A-39298, FEBRUARY 1, 1932, 11 COMP. GEN. 295

A-39298, FEBRUARY 1, 1932, 11 COMP. GEN. 295

SUBSISTENCE - ACTUAL EXPENSES - MAXIMUM - GOVERNMENT EMPLOYEES AS WITNESSES THE SUBSISTENCE ACT OF JUNE 3, 1926, 44 STAT. 688, IS APPLICABLE TO ALL CIVILIAN EMPLOYEES AND OFFICERS OF THE GOVERNMENT, AND THE MAXIMUM LIMITATION UPON ACTUAL EXPENSES OF SUBSISTENCE FIXED BY THAT ACT IS ACCORDINGLY APPLICABLE TO OFFICERS AND EMPLOYEES OF THE GOVERNMENT ENTITLED TO REIMBURSEMENT OF ACTUAL NECESSARY EXPENSES PURSUANT TO SECTION 850, REVISED STATUTES, BUT DOES NOT PRECLUDE THE FIXING BY ADMINISTRATIVE REGULATION OF A LESSER AMOUNT.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, FEBRUARY 1, 1932:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 27, 1931, AS FOLLOWS:

THERE IS INCLOSED HEREWITH A COPY OF DEPARTMENT ORDER NO. 2219, DATED SEPTEMBER 21, 1931, REDUCING THE PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE OF ALL OFFICERS AND EMPLOYEES OF THE DEPARTMENT, THE UNITED STATES COURTS, AND PENAL INSTITUTIONS FROM $6.00 TO $5.00, AND ALSO REDUCING THE LIMITATION OF ACTUAL EXPENSES OF SUBSISTENCE FROM $7.00 PER DAY TO $6.00 PER DAY, EFFECTIVE OCTOBER 1, 1931.

ALTHOUGH THE ORDER DOES NOT, IN SPECIFIC TERMS, COVER THE EXPENSES OF GOVERNMENT OFFICERS AND EMPLOYEES ATTENDING COURT AS WITNESSES FOR THE GOVERNMENT, IT WAS INTENDED TO LIMIT THEIR ACTUAL EXPENSES TO $6.00 PER DAY. WE HAVE ALREADY ADVISED CERTAIN MARSHALS THAT THE LIMITATION OF $6.00 PER DAY WAS CONSIDERED AS APPLICABLE TO THE EXPENSES ACTUALLY INCURRED BY SUCH OFFICERS AND EMPLOYEES. HOWEVER, YOUR DECISION OF OCTOBER 21, 1931 (38406) CREATES SOME DOUBT AS TO WHETHER SUCH ACTUAL EXPENSE WITNESSES CAN BE SO LIMITED OR, IN FACT, WHETHER THE SUBSISTENCE ACT OF 1926 IS APPLICABLE TO THEM IN CONNECTION WITH TRAVEL TO ATTEND COURT. IN THIS CONNECTION, IT MAY BE STATED THAT THE COMPTROLLER OF THE TREASURY PREVIOUSLY HELD THAT THE OLD LIMITATION OF $5.00 PER DAY RESTRICTED THE PAYMENT OF ACTUAL EXPENSES OF SUCH WITNESSES TO THAT AMOUNT (22 COMP. DEC. 484).

THE DEPARTMENT WOULD GREATLY APPRECIATE YOUR OPINION IN THIS MATTER.

SECTION 850, REVISED STATUTES, PROVIDES:

WHEN ANY CLERK OR OTHER OFFICER OF THE UNITED STATES IS SENT AWAY FROM HIS PLACE OF BUSINESS AS A WITNESS FOR THE GOVERNMENT, HIS NECESSARY EXPENSES, STATED IN ITEMS AND SWORN TO, IN GOING, RETURNING, AND ATTENDANCE ON THE COURT, SHALL BE AUDITED AND PAID; BUT NO MILEAGE, OR OTHER COMPENSATION IN ADDITION TO HIS SALARY, SHALL IN ANY CASE BE ALLOWED.

SAID SECTION 850, REVISED STATUTES, IS SPECIFICALLY APPLICABLE TO CLERKS AND OTHER OFFICERS OF THE UNITED STATES, BUT FIXES NO MAXIMUM ALLOWANCE FOR THE EXPENSE OF TRAVEL OR SUBSISTENCE. THE SUBSISTENCE ACT OF 1926, 44 STAT. 688, IS GENERAL IN ITS SCOPE AND IS APPLICABLE TO ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT. THE MAXIMUM LIMITATION UPON ACTUAL SUBSISTENCE EXPENSES FIXED IN THAT ACT IS APPLICABLE, THEREFORE, TO OFFICERS AND EMPLOYEES OF THE GOVERNMENT ENTITLED TO REIMBURSEMENT OF ACTUAL NECESSARY EXPENSES PURSUANT TO SECTION 850, REVISED STATUTES. COMP. DEC. 484.

HOWEVER, THE MAXIMUM FOR ACTUAL EXPENSES OF SUBSISTENCE FIXED BY THE STATUTE DOES NOT PRECLUDE THE ADMINISTRATIVE REGULATION OF EXPENSES TO A LESSER AMOUNT AND THIS OFFICE SEES NO REASON FOR OBJECTING TO THE AMENDMENT OF DEPARTMENTAL ORDER 2219 TO INCLUDE SUBSISTENCE EXPENSES OF EMPLOYEES ACTING AS WITNESSES UNDER SECTION 850 OF THE REVISED STATUTES, AND THUS LIMITING THEIR ACTUAL EXPENSES OF SUBSISTENCE TO $6 A DAY.