B-167710.OM, MAY 25, 1982

B-167710.OM: May 25, 1982

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WHERE A GAO EMPLOYEE IS SUBPOENAED TO APPEAR BEFORE THE GAO APPEALS BOARD. IF THE WITNESS IS NOT A FEDERAL EMPLOYEE. THESE EXPENSES ARE TO BE PAID AT THE TIME OF THE WITNESS'S TRAVEL. WHERE A GAO EMPLOYEE IS A PARTY TO A PROCEEDING BEFORE THE GAO APPEALS BOARD. GAO PAYS THE EMPLOYEE'S TRAVEL EXPENSES JUST AS IF HE WERE IN A TEMPORARY DUTY STATUS REGARDLESS OF WHO REQUESTS THE HEARING. THESE EXPENSES ARE PAID AT THE TIME OF TRAVEL. IF THE PARTY IS NOT A GAO EMPLOYEE AND IF HE PREVAILS AND IS RETROACTIVELY REINSTATED. IF THE PARTY IS NOT A GAO EMPLOYEE AND IF HE PREVAILS BUT IS NOT REINSTATED. NO TRAVEL EXPENSES ARE PAYABLE BY GAO. THE ENTITLEMENTS OF THOSE TWO CLASSES OF INDIVIDUALS WILL BE ADDRESSED SEPARATELY.

B-167710.OM, MAY 25, 1982

SUBJECT: PAYMENT OF TRAVEL EXPENSES TO ATTEND GAO PERSONNEL APPEALS BOARD HEARINGS - B-167710-O.M. DIGEST: 1. WHERE A GAO EMPLOYEE IS SUBPOENAED TO APPEAR BEFORE THE GAO APPEALS BOARD, GAO PAYS THE EMPLOYEE'S TRAVEL EXPENSES UNDER 5 U.S.C. SEC. 5751 AND 28 C.F.R. SEC. 21.1 REGARDLESS OF WHO CALLS THE EMPLOYEE AS A WITNESS. IF THE WITNESS IS NOT A FEDERAL EMPLOYEE, UNDER 5 U.S.C. SEC. 503 GAO PAYS THE TRAVEL EXPENSES PROVIDED FOR BY 28 U.S.C. SEC. 1821 FOR WITNESS SUBPOENAED TO TESTIFY ON BEHALF OF GAO REGARDLESS OF WHO REQUESTS THE HEARING. THESE EXPENSES ARE TO BE PAID AT THE TIME OF THE WITNESS'S TRAVEL. GAO DOES NOT PAY EXPENSES OF WITNESSES SUBPOENAED ON BEHALF OF THE OTHER PARTY. 2. WHERE A GAO EMPLOYEE IS A PARTY TO A PROCEEDING BEFORE THE GAO APPEALS BOARD, GAO PAYS THE EMPLOYEE'S TRAVEL EXPENSES JUST AS IF HE WERE IN A TEMPORARY DUTY STATUS REGARDLESS OF WHO REQUESTS THE HEARING. THESE EXPENSES ARE PAID AT THE TIME OF TRAVEL. IF THE PARTY IS NOT A GAO EMPLOYEE AND IF HE PREVAILS AND IS RETROACTIVELY REINSTATED, HE MAY BE PAID TRAVEL EXPENSES TO THE SAME EXTENT AS IF HE HAD BEEN A FEDERAL EMPLOYEE AT THE TIME OF THE HEARING. IF THE PARTY IS NOT A GAO EMPLOYEE AND IF HE PREVAILS BUT IS NOT REINSTATED, OR IF HE LOSES, NO TRAVEL EXPENSES ARE PAYABLE BY GAO.

DIRECTOR OF PERSONNEL:

YOUR MEMORANDUM OF AUGUST 10, 1981, RAISES SEVERAL QUESTIONS CONCERNING THE PAYMENT OF TRAVEL EXPENSES OF WITNESSES AND PARTIES IN CONNECTION WITH HEARINGS BEFORE THE GAO PERSONNEL APPEALS BOARD. BECAUSE DIFFERENT STANDARDS APPLY TO WITNESSES AND PARTIES, THE ENTITLEMENTS OF THOSE TWO CLASSES OF INDIVIDUALS WILL BE ADDRESSED SEPARATELY.

