A-99188, JANUARY 25, 1939, 18 COMP. GEN. 624

A-99188: Jan 25, 1939

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IS AS FOLLOWS: THE RECEIPT IS ACKNOWLEDGED OF YOUR DECISION DATED DECEMBER 29. WITH REGARD TO PAYMENT OF COMPENSATION IN THE CAPACITY OF EXPERT WITNESSES TO FORMER GOVERNMENT EMPLOYEES WHO HAVE BEEN RETIRED ON ACCOUNT OF AGE. IT IS POSSIBLE THAT THE DEPARTMENT'S POSITION IS NOT FULLY UNDERSTOOD. IT WAS NOT OUR INTENTION TO INTIMATE THAT SUCH INDIVIDUALS WERE TO BE REEMPLOYED ON A PERMANENT ROLL TO ASSIST IN THE PREPARATION OF CASES FOR TRIAL. IN ORDER THAT HE MAY FAMILIARIZE HIMSELF WITH THE PARTICULAR FACTS WHICH ARE THE SUBJECT OF THE LITIGATION. AS YOUR DECISION IS UNDERSTOOD. YOUR FURTHER CONSIDERATION OF THE MATTER IS REQUESTED. AGAINST EMPLOYMENT BY THE DEPARTMENT OF JUSTICE OF RETIRED EMPLOYEES OF THE GOVERNMENT WAS DIRECTED TO CASES WHERE THE EMPLOYMENT INVOLVED ASSISTANCE IN THE PREPARATION OF CASES FOR TRIAL.

A-99188, JANUARY 25, 1939, 18 COMP. GEN. 624

RETIRED CIVILIAN PERSONNEL - EXPERT WITNESS SUIT FAMILIARIZATION REEMPLOYMENT A CIVILIAN EMPLOYEE RETIRED FOR AGE MAY BE EMPLOYED, UNDER AUTHORITY OF THE DEPARTMENT OF JUSTICE APPROPRIATION FOR "MARSHALS AND OTHER EXPENSES FOR THE UNITED STATES COURTS," FOR A LIMITED PERIOD PRIOR TO TESTIFYING AS AN EXPERT WITNESS FOR THE PURPOSE OF FAMILIARIZING HIMSELF WITH THE FACTS OF THE PARTICULAR CASE, BUT SUCH EMPLOYMENT MUST BE AS INCIDENT TO THE TESTIFYING AS AN EXPERT WITNESS, AND NOT AS AN OFFICER AND EMPLOYEE OF THE GOVERNMENT. 18 COMP. GEN. 573, AMPLIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ATTORNEY GENERAL, JANUARY 25, 1939:

YOUR LETTER OF JANUARY 9, 1939, IS AS FOLLOWS:

THE RECEIPT IS ACKNOWLEDGED OF YOUR DECISION DATED DECEMBER 29, 1938, A- 99188, WITH REGARD TO PAYMENT OF COMPENSATION IN THE CAPACITY OF EXPERT WITNESSES TO FORMER GOVERNMENT EMPLOYEES WHO HAVE BEEN RETIRED ON ACCOUNT OF AGE.

IT IS POSSIBLE THAT THE DEPARTMENT'S POSITION IS NOT FULLY UNDERSTOOD. IT WAS NOT OUR INTENTION TO INTIMATE THAT SUCH INDIVIDUALS WERE TO BE REEMPLOYED ON A PERMANENT ROLL TO ASSIST IN THE PREPARATION OF CASES FOR TRIAL, IN A CLASS OF CASES IN WHICH THE INDIVIDUAL MIGHT BE A SPECIALIST. ON THE CONTRARY, THE SUBMISSION RELATED TO THE OBTAINING OF THE SERVICES OF SUCH SPECIALLY QUALIFIED INDIVIDUALS FOR USE IN SPECIFIED CASES ONLY AND ORDINARILY INVOLVES, IN ADDITION TO THE TIME OCCUPIED WHILE TESTIFYING IN COURT, THE UTILIZATION OF HIS SERVICES FOR THE TIME OCCUPIED WHILE TESTIFYING IN COURT, THE UTILIZATION OF HIS SERVICES FOR A VERY LIMITED PERIOD, USUALLY TWO OR THREE DAYS IN ADVANCE, IN ORDER THAT HE MAY FAMILIARIZE HIMSELF WITH THE PARTICULAR FACTS WHICH ARE THE SUBJECT OF THE LITIGATION, THEREBY ENHANCING HIS VALUE AS AN EXPERT WITNESS ON THE MATTER INVOLVED IN THE SUIT.

