B-151599, AUG. 9, 1963

B-151599, AUG. 9, 1963

TO MR. LEO N. JOHNSON:

IN YOUR LETTER OF APRIL 9, 1963, YOUR REFERENCE NPSDC-F, FORWARDED HERE BY COLONEL W. P. MCCRONE, THE ENGINEER COMPTROLLER, BY LETTER OF MAY 16, 1963, REFERENCE ENGEC-FA, YOU REQUESTED OUR DECISION WHETHER A TRAVEL VOUCHER FOR $92.62 IN FAVOR OF MR. BEN ALONZO MAY BE PAID.

MR. ALONZO, WHILE ON DUTY DRIVING A GOVERNMENT VEHICLE, WAS INVOLVED IN AN AUTOMOBILE ACCIDENT WITH A MR. FRANKLIN J. SCHAEFER IN THE VICINITY OF THE HOWARD A. HANSON DAM PROJECT ON MARCH 22, 1960. MR. ALONZO WAS INJURED IN THIS ACCIDENT. YOUR RECORDS SHOW THAT MR. ALONZO FILED A PERSONAL INJURY SUIT AGAINST MR. SCHAEFER IN THE STATE COURT AND THAT HIS ATTORNEYS ARE MR. JOSEPH C. MCKINNON AND MR. GRIFFITH WAY OF SEATTLE, WASHINGTON. A CLAIM FOR $485.68 DAMAGES TO THE GOVERNMENT VEHICLE REFERENCED BY THE DEPARTMENT OF JUSTICE AS UNITED STATES V. FRANKLIN J. SCHAEFER, WD WASH., ND CLAIM NO. 3144 DJ NO. 77-82-767, WAS DELAYED AWAITING THE OUTCOME OF THE STATE COURT TRIAL AS THE DEFENDANT'S ATTORNEY HAD AUTHORITY TO SETTLE THE PROPERTY DAMAGE CASE IF HE DID NOT PREVAIL IN THE CASE IN THE STATE COURT.

A LETTER FROM THE OFFICE OF THE SOLICITOR, DEPARTMENT OF LABOR, DATED MAY 23, 1961, TO MR. WAY, APPROVED MR. WAY'S REPRESENTATION OF MR. ALONZO IN HIS CLAIM AGAINST THE DRIVER OF THE OTHER VEHICLE INVOLVED IN THE ACCIDENT, AND ADVISED MR. WAY OF A DISBURSEMENT OF $39 THE BUREAU OF EMPLOYEES' COMPENSATION HAD MADE TO A PHYSICIAN WHICH HAD TO BE REFUNDED TO THE GOVERNMENT IN THE EVENT MR. ALONZO RECOVERED.

MR. ALONZO WAS ASSIGNED TO WORK ON THE ALBENI FALLS DAM SITE OF THE SEATTLE DISTRICT AFTER THE TIME OF THE ACCIDENT. THE TRAVEL ORDER UNDER WHICH THE CLAIM IS PRESENTED WAS ISSUED FOR TRANSPORTATION TO SEATTLE, WASHINGTON, AS A PARTY AND WITNESS IN THE SUPERIOR COURT ACTION. THE CLAIM COVERS THE PERIOD MARCH 30 TO APRIL 3, 1963, WHICH INCLUDES TRAVEL TIME, FINAL TRIAL PREPARATION AT HIS ATTORNEY'S OFFICE ON MARCH 31, AND ATTENDANCE AT THE TRIAL WHICH TOOK PLACE ON APRIL FIRST AND SECOND. ALSO, MR. ALONZO WAS REQUIRED TO APPEAR AS A PARTY AND WITNESS FOR A PRETRIAL DEPOSITION IN SEATTLE ON MARCH 11, 1963. NO TRAVEL ORDERS WERE ISSUED FOR THIS TRIP AND MR. ALONZO WAS CHARGED ANNUAL LEAVE FOR THIS ABSENCE FROM WORK. ALSO, YOU REQUEST OUR DECISION WHETHER, IF THE TRAVEL EXPENSES CLAIMED ARE ALLOWABLE, THE PER DIEM SHOULD BE ADJUSTED TO DISALLOW ONE DAY DUE TO EARLY DEPARTURE TO ATTEND THE PRETRIAL CONFERENCE WITH THE ATTORNEY ON MARCH 31, 1963; AND, WHETHER THE EMPLOYEE SHOULD HAVE BEEN CONSIDERED TO HAVE BEEN IN A DUTY STATUS AND ISSUED TRAVEL ORDERS TO ATTEND THE PRETRIAL DEPOSITION ON MARCH 11, 1963.

PAYMENT BY THE GOVERNMENT OF MR. ALONZO'S SALARY AND EXPENSES FOR THE TIME AND TRAVEL IN CONNECTION WITH HIS LAWSUIT DEPENDS UPON WHETHER THESE ACTIVITIES ARE WITHIN SPECIFIC STATUTORY PROVISIONS AUTHORIZING SUCH PAYMENT, OR, IF THEY ARE NOT, WHETHER THEY CONSTITUTE OFFICIAL BUSINESS IN REGARD TO WHICH SUCH PAYMENT MAY BE MADE FROM APPROPRIATED FUNDS.

