B-43794, AUGUST 28, 1944, 24 COMP. GEN. 159

B-43794: Aug 28, 1944

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ETC. - FEES AND TRAVELING EXPENSES IN VIEW OF THE PROVISION IN SECTION 202 OF THE EMERGENCY PRICE CONTROL ACT OF 1942 THAT WITNESSES SUBPOENAED THEREUNDER SHALL BE PAID THE SAME FEES AND MILEAGE AS ARE PAID WITNESSES IN THE DISTRICT COURTS OF THE UNITED STATES. ORDINARY WITNESSES SUBPOENAED BY THE OFFICE OF PRICE ADMINISTRATION TO TESTIFY IN STATE AND LOCAL COURTS AND AT ADMINISTRATIVE HEARINGS ARE ENTITLED IN PROPER CASES TO BE PAID THE FEES. - ARE SUBJECT TO AGREEMENT OR CONTRACT. - ARE NOT NECESSARILY OFFICERS OR EMPLOYEES OF THE GOVERNMENT. 1944: I HAVE YOUR LETTER OF AUGUST 11. AS FOLLOWS: YOUR OPINION IS RESPECTFULLY REQUESTED AS TO THE LEGALITY OF AND MAXIMUM RATES ALLOWABLE FOR COMPENSATION.

B-43794, AUGUST 28, 1944, 24 COMP. GEN. 159

WITNESSES - EXPERT, ETC. - FEES AND TRAVELING EXPENSES IN VIEW OF THE PROVISION IN SECTION 202 OF THE EMERGENCY PRICE CONTROL ACT OF 1942 THAT WITNESSES SUBPOENAED THEREUNDER SHALL BE PAID THE SAME FEES AND MILEAGE AS ARE PAID WITNESSES IN THE DISTRICT COURTS OF THE UNITED STATES, ORDINARY WITNESSES SUBPOENAED BY THE OFFICE OF PRICE ADMINISTRATION TO TESTIFY IN STATE AND LOCAL COURTS AND AT ADMINISTRATIVE HEARINGS ARE ENTITLED IN PROPER CASES TO BE PAID THE FEES, MILEAGE, AND PER DIEM IN LIEU OF SUBSISTENCE PRESCRIBED BY THE ACT OF APRIL 26, 1926, AS AMENDED, FOR WITNESSES APPEARING IN UNITED STATES COURTS. 23 COMP. GEN. 835, DISTINGUISHED. THE TERM "WITNESS FEES" AS USED IN THE APPROPRIATION FOR THE OFFICE OF PRICE ADMINISTRATION IN THE SECOND DEFICIENCY APPROPRIATION ACT, 1944, COVERS ALL FORMS OF COMPENSATION PAYABLE TO WITNESSES, AND, THEREFORE, EXPERT WITNESSES MAY BE EMPLOYED BY THE O.P.A. AND PAID AGREED FEES FROM THAT PORTION OF THE APPROPRIATION WHICH INCLUDES THE ITEM "WITNESS FEES," WITHOUT REGARD TO THE SPECIAL LIMITATION IN SAID APPROPRIATION ON THE AMOUNT THAT MAY BE EXPENDED FOR THE TEMPORARY EMPLOYMENT OF PERSONS BY CONTRACT. THE FEES, ETC., TO BE PAID EXPERT WITNESSES--- WHOSE SERVICES CANNOT BE ACQUIRED WITHOUT THEIR CONSENT AND WITHOUT JUST COMPENSATION--- ARE SUBJECT TO AGREEMENT OR CONTRACT, SO THAT EXPERT WITNESSES APPEARING IN STATE OR FEDERAL COURTS FOR THE OFFICE OF PRICE ADMINISTRATION MAY BE PAID ANY COMPENSATION MUTUALLY AGREED UPON AND ADMINISTRATIVELY DETERMINED TO BE REASONABLE. WHILE EXPERT WITNESSES--- AS DISTINGUISHED FROM EXPERTS EMPLOYED TO ASSIST IN THE PREPARATION OF THE TRIAL PROCEEDINGS--- ARE NOT NECESSARILY OFFICERS OR EMPLOYEES OF THE GOVERNMENT, SUCH WITNESSES TESTIFYING IN STATE OR FEDERAL COURTS FOR THE OFFICE OF PRICE ADMINISTRATION MAY BY PAID PER DIEM IN LIEU OF SUBSISTENCE AND MILEAGE FOR USE OF PRIVATELY OWNED AUTOMOBILES BY STIPULATION IN AGREEMENTS OR CONTRACTS.