AS YOUR DECISION IS UNDERSTOOD, THE EXPERT'S SERVICES MAY BE OBTAINED ONLY FOR THE PURPOSE OF TESTIFYING AND NO ALLOWANCE CAN BE MADE FOR THE TIME HE WOULD ORDINARILY DEVOTE TO FAMILIARIZING HIMSELF WITH THE DETAILS OF THE PARTICULAR ACTION.

IN THE LIGHT OF THE FOREGOING, YOUR FURTHER CONSIDERATION OF THE MATTER IS REQUESTED.

THE PROHIBITION STATED IN THE DECISION OF DECEMBER 29, 1938, AGAINST EMPLOYMENT BY THE DEPARTMENT OF JUSTICE OF RETIRED EMPLOYEES OF THE GOVERNMENT WAS DIRECTED TO CASES WHERE THE EMPLOYMENT INVOLVED ASSISTANCE IN THE PREPARATION OF CASES FOR TRIAL, AND NOT TO A CASE SUCH AS THAT COVERED BY YOUR PRESENT SUBMISSION--- THE DECISION IN QUESTION HAVING CONCLUDED AS FOLLOWS:

ACCORDINGLY, I HAVE TO ADVISE THAT WHILE RETIRED EMPLOYEES MAY BE CALLED AS EXPERT WITNESSES TO TESTIFY FOR THE GOVERNMENT BEFORE UNITED STATES COURTS AND RECEIVE THE LAWFUL FEES OR COMPENSATION WHICH MAY BE PROVIDED THEREFOR, EMPLOYEES WHO HAVE BEEN RETIRED FOR AGE MAY NOT BE REEMPLOYED IN THE DEPARTMENT OF JUSTICE, BY CONTRACT OR OTHERWISE, TO ASSIST IN THE PREPARATION OF SUITS FOR TRIAL. TO THIS EXTENT THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.

THE APPROPRIATION ITEM ENTITLED "MISCELLANEOUS EXPENSES (OTHER THAN SALARIES)," APPEARING IN THE ANNUAL APPROPRIATION ACT FOR THE DEPARTMENT OF JUSTICE UNDER THE HEADING "MARSHALS AND OTHER EXPENSES FOR THE UNITED STATES COURTS" PROVIDES IN PART AS FOLLOWS (ACT OF APRIL 27, 1938, 52 STAT. 268):

FOR SUCH MISCELLANEOUS EXPENSES AS MAY BE AUTHORIZED OR APPROVED BY THE ATTORNEY GENERAL, FOR THE UNITED STATES COURTS AND THEIR OFFICERS, INCLUDING EXPERTS * * * AT SUCH RATES OF COMPENSATION AS MAY BE AUTHORIZED OR APPROVED BY THE ATTORNEY GENERAL * * *.

IF THE SERVICES OF AN EXPERT WITNESS FOR A LIMITED PERIOD OF TWO OR THREE DAYS PRIOR TO THE TRIAL OF THE CASE IS NECESSARY TO FAMILIARIZE THE WITNESS WITH THE FACTS OF THE PARTICULAR CASE--- NO SERVICES BEING RENDERED IN PREPARING THE CASE FOR TRIAL--- HIS EMPLOYMENT IS AUTHORIZED UNDER THE QUOTED APPROPRIATION ITEM, NOT AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT, BUT AS INCIDENT TO HIS TESTIFYING AS AN EXPERT WITNESS, WHETHER OR NOT HE MAY HAVE BEEN RETIRED FOR AGE FROM THE GOVERNMENT SERVICE. SEE 4 COMP. GEN. 1017; ALSO, 7 ID. 232.