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B-62017, JANUARY 13, 1947, 26 COMP. GEN. 484

B-62017 Jan 13, 1947
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WITNESSES - DISTRICT OF COLUMBIA EMPLOYEES - MILEAGE AND SUBSISTENCE WHILE IN ATTENDANCE BEFORE COURT OUTSIDE DISTRICT OF COLUMBIA A DISTRICT OF COLUMBIA EMPLOYEE IS NOT AN "EMPLOYEE OF THE UNITED STATES" ENTITLED UNDER SECTION 850. SUCH EMPLOYEE IS ENTITLED TO MILEAGE AND $3 PER DIEM IN LIEU OF SUBSISTENCE UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF APRIL 26. 1947: I HAVE YOUR LETTER OF DECEMBER 16. WHILE IT IS NOTED THAT SUCH AN EMPLOYEE IS NOT ENTITLED TO WITNESS FEES FOR SERVICES. THIS OFFICE IS IN DOUBT AS TO WHETHER OR NOT HE WOULD BE ENTITLED TO PER DIEMS IN LIEU OF SUBSISTENCE OF $6. YOUR EARLY CONSIDERATION OF THIS MATTER WILL BE GREATLY APPRECIATED. THAT WITNESSES (OTHER THAN WITNESSES WHO ARE SALARIED EMPLOYEES OF THE GOVERNMENT AND DETAINED WITNESSES) IN THE UNITED STATES COURTS.

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B-62017, JANUARY 13, 1947, 26 COMP. GEN. 484

WITNESSES - DISTRICT OF COLUMBIA EMPLOYEES - MILEAGE AND SUBSISTENCE WHILE IN ATTENDANCE BEFORE COURT OUTSIDE DISTRICT OF COLUMBIA A DISTRICT OF COLUMBIA EMPLOYEE IS NOT AN "EMPLOYEE OF THE UNITED STATES" ENTITLED UNDER SECTION 850, REVISED STATUTES, AS AMENDED, TO MILEAGE AND $6 PER DIEM IN LIEU OF SUBSISTENCE INCIDENT TO ATTENDANCE AS A WITNESS ON BEHALF OF THE UNITED STATES BEFORE A UNITED STATES COURT OUTSIDE THE DISTRICT OF COLUMBIA; HOWEVER, SUCH EMPLOYEE IS ENTITLED TO MILEAGE AND $3 PER DIEM IN LIEU OF SUBSISTENCE UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF APRIL 26, 1926, AS AMENDED, RELATING TO WITNESSES GENERALLY. COMPARE 26 COMP. GEN. 400.

COMPTROLLER GENERAL WARREN TO THE ATTORNEY GENERAL, JANUARY 13, 1947:

I HAVE YOUR LETTER OF DECEMBER 16, 1946 (A3, 22-X-313), AS FOLLOWS:

THIS ACKNOWLEDGES YOUR LETTER OF DECEMBER 9, 1946, FILE B-62017, RELATIVE TO THE ALLOWANCE OF WITNESS FEES TO A SALARIED EMPLOYEE OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, INCIDENT TO HIS ATTENDANCE BEFORE THE UNITED STATES DISTRICT COURT AT BOSTON, MASSACHUSETTS, AS A WITNESS ON BEHALF OF THE UNITED STATES IN THE CASE OF UNITED STATES VS. JOE DOE, ET AL.

WHILE IT IS NOTED THAT SUCH AN EMPLOYEE IS NOT ENTITLED TO WITNESS FEES FOR SERVICES, THIS OFFICE IS IN DOUBT AS TO WHETHER OR NOT HE WOULD BE ENTITLED TO PER DIEMS IN LIEU OF SUBSISTENCE OF $6, IN ADDITION TO TRANSPORTATION EXPENSES, UPON THE REQUIRED CERTIFICATE OF ATTENDANCE OF THE UNITED STATES ATTORNEY OR ASSISTANT UNITED STATES ATTORNEY, ON THE SAME BASIS AS A SALARIED GOVERNMENT EMPLOYEE.

YOUR EARLY CONSIDERATION OF THIS MATTER WILL BE GREATLY APPRECIATED.

THE ACT OF DECEMBER 24, 1942, 56 STAT. 1088, AMENDED SECTION 3 OF THE ACT OF APRIL 26, 1926, 44 STAT. 234, AND ALSO SECTION 850 OF THE REVISED STATUTES, TO READ AS FOLLOWS:

SEC. 3. WITNESSES ATTENDING IN SUCH COURTS, OR BEFORE SUCH COMMISSIONERS, SHALL RECEIVE FOR EACH DAY'S ATTENDANCE 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.

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.

IT IS EVIDENT THAT A DISTRICT OF COLUMBIA EMPLOYEE IS NOT AN "EMPLOYEE OF THE UNITED STATES" WITHIN THE MEANING OF SECTION 850, REVISED STATUTES, AS AMENDED, SUPRA.WHILE THE AMENDMENT OF THE ACT OF APRIL 26, 1926, BY SECTION 1 OF THE ABOVE ACT OF DECEMBER 24, 1942, WAS SUBSEQUENT TO THE ACT OF OCTOBER 14, 1941, CONSIDERED IN OFFICE DECISION OF DECEMBER 9, 1946, 26 COMP. GEN. 400, TO YOU, IT MADE NO SUBSTANTIAL CHANGE IN THE PROVISIONS THE SAID 1941 ACT, THE AMENDMENT MERELY PERMITTING THE CERTIFICATE OF ATTENDANCE TO BE MADE BY THE UNITED STATES ATTORNEY OR ASSISTANT UNITED STATES ATTORNEY INSTEAD OF BY THE COURT. AS A DISTRICT OF COLUMBIA EMPLOYEE, PRIOR TO THE ACT OF OCTOBER 1941, WAS CONSIDERED SUBJECT TO THE PROVISIONS OF THE ACT OF APRIL 26, 1926, AS AMENDED, THE ACT OF OCTOBER 14, 1941, PROHIBITING THE RECEIPT OF WITNESS FEES AND IN EFFECT REQUIRING SUCH ABSENCES TO BE CONSIDERED AS OFFICIAL BUSINESS, DID NOT REPEAL OR OTHERWISE AFFECT THE APPLICATION OF THE OTHER PROVISIONS OF THE ACT OF APRIL 26, 1926, AS AMENDED. ACCORDINGLY, IT MUST BE CONCLUDED THAT EMPLOYEES OF THE DISTRICT OF COLUMBIA REMAIN SUBJECT TO THE PROVISIONS OF THE ACT OF APRIL 26, 1926, AS AMENDED, AND ARE, THEREFORE, ENTITLED TO 5 CENTS PER MILE AND $3 PER DIEM IN LIEU OF SUBSISTENCE WHILE GOING TO AND RETURNING FROM AND WHILE IN ATTENDANCE BEFORE THE COURT, AND NOT TO $6 AS IN THE CASE OF A SALARIED GOVERNMENT EMPLOYEE.

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