Payment of Travel Costs to Witnesses
During a Period of Lapsed Appropriations
W here witnesses have been ordered to appear in court during a lapse in the Department
o f Justice's appropriation, and lack the financial resources necessary to return home,
there exists a sufficient likelihood that the witnesses’ safety would be compromised by
not providing them the means to return home to w arrant a cash disbursement for that
purpose under the Antideficiency Act, 31 U.S.C. § 665(b).
Under the interpretation of the Antideficiency A ct in the Attorney General's opinion of
January 16, 1981, emergency expenditures may be made during a lapse in appropria
tions if they are necessary to secure the safety of human life o r the protection of
property. T he totality of circumstances must be examined and evaluated in each case to
determine w hether such emergency expenditures are permitted.
December 23, 1981
MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY
GENERAL, JUSTICE MANAGEMENT DIVISION
The Justice Management Division (JMD) asked this Office to advise
whether disbursement of travel costs incurred by witnesses in a given
set of circumstances during a lapse in appropriations would be pre
cluded by the Antideficiency Act, 31 U.S.C. § 665.1 Specifically, JMD
asked whether disbursement of costs incurred by a witness traveling to
and from the courthouse, pursuant to 28 U.S.C. § 1821(c)(Supp. II
1978),2 would violate the Act when the witness’ appearance was di
rected by a court order issued prior to the lapse in appropriations.
1 The Antideficiency Act, 31 U.S.C § 665, provides in pertinent part:
(a) Expenditures or contract obligations in excess of funds prohibited
No officer or employee of the United States shall make or authorize an expenditure
from or create o r authorize an obligation under any appropriation or fund in excess of
the amount available therein; nor shall any such officer or employee involve the
Governm ent in any contract or other obligation, for the payment o f money for any
purpose, in advance of appropriations made for such purpose, unless such contract or
obligation is authorized by law.
(b) Voluntary service forbidden
No officer or employee of the United States shall accept voluntary service for the
United States or employ personal service in excess of that authorized by law, except in
cases o f emergency involving the safety of human life or the protection of property.
* 28 U.S.C. § 1821(c) provides in pertinent part:
(1) A witness who travels by common carrier shall be paid for the actual expenses of
travel on the basis o f the means of transportation reasonably utilized and the distance
necessarily traveled to and from such witness's residence by the shortest practical route
in going to and returning from the place o f attendance.
(2) A travel allowance equal to the mileage allowance which the Administrator of
General Services has prescribed, pursuant to section 5704 of title 5, for official travel
of employees of the Federal Government shall be paid to each witness who travels by
privately owned vehicle.
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The Antideficiency Act prohibits the United States from making
expenditures or incurring contract obligations in excess of the amount
of funds appropriated, “unless such contract or obligation is authorized
by law.” Attorney General Civiletti rendered an opinion on January 16,
1981, strictly construing the spending prohibitions contained in the Act
unless such expenditures were authorized by law. See Opinion of the
Attorney General, January 16, 1 9 8 1 See also Opinion of the Attorney
General, April 25, 1980, 43 Op. A tt’y Gen._[4 Op. O.L.C. 16 (1980)].
Included within the expenditures permitted under the Act during a
lapse in appropriations pursuant to these two opinions are those which
involve the orderly termination of agency operations, and emergency
expenditures which are necessary to secure the safety of human life or
the protection of property. The Attorney General did not list specifi
cally the obligations for which expenditures could be made after a lapse
in appropriations; rather, he set forth “general principles” in his opinion
letter, “[t]he precise application [of which] must, in each case, be
determined in light of all circumstances surrounding a particular lapse
in appropriations.” Letter, January 16, 1981, supra at 3.
The Attorney General construed the “safety of human life [and]
protection of property” clause of § 665(b) to require:
[first,] some reasonable and articulable connection be
tween the function to be performed and the safety of
human life or the protection of property [and second]
some reasonable likelihood that the safety of human life
or the protection o f property would be compromised, in
some degree, by delay in the performance of the function
in question.
Id. at 11. Application of these principles to the situation described in
JM D ’s request3 leads to the conclusion that a cash disbursement in an
amount sufficient to permit the witnesses to return home, or, if travel is
impracticable at that time, to secure overnight accommodations and
meals, would be permitted under the Act.
Expenditures authorized as necessary to the “orderly termination of
agency operations” may, in circumstances of extraordinary hardship,
include the payment of obligations which arose prior to the lapse in
appropriations. In the circumstances described by JMD, it seems clear
that the obligation to reimburse the witnesses for round trip costs arose
at the time of their departure from home, and that, having induced
° N o t e : T he January 16, 1981, Opinion of the A ttorney General, Authority for the Continuance o f
Government Functioning During a Temporary Lapse in Appropriations, appears in this volume at p. 1
supra. Ed.
3T he particular situation described by JM D involved several witnesses who were ordered to appear
in court on the morning of Monday, Novem ber 23, 1981. Appropriations authority lapsed at midnight,
F nday, Novem ber 20, 1981, and continued through the late afternoon of November 23. T he witnesses
had not been notified prior to their arrival at the courthouse that the court would not be convened on
M onday morning, had traveled a distance of some length, and had no money to return home.
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their travel by court order, part of the orderly termination of the
court’s business involved making funds available for their return home
or lodging in safe accommodations, if return that day is impractical. We
do not mean to suggest that the “orderly termination of agency oper
ations” exception may be applied to authorize payment of all witness
fees or other obligations which arose prior to the appropriations
hiatus—rather the totality of circumstances must be examined and eval
uated in each case.
While it is clear that witnesses who are directed by court OTder to
appear in federal courts during a lapse in appropriations have a valid
claim against the United States for travel costs incurred in complying
with the court’s order, ordinarily, such disbursements may not be made
until the Department’s funding has resumed. See New York Airways, Inc.
v. United States, 369 F.2d 743 (Ct. Cl. 1966). However, the particular
witnesses described in JM D ’s request present a “hardship” case that, in
our judgment, meets the requisite standard for emergency expenditures
under § 665(b) set forth in Attorney General Civiletti’s January 16,
1981, opinion. Where witnesses have been ordered to appear in court
during a lapse in the Department of Justice’s appropriation, and lack
financial resources necessary to return home, we believe that there
exists a sufficiently reasonable likelihood that the witnesses’ safety
would be compromised by not providing them the means to return
home to warrant a cash disbursement for that purpose.
Because expenditures authorized under the Antideficiency Act are to
be narrowly construed, our opinion is confined to the particular facts
set forth in this case.
T h e o d o r e B. O l s o n
Assistant Attorney General
Office o f Legal Counsel
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