B-166938, JUL. 17, 1969

B-166938: Jul 17, 1969

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CIVIL PAY - TRAVEL EXPENSES - WITNESSES IN PRIVATE LITIGATION DECISION TO VETERANS ADMINISTRATION HOLDING THAT EMPLOYEES WHO TESTIFY OR PRODUCE RECORDS IN PRIVATE LITIGATION IN PHILIPPINE COURTS INVOLVING INDIVIDUALS WHO ARE VICTIMIZED VA CLAIMANTS ARE IN AN OFFICIAL DUTY STATUS WHILE TESTIFYING AND THEREFORE THE STATUS IS DISTINGUISHABLE FROM A LEAVE STATUS SO THAT THE EMPLOYEES MAY BE PAID TRAVEL EXPENSES TO THE SAME EXTENT AS TRAVEL ON OFFICIAL BUSINESS. PHILIPPINES OFFICE WHICH ARE INCURRED IN CONNECTION WITH THE CRIMINAL PROSECUTION OF INDIVIDUALS UNDER THE PHILIPPINE STATUTE WHICH LIMITS THE FEES WHICH MAY BE CHARGED FOR ASSISTANCE GIVEN PERSONS CLAIMING BENEFITS UNDER LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION.

B-166938, JUL. 17, 1969

CIVIL PAY - TRAVEL EXPENSES - WITNESSES IN PRIVATE LITIGATION DECISION TO VETERANS ADMINISTRATION HOLDING THAT EMPLOYEES WHO TESTIFY OR PRODUCE RECORDS IN PRIVATE LITIGATION IN PHILIPPINE COURTS INVOLVING INDIVIDUALS WHO ARE VICTIMIZED VA CLAIMANTS ARE IN AN OFFICIAL DUTY STATUS WHILE TESTIFYING AND THEREFORE THE STATUS IS DISTINGUISHABLE FROM A LEAVE STATUS SO THAT THE EMPLOYEES MAY BE PAID TRAVEL EXPENSES TO THE SAME EXTENT AS TRAVEL ON OFFICIAL BUSINESS.

TO MR. JOHNSON:

WE REFER TO LETTER OF YOUR PREDECESSOR IN OFFICE DATED MAY 12, 1969, WHICH REQUESTED OUR DECISION WHETHER THE VETERANS ADMINISTRATION MAY PAY THE TRAVEL EXPENSES OF EMPLOYEES OF THE MANILA, PHILIPPINES OFFICE WHICH ARE INCURRED IN CONNECTION WITH THE CRIMINAL PROSECUTION OF INDIVIDUALS UNDER THE PHILIPPINE STATUTE WHICH LIMITS THE FEES WHICH MAY BE CHARGED FOR ASSISTANCE GIVEN PERSONS CLAIMING BENEFITS UNDER LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION.

THE LETTER STATES IN PART:

"WHEN A VIOLATION OF THE FEE LIMITATION FOR ASSISTANCE PROVIDED VA CLAIMANTS HAS BEEN DISCOVERED, THE MATTER IS REFERRED TO THE PHILIPPINE DEPARTMENT OF JUSTICE. AFTER SCREENING BY AN INVESTIGATION COMMITTEE, AND PRELIMINARY INVESTIGATION BY A LEGAL REPRESENTATIVE, ALL INFORMATION IS FILED IF A PRIMA FACIE CASE IS SHOWN. UPON ISSUANCE OF SUMMONS OR SUBPOENA, THE EMPLOYEE-WITNESS APPEARS ON BEHALF OF THE VICTIMIZED PRIVATE PARTY (THE VA CLAIMANT), TO TESTIFY OR PRODUCE RECORDS IN AID OF THE PROSECUTION.

"AS THE KNOWLEDGE UPON WHICH THE EMPLOYEE-WITNESS' TESTIMONY IS BASED IS GAINED SOLELY THROUGH HIS EMPLOYMENT, WE SEE NO QUESTION AS TO HIS ENTITLEMENT TO COURT LEAVE AS SET OUT IN SUBCHAPTER 10, CHAPTER 630, FEDERAL PERSONNEL MANUAL. AS, HOWEVER, HE IS NOT TESTIFYING DIRECTLY FOR THE UNITED STATES, NOR IS THE UNITED STATES A PARTY TO THE SUIT, WE HAVE FOUND NO PRECEDENT AUTHORIZING THE PAYMENT OF TRAVEL EXPENSES FROM APPROPRIATED FUNDS.

"SUCH APPEARANCES ARE, HOWEVER, CONSIDERED TO BE IN THE BEST INTEREST OF THE UNITED STATES. ALTHOUGH THE PRIVATE PARTY IS THE DIRECT BENEFICIARY OF THE TESTIMONY OF THE EMPLOYEE-WITNESS, SUCH TESTIMONY ALSO IS REGARDED AS GIVEN ON BEHALF OF AND TO EFFECTUATE A POLICY OF THE UNITED STATES, AS REFLECTED BY THE PHILIPPINE STATUTE.

"FOR THE REASONS STATED, WE CONSIDER THAT SUCH APPEARANCES CONSTITUTE OFFICIAL BUSINESS, FOR WHICH REIMBURSEMENT FOR INCURRED TRAVEL EXPENSES IS WARRANTED. * * *"

WE HAVE HELD THAT AN EMPLOYEE WHO IS SUBPOENAED TO TESTIFY IN PRIVATE LITIGATION IN HIS OFFICIAL CAPACITY IS NOT ENTITLED TO PAYMENT OF TRAVEL EXPENSES BY THE GOVERNMENT. 43 COMP. GEN. 171. THAT RULE IS NOT FOR APPLICATION, HOWEVER, WHEN THE APPEARANCE OF THE EMPLOYEE IN PRIVATE LITIGATION IS IN THE BEST INTEREST OF THE UNITED STATES AND CAN THEREFORE BE CONSIDERED AS OFFICIAL BUSINESS. 44 COMP. GEN. 188.

IN THE CIRCUMSTANCES PRESENTED, THE EMPLOYEE IS IN AN OFFICIAL DUTY STATUS AS DISTINGUISHED FROM A LEAVE STATUS AND THE TRAVEL EXPENSES OF EMPLOYEE-WITNESSES MAY BE PAID TO THE SAME EXTENT AS EXPENSES ARE PAID INCIDENT TO OTHER TRAVEL ON OFFICIAL BUSINESS PERFORMED BY YOUR EMPLOYEES.