B-160120, JANUARY 17, 1967, 46 COMP. GEN. 613

B-160120: Jan 17, 1967

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ATTORNEY GENERAL AUTHORITY TO PAY THE PAYMENT OF THE TRAVEL EXPENSES OF AN OFFICER OR EMPLOYEE OF THE GOVERNMENT APPEARING AS A WITNESS ON BEHALF OF THE UNITED STATES IS GOVERNED BY THE REGULATIONS OF THE AGENCY IN WHICH EMPLOYED ONLY IF THE CASE INVOLVES THE ACTIVITY IN CONNECTION WITH WHICH THE INDIVIDUAL IS EMPLOYED OR IS SERVING AND HIS EXPENSES ARE PROPERLY PAYABLE FROM AN APPROPRIATION AVAILABLE TO THE AGENCY. 1967: FURTHER REFERENCE IS MADE TO LETTER DATED SEPTEMBER 13. A COPY OF THE PROPOSED REGULATIONS WAS ENCLOSED. THIS REQUEST WAS ASSIGNED CONTROL NO. 66-33 BY THE PER DIEM. THE UNDER SECRETARY STATES IN HIS LETTER THAT QUESTION HAS ARISEN WHETHER THE PROPOSED REVISION IS IN CONFLICT WITH THE PROVISIONS OF 28 U.S.C. 1823 (A).

B-160120, JANUARY 17, 1967, 46 COMP. GEN. 613

TRAVEL EXPENSES - WITNESSES - AGENCY V. ATTORNEY GENERAL AUTHORITY TO PAY THE PAYMENT OF THE TRAVEL EXPENSES OF AN OFFICER OR EMPLOYEE OF THE GOVERNMENT APPEARING AS A WITNESS ON BEHALF OF THE UNITED STATES IS GOVERNED BY THE REGULATIONS OF THE AGENCY IN WHICH EMPLOYED ONLY IF THE CASE INVOLVES THE ACTIVITY IN CONNECTION WITH WHICH THE INDIVIDUAL IS EMPLOYED OR IS SERVING AND HIS EXPENSES ARE PROPERLY PAYABLE FROM AN APPROPRIATION AVAILABLE TO THE AGENCY, OTHERWISE PURSUANT TO 28 U.S.C. 1823 (A), PAYMENT OF THE TRAVEL EXPENSES OF A WITNESS COMES UNDER REGULATIONS PRESCRIBED BY THE ATTORNEY GENERAL. THEREFORE, THE JOINT TRAVEL REGULATIONS MAY NOT BE REVISED TO AUTHORIZE PAYMENT OF THE TRAVEL EXPENSES OF A MEMBER OF THE UNIFORMED SERVICES APPEARING AS A WITNESS FOR THE GOVERNMENT NOT BY REASON OF HIS MILITARY STATUS BUT BY REASON OF THE GOVERNMENT'S REQUIREMENT IN ITS CIVIL CAPACITY.

TO THE SECRETARY OF THE AIR FORCE, JANUARY 17, 1967:

FURTHER REFERENCE IS MADE TO LETTER DATED SEPTEMBER 13, 1966, FROM THE UNDER SECRETARY OF THE AIR FORCE, FORWARDED HERE BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE ON SEPTEMBER 16, 1966, REQUESTING A DECISION WHETHER WE WOULD BE REQUIRED TO OBJECT TO A PROPOSED REVISION OF THE JOINT TRAVEL REGULATIONS, VOLUME 1, UNDER WHICH ANY MEMBER OF THE UNIFORMED SERVICES ORDERED TO APPEAR AS A WITNESS ON BEHALF OF THE UNITED STATES WOULD BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES AS PRESCRIBED IN VOLUME 1, CHAPTER 4, JOINT TRAVEL REGULATIONS. A COPY OF THE PROPOSED REGULATIONS WAS ENCLOSED. THIS REQUEST WAS ASSIGNED CONTROL NO. 66-33 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE UNDER SECRETARY STATES IN HIS LETTER THAT QUESTION HAS ARISEN WHETHER THE PROPOSED REVISION IS IN CONFLICT WITH THE PROVISIONS OF 28 U.S.C. 1823 (A), WHICH, IN PERTINENT PART, READS AS FOLLOWS:

