B-35233, JULY 22, 1943, 23 COMP. GEN. 47

B-35233, JULY 22, 1943, 23 COMP. GEN. 47

WITNESSES - TRAVELING EXPENSES - GOVERNMENT PERSONNEL TESTIFYING ON BEHALF OF UNITED STATES THE PROVISION IN SECTION 850, REVISED STATUTES, AS AMENDED, THAT THE TRAVELING EXPENSES OF OFFICERS AND EMPLOYEES WHO APPEAR AS WITNESSES ON BEHALF OF THE UNITED STATES IN ANY CASE ,INVOLVING THE ACTIVITY IN CONNECTION WITH WHICH SUCH PERSON IS EMPLOYED" BE PAID BY THAT ACTIVITY CONTEMPLATES THAT THE EMPLOYING AGENCY PAY FROM ITS APPROPRIATION THE TRAVELING EXPENSES INCURRED BY THE WITNESS ONLY WHERE THE FACTS OR INFORMATION ASCERTAINED BY THE EMPLOYEE AS PART OF HIS OFFICIAL DUTIES FORMS THE BASIS OF THE CASE, OR WHERE THE PROCEEDING IS PREDICATED UPON A LAW THAT THE EMPLOYING AGENCY IS REQUIRED TO ADMINISTER. WHERE A FOOD AND DRUG ADMINISTRATION EMPLOYEE TESTIFIED, AS TO FACTS ASCERTAINED WHILE PERFORMING HIS OFFICIAL DUTIES, AT THE REQUEST OF AND IN CONNECTION WITH COURT PROCEEDINGS INITIATED BY THE OFFICE OF PRICE ADMINISTRATION WHICH DID NOT DIRECTLY INVOLVE THE FOOD AND DRUG LAWS, THE PROVISION IN SECTION 850, REVISED STATUTES, AS AMENDED, THAT TRAVELING EXPENSES OF EMPLOYEES APPEARING AS GOVERNMENT WITNESSES IN CONNECTION WITH ACTIVITIES IN WHICH EMPLOYED BE PAID BY THAT ACTIVITY DOES NOT REQUIRE THAT THE EMPLOYEE'S TRAVELING EXPENSES BE PAID FROM FOOD AND DRUG ADMINISTRATION APPROPRIATIONS, BUT, RATHER, SUCH EXPENSES SHOULD BE PAID FROM APPROPRIATIONS OF THE OFFICE OF PRICE ADMINISTRATION SPECIFICALLY AVAILABLE FOR WITNESS FEES IN LITIGATION INVOLVING THAT AGENCY.

COMPTROLLER GENERAL WARREN TO R. E. HORGAN, OFFICE OF PRICE ADMINISTRATION, JULY 22, 1943:

I HAVE YOUR LETTER OF JUNE 17, 1943, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO CERTIFY FOR PAYMENT UNDER THE APPROPRIATION OF THE OFFICE OF PRICE ADMINISTRATION TWO VOUCHERS COVERING THE TRAVELING EXPENSES INCURRED BY AN EMPLOYEE OF THE FOOD AND DRUG ADMINISTRATION, FEDERAL SECURITY AGENCY, IN CONNECTION WITH HIS APPEARANCE AS A WITNESS IN HIS OFFICIAL CAPACITY ON BEHALF OF THE UNITED STATES IN PROCEEDINGS INITIATED BY THE OFFICE OF PRICE ADMINISTRATION IN A UNITED STATES DISTRICT COURT.

YOUR LETTER CITES THE PERTINENT PROVISION OF SECTION 205 OF THE EMERGENCY PRICE CONTROL ACT OF 1942 ( PUBLIC LAW 421, 56 STAT. 23, 33), AUTHORIZING THE PRICE ADMINISTRATOR TO APPLY TO THE APPROPRIATE COURT FOR AN ORDER ENJOINING ACTS OR PRACTICES WHICH ARE DEEMED TO CONSTITUTE A VIOLATION OF THE PROVISIONS OF SECTION 4 OF SAID ACT, 56 STAT. 28, OR FOR AN ORDER ENFORCING COMPLIANCE THEREWITH. ALSO, YOU REFER TO THE ACT OF JULY 25, 1942 ( PUBLIC LAW 678, 56 STAT. 711), APPROPRIATING FUNDS FOR THE FISCAL YEAR 1943 FOR ALL NECESSARY EXPENSES OF THE OFFICE OF PRICE CONTROL ACT OF 1942, SUPRA, INCLUDING "WITNESS FEES.'

