B-31204, FEBRUARY 19, 1943, 22 COMP. GEN. 821

B-31204: Feb 19, 1943

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IT IS NOT FOR THE ADMINISTRATIVE OFFICE CONCERNED TO REQUEST A REVIEW OR RECONSIDERATION THEREOF. " COVERING THE SAME ITEMS IS OBJECTIONABLE FROM THE STANDPOINT THAT IT PLACES IN CIRCULATION A DOCUMENT WHI RESULT IN A DUPLICATE OR ERRONEOUS PAYMENT. IS NOT A PROPER VOUCHER FOR SUBMISSION BY A CERTIFYING OFFICER FOR AN ADVANCE DECISION BY THE COMPTROLLER GENERAL UNDER AUTHORITY OF THE ACT OF DECEMBER 29. IT IS AN ESTABLISHED RULE THAT THE AMOUNT THAT MAY BE ALLOWED FOR SUCH SERVICES IS THE COMPENSATION PRESCRIBED BY STATE STATUTES. A CLAIM FOR SUCH SERVICES IN AN AMOUNT EXCEEDING THAT AUTHORIZED UNDER THE STATE STATUTE MAY NOT BE ALLOWED UNLESS THERE BE FURNISHED A SHOWING THAT THE COMPENSATION PROVIDED BY THE STATUTE IS CONSIDERED AS INADEQUATE.

B-31204, FEBRUARY 19, 1943, 22 COMP. GEN. 821

CLAIM REVIEW REQUESTS BY ADMINISTRATIVE OFFICER; DEPOSITION FEES OF STATE OFFICIALS WHEN A CLAIM HAS BEEN DISALLOWED BY THIS OFFICE, IT IS NOT FOR THE ADMINISTRATIVE OFFICE CONCERNED TO REQUEST A REVIEW OR RECONSIDERATION THEREOF, BUT, RATHER, IF THE CLAIMANT BE DISSATISFIED WITH THE ACTION TAKEN, SUCH REQUEST SHOULD BE MADE BY HIM. WHEN A CLAIM HAS BEEN DISALLOWED BY THIS OFFICE, THE EXECUTION AND SUBMISSION BY THE ADMINISTRATIVE OFFICE OF A NEW VOUCHER, EVEN IF TERMED "RECLAIM" OR "DUPLICATE," COVERING THE SAME ITEMS IS OBJECTIONABLE FROM THE STANDPOINT THAT IT PLACES IN CIRCULATION A DOCUMENT WHI RESULT IN A DUPLICATE OR ERRONEOUS PAYMENT. A "DUPLICATE" OR "RECLAIM" VOUCHER, COVERING ITEMS PREVIOUSLY DISALLOWED BY THIS OFFICE UPON DIRECT SETTLEMENT OF A CLAIM, IS NOT A PROPER VOUCHER FOR SUBMISSION BY A CERTIFYING OFFICER FOR AN ADVANCE DECISION BY THE COMPTROLLER GENERAL UNDER AUTHORITY OF THE ACT OF DECEMBER 29, 1941. IN THE ABSENCE OF FEDERAL STATUTES FIXING THE FEES AND COMPENSATION OF NOTARIES PUBLIC OR OTHER STATE OFFICIALS FOR SERVICES RENDERED BY THEM IN TAKING DEPOSITIONS FOR USE IN FEDERAL GOVERNMENT PROCEEDINGS, IT IS AN ESTABLISHED RULE THAT THE AMOUNT THAT MAY BE ALLOWED FOR SUCH SERVICES IS THE COMPENSATION PRESCRIBED BY STATE STATUTES, AND, THEREFORE, A CLAIM FOR SUCH SERVICES IN AN AMOUNT EXCEEDING THAT AUTHORIZED UNDER THE STATE STATUTE MAY NOT BE ALLOWED UNLESS THERE BE FURNISHED A SHOWING THAT THE COMPENSATION PROVIDED BY THE STATUTE IS CONSIDERED AS INADEQUATE, OR THAT IT IS THE ESTABLISHED PRACTICE OF THE STATE COURTS TO DISREGARD SUCH STATUTE AS OBSOLETE OR OTHERWISE INAPPLICABLE.