WITNESSES

IN THE CASE OF A WITNESS WHO IS A FEDERAL EMPLOYEE, HIS ENTITLEMENT TO TRAVEL EXPENSES IS GOVERNED BY THE FOLLOWING PROVISION AT 5 U.S.C. SEC. 5751:

"SEC. 5751.TRAVEL EXPENSES OF WITNESSES

"(A) UNDER SUCH REGULATIONS AS THE ATTORNEY GENERAL MAY PRESCRIBE, AN EMPLOYEE AS DEFINED BY SECTION 2105 OF THIS TITLE (EXCEPT AN INDIVIDUAL WHOSE PAY IS DISBURSED BY THE SECRETARY OF THE SENATE OR THE CLERK OF THE HOUSE OF REPRESENTATIVES) SUMMONED, OR ASSIGNED BY HIS AGENCY, TO TESTIFY OR PRODUCE OFFICIAL RECORDS ON BEHALF OF THE UNITED STATES IS ENTITLED TO TRAVEL EXPENSES UNDER SUBCHAPTER I OF THIS CHAPTER. IF THE CASE INVOLVES THE ACTIVITY IN CONNECTION WITH WHICH HE IS EMPLOYED, THE TRAVEL EXPENSES ARE PAID FROM THE APPROPRIATION OTHERWISE AVAILABLE FOR TRAVEL EXPENSES OF THE EMPLOYEE UNDER PROPER CERTIFICATION BY A CERTIFYING OFFICIAL OF THE AGENCY CONCERNED. IF THE CASE DOES NOT INVOLVE ITS ACTIVITY, THE EMPLOYING AGENCY MAY ADVANCE OR PAY THE TRAVEL EXPENSES OF THE EMPLOYEE, AND LATER OBTAIN REIMBURSEMENT FROM THE AGENCY PROPERLY CHARGEABLE WITH THE TRAVEL EXPENSES.

"(B) AN EMPLOYEE AS DEFINED BY SECTION 2105 OF THIS TITLE (EXCEPT AN INDIVIDUAL WHOSE PAY IS DISBURSED BY THE SECRETARY OF THE SENATE OR THE CLERK OF THE HOUSE OF REPRESENTATIVES) SUMMONED, OR ASSIGNED BY HIS AGENCY, TO TESTIFY IN HIS OFFICIAL CAPACITY OR PRODUCE OFFICIAL RECORDS, ON BEHALF OF A PARTY OTHER THAN THE UNITED STATES, IS ENTITLED TO TRAVEL EXPENSES UNDER SUBCHAPTER I OF THIS CHAPTER, EXCEPT TO THE EXTENT THAT TRAVEL EXPENSES ARE PAID TO THE EMPLOYEE FOR HIS APPEARANCE BY THE COURT, AUTHORITY, OR PARTY WHICH CAUSED HIM TO BE SUMMONED."

THE ATTORNEY GENERAL'S IMPLEMENTING REGULATIONS AT 28 C.F.R. SEC. 21.1 MAKE IT CLEAR THAT TRAVEL EXPENSES ARE PAYABLE IN CONNECTION WITH AN "AGENCY PROCEEDING" WHEN AN EMPLOYEE:

"*** IS SUMMONED (AND IS AUTHORIZED BY HIS AGENCY TO RESPOND TO SUCH SUMMONS), OR IS ASSIGNED BY HIS AGENCY: (I) TO TESTIFY OR PRODUCE OFFICIAL RECORDS ON BEHALF OF THE UNITED STATES, OR (II) TO TESTIFY IN HIS OFFICIAL CAPACITY OR PRODUCE OFFICIAL RECORDS ON BEHALF OF A PARTY OTHER THAN THE UNITED STATES."

