B-33269, MARCH 30, 1943, 22 COMP. GEN. 934

B-33269, MARCH 30, 1943, 22 COMP. GEN. 934

WITNESSES - GOVERNMENT EMPLOYEES - PER DIEM IN LIEU OF SUBSISTENCE WHERE AN EMPLOYEE WAS GRANTED OFFICIAL LEAVE TO APPEAR IN COURT AS A GOVERNMENT WITNESS IN CONNECTION WITH A CASE INVOLVING THE ACTIVITY IN WHICH EMPLOYED, BUT, DUE TO THE LACK OF TIME, NO FORMAL TRAVEL ORDER WAS ISSUED IN ADVANCE SPECIFYING A RATE OF PER DIEM IN LIEU OF SUBSISTENCE TO BE PAID UNDER AUTHORITY OF THE PROVISIONS OF SECTION 850, REVISED STATUTES, AS AMENDED, WITH RESPECT TO THE PAYMENT OF TRAVELING EXPENSES OF GOVERNMENT EMPLOYEES APPEARING AS GOVERNMENT WITNESSES, THAT OMISSION MAY NOW BE SUPPLIED BY A PROPER ADMINISTRATIVE ORDER SPECIFYING THE RATE OF PER DIEM.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, MARCH 30, 1943:

I HAVE YOUR LETTER OF MARCH 18, 1943, AS FOLLOWS:

YOUR DECISION IS REQUESTED AS TO WHETHER UNDER THE CIRCUMSTANCES HEREIN SET FORTH, BY VIRTUE OF THE PROVISIONS OF PUBLIC NO. 845, 77TH CONGRESS PAYMENT OF PER DIEM MAY BE MADE, WHERE PRIOR AUTHORITY HAD NOT BEEN ISSUED.

ON FEBRUARY 26, 1943, A TELEPHONE CALL WAS RECEIVED AT THE CASTLE POINT FACILITY, CASTLE POINT, NEW YORK, FROM THE BUREAU OF WAR RISK LITIGATION, U.S. DEPARTMENT OF JUSTICE, BOSTON, MASSACHUSETTS, ADVISING THAT THE SERVICES OF DR. JULIUS E. DEWEY, A PHYSICIAN AT THE FACILITY, WOULD BE REQUIRED IN FEDERAL COURT AT WORCESTER, MASSACHUSETTS, ON MONDAY, MARCH 1, AS A WITNESS FOR THE UNITED STATES IN THE CASE OF FRANCIS ELMER ANDERSON V. UNITED STATES, LAW NO. 7118, AND THAT A SUBPOENA WOULD BE SERVED ON DR. DEWEY WHEN HE REPORTED AT THE COURT. THE CASE INVOLVED AN ACTIVITY IN CONNECTION WITH THE PHYSICIAN'S EMPLOYMENT.

THE DEPARTMENT OF JUSTICE REPRESENTATIVE WAS ADVISED THAT DR. DEWEY WOULD BE GIVEN COURT LEAVE AND GIVEN HIS MESSAGE IN ORDER THAT HE MIGHT PROCEED AS REQUESTED.

IN VIEW OF THE SHORT PERIOD BETWEEN THE TIME OF REQUEST AND THE TIME THAT DR. DEWEY WAS TO REPORT, A REQUEST WAS NOT FORWARDED TO CENTRAL OFFICE FOR AUTHORITY FOR SUCH TRAVEL. DR. DEWEY WAS GIVEN COURT LEAVE BY THE MANAGER AND PROCEEDED AT HIS OWN EXPENSE TO ACT AS A WITNESS FOR THE GOVERNMENT.

THE MANAGER ON FEBRUARY 26, 1943, ADDRESSED THE FOLLOWING MEMORANDUM TO DR. DEWEY:

"IN ACCORDANCE WITH REQUEST FROM THE U.S. ATTORNEY, YOU ARE GRANTED COURT LEAVE IN ORDER TO ENABLE YOU TO REPORT FOR COURT HEARING AT 2 P.M. MARCH 1, 1943, AT WORCESTER, MASS.

"YOU WILL CONTACT THE U.S. MARSHAL FOR REIMBURSEMENT FOR SUCH EXPENSE AS IS INCURRED IN CONNECTION WITH THIS ASSIGNMENT.

"PLEASE SUBMIT LEAVE CARD UPON RETURN TO STATION.'

THE REGULATIONS OF THIS ADMINISTRATION PROVIDE, IN PART

"AN EMPLOYEE SUBPOENAED TO ATTEND COURT WILL BE ALLOWED COURT LEAVE WITHOUT LOSS OF TIME OR PAY WHEN SERVING AS A WITNESS FOR THE UNITED STATES GOVERNMENT. * * * (R. AND P. 9590).