ANY OFFICER OR EMPLOYEE OF THE UNITED STATES OR ANY AGENCY THEREOF, SUMMONED AS A WITNESS ON BEHALF OF THE UNITED STATES, SHALL BE PAID HIS NECESSARY EXPENSES INCIDENT TO TRAVEL BY COMMON CARRIER, OR, IF TRAVEL IS MADE BY PRIVATELY OWNED AUTOMOBILE, AT A RATE NOT TO EXCEED THAT PRESCRIBED IN SECTION 4 OF THE TRAVEL EXPENSE ACT OF 1949, TOGETHER WITH A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE NOT TO EXCEED THE RATES OF PER DIEM AS DESCRIBED IN, OR ESTABLISHED PURSUANT TO, SECTION 3 THEREOF UNDER REGULATIONS PRESCRIBED BY THE ATTORNEY GENERAL. SUCH EXPENSES FOR APPEARING AS A WITNESS IN ANY CASE INVOLVING THE ACTIVITY IN CONNECTION WITH WHICH SUCH PERSONS IS EMPLOYED SHALL BE PAYABLE FROM THE APPROPRIATION OTHERWISE AVAILABLE FOR TRAVEL EXPENSES OF SUCH OFFICER OR EMPLOYEE UNDER PROPER CERTIFICATION BY A CERTIFYING OFFICER OF THE DEPARTMENT OR AGENCY CONCERNED. * * *

THAT PROVISION OF LAW STEMS FROM SECTION 850, REVISED STATUTES, WHICH PROVIDED THAT 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. DEPARTMENT OF JUSTICE APPROPRIATIONS FOR FEES OF WITNESSES WERE SPECIFICALLY MADE AVAILABLE FOR PAYMENT OF THE ACTUAL EXPENSES OF WITNESSES, AS PROVIDED IN SECTION 850, REVISED STATUTES.

IN A LINE OF DECISIONS CONSTRUING SECTION 850 AND RECOGNIZING SEVERAL OPINIONS OF THE ATTORNEY GENERAL RENDERED IN 1878, 15 OP. ATTY. GEN. 486; 16 ID. 113; AND 16 ID. 147, INTERPRETING THAT SECTION AS ALSO APPLYING TO MILITARY PERSONNEL SERVING AS WITNESSES FOR THE GOVERNMENT IN CIVIL PROCEEDINGS, IT WAS HELD THAT UNDER THAT SECTION THE REGULATIONS OF THE DEPARTMENT OF JUSTICE GOVERNED THE PAYMENT OF TRAVEL EXPENSES TO SUCH WITNESSES AND THAT THE PAYMENTS WERE CHARGEABLE TO APPROPRIATIONS OF THE DEPARTMENT OF JUSTICE. SEE 4 COMP. DEC. 146 (1897); 19 ID. 752 (1913); 3 COMP. GEN. 271; 12 ID. 330; AND 15 ID. 785. THE RATIONALE IN THOSE DECISIONS IS THAT THE DUTY PERFORMED FOR WHICH THE TRAVEL WAS NECESSARY WAS NOT IMPOSED BY REASON OF THE MEMBER'S MILITARY STATUS, BUT BY REASON OF THE GOVERNMENT'S REQUIREMENT IN ITS CIVIL CAPACITY.

A SIMILAR CONCLUSION WAS REACHED IN A JUDICIAL INTERPRETATION OF SECTION 850 IN THE CASE OF UNITED STATES V. NATIONAL SURETY COMPANY (D.C., E.D. PA. 1909), 168 F.314. IT WAS ALSO HELD THAT THE LAWS WHICH PROVIDED FOR THE PAYMENT OF MILEAGE ALLOWANCES TO MILITARY PERSONNEL FOR TRAVEL WITHIN THE UNITED STATES (ACT OF JUNE 7, 1900, CH. 859, 31 STAT. 685, AND SECTION 12 OF THE ACT OF JUNE 10, 1922, CH. 212, 42 STAT. 631) DID NOT SUPERSEDE SECTION 850. 19 COMP. DEC. 752, SUPRA, 3 COMP. GEN. 271, SUPRA. IN DECISION OF JUNE 29, 1925, 4 COMP. GEN. 1070, IT WAS HELD, HOWEVER, THAT, IN CASES WHERE THE MEMBERS ARE REQUIRED TO TRAVEL UNDER ORDERS FOR THE PURPOSE OF TESTIFYING ON BEHALF OF THE GOVERNMENT TO FACTS WHICH THEY HAVE OFFICIALLY ASCERTAINED OR INVESTIGATED, REIMBURSEMENT OF TRAVEL EXPENSES OR AUTHORIZED ALLOWANCES IN LIEU THEREOF SHOULD BE PAID THE MEMBERS UNDER THE REGULATIONS OF THE DEPARTMENT CONCERNED AND FROM THE APPROPRIATION UNDER WHICH THEIR ORDINARY TRAVELING EXPENSES ARE PAID.

