B-40290, MARCH 8, 1944, 23 COMP. GEN. 658

B-40290: Mar 8, 1944

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WITNESSES - TRAVELING EXPENSES - GOVERNMENT EMPLOYEES TESTIFYING ON BEHALF OF UNITED STATES WHERE A DEPUTY CLERK OF A UNITED STATES DISTRICT COURT TESTIFIED ON BEHALF OF THE UNITED STATES IN A HABEAS CORPUS PROCEEDING IN ANOTHER DISTRICT COURT AS TO THE DIFFERENT STEPS TAKEN IN THE PREVIOUS CRIMINAL PROCEEDINGS IN THE COURT OF WHICH SHE WAS AN OFFICIAL. IT WAS HELD GENERALLY THAT THE PRIMARY FACTOR IN DETERMINING WHICH APPROPRIATION WAS AVAILABLE FOR TRAVELING EXPENSES OF FEDERAL PERSONNEL CALLED TO TESTIFY ON BEHALF OF THE UNITED STATES WAS WHETHER THE INFORMATION REGARDING WHICH THE TESTIMONY WAS GIVEN HAD BEEN GAINED THROUGH INVESTIGATIVE ACTIVITIES OF THE EMPLOYEE IN THE REGULAR COURSE OF HIS EMPLOYMENT.

B-40290, MARCH 8, 1944, 23 COMP. GEN. 658

WITNESSES - TRAVELING EXPENSES - GOVERNMENT EMPLOYEES TESTIFYING ON BEHALF OF UNITED STATES WHERE A DEPUTY CLERK OF A UNITED STATES DISTRICT COURT TESTIFIED ON BEHALF OF THE UNITED STATES IN A HABEAS CORPUS PROCEEDING IN ANOTHER DISTRICT COURT AS TO THE DIFFERENT STEPS TAKEN IN THE PREVIOUS CRIMINAL PROCEEDINGS IN THE COURT OF WHICH SHE WAS AN OFFICIAL, SUCH PERSON MAY BE REGARDED AS HAVING TESTIFIED IN A "CASE INVOLVING THE ACTIVITY IN CONNECTION WITH WHICH * * * EMPLOYED," WITHIN THE MEANING OF SECTION 850, REVISED STATUTES, AS AMENDED, RESPECTING TRAVELING EXPENSES PAYABLE TO OFFICERS AND EMPLOYEES WHEN TESTIFYING ON BEHALF OF THE UNITED STATES, AND, THEREFORE, THE TRAVEL EXPENSES OF SUCH PERSON SHOULD BE PAID FROM THE APPROPRIATION OF THE JUDICIARY RATHER THAN THE APPROPRIATION " FEES OF WITNESSES," DEPARTMENT OF JUSTICE. WHILE, PRIOR TO THE ACT OF DECEMBER 24, 1942, AMENDING SECTION 850, REVISED STATUTES, IT WAS HELD GENERALLY THAT THE PRIMARY FACTOR IN DETERMINING WHICH APPROPRIATION WAS AVAILABLE FOR TRAVELING EXPENSES OF FEDERAL PERSONNEL CALLED TO TESTIFY ON BEHALF OF THE UNITED STATES WAS WHETHER THE INFORMATION REGARDING WHICH THE TESTIMONY WAS GIVEN HAD BEEN GAINED THROUGH INVESTIGATIVE ACTIVITIES OF THE EMPLOYEE IN THE REGULAR COURSE OF HIS EMPLOYMENT, SUCH RULE IS NOT FOR APPLICATION UNDER THE AMENDATORY ACT WHERE IT IS CLEARLY SHOWN THAT THE INFORMATION REGARDING WHICH TESTIMONY ON BEHALF OF THE UNITED STATES IS GIVEN WAS GAINED THROUGH ACTUAL PERFORMANCE OF THE EMPLOYEE'S REGULAR DUTIES, EVEN THOUGH NO INVESTIGATION DUTIES WERE INVOLVED.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, MARCH 8, 1944:

I HAVE YOUR LETTER OF FEBRUARY 19, 1944, AS FOLLOWS:

I TRANSMIT THE VOUCHER OF MISS MERCEDES O. SWEARNGIN, CHIEF DEPUTY CLERK, UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF MISSISSIPPI, FOR REIMBURSEMENT OF EXPENSES OF TRAVEL FROM JACKSON, MISSISSIPPI, TO KANSAS CITY, MISSOURI, AND RETURN, PERFORMED AS A WITNESS ON BEHALF OF THE UNITED STATES IN THE HABEAS CORPUS PROCEEDING OF STANLEY SLAUGHTER, WITH REQUEST FOR ADVICE AS TO THE APPROPRIATION FROM WHICH IT IS PAYABLE. ALSO ATTACHED IS A COPY OF THE LETTER OF SUBMISSION FROM THE CLERK OF THAT COURT.