AS DEFINED BY SECTION 21.1(B)(3), THE TERM "AGENCY PROCEEDING" INCLUDES ANY ADJUDICATION OR AGENCY PROCESS FOR THE FORMULATION OF AN ORDER AND, THUS, INCLUDES PROCEEDINGS BEFORE THE GAO PERSONNEL APPEALS BOARD, AND THE WORD "SUMMONED" EXTENDS TO ANY OFFICIAL REQUEST, INVITATION, OR CALL, EVIDENCED BY AN OFFICIAL WRITING OF THE BOARD.

THE SPECIFIC STANDARDS FOR PAYMENT OF TRAVEL EXPENSES ARE SET FORTH AT SUBSECTIONS 21.1(C) AND (D) AS FOLLOWS:

"(C) ALLOWABLE TRAVEL EXPENSES. AN EMPLOYEE QUALIFYING FOR PAYMENT OF TRAVEL EXPENSES SHALL BE PAID AT RATES AND IN AMOUNTS ALLOWABLE FOR OTHER PURPOSES UNDER THE PROVISIONS OF 5 U.S.C. 5701-5708 AND APPLICABLE REGULATIONS PRESCRIBED THEREUNDER BY THE ADMINISTRATOR OF GENERAL SERVICES AND THE EMPLOYING AGENCY; EXCEPT, HOWEVER, TO THE EXTENT THAT TRAVEL EXPENSES ARE PAID TO THE EMPLOYEE FOR HIS APPEARANCE BY THE COURT, AUTHORITY, OR PARTY WHICH CAUSED HIM TO BE SUMMONED AS A WITNESS ON BEHALF OF A PARTY OTHER THAN THE UNITED STATES.

"(D) PAYMENT AND REIMBURSEMENT. IF THE EMPLOYEE SERVES AS A WITNESS ON BEHALF OF THE UNITED STATES, AND THE CASE INVOLVES THE ACTIVITY IN CONNECTION WITH WHICH HE IS EMPLOYED, THE TRAVEL EXPENSES ARE PAID FROM THE APPROPRIATION OTHERWISE AVAILABLE FOR TRAVEL EXPENSES OF THE EMPLOYEE UNDER PROPER CERTIFICATION BY A CERTIFYING OFFICIAL OF THE AGENCY CONCERNED. IF THE CASE DOES NOT INVOLVE ITS ACTIVITY, THE EMPLOYING AGENCY MAY ADVANCE OR PAY THE TRAVEL EXPENSES OF THE EMPLOYEE, AND LATER OBTAIN REIMBURSEMENT FROM THE AGENCY PROPERLY CHARGEABLE WITH THE TRAVEL EXPENSES BY SUBMITTING TO THE LATTER AN APPROPRIATE BILL TOGETHER WITH A COPY OF THE EMPLOYEE'S APPROVED TRAVEL VOUCHER. IF AN EMPLOYEE SERVES AS A WITNESS TO TESTIFY IN HIS OFFICIAL CAPACITY OR PRODUCE OFFICIAL RECORDS ON BEHALF OF A PARTY OTHER THAN THE UNITED STATES, ALLOWABLE TRAVEL EXPENSES HEREUNDER SHALL BE PAID BY THE EMPLOYING AGENCY FROM THE APPROPRIATION OTHERWISE AVAILABLE FOR TRAVEL EXPENSES OF THE EMPLOYEE UNDER PROPER CERTIFICATION BY A CERTIFYING OFFICIAL."

IN THE CASE OF A GAO OR OTHER FEDERAL EMPLOYEE SUMMONED AS A WITNESS IT MAKES NO DIFFERENCE WHETHER THE HEARING IS REQUESTED BY GAO OR THE COMPLAINING EMPLOYEE AND, TO THE EXTENT THE TESTIMONY IS TO BE GIVEN IN HIS OFFICIAL CAPACITY, IT MAKES NO DIFFERENCE WHETHER HE IS SUMMONED ON BEHALF OF THE UNITED STATES OR A PARTY OTHER THAN THE UNITED STATES. HOWEVER, 5 U.S.C. SEC. 5751 DOES NOT APPLY TO AN EMPLOYEE SUMMONED ON BEHALF OF A PARTY OTHER THAN THE UNITED STATES TO TESTIFY OTHER THAN IN HIS OFFICIAL CAPACITY AND, IN SUCH A CASE, HIS ENTITLEMENT WOULD BE THE SAME AS THAT OF A PRIVATE INDIVIDUAL CALLED AS A WITNESS.