ACTING COMPTROLLER GENERAL ELLIOTT TO BERTRAND F. SHEEHY, DEPARTMENT OF LABOR, FEBRUARY 19, 943:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 16, 1942, BM:BFS:GFP, AS FOLLOWS:

THERE IS TRANSMITTED HEREWITH FOR YOUR CONSIDERATION DUPLICATE VOUCHERS SUBMITTED BY OMER H. AMYOT COVERING SERVICES PERFORMED BY HIM FOR THE WAGE AND HOUR DIVISION IN CONNECTION WITH THE TAKING OF DEPOSITIONS. PAYMENT OF THE ORIGINAL VOUCHERS WAS REFUSED ON SETTLEMENT CERTIFICATE DATED SEPTEMBER 20, 1942 FOR CLAIM NO. 1077775.

RECONSIDERATION OF THIS DECISION IS REQUESTED FOR THE FOLLOWING REASONS:

1. THAT SECTION 9 OF THE ACT OF JUNE 25, 1938, 52 STAT. 1065, WHICH MAKES APPLICABLE, FOR THE PURPOSE OF ANY HEARING OR INVESTIGATION UNDER THE FAIR LABOR STANDARDS ACT, THE PROVISIONS OF SECTIONS 9 AND 10 OF THE FEDERAL TRADE COMMISSION ACT OF SEPTEMBER 26, 1914, AS AMENDED ( U.S.C. TITLE 15, SECTIONS 49 AND 50), WHICH, IN TURN, IS CONSIDERED TO INVOKE THE PROVISIONS OF TITLE 28, U.S. CODE, SECTION 555, DOES NOT APPLY TO THE SUBJECT CASE. THE DEPOSITIONS HERE INVOLVED WERE NOT TAKEN AT AN ADMINISTRATIVE HEARING BEFORE OFFICIALS OF THE WAGE AND HOUR DIVISION BUT IN CONNECTION WITH A CASE CURRENTLY BEING LITIGATED IN A FEDERAL COURT.

2. THAT FEES FOR THE TYPE OF SERVICE RENDERED BY MR. AMYOT ARE NOT PRESCRIBED IN TITLE 28, U.S. CODE, SECTION 555; AND THAT SAID SECTION ENUMERATES BUT DOES NOT LIMIT THE FEES COLLECTIBLE BY A CLERK OF COURT. THE SERVICES OF MR. AMYOT, BEING NECESSARY IN A CAPACITY FOR WHICH NO FEE IS PRESCRIBED BY STATUTE, WERE SECURED AT THE CURRENT AND LOCAL VALUATION OF SUCH SERVICES AND CHARGED AS ARE OTHER MISCELLANEOUS EXPENDITURES. THE TYPE OF SERVICE IS DESCRIBED IN THE ATTACHED LETTERS FROM OUR REGIONAL DIRECTOR IN BOSTON. THERE IS FURTHER DOUBT AS TO THE EFFICACY OF TITLE 15, U.S. CODE, SECTION 49 AND TITLE 28, ID., SECTION 555, IN THAT A CLERK OF COURT, BEING UNDER A DISABILITY IMPOSED BY THE PREFACE TO SECTION 555-- - "EXCEPT WHEN ON BEHALF OF THE UNITED TATES"--- WOULD NOT BE ENTITLED TO A FEE FOR THE TAKING OF THE DEPOSITIONS.

3. THAT, PRIOR TO FEBRUARY 1, 1942, WHEN OUR VOUCHERS WERE SUBJECT TO PRE -AUDIT BY THE GENERAL ACCOUNTING OFFICE, REFERENCE WAS NEVER MADE TO THE SECTIONS OF THE CODE, HERE UNDER DISCUSSION. OCCASIONALLY A VOUCHER WAS RETURNED WITH A REQUEST FOR CITATION TO THE APPLICABLE STATE STATUTE, BUT, BEYOND THAT, PAYMENT WAS NOT QUESTIONED. NEITHER ARE WE ABLE TO FIND REFERENCE TO THE PROVISIONS OF THE U.S.C. IN ANY PREVIOUS DECISION OF YOUR OFFICE ON THE SUBJECT OF TAKING DEPOSITIONS.

