B-155114, OCTOBER 6, 1964, 44 COMP. GEN. 188

B-155114: Oct 6, 1964

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WHICH INVOLVED AN AUTOMOBILE ACCIDENT THAT OCCURRED WHILE THE EMPLOYEE WITNESS AND ANOTHER EMPLOYEE WERE ON AN OFFICIAL ASSIGNMENT. EVEN THOUGH THE WITNESS WAS NOT SUMMONED ON BEHALF OF THE UNITED STATES. WERE SENT TO ROANOKE. ARE AS FOLLOWS: WHEN RETURNING TO WASHINGTON ON JULY 22. BLACK WAS DRIVING HIS AUTOMOBILE AND WAS ACCOMPANIED BY MR. BOTH PARTIES WERE SUMMONED TO THE MADISON COUNTY COURT FOR A HEARING OF THEIR CASE ON AUGUST 7 BEFORE THE COUNTY JUDGE. BLACK WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT. THERE WAS A POSSIBILITY THAT THE FEDERAL GOVERNMENT WOULD BE LIABLE FOR PROPERTY DAMAGES AND PERSONAL INJURIES GROWING OUT OF THE ACCIDENT UNDER THE TORT CLAIMS ACT.

B-155114, OCTOBER 6, 1964, 44 COMP. GEN. 188

TRAVEL EXPENSES - WITNESSES - PRIVATE LITIGATION, ETC. THE ATTENDANCE OF AN EMPLOYEE AS A WITNESS IN A CRIMINAL HEARING, WHICH INVOLVED AN AUTOMOBILE ACCIDENT THAT OCCURRED WHILE THE EMPLOYEE WITNESS AND ANOTHER EMPLOYEE WERE ON AN OFFICIAL ASSIGNMENT, FOR THE PURPOSE OF STRENGTHENING THE EMPLOYEE'S CASE TO OBTAIN A FAVORABLE VERDICT SO THAT THE POSSIBILITY THAT THE GOVERNMENT UNDER ITS LIABILITY IN 28 U.S.C. 2679 WOULD NOT BECOME INVOLVED IN A SUBSEQUENT TORT AS A RESULT OF AN AUTOMOBILE ACCIDENT OCCURRING IN THE SCOPE OF THE EMPLOYEE'S EMPLOYMENT, MUST BE REGARDED AS AN APPEARANCE IN THE BEST INTEREST OF THE GOVERNMENT, EVEN THOUGH THE WITNESS WAS NOT SUMMONED ON BEHALF OF THE UNITED STATES, AND, THEREFORE, THE TRAVEL OF THE EMPLOYEE WITNESS TO THE HEARING MAY BE CONSIDERED OFFICIAL BUSINESS FOR PAYMENT OF TRAVEL EXPENSES.

TO WELLS E. LUDLOW, UNITED STATES DEPARTMENT OF AGRICULTURE, OCTOBER 6, 1964:

THIS REFERS TO YOUR LETTER DATED SEPTEMBER 3, 1964, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF CERTIFYING FOR PAYMENT A VOUCHER IN FAVOR OF WILLIAM H. CALL AWAY, AN EMPLOYEE OF THE RURAL ELECTRIFICATION ADMINISTRATION, FOR ROUND TRIP TRAVEL BETWEEN WASHINGTON, D.C., AND MADISON, VIRGINIA, INCIDENT TO HIS ATTENDANCE AS A WITNESS AT A COURT HEARING ON AUGUST 7, 1964.

IT APPEARS THAT MR. CALL AWAY AND ONE JAMES W. BLACK, JR., ALSO AN EMPLOYEE OF THE RURAL ELECTRIFICATION ADMINISTRATION, WERE SENT TO ROANOKE, VIRGINIA, ON OFFICIAL BUSINESS. THE TWO EMPLOYEES TRAVELED TOGETHER IN MR. BLACK'S AUTOMOBILE.