COMPTROLLER GENERAL WARREN TO THE PRICE ADMINISTRATOR, OFFICE OF PRICE ADMINISTRATION, AUGUST 28, 1944:

I HAVE YOUR LETTER OF AUGUST 11, 1944, AS FOLLOWS:

YOUR OPINION IS RESPECTFULLY REQUESTED AS TO THE LEGALITY OF AND MAXIMUM RATES ALLOWABLE FOR COMPENSATION, PER DIEM IN LIEU OF SUBSISTENCE AND MILEAGE FOR USE OF PRIVATELY OWNED AUTOMOBILES TO EXPERT WITNESSES AND ORDINARY WITNESSES IN FACT UNDER THE CONDITIONS OUTLINED HEREIN.

1. IN DECISION B-41448 DATED MAY 2, 1944, YOU HELD THAT PERSONS APPEARING AS WITNESSES FOR THE UNITED STATES IN STATE COURTS MAY BE REIMBURSED ONLY ON AN ACTUAL EXPENSE BASIS FOR HOTEL, MEALS, AND, IN THE ABSENCE OF A STATE STATUTE AUTHORIZING MILEAGE, ONLY ACTUAL EXPENSES FOR OPERATION OF AN AUTOMOBILE. SECTION 202 OF THE EMERGENCY PRICE CONTROL ACT OF 1942, (50 U.S.C. 922) AUTHORIZES THE ADMINISTRATOR "TO MAKE SUCH STUDIES AND INVESTIGATIONS AND TO OBTAIN SUCH INFORMATION AS HE DEEMS NECESSARY OR PROPER TO ASSIST HIM IN PRESCRIBING ANY REGULATION OR ORDER UNDER THIS ACT, OR IN THE ADMINISTRATION AND ENFORCEMENT OF THIS ACT AND REGULATIONS, ORDERS, AND PRICE SCHEDULES THEREUNDER.' FOR THE PURPOSE OF OBTAINING SUCH INFORMATION, THE ADMINISTRATOR MAY BY SUBPOENA REQUIRE ANY PERSON TO APPEAR AND TESTIFY AT ANY DESIGNATED PLACE. THIS SECTION FURTHER PROVIDES THAT ANY WITNESS SUBPOENAED UNDER THE SECTION SHALL BE PAID THE SAID FEES AND MILEAGE AS ARE PAID WITNESSES IN THE DISTRICT COURTS OF THE UNITED STATES. WITNESSES ATTENDING IN UNITED STATES COURTS ARE PAID AN ATTENDANCE FEE, A PER DIEM IN LIEU OF SUBSISTENCE, AND MILEAGE IN ACCORDANCE WITH THE ACT OF DECEMBER 24, 1942 (28 U.S.C. 600C).

THIS ADMINISTRATION CONSIDERS THAT THE PROVISIONS OF THE EMERGENCY PRICE CONTROL ACT OF 1942 ARE SUFFICIENTLY BROAD TO PERMIT PAYMENT OF THE FEES AND MILEAGE PRESCRIBED IN PUBLIC LAW 845 (28 U.S.C. 600C) TO ORDINARY WITNESSES IN FACT TESTIFYING FOR THE OFFICE OF PRICE ADMINISTRATION IN STATE AND LOCAL COURTS AND AT ADMINISTRATIVE HEARINGS BUT IN VIEW OF THE DECISION CITED ABOVE, YOUR RULING ON THIS QUESTION WOULD BE APPRECIATED. IF YOUR REPLY IS IN THE NEGATIVE WOULD THE LIMIT OF $3.00 ON PER DIEM PRESCRIBED THEREIN APPLY ALSO TO ACTUAL EXPENSES OF SUBSISTENCE?

