B-152176, AUG. 20, 1963, 43 COMP. GEN. 171

B-152176: Aug 20, 1963

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WHEN A SUBPOENA IS SERVED ON A GOVERNMENT AGENCY OR OFFICIAL OF A GOVERNMENT AGENCY FOR PRODUCTION OF RECORDS. WHEN AN EMPLOYEE IS SUBPOENAED SOLELY BECAUSE OF AND TO TESTIFY IN HIS OFFICIAL CAPACITY OR TO PRODUCE OFFICIAL RECORDS. IS THERE ANY DISTINCTION IN THIS RESPECT BETWEEN AN EMPLOYEE SUBPOENAED IN A SUIT IN A STATE COURT AND AN EMPLOYEE SUBPOENAED AT THE INSTANCE OF A PRIVATE PARTY IN A FEDERAL COURT? THE ABOVE QUESTIONS WERE PRESENTED INCIDENT TO A REQUEST RECEIVED BY THE CIVIL SERVICE COMMISSION FROM THE DEPARTMENT OF COMMERCE TO CONSIDER INITIATING REMEDIAL LEGISLATION TO CORRECT THE ALLEGED INJUSTICE CAUSED BY RULINGS THAT A GOVERNMENT EMPLOYEE SUBPOENAED TO APPEAR IN A STATE COURT IN PRIVATE LITIGATION.

B-152176, AUG. 20, 1963, 43 COMP. GEN. 171

TRAVEL EXPENSES - WITNESSES - PRIVATE LITIGATION, ETC. TRAVEL BY EMPLOYEES TO TAKE GOVERNMENT RECORDS TO A COURT OR TO APPEAR AS WITNESSES IN AN OFFICIAL CAPACITY IN RESPONSE TO SUBPOENAS ISSUED BY EITHER STATE OR FEDERAL COURTS INCIDENT TO PRIVATE LITIGATION MAY NOT BE CONSIDERED TRAVEL IN THE PERFORMANCE OF OFFICIAL BUSINESS WITHIN THE MEANING OF THE TRAVEL EXPENSE ACT OF 1949, 5 U.S.C. 835, ET SEQ., AND, THEREFORE, APPROPRIATED FUNDS MAY NOT BE USED TO PAY THE EXPENSES OF THE EMPLOYEES FOR SUCH TRAVEL.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, AUGUST 20, 1963:

IN YOUR LETTER OF JULY 31, 1963, YOU REQUESTED OUR CONSIDERATION OF THE APPLICABILITY OF THE TRAVEL EXPENSE ACT OF 1949, CH. 185, APPROVED JUNE 9, 1949, 63 STAT. 166, AS AMENDED, 5 U.S.C. 835 NOTE, FOR TRAVEL EXPENSE OF EMPLOYEES SUMMONED AS WITNESSES ON BEHALF OF PRIVATE LITIGANTS IN CASESNOT INVOLVING THE UNITED STATES, AND SUBMITTED THE FOLLOWING QUESTIONS FOR DECISION:

1. WHEN A SUBPOENA IS SERVED ON A GOVERNMENT AGENCY OR OFFICIAL OF A GOVERNMENT AGENCY FOR PRODUCTION OF RECORDS, AND THE AGENCY ASSIGNS AN EMPLOYEE TO TAKE THE RECORDS TO COURT, MAY THE AGENCY PAY TRAVEL EXPENSES UNDER THE TRAVEL EXPENSE ACT OF 1949, AS AMENDED, AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS?

2. WHEN AN EMPLOYEE IS SUBPOENAED SOLELY BECAUSE OF AND TO TESTIFY IN HIS OFFICIAL CAPACITY OR TO PRODUCE OFFICIAL RECORDS, MAY THE AGENCY PAY TRAVEL EXPENSES UNDER THE TRAVEL EXPENSE ACT OF 1949, AS AMENDED, AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS?

3. IS THERE ANY DISTINCTION IN THIS RESPECT BETWEEN AN EMPLOYEE SUBPOENAED IN A SUIT IN A STATE COURT AND AN EMPLOYEE SUBPOENAED AT THE INSTANCE OF A PRIVATE PARTY IN A FEDERAL COURT?