I HAVE CAREFULLY CONSIDERED THE RULINGS PERTAINING TO APPROPRIATION APPLICABILITY IN PAYING EXPENSES OF GOVERNMENT PERSONNEL WITNESSES, (15 COMP. 298; 16 ID. 411; 5 COMP. GEN. 677; 18 ID. 6; 19 ID. 201; 22 ID. 217; AND 23 ID. 47), AND HAVE CONSIDERABLE DOUBT THAT TESTIMONY REGARDING PROCEEDINGS TAKING PLACE IN THE TRIAL OF A CASE SUCH AS WAS GIVEN IN THIS INSTANCE IS WITHIN THE LIMITATION CARRIED IN THE APPROPRIATION. " FEES OF WITNESSES" AND IN THE ACT OF DECEMBER 24, 1942 (28 U.S.C., 604 AND 604A).

AS I UNDERSTAND THE POSITION TAKEN IN THE VARIOUS DECISIONS THE APPROPRIATIONS OF THE DEPARTMENT OR AGENCY IN WHOSE EMPLOY THE WITNESS IS CARRIED ARE NOT TO BE CHARGED WITH THE EXPENSES OF TRAVEL, UNLESS IT IS THE OFFICIAL DUTY OF SUCH PERSON TO INVESTIGATE AND FIND OUT THE FACTS UPON WHICH THE CASE IS PREDICATED; THAT IF THE GOVERNMENT EMPLOYEE WITNESS GETS ONLY CASUALLY INFORMATION WHICH MAKES HIM A WITNESS HIS TRAVELING EXPENSES ARE PAYABLE FROM THE APPROPRIATION," FEES OF WITNESSES.' (ITALICS SUPPLIED).

MISS SWEARNGIN'S ATTENDANCE AS A WITNESS, AS RECITED IN MR. TODD'S LETTER, WAS TO VERIFY THE NATURE OF THE PROCEEDINGS TAKING PLACE IN THE TRIAL OF THE CASE IN WHICH THE DEFENDANT WAS PROSECUTED. AS A DEPUTY CLERK OF THAT COURT HER DUTIES AND RELATION TO THE COURT WOULD PRECLUDE HER PARTICIPATION IN THE GATHERING OF EVIDENCE OR INFORMATION BEARING UPON THE MERITS OF THE CASE. HER TESTIMONY PERFORCE COULD HAVE CONCERNED ONLY MATTERS COMING TO HER NOTICE IN THE PERFORMANCE OF HER REGULAR DUTIES, WHICH ARE CONFINED TO RECORDING PROCEEDINGS BEFORE THE COURT--- INFORMATION CASUALLY ACQUIRED, NOT AS A RESULT OF INVESTIGATIVE OR OTHER ACTIVITIES. IF THIS LINE OF REASONING IS CORRECT, THE VOUCHER IS PROPERLY PAYABLE FROM DEPARTMENT OF JUSTICE APPROPRIATION," FEES OF WITNESSES" AND NOT FROM THE JUDICIARY APPROPRIATION," TRAVELING EXPENSES.'

PLEASE RETURN THE VOUCHER WITH DIRECTIONS FOR OUR GUIDANCE AND THANKING YOU, I AM

THE LETTER FROM MR. TODD, CLERK OF THE UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF MISSISSIPPI, TO YOU, IS DATED FEBRUARY 12, 1944, AND READS AS FOLLOWS:

REPLYING TO YOUR LETTER OF FEBRUARY 8, 1944 REGARDING PAYMENT OF WITNESS FEES FOR MERCEDES SWEARNGIN, I HEREWITH ENCLOSE VOUCHER AND ALL NECESSARY PAPERS.