2. THERE OCCASIONALLY ARISES LITIGATION IN FEDERAL OR STATE COURTS WHERE THE TESTIMONY OF AN EXPERT IS ESSENTIAL IN SUPPORT OF THE GOVERNMENT'S CASE. IN MANY INSTANCES, THERE IS NO EMPLOYEE OF THIS ADMINISTRATION WHO COULD QUALIFY AS AN EXPERT IN THE PARTICULAR FIELD INVOLVED, BUT, EVEN WHEN A QUALIFIED EMPLOYEE IS AVAILABLE, IT IS FELT THAT THE TESTIMONY OF A DISINTERESTED INDIVIDUAL WOULD CARRY MORE WEIGHT IN COURT BY RENDERING AN UNBIASED OPINION OR REPORT. IN ADDITION, MOST EXPERTS ARE IN A POSITION TO DEMAND FEES WHICH EXCEED THE SALARY RATES PRESCRIBED BY THE CLASSIFICATION ACT.

FOR EXAMPLE, FOLLOWING EXAMINATION OF LUMBER SHIPMENTS WHERE VIOLATIONS OF REGULATIONS BY UPGRADING ARE DETECTED, THE TESTIMONY OF EXPERT INSPECTORS MAY BE REQUIRED IN LITIGATION. BY CONTRACT WITH THE LUMBER INSPECTION ASSOCIATIONS BY WHOM THE EXPERTS ARE EMPLOYED, IT IS PROPOSED TO REIMBURSE THE INDIVIDUALS AT AGREED COMPENSATION, SUBSISTENCE AND TRAVELING EXPENSES AS AUTHORIZED WHEN SUBPOENAED TO PRESENT EXPERT TESTIMONY IN FEDERAL, STATE OR LOCAL COURTS.

THE SECOND DEFICIENCY APPROPRIATION ACT, 1944, UNDER THE HEADING " OFFICE OF PRICE ADMINISTRATION" PROVIDES "NOT TO EXCEED $30,000 FOR THE TEMPORARY EMPLOYMENT OF PERSONS OR ORGANIZATIONS, BY CONTRACT OR OTHERWISE, WITHOUT REGARD TO SECTION 3709, REVISED STATUTES, OR THE CIVIL SERVICE AND CLASSIFICATION LAWS.' OUR CONTENTION THAT THE REMUNERATION OF EXPERT WITNESSES NEED NOT BE CHARGED TO THE ABOVE LIMITATION APPEARS TO BE SUPPORTED BY SEVERAL DECISIONS OF YOUR OFFICE RULING THAT WHEN THE SERVICE CANNOT PROPERLY BE PERFORMED BY GOVERNMENT EMPLOYEES IT MAY BE SECURED BY CONTRACT (21 CG 400, 486).

IN DECISION B-4956 ON JULY 19, 1939 (19 CG 75) YOUR OFFICE HELD THAT THE GENERALLY ACCEPTED USE OF THE TERM FEES AS APPLIED TO WITNESSES COVERED ALL COMMUTED AMOUNTS PAYABLE WHETHER FOR ATTENDANCE OR SUBSISTENCE. THE DISTRICT COURTS OF THE UNITED STATES, MARSHALS ALLOW EXPERT WITNESSES A PER DIEM IN LIEU OF SUBSISTENCE, IN ADDITION TO COMPENSATION, ON THE SAME BASIS AS GOVERNMENT EMPLOYEES; THEIR COMPENSATION IS PAYABLE IN ACCORDANCE WITH RATES APPROVED BY THE ATTORNEY GENERAL. BY INFERENCE, THIS OFFICE CONSTRUES THAT EXPERTS EMPLOYED AS WITNESSES MAY BE PAID IN THE SAME MANNER AS ALLOWED IN UNITED STATES COURTS.

YET IN VIEW OF DECISION A-43984 (12 CG 322), WHICH INDICATED THAT EXPERT WITNESSES ARE NOT CONSIDERED OFFICERS OR EMPLOYEES OF THE GOVERNMENT, THERE APPEARS SOME DOUBT AS TO WHETHER WE HAVE AUTHORITY TO CONTRACT WITH EXPERTS FOR PAYMENT OF TRAVELING EXPENSES AND SUBSISTENCE AT A COMMUTED RATE OF MILEAGE AND PER DIEM WHEN TESTIFYING IN ANY COURT, WITH DUE REGARD TO THE ACT OF FEBRUARY 14, 1931 (46 STAT. 1103) AND THE SUBSISTENCE ACT OF 1926.