THE ABOVE QUESTIONS WERE PRESENTED INCIDENT TO A REQUEST RECEIVED BY THE CIVIL SERVICE COMMISSION FROM THE DEPARTMENT OF COMMERCE TO CONSIDER INITIATING REMEDIAL LEGISLATION TO CORRECT THE ALLEGED INJUSTICE CAUSED BY RULINGS THAT A GOVERNMENT EMPLOYEE SUBPOENAED TO APPEAR IN A STATE COURT IN PRIVATE LITIGATION, TO TESTIFY IN HIS OFFICIAL CAPACITY OR TO PRODUCE OFFICIAL RECORDS, CANNOT BE PAID HIS TRAVELING EXPENSES. YOU STATE THAT BEFORE ACTING ON THE REQUEST, YOU WOULD LIKE TO BE SURE TO WHAT EXTENT LEGISLATION IS NECESSARY.

THE DECISIONS REFERRED TO IN YOUR LETTER WHICH PROMPTED THE REQUEST OF THE DEPARTMENT OF COMMERCE FOR REMEDIAL LEGISLATION ARE 29 COMP. GEN. 195 AND UNPUBLISHED DECISION OF SEPTEMBER 13, 1951, B-103834. IT WAS HELD IN 29 COMP. GEN. 195, THAT A GOVERNMENT EMPLOYEE SUBPOENAED TO APPEAR IN A STATE COURT IN PRIVATE LITIGATION, TO TESTIFY IN HIS OFFICIAL CAPACITY AND TO PRODUCE OFFICIAL RECORDS, COULD NOT BE REGARDED AS APPEARING ON BEHALF OF THE UNITED STATES, AND, THEREFORE, THE TRAVELING EXPENSES INCIDENT TO SUCH APPEARANCE WERE NOT REIMBURSABLE FROM APPROPRIATED FUNDS. LIKEWISE, IT WAS HELD IN THE DECISION OF SEPTEMBER 13, 1951, B-103834, THAT APPROPRIATED FUNDS COULD NOT BE USED FOR PAYMENT OF TRAVEL EXPENSES WITH RESPECT TO AN EMPLOYEE PROVIDING OFFICIAL RECORDS IN RESPONSE TO A SUBPOENA DUCES TECUM ISSUED IN CONNECTION WITH A PRIVATE CIVIL SUIT. SIMILAR CONCLUSION HAD BEEN REACHED IN MANY PRIOR DECISIONS OF THIS OFFICE.

YOUR QUESTIONS AS TO THE APPLICABILITY OF THE TRAVEL EXPENSE ACT OF 1949, AS AMENDED, ARISE IN VIEW OF THE HOLDING IN 15 COMP. GEN. 196, THAT AN EMPLOYEE SUBPOENAED IN PRIVATE LITIGATION TO TESTIFY IN HIS OFFICIAL CAPACITY OR TO PRODUCE OFFICIAL RECORDS MAY BE REGARDED IN A DUTY AND PAY STATUS DURING THE PERIOD OF HIS NECESSARY ABSENCE IN RESPONDING TO THE SUBPOENA. IT IS STATED IN YOUR LETTER THAT SINCE AN EMPLOYEE WHILE SO ENGAGED MAY BE CONSIDERED IN ACTIVE DUTY STATUS FOR PAY PURPOSES, IT IS NOT CLEAR HOW HE MAY BE HELD EXCLUDED FROM ENTITLEMENT TO PAYMENT OF TRAVEL EXPENSES UNDER THE TRAVEL EXPENSE ACT. IN THIS CONNECTION, YOUR ATTENTION IS INVITED TO OUR DECISION OF MARCH 15, 1950, B-89195, COPY ENCLOSED, REAFFIRMING 29 COMP. GEN. 195, IN WHICH THE SAME GENERAL OBSERVATION WAS MADE BY THE ACTING SECRETARY OF COMMERCE. IN ANSWER THERETO IT WAS STATED IN THE DECISION OF MARCH 15, 1950, THAT---

