B-37385, OCTOBER 20, 1943, 23 COMP. GEN. 290

B-37385: Oct 20, 1943

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SO AS TO AUTHORIZE REIMBURSEMENT TO A JUDGE FOR THE EXCESS COST OF SUPERIOR ACCOMMODATIONS USED BY HIM WHEN THERE WERE NO ACCOMMODATIONS AVAILABLE AT THE LOWEST FIRST-CLASS RATE. 1943: I HAVE YOUR LETTER OF SEPTEMBER 30. IT WOULD HAVE NECESSITATED HIS REMAINING IN KETCHIKAN FOR AN INDEFINITE PERIOD AT GOVERNMENT EXPENSE. AS THERE WAS NO ACCOMMODATION AT THE LOWEST FIRST- CLASS RATE AVAILABLE ON THIS BOAT. WHEN HIS VOUCHER WAS PRESENTED FOR PAYMENT BY THE UNITED STATES MARSHAL. HE WAS INFORMED THAT. IS WHETHER OR NOT SECTION 374 OF TITLE 28. SAID EXPENSES TO BE PAID BY THE MARSHAL OF THE DISTRICT IN WHICH SUCH COURT IS HELD OR OFFICIAL BUSINESS TRANSACTED. SHALL BE AT THAT PLACE NEAREST HIS ACTUAL RESIDENCE AT WHICH EITHER A CIRCUIT COURT OF APPEALS OR A DISTRICT COURT IS REGULARLY HELD.

B-37385, OCTOBER 20, 1943, 23 COMP. GEN. 290

TRAVELING EXPENSES - FARES - LOWEST FIRST-CLASS LIMITATION - APPLICABILITY TO JUDGES THE PROVISION IN THE ACT OF APRIL 22, 1940, THAT JUDGES OF CERTAIN UNITED STATES COURTS SHALL BE PAID "NECESSARY EXPENSES OF TRAVEL," DOES NOT SUPERSEDE THE PROHIBITION IN THE ACT OF MARCH 3, 1933 THAT ALLOWANCE FOR "ACTUAL EXPENSES OF TRAVEL" SHALL NOT EXCEED THE LOWEST FIRST-CLASS RATE BY THE TRANSPORTATION FACILITY USED, SO AS TO AUTHORIZE REIMBURSEMENT TO A JUDGE FOR THE EXCESS COST OF SUPERIOR ACCOMMODATIONS USED BY HIM WHEN THERE WERE NO ACCOMMODATIONS AVAILABLE AT THE LOWEST FIRST-CLASS RATE.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, OCTOBER 20, 1943:

I HAVE YOUR LETTER OF SEPTEMBER 30, 1943, AS FOLLOWS:

ON JUNE 7, 1943, THE HONORABLE GEORGE F. ALEXANDER, UNITED STATES DISTRICT JUDGE, FIRST DIVISION OF ALASKA, WITH HEADQUARTERS AT JUNEAU, OFFICIALLY TRAVELED BY BOAT FROM KETCHIKAN TO JUNEAU, FOR WHICH HE HAD TO PAY $24.40 FOR SUPERIOR ACCOMMODATIONS, THEREBY INCURRING AN EXPENSE IN EXCESS OF THE LOWEST FIRST-CLASS FARE IN THE AMOUNT OF $6.40. IF JUDGE ALEXANDER HAD NOT USED THIS SUPERIOR ACCOMMODATION, IT WOULD HAVE NECESSITATED HIS REMAINING IN KETCHIKAN FOR AN INDEFINITE PERIOD AT GOVERNMENT EXPENSE, AS THERE WAS NO ACCOMMODATION AT THE LOWEST FIRST- CLASS RATE AVAILABLE ON THIS BOAT. WHEN HIS VOUCHER WAS PRESENTED FOR PAYMENT BY THE UNITED STATES MARSHAL, HE WAS INFORMED THAT, IN ACCORDANCE WITH SECTION 73 (B) OF TITLE 5, UNITED STATES CODE, APPROVED MARCH 3, 1933, HE COULD ONLY BE PAID FOR THIS TRAVEL ON THE BASIS OF THE LOWEST FIRST-CLASS FARE.

JUDGE ALEXANDER CONTENDS THAT SECTION 374, TITLE 28, UNITED STATES CODE, APPROVED APRIL 22, 1940, WHICH STATES IN PART THAT, "THE CIRCUIT AND DISTRICT JUDGES OF THE UNITED STATES, AND THE JUDGES OF THE DISTRICT COURTS OF THE UNITED STATES IN ALASKA, HAWAII, AND PUERTO RICO, SHALL EACH BE ALLOWED AND PAID HIS NECESSARY EXPENSES OF TRAVEL," IN EFFECT, SUPERSEDED SECTION 73 (B) OF TITLE 5, U.S.C. WHICH PROVIDES THAT,"WHENEVER BY OR UNDER AUTHORITY OF LAW ACTUAL EXPENSES FOR TRAVEL MAY BE ALLOWED TO OFFICERS OR EMPLOYEES OF THE UNITED STATES, SUCH ALLOWANCES IN THE CASE OF TRAVEL ORDERED AFTER MARCH 3, 1933, SHALL NOT EXCEED THE LOWEST FIRST- CLASS RATE BY THE TRANSPORTATION FACILITY USED IN SUCH TRAVEL.'

