B-139357, JULY 2, 1959, 39 COMP. GEN. 1

B-139357, JULY 2, 1959, 39 COMP. GEN. 1

POSTAL EMPLOYEES - WITNESSES - TESTIMONY INCIDENT TO EMPLOYMENT - OVERTIME - TRAVEL EXPENSES A GOVERNMENT EMPLOYEE WITNESS WHO IS ORDERED TO BE AVAILABLE AND TO TESTIFY IN GRAND JURY PROCEEDINGS CONCERNING FACTS ACQUIRED IN HIS ASSIGNED DUTIES IS TO BE REGARDED AS APPEARING AS A WITNESS IN A CASE INVOLVING THE ACTIVITY WITH WHICH HE IS EMPLOYED WITHIN THE PURVIEW OF 28 U.S.C. 1823 (A), AND IS, THEREFORE, ENTITLED ONLY TO THE TRAVEL AND PER DIEM ALLOWANCES PROVIDED IN THAT SECTION, WHICH ALLOWANCES ARE PAYABLE FROM THE APPROPRIATIONS OF THE EMPLOYING AGENCY. A POSTAL EMPLOYEE WHO, DURING A PERIOD WHEN HE WAS ORDERED TO BE AVAILABLE FOR PRETRIAL CONFERENCES AND TO TESTIFY IN GRAND JURY PROCEEDINGS CONCERNING FACTS ACQUIRED IN HIS ASSIGNED DUTIES, WAS CONVERTED FROM A SUBSTITUTE TO A REGULAR CLERK MAY HAVE THE LITIGATION TIME REGARDED AS TIME WORKED; HOWEVER, WHILE THE EMPLOYEE HAD A SUBSTITUTE STATUS, HE IS ENTITLED TO WITNESS FEES AND MILEAGE UNDER 28 U.S.C. 1821, BUT IS PRECLUDED BY SECTION 605 (B) OF THE POSTAL FIELD SERVICE COMPENSATION ACT OF 1955 FROM RECEIVING OVERTIME, BUT AFTER ASSIGNMENT AS A REGULAR CLERK HE IS RESTRICTED TO TRAVEL ALLOWANCES IN 28 U.S.C. 1823 (A), BUT MAY RECEIVE OVERTIME FOR THE WITNESS TIME WHICH WAS IN ADDITION TO PERFORMANCE OF HIS REGULAR NIGHT DUTIES.

TO THE ATTORNEY GENERAL, JULY 2, 1959:

ON APRIL 15, 1959, REFERENCE A7, THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL REQUESTED THAT WE ADVISE YOUR DEPARTMENT WHETHER MR. EARLE L. DIFFENBACHER--- AN EMPLOYEE OF THE POST OFFICE DEPARTMENT WHO TESTIFIED ON BEHALF OF THE UNITED STATES IN THE GRAND JURY AND U.S. DISTRICT COURT TRIAL PROCEEDINGS IN THE CASE OF LORETTA M. GAGNE, ET AL., CRIMINAL NO. 154-59--- IS ENTITLED TO WITNESS FEES AND MILEAGE UNDER 28 U.S.C. 1821, OR WHETHER HE IS RESTRICTED TO THE ALLOWANCES UNDER 28 U.S.C. 1823. FURTHER, HE ASKED, IF NEITHER OF THOSE SECTIONS APPLIES, WHETHER MR. DIFFENBACHER MAY BE PAID ANY FEES OR ALLOWANCES UNDER OTHER PROVISIONS OF LAW.

