B-39731, FEBRUARY 26, 1944, 23 COMP. GEN. 628

B-39731: Feb 26, 1944

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WITNESSES - FEES AND TRAVELING EXPENSES - SELECTIVE SERVICE SYSTEM PERSONNEL TESTIFYING ON BEHALF OF PRIVATE PARTIES UNCOMPENSATED PERSONNEL OF THE SELECTIVE SERVICE SYSTEM SUBPOENAED TO APPEAR IN A UNITED STATES COURT TO TESTIFY IN THEIR OFFICIAL CAPACITY ON BEHALF OF A PRIVATE PARTY ARE NOT EMPLOYEES . THE EMPLOYEE IS IN AN OFFICIAL DUTY STATUS. NO WITNESS FEE IS PAYABLE TO SUCH EMPLOYEE BY THE UNITED STATES. NO TRAVEL EXPENSES ARE PAYABLE BY THE SELECTIVE SERVICE SYSTEM- - THE TESTIMONY NOT BEING "ON BEHALF OF THE UNITED STATES. " AND WHETHER ANY TRAVEL EXPENSES ARE PAYABLE UNDER 28 U.S.C. 600C FROM THE DEPARTMENT OF JUSTICE APPROPRIATIONS IS FOR DETERMINATION IN THE FIRST INSTANCE BY THAT DEPARTMENT.

B-39731, FEBRUARY 26, 1944, 23 COMP. GEN. 628

WITNESSES - FEES AND TRAVELING EXPENSES - SELECTIVE SERVICE SYSTEM PERSONNEL TESTIFYING ON BEHALF OF PRIVATE PARTIES UNCOMPENSATED PERSONNEL OF THE SELECTIVE SERVICE SYSTEM SUBPOENAED TO APPEAR IN A UNITED STATES COURT TO TESTIFY IN THEIR OFFICIAL CAPACITY ON BEHALF OF A PRIVATE PARTY ARE NOT EMPLOYEES ,SUMMONED AS A WITNESS FOR THE GOVERNMENT" OR TRAVELING "IN ORDER TO APPEAR AS A WITNESS ON BEHALF OF THE UNITED STATES" WITHIN THE MEANING OF 28 U.S.C. 604, SO AS TO AUTHORIZE PAYMENT OF FEES OR EXPENSES TO THEM FROM SELECTIVE SERVICE SYSTEM APPROPRIATION; BUT SUCH UNCOMPENSATED PERSONNEL MAY APPLY TO THE MARSHALL FOR PAYMENT OF THE ORDINARY FEES AND EXPENSES PROVIDED BY 28 U.S.C. 6000C. WHERE A PETITIONER IN A HABEAS CORPUS PROCEEDING OR A DEFENDANT UNDER INDICTMENT SUBPOENAES A SALARIED EMPLOYEE OF THE SELECTIVE SERVICE SYSTEM TO TESTIFY IN A FEDERAL COURT IN HIS OFFICIAL CAPACITY ON BEHALF OF SUCH PRIVATE PARTY, THE EMPLOYEE IS IN AN OFFICIAL DUTY STATUS; NO WITNESS FEE IS PAYABLE TO SUCH EMPLOYEE BY THE UNITED STATES; NO TRAVEL EXPENSES ARE PAYABLE BY THE SELECTIVE SERVICE SYSTEM- - THE TESTIMONY NOT BEING "ON BEHALF OF THE UNITED STATES," AND WHETHER ANY TRAVEL EXPENSES ARE PAYABLE UNDER 28 U.S.C. 600C FROM THE DEPARTMENT OF JUSTICE APPROPRIATIONS IS FOR DETERMINATION IN THE FIRST INSTANCE BY THAT DEPARTMENT. THE REQUIREMENT IN 15 COMP. GEN. 196, THAT EMPLOYEES SUBPOENAED TO TESTIFY IN THEIR OFFICIAL CAPACITY IN BEHALF OF A PRIVATE PARTY COLLECT ALL AUTHORIZED WITNESS FEES AND ALLOWANCES AND THAT ANY AMOUNT SO COLLECTED IN EXCESS OF THEIR ACTUAL EXPENSES BE DEPOSITED TO THE CREDIT OF MISCELLANEOUS RECEIPTS, IS PARTICULARLY APPLICABLE TO FEES AND ALLOWANCES COLLECTED IN STATE COURTS AND IS NOT APPLICABLE WHERE NO EMOLUMENT FROM ANY SOURCE IS RECEIVED OTHER THAN THE EMPLOYEE'S REGULAR SALARY AND ANY TRAVEL EXPENSES WHICH MAY BE PAYABLE UNDER FEDERAL STATUTE BY THE JUSTICE DEPARTMENT.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR OF SELECTIVE SERVICE, FEBRUARY 26, 1944:

I HAVE YOUR LETTER OF JANUARY 31, 1944, FILE REFERENCE 9-1.25-266, AS FOLLOWS:

REFERENCE IS MADE TO DECISIONS OF THE COMPTROLLER GENERAL OF THE UNITED STATES NO. B-16924, DATED MAY 31, 1941, NO. B-23687, DATED MARCH 20, 1942 (21ST COMP. GEN. 886) AND NO. A-27784 (A-44002), DATED SEPTEMBER 12, 1935 (15 COMP. GEN. 196). REFERENCE IS ALSO MADE TO TITLE 28 SECTIONS 600C, 604 AND 656.