WE WOULD, THEREFORE, APPRECIATE YOUR REPLIES TO THE FOLLOWING QUESTIONS REGARDING THE REIMBURSEMENT OF EXPERT WITNESSES:

A. MAY EXPERT WITNESSES BE EMPLOYED AND PAID FROM THE GENERAL LIMITATION FOR "ALL OTHER EXPENSES?

B. MAY EXPERT WITNESSES BE PAID ANY COMPENSATION MUTUALLY AGREED UPON AND ADMINISTRATIVELY DETERMINED TO BE REASONABLE? (11 CG 504).

C. IN DECISION 12 CG 322, YOUR OFFICE RULED THAT EXPERT WITNESSES ARE NOT EMPLOYEES OF THE UNITED STATES. MAY WE PAY EXPERT WITNESSES A PER DIEM IN LIEU OF SUBSISTENCE AND MILEAGE FOR USE OF A PRIVATELY OWNED AUTOMOBILE BY STIPULATION IN THE AGREEMENT OR CONTRACT?

TITLE 50 U.S. CODE, SUPPLEMENT 3, SECTION 922 (C) AND (F), ACT OF JAN. 30, 1942, 56 STAT. 30, PROVIDE:

(C) FOR THE PURPOSE OF OBTAINING ANY INFORMATION UNDER SUBSECTION (A), THE ADMINISTRATOR MAY BY SUBPOENA REQUIRE ANY OTHER PERSON TO APPEAR AND TESTIFY OR TO APPEAR AND PRODUCE DOCUMENTS, OR BOTH, AT ANY DESIGNATED PLACE. * * * * * * *

(F) WITNESSES SUBPOENAED UNDER THIS SECTION SHALL BE PAID THE SAME FEES AND MILEAGE AS ARE PAID WITNESSES IN THE DISTRICT COURTS OF THE UNITED STATES.

SECTION 1 OF THE ACT OF DECEMBER 24, 1942, 56 STAT. 1088 (28 U.S.C. 600 (C) (, PROVIDES:

THAT SECTION 3 OF THE ACT ENTITLED " AN ACT FIXING THE FEES OF JURORS AND WITNESSES IN THE UNITED STATES COURTS, INCLUDING THE DISTRICT COURT OF HAWAII, THE DISTRICT COURT OF PORTO RICO, AND THE SUPREME COURT OF THE DISTRICT OF COLUMBIA," APPROVED APRIL 26, 1926 (44 STAT. 324), AS AMENDED ( U.S.C; TITLE 28, SEC. 600C), IS HEREBY AMENDED TO READ AS FOLLOWS:

"SEC. 3. WITNESSES ATTENDING IN SUCH COURTS, OR BEFORE SUCH COMMISSIONERS, SHALL RECEIVE FOR EACH DAY'S ATTENDANCE AND FOR THE TIME NECESSARILY OCCUPIED IN GOING TO AND RETURNING FROM THE SAME, $2, AND 5 CENTS PER MILE FOR GOING FROM HIS OR HER PLACE OF RESIDENCE TO THE PLACE OF TRIAL OR HEARING AND 5 CENTS PER MILE FOR RETURNING: PROVIDED, THAT WITNESSES (OTHER THAN WITNESSES WHO ARE SALARIED EMPLOYEES OF THE GOVERNMENT AND DETAINED WITNESSES) IN THE UNITED STATES COURTS, INCLUDING THE DISTRICT COURT OF HAWAII, THE DISTRICT COURT OF PUERTO RICO, AND THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA, WHO ATTEND COURT OR ATTEND BEFORE UNITED STATES COMMISSIONERS, AT POINTS SO FAR REMOVED FROM THEIR RESPECTIVE RESIDENCES AS TO PROHIBIT RETURN THERETO FROM DAY TO DAY, SHALL BE ENTITLED, IN ADDITION TO THE COMPENSATION PROVIDED BY EXISTING LAW, AS MODIFIED BY THIS ACT, TO A PER DIEM OF $3 FOR EXPENSES OF SUBSISTENCE FOR EACH DAY OF ACTUAL ATTENDANCE AND FOR EACH DAY NECESSARILY OCCUPIED IN TRAVELING TO ATTEND COURT AND RETURN HOME. CASES IN WHICH THE UNITED STATES IS A PARTY, WITNESSES ON BEHALF OF THE UNITED STATES SHALL BE ENTITLED TO THE PAYMENTS PROVIDED BY THIS SECTION UPON THE CERTIFICATE OF THE UNITED STATES ATTORNEY, OR ASSISTANT UNITED STATES ATTORNEY, OR UNITED STATES COMMISSIONER.'