FURTHER, YOU REFER TO SECTION 850 OF THE REVISED STATUTES, AS AMENDED BY SECTION 2 OF THE ACT OF DECEMBER 24, 1942 ( PUBLIC LAW 845, 56 STAT. 1088), WHICH READS AS FOLLOWS:

WHEN ANY OFFICER OR EMPLOYEE OF THE UNITED STATES IS SUMMONED AS A WITNESS FOR THE GOVERNMENT, HIS NECESSARY EXPENSES INCIDENT TO TRAVEL BY COMMON CARRIER, AND IF TRAVEL IS MADE BY PRIVATELY OWNED AUTOMOBILE, MILEAGE AT A RATE NOT TO EXCEED 5 CENTS PER MILE, TOGETHER WITH A PER DIEM ALLOWANCE NOT TO EXCEED $6 IN LIEU OF SUBSISTENCE UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE ATTORNEY GENERAL, SHALL, WHEN SWORN TO, BE PAID BY THE UNITED STATES MARSHAL UPON CERTIFICATE OF THE UNITED STATES ATTORNEY, ASSISTANT UNITED STATES ATTORNEY, OR UNITED STATES COMMISSIONER, BUT NO OTHER MILEAGE OR COMPENSATION IN ADDITION TO HIS SALARY SHALL IN ANY CASE BE ALLOWED. WHENEVER ANY SUCH 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 SUCH PERSON IS EMPLOYED, HIS TRAVEL EXPENSES AND PER DIEM ALLOWANCES IN LIEU OF SUBSISTENCE IN CONNECTION THEREWITH SHALL BE PAYABLE FROM THE APPROPRIATION OTHERWISE AVAILABLE FOR THE TRAVEL EXPENSES OF SUCH OFFICER OR EMPLOYEE, SUCH PAYMENTS TO BE MADE BY THE DISBURSING OFFICER CHARGED WITH THE DISBURSEMENT OF FUNDS UNDER THAT APPROPRIATION AFTER PROPER CERTIFICATION BY A CERTIFYING OFFICER OF THE DEPARTMENT OR AGENCY CONCERNED.

YOU STATE THAT YOUR OFFICE REQUESTED THE FOOD AND DRUG ADMINISTRATION, FEDERAL SECURITY AGENCY, TO FURNISH AN INSPECTOR OF THAT AGENCY TO TESTIFY IN AN ACTION PENDING IN THE UNITED STATES DISTRICT COURT OF KANSAS CITY, MISSOURI, INVOLVING A PETITION ENTERED BY THE OFFICE OF PRICE ADMINISTRATION TO ENJOIN THE MARS CANDY COMPANY FROM SELLING PRODUCTS AT USUAL PRICES WHERE INVESTIGATION SHOWED A DETERIORATION OF WEIGHT AND QUANTITY WITHOUT A REDUCTION IN PRICE ACCORDINGLY; THAT PURSUANT TO THE REQUEST FOOD AND DRUG INSPECTOR JOHN T. SULLIVAN--- AT THE DIRECTION OF THE FOOD AND DRUG ADMINISTRATION--- PROCEEDED FROM CHICAGO, ILLINOIS, TO KANSAS CITY, MISSOURI, TO ATTEND A PRE-TRIAL CONFERENCE ON JANUARY 24, 1943, AND UPON COMPLETION OF HIS SERVICE IN THAT CONNECTION RETURNED TO HIS OFFICIAL STATION AT CHICAGO, ILLINOIS; AND THAT THE TESTIMONY OF MR. SULLIVAN IN THE DISTRICT COURT WAS OF AN OFFICIAL NATURE BASED UPON FACTS WHICH HE ASCERTAINED DURING THE PERFORMANCE OF HIS DUTIES AS AN EMPLOYEE OF THE FOOD AND DRUG ADMINISTRATION.

THERE IS TRANSMITTED WITH YOUR LETTER A VOUCHER SUBMITTED BY MR. SULLIVAN CLAIMING REIMBURSEMENT IN THE AMOUNT OF $16.31 FOR PER DIEM AND TRAVELING EXPENSES INCURRED IN TRAVELING FROM CHICAGO TO KANSAS CITY AND RETURN, TOGETHER WITH A VOUCHER IN THE AMOUNT OF $22.75 IN FAVOR OF THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, TOPEKA, KANSAS, COVERING THE COST OF RAIL FARE FOR THE TRIP.