SECTION 1821 OF TITLE 28, U.S. CODE, PROVIDES IN PERTINENT PART THAT A WITNESS ATTENDING IN ANY UNITED STATES COURT SHALL RECEIVE $4 PER DAY FOR EACH DAY'S ATTENDANCE AND TRAVEL TIME, PLUS 8 CENTS PER MILE FOR GOING FROM AND RETURNING TO HIS PLACE OF RESIDENCE. SECTION 1823 (A) PROVIDES, HOWEVER, AS FOLLOWS:

ANY OFFICER OR EMPLOYEE OF THE UNITED STATES OR ANY AGENCY THEREOF, SUMMONED AS A WITNESS ON BEHALF OF THE UNITED STATES, SHALL BE PAID HIS NECESSARY EXPENSES INCIDENT TO TRAVEL BY COMMON CARRIER, OR, IF TRAVEL IS MADE BY PRIVATELY OWNED AUTOMOBILE, AT A RATE NOT TO EXCEED THAT PRESCRIBED IN SECTION 4 OF THE TRAVEL EXPENSE ACT OF 1949, TOGETHER WITH A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE NOT TO EXCEED THE RATES OF PER DIEM AS DESCRIBED IN, OR ESTABLISHED PURSUANT TO, SECTION 3 THEREOF UNDER REGULATIONS PRESCRIBED BY THE ATTORNEY GENERAL. SUCH EXPENSES FOR APPEARING AS A WITNESS IN ANY CASE INVOLVING THE ACTIVITY IN CONNECTION WITH WHICH SUCH PERSON IS EMPLOYED SHALL BE PAYABLE FROM THE APPROPRIATION OTHERWISE AVAILABLE FOR TRAVEL EXPENSES OF SUCH OFFICER OR EMPLOYEE UNDER PROPER CERTIFICATION BY A CERTIFYING OFFICER OF THE DEPARTMENT OR AGENCY CONCERNED. IN ANY CASE WHICH DOES NOT INVOLVE ITS ACTIVITY, ANY DEPARTMENT OR AGENCY MAY ADVANCE OR PAY THE TRAVEL EXPENSES AND PER DIEM ALLOWANCE OF ITS OFFICER OR EMPLOYEE, SUMMONED AS A WITNESS ON BEHALF OF THE UNITED STATES, AND LATER OBTAIN REIMBURSEMENT FROM THE DEPARTMENT OR AGENCY PROPERLY CHARGEABLE WITH SUCH WITNESS' TRAVEL EXPENSES.

IN VIEW OF THE ABOVE-QUOTED PROVISIONS, AND OF THE PROVISION IN SECTION 603 (1) OF THE POSTAL FIELD SERVICE COMPENSATION ACT OF 1955, PUBLIC LAW 68, 84TH CONG., 69 STAT. 125, 126, 39 U.S.C. 1003 (1), WE REQUESTED THE POSTMASTER GENERAL FOR AN EXPRESSION OF THE VIEWS OF THE POST OFFICE DEPARTMENT. ON JUNE 16, THE DEPARTMENT'S VIEWS WERE STATED IN PERTINENT PART AS FOLLOWS:

YOUR LETTER REFERS TO SECTION 721.658 OF THE POSTAL MANUAL WHICH INDICATES THAT OVERTIME WILL NOT BE ALLOWED FOR EMPLOYEES COURT LEAVE. SECTION 721.658 IS INTENDED TO COVER ONLY THOSE SITUATIONS IN WHICH AN EMPLOYEE IS IN A LEAVE STATUS. SECTION 721.93 RECOGNIZES THERE ARE CONDITIONS UNDER WHICH AN EMPLOYEE SERVING AS A WITNESS IS CONSIDERED TO BE IN A FULL DUTY STATUS. IN ANY SUCH CASE, HE IS OBVIOUSLY ENTITLED TO INCLUDE TIME SPENT IN COURT DUTY AS TIME WORKED, NOT ONLY FOR PURPOSES OF STRAIGHT TIME COMPENSATION, BUT ALSO FOR OVERTIME COMPENSATION OR COMPENSATORY TIME PURPOSES TO THE SAME EXTENT AS TIME SPENT IN NORMAL DUTIES.

