAS THAT LIEUTENANT CRANE'S ORDERS AUTHORIZED HIS TRAVEL TO WASHINGTON. AS THE TRAVEL WAS FOR THE PURPOSE OF TESTIFYING IN A CIVIL PROCEEDING. IT WAS CONCLUDED THAT REIMBURSEMENT WAS LIMITED TO AN ACTUAL EXPENSE BASIS UNDER SECTION 850. THAT SUCH EXPENSES WERE PROPERLY CHARGEABLE UNDER THE APPROPRIATION "FEES OF JURORS AND WITNESSES.

A-42532, SEPTEMBER 6, 1932, 12 COMP. GEN. 331

WITNESSES - GOVERNMENT EMPLOYEES AN OFFICER ATTENDING AND TESTIFYING AS A WITNESS FOR THE GOVERNMENT IN DEFENSE OF A SUIT PENDING IN THE COURT OF CLAIMS DURING THE FISCAL YEAR 1932 IS ENTITLED TO ACTUAL EXPENSES ONLY UNDER SECTION 850, REVISED STATUTES, WHICH EXPENSES MAY BE CHARGED UPON ADMINISTRATIVE RECOMMENDATION TO THE APPROPRIATION "DEFENDING SUITS IN CLAIMS AGAINST THE UNITED STATES, 1932," RATHER THAN TO THE APPROPRIATION,"FEES OF JURORS AND WITNESSES, UNITED STATES COURTS, 1932," BOTH APPROPRIATIONS BEING EQUALLY AVAILABLE UNDER THE CIRCUMSTANCES.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, SEPTEMBER 6, 1932:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF MAY 19, 1932, FILE JWG, REQUESTING REVIEW OF THE ACTION OF THIS OFFICE IN DIRECTING, BY NOTICE OF EXCEPTION DATED MAY 13, 1932, THAT THE SUM OF $64.78 REPRESENTING THE DIFFERENCE BETWEEN MILEAGE PAID TO LIEUT. CARL J. CRANE, UNITED STATES ARMY, BY DISBURSING CLERK R. D. ALLISON, ON VOUCHERS NOS. 10196 AND 12646 OF HIS SEPTEMBER AND OCTOBER, 1931, ACCOUNTS, AND THE AMOUNT ALLOWED AS ACTUAL EXPENSES ON A CLAIM SUBSEQUENTLY SUBMITTED, BE DEPOSITED TO THE CREDIT OF THE APPROPRIATION "FEES OF JURORS AND WITNESSES, UNITED STATES COURTS, 1932," RATHER THAN THE APPROPRIATION,"DEFENDING SUITS IN CLAIMS AGAINST THE UNITED STATES, 1932," THE APPROPRIATION TO WHICH THE VOUCHERS IN QUESTION WERE ORIGINALLY CHARGED.

WITH REFERENCE TO THE FOREGOING MATTER YOU STATE THAT FOR A NUMBER OF YEARS THE DEPARTMENT HAS HAD AN ANNUAL APPROPRIATION UNDER THE HEADING,"DEFENDING SUITS IN CLAIMS AGAINST THE UNITED TATES; " THAT THIS APPROPRIATION HAS BEEN CONSIDERED AS EXCLUSIVELY AVAILABLE FOR THE COMPENSATION AND EXPENSES OF WITNESSES IN SUITS IN THE COURT OF CLAIMS; AND THAT SECTION 850, REVISED STATUTES, CONTAINS NO REFERENCE TO THE APPROPRIATION TO BE CHARGED WITH THE EXPENSES AUTHORIZED UNDER THAT SECTION. FOR THESE REASONS YOU REQUEST REVIEW OF THE ABOVE ACTION IN ORDER THAT THE AMOUNT COLLECTED FROM LIEUTENANT CRANE MAY BE DEPOSITED TO THE CREDIT OF THE APPROPRIATION FOR DEFENDING SUITS IN CLAIMS AGAINST THE UNITED STATES.

THE BASIS FOR THE FOREGOING ACTION BY THIS OFFICE WAS THAT LIEUTENANT CRANE'S ORDERS AUTHORIZED HIS TRAVEL TO WASHINGTON, D.C., FOR THE PURPOSE OF GIVING TESTIMONY IN THE SUIT IN QUESTION AND UPON COMPLETION THEREOF TO RETURN TO HIS DUTY STATION. AS THE TRAVEL WAS FOR THE PURPOSE OF TESTIFYING IN A CIVIL PROCEEDING, IT WAS CONCLUDED THAT REIMBURSEMENT WAS LIMITED TO AN ACTUAL EXPENSE BASIS UNDER SECTION 850, REVISED STATUTES, AND THAT SUCH EXPENSES WERE PROPERLY CHARGEABLE UNDER THE APPROPRIATION "FEES OF JURORS AND WITNESSES, UNITED STATES COURTS, 1932," AND A TRANSFER OF APPROPRIATIONS WAS MADE COVERING THE AMOUNT SO PAID TO HIM.