IT WILL BE OBSERVED THAT SECTION 850 OF THE REVISED STATUTES, AS AMENDED, PROVIDES, (1) THAT WHEN AN EMPLOYEE OF THE UNITED STATES IS SUMMONED AS A WITNESS FOR THE GOVERNMENT HIS TRAVELING EXPENSES ARE TO BE PAID BY THE UNITED STATES MARSHAL UPON CERTIFICATE OF THE UNITED STATES ATTORNEY, ASSISTANT UNITED STATES ATTORNEY, OR UNITED STATES COMMISSIONER--- THAT IS TO SAY, FROM THE APPROPRIATIONS OF THE DEPARTMENT OF JUSTICE--- AND, (2) WHERE THE CASE IN WHICH THE WITNESS APPEARS INVOLVES THE DEPARTMENT OR AGENCY IN WHICH HE IS EMPLOYED, THE TRAVELING EXPENSES ARE TO BE PAID FROM THE APPROPRIATION AVAILABLE THEREFOR UNDER THE CONTROL OF SUCH DEPARTMENT OR AGENCY. WHILE THE LANGUAGE OF THE SAID STATUTE WOULD APPEAR TO BE SOMEWHAT AMBIGUOUS IN THAT IT DOES NOT INDICATE THE EXTENT TO WHICH THE AGENCY MUST BE INTERESTED IN THE LITIGATION SO THAT IT MAY BE REGARDED AS BEING INVOLVED IN THE CASE WITHIN THE TERMS OF THE LAW, IT WOULD SEEM A REASONABLE CONSTRUCTION OF THE PROVISION IN QUESTION THAT THE EMPLOYING AGENCY IS REQUIRED TO PAY FROM ITS APPROPRIATION THE TRAVELING EXPENSES INCURRED BY THE WITNESS ONLY WHERE THE INFORMATION OR FACTS ASCERTAINED BY THE EMPLOYEE AS PART OF HIS OFFICIAL DUTIES FORMS THE BASIS OF THE CASE, OR WHERE THE PROCEEDING IS PREDICATED UPON A LAW THAT THAT AGENCY IS REQUIRED TO ADMINISTER.

IN THAT CONNECTION, ATTENTION IS INVITED TO THE DEPARTMENT OF JUSTICE APPROPRIATION ACT, 1943 ( PUBLIC LAW 644, 56 STAT. 468, 486), WHEREIN UNDER THE APPROPRIATION ITEM ENTITLED "FEES OF WITNESSES" IT WAS PROVIDED:

* * * THAT WHENEVER AN 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 SUCH PERSON IS EMPLOYED, HIS TRAVEL EXPENSES IN CONNECTION THEREWITH SHALL BE PAYABLE FROM THE APPROPRIATION OTHERWISE AVAILABLE FOR TRAVEL EXPENSES OF SUCH EMPLOYEE. SINCE, AS WILL BE NOTED, THE LANGUAGE OF THE ABOVE PROVISION IS VERY SIMILAR, IN SUBSTANCE, TO THE CORRESPONDING PROVISION IN THE AMENDED SECTION 850, REVISED STATUTES, REFERENCE TO THE LEGISLATIVE HISTORY OF THE APPROPRIATION PROVISION MAY BE HELPFUL IN THE CONSIDERATION OF THE PRESENT MATTER. IN THE HEARINGS BEFORE THE SUBCOMMITTEE OF THE HOUSE COMMITTEE ON APPROPRIATIONS UPON THE DEPARTMENT OF JUSTICE APPROPRIATION BILL FOR 1943, THERE APPEARS THE FOLLOWING DISCUSSION WITH RESPECT TO THE REQUEST OF THE DEPARTMENT OF JUSTICE FOR INSERTION OF THE PROVISION ABOVE QUOTED:

MR. ANDRETTA. * * *

WITH THE BUREAU OF BUDGET, WE DEVISED THIS LANGUAGE, WHICH IN SUBSTANCE SAYS THIS: THAT IF A MAN IS AN EMPLOYEE OF THE UNITED STATES AND IS CALLED AS A WITNESS IN A UNITED STATES CASE IN WHICH HIS DEPARTMENT IS INTERESTED IT PAYS HIS EXPENSES OF TRAVEL TO GET THERE.

MR. CARTER. WHY NOT THE DEPARTMENT DEMANDING HIS PRESENCE? WHY SHOULD NOT THE DEPARTMENT DEMANDING HIS PRESENCE PAY IT? IS NOT THAT GOING TO LEAD TO INDISCRIMINATE DEMAND? THERE IS NO CHECK ON THE PERSON ORDERING THIS THING HERE. THEY DO NOT HAVE TO PAY FOR THE EXPENSES. THEY MAY SEND FOR A LOT OF UNNECESSARY WITNESSES.

