B-119943, DECEMBER 29, 1954, 34 COMP. GEN. 307

B-119943, DECEMBER 29, 1954, 34 COMP. GEN. 307

MILEAGE - WITNESSES - REIMBURSEMENT BASIS THE MILEAGE ALLOWANCE PAYABLE UNDER 28 U.S.C. CODE 1821 FOR TRAVEL PERFORMED BY WITNESSES ATTENDING UNITED STATES COURTS IS REQUIRED TO BE COMPUTED ACCORDING TO THE TRANSPORTATION FACILITY ACTUALLY USED ON THE BASIS OF "A USUALLY TRAVELED ROUTE.'

ACTING COMPTROLLER GENERAL WEITZEL TO THE ATTORNEY GENERAL, DECEMBER 29, 1954:

REFERENCE IS MADE TO LETTER FROM THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL DATED MAY 3, 1954, REQUESTING A DECISION WHETHER, UNDER SECTION 1821, TITLE 28, U.S.C. IT WOULD BE PERMISSIBLE TO INSTRUCT ALL MARSHALS TO USE ONLY ONE BASIS FOR COMPUTING MILEAGE ALLOWANCES FOR WITNESSES ATTENDING IN ANY COURT OF THE UNITED STATES, REGARDLESS OF THE MODE OF TRANSPORTATION USED. SPECIFICALLY, THE QUESTION IS WHETHER, FOR PURPOSES OF ADMINISTERING THE MILEAGE PROVISIONS OF THE CITED CODE, THE MARSHALS MAY "USE THE RAND-MCNALLY PUBLICATIONS AS THE ONE AND ONLY SOURCE OF MILEAGE INFORMATION"--- IT BEING POINTED OUT THAT THE PRESENT METHOD EMPLOYED RESULTS IN DIFFERENT MILEAGE ALLOWANCES FROM A GIVEN POINT DEPENDING UPON THE TYPE OF TRANSPORTATION FACILITY USED.

SECTION 1821, TITLE 28, U.S.C. PROVIDES IN MATERIAL PART, AS FOLLOWS:

A WITNESS ATTENDING IN ANY COURT OF THE UNITED STATES OR BEFORE A UNITED STATES COMMISSIONER OR PERSON TAKING HIS DEPOSITION PURSUANT TO ANY ORDER OF A COURT OF THE UNITED STATES SHALL RECEIVE * * * 7 CENTS PER MILE FOR GOING FROM AND RETURNING TO HIS PLACE OF RESIDENCE * * * PROVIDED, THAT IN LIEU OF THE MILEAGE ALLOWANCE PROVIDED FOR HEREIN, WITNESSES WHO ARE REQUIRED TO TRAVEL BETWEEN THE TERRITORIES, POSSESSIONS, OR TO AND FROM THE CONTINENTAL UNITED STATES, SHALL BE ENTITLED TO THE ACTUAL EXPENSES OF TRAVEL AT THE LOWEST FIRST-CLASS RATE AVAILABLE AT THE TIME OF RESERVATION FOR PASSAGE, BY MEANS OF TRANSPORTATION EMPLOYED: PROVIDED FURTHER, THAT THIS SECTION SHALL NOT APPLY TO ALASKA.

THE LETTER STATES THAT THE UNITED STATES MARSHALS ARE HAVING INCREASING DIFFICULTY IN DETERMINING THE MILEAGE DUE FOR TRAVEL OF WITNESSES BECAUSE OF THE DIVERSE METHODS OF TRANSPORTATION NOW AVAILABLE, AND THAT THE PRESENT PRACTICE IS TO DETERMINE THE MILEAGE ACCORDING TO THE TRANSPORTATION FACILITY ACTUALLY USED. IT IS POINTED OUT THAT IN MANY CASES OF TRAVEL BY AIR THE MILEAGE ALLOWED IS LESS THAN THE AMOUNT EXPENDED BY THE WITNESS FOR HIS TICKET. MOREOVER, WHERE THERE ARE TWO OR MORE COMPETING LINES BETWEEN THE SAME POINTS, THE MARSHAL APPLIES THE SHORTEST ROUTE IN COMPUTING THE MILEAGE NOTWITHSTANDING THE FACT THAT THE ACTUAL TRAVEL WAS MADE BY THE LONGER ROUTE. THE ADMINISTRATIVE ASSISTANT'S LETTER STATES THAT THE ADOPTION OF "A FLEXIBLE SINGLE METHOD, REGARDLESS OF MODE OF TRANSPORTATION, WOULD FACILITATE PAYMENTS AND AVOID BAD FEELING WITH LITTLE OR NO ADDITIONAL COST.'