THE PROBLEM PRESENTED HERE, THEREFORE, IS WHETHER MR. DIFFENBACHER IS TO BE REGARDED AS ACTING AS A POSTAL EMPLOYEE DURING THE TIME HE DEVOTED TO TESTIMONY BEFORE THE GRAND JURY, CONFERRING WITH THE ASSISTANT UNITED STATES ATTORNEY AND TESTIFYING AT THE TRIAL. IT SEEMS SELF-EVIDENT THAT IT IS THE DUTY OF A POSTAL EMPLOYEE TO PREVENT THEFTS OF MAIL FROM THE POSTAL INSTALLATION AT WHICH HE IS WORKING DURING THE TIME HE IS ON DUTY, AND TO ASSIST IN APPREHENDING PERSONS COMMITTING SUCH THEFTS WHEN HE CAN DO SO WITHOUT UNDUE PERSONAL RISK. SUPPORT FOR FINDING MR. DIFFENBACHER TO BE IN A DUTY STATUS WHILE TESTIFYING AND CONFERRING WITH THE ASSISTANT UNITED STATES ATTORNEY IS ALSO TO BE FOUND IN THE MEMORANDUM OF HIS SUPERIOR DIRECTING HIM TO REPORT TO THE INSPECTOR ON FEBRUARY 6, 1959. ACCORDINGLY, IT IS OUR OPINION THAT MR. DIFFENBACHER'S ACTIVITIES IN CONNECTION WITH THE ARREST OF LORETTA MAE GAGNE AND GENE DOUGLAS WRIGHT WERE A PART OF HIS OFFICIAL DUTIES. IT MAY BE NOTED THAT HE WAS COMMENDED FOR THIS ACTION BY LETTER, A COPY OF WHICH IS ATTACHED.

ACCORDINGLY, IT IS MY CONCLUSION THAT MR. DIFFENBACHER WAS ENTITLED TO HAVE THE TIME INVOLVED RECORDED AS TIME WORKED, AND TO HAVE HIS COMPENSATION COMPUTED ACCORDINGLY. ON FEBRUARY 6, MR. DIFFENBACHER WAS A SUBSTITUTE EMPLOYEE. AS SUCH, HE WAS EXCLUDED OVERTIME COMPENSATION BY SECTION 605 (B) OF PUBLIC LAW 68, 84TH CONGRESS (39 U.S.C. 1005 (B) ). UPON CONVERSION TO REGULAR ON FEBRUARY 7, 1959, HE BECAME ENTITLED THEREAFTER TO OVERTIME COMPENSATION FOR HOURS WORKED IN EXCESS OF EIGHT IN ANY DAY SINCE HIS POSITION WAS BELOW SALARY LEVEL PFS 8 ( SECTION 603 OF PUBLIC LAW 68; 39 U.S.C. 1003).

WE CONCUR IN THE CONCLUSIONS OF THE POST OFFICE DEPARTMENT, AS EXPRESSED ABOVE. THE RECORD SHOWS THAT MR. DIFFENBACHER'S TESTIMONY CONCERNED FACTS AND INFORMATION HE ACQUIRED IN THE REGULAR COURSE OF HIS ASSIGNED DUTIES AND HIS SUPERIORS SPECIFICALLY ORDERED THAT HE MAKE HIMSELF AVAILABLE IN THE GRAND JURY AND THE TRAIL PROCEEDINGS, AS DUTIES IN ADDITION TO HIS REGULARLY SCHEDULED DUTIES AND WORKWEEK. IN THAT VIEW OF THE MATTER, ON AND AFTER FEBRUARY 7, 1959, THE DATE THAT MR. DIFFENBACHER WAS ASSIGNED TO A POSITION AS A REGULAR CLERK IN THE POSTAL TRANSPORTATION SERVICE, THE PROVISIONS OF 28 U.S.C. 1821 NO LONGER APPLIED TO HIM. HOWEVER, AS HE APPEARED AS A WITNESS IN A CASE INVOLVING THE ACTIVITY IN CONNECTION WITH WHICH HE IS EMPLOYED, OUR VIEW IS THAT SECTION 1823 IS APPLICABLE, AND REQUIRES THAT ANY ALLOWANCES THEREUNDER BE PAID FROM FUNDS OF THE POST OFFICE DEPARTMENT. WE ARE SO ADVISING THE POSTMASTER GENERAL TODAY.