B-89195, OCTOBER 20, 1949, 29 COMP. GEN. 195

B-89195, OCTOBER 20, 1949, 29 COMP. GEN. 195

TRAVELING EXPENSES - WITNESSES - PRIVATE LITIGATION A GOVERNMENT EMPLOYEE SUBPOENAED TO APPEAR IN A STATE COURT IN PRIVATE LITIGATION TO TESTIFY IN HIS OFFICIAL CAPACITY AND TO PRODUCE OFFICIAL RECORDS MAY NOT BE REGARDED AS APPEARING ON BEHALF OF THE UNITED STATES AND, THEREFORE, TRAVELING EXPENSES INCIDENT TO SUCH APPEARANCE ARE NOT REIMBURSABLE FROM APPROPRIATED FUNDS, EVEN THOUGH THE PARTY LITIGANT IS NOT REQUIRED BY STATE LAW TO PAY SUCH EXPENSES.

COMPTROLLER GENERAL WARREN TO W. H. BARRETT, DEPARTMENT OF COMMERCE, OCTOBER 20, 1949:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 9, 1949, REQUESTING TO BE ADVISED WHETHER THE VOUCHER ENCLOSED WITH YOUR LETTER MAY BE CERTIFIED FOR PAYMENT.

THE VOUCHER, IN THE AMOUNT OF $7.50, IS STATED IN FAVOR OF MR. JOHN C. BALLARD, THE OFFICIAL IN CHARGE OF THE WEATHER BUREAU AIRPORT STATION AT ATLANTA, GEORGIA, AND REPRESENTS TRAVELING EXPENSES INCURRED BY HIM IN RESPONSE TO A SUBPOENA TO APPEAR AS A WITNESS IN A PRIVATE CIVIL SUIT TRIED IN THE FULTON COUNTY COURT, ATLANTA, GEORGIA. IT IS EXPLAINED THAT MR. BALLARD WAS SUBPOENAED AS A WITNESS TO TESTIFY IN HIS OFFICIAL CAPACITY AND WAS REQUIRED TO BRING OFFICIAL DOCUMENTS TO THE COURT FOR USE IN THE CASE.

IT ALSO APPEARS FROM THE CORRESPONDENCE ATTACHED TO YOUR LETTER THAT MR. BALLARD ATTEMPTED TO COLLECT SUCH TRAVELING EXPENSES FROM THE PARTY LITIGANT BUT WAS ADVISED BY THE ATTORNEY IN THE CASE THAT THE GEORGIA LAW DOES NOT REQUIRE PARTY LITIGANT TO PAY EXPENSES OF PERSONS SUBPOENAED AND WHO ATTEND COURT IN THE COUNTY WHERE THE CASE IS TRIED, AND, CONSEQUENTLY, NO REIMBURSEMENT WOULD BE MADE.

IN 15 COMP. GEN. 196 IT WAS HELD---

* * * WHERE THE VALUE OF THE WITNESS' TESTIMONY IN PRIVATE LITIGATION ARISES FROM HIS OFFICIAL CAPACITY AND HE IS SUBPOENAED SOLELY BECAUSE OF AND TO TESTIFY IN THAT CAPACITY OR TO PRODUCE OFFICIAL RECORDS, HE MAY BE REGARDED AS IN A DUTY AND PAY STATUS DURING THE PERIOD OF HIS NECESSARY ABSENCE IN RESPONDING TO SUCH SUBPOENA. UNDER SUCH CIRCUMSTANCES, AS THE UNITED STATES IS DEPRIVED OF HIS SERVICES WHILE SO TESTIFYING, THE EMPLOYEE SHOULD BE INSTRUCTED TO COLLECT THE AUTHORIZED WITNESS FEES AND ALLOWANCES FOR EXPENSES OF TRAVEL AND SUBSISTENCE. ALL AMOUNTS SO COLLECTED OVER AND ABOVE THE AMOUNT OF HIS ACTUAL EXPENSE SHOULD BE ACCOUNTED FOR THROUGH YOUR DEPARTMENT AND DEPOSITED AS MISCELLANEOUS RECEIPTS.

GENERALLY, RULES OF THE COURTS OR THE STATUTES OF THE VARIOUS STATES PROVIDE FOR THE PAYMENT OF WITNESS FEES AND ALLOWANCES FOR EXPENSES OF TRAVEL AND SUBSISTENCE, AND THE ABOVE QUOTED DECISION ANTICIPATED THAT THE AMOUNTS RECEIVED BY THE FEDERAL EMPLOYEE FROM THE COURT OR THE PRIVATE LITIGANTS SHOULD EQUAL IF NOT EXCEED HIS ACTUAL EXPENSES. HOWEVER THAT MAY BE, SINCE, IN THE INSTANT CASE, MR. BALLARD DID NOT APPEAR IN THE COURT ON BEHALF OF THE UNITED STATES AND SINCE THE UNITED STATES WAS DEPRIVED OF HIS SERVICES WHILE SO TESTIFYING, IT IS CLEAR THAT NO WITNESS FEE IS PAYABLE BY THE UNITED STATES AND THAT NO TRAVEL EXPENSES ARE CHARGEABLE TO FUNDS APPROPRIATED TO THE WEATHER BUREAU. SEE 27 COMP. GEN. 83.

ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED HEREWITH, PROPERLY MAY NOT BE CERTIFIED FOR PAYMENT.

WITH RESPECT TO YOUR QUESTION AS TO THE PROPER PROCEDURE TO BE FOLLOWED IN EFFECTING RECOVERY OF EXPENSES INCURRED BY EMPLOYEES ATTENDING COURTS UNDER SIMILAR CIRCUMSTANCES, IT CAN ONLY BE SAID THAT SUCH MATTERS APPEAR TO BE FOR ADJUSTMENT BETWEEN THE EMPLOYEES AND THE PARTY REQUESTING THE ISSUANCE OF SUCH SUBPOENA AND THAT IT IS NOT THE POLICY OF THIS OFFICE TO FURNISH ADVICE IN SUCH MATTERS.