B-100168, JANUARY 22, 1951, 30 COMP. GEN. 317

B-100168, JANUARY 22, 1951, 30 COMP. GEN. 317

WITNESSES -FEES AND MILEAGE - ADMINISTRATIVE HEARINGS UNDER 49 U.S.C. 644 (B) A WITNESS SUMMONED BEFORE THE CIVIL AERONAUTICS BOARD IS ENTITLED TO THE SAME FEES AND MILEAGE AS PAID WITNESSES IN THE COURTS OF THE UNITED STATES UNDER 28 U.S.C. 1821, WHICH ALLOWS MILEAGE FROM EITHER PERMANENT OR TEMPORARY RESIDENCE TO WHICH THE SUBPOENA OR SUMMONS IS SENT TO PLACE OF TRIAL AND RETURN, SO THAT A WITNESS WHO RECEIVED A SUMMONS AT THIS TEMPORARY RESIDENCE TO APPEAR AT A HEARING BEFORE THE CIVIL AERONAUTICS BOARD AT HIS PERMANENT RESIDENCE MAY BE PAID THE FEES AND MILEAGE AUTHORIZED FOR SAID COURT WITNESSES, EVEN THOUGH THERE WERE NO RETURN TO HIS TEMPORARY RESIDENCE AFTER THE HEARINGS.

COMPTROLLER GENERAL WARREN TO MARK J. GRALIA, DEPARTMENT OF COMMERCE, JANUARY 22, 1951:

BY LETTER DATED DECEMBER 12, 1950, THE CHIEF, ACCOUNTING DIVISION, CIVIL AERONAUTICS ADMINISTRATION, DEPARTMENT OF COMMERCE, FORWARDED YOUR LETTER DATED DECEMBER 8, 1950, TRANSMITTING A VOUCHER IN THE AMOUNT OF $36.35 IN FAVOR OF ROBERT L. ZIMMER, TOGETHER WITH SUPPORTING PAPERS, FOR THE PAYMENT OF MILEAGE AND WITNESS FEES FOR ATTENDANCE TO TESTIFY IN CERTAIN PROCEEDINGS BEFORE THE CIVIL AERONAUTICS BOARD. YOU REQUEST A DECISION AS TO WHETHER, UNDER THE CIRCUMSTANCES HEREINAFTER RELATED, YOU ARE AUTHORIZED TO MAKE PAYMENT OF THE VOUCHER SUBMITTED.

IT IS REPORTED THAT MR. ZIMMER WAS REQUESTED BY A SUBPOENA OF THE CIVIL AERONAUTICS BOARD DATED NOVEMBER 9, 1950, AND ADDRESSED TO HIM IN CARE OF GENERAL DELIVERY, BAKER, OREGON, TO ATTEND AND TESTIFY IN THE MATTER OF DONALD W. NYROP, ADMINISTRATOR OF CIVIL AERONAUTICS, CLAIMANT V. J.B. MCKELVEY, RESPONDENT, DOCKET NO. SR-2100, AT SEATTLE, WASHINGTON. YOU STATE THAT BAKER, OREGON, WAS MR. ZIMMER'S TEMPORARY RESIDENCE DURING EMPLOYMENT IN THAT CITY AND THAT HIS PERMANENT RESIDENCE DURING EMPLOYMENT IN THAT CITY AND THAT HIS PERMANENT RESIDENCE WAS SEATTLE, WASHINGTON. ALSO, MR. ZIMMER DID NOT CLAIM MILEAGE FOR RETURN TRAVEL TO BAKER AS THE NEED OF HIS CONTAINED EMPLOYMENT THERE WAS ELIMINATED BY ARRANGEMENTS IN HIS COMPANY AFTER HE ARRIVED AT SEATTLE. IN VIEW OF THE DOUBT THAT THE PAYMENT MAY BE MADE FOR MILEAGE BETWEEN THE TEMPORARY RESIDENCE AND PLACE OF HEARING UNDER EXISTING LAW, YOU REQUEST THE OPINION OF THIS OFFICE AS TO WHETHER OR NOT PAYMENT OF THE CLAIM AS SUBMITTED IS AUTHORIZED.

SECTION 1821, TITLE 28, U.S. CODE, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

A WITNESS ATTENDING IN ANY COURT OF THE UNITED STATES OR BEFORE A UNITED STATES COMMISSIONER OR PERSON TAKING HIS DEPOSITION PURSUANT TO ANY ORDER OF A COURT OF THE UNITED STATES, SHALL RECEIVE $4 FOR EACH DAY'S ATTENDANCE AND FOR THE TIME NECESSARILY OCCUPIED IN GOING TO AND RETURNING FROM THE SAME, AND 7 CENTS PER MILE FOR GOING FROM AND RETURNING TO HIS PLACE OF RESIDENCE. * * *

SUBSECTION (B), SECTION 644, TITLE 49, U.S. CODE, PROVIDES, WITH RESPECT TO HEARINGS BEFORE THE CIVIL AERONAUTICS BOARD, AS FOLLOWS:

FOR THE PURPOSES OF THIS CHAPTER THE BOARD SHALL HAVE THE POWER TO REQUIRE BY SUBPOENA THE ATTENDANCE AND TESTIMONY OF WITNESSES AND THE PRODUCTION OF ALL BOOKS, PAPERS, AND DOCUMENTS RELATING TO ANY MATTER UNDER INVESTIGATION. WITNESSES SUMMONED BEFORE THE BOARD SHALL BE PAID THE SAME FEES AND MILEAGE THAT ARE PAID WITNESSES IN THE COURTS OF THE UNITED STATES.

HENCE, FROM THE ABOVE-QUOTED PROVISIONS THE MATTER OF ENTITLEMENT TO MILEAGE FOR GOING TO AND RETURNING FROM PLACE OF RESIDENCE IS THE SAME WITH RESPECT TO A WITNESS APPEARING BEFORE A COURT OR THE CIVIL AERONAUTICS BOARD.

IN A CASE BEFORE A FORMER COMPTROLLER OF THE TREASURY AS REPORTED IN 27 COMP. DEC. 149, INVOLVING FACTS WHICH ARE PRACTICALLY IDENTICAL WITH THOSE IN THE PRESENT CASE, THE FORMER COMPTROLLER HELD, QUOTING THE SYLLABUS, AS FOLLOWS:

UNDER SECTION 848, REVISED STATUTES, AUTHORIZING PAYMENT OF MILEAGE TO A GOVERNMENT WITNESS FROM PLACE OF RESIDENCE TO PLACE OF TRIAL OR HEARING AND RETURN, THE TERM "PLACE OF RESIDENCE" IS NOT LIMITED IN ITS APPLICATION TO THE LEGAL RESIDENCE, BUT INCLUDES AS WELL ANY PLACE AT WHICH THE WITNESS IS ACTUALLY RESIDING EITHER PERMANENTLY OR TEMPORARILY AND TO WHICH THE SUBPOENA OR SUMMONS IS SENT.

THE FACT THAT THE WITNESS DID NOT RETURN TO HIS TEMPORARY RESIDENCE AT BAKER, OREGON, AFTER THE HEARING WOULD NOT AFFECT THE RULE LAID DOWN IN THE ABOVE DECISION, THE LAW AUTHORIZING SUCH MILEAGE BEING SUBSTANTIALLY THE SAME NOW AS WAS IN EFFECT AT THE TIME OF THE DECISION REFERRED TO. ACCORDINGLY, YOU ARE ADVISED THAT THE VOUCHER IN QUESTION, WHICH IS RETURNED TOGETHER WITH ITS ENCLOSURES, MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.