THE FACTS, AS PRESENTED IN YOUR LETTER, ARE AS FOLLOWS:

WHEN RETURNING TO WASHINGTON ON JULY 22, 1964, FROM AN OFFICIAL ASSIGNMENT OF ROANOKE, VIRGINIA, MR. BLACK'S AUTOMOBILE COLLIDED WITH ANOTHER AUTOMOBILE ABOUT 12 MILES SOUTH OF CULPEPER, VIRGINIA. MR. BLACK WAS DRIVING HIS AUTOMOBILE AND WAS ACCOMPANIED BY MR. CALL AWAY, HIS IMMEDIATE SUPERVISOR. DAMAGE TO THE TWO AUTOMOBILES APPROXIMATED $600 EACH. THE STATE HIGHWAY PATROLMAN WHO INVESTIGATED THE ACCIDENT ISSUED TICKETS CHARGING THE DRIVER OF THE OTHER AUTOMOBILE WITH FAILURE TO GIVE A PROPER SIGNAL AND MR. BLACK WITH FAILURE TO KEEP A PROPER LOOKOUT. BOTH PARTIES WERE SUMMONED TO THE MADISON COUNTY COURT FOR A HEARING OF THEIR CASE ON AUGUST 7 BEFORE THE COUNTY JUDGE.

AS MR. BLACK WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, THERE WAS A POSSIBILITY THAT THE FEDERAL GOVERNMENT WOULD BE LIABLE FOR PROPERTY DAMAGES AND PERSONAL INJURIES GROWING OUT OF THE ACCIDENT UNDER THE TORT CLAIMS ACT, AS AMENDED. THE RURAL ELECTRIFICATION ADMINISTRATION FELT THAT MR. BLACK WAS NOT NEGLIGENT OR AT FAULT FOR THE ACCIDENT AND THAT MR. CALL AWAY, WHO WAS A WITNESS TO THE ACCIDENT, SHOULD TESTIFY ON HIS BEHALF AT THE HEARING. IF HE WERE FOUND GUILTY, SUCH A VERDICT MIGHT BE USED TO SUPPORT A CLAIM AGAINST THE GOVERNMENT FOR LIABILITY FOR THE PROPERTY DAMAGE AND ANY PERSONAL INJURIES. ON THE OTHER HAND, IF HE WERE FOUND NOT GUILTY OF THE CHARGE, THE POSSIBILITY OF A VALID CLAIM AGAINST THE GOVERNMENT WOULD BE VIRTUALLY (SIC) NON-EXISTENT. ON THIS BASIS, THE DEPUTY ADMINISTRATOR OF REA ISSUED TRAVEL AUTHORIZATION NO. 4110-7, DATED AUGUST 4, 1964, AUTHORIZING MR. CALL AWAY TO PROCEED TO MADISON, VIRGINIA, ON AUGUST 7 TO ATTEND THE HEARING AND APPEAR AS A WITNESS IN THE CASE. HE WAS AUTHORIZED TO USE A PRIVATELY OWNED AUTOMOBILE AT THE RATE OF 9 CENTS A MILE AND BE ACCOMPANIED BY MR. BLACK. THE AUTHORIZATION WAS ISSUED WITH THE UNDERSTANDING THAT THE TRAVEL VOUCHER WOULD BE SUBMITTED TO YOU FOR A DECISION AS TO THE LEGALITY OF THE PAYMENT OF THE TRAVEL EXPENSES INVOLVED. * * *

THE PRIMARY ISSUE FOR OUR CONSIDERATION IS WHETHER THE EMPLOYEE'S APPEARANCE AT THE CRIMINAL HEARING WAS SUFFICIENTLY IN THE INTEREST OF THE UNITED STATES SO AS TO BE REGARDED AS OFFICIAL BUSINESS AND THUS PERMIT PAYMENT OF TRAVELING EXPENSES UNDER THE TRAVEL EXPENSE ACT OF 1949, AS AMENDED, 5 U.S.C. 835 NOTE.