THE APPROPRIATION FOR THE OFFICE OF PRICE ADMINISTRATION FOR THE CURRENT FISCAL YEAR FOUND IN THE SECOND DEFICIENCY APPROPRIATION ACT, 1944, PUBLIC LAW 375, APPROVED JUNE 28, 1944, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

* * * FOR ALL NECESSARY EXPENSES OF THE OFFICE OF PRICE ADMINISTRATION IN CARRYING OUT THE PROVISIONS OF THE EMERGENCY PRICE CONTROL ACT OF 1942, AS AMENDED BY THE ACT OF OCTOBER 2, 1942 (50 U.S.C. APP. 901), * * * NOT TO EXCEED $30,000 FOR THE TEMPORARY EMPLOYMENT OF PERSONS OR ORGANIZATIONS, BY CONTRACT OR OTHERWISE, WITHOUT REGARD TO SECTION 3709, REVISED STATUTES, OR THE CIVIL-SERVICE AND CLASSIFICATION LAWS; CONTRACT STENOGRAPHIC REPORTING SERVICES WITHOUT REGARD TO SAID SECTION 3709; WITNESS FEES * * *.

THE DECISION OF MAY 2, 1944, B-41448, 23 COMP. GEN. 835, REFERRED TO BY YOU, WAS RENDERED WITH RESPECT TO WITNESSES APPEARING IN PROCEEDINGS INVOLVING THE UNITED STATES RECLAMATION SERVICE AND APPLICABLE STATUTES; AND THE EXPENSES OF THE WITNESSES THEREIN REFERRED TO ARE DISTINGUISHABLE FROM THE EXPENSES OF WITNESSES SUBPOENAED BY YOUR ADMINISTRATION UNDER AUTHORITY OF THE ABOVE-QUOTED STATUTES. ACCORDINGLY, ORDINARY WITNESSES SUBPOENAED BY YOUR ADMINISTRATION WILL BE ENTITLED IN PROPER CASES TO THE FEES, MILEAGE, AND PER DIEM PRESCRIBED BY THE ACT OF DECEMBER 24, 1942, SUPRA.

EXPERT WITNESSES (AS DISTINGUISHED FROM EXPERTS EMPLOYED TO ASSIST IN THE PREPARATION OF THE TRIAL PROCEEDINGS, 6 COMP. GEN. 712) ARE NOT NECESSARILY OFFICERS OR EMPLOYEES BUT ARE PAID FEES TO APPEAR AND TESTIFY AS PRIVATE INDIVIDUALS. 12 COMP. GEN. 322. THE SERVICES OF EXPERT WITNESSES CANNOT BE ACQUIRED WITHOUT THEIR CONSENT AND WITHOUT JUST COMPENSATION. IN RE MAJOR WILLIAM SMITH, 24 C.1CLS. 209; 6 COMP. GEN. 712; 7 ID. 232. ACCORDINGLY, THE FEES, ETC., TO BE PAID EXPERT WITNESSES ARE SUBJECT TO AGREEMENT OR CONTRACT.

REFERRING TO QUESTION A, AS THE TERM "WITNESS FEES," USED IN YOUR APPROPRIATION, HAS BEEN HELD TO COVER ALL FORMS OF COMPENSATION PAYABLE TO WITNESSES (SEE 19 COMP. GEN. 75), EXPERT WITNESSES MAY BE EMPLOYED AND PAID AGREED FEES FROM THAT PORTION OF YOUR APPROPRIATION SET UP UNDER THE FISCAL LIMITATION FOR "ALL OTHER EXPENSES," WITHOUT REGARD TO THE LIMITATION OF $30,000 UPON TEMPORARY EMPLOYMENT OF PERSONS BY CONTRACT. -34946, JUNE 9, 1943.