MISS SWEARNGIN ATTENDED THE U.S. DISTRICT COURT AT KANSAS CITY AS A WITNESS ON BEHALF OF THE UNITED STATES IN A HABEAS CORPUS HEARING BEFORE THAT COURT AT KANSAS CITY. THE PRISONER SUED OUT A WRIT OF HABEAS CORPUS IN MISSOURI WHERE HE WAS CONFINED, ON THE GROUND THAT HE HAD NOT BEEN GIVEN A FAIR TRAIL BEFORE THE U.S. DISTRICT COURT AT BILOXI, MISSISSIPPI, AND SINCE MISS SWEARNGIN WAS THE DEPUTY CLERK WHO READ THE INDICTMENT TO THE DEFENDANT AND TOOK HIS PLEA OF GUILTY AND WROTE UP THE SENTENCE, IT WAS NECESSARY THAT SHE BE SUMMONED TO COURT AT KANSAS CITY TO TESTIFY THAT THE INDICTMENT WAS READ AND THAT THE JUDGE DID APPOINT HIM AN ATTORNEY, AND THE NAME OF THE ATTORNEY WAS PLACED IN THE JUDGMENT AND SENTENCE OF COURT AS REQUIRED BY THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT, AND THAT THE DEFENDANT DID PLEAD GUILTY AND WAS SENTENCED BY THE DISTRICT JUDGE, ALL OF WHICH WAS DONE IN ACCORDANCE WITH THE CONSTITUTION AND LAWS OF THE UNITED STATES. SINCE THE PRISONER DENIED THAT HIS CONSTITUTIONAL RIGHTS WERE GIVEN HIM IN COURT OF COURSE IT WAS NECESSARY THAT THE ASSISTANT U.S. ATTORNEY WHO WAS IN THE COURT ROOM AT THE TIME THE DEFENDANT WAS ARRAIGNED AND THE CLERK WHO ARRAIGNED THE DEFENDANT, APPEAR TO COUNTERACT HIS STATEMENT THAT NONE OF THIS PROCEDURE HAD BEEN FOLLOWED.

UNDER CIRCULAR NO. 3698, DEPARTMENT OF JUSTICE, DATED JUNE 8, 1942, IT SEEMS CLEAR TO ME THAT REGARDLESS OF WHAT ONE MIGHT THINK,MISS SWEARNGIN'S TRAVELING EXPENSES AND PER DIEM SHOULD BE PAYABLE FROM THE APPROPRIATION AVAILABLE FOR TRAVELING EXPENSES OF SUCH EMPLOYEES, AND THAT IS JUST EXACTLY WHAT THE CIRCULAR SAYS. UNDER THE OLD LAW BEFORE CIRCULAR NO. 3698 CAME OUT, IT WAS THE CUSTOM AND THE LAW THAT THE UNITED STATES MARSHAL FOR THE DISTRICT FOR WHICH THE SERVICE WAS RENDERED SHOULD PAY, BUT SINCE CIRCULAR NO. 3698, THAT METHOD HAS BEEN CHANGED, AND SINCE THERE IS SUFFICIENT MONEY IN THE APPROPRIATION AND TRAVEL OF THE DEPUTY CLERKS TO PAY HER VOUCHER, AND SINCE SHE IS GOING TO LEAVE THE SERVICE ON THE 14TH OF FEBRUARY AND MOVE TO OHIO, I DO NOT SEE WHY HER EXPENSE CANNOT BE IMMEDIATELY PAID, BUT OF COURSE THE DECISION OF THE COMPTROLLER GENERAL FOR THE FUTURE GUIDANCE OF THE ADMINISTRATIVE OFFICE MIGHT BE WELL FOR THE FUTURE GUIDANCE OF ALL CONCERNED, BUT I DO HOPE YOU CAN SEE YOUR WAY CLEAR TO HAVE AN EARLY ADJUSTMENT OF THIS MATTER.

SECTION 2 OF THE ACT OF DECEMBER 24, 1942, 56 STAT. 1088, READS:

SECTION 850 OF THE REVISED STATUTES ( U.S.C., TITLE 28, SEC. 604) IS HEREBY AMENDED TO READ AS FOLLOWS:

"SEC. 850. 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 ALLOWANCE 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 PAYMENT 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.' (ITALICS SUPPLIED).

