When the employee is directed by subpoena or otherwise to testify in his official capacity on behalf of a private party, the employee likewise is considered as in an official duty status and is not to be regarded as in a "court leave" or any other kind of leave status. In that connection, it was stated in 15 Comp. Gen. 196, 197:

Section 850, Revised Statutes, limits Government employees subpoenaed to testify as a witness for the Government to reimbursement of necessary expenses and prohibits payment of any mileage or other compensation in addition to their salary. On the other hand, Government employees subpoenaed in private litigation or by some party other than the Federal Government to testify, not in their official capacity but, as individuals, are entitled to the usual fees and expenses but the time absent by reason thereof must be taken as annual leave or leave without pay. However, 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.

As to the procedure for following in such a case, see 23 Comp. Gen. 628, 630, wherein after considering the above quotation from 15 Comp. Gen. 196, 197, it was stated:

Applying that ruling to the present matter, where the petitioner or the defendant obtains a subpoena for a salaried employee of the Selective Service System to testify in his official capacity, but on behalf of such private party, (1) the employee is in an official duty status; (2) no witness fee is payable by the United States (section 1 of the Act of April 26, 1926, 44 Stat. 323); (3) no travel expenses are payable by the Selective Service System, the testimony not being "on behalf of the United States" (section 850, Revised Statutes, as amended); (4) whether any travel expenses are payable under 28 U. S. C. 600c, from the appropriations of the Department of Justice, is for determination in the first instance by that Department; (5) the accounting to the Department specified in the last sentence above-quoted from 15 Comp. Gen. 196, being particularly applicable to fees and expenses collected in State courts, would not be required where no emolument from any source is received other than the employee's regular salary and any travel expenses which may be payable under Federal statute by the Department of Justice.

In line with the answer to question one, overtime compensation may not be paid in the above situations except where the appearance is on a day included within the regular administrative workweek.

When an employee appears in court as a witness other than in behalf of the United States, or the District of Columbia, and in other than his official capacity, he is not to be regarded as in a duty status and any absence from duty on account of such appearance must be charged either as annual leave or as leave without pay. 15 Comp. Gen. 196, supra.

Any appearance by an employee as a juror in either a State court or a court of the United States, in accordance with section 30.204 of

the current leave regulations, supra, should be recorded as "court leave" provided, of course, that such appearance involves an absence from duty. If the employee is in an annual leave status, court leave should be substituted for annual leave during the period of such appearance. If the employee is in a leave without pay status during the period of such appearance, "court leave" is not available to him. Such leave is available only to employees who otherwise would be in a duty status or an authorized leave with pay status. Cf. 20 Comp. Gen. 276.

Further, with respect to employees summoned for jury service, there are for consideration the provisions of the act of June 29, 1940, 54 Stat. 689, which reads:

That the compensation of any employee of the United States or of the District of Columbia who may be called upon for jury service in any State court or court of the United States shall not be diminished during the term of such jury service by reason of such absence, except as provided in section 3, nor shall such period of service be deducted from the time allowed for any leave of absence authorized by law.

SEC. 2. Any employee specified in section 1 who may be called upon for jury service in any court of the United States shall not receive any compensation for such service.

SEC. 3. There shall be credited against the amount of compensation payable by the United States to any employee specified in section 1 for such period as such employee may be absent on account of jury service in the court of any State any amounts which such employee may receive from such State on account of such jury service.

Your attention is invited especially to section 2 of that act which specifically prohibits an employee called upon for jury service in any court of the United States from receiving any compensation for such service. Section 1 saves to him the compensation and leave which he otherwise would receive in his usual employment. Also, see 24 Comp. Gen. 450.

In connection with each of the above situations, there also is for consideration in appropriate cases the decision reported in 19 Comp. Gen. 716, in which it was held, quoting from the syllabus:

Where, due to lack of appropriations or work, the date of furlough without pay of an employee has once been fixed administratively so as to permit the employee to take his accrued unused annual leave as contemplated by sections 8 and 9 of the uniform annual leave regulations, and the employee has had notice thereof, there is no requirement of law that the pay status of the employee be extended for the purpose of granting any other form of leave of absence with pay, whether for sickness, or military duty, or for the purpose of performing witness or jury duty for the Government, whether the application for such extension is received in the administrative office prior or subsequent to the termination date properly fixed administratively.