4. THAT, IN THESE TIMES, IT IS ABSOLUTELY IMPOSSIBLE TO OBTAIN, IN ANY SECTION OF THE COUNTRY, STENOGRAPHIC SERVICES OF THE TYPE REQUIRED, FOR THE FEES PRESCRIBED IN SECTION 555 OF TITLE 28. THE NECESSITY FOR SECURING SUCH OUTSIDE SERVICES IS READILY APPARENT SINCE OUR OWN STENOGRAPHERS ARE IN A CLASS DISQUALIFIED FOR INTEREST UNDER RULE 28 (C) OF THE RULES OF CIVIL PROCEDURE FOR THE DISTRICT COURTS OF THE UNITED STATES. IF WE ARE HELD RIGIDLY TO THE AFOREMENTIONED LIMITATION ON FEES, IT WILL MEAN THAT THE PRACTICE OF TAKING DEPOSITIONS MUST BE DISCONTINUED BY THE DIVISION. SINCE THESE ARE ALWAYS NECESSARY FOR THE PROPER PREPARATION OF A CASE FOR LITIGATION AND FOR USE DURING THE TRIAL, THE DIVISION WILL BE SEVERELY HANDICAPPED IN ITS EFFORT TO ENFORCE THE FAIR LABOR STANDARDS ACT. IN A DECISION OF YOUR OFFICE FOUND IN VOLUME 14, DECISIONS OF THE COMPTROLLER GENERAL, AT PAGE 731, THERE IS NOTED A TENDENCY TOWARD APPROVAL OF PAYMENTS FOR STENOGRAPHIC SERVICES IN EXCESS OF THE FEES PRESCRIBED BY VARIOUS STATE STATUTES PROVIDED THERE IS EVIDENCE THAT SUCH SERVICES COULD NOT BE SECURED AT STATUTORY RATES. MAY WE NOT CONSIDER THIS AS APPLICABLE TO CHARGES FOR SERVICES FOR WHICH NEITHER STATE NOR FEDERAL STATUTES PRESCRIBE A EE?

THERE EXISTS ALSO ANOTHER PROBLEM NOT APPEARING IN THE SUBJECT VOUCHERS BUT WHICH DOES APPEAR IN SEVERAL OTHER CLAIMS WHICH WE ARE HESITANT TO CERTIFY. IT IS A QUESTION AS TO THE LEGALITY OF PAYMENT OF PER DIEM AND TRAVELING EXPENSES TO A NOTARY OR STENOGRAPHER IN CONNECTION WITH THE TAKING OF DEPOSITIONS. IN THESE TIMES WE FIND MANY OF OUR PROPOSED WITNESSES IN THE ARMED FORCES OF THE UNITED STATES. THE DURATION OF THEIR LOCATIONS IN ANY ONE PLACE AND THEIR FUTURE MOVEMENTS ARE NECESSARILY EXTREMELY UNCERTAIN. IF THEIR DEPOSITIONS ARE TO BE TAKEN AT ALL, THEY MUST BE TAKEN WHEN AND WHERE WE CAN FIND THEM. OUR ATTORNEYS HAVE ADOPTED FOR THIS PURPOSE THE PRACTICE OF TAKING A NOTARY AND/OR A STENOGRAPHER TO THEIR TEMPORARY LOCATIONS. IF THE ENSUING CLAIMS FOR PER DIEM AND MILEAGE OR RAILROAD FARE ARE REIMBURSABLE, MAY WE BE INFORMED ON WHAT BASIS AND AT WHAT RATE?

A FAVORABLE RULING ON THESE POINTS WILL BE OF CONSIDERABLE ASSISTANCE IN EFFICIENTLY CARRYING ON THE WORK OF THE DIVISION.