THE QUESTION SUBMITTED FOR YOUR CONSIDERATION, IS WHETHER OR NOT SECTION 374 OF TITLE 28, APPROVED APRIL 22, 1940, SUPERSEDES SECTION 73 (B) OF TITLE 5, U.S.C. APPROVED MARCH 3, 1933, WITH RESPECT TO THE OFFICIAL TRAVEL OF JUDGES OF UNITED STATES COURTS, INCLUDING JUDGES OF THE DISTRICT COURTS OF ALASKA, HAWAII, AND PUERTO RICO.'

SECTION 73B, TITLE 5, U.S. CODE, PROVIDES:

WHENEVER BY OR UNDER AUTHORITY OF LAW ACTUAL EXPENSES FOR TRAVEL MAY BE ALLOWED TO OFFICERS OR EMPLOYEES OF THE UNITED STATES, SUCH ALLOWANCES, IN THE CASE OF TRAVEL ORDERED AFTER MARCH 3, 1933, SHALL NOT EXCEED THE LOWEST FIRST-CLASS RATE BY THE TRANSPORTATION FACILITY USED IN SUCH TRAVEL. ( MAR. 3, 1933, CH. 212, TITLE II, SEC. 10, 47 STAT. 1516.) ITALICS SUPPLIED.)

SECTION 374, TITLE 28, U.S. CODE, PROVIDES:

THE CIRCUIT JUSTICES, THE CIRCUIT AND DISTRICT JUDGES OF THE UNITED STATES, AND THE JUDGES OF THE DISTRICT COURTS OF THE UNITED STATES IN ALASKA, HAWAII, AND PUERTO RICO, SHALL EACH BE ALLOWED AND PAID HIS NECESSARY EXPENSES OF TRAVEL, AND HIS REASONABLE EXPENSES (NOT TO EXCEED $10 PER DAY) ACTUALLY INCURRED FOR MAINTENANCE, CONSEQUENT UPON HIS ATTENDING COURT OR TRANSACTING OTHER OFFICIAL BUSINESS IN PURSUANCE OF LAW AT ANY PLACE OTHER THAN HIS OFFICIAL PLACE OF RESIDENCE, SAID EXPENSES TO BE PAID BY THE MARSHAL OF THE DISTRICT IN WHICH SUCH COURT IS HELD OR OFFICIAL BUSINESS TRANSACTED, UPON THE WRITTEN CERTIFICATE OF THE JUSTICE OR JUDGE. THE OFFICIAL PLACE OF RESIDENCE OF EACH CIRCUIT AND DISTRICT JUDGE, AND OF EACH JUDGE OF THE DISTRICT COURTS OF THE UNITED STATES IN ALASKA, HAWAII, AND PUERTO RICO, SHALL BE AT THAT PLACE NEAREST HIS ACTUAL RESIDENCE AT WHICH EITHER A CIRCUIT COURT OF APPEALS OR A DISTRICT COURT IS REGULARLY HELD. EVERY SUCH JUDGE SHALL, UPON HIS APPOINTMENT, AND FROM TIME TO TIME THEREAFTER WHENEVER HE MAY CHANGE HIS OFFICIAL RESIDENCE, IN WRITING NOTIFY THE DEPARTMENT OF JUSTICE OF HIS OFFICIAL PLACE OF RESIDENCE. ( MAR. 3, 1911, CH. 231, SEC. 259, 36 STAT. 1161; MAY 17, 1932, CH. 190, 47 STAT. 158; APR. 22, 1940, CH. 126, 54 STAT. 149.) ITALICS SUPPLIED.)

IN A DECISION OF JUNE 15, 1937, 16 COMP. GEN. 1078, WHEREIN WERE CONSIDERED THE PROVISIONS OF SECTION 2 OF THE ACT OF SEPTEMBER 14, 1922, 42 STAT. 838, PROVIDING, IN PART, THAT "THE CHIEF JUSTICE AND EACH JUSTICE OR JUDGE SUMMONED AND ATTENDING SAID CONFERENCE SHALL BE ALLOWED HIS ACTUAL EXPENSES OF TRAVEL," IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