28 U.S.C. 1823 PROVIDES FOR PAYMENT OF TRANSPORTATION EXPENSES AND PER DIEM IN CASES WHERE AN OFFICER OR EMPLOYEE OF THE UNITED STATES IS "SUMMONED AS A WITNESS ON THE BEHALF OF THE UNITED STATES.' MR. ALONZO IS NOT ENTITLED TO PAYMENT UNDER THIS STATUTE SINCE HE WAS NOT SUMMONED AS A WITNESS ON THE BEHALF OF THE UNITED STATES. ALTHOUGH THE UNITED STATES HAD AN INTEREST IN THE OUTCOME OF MR. ALONZO'S SUIT IN CONNECTION WITH THE GOVERNMENT'S CLAIM FOR DAMAGES TO THE GOVERNMENT VEHICLE, IT WAS NOT A PARTY TO MR. ALONZO'S SUIT FOR THIS PURPOSE. ALSO, IN THE ABSENCE OF AN EXECUTED ASSIGNMENT THE UNITED STATES WAS NOT A PARTY TO THE SUIT FOR THE PURPOSE OF RECOVERY OF ANY PAYMENTS BY THE BUREAU OF EMPLOYEES' COMPENSATION. LOUISVILLE AND NASHVILLE RAILROAD COMPANY V. ROCHELLE, 252 F.2D 730 (6TH CIR. 1958).

SECTION 205 (C) (1) OF THE FEDERAL EMPLOYEES' COMPENSATION ACT, CH. 691, 63 STAT. 864, 5 U.S.C. 776, PROVIDES:

"IF AN INJURY OR DEATH FOR WHICH COMPENSATION IS PAYABLE UNDER SECTIONS 751-756, 757-781, 783-791 AND 793 OF THIS TITLE IS CAUSED UNDER CIRCUMSTANCES CREATING A LEGAL LIABILITY UPON SOME PERSON OTHER THAN THE UNITED STATES TO PAY DAMAGES THEREFOR, THE SECRETARY MAY REQUIRE THE BENEFICIARY TO ASSIGN TO THE UNITED STATES ANY RIGHT OF ACTION HE MAY HAVE TO ENFORCE SUCH LIABILITY OF SUCH OTHER PERSON OR ANY RIGHT WHICH HE MAY HAVE TO SHARE IN ANY MONEY OR OTHER PROPERTY RECEIVED IN SATISFACTION OF SUCH LIABILITY OF SUCH OTHER PERSON, OR THE SECRETARY MAY REQUIRE SAID BENEFICIARY TO PROSECUTE SAID ACTION IN HIS OWN NAME. ANY EMPLOYEE WHO IS REQUIRED TO APPEAR AS A PARTY OR WITNESS IN THE PROSECUTION OF SAID ACTION IS, WHILE SO ENGAGED, IN AN ACTIVE DUTY STATUS.

"IF THE BENEFICIARY SHALL REFUSE TO MAKE SUCH ASSIGNMENT OR TO PROSECUTE SAID ACTION IN HIS OWN NAME WHEN REQUIRED BY THE SECRETARY, HE SHALL NOT BE ENTITLED TO ANY COMPENSATION UNDER SECTIONS 751-756, 757-781, 783-791 AND 793 OF THIS TITLE.

"THE CAUSE OF ACTION WHEN ASSIGNED TO THE UNITED STATES MAY BE PROSECUTED OR COMPROMISED BY THE SECRETARY, AND IF THE SECRETARY REALIZES UPON SUCH CAUSE OF ACTION, HE SHALL APPLY THE MONEY OR OTHER PROPERTY SO RECEIVED IN THE FOLLOWING MANNER: AFTER DEDUCTING THE AMOUNT OF ANY COMPENSATION ALREADY PAID TO THE BENEFICIARY AND THE EXPENSE OF SUCH REALIZATION OR COLLECTION, WHICH SUM SHALL BE PLACED TO THE CREDIT OF THE EMPLOYEES' COMPENSATION FUND, THE SURPLUS, IF ANY, SHALL BE PAID TO THE BENEFICIARY AND CREDITED UPON ANY FUTURE PAYMENTS OF COMPENSATION PAYABLE TO HIM ON ACCOUNT OF THE SAME INJURY.'

THE UNDERLINED PORTION WAS ADDED BY SECTION 207 OF PUB.L. 86-767, 74 STAT. 909. SECTION 211 (A) OF PUB.L. 86-767, 74 STAT. 910, PROVIDED THAT THIS AMENDMENT SHOULD TAKE EFFECT ON THE DATE OF ENACTMENT OF THE ACT, AND BE APPLICABLE TO ANY INJURY OR DEATH OCCURRING AFTER THAT DATE. THE ACT WAS APPROVED SEPTEMBER 13, 1960. MR. ALONZO'S INJURIES OCCURRED BEFORE THE EFFECTIVE DATE OF THE AMENDMENT. THEREFORE, THIS AMENDMENT HAS NO APPLICATION TO HIS CLAIM. FOR THE SAME REASON, CIVILIAN PERSONNEL REGULATION L1.6-IC/2) ADDED BY CHANGE 2, JULY 10, 1961, RETROACTIVELY EFFECTIVE SEPTEMBER 13, 1960, AUTHORIZING THE RETENTION OF AN EMPLOYEE IN A DUTY AND PAY STATUS WHO APPEARS AS A PARTY OR WITNESS IN AN ACTION, SUCH AS HERE INVOLVED, WOULD NOT BE APPLICABLE IN THIS CASE.

SINCE THE CLAIM FOR TRAVEL EXPENSES IS NOT COVERED BY 28 U.S.C. 1823, AND NO OTHER STATUTORY AUTHORITY EXISTS FOR PAYMENT OF THIS CLAIM, THE VOUCHER MAY NOT BE PAID. THE VOUCHER WILL BE RETAINED IN THE FILES OF OUR OFFICE.