THE BOARD'S PROCEDURES PUBLISHED AT 46 FED.REG. 35481 DO NOT SPECIFICALLY ADDRESS THE SUBJECT OF TRAVEL EXPENSES FOR WITNESSES WHO ARE FEDERAL EMPLOYEES. THEY DO, HOWEVER, PROVIDE AT 4 C.F.R. SEC. 28.21(1)(1) THAT GAO EMPLOYEES SHALL BE MADE AVAILABLE TO PARTICIPATE IN THE HEARING AND SHALL BE IN AN OFFICIAL DUTY STATUS FOR THIS PURPOSE. WITH THE APPROVAL OF THEIR EMPLOYING AGENCY EMPLOYEES OF OTHER FEDERAL AGENCIES ARE TREATED SIMILARLY UNDER THE BOARD'S REGULATIONS, 4 C.F.R. SEC. 28.21(1)(2). COMPARE THE MERIT SYSTEMS PROTECTION BOARD REGULATIONS AT 5 C.F.R. SEC. 1201.37(B)(1) AND THOSE OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AT 29 C.F.R. SEC. 1613.218(E).

IN THE ABSENCE OF OTHER SPECIFIC AUTHORITY, THE TRAVEL EXPENSE ENTITLEMENT OF A WITNESS WHO IS NOT A FEDERAL EMPLOYEE DEPENDS ON WHETHER THE AGENCY CONDUCTING THE HEARING HAS AUTHORITY TO SUBPOENA HIM AS A WITNESS. UNDER 5 U.S.C. SEC. 503(B), A WITNESS IS ENTITLED TO THE FEES AND ALLOWANCES ALLOWED BY STATUTE FOR WITNESSES IN COURTS OF THE UNITED STATES WHEN:

"(2) HE IS SUBPENAED TO AND APPEARS AT A HEARING BEFORE AN AGENCY AUTHORIZED BY LAW TO HOLD HEARINGS AND SUBPENA WITNESSES TO ATTEND THE HEARINGS."

WHILE THE GAO PERSONNEL ACT OF 1980, PUB.LAW. 96-191, 94 STAT. 27, DOES NOT SPECIFICALLY GIVE THE APPEALS BOARD OR ITS GENERAL COUNSEL SUBPOENA AUTHORITY, THE BOARD'S REGULATIONS AT 4 C.F.R. SEC. 28.17(B) AND SEC. 28.21(I) PROVIDE THAT THE HEARING OFFICER AND THE BOARD'S GENERAL COUNSEL MAY ISSUE SUBPOENAS. PRESUMABLY, THE BOARD FINDS ITS AUTHORITY TO SUBPOENA WITNESSES BY ANALOGY TO THE SPECIFIC SUBPOENA AUTHORITY GIVEN THE MERIT SYSTEMS PROTECTION BOARD AND ITS SPECIAL COUNSEL BY 5 U.S.C. SEC. 1205(B)(2)(A), AS IMPLEMENTED BY 5 C.F.R. SEC. 1201.41 AND SEC. 1255.1. WHETHER OR NOT THE GAO BOARD'S VIEW OF ITS SUBPOENA AUTHORITY CAN BE SUSTAINED UNDER THE APPLICABLE PROVISIONS OF THE GAO PERSONNEL ACT OF 1980, WE ARE NOT AWARE THAT THIS ASPECT OF ITS REGULATIONS HAS BEEN CHALLENGED AND IT WILL BE ASSUMED FOR THE PURPOSE OF THIS MEMORANDUM THAT THE BOARD HAS SUBPOENA AUTHORITY.