THE QUESTION HAS ARISEN WHETHER THE REFERRED TO OPINIONS ARE APPLICABLE TO A SITUATION IN WHICH SELECTIVE SERVICE PERSONNEL, EITHER COMPENSATED OR UNCOMPENSATED, ARE SERVED WITH SUBPOENAS REQUIRING THEM TO APPEAR IN A UNITED STATES COURT AND TO TESTIFY IN THEIR OFFICIAL CAPACITY BUT ON BEHALF OF A PARTY OTHER THAN THE GOVERNMENT, REGARDING FACTS ACQUIRED IN THE DISCHARGE OF THEIR OFFICIAL DUTIES. SUCH A PROCEEDING MIGHT BE EITHER A CRIMINAL ACTION INVOLVING VIOLATION OF SELECTIVE SERVICE LAWS OR A HABEAS CORPUS PROCEEDING OR OTHER CIVIL ACTION INVOLVING THE APPLICATION OF SUCH LAWS.

YOUR OPINION IS REQUESTED AS TO WHETHER, AND TO WHAT EXTENT, THE FEES OR TRAVEL EXPENSES OF THE WITNESSES, INCLUDING MILEAGE AND A PER DIEM IN LIEU OF SUBSISTENCE, MAY BE PAID FROM SELECTIVE SERVICE FUNDS IN SUCH INSTANCES.

THE FIRST TWO DECISIONS CITED IN YOUR LETTER PERTAIN TO THE FEES AND TRAVEL EXPENSES OF SELECTIVE SERVICE SYSTEM PERSONNEL CALLED IN THEIR OFFICIAL CAPACITY IN CASES INVOLVING THE SELECTIVE SERVICE LAWS TO TESTIFY "ON BEHALF OF THE UNITED STATES" (QUOTING FROM SECTION 850 OF TH REVISED STATUTES, AS AMENDED), AND HELD THAT THEIR TRAVEL EXPENSES ARE PAYABLE FROM THE APPROPRIATION FOR THE SELECTIVE SERVICE SYSTEM AND IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. A RECENT REVISION OF SECTION 850 SPECIFICALLY INCORPORATES THAT RULING IN THE STATUTE. ACT OF DECEMBER 24, 1942, 56 STAT. 1088, 28 U.S.C. 604. BY VIRTUE OF THE SAME STATUTE, THE WITNESS FEES ORDINARILY PAYABLE BY THE UNITED STATES MARSHAL IN CASES IN THE FEDERAL COURTS, WHILE NOT ALLOWABLE TO COMPENSATED PERSONNEL TESTIFYING UNDER THE SAME CIRCUMSTANCES, WERE HELD PROPERLY PAYABLE TO UNCOMPENSATED SELECTIVE SERVICE PERSONNEL SO TESTIFYING. SEE, ALSO, 22 COMP. GEN. 743.

THE STATUTE REFERS TO EMPLOYEES "SUMMONED AS A WITNESS FOR THE GOVERNMENT" OR TRAVELING "IN ORDER TO APPEAR AS A WITNESS ON BEHALF OF THE UNITED STATES," AND, ACCORDINGLY, DOES NOT APPLY TO CASES SUCH AS ARE OUTLINED IN YOUR LETTER. WHEN THE SUMMONS IS FOR TESTIMONY ON BEHALF OF A PRIVATE PARTY, SUCH AS THE PETITIONER IN HABEAS CORPUS OR THE ACCUSED UNDER INDICTMENT, COMPLIANCE WITH A SUBPOENA WOULD NOT BE IN EXECUTION OF THE FUNCTIONS OF THE SELECTIVE SERVICE SYSTEM AND NO PAYMENT OF FEES OR EXPENSES COULD BE AUTHORIZED FROM ITS APPROPRIATION. BUT NO REASON PRESENTLY APPEARS WHY THE UNCOMPENSATED PERSONNEL SHOULD NOT APPLY TO THE MARSHAL FOR PAYMENT OF THE ORDINARY FEES AND EXPENSES PROVIDED BY SECTION 3 OF THE ACT OF APRIL 26, 1926, AS AMENDED, 28 U.S.C. 600C.