THE RECORD DISCLOSES THAT TWO VOUCHERS--- ONE IN THE AMOUNT OF $15 AND THE OTHER FOR $30--- COVERING THE CLAIM OF OMER H. AMYOT, MANCHESTER, NEW HAMPSHIRE, FOR SERVICES RENDERED AS A NOTARY PUBLIC IN TAKING DEPOSITIONS FOR THE WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR, ON DECEMBER 16, 17 AND 18, 1941, WERE FORWARDED TO THIS OFFICE FOR DIRECT SETTLEMENT. THE CLAIM WAS DISALLOWED UNDER DATE OF SEPTEMBER 30, 1942, FOR THE REASON THAT SECTION 9 OF THE ACT OF JUNE 26, 1938, 52 STAT. 1065, MAKES APPLICABLE THE PROVISIONS OF SECTIONS 9 AND 10 OF THE FEDERAL TRADE COMMISSION ACT OF SEPTEMBER 26, 1914, 38 STAT. 722, 723, 15 U.S.C. 49 AND 50, FOR THE FIXING OF FEES WHICH MAY BE PAID TO PERSONS TAKING DEPOSITIONS.

IN VIEW OF THE ACTION TAKEN BY THIS OFFICE ON THE ORIGINAL VOUCHERS IT IS NOT UNDERSTOOD WHY YOU NOW SUBMIT DUPLICATE VOUCHERS FOR THE SAME ITEMS. WHEN A CLAIM IS DISALLOWED BY THIS OFFICE IT IS NOT FOR THE ADMINISTRATIVE OFFICE TO REQUEST A REVIEW OR RECONSIDERATION OF THE CLAIM BUT FOR THE CLAIMANT TO MAKE SUCH REQUEST IF HE IS DISSATISFIED WITH THE ACTION TAKEN. IN ANY EVENT, THE EXECUTION AND SUBMISSION OF A NEW VOUCHER EVEN IF TERMED "RECLAIM" OR "DUPLICATE" VOUCHER WOULD APPEAR NOT ONLY UNNECESSARY BUT OBJECTIONABLE FROM THE STANDPOINT THAT IT PLACES IN CIRCULATION A WHICH MAY RESULT IN A DUPLICATE OR ERRONEOUS PAYMENT. ALSO IT SHOULD BE APPARENT THAT UNDER SUCH CIRCUMSTANCES A "DUPLICATE" OR "RECLAIM" VOUCHER IS NOT A PROPER VOUCHER FOR SUBMISSION BY A CERTIFYING OFFICER FOR AN ADVANCE DECISION UNDER THE ACT OF DECEMBER 29, 1941, 55 STAT. 876. IT MAY BE SAID, HOWEVER, FOR YOUR INFORMATION THAT EVEN IF A PROPER REQUEST FOR REVIEW WERE SUBMITTED BY THE CLAIMANT THE DISALLOWANCE OF THE CLAIM AS SUBMITTED WOULD HAVE TO BE SUSTAINED.

SINCE IT NOW APPEARS FROM YOUR LETTER THAT THE DEPOSITIONS IN QUESTION WERE TAKEN IN CONNECTION WITH CASES PENDING IN A FEDERAL COURT, AND NOT AT ADMINISTRATIVE HEARINGS BEFORE OFFICIALS OF THE WAGE AND HOUR DIVISION, THE PROVISIONS OF LAW ABOVE REFERRED TO--- AND, CONCOMITANTLY, 28 U.S.C. 555--- MAY NOT BE FOR APPLICATION, BUT IT DOES NOT FOLLOW THAT BECAUSE OF SUCH NON-APPLICABILITY THE CLAIM OF MR. AMYOT IS OTHERWISE FOR ALLOWANCE.