THUS, BY REASON OF 5 U.S.C. SEC. 503(B) NON-EMPLOYEE WITNESSES SUBPOENAED BY THE BOARD WOULD BE ENTITLED TO THE FEES AND ALLOWANCES PAYABLE TO WITNESSES IN COURTS OF THE UNITED STATES UNDER 28 U.S.C. SEC. 1821. ADDITION TO A FEE OF $30 PER DAY FOR EACH DAY OF ATTENDANCE, INCLUDING TRAVELTIME, SECTION 1821 PROVIDES THAT A WITNESS WILL BE PAID ESSENTIALLY THE SAME TRAVEL ALLOWANCES AN EMPLOYEE WOULD RECEIVE WHILE TRAVELING ON TEMPORARY DUTY. SPECIFICALLY, SUBSECTIONS 1821(C) AND (D) PROVIDE FOR PAYMENT OF THE FOLLOWING TRANSPORTATION AND SUBSISTENCE EXPENSES:

"(C)(1) A WITNESS WHO TRAVELS BY COMMON CARRIER SHALL BE PAID FOR THE ACTUAL EXPENSES OF TRAVEL ON THE BASIS OF THE MEANS OF TRANSPORTATION REASONABLY UTILIZED AND THE DISTANCE NECESSARILY TRAVELED TO AND FROM SUCH WITNESS'S RESIDENCE BY THE SHORTEST PRACTICAL ROUTE IN GOING TO AND RETURNING FROM THE PLACE OF ATTENDANCE. SUCH A WITNESS SHALL UTILIZE A COMMON CARRIER AT THE MOST ECONOMICAL RATE REASONABLY AVAILABLE. RECEIPT OR OTHER EVIDENCE OF ACTUAL COST SHALL BE FURNISHED.

"(2) A TRAVEL ALLOWANCE EQUAL TO THE MILEAGE ALLOWANCE WHICH THE ADMINISTRATOR OF GENERAL SERVICES HAS PRESCRIBED, PURSUANT TO SECTION 5704 OF TITLE 5, FOR OFFICIAL TRAVEL OF EMPLOYEES OF THE FEDERAL GOVERNMENT SHALL BE PAID TO EACH WITNESS WHO TRAVELS BY PRIVATELY OWNED VEHICLE. COMPUTATION OF MILEAGE UNDER THIS PARAGRAPH SHALL BE MADE ON THE BASIS OF A UNIFORMED TABLE OF DISTANCES ADOPTED BY THE ADMINISTRATOR OF GENERAL SERVICES.

"(3) TOLL CHARGES FOR TOLL ROADS, BRIDGES, TUNNELS, AND FERRIES, TAXICAB FARES BETWEEN PLACES OF LODGING AND CARRIER TERMINALS, AND PARKING FEES (UPON PRESENTATION OF A VALID PARKING RECEIPT), SHALL BE PAID IN FULL TO A WITNESS INCURRING SUCH EXPENSES.

"(4) ALL NORMAL TRAVEL EXPENSES WITHIN AND OUTSIDE THE JUDICIAL DISTRICT SHALL BE TAXABLE AS COSTS PURSUANT TO SECTION 1920 OF THIS TITLE.

"(D)(1) A SUBSISTENCE ALLOWANCE SHALL BE PAID TO A WITNESS (OTHER THAN A WITNESS WHO IS INCARCERATED) WHEN AN OVERNIGHT STAY IS REQUIRED AT THE PLACE OF ATTENDANCE BECAUSE SUCH PLACE IS SO FAR REMOVED FROM THE RESIDENCE OF SUCH WITNESS AS TO PROHIBIT RETURN THERETO FROM DAY TO DAY.

"(2) A SUBSISTENCE ALLOWANCE FOR A WITNESS SHALL BE PAID IN AN AMOUNT NOT TO EXCEED THE MAXIMUM PER DIEM ALLOWANCE PRESCRIBED BY THE ADMINISTRATOR OF GENERAL SERVICES, PURSUANT TO SECTION 5702(A) OF TITLE 5, FOR OFFICIAL TRAVEL IN THE AREA OF ATTENDANCE BY EMPLOYEES OF THE FEDERAL GOVERNMENT.