Cf. 24 Comp. Gen. 225.

With specific reference to the question regarding section 1671 of the Revised Statutes, quoted in the letter, supra, it may be stated that such section primarily is for consideration by the court to which an

employee may be summoned for jury service. Any employee included within the terms of that section who is directed to appear for jury service in any court should advise the court that such section exempts him from jury service. Presumably, the court then would excuse the employee from jury service. However, if the employee fails to advise the court, or if the court should fail or refuse to excuse the employee from jury service after being so advised, then, under the provisions of section 1 of the act of June 29, 1940, supra, the compensation of that employee could not be diminished during the period of absence on jury service except as provided in section 3 of that act.

(B-68446)

PACKING, CRATING, HAULING, AND STORAGE OF HOUSEHOLD EFFECTS-RETRANSFER TO FORMER STATION PRIOR TO SHIPMENT Under section 12 of Executive Order No. 9805, issued pursuant to the administrative expense statute of August 2, 1946, which authorizes reimbursement on a commuted basis for the transportation, packing, crating, temporary storage, etc., of employees' household goods and personal effects upon change of station, but which provides no basis for separating commuted rates into separate charges for packing, crating, storage, etc., a transferred employee whose household effects were packed, crated, and hauled to storage but not shipped to the new station because of her retransfer to her former station may not be reimbursed amounts expended for packing, storage, etc. Comptroller General Warren to Maj. Angus S. Clist, U. S. Army, August 13, 1947:

Your letter of April 23, 1947, forwarded here by fifth indorsement of July 30, 1947, from the Chief of Finance, requests decision upon the matter therein presented as follows:

1. Submitted herewith, claim presented to this office by Josephine Smith, Civilian Employee, for payment of packing, crating, hauling and storage of household goods.

2. Subject employee was transferred to Headquarters, Strategic Air Command, on or about 10 January 1947, Orders this Headquarters, dated 30 December 1946, copy attached. The facts as presented to this office by Josephine Smith are as follows: The Transportation Officer this station made arrangements with the City Transfer Company to pack, crate and ship the household goods from this station to Washington, D. C., at Government expense, but prior to departure Mrs. Smith was advised by the Transportation Officer that shipment would have to be made at personal expense under the provisions of War Department Bulletin 32, dated 4 December 1946. Upon arrival at Strategic Air Command Headquarters, due to the housing shortage, goods were not shipped, but were left in storage at the City Transfer Company warehouse in Colorado Springs, Colorado. Mrs. Smith was subsequently transferred back to this headquarters on or about 18 April 1947. Prior to departure from Strategic Air Command Headquarters she was advised by the Transportation Section, Headquarters Strategic Air Command that payment could be effected by this office for the packing and storage of her household goods.

3. Section 12, 13, 14, War Department Bulletin 32, dated 4 December 1946 outlines the method of reimbursement after shipment has been accomplished. The aforementioned Bulletin does not contain any provisions for the payment of packing, crating, and storage of goods of Civilian Employees on permanent

change of station between points within the Continental United States unless the goods are actually shipped.

4. An element of doubt exists in this particular case as to the validity of payment in so far as the packing, crating and hauling from the employees home to the City Transfer Company is concerned. Ordinarily the employee would have been reimbursed in an amount, under the provisions of section 12, of the aforementioned Bulletin, which would have covered the cost of packing, crating and hauling had the goods actually been shipped to Washington, D. C.

5. It is the opinion of the undersigned that payment should be authorized for packing, crating and hauling from the residence of the employee to the City Transfer Company, regardless of the fact that the household goods were not shipped to Washington, D. C.

6. Request an opinion of the propriety of payment of the attached claim and if considered payable, that this office be advised as to the Regulation governing same and the scale to be used in effecting payment.

In 22 Comp. Gen. 478 it was stated at page 482:

Notwithstanding the contentions of the claimants in the cases here presented, the act of October 10, 1940, 54 Stat. 1105, and the President's regulations issued thereunder (contained in Executive Order No. 8588 of November 7, 1940, as amended by Executive Order No. 9122 of April 6, 1942, and Executive Order No. 9223 of August 15, 1942) have not been, and may not be, interpreted (1) as authorizing reimbursement for packing and crating of household goods which are not transported to the new station of an employee, but which, instead, are sent to storage at the employee's last station, or (2) as authorizing reimbursement for transportation costs of household goods which are transported for storage or use at an intermediate point and which are not transported to the new station of the employee.