IT IS AN ESTABLISHED RULE THAT IN THE ABSENCE OF FEDERAL STATUTES FIXING THE FEES AND COMPENSATION OF NOTARIES PUBLIC OR OTHER STATE OFFICIALS FOR SERVICES RENDERED BY THEM IN TAKING DEPOSITIONS FOR USE IN FEDERAL GOVERNMENT PROCEEDINGS, THE AMOUNT FOR ALLOWANCE IS THE COMPENSATION PRESCRIBED BY STATE STATUTES FOR SUCH SERVICES. 11 COMP. GEN. 428. THAT CONNECTION, SECTION 19, CHAPTER 338, NEW HAMPSHIRE LAWS, PROVIDES:

OFFICIALS, JUSTICES OF THE PEACE OR OTHER OFFICERS SHALL BE ALLOWED:

FOR SWEARING EACH WITNESS AND CAPTION OF DEPOSITION, THIRTY-FOUR CENTS.

FOR WRITING A DEPOSITION, EACH PAGE, SEVENTEEN CENTS. HENCE, PAYMENT OF THE INSTANT CLAIM MAY BE MADE ONLY IN ACCORDANCE WITH THE TERMS OF THE FOREGOING STATE STATUTE UPON RECEIPT OF AN ITEMIZATION OF THE SERVICES RENDERED.

THE STATEMENT IN YOUR LETTER THAT MR. AMYOT SHOULD BE REIMBURSED FOR HIS SERVICES AT THE RATE OF $15 A DAY--- APPARENTLY IN EXCESS OF THE FEES PRESCRIBED BY THE STATE LAW, SUPRA, FOR SUCH SERVICE--- WOULD SEEM TO BE PREDICATED MAINLY UPON THE GROUND THAT, ALTHOUGH MR. AMYOT IS COMMISSIONED AS A NOTARY PUBLIC, THE DUTY PERFORMED BY HIM WAS NOT THE PERFUNCTORY ONE OF TAKING ACKNOWLEDGMENTS ONLY, BUT THAT HIS SERVICES IN THE PROCEEDINGS IN QUESTION WERE RENDERED AS A ,PRESIDING OFFICER" OR "AUDITOR.' IT WOULD SEEM NECESSARY, THEREFORE, TO CONSIDER THE GENERAL NATURE OF THE DUTIES REQUIRED TO BE PERFORMED BY A PERSON TAKING DEPOSITIONS. WHILE IT DOES NOT APPEAR THAT EITHER THE LAWS OF NEW HAMPSHIRE OR FEDERAL STATUTES PRESCRIBE THE COURSE OF CONDUCT OF AN OFFICER IN TAKING DEPOSITIONS, RULES 26 ET SEQ. OF THE RULES OF CIVIL PROCEDURE FOR THE DISTRICT COURTS OF THE UNITED STATES (28 U.S.C. FOLLOWING SECTION 723C) ARE ILLUSTRATIVE OF THE SCOPE OF SUCH DUTIES. IT IS PROVIDED BY SAID RULES THAT THE OFFICER BEFORE WHOM THE DEPOSITION IS TO BE TAKEN SHALL PUT THE WITNESS ON OATH AND SHALL PERSONALLY, OR BY SOME ONE ACTING UNDER HIS DIRECTION AND IN HIS PRESENCE, RECORD THE TESTIMONY OF THE WITNESS, ANY OBJECTIONS TO THE PROCEEDINGS TO BE NOTED BY THE OFFICER UPON THE DEPOSITION ( RULE 30 (C) ); THAT ANY CHANGES IN FORM OR SUBSTANCE WHICH THE WITNESS DESIRES TO MAKE SHALL BE ENTERED UPON THE DEPOSITION BY THE OFFICER WITH A STATEMENT OF THE REASONS GIVEN BY THE WITNESS FOR MAKING THEM ( RULE 30 (E) ); THAT THE OFFICER SHALL CERTIFY ON THE DEPOSITION THAT THE WITNESS WAS SWORN BY HIM AND THAT THE DEPOSITION IS A TRUE RECORD OF THE TESTIMONY GIVEN BY THE WITNESS, AND THAT HE SHALL THEN SEAL THE DEPOSITION IN AN ENVELOPE AND FILE IT WITH THE COURT IN WHICH THE ACTION IS PENDING ( RULE 30 (F) ). APPARENTLY, HOWEVER, THE OFFICER DOES NOT CONTROL COUNSEL IN THE EXAMINATION OF WITNESSES, OR DETERMINE ANY QUESTION THAT MIGHT ARISE, SUCH AS THE COMPETENCY OF THE WITNESS, THE PROPRIETY OF QUESTIONS OR THE ADMISSIBILITY OF EVIDENCE. HE MERELY ADMINISTERS THE OATH TO WITNESSES, RECORDS THE QUESTIONS AND ANSWERS, AND NOTES THE OBJECTIONS AND EXCEPTIONS FOR SUBSEQUENT DETERMINATION BY THE COURT. THUS, IT WOULD SEEM THAT UNDER THE ABOVE RULES THE DUTIES OF THE PERSON TAKING THE DEPOSITION ARE LITTLE MORE THAN MINISTERIAL.