"(3) A SUBSISTENCE ALLOWANCE FOR A WITNESS ATTENDING IN AN AREA DESIGNATED BY THE ADMINISTRATOR OF GENERAL SERVICES AS A HIGH-COST AREA SHALL BE PAID IN AN AMOUNT NOT TO EXCEED THE MAXIMUM ACTUAL SUBSISTENCE ALLOWANCE PRESCRIBED BY THE ADMINISTRATOR, PURSUANT TO SECTION 5702(C)(B) OF TITLE 5, FOR OFFICIAL TRAVEL IN SUCH AREA BY EMPLOYEES OF THE FEDERAL GOVERNMENT.

"(4) WHEN A WITNESS IS DETAINED PURSUANT TO SECTION 3149 OF TITLE 18 FOR WANT OF SECURITY FOR HIS APPEARANCE, HE SHALL BE ENTITLED FOR EACH DAY OF DETENTION WHEN NOT IN ATTENDANCE AT COURT, IN ADDITION TO HIS SUBSISTENCE, TO THE DAILY ATTENDANCE FEE PROVIDED BY SUBSECTION (B) OF THIS SECTION."

IN THE CASE OF NON-EMPLOYEES IT MAKES NO DIFFERENCE WHETHER GAO OR THE OTHER PARTY HAS INITIATED THE ACTION. IN BOTH CASES, WITNESS FEES AND ALLOWANCES ARE PAID IN THE FIRST INSTANCE BY THE PARTY REQUESTING THEIR APPEARANCE. THE BOARD'S PROCEDURES AT 4 C.F.R. SEC. 28.21(1)(3) DRAW A DISTINCTION BETWEEN FEDERAL EMPLOYEES AND OTHER INDIVIDUALS CALLED AS WITNESSES, AND AS TO THE LATTER THEY PROVIDE:

"(3) THE FEES AND EXPENSES OF OTHER PERSONS CALLED TO TESTIFY AT A BOARD HEARING SHALL, IN THE FIRST INSTANCE, BE PAID BY THE PARTY REQUESTING THEIR APPEARANCE, SUBJECT TO A SUBSEQUENT DECISION OTHERWISE IN ACCORDANCE WITH PARAGRAPH (M) OF THIS SECTION."

IN CHARGING WITNESS FEES AND ALLOWANCES IN THE FIRST INSTANCE TO THE PARTY ON WHOSE BEHALF THE WITNESS IS CALLED, THE GAO BOARD'S PROCEDURES ARE CONSISTENT WITH THE MERIT SYSTEMS PROTECTION BOARD PROCEDURES AT 5 C.F.R. SEC. 1201.37(B)(3). THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION'S REGULATIONS DO NOT SPECIFICALLY ADDRESS THE ISSUE OF WHO IS TO PAY SUCH WITNESSES' EXPENSES IN THE FIRST INSTANCE.

THE GAO BOARD'S PROCEDURE SUGGESTS THAT WITNESS FEES AND ALLOWANCES MAY ULTIMATELY BE CHARGED TO THE LOSING PARTY. PARAGRAPH (M), TO WHICH THE ABOVE-QUOTED LANGUAGE OF 4 C.F.R. SEC. 28.21(1)(3) REFERS, STATES:

"(M) WITHIN 20 DAYS AFTER A DECISION OF THE BOARD BECOMES FINAL, THE EMPLOYEE-PETITIONER MAY SUBMIT A REQUEST FOR REASONABLE ATTORNEY'S FEES AND COSTS. AFTER PROVIDING GAO WITH 20 DAYS IN WHICH TO RESPOND, THE BOARD OR A MEMBER OF THE BOARD SHALL RULE ON THE REQUEST. RULINGS ON ATTORNEY'S FEES SHALL BE CONSISTENT WITH THE STANDARDS SET FORTH AT 5 U.S.C. 7701(G).

