B-60161, SEPTEMBER 4, 1946, 26 COMP. GEN. 151

B-60161, SEPTEMBER 4, 1946, 26 COMP. GEN. 151

WITNESSES - GOVERNMENT EMPLOYEES SUBPOENAED TO APPEAR ON NONWORKDAYS - MILEAGE AND FEES; OVERTIME COMPENSATION THE ESTABLISHMENT OF A 5-DAY, 40-HOUR WORKWEEK, WHILE EXCUSING EMPLOYEES FROM PERFORMANCE OF DUTIES ON TWO DAYS EACH WEEK, EXCEPT WHEN OVERTIME WORK IS REQUIRED, DOES NOT REMOVE SUCH EMPLOYEES FROM THE CATEGORY OF EMPLOYEES OF THE UNITED STATES DURING SUCH NON-WORKDAYS, AND, THEREFORE, SUCH EMPLOYEES WHEN SUBPOENAED AS WITNESSES IN THE UNITED STATES COURTS ON THEIR REGULAR NON-WORKDAYS ARE NOT ENTITLED TO WITNESS FEES OR OTHER COMPENSATION IN ADDITION TO THEIR SALARIES OTHER THAN THE MILEAGE AND PER DIEM ALLOWANCES AUTHORIZED BY SECTION 850, REVISED STATUTES, AS AMENDED. 10 COMP. GEN. 329; 12 ID. 359, DISTINGUISHED. GOVERNMENT EMPLOYEES SUBPOENAED AS WITNESSES IN THE UNITED STATES COURTS ARE ENTITLED TO OVERTIME COMPENSATION WHEN THE EMPLOYEES' ADMINISTRATIVE WORKWEEK WOULD HAVE REQUIRED THEM TO PERFORM OVERTIME WORK ON THE DAYS ON WHICH THEY APPEARED IN COURT, BUT ARE NOT ENTITLED TO OVERTIME COMPENSATION WHEN THE DAYS IN QUESTION ARE NOT INCLUDED IN THEIR REGULARLY ESTABLISHED WORKWEEK.

COMPTROLLER GENERAL WARREN TO THE ATTORNEY GENERAL, SEPTEMBER 4, 1946:

I HAVE YOUR LETTER OF AUGUST 23, 1946 (A3), AS FOLLOWS:

UNDER SECTIONS 604, TITLE 28, U.S.C. AN OFFICER OR EMPLOYEE OF THE UNITED STATES WHO IS SUMMONED AS A WITNESS FOR THE GOVERNMENT IS ENTITLED TO HIS NECESSARY EXPENSE OF TRAVEL BY COMMON CARRIER, AND IF TRAVEL IS MADE BY PRIVATELY OWNED AUTOMOBILE, MILEAGE AT THE RATE OF 5 CENTS PER MILE, TOGETHER WITH A PER DIEM IN LIEU OF SUBSISTENCE OF NOT EXCEEDING $6, PAYABLE UPON CERTIFICATE OF ATTENDANCE OF THE UNITED STATES ATTORNEY OR ASSISTANT UNITED STATES ATTORNEY.

THE UNITED STATES MARSHAL FOR THE NORTHERN DISTRICT OF GEORGIA, ADVISES THAT TWO SALARIED EMPLOYEES OF THE GOVERNMENT, EMPLOYED AT THE ATLANTA GENERAL DEPOT, CONLEY, GEORGIA, APPEARED UNDER COURT SUBPOENA AS WITNESS ON BEHALF OF THE UNITED STATES, IN THE UNITED STATES DISTRICT COURT, ATLANTA, GEORGIA, ON THEIR OFF DAYS, AND REQUESTED PAYMENT OF THE USUAL WITNESS FEES OF AN ORDINARY WITNESS. THEIR REGULAR WORKWEEK IS A 5 DAY-40 HOUR WEEK BEGINNING WITH WEDNESDAY OF EACH WEEK AND ENDING WITH SUNDAY, MONDAYS AND TUESDAYS BEING THEIR OFF DAYS.

IT IS RESPECTFULLY REQUESTED THAT YOU ADVISE THIS OFFICE AS TO WHETHER SUCH EMPLOYEES ARE ENTITLED TO REGULAR WITNESS FEES BECAUSE OF THE FACT THAT THEIR ATTENDANCE WAS ON DAYS FOR WHICH THEY RECEIVED NO COMPENSATION FROM THE GOVERNMENT; WHETHER THEY ARE ENTITLED TO OVERTIME COMPENSATION FROM THE AGENCY IN WHICH THEY ARE EMPLOYED; OR WHETHER THEY ARE MERELY ENTITLED TO REIMBURSEMENT OF EXPENSES AND PER DIEMS IN LIEU OF SUBSISTENCE, IF ANY, FOR THE PERIOD OF THEIR ATTENDANCE AS GOVERNMENT WITNESSES.

AN EARLY REPLY WILL BE GREATLY APPRECIATED, SO THAT ANY NECESSARY INSTRUCTIONS MAY BE ISSUED TO UNITED STATES MARSHALS GENERALLY.

SECTION 850, REVISED STATUTES, AS AMENDED BY SECTION 2 OF THE ACT OF DECEMBER 24, 1942, 56 STAT. 1088, PROVIDES IN PERTINENT PART, 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. * *

THE ESTABLISHMENT OF A 5-DAY, 40-HOUR WEEK, WHILE EXCUSING THE EMPLOYEES FROM THE PERFORMANCE OF DUTIES ON 2 DAYS EACH WEEK, EXCEPT WHEN OVERTIME WORK IS REQUIRED, DOES NOT REMOVE SUCH EMPLOYEES FROM THE CATEGORY OF EMPLOYEES OF THE UNITED STATES DURING SUCH NONWORKDAYS. ACCORDINGLY, SUCH EMPLOYEES WHEN SUBPOENAED AS WITNESSES IN THE UNITED STATES COURTS ON THEIR NONWORKDAYS ARE NOT ENTITLED TO WITNESS FEES OR OTHER COMPENSATION IN ADDITION TO THEIR SALARIES OTHER THAN THE MILEAGE AND PER DIEM ALLOWANCES AUTHORIZED BY SAID SECTION 850, REVISED STATUTES, SUPRA. CF. B- 19454, AUGUST 27, 1941, AND 22 COMP. GEN. 743.

IF THE ADMINISTRATIVE WORKWEEK FOR THE EMPLOYEES IN QUESTION HAD REQUIRED THEM REGULARLY TO PERFORM OVERTIME WORK ON THE DAYS IN QUESTION, THEY WOULD HAVE BEEN ENTITLED TO THEIR OVERTIME PAY FOR SUCH DAYS, BUT WOULD NOT BE ENTITLED TO OVERTIME PAY IF SUCH DAYS WERE NOT INCLUDED IN THEIR REGULARLY ESTABLISHED WORKWEEK. CF. 23 COMP. GEN. 904.

THE ATTENDANCE OF GOVERNMENT EMPLOYEES AS WITNESSES ON THEIR REGULAR NONWORKDAYS, AS IN THIS CASE, IS DISTINGUISHABLE FROM THE ATTENDANCE AS WITNESSES WHILE ON LEAVE WITHOUT PAY OR LEGISLATIVE FURLOUGH CONSIDERED IN 10 COMP. GEN. 329 AND 12 ID. 359.