"MANAGERS OF REGIONAL OFFICES AND FACILITIES HAVING REGIONAL OFFICE ACTIVITIES ARE EMPOWERED TO ISSUE TRAVEL ORDERS TO DESIGNATED SUBORDINATES TO PERFORM NECESSARY TRAVEL WITHIN THEIR RESPECTIVE REGIONS WHEN NECESSARY IN THE PERFORMANCE OF OFFICI0UTIES, EXCEPT AS PROVIDED IN R. AND P. 900 (B). MANAGERS OF REGIONAL OFFICES AND FACILITIES HAVING REGIONAL OFFICE ACTIVITIES ARE AUTHORIZED TO PROCEED TO ANY POINTS WITHIN THEIR RESPECTIVE REGIONS WHEN NECESSARY IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. PRIOR AUTHORITY OF THE ADMINISTRATOR OR, FOR EMPLOYEES UNDER THE JURISDICTION OF A PARTICULAR SERVICE, OF THE HEAD OF THE SERVICE IF AUTHORIZED BY THE ADMINISTRATOR TO APPROVE EXTRA-TERRITORIAL TRAVEL, WILL BE OBTAINED FOR TRAVEL OF MANAGERS AND EMPLOYEES, OF REGIONAL OFFICES AND FACILITIES OUTSIDE THEIR RESPECTIVE REGIONS. * * *: " (R. AND P. 901) ( EMPHASIS SUPPLIED).

PUBLIC NO. 845, 77TH CONGRESS, PROVIDES IN PART:---

"SEC. 2. SECTION 850 OF THE REVISED STATUTES ( U.S.C., TITLE 28, SEC. 604) IS HEREBY AMENDED TO READ AS FOLLOWS:

"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.'

WHILE DR. DEWEY'S CLAIM FOR THE EXPENSE OF HIS TRAVEL AND SUBSISTENCE, WITHIN THE LIMITATIONS SET IN THE SUBSISTENCE ACT MAY BE RETROACTIVELY APPROVED, IN VIEW OF YOUR DECISIONS RENDERED BEFORE PUBLIC NO. 845, 77TH CONGRESS, (E.G. A-34405, DECEMBER 19, 1930), THAT THE PER DIEM ALLOWANCE MAY NOT BE PAID UNLESS AUTHORIZED IN ADVANCE, I AM IN DOUBT WHETHER DR. DEWEY MAY BE GIVEN A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE.

YOUR DECISION IS THEREFORE REQUESTED WHETHER, AS DR. DEWEY WAS CALLED AS A WITNESS FOR THE GOVERNMENT, THE SECOND SENTENCE OF SECTION 2, PUBLIC NO. 845, SUPRA, WILL NOW AUTHORIZE THE PAYMENT OF THE PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE ON A CERTIFICATE EXECUTED AFTER THE TRAVEL WAS PERFORMED. IN OTHER WORDS, DOES THE FACT THAT DR. DEWEY WAS CALLED AS A WITNESS FOR THE UNITED STATES; WAS GRANTED OFFICIAL LEAVE ON FEBRUARY 26, 1943, TO REPORT ON MARCH 1, 1943, CONSTITUTE AUTHORIZATION FOR THE PRESENT EXECUTION OF A "PROPER CERTIFICATION BY A CERTIFYING OFFICER" FOR PAYMENT OF THE PER DIEM ALLOWANCE BY VIRTUE OF THE PROVISIONS OF PUBLIC NO. 845, SUPRA.

IN THE DECISION OF DECEMBER 19, 1930, A-34405, REFERRED TO BY YOU, IT WAS STATED---

THE TELEGRAM AUTHORIZING THE TRAVEL AND THE CONFIRMATORY ORDER WOULD BE SUFFICIENT TO SUPPORT A CLAIM FOR REIMBURSEMENT OF ACTUAL EXPENSES BUT ARE NOT SUFFICIENT TO AUTHORIZE PAYMENT OF PER DIEM IN LIEU THEREOF. PER DIEM IN LIEU OF ACTUAL EXPENSES OF SUBSISTENCE IS AUTHORIZED ONLY WHEN SPECIFICALLY PRESCRIBED IN ADVANCE OF TRAVEL. 22 COMP. DEC. 601; 5 COMP. GEN. 337; 7 ID. 276. SEE, ALSO, DECISION TO YOU DATED DECEMBER 11, 1930, A-34168.