SINCE IT IS STATED IN THE LETTER DATED NOVEMBER 12, 1942, OF THE REGIONAL DIRECTOR, WAGE AND HOUR DIVISION, BOSTON, MASSACHUSETTS, ENCLOSED WITH YOUR SUBMISSION, THAT MR. AMYOT DID NOT SUPPLY STENOGRAPHIC SERVICE OR SUBMIT ANY CLAIM THEREFOR, IT WOULD SEEM FROM THE PRESENT RECORD THAT THE SERVICES RENDERED BY HIM DID NOT EXTEND BEYOND THOSE MINISTERIAL FUNCTIONS ABOVE REFERRED TO. AS IT DOES NOT APPEAR THAT THE RATE OF $15 PER DAY, PROPOSED TO BE PAID FOR SUCH SERVICE, IS AUTHORIZED UNDER TH PROVISIONS OF THE APPLICABLE STATE STATUTES, AND IN THE ABSENCE OF A SHOWING THAT THE COMPENSATION PROVIDED THEREBY IS CONSIDERED AS INADEQUATE, OR THAT IT IS THE ESTABLISHED PRACTICE OF THE STATE COURTS TO DISREGARD SUCH STATUTE AS OBSOLETE OR OTHERWISE INAPPLICABLE, IT MUST BE CONCLUDED THAT PAYMENT AT THE RATE OF $15 A DAY AS CLAIMED IS NOT AUTHORIZED.

WITH RESPECT TO THE QUESTION SET FORTH IN THE PENULTIMATE PARAGRAPH OF YOUR SUBMISSION, YOUR ATTENTION IS INVITED TO SECTION 3 OF THE ACT OF DECEMBER 29, 1941, 55 STAT. 876, WHICH PROVIDES:

THE LIABILITY OF CERTIFYING OFFICERS OR EMPLOYEES SHALL BE ENFORCED IN THE SAME MANNER AND TO THE SAME EXTENT AS NOW PROVIDED BY LAW WITH RESPECT TO ENFORCEMENT OF THE LIABILITY OF DISBURSING AND OTHER ACCOUNTABLE OFFICERS; AND THEY SHALL HAVE THE RIGHT TO APPLY FOR AND OBTAIN A DECISION BY THE COMPTROLLER GENERAL ON ANY QUESTION OF LAW INVOLVED IN A PAYMENT ON ANY VOUCHERS PRESENTED TO THEM FOR CERTIFICATION.

UNDER THE FOREGOING STATUTE, AS AN AUTHORIZED CERTIFYING OFFICER, YOU ARE ENTITLED TO A DECISION ON A QUESTION SPECIFICALLY INVOLVED IN A PAYMENT ON ANY VOUCHER PRESENTED TO YOU FOR CERTIFICATION. SEE 21 COMP. GEN. 1128. AS YOU HAVE NOT SUBMITTED FOR CONSIDERATION A VOUCHER PROPERLY CERTIFIED AND APPROVED, IT WILL BE SEEN FROM THE STATUTE AND DECISION, SUPRA, THAT I AM WITHOUT AUTHORITY TO RENDER A DECISION ON THE QUESTION PRESENTED.