PUBLIC LAW 87-258, APPROVED SEPTEMBER 21, 1961, 75 STAT. 539, AMENDED SECTION 2679 OF TITLE 28, U.S.C. TO PROVIDE, IN PERTINENT PART, AS FOLLOWS:

(B) THE REMEDY BY SUIT AGAINST THE UNITED STATES AS PROVIDED BY SECTION 1346 (B) OF THIS TITLE FOR DAMAGE TO PROPERTY OR FOR PERSONAL INJURY, INCLUDING DEATH, RESULTING FROM THE OPERATION BY ANY EMPLOYEE OF THE GOVERNMENT OF ANY MOTOR VEHICLE WHILE ACTING WITHIN THE SCOPE OF HIS OFFICE OR EMPLOYMENT, SHALL HEREAFTER BE EXCLUSIVE OF ANY OTHER CIVIL ACTION OR PROCEEDING BY REASON OF THE SAME SUBJECT MATTER AGAINST THE EMPLOYEE OR HIS ESTATE WHOSE ACT OR OMISSION GAVE RISE TO THE CLAIM.

(C) THE ATTORNEY GENERAL SHALL DEFEND ANY CIVIL ACTION OR PROCEEDING BROUGHT IN ANY COURT AGAINST ANY EMPLOYEE OF THE GOVERNMENT OR HIS ESTATE FOR ANY SUCH DAMAGE OR INJURY. * * *

PRIOR TO THE 1961 AMENDMENT, THE EMPLOYEE COULD HAVE BEEN SUED IN HIS OWN CAPACITY AND HELD PERSONALLY LIABLE FOR DAMAGES IF THE PLAINTIFF ELECTED NOT TO PROCEED AGAINST THE GOVERNMENT UNDER THE FEDERAL TORT CLAIMS ACT. BY VIRTUE OF THE 1961 AMENDMENT, CIVIL SUITS AGAINST EMPLOYEES IN THEIR INDIVIDUAL CAPACITIES ARE EXCLUDED, SINCE SUCH SUITS ARE NOT TRIED AS TORT ACTIONS AGAINST THE UNITED STATES.

SINCE THE UNITED STATES NOW BECOMES DIRECTLY INVOLVED AS A PARTY IN ANY SUIT AGAINST A FEDERAL EMPLOYEE ARISING OUT OF HIS OPERATION OF A MOTOR VEHICLE IN THE SCOPE OF HIS EMPLOYMENT, IT IS REASONABLE TO ASSUME THAT THE UNITED STATES MUST ALSO BE INTERESTED IN ANY CRIMINAL HEARING TO WHICH AN EMPLOYEE HAS BEEN SUMMONED IN CONNECTION WITH SUCH AN ACCIDENT.

WE HAVE BEEN INFORMALLY ADVISED BY THE DEPARTMENT OF JUSTICE THAT UNITED STATES ATTORNEYS ARE FREQUENTLY SENT TO SUCH HEARINGS IN ORDER TO PROPERLY ADVISE THE EMPLOYEE, PARTICULARLY IF THE ACCIDENT HAS RESULTED IN SUBSTANTIAL PROPERTY DAMAGE OR PERSONAL INJURY.

ALTHOUGH THE VERDICT IN THE CRIMINAL HEARING GENERALLY WOULD NOT BE ADMISSIBLE IN EVIDENCE IN A SUBSEQUENT CIVIL ACTION, WE UNDERSTAND IT TO BE IMPERATIVE THAT THE EMPLOYEE'S CASE BE PRESENTED AS STRONGLY AS POSSIBLE. CLEARLY, IT WOULD BE TO THE GOVERNMENT'S ADVANTAGE FOR THE EMPLOYEE TO RECEIVE A FAVORABLE VERDICT AT THE HEARING.

IN VIEW OF THE ABOVE, WE BELIEVE THAT MR. CALL AWAY'S APPEARANCE AS A WITNESS AT THE CRIMINAL HEARING, ALTHOUGH NOT SUMMONED ON BEHALF OF THE UNITED STATES, WAS NEVERTHELESS IN THE BEST INTEREST OF THE GOVERNMENT, AND CAN THEREFORE BE CONSIDERED AS OFFICIAL BUSINESS.

ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.