THE " LEGISLATIVE AND JUDICIARY APPROPRIATION ACT, 1944," APPROVED JUNE 28, 1943, 57 STAT. 243, PUBLIC LAW 96, CONTAINS THE FOLLOWING ITEM OF APPROPRIATION TO WHICH THE CLERK OF COURT BELIEVES THE TRAVELING EXPENSES INCURRED IN THIS CASE SHOULD BE CHARGED:

TRAVELING EXPENSES: FOR ALL NECESSARY TRAVELING EXPENSES, NOT OTHERWISE PROVIDED FOR, INCURRED BY THE JUDICIARY, INCLUDING TRAVELING EXPENSES OF PROBATION OFFICERS AND THEIR CLERKS, AND TRANSFER OF HOUSEHOLD GOODS AND EFFECTS AS PROVIDED BY THE ACT OF OCTOBER 10, 1940, $540,000 * * *.

YOU SUGGEST, HOWEVER, ON THE BASIS OF THE RULE STATED IN A NUMBER OF PRIOR DECISIONS OF THIS OFFICE CITED IN YOUR LETTER, THAT SINCE THE CLAIMANT HAD NO INVESTIGATIVE DUTIES TO PERFORM IN CONNECTION WITH THE FACTS OF THE CASE REGARDING WHICH SHE WAS CALLED UPON TO TESTIFY, THAT THE TRAVELING EXPENSES SHOULD BE CHARGED TO THE APPROPRIATION ITEM," FEES OF WITNESSES," APPEARING IN THE DEPARTMENT OF JUSTICE APPROPRIATION ACT, 1944, APPROVED JULY 1, 1943, 57 STAT. 286, PUBLIC LAW 105, PROVIDING AS FOLLOWS:

FEES OF WITNESSES: FOR EXPENSES, MILEAGE, AND PER DIEMS OF WITNESSES AND FOR PER DIEMS IN LIEU OF SUBSISTENCE, SUCH PAYMENTS TO BE MADE ON THE CERTIFICATION OF THE ATTORNEY FOR THE UNITED STATES AND TO BE CONCLUSIVE AS PROVIDED BY SECTION 846, REVISED STATUTES (28 U.S.C. 577), $1,100,000: PROVIDED, THAT NOT TO EXCEED $25,000 OF THIS AMOUNT SHALL BE AVAILABLE FOR SUCH COMPENSATION AND EXPENSES OF WITNESSESOR INFORMANTS AS MAY BE AUTHORIZED OR APPROVED BY THE ATTORNEY GENERAL, WHICH APPROVAL SHALL BE CONCLUSIVE: PROVIDED FURTHER, THAT NO PART OF THE SUM HEREIN APPROPRIATED SHALL BE USED TO PAY ANY WITNESS MORE THAN ONE ATTENDANCE FEE FOR ANY ONE CALENDAR DAY, WHICH FEE SHALL NOT EXCEED $1.50 EXCEPT IN THE DISTRICT OF ALASKA: PROVIDED FURTHER, 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 THE TRAVEL EXPENSES OF SUCH EMPLOYEES. (ITALICS SUPPLIED).

IT IS TRUE, AS YOU SUGGEST IN THE THIRD PARAGRAPH OF YOUR LETTER, THAT CERTAIN DECISIONS OF THIS OFFICE RENDERED PRIOR TO THE ACT OF DECEMBER 24, 1942, SUPRA, AMENDING SECTION 850 OF THE REVISED STATUTES, HELD GENERALLY THAT THE PRIMARY FACTOR IN DETERMINING WHICH APPROPRIATION WAS AVAILABLE FOR TRAVELING EXPENSES OF FEDERAL PERSONNEL CALLED TO TESTIFY ON BEHALF OF THE UNITED STATES WAS WHETHER THE INFORMATION REGARDING WHICH THE TESTIMONY WAS GIVEN HAD BEEN GAINED THROUGH INVESTIGATIVE ACTIVITIES OF THE EMPLOYEE IN THE REGULAR COURSE OF HIS EMPLOYMENT. BUT THAT RULE NOW REQUIRES FURTHER STUDY IN THE LIGHT OF THE AMENDATORY ACT, SUPRA--- PARTICULARLY THE ITALICIZED PORTION THEREOF. IN DECISION OF SEPTEMBER 10, 1942, 22 COMP. GEN. 217, THERE WAS BROUGHT TO THE ATTENTION OF THIS OFFICE APPROPRIATION LANGUAGE (APPEARING FOR THE FIRST TIME) SIMILAR TO THE LANGUAGE LATER INCORPORATED AS PERMANENT LEGISLATION IN THE AMENDATORY ACT OF DECEMBER 24, 1942, SUPRA (SEE THE ITALICIZED PORTION THEREOF). WHILE IT WAS STATED IN SAID DECISION THAT THE NEW APPROPRIATION LANGUAGE "MAKES NO CHANGE IN THE GENERAL RULE" I THINK THAT SAID STATEMENT MAY NOT NOW PREVAIL IN THE LIGHT OF THE PERMANENT LEGISLATION SUBSEQUENTLY ENACTED. SEE DECISIONS B-31755, DATED JANUARY 22, 1943, AND B-34306, DATED MAY 24, 1943, IN WHICH THE AMENDATORY ACT OF DECEMBER 24, 1942, WAS CONSTRUED AND APPLIED.