OFFICIAL TRAVELING EXPENSES OF THE FEDERAL JUDICIARY REIMBURSABLE AS TO TRAVEL GENERALLY UNDER SECTION 259 OF THE ACT OF MARCH 3, 1911, 36 STAT. 1161,"UPON THE WRITTEN CERTIFICATE OF THE JUSTICE OR JUDGE," AND SPECIFICALLY AS TO ATTENDING THE ANNUAL CONFERENCE OF SENIOR CIRCUIT JUDGES UNDER THE ACT OF SEPTEMBER 14, 1922, 42 STAT. 838,"UPON THE WRITTEN CERTIFICATE OF THE JUDGE * * * APPROVED BY THE CHIEF JUSTICE," ARE SUBJECT TO THE PROVISIONS OF * * * THE AUTOMOBILE MILEAGE RATE ACT OF MARCH 3, 1933, 47 STAT. 1516, AND SECTION 10 OF THE LATTER ACT LIMITING TRANSPORTATION COST TO LOWEST FIRST-CLASS RATE BY THE TRANSPORTATION FACILITY USED.'

WHILE THE STATUTE CONSIDERED IN THAT DECISION PROVIDED THAT A JUDGE SHALL BE PAID HIS "ACTUAL EXPENSES OF TRAVEL" NEVERTHELESS, IN THE DECISION OF JANUARY 23, 1934, 13 COMP. GEN. 204, 205, WHEREIN WAS CONSIDERED SECTION 259 OF THE ACT OF MARCH 3, 1911, 36 STAT. 1161, PROVIDING THAT JUDGES SHALL EACH BE ALLOWED AND PAID HIS "NECESSARY EXPENSES OF TRAVEL"--- THE EXACT PHRASE USED IN THE ACT OF APRIL 22, 1940 WHICH IS BEING STRESSED BY JUDGE ALEXANDER IN SUPPORT OF HIS CONTENTION--- IT WAS STATED:

IT WILL BE NOTED THAT THIS LAW AUTHORIZES PAYMENT OF ONLY THE "NECESSARY" EXPENSES OF TRAVEL. HENCE, THERE IS NO DIFFERENCE IN THIS RESPECT BETWEEN THE TRANSPORTATION EXPENSES OF FEDERAL JUDGES AND THE TRANSPORTATION EXPENSES OF ANY OTHER OFFICERS AND EMPLOYEES OF THE GOVERNMENT AUTHORIZED TO TRAVEL ON OFFICIAL BUSINESS AT GOVERNMENT EXPENSE. IT HAS LONG BEEN THE RULE, EVEN PRIOR TO THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, THAT REIMBURSEMENT TO ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT FOR TRANSPORTATION EXPENSES IS RESTRICTED TO THE EXPENSES ACTUALLY NECESSARY FROM THE GOVERNMENT STANDPOINT AND THAT IN THE ABSENCE OF SOME OFFICIAL NECESSITY THE RIGHT TO REIMBURSEMENT IS LIMITED TO THE LOWEST FIRST-CLASS FARE BY THE SHORTEST USUALLY TRAVELED ROUTE, THE PERSONAL CONVENIENCE OR PREFERENCE OF THE TRAVELER NOT BEING FOR CONSIDERATION. 19 COMP. DEC. 418, 22 ID. 211; 3 COMP. GEN. 787, 4 ID. 353, 7 ID. 365. * * *

THERE IS NOTED JUDGE ALEXANDER'S REPORTED CONTENTION THAT THE ACT OF APRIL 22, 1940, ABOVE QUOTED,"IN EFFECT, SUPERSEDED SECTION 73 (B) OF TITLE 5, UNITED STATES CODE"--- ALSO ABOVE QUOTED. NO SUCH INTENT IS APPARENT FROM THE ACT ITSELF; NOR IS ANY SUCH INTENT MANIFESTED IN THE LEGISLATIVE HISTORY OF H.R. 7015, 76TH CONGRESS, ST AND 3RD SESSIONS, WHICH BECAME THE ACT OF APRIL 22, 1940 (28 U.S.C. 374). ON THE CONTRARY, REFERENCE TO SAID LEGISLATIVE HISTORY DISCLOSES THAT BY THE PROPOSED ENACTMENT IT WAS SOUGHT--- AMONG OTHER THINGS NOT HERE RELATED -- TO OVERCOME A DECISION OF THIS OFFICE RENDERED JULY 26, 1932 (12 COMP. GEN. 125) WHICH "HELD THAT SECTION 803 OF THE ECONOMY ACT OF JUNE 30, 1932, WAS APPLICABLE TO ALL APPROPRIATIONS AVAILABLE FOR THE FISCAL YEAR 1933; THUS FEDERAL JUDGES ON AND AFTER JULY 1, 1932, COULD BE REIMBURSED FOR SUBSISTENCE EXPENSE ONLY UPON A PER DIEM BASIS OF NOT TO EXCEED $5 A DAY" (QUOTING FROM HOUSE OF REPRESENTATIVES REPORT NO. 1197 ON H.R. 7015). SEE, ALSO, SENATE REPORT NO. 1340, ON THE SAME BILL, 76TH CONGRESS, 3RD SESSION. NOWHERE IN SAID LEGISLATIVE HISTORY IS FOUND ANY REFERENCE TO THE DECISION OF THIS OFFICE RENDERED JANUARY 23, 1934--- 13 COMP. GEN. 204, ABOVE QUOTED--- HOLDING TO THE EFFECT THAT JUDGES COMING WITHIN THE PROVISIONS OF SECTION 259 OF THE ACT OF MARCH 3, 1911, WERE SUBJECT TO THE PROVISIONS OF SECTION 10 OF THE ACT OF MARCH 3, 1933, LIMITING REIMBURSEMENT FOR TRANSPORTATION TO "LOWER FIRST-CLASS RATE BY THE TRANSPORTATION FACILITY USED.' IT THUS SEEMS REASONABLE TO CONCLUDE THAT THE 1940 STATUTE WAS NOT INTENDED TO OVERCOME THE DECISION OF THIS OFFICE RENDERED JANUARY 23, 1934.