AS TO THE COMPENSATED PERSONNEL, IT WAS SAID IN 15 COMP. GEN. 196 (REFERRING TO A COMPARABLE MATTER):

SECTION 850, REVISED STATUTES, LIMITS GOVERNMENT EMPLOYEES SUBPOENAED TO TESTIFY AS A WITNESS FOR THE GOVERNMENT TO REIMBURSEMENT OF NECESSARY EXPENSES AND PROHIBITS PAYMENT OF ANY MILEAGE OR OTHER COMPENSATION IN ADDITION TO THEIR SALARY. ON THE OTHER HAND, GOVERNMENT EMPLOYEES SUBPOENAED IN PRIVATE LITIGATION OR BY SOME PARTY OTHER THAN THE FEDERAL GOVERNMENT TO TESTIFY, NOT IN THEIR OFFICIAL CAPACITY BUT, AS INDIVIDUALS, ARE ENTITLED TO THE USUAL FEES AND EXPENSES BUT THE TIME ABSENT BY REASON THEREOF MUST BE TAKEN AS ANNUAL LEAVE OR LEAVE WITHOUT PAY. HOWEVER, WHERE THE VALUE OF THE WITNESS' TESTIMONY IN PRIVATE LITIGATION ARISES FROM HIS OFFICIAL CAPACITY AND HE IS SUBPOENAED SOLELY BECAUSE OF AND TO TESTIFY IN THAT CAPACITY OR TO PRODUCE OFFICIAL RECORDS, HE MAY BE REGARDED AS IN A DUTY AND PAY STATUS DURING THE PERIOD OF HIS NECESSARY ABSENCE IN RESPONDING TO SUCH SUBPOENA. UNDER SUCH CIRCUMSTANCES, AS THE UNITED STATES IS DEPRIVED OF HIS SERVICES WHILE SO TESTIFYING, THE EMPLOYEE SHOULD BE INSTRUCTED TO COLLECT THE AUTHORIZED WITNESS FEES AND ALLOWANCES FOR EXPENSES OF TRAVEL AND SUBSISTENCE. ALL AMOUNTS SO COLLECTED OVER AND ABOVE THE AMOUNT OF HIS ACTUAL EXPENSE SHOULD BE ACCOUNTED FOR THROUGH YOUR DEPARTMENT AND DEPOSITED AS MISCELLANEOUS RECEIPTS.

APPLYING THAT RULING TO THE PRESENT MATTER, WHERE THE PETITIONER OR THE DEFENDANT OBTAINS A SUBPOENA FOR A SALARIED EMPLOYEE OF THE SELECTIVE SERVICE SYSTEM TO TESTIFY IN HIS OFFICIAL CAPACITY, BUT ON BEHALF OF SUCH PRIVATE PARTY, (1) THE EMPLOYEE IS IN AN OFFICIAL DUTY STATUS; (2) NO WITNESS FEE IS PAYABLE BY THE UNITED STATES (SECTION 1 OF THE ACT OF APRIL 26, 1926, 44 STAT. 323); (3) NO TRAVEL EXPENSES ARE PAYABLE BY THE SELECTIVE SERVICE SYSTEM, THE TESTIMONY NOT BEING ,ON BEHALF OF THE UNITED STATES" (SECTION 850, REVISED STATUTES, AS AMENDED); (4) WHETHER ANY TRAVEL EXPENSES ARE PAYABLE UNDER 28 U.S.C. 600C, FROM THE APPROPRIATIONS OF THE DEPARTMENT OF JUSTICE, IS FOR DETERMINATION IN THE FIRST INSTANCE BY THAT DEPARTMENT; (5) THE ACCOUNTING TO THE DEPARTMENT SPECIFIED IN THE LAST SENTENCE ABOVE QUOTED FROM 15 COMP. GEN. 196, BEING PARTICULARLY APPLICABLE TO FEES AND EXPENSES COLLECTED IN STATE COURTS, WOULD NOT BE REQUIRED WHERE NO EMOLUMENT FROM ANY SOURCE IS RECEIVED OTHER THAN THE EMPLOYEE'S REGULAR SALARY AND ANY TRAVEL EXPENSES WHICH MAY BE PAYABLE UNDER FEDERAL STATUTE BY THE DEPARTMENT OF JUSTICE.

IT IS EVIDENT THAT AN EXCEPTION TO THE FOREGOING RULES IS REQUIRED IN CASES ARISING UNDER SECTION 878 OF REVISED STATUTES, 28 U.S.C. 656, BY WHICH AUTHORITY INDIGENT PERSONS UNDER INDICTMENT MAY REQUEST THE COURT TO SUMMON WITNESSES UPON THEIR BEHALF AND, IN CASE SUCH PETITION BE ALLOWED,"THE COSTS INCURRED BY THE PROCESS AND THE FEES OF THE WITNESSES SHALL BE PAID IN THE SAME MANNER THAT SIMILAR COSTS AND FEES ARE PAID IN CASE OF WITNESSES SUBPOENAED IN BEHALF OF THE UNITED STATES.' IT WAS THE VIEW OF THE DISTRICT COURT IN IN RE WALLER, 49 F. 271, THAT A GOVERNMENT OFFICER SUMMONED UNDER THAT STATUTE SHOULD RECEIVE THE EXPENSES ALLOWED BY SECTION 850 OF THE REVISED STATUTES, SUPRA. HOWEVER, NO DEFINITE DECISION APPEARS TO BE PROPER UPON SUCH A MATTER UNTIL THERE SHALL HAVE ARISEN A CASE UNDER THE STATUTE WHERE THE PETITION SHALL HAVE BEEN ALLOWED BY THE COURT AND THE CLAIM FOR EXPENSES RECEIVED.