THIS DECISION ON ATTORNEY'S FEES SHALL BE A FINAL DECISION WHICH IS APPEALABLE IN ACCORDANCE WITH SEC. 28.27." THE GAO PERSONNEL ACT OF 1980 DOES NOT GIVE THE BOARD SPECIFIC AUTHORITY TO ASSESS COSTS AGAINST THE LOSING PARTY AND THERE WOULD APPEAR TO BE SOME QUESTION AS TO ITS AUTHORITY TO DO SO IN OTHER THAN DISCRIMINATION CASES. WE NOTE THAT THE MERIT SYSTEMS PROTECTION BOARD HAS AUTHORITY TO AWARD ATTORNEY FEES TO AN EMPLOYEE OR APPLICANT WHO IS THE PREVAILING PARTY, BUT IT DOES NOT HAVE AUTHORITY TO ASSESS COSTS OTHER THAN ATTORNEY FEES IN SUCH A CASE. SEE 5 U.S.C. SEC. 7701(G). THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, HOWEVER, ASSERTS THE AUTHORITY TO AWARD BOTH ATTORNEY FEES AND OTHER COSTS, INCLUDING FEES FOR WITNESSES, TO THE COMPLAINING APPLICANT OR EMPLOYEE PURSUANT TO ITS GENERAL AUTHORITY TO ENFORCE EQUAL EMPLOYMENT IN THE FEDERAL GOVERNMENT. SEE 42 U.S.C. SEC. 2000E-16 AND 42 C.F.R. SEC. 1613.271(C). SINCE THIS IS A MATTER THAT COULD BE A POINT OF CONTENTION, GAO SHOULD NOT PAY THE TRAVEL EXPENSES OF NON-FEDERAL EMPLOYEE WITNESSES UNLESS THEY ARE SUBPOENAED TO TESTIFY ON BEHALF OF THE GOVERNMENT. EXPENSES OF THE PETITIONER'S WITNESSES, EVEN IF ASSESSED AGAINST GAO, AS THE LOSING PARTY, BY THE BOARD, SHOULD BE PAID BY GAO ONLY ON THE ADVICE OF COUNSEL.

PARTIES

WHERE THE PARTY TO THE ADMINISTRATIVE PROCEEDING IS A GAO EMPLOYEE, HIS TRAVEL EXPENSES TO ATTEND AND PARTICIPATE IN THE HEARING WOULD BE PAYABLE TO THE SAME EXTENT AS IF HE WERE IN A TEMPORARY DUTY TRAVEL STATUS. PRIOR CASES THE COMPTROLLER GENERAL HAS HELD THAT PARTICIPATION IN HEARINGS BY THE PETITIONING OR APPEALING EMPLOYEE CONSTITUTES "OFFICIAL BUSINESS" AND THE EMPLOYEE MAY BE REIMBURSED FOR TRAVEL EXPENSES INCURRED. 33 COMP.GEN. 582 (1954), B-180469, FEBRUARY 28, 1974; AND B-184566-O.M., FEBRUARY 27, 1979. THESE CASES HAVE NOT MADE THE PAYMENT OF TRAVEL EXPENSES DEPENDENT UPON WHETHER THE REQUEST FOR THE HEARING IS MADE BY THE GOVERNMENT OR THE EMPLOYEE. SEE, E.G., B-184566-O.M., FEBRUARY 27, 1979. BY THE SAME TOKEN, AS TO PAYMENT OF TRAVEL ALLOWANCES, THEY HAVE NOT DRAWN A DISTINCTION AS TO WHETHER THE EMPLOYEE WAS IN A PAY STATUS, OR SUSPENDED AND IN A LEAVE-WITHOUT-PAY STATUS WHILE PURSUING HIS APPEAL. COMP.GEN. 582, 583, SUPRA. ACCORDINGLY, A GAO EMPLOYEE WHO IS A PARTY TO PROCEEDINGS BEFORE THE APPEALS BOARD SHOULD BE PAID TRAVEL EXPENSES JUST AS THOUGH HE WERE IN A TEMPORARY DUTY TRAVEL STATUS WHILE ATTENDING A HEARING.

