B-109489, JULY 23, 1952, 32 COMP. GEN. 44

B-109489: Jul 23, 1952

Additional Materials:

Contact:

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

 

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

SUBSISTENCE - WITNESSES - DISTANCE REQUIREMENT - ADMINISTRATIVE HEARINGS THE PER DIEM ALLOWANCE FOR SUBSISTENCE AUTHORIZED UNDER 28 U.S.C. 1821 FOR WITNESSES ATTENDING A HEARING IS PAYABLE ONLY WHEN THE PLACE OF THE HEARING IS "SO FAR REMOVED" FROM THE WITNESS' RESIDENCE AS TO PROHIBIT RETURN THERETO FROM DAY TO DAY. WAS FORCED TO REMAIN OVERNIGHT AT THE PLACE OF A HEARING WHICH IS TEN MILES FROM HIS RESIDENCE IS NOT ENTITLED TO A PER DIEM ALLOWANCE FOR SUBSISTENCE. WHILE THE WITNESS WAS DISMISSED FROM FURTHER ATTENDANCE AT 2 P.M. IT IS STATED THAT HE REMAINED OVERNIGHT AT HIS FATHER-IN -LAW'S HOME. WHICH ALLOWANCE WAS ADMINISTRATIVELY DENIED. IS REFERRED HERE FOR CONSIDERATION AND DECISION.

B-109489, JULY 23, 1952, 32 COMP. GEN. 44

SUBSISTENCE - WITNESSES - DISTANCE REQUIREMENT - ADMINISTRATIVE HEARINGS THE PER DIEM ALLOWANCE FOR SUBSISTENCE AUTHORIZED UNDER 28 U.S.C. 1821 FOR WITNESSES ATTENDING A HEARING IS PAYABLE ONLY WHEN THE PLACE OF THE HEARING IS "SO FAR REMOVED" FROM THE WITNESS' RESIDENCE AS TO PROHIBIT RETURN THERETO FROM DAY TO DAY, AND THEREFORE, A WITNESS WHO, DUE TO HEAVY SNOW AND BAD ROAD CONDITIONS, WAS FORCED TO REMAIN OVERNIGHT AT THE PLACE OF A HEARING WHICH IS TEN MILES FROM HIS RESIDENCE IS NOT ENTITLED TO A PER DIEM ALLOWANCE FOR SUBSISTENCE.

ACTING COMPTROLLER GENERAL YATES TO ERVIN J. STETINA, DEPARTMENT OF COMMERCE, JULY 23, 1952:

BY LETTER OF MAY 5, 1952, THE CHIEF, ACCOUNTING DIVISION, CIVIL AERONAUTICS ADMINISTRATION, FORWARDED HERE YOUR REQUEST OF APRIL 29, 1952, FOR A DECISION OF THIS OFFICE AS TO THE PROPRIETY OF CERTIFYING AN ENCLOSED VOUCHER FOR THE PAYMENT OF A SUBSISTENCE ALLOWANCE, IN THE SUM OF $10, TO RALEIGH ADAMS, A WITNESS AT A CIVIL AERONAUTICS ADMINISTRATION HEARING AT MOUNT AYR, IOWA.

IN RESPONSE TO A SUBPOENA OF THE CIVIL AERONAUTICS ADMINISTRATION, MR. ADAMS, ON MARCH 7, 1952, TRAVELED BY AUTOMOBILE FROM DIAGONAL, IOWA, HIS HOME, TO MOUNT AYR, IOWA, TO TESTIFY AT THE HEARING CONDUCTED THAT DAY AT THE LATTER POINT--- THE DISTANCE BETWEEN THE POINTS OF TRAVEL BEING TEN MILES. WHILE THE WITNESS WAS DISMISSED FROM FURTHER ATTENDANCE AT 2 P.M. ON MARCH 7, 1952, IT IS STATED THAT HE REMAINED OVERNIGHT AT HIS FATHER-IN -LAW'S HOME, BEING UNABLE, BECAUSE OF THE HEAVY SNOW ON MARCH 7 AND THE CONDITION OF THE ROADS, TO RETURN TO HIS HOME UNTIL THE FOLLOWING DAY, MARCH 8, 1952. IN VIEW OF THE DELAY IN RETURNING HOME, THE WITNESS CLAIMED A SUBSISTENCE ALLOWANCE OF $10, IN ADDITION TO OTHER FEES, WHICH ALLOWANCE WAS ADMINISTRATIVELY DENIED. THE WITNESS HAVING SUBMITTED A RECLAIM FOR THE ALLOWANCE DENIED HIM, THE QUESTION OF HIS ENTITLEMENT THERETO, UNDER THE PROVISIONS OF SECTION 1821 OF TITLE 28, U.S.C. IS REFERRED HERE FOR CONSIDERATION AND DECISION.

SECTION 1821, APPLICABLE TO WITNESSES SUMMONED TO AND ATTENDING HEARINGS OF THE CIVIL AERONAUTICS ADMINISTRATION, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

* * * 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 $5 PER DAY FOR EXPENSES OF SUBSISTENCE INCLUDING THE TIME NECESSARILY OCCUPIED IN GOING TO AND RETURNING FROM THE PLACE OF ATTENDANCE: * * *

IT IS TO BE NOTED THAT SECTION 1821 PROVIDES FOR THE PAYMENT OF $5 PER DAY FOR "EXPENSES OF SUBSISTENCE," INCLUDING THE TIME NECESSARILY OCCUPIED IN GOING TO AND RETURNING FROM THE PLACE OF ATTENDANCE, ONLY IN THE EVENT THAT THE PLACE OF HEARING IS "SO FAR REMOVED" FROM THE WITNESS' RESIDENCE AS TO PROHIBIT RETURN THERETO FROM DAY TO DAY. WHILE IT IS RECOGNIZED THAT THE CONDITION AS TO DISTANCE, OF NECESSITY, OR BY DESIGN, IS NOT PRECISE, IT WOULD BE AN UNWARRANTED EXTENSION OF THE TERMS OF THE SECTION TO HOLD IN THE PRESENT CASE THAT THE PRESCRIBED CONDITIONS HAVE BEEN MET SO AS TO ENTITLE THE WITNESS TO THE SUBSISTENCE ALLOWANCE AUTHORIZED BY THE SECTION.

IN VIEW OF THE FOREGOING, YOU ARE ADVISED THAT THE VOUCHER SUBMITTED, WHICH IS RETURNED HEREWITH TOGETHER WITH THE PAPERS ATTACHED, MAY NOT FBE CERTIFIED FOR PAYMENT.