SECTION 850 WAS AMENDED BY SECTION 2 OF THE ACT OF DECEMBER 24, 1942, CH. 825, 56 STAT. 1088. THE LANGUAGE OF THE LAW AS AMENDED WAS SUBSTANTIALLY SIMILAR TO THAT NOW CONTAINED IN 28 U.S.C. 1823 (A). THE LAW AS AMENDED PROVIDED, AMONG OTHER THINGS, THAT WHEN EVER ANY OFFICER OR EMPLOYEE OF THE UNITED STATES PERFORMS TRAVEL IN ORDER TO APPEAR AS A WITNESS ON BEHALF OF THE UNITED STATES IN ANY CASE INVOLVING THE ACTIVITY IN CONNECTION WITH WHICH HE IS EMPLOYED, HIS TRAVEL EXPENSES SHALL BE PAYABLE FROM THE APPROPRIATION OTHERWISE AVAILABLE TO THE AGENCY CONCERNED FOR HIS TRAVEL EXPENSES.

IN 22 COMP. GEN. 1074 WE RULED THAT UNDER THE AMENDED LAW THE EXPENSES OF A MEMBER WHO TESTIFIED ON BEHALF OF THE UNITED STATES IN CONNECTION WITH AN ACTIVITY INVOLVED WITH HIS FORMER EMPLOYMENT--- THE DEPARTMENT OF AGRICULTURE--- WERE NOT PAYABLE FROM AN APPROPRIATION OF THAT DEPARTMENT BUT FROM AN APPROPRIATION OF THE DEPARTMENT OF JUSTICE. ALSO, IN A FURTHER INTERPRETATION OF THE AMENDED LAW AND IN CONSONANCE WITH 4 COMP. GEN. 1070, WE HELD IN 23 COMP. GEN. 879 THAT THE CURRENT NAVY APPROPRIATION WAS CHARGEABLE FOR THE TRAVEL EXPENSES OF A MEMBER WHO APPEARED AS A WITNESS BEFORE A FEDERAL GRAND JURY TO TESTIFY TO FACTS WHICH CAME INTO HIS POSSESSION AS A RECRUITER IN CHARGE OF A RECRUITING SUBSTATION.

THE SECOND SENTENCE OF SECTION 1823 (A) SPECIFICALLY PROVIDES THAT THE EXPENSES OF ANY OFFICER OR EMPLOYEE OF THE UNITED STATES APPEARING AS A WITNESS IN ANY CASE INVOLVING THE ACTIVITY IN CONNECTION WITH WHICH SUCH PERSON IS EMPLOYED SHALL BE PAYABLE FROM THE APPROPRIATION OTHERWISE AVAILABLE TO THE DEPARTMENT OR AGENCY CONCERNED FOR TRAVEL EXPENSES OF SUCH OFFICER OR EMPLOYEE. SUCH PROVISION IS AN EXCEPTION TO THE GENERAL PROVISIONS OF THE FIRST SENTENCE OF THAT SECTION THAT ANY OFFICER OR EMPLOYEE OF THE UNITED STATES OR ANY AGENCY THEREOF, SUMMONED AS A WITNESS ON BEHALF OF THE UNITED STATES, SHALL BE PAID HIS TRAVEL EXPENSES, AS THERE PROVIDED, UNDER REGULATIONS PRESCRIBED BY THE ATTORNEY GENERAL.

UNDER SUCH PROVISIONS IT IS OUR VIEW THAT PAYMENT OF THE EXPENSES OF AN OFFICER OR EMPLOYEE APPEARING AS A WITNESS ON BEHALF OF THE UNITED STATES IS GOVERNED BY REGULATIONS OF THE AGENCY IN WHICH EMPLOYED ONLY IF THE CASE INVOLVES THE ACTIVITY IN CONNECTION WITH WHICH THE INDIVIDUAL IS EMPLOYED OR IS SERVING AND HIS EXPENSES ARE PROPERLY PAYABLE FROM AN APPROPRIATION AVAILABLE TO THAT AGENCY. SINCE THE PROPOSED REGULATION WOULD NOT BE LIMITED TO SUCH CASES, IT IS OUR VIEW THAT IT WOULD BE CONTRARY TO THE STATUTE. ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.