IN THE CASE HERE PRESENTED--- INVOLVING HABEAS CORPUS PROCEEDINGS--- THE EMPLOYEE'S TESTIMONY RELATED SOLELY TO THE DIFFERENT STEPS TAKEN IN THE PREVIOUS CRIMINAL PROCEEDING RESULTING IN THE CONVICTION AND CONFINEMENT OF THE PRISONER, DURING THE COURSE OF WHICH THE INFORMATION WHICH FORMED THE BASIS OF THE TESTIMONY HAD BEEN GAINED, NOT THROUGH ANY INVESTIGATIVE ACTIVITY OF THE EMPLOYEE, BUT THROUGH HER ACTUAL PERFORMANCE OF DUTIES IN THE CRIMINAL PROCEEDINGS.

THUS, THERE CAN BE NO DOUBT BUT THAT THE CLAIMANT'S TESTIMONY HERE WAS GIVEN IN A "CASE INVOLVING THE ACTIVITY IN CONNECTION WITH WHICH SUCH PERSON IS EMPLOYED," WITHIN THE MEANING OF THOSE WORDS INCORPORATED IN THE LAST SENTENCE OF THE AMENDED SECTION 850, REVISED STATUTES, SUPRA, AS WELL AS THE LAST SENTENCE OF THE HEREINABOVE-QUOTED APPROPRIATION ITEM," FEES OF WITNESSES.' WHILE THE GENERAL RULE TO WHICH YOU REFER APPEARS TO HAVE BEEN APPLIED IN MOST, BUT NOT ALL, CASES ARISING PRIOR TO THE RECENT AMENDMENTS IN THE CONTROLLING STATUTES ABOVE QUOTED, CERTAINLY NOW, IN VIEW OF THE CHANGES IN THE LAWS, THERE EXISTS NO FURTHER JUSTIFICATION FOR THE APPLICATION OF THE FORMER RULE IN CASES SUCH AS HERE PRESENTED WHERE IT IS CLEARLY SHOWN THAT THE INFORMATION REGARDING WHICH TESTIMONY ON BEHALF OF THE UNITED STATES IS GIVEN WAS GAINED THROUGH ACTUAL PERFORMANCE OF THE REGULAR DUTIES OF THE EMPLOYEE EVEN THOUGH NO INVESTIGATIVE DUTIES WERE INVOLVED. SEE DECISIONS OF JANUARY 22, 1943, B-31755, AND OF MAY 24, 1943, B-34306. ALSO, SEE 22 COMP. GEN. 743, INVOLVING A CASE WHEREIN NO FACTS WERE PRESENTED OR CONSIDERED REQUIRING APPLICATION OF THE PRIOR RULE.

ACCORDINGLY, YOU ARE ADVISED THAT THIS OFFICE IS IN AGREEMENT WITH THE VIEWS OF THE CLERK OF COURT AS EXPRESSED IN HIS LETTER OF FEBRUARY 12, 1944, ABOVE QUOTED, TO THE EFFECT THAT THE TRAVELING EXPENSES INCURRED BY MISS SWEARNGIN, CHIEF DEPUTY CLERK, IF OTHERWISE PROPER FOR PAYMENT, ARE CHARGEABLE TO THE ITEM FOR TRAVELING EXPENSES APPEARING IN THE APPROPRIATION ACT FOR THE JUDICIARY, RATHER THAN TO THE APPROPRIATION ITEM," FEES OF WITNESSES," BECAUSE THE CASE IN WHICH SHE TESTIFIED AT KANSAS CITY, MISSOURI, DID INVOLVE THE ACTIVITY IN CONNECTION WITH WHICH SHE WAS EMPLOYED IN MISSISSIPPI.

THE VOUCHER FORWARDED WITH YOUR LETTER IS RETURNED HEREWITH AS REQUESTED.