MR. ANDRETTA. IF WE CALL A WITNESS, A MAN WHO IS EMPLOYED, LET US SAY, IN THE DEPARTMENT OF LABOR OR THE WAR DEPARTMENT, AND WE CALL HIM IN A CASE IN WHICH THE PARTICULAR DEPARTMENT HAS NO INTEREST, WE PAY HIM. BUT IF A TREASURY AGENT WORKS UP A CASE AND HE APPEARS, OR A POSTAL INSPECTOR APPEARS IN A POSTAL CASE, THEY PAY THE EXPENSES FOR THEIR OWN MEN BECAUSE IT IS A PART OF THEIR JOB TO APPEAR IN COURT.

MR. CARTER. THAT IS ALL RIGHT.

MR. ANDRETTA. THAT IS WHAT THIS IS FOR.

MR. RABAUT. THAT IS ALL RIGHT. THAT IS GOOD.

MR. ANDRETTA. THAT IS WHY WE GOT THAT WORDING UP FOR THE EXPENSES, TO TAKE CARE OF THE EXPENSES OF WITNESSES IN GOVERNMENT CASES.

THE FOREGOING STATEMENTS ARE BELIEVED TO LEND SUPPORT TO THE CONSTRUCTION HEREINBEFORE PLACED UPON THE PERTINENT PROVISION OF SECTION 850, REVISED STATUTES, AS AMENDED. SO FAR AS CONCERNS THE LITIGATION IN THE PRESENT MATTER, WHILE MR. SULLIVAN'S TESTIMONY UNDOUBTEDLY WAS MATERIAL THERETO, IT DOES NOT APPEAR THAT THE CASE WAS PREDICATED UPON THE FACTS OR INFORMATION AS TO WHICH HE TESTIFIED, THAT THE FOOD AND DRUG LAWS WERE DIRECTLY INVOLVED, OR THAT THE FOOD AND DRUG ADMINISTRATION OTHERWISE WAS INTERESTED IN THE PROCEEDINGS. ON THE CONTRARY, THE STATEMENT OF FACTS SET FORTH IN YOUR SUBMISSION CLEARLY ESTABLISH THAT THE CASE INVOLVED THE FUNCTIONS AND ACTIVITIES OF THE OFFICE OF PRICE ADMINISTRATION AND WAS INSTITUTED PURSUANT TO A STATUTE WHICH YOUR OFFICE IS REQUIRED TO ADMINISTER.

THEREFORE, AS THE CASE DID NOT INVOLVE THE ACTIVITY IN CONNECTION WITH WHICH MR. SULLIVAN IS EMPLOYED, THE OBVIOUS CONCLUSION MUST BE THAT NO OBLIGATION RESTS UPON THE FOOD AND DRUG ADMINISTRATION TO PAY FROM ITS APPROPRIATIONS THE TRAVELING EXPENSES INCURRED BY HIM IN THIS INSTANCE. ON THE OTHER HAND, THE TERMS OF THE APPROPRIATION FOR SALARIES AND EXPENSES OF YOUR OFFICE CONTAINED IN THE ACT OF JULY 25, 1942 ( PUBLIC LAW 678, 56 STAT. 711), SUPRA, ARE SUCH AS TO AUTHORIZE PAYMENT OF THE TRAVELING EXPENSES OF WITNESSES APPEARING ON BEHALF OF THE GOVERNMENT IN LITIGATION INVOLVING THE OFFICE OF PRICE ADMINISTRATION. SEE DECISION DATED JUNE 9, 1943, B-34946, TO THE PRICE ADMINISTRATOR, OFFICE OF PRICE ADMINISTRATION. MOREOVER, AS THE SAID ACT OF JULY 25, 1942, CONTAINS SPECIFIC AUTHORITY FOR THE PAYMENT OF "WITNESS FEES," AND SINCE NEITHER THE ACT NOR ITS LEGISLATIVE HISTORY DISCLOSES THAT SUCH AUTHORITY WAS INTENDED TO BE RESTRICTED TO PAYMENTS TO WITNESSES WHO ARE NOT GOVERNMENT EMPLOYEES, BUT MAY PROPERLY BE CONSTRUED TO COVER PAYMENTS TO WITNESSES WHO ARE OFFICERS OR EMPLOYEES OF THE UNITED STATES, ALSO, IT MUST BE HELD THAT REIMBURSEMENT OF THE TRAVELING EXPENSES INCURRED BY MR. SULLIVAN IS TO BE MADE FROM THE APPROPRIATIONS UNDER THE CONTROL OF YOUR OFFICE.

ACCORDINGLY, THE VOUCHERS TRANSMITTED WITH YOUR LETTER MAY BE CERTIFIED FOR PAYMENT, IF CORRECT IN OTHER RESPECTS. THE SAID VOUCHERS ARE RETURNED HEREWITH.