IT IS COMMON PRACTICE IN APPROPRIATION ACTS TO USE SUCH PHRASES AS "NECESSARY EXPENSES OF VEL," OR "NECESSARY EXPENSES, INCLUDING TRAVELING EXPENSES," BUT NO CONSTRUCTION SUCH AS IS SUGGESTED BY JUDGE ALEXANDER HAS BEEN MADE OR ADVANCED IN CONNECTION WITH THE APPLICATION OF SUCH APPROPRIATION ACTS. ANY SUCH CONSTRUCTION, IF ADOPTED, WOULD TEND TO NULLIFY ALL RESTRICTIONS PRESCRIBED BY LAW OR REGULATION CONTROLLING REIMBURSEMENT FOR TRANSPORTATION AND TRAVELING EXPENSES.

IN DECISION OF JULY 7, 1943, 23 COMP. GEN. 9 AND 10, IT WAS STATED:

THE SETTLED RULE IN RESPECT OF THE APPLICATION OF THE 1933 STATUTE QUOTED IN YOUR LETTER IS, AS STATED IN THE CITED AND QUOTED DECISIONS, THAT REIMBURSEMENT FOR TRAVEL MUST BE LIMITED TO THE COST OF A LOWER BERTH--- REGARDED AS "THE LOWEST FIRST-CLASS RATE BY THE TRANSPORTATION FACILITY USED" WITHIN THE MEANING OF THOSE WORDS AS USED IN THE ACT OF 1933--- NOTWITHSTANDING THAT UPPER AND LOWER BERTHS WERE NOT AVAILABLE TO THE PARTICULAR TRAVELER AT THE TIME THE TRAVEL WAS PERFORMED. THIS OFFICE HAS NO ALTERNATIVE BUT TO APPLY THE 1933 STATUTE AS WRITTEN, AND IT MAY NOT, BY CONSTRUCTION, CREATE ANY EXCEPTION THERETO. THE PRESENT GENERAL UNSATISFACTORY CONDITIONS OF TRAVEL FOR CIVILIANS DUE TO THE WAR EMERGENCY ARE FULLY APPRECIATED BUT THEY CONSTITUTE NO GROUNDS FOR NON-APPLICATION OF THE STATUTE. COMPARE THE DECISION OF JUNE 22, 1943, B-35013, TO MR. F. F. LOVELL, AUTHORIZED CERTIFYING OFFICER, HOME OWNERS' LOAN CORPORATION, CONSIDERING A CASE WHEREIN IT HAD BEEN SPECIFICALLY CERTIFIED BY COMPETENT AUTHORITY THAT ALL UPPER AND LOWER BERTHS ON TRAINS OPERATING BETWEEN THE POINTS INVOLVED HAD BEEN RESERVED FOR POSSIBLE USE BY THE MILITARY FORCES- -- AN ACT OF THE GOVERNMENT--- AND, ACCORDINGLY, WERE NOT AVAILABLE FOR CIVILIAN USE AT ANY TIME.

IF THE LAW AS IT NOW STANDS WORKS A PARTICULAR HARDSHIP, OR UNDULY INTERFERES WITH THE ORDERLY AND EXPEDITIOUS TRANSACTION OF GOVERNMENT BUSINESS, THE MATTER WOULD APPEAR TO BE ONE FOR PRESENTING BY THE ADMINISTRATIVE AGENCIES CONCERNED TO THE CONGRESS WITH A VIEW TO SECURING LEGISLATION TO TAKE CARE OF THE SITUATION COMPLAINED OF.

IT FOLLOWS FROM WHAT IS SAID HEREIN THAT THE QUESTION PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER MUST BE AND IS ANSWERED IN THE NEGATIVE.