THE MILEAGE ALLOWED BY THE STATUTE IS A COMMUTATION OF ACTUAL TRAVEL EXPENSES. IN APPLYING THE STATUTE AND SIMILAR LAWS THE MILEAGE BY THE MODE OF TRANSPORTATION USED CONSISTENTLY HAS SERVED AS THE MEASURE OF REIMBURSEMENT. HOWEVER, THE ACCOUNTING OFFICERS HERETOFORE HAVE TAKEN THE VIEW THAT THE STATUTE REQUIRES USE OF THE "SHORTEST" USUALLY TRAVELED ROUTE IN COMPUTING THE MILEAGE ALLOWABLE. THE COURT CASES INDICATE THAT USE OF THE "USUALLY TRAVELED ROUTE" IS PROPER. SEE 15 COMP. GEN. 796, 798; ID. 570, 572; 11 COMP. GEN. 60; A-37626, AUGUST 8, 1931; JAKUTIS V. ILLINOIS CENT. R. CO., 157 N.W. 896; FERGUSON AND MCDARIS LUMBER CO. V. JOHN TIEDE AND CO., 109 S.W. 850; HUNTER V. RUSSELL, 69 F. 964, 967.

THE HOUSE COMMITTEE REPORT ON PUBLIC LAW 59, APPROVED MAY 10, 1949, 63 STAT. 65, WHICH LAW INCREASED THE ALLOWANCE FROM FIVE TO SEVEN CENTS PER MILE, STATES THAT IT IS UNREASONABLE TO REQUIRE WITNESSES TO ATTEND COURT AT A PERSONAL FINANCIAL LOSS. IT WAS RECOGNIZED THEREIN, HOWEVER, THAT IN SOME CASES THE WITNESSES WOULD NOT BE FAIRLY COMPENSATED BY THE AMENDMENT FOR THEIR TIME AND EXPENSES. TO THE SAME GENERAL EFFECT, SEE THE SENATE REPORT ON THE SAME LAW.

WHILE FOR ADMINISTRATIVE CONVENIENCE USE OF SINGLE MILEAGE BASE DOUBTLESS WOULD BE PREFERABLE, NO FIRM BASIS HAS BEEN SUGGESTED FOR A DEVIATION AT THIS TIME FROM THE RULE THAT THE MILEAGE UNDER THE STATUTE IS FOR DETERMINATION UPON THE BASIS OF THE MODE OF TRANSPORTATION ACTUALLY UTILIZED. THE ADMINISTRATIVE ASSISTANT'S LETTER MAKES MENTION OF THE ARMY OFFICIAL TABLE OF DISTANCES. IT IS WORTHY OF NOTE THAT THE MILEAGE TABLE FOR MILITARY PERSONNEL IS AUTHORIZED BY STATUTE. SEE SECTION 303, ACT OF OCTOBER 12, 1949, 63 STAT. 813. ACCORDINGLY, YOUR SPECIFIC QUESTION IS ANSWERED IN THE NEGATIVE.

I AM OF THE VIEW THAT THE EARLIER POSITION OF THE ACCOUNTING OFFICERS CONCERNING THE "SHORTEST USUALLY TRAVELED ROUTE" IS NOT REQUIRED AND NO LONGER SHOULD BE FOLLOWED. PAYMENTS MADE HEREAFTER ARE TO BE PROCESSED ON THE BASIS OF MILEAGE COMPUTED BY A "USUALLY TRAVELED ROUTE," SO THAT, FOR EXAMPLE, WHERE ONE OF TWO COMPETING AIRLINES IS USED, THE AIR MILEAGE FOR THE LINE ACTUALLY TRAVELED MAY BE ALLOWED NOTWITHSTANDING THE EXISTENCE OF A SHORTER MILEAGE ON THE COMPETING AIRLINE.