AT THE TIME THAT DECISION WAS RENDERED, SUBSISTENCE ALLOWANCES WERE GOVERNED BY THE SUBSISTENCE EXPENSE ACT OF 1926, 44 STAT. 688, 689, SECTION 3 OF WHICH AUTHORIZED REIMBURSEMENT FOR ACTUAL EXPENSES OF SUBSISTENCE, WHILE SECTION 4 AUTHORIZED THE HEADS OF THE DEPARTMENTS AND ESTABLISHMENTS TO PRESCRIBE A PER DIEM ALLOWANCE IN LIEU OF ACTUAL EXPENSES OF SUBSISTENCE. HOWEVER, SAID ACT WAS AMENDED BY THE ACT OF JUNE 30, 1932, 47 STAT. 405, WHICH PRESCRIBED A PER DIEM ALLOWANCE IN LIEU OF ACTUAL EXPENSES IN ALL CASES, SO THAT THERE WAS GENERALLY NO AUTHORITY THEREAFTER TO PRESCRIBE OR PAY ACTUAL EXPENSES OF SUBSISTENCE. SEE DECISION OF JANUARY 15, 1943, B-30581. ANY FAILURE NOW OF PRIOR AUTHORIZATION IS PROVIDED FOR UNDER PARAGRAPH 7 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS WHERE SUCH REGULATIONS ARE FOR APPLICATION.

IN DECISION OF FEBRUARY 4, 1942, B-23196, IT WAS HELD AS FOLLOWS:

IT IS A WELL-ESTABLISHED RULE THAT ORDERS DENYING, INCREASING, OR DECREASING, A PREVIOUSLY PRESCRIBED PER DIEM ALLOWANCE MAY NOT BE MADE EFFECTIVE RETROACTIVELY. 7 COMP. GEN. 276; 11 ID. 404. HOWEVER, SINCE HERE THERE HAS BEEN AN ENTIRE OMISSION TO ISSUE A TRAVEL ORDER IN ADVANCE DUE TO AN EMERGENCY, AND, SUBSEQUENT TO THE TRAVEL, THE DEFICIENCY HAS BEEN SUPPLIED BY THE SUBMISSION OF AN APPROVAL OF THE SAID TRAVEL AND A SATISFACTORY STATEMENT OF THE FACTS CONSTITUTING THE NECESSITY FOR THE EMERGENCY TRAVEL, IN ACCORDANCE WITH PARAGRAPH 7 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, SUPRA, PAYMENT OF THE AMOUNT OF THE CLAIM IS NOT TO BE CONSIDERED AS OBJECTIONABLE UNDER THE ABOVE-STATED RULE AGAINST RETROACTIVE CHANGES IN TRAVEL ORDERS. SEE, ALSO, B-25184, MAY 9, 1942, TO THE SAME EFFECT.

PARAGRAPHS 6 AND 7 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PROVIDE AS FOLLOWS:

6. PRIOR AUTHORITY.--- EXCEPT AS PROVIDED IN PARAGRAPH 7 FOLLOWING, THE AUTHORITY SHALL BE ISSUED PRIOR TO THE INCURRENCE OF THE EXPENSES, AND SHALL SPECIFY THE TRAVEL TO BE PERFORMED AS DEFINITELY AS CIRCUMSTANCES WILL PERMIT.

7. APPROVAL.--- WHENEVER TRAVEL HAS BEEN PERFORMED AND EXPENSE INCURRED ON ACCOUNT OF AN EMERGENCY, OR WITHOUT PRIOR AUTHORITY, THE TRAVEL VOUCHER MUST BE APPROVED BY THE HEAD OF THE DEPARTMENT OR INDEPENDENT ESTABLISHMENT, OR BY AN OFFICIAL DESIGNATED BY HIM FOR THIS PURPOSE, AND SUCH APPROVAL SHALL CONSTITUTE THE AUTHORITY FOR THE TRAVEL. ALL VOUCHERS SUBMITTED ON ACCOUNT OF SUCH TRAVEL MUST CONTAIN A SATISFACTORY STATEMENT OF THE FACTS CONSTITUTING THE NECESSITY THEREFOR.

WHILE THE MEMORANDUM OF FEBRUARY 26, 1943, TO DR. DEWEY GRANTED HIM COURT LEAVE AND THUS IN EFFECT AUTHORIZED THE NECESSARY TRAVEL INCIDENT THERETO, IT DID NOT MAKE ANY REFERENCE TO SUBSISTENCE OR PER DIEM IN LIEU THEREOF. ACCORDINGLY, IN THE LIGHT OF THE STATED EMERGENCY INVOLVED IN THE CASE, AND HAVING REGARD FOR THE ABOVE QUOTED REGULATIONS, THAT OMISSION NOW MAY BE SUPPLIED BY A PROPER ADMINISTRATIVE ORDER SPECIFYING THE RATE OF PER DIEM ALLOWED. COMPARE 22 COMP. GEN. 217. ASSUMING SUCH AN ADMINISTRATIVE ORDER PRESCRIBING THE RATE OF PER DIEM NOW WILL BE ISSUED, THE QUESTION POSED ALTERNATELY IN THE CONCLUDING SENTENCE OF YOUR SUBMISSION IS ANSWERED IN THE AFFIRMATIVE.