WHERE THE PARTY TO THE PROCEEDING IS NOT A FEDERAL EMPLOYEE AT THE TIME OF THE HEARING, THERE IS ONLY LIMITED AUTHORITY TO REIMBURSE HIS TRAVEL EXPENSES. IF THE PARTY PREVAILS, AND IF HE IS RETROACTIVELY REINSTATED TO FEDERAL EMPLOYMENT FOR THE PERIOD INCLUSIVE OF THE TIME DEVOTED TO THE HEARING, HIS TRAVEL MAY BE PAID TO THE SAME EXTENT AS IF HE HAD BEEN A FEDERAL EMPLOYEE AT THE TIME OF THE HEARING. MATTER OF MORDEROSIAN, B-156482, JUNE 23, 1975. HOWEVER, IF THE PARTY PREVAILS AND IF HIS REMEDY IS OTHER THAN REINSTATEMENT, THERE WOULD NOT APPEAR TO BE ANY BASIS TO ASSESS HIS TRAVEL COSTS AGAINST THE LOSING PARTY. WHETHER OR NOT THE BOARD HAS AUTHORITY TO AWARD COSTS TO THE PREVAILING PARTY IN A PARTICULAR TYPE OF ACTION, WE KNOW OF NO AUTHORITY UPON WHICH IT COULD AWARD TRAVEL EXPENSES FOR THE PURPOSE OF ASSISTING IN THE PROSECUTION OR MANAGEMENT OF THE PROCEEDINGS, TO AN UNSUCCESSFUL PARTY WHO IS NOT A FEDERAL EMPLOYEE.

CONCLUSION

THE FOLLOWING SUMMARY IS PROVIDED AS A SHORTHAND METHOD OF DETERMINING THE TRAVEL EXPENSE ENTITLEMENT OF WITNESSES AND PARTIES TO GAO PERSONNEL APPEALS BOARD HEARINGS.

GAO EMPLOYEE WITNESSES

IF THE WITNESS IS A GAO EMPLOYEE, AND IS CALLED ON BEHALF OF THE UNITED STATES OR IN HIS OFFICIAL CAPACITY ON BEHALF OF EITHER PARTY, GAO PAYS TRAVEL EXPENSES UNDER 5 U.S.C. SEC. 5751 AND 28 C.F.R. SEC. 21.1 REGARDLESS OF WHO REQUESTS THE HEARING. EXPENSES ARE PAID AT THE TIME OF TRAVEL.

NON-FEDERAL EMPLOYEE WITNESSES

IF THE WITNESS IS NOT A FEDERAL EMPLOYEE, UNDER 5 U.S.C. SEC. 503 GAO PAYS THE TRAVEL EXPENSES PROVIDED FOR BY 28 U.S.C. SEC. 1821 FOR WITNESSES SUBPOENAED TO TESTIFY ON BEHALF OF GAO, REGARDLESS OF WHO REQUESTS THE HEARING. THESE EXPENSES ARE TO BE PAID AT THE TIME OF THE WITNESS'S TRAVEL. GAO DOES NOT PAY EXPENSES OF WITNESSES SUBPOENAED ON BEHALF OF THE OTHER PARTY.

GAO EMPLOYEE PARTY

IF THE PARTY IS A GAO EMPLOYEE, GAO PAYS TRAVEL EXPENSES JUST AS IF HE WERE IN A TEMPORARY DUTY STATUS REGARDLESS OF WHO REQUESTS THE HEARING. THESE EXPENSES ARE PAID AT THE TIME OF THE TRAVEL.

NON-FEDERAL PARTY

IF THE PARTY IS NOT A GAO EMPLOYEE:

(A) IF HE PREVAILS AND IS RETROACTIVELY REINSTATED HE MAY BE PAID TRAVEL EXPENSES TO THE SAME EXTENT AS IF HE HAD BEEN A FEDERAL EMPLOYEE AT THE TIME OF THE HEARING. THESE EXPENSES WOULD BE PAYABLE AFTER THE BOARD'S FINAL DETERMINATION, REGARDLESS OF WHO REQUESTED THE HEARING.

(B) IF HE PREVAILS BUT IS NOT REINSTATED, OR IF HE LOSES, NO TRAVEL EXPENSES ARE PAYABLE BY GAO.