IT WILL BE NOTED THAT THE CITED DECISION (15 COMP. GEN. 196) ALSO HELD THAT GOVERNMENT EMPLOYEES SUBPOENAED IN PRIVATE LITIGATION OR BY SOME PARTY OTHER THAN THE FEDERAL GOVERNMENT TO TESTIFY, NOT IN THEIR OFFICIAL CAPACITY BUT, AS INDIVIDUALS, ARE ENTITLED TO THE USUAL FEES AND EXPENSES BUT THE TIME ABSENT BY REASON THEREOF MUST BE TAKEN AS ANNUAL LEAVE OR LEAVE WITHOUT PAY. SINCE IN SUCH CIRCUMSTANCES AND IN CASES SUCH AS HERE INVOLVED THE EMPLOYEES ARE NOT SUBPOENAED TO APPEAR AS WITNESSES ON BEHALF OF THE GOVERNMENT, THERE WOULD, OF COURSE, BE JUSTIFIED THE VIEW THAT GOVERNMENT EMPLOYEES SUBPOENAED BY PRIVATE LITIGANTS TO APPEAR IN THEIR OFFICIAL CAPACITY LIKEWISE SHOULD BE REQUIRED TO TAKE ANNUAL LEAVE OR LEAVE WITHOUT PAY WHEN ABSENT FROM THEIR PLACE OF DUTY IN RESPONSE TO SUCH SUBPOENA. HOWEVER, I AM NOT DISPOSED TO DISTURB THE RULE THAT EMPLOYEES APPEARING IN THEIR OFFICIAL CAPACITY ARE IN A DUTY STATUS FOR PAY PURPOSES, SINCE A CONTRARY RESULT OBVIOUSLY WOULD BE INEQUITABLE TO THE EMPLOYEE. BUT IT DOES NOT FOLLOW THEREFROM THAT THE RULE SHOULD BE FURTHER EXTENDED BY PERMITTING THE PAYMENT OF THE EMPLOYEES' TRAVELING EXPENSES FROM APPROPRIATED FUNDS.

THE ABOVE CONCLUSION IS APPLICABLE TO YOUR OBSERVATION. IN ORDER TO BE ENTITLED TO TRAVEL EXPENSES UNDER THE TRAVEL EXPENSE ACT OF 1949, THE EMPLOYEE MUST BE TRAVELING ON OFFICIAL BUSINESS. SINCE IT IS NOT A FUNCTION OF THE GOVERNMENT TO FURNISH WITNESSES OR OFFICIAL RECORDS SUBPOENAED BY PRIVATE LITIGANTS, IT FOLLOWS THAT TRAVEL IN CONNECTION THEREWITH IS NOT IN THE PERFORMANCE OF OFFICIAL BUSINESS WITHIN THE PROVISIONS OF THE TRAVEL EXPENSE ACT OF 1949 SO AS TO AUTHORIZE THE USE OF APPROPRIATED FUNDS FOR SUCH EXPENSES. CF. 23 COMP. GEN. 628. WHILE, AS STATED IN OUR DECISION OF MARCH 15, 1950, B-89195, THERE WOULD BE JUSTIFIED THE VIEW THAT GOVERNMENT EMPLOYEES SUBPOENAED BY PRIVATE LITIGANTS TO APPEAR IN THEIR OFFICIAL CAPACITY SHOULD BE REQUIRED TO TAKE ANNUAL LEAVE OR LEAVE WITHOUT PAY WHEN ABSENT FROM THEIR PLACE OF DUTY IN RESPONSE TO SUCH SUBPOENA, WE ARE NOT INCLINED TO CHANGE THE RULE ENUNCIATED IN 15 COMP. GEN. 196, NOR TO EXTEND SUCH RULE TO PERMIT THE PAYMENT OF THE EMPLOYEES' TRAVELING EXPENSES.

IN VIEW OF THE FOREGOING, YOUR QUESTIONS 1 AND 2 ARE ANSWERED IN THE NEGATIVE. CONCERNING QUESTION 3, THERE IS NO DISTINCTION INSOFAR AS THE ABSENCE OF AUTHORITY OF THE EMPLOYING AGENCY TO PAY THE TRAVEL EXPENSES OF AN EMPLOYEE SUBPOENAED IN A SUIT IN A STATE COURT AND AN EMPLOYEE SUBPOENAED AT THE INSTANCE OF A PRIVATE PARTY IN A FEDERAL COURT. IN THIS CONNECTION, YOUR ATTENTION IS INVITED TO THE PROVISIONS OF LAW CODIFIED IN 28 U.S.C. 1821 GOVERNING THE PAYMENT OF MILEAGE TO WITNESSES ATTENDING ANY COURT OF THE UNITED STATES. WHETHER ANY TRAVEL EXPENSES ARE PAYABLE UNDER THIS AUTHORITY FROM APPROPRIATIONS OF THE DEPARTMENT OF JUSTICE IS FOR DETERMINATION IN THE FIRST INSTANCE BY THAT DEPARTMENT. SEE 23 COMP. GEN. 628.