While the act of October 10, 1940, referred to in the above-cited decision, has been superseded by the Administrative Expense Act of August 2, 1946, Public Law 600, 60 Stat. 806, the regulations under the later act, Executive Order 9805, provide in section 12, thereof:

SEC. 12. Commutation of expenses.-In lieu of the payment of actual expenses of transportation, packing, crating, temporary storage, drayage, and unpacking of household goods and personal effects in the case of transfers between points within the continental United States, reimbursement shall be made to the employee on a commutated basis at rates per hundred pounds as fixed by zones in Schedule A which is attached to and made a part of these regulations. The amount payable shall be the product of the applicable rate and the net rate of household goods and personal effects actually shipped by carrier for the employee (within the weight limitation prescribed by section 16 hereof). Government bills of lading shall not be used.

The schedule of commutated rates attached to the above Executive order provides no basis for separation of the commutated rates into the separate charges of packing, crating, storage, and transportation. Accordingly, the rule stated in the above decision, 22 Comp. Gen. 478, properly is for application, and there is no authority, therefore, to reimburse the employee in question for the amounts expended for packing, crating, hauling, and storage of her household effects when they actually were not shipped to her new station.

The voucher will be retained in the files of this office,

(B-67911)

TRANSPORTATION-HOUSEHOLD EFFECTS-TEMPORARY STORAGE

AND DRAYAGE

Under sections 19 and 20 of Executive Order No. 9805, issued pursuant to section 1 of the administrative expense statute of August 2, 1946, authorizing the drayage and temporary storage of household effects upon permanent change of station, an employee transferred to an overseas post of duty may be allowed necessary expenses incidental to the temporary storage of his household effects, or arising solely from the temporary storage thereof, including the expenses of moving the effects to and from storage.

Comptroller General Warren to Ethel F. Kurkjian, Department of Commerce, August 14, 1947:

By letter of July 10, 1947, the Civil Aeronautics Administration, Department of Commerce, forwarded here for consideration your letter of June 24, 1947, as follows:

The enclosed voucher is in favor of Kalama Express in the amount of $59.40, and is forwarded for your opinion as to the legality of payment. This voucher covers the hauling of household effects belonging to George S. Buchanan, CAA employee, from temporary storage at Honolulu Construction and Draying Company, Warehouse No. 2, Honolulu, to place of residence at 3665 Nihipali Place, Honolulu. The shipment of household effects was authorized in accordance with Executive Order 9805 on Travel Order No. 947-87, a copy of which is attached hereto.

This office has passed for payment one drayage charge from carrier in the amount of $29.20 in favor of Kalama Express, covering hauling of household effects of George S. Buchanan from Pier 9, Honolulu to Honolulu Construction and Draying Company, Warehouse No. 2, Honolulu for temporary storage under D. O. Voucher No. 21-7313, paid June 19, 1947 under D. O. Symbol 158-321, account of Paul D. Banning, Chief Disbursing Officer.

Since Section 20 of Executive Order 9805 provides for temporary storage, and since prior to the inclusion of this factor any charges for temporary storage at point of origin, or point of destination, or in transit were the responsibility of the employee, and drayage to storage or to any other point designated by the employee completed the Government's responsibility, it seems implied that by the inclusion of Section 20, the Government has also included another drayage point. Inasmuch as Executive Order 9805 covering Transportation of Household Effects, indicates cost borne by the Government, if authorized properly on the Travel Order, it would also indicate that all necessary charges applicable with the various Sections of the Executive Order would be borne by the Government. In case drayage is allowed to only one point to and from common carrier, any employee utilizing Section 20, would be bound to pay at least one drayage charge. Your opinion is therefore solicited as to whether Section 20 of Executive Order 9805 providing for temporary storage automatically includes drayage charges to and from temporary place of storage, or if Section 19 denotes one drayage charge to and from common carrier regardless of the tempoary storage factor.

By travel order No. 947-87, dated November 27, 1946, the employee was directed to proceed from Billings, Montana, to Honolulu, T. H., for the purpose of effecting a permanent transfer of duty station. Shipment of his household effects was authorized therein, and it appears the movement thereof now has been completed, and that drayage from residence to carrier in Seattle, Washington, has been paid for in addition to the drayage charge referred to in the second paragraph of your letter.