THE APPROPRIATION "DEFENDING SUITS IN CLAIMS AGAINST THE UNITED STATES," ACT OF FEBRUARY 23, 1931, 46 STAT. 1322, AND THE APPROPRIATION "FEES OF JURORS AND WITNESSES, UNITED STATES COURTS," SAME STATUTE, 46 STAT. 1325, PROVIDE, RESPECTIVELY, AS FOLLOWS:

DEFENDING SUITS IN CLAIMS AGAINST THE UNITED STATES: FOR NECESSARY EXPENSES INCURRED IN THE EXAMINATION OF WITNESSES, PROCURING EVIDENCE, EMPLOYMENT OF EXPERTS AT SUCH RATES OF COMPENSATION AS MAY BE AUTHORIZED OR APPROVED BY THE ATTORNEY GENERAL, AND SUCH OTHER EXPENSES AS MAY BE NECESSARY IN DEFENDING SUITS IN THE COURT OF CLAIMS, INCLUDING INDIAN DEPREDATION CLAIMS, TO BE EXPENDED UNDER THE DIRECTION OF THE ATTORNEY GENERAL, $70,000.

FEES OF JURORS, AND WITNESSES, UNITED STATES COURTS: FOR MILEAGE AND PER DIEMS OF JURORS; FOR MILEAGE AND PER DIEMS OF WITNESSES AND FOR PER DIEMS IN LIEU OF SUBSISTENCE; AND FOR PAYMENT OF THE ACTUAL EXPENSES OF WITNESSES, AS PROVIDED BY SECTION 850, REVISED STATUTES (U.S.C., TITLE 28, SEC. 604), INCLUDING THE EXPENSES, MILEAGE AND PER DIEMS OF WITNESSES ON BEHALF OF THE GOVERNMENT BEFORE THE UNITED STATES CUSTOMS COURT, SUCH PAYMENTS TO BE MADE ON THE CERTIFICATION OF THE ATTORNEY FOR THE UNITED STATES AND TO BE CONCLUSIVE AS PROVIDED BY SECTION 846, REVISED STATUTES (U.S.C., TITLE 28, SEC. 577), $4,150,000: PROVIDED, THAT NOT TO EXCEED $10,000 OF THIS AMOUNT SHALL BE AVAILABLE FOR SUCH COMPENSATION AND EXPENSES OF WITNESSES OR INFORMANTS AS MAY BE AUTHORIZED OR APPROVED BY THE ATTORNEY GENERAL, WHICH APPROVAL SHALL BE CONCLUSIVE.

A REFERENCE TO HEARINGS BEFORE THE SUBCOMMITTEE OF THE HOUSE COMMITTEE ON APPROPRIATIONS FOR THE YEARS 1931, 1932, AND 1933 FAILS TO DISCLOSE ANY ESTIMATE IN THE APPROPRIATION FOR DEFENDING SUITS FOR FEES OR EXPENSES OF REGULAR WITNESSES, IT BEING STATED IN EACH INSTANCE THAT THIS APPROPRIATION WAS COMPOSED OF THREE ITEMS; THAT IS, COMPENSATION OF EXPERT WITNESSES, TRAVELING EXPENSES OF ATTORNEYS TAKING TESTIMONY BEFORE COMMISSIONERS, AND STENOGRAPHIC HIRE FOR REPORTING TESTIMONY. IN THE HEARINGS FOR 1931, HOWEVER, IT IS STATED THAT THE APPROPRIATION UNDER THIS DESIGNATION INCLUDED THE FEES OF WITNESSES, BOTH REGULAR AND EXPERT, IT BEING EXPLAINED AT THAT TIME THAT NO TESTIMONY IS TAKEN IN THE OPEN COURT BEFORE THE COURT OF CLAIMS, BUT ALL TESTIMONY IS TAKEN BEFORE COMMISSIONERS OR SOME OTHER DESIGNATED OFFICER QUALIFIED TO ADMINISTER OATHS, AND IS GENERALLY TAKEN AT OR NEAR THE PLACE OF RESIDENCE OF THE WITNESS.

SECTION 850, REVISED STATUTES (U.S.C., TITLE 28, SEC. 604), PROVIDES:

EXPENSES OF OFFICERS OF UNITED STATES AS WITNESSES: 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, PLACES A LIMITATION UPON THE PAYMENTS WHICH MAY BE MADE TO THE GOVERNMENT OFFICERS OR EMPLOYEES ACTING AS WITNESSES, BUT DOES NOT SPECIFY THE APPROPRIATION TO BE CHARGED THEREWITH. IT APPEARS FROM THE FOREGOING THAT THE TWO APPROPRIATIONS QUOTED ABOVE ARE EQUALLY AVAILABLE FOR THE FEES AND/OR EXPENSES OF WITNESSES TESTIFYING IN PROCEEDINGS BEFORE THE COURT OF CLAIMS, AND ACCORDINGLY THE ADMINISTRATIVE RECOMMENDATION WITH RESPECT TO THE APPROPRIATION TO BE CHARGED WILL BE FOLLOWED BY THIS OFFICE. 5 COMP. GEN. 479.

INSTRUCTIONS HAVE BEEN ISSUED FOR THE READJUSTMENT OF THE APPROPRIATIONS SO THAT THE AMOUNTS PAID TO LIEUTENANT CRANE WILL STAND AS A CHARGE AGAINST THE APPROPRIATION "DEFENDING SUITS IN CLAIMS AGAINST THE UNITED STATES," AND ANY AMOUNT RECOVERED FROM HIM MAY BE DEPOSITED TO THE CREDIT OF THAT APPROPRIATION.