31 DECISIONS OF THE COURTS/Continued Page 140 Psychas v. Trans-Canadian Highway Stalter, D. E., Inc. v. State, 219 NYS Express, Limited, 146 F. Supp. 11. 891 324 653 Radio-Television Training Association Staly v. McNerney, 10 N.W. 20 584... 31 v. United States, 163 F. Supp. 637- 489 Stamato, Frank. v. City of New Raynor, United States v., 302 U.S. Brunswick, 90 A. 2d 34.- 188 540 369 Stanley v. City of Macon, 79 S.E. 2d Realty Associates v. United States, 330 307 134 C. Cls. 167------ 307 State v. Cote, et al., 65 A, 693_----Republic Oil Refining Co. v. Grauzer, Steele v. United States, 113 U.S. 128- 728 98 F. Supp. 921.. 386 Sterling Daris Dairy and J. Sterling Reynolds v. United States, 85 C. Cls. Davis, d/b/a Sterling Davis Dairy, 160 488 United States v., Civil Action Richmond Screw Anchor Co. v. United 164-59 530 States, 275 U.S. 331_--- 763 Stillwell & Bierce Mfg. Co. v. Phelps, Ricker and McKay v. United States, 130 U.S. 520.--- 635 126 C. Cls. 460.-. 334 Stoltz v. Converse, 172 P. 2d 78----- 704 Robinson v. United States, 80 U.S. Summerlin, United States v., 310 U.S. 363 334 728 Rogers, J. G. v. New York Central 728 R.R. Co., 284 I.C.C. 118------ Sutton, United States v., 11 F. 2d 24. 71 Rood Company v. Board of Public Sutton v. United States, 256 U.S. 575. 728 Instruction, 102 So. 2d 139----- 3i Tanner v. United States, 129 C. Cls. Rosenberg v. United States, 346 U.S. 792 797 273 -- 218 Tato v. United States, 136 C. Cls. Rosier, Ex Parte, 133 F. 2d 316_--- 139 651.-- --- 813, 889 Royer, United States v., 268 U.S. 394. 313 Tawes, George V. v. United States, C. Ruzicka v. Rager, 305 N.Y. 191, 111 Cls. No. 313-58-- 321 N.E. 28 878, 39 ALR 2d 288_----- 439 Taylor v. Colmar 8. S. Co., 35 F. St. Paul Fire and Marine Ins. v. Supp. 335_ 140 Eldracher, 33 F. 2d 675------- 358, 476 Taylor, Richard M. and Lydia v. Saligman, et al. v. United States, 56 United States, 150 F. Supp. 567-. 421 F. Supp. 505-- 38 Terry v. United States, 81 C. Cls. Sanders v. United States, 120 C. Cls. 958 313 501 Theodorakis v. Kilas, 200 F. 2d 107, Sarles v. United States, 141 C. Cls. certiorari denied 345 U.S. 936---- 140 709_ 282, 799 Schroeder v. Railway Express Agency, Thompson V. Bracken County, 294 307 Inc., 75 S.E. 2d 393-- 680 Schuessler v. Commissioner of In T.I.M.E. v. United States, 359 U.S. 756 ternal Revenue, 230 F. 2d 722---- 17 Seliga v. United States, 137 C. Cis. Tokio Marine & Fire Ins. Co. v. 710 - 153 384 Service v. Dulles, 354 U.S. 363----- 91 C.C.A.N.Y., 91 F. 2d 964----Shell Petroleum Corporation v. Corn, Tong, Tom, Ex parte, 108 U.S. 556, 384 138 Sillita v. Cedar Grove Township, 133 Tracy v. United States, 136 C. Cls. N.J.L. 41, 42 A. 2d 383_---178 211---- 467, 857 Simpson v. United States, 172 U.S. Trade-Mark Cases, in re, 100 U.S. 372 406 256 Smith v. People, 64 Colo. 290, 170 Travis v. United States, 137 C. Cls. P. 959__ 376 153 Smith and Sons Carpet Company v. Union Fishermen's Cooperative PackDirector General, 132 I.C.C. 593--- 757 ing Co. v. Shoemaker, 98 Ore. 659, Southern Pacific Co. v. United States, 193 P. 476---- 386 67 C. Cls. 414.------ 449 Union Trust Co. v. Board of EducaSouthern Ry. v. Coco-Cola Bottling tion, 180 N.E. 819---- 476 Co., 145 F. 2d 304----- 355 Union Wire Rope Corp. v. Atchison, Spencer v. Mero, Fla., 52 So. 2d 679_- 461 T. & S. F. Ry., 66 F. 2d 965_--- 355 State ex. rel. Koontz v. Board of Park United Protective Workers of America Com’rs of City of Huntington, 47 Local No. 2 v. Ford Motor Co., 223 S.E. 2d 689. 810 F. 2d 49_ 635 720 . DECISIONS OF THE COURTS—Continued Page 477 735 449 570 450 735 Page United States Fidelity and Guaranty Wilbur National Bank v. United Co., United States v., 35 F. Supp. States, 294 U.S. 120----959 - 205 Wilcox v. Supreme Council of Royal Upjohn Company Company v. Pennsylvania Arcanum, 123 New York Supp. 83_Railroad Company, 306 I.C.C. Wilder, United States v., 13 Wall, 325_- 502, 560 254 Valco Manufacturing Co. v. Rickard Williams v. United States, 26 C. Cls. & Sons, Inc., 92 A. 2d 501.------ 680 132 Venneri, Arthur, Co. V. Paterson Williams v. United States, 63 C. Cls. 668 Vitarelli v. Seaton, 359 U.S. 535--- 91 Woody v. South Carolina Power ComWalsh Brothers v. United States, 107 pany, 24 S.E. 20 121_--C. Cls. 627------ 345 Woonsocket Mach. & Press Co. v. New Waszen v. Atlantic City (N.J.) 63 York, N.H. & H.R. Co., 131 N.E. A. 2d 255.--- 178 461 Waterbury v. United States, 121 C. Worthington v. Abbott (Jan. (Jan. 30, Cls. 691---- 798 1888), 124 U.S. 434----Webber v. Spencer, 27 N.W. 2d 824-. 476 Wurts, United States v., 303 U.S. 414. Western Maryland Dairy v. Maryland Yazoo v. Marx, 135 So. 64-----W. & E. Co., 126 A. 135--- 5 Whelan v. United States, C. Cls. No. Yost v. General Electric Company, 173 469-57 -- 154 F. Supp. 630.---. White, Shail Frederick v. United Zizzo v. Railway Express Agency, 131 States, 121 C. Cls. 1----- 845 F. Supp. 326----Whitlock v. United States, C. Cls. No. Zoda v. United States, C. Cls. No. 32-54 345 353-55 704 335 728 331 651 704 635 [B-139357] Postal Employees— Witnesses—Testimony Incident to Employment-Overtime-Travel Expenses A Government employee witness who is ordered to be available and to testify in grand jury proceedings concerning facts acquired in his assigned duties is to be regarded as appearing as a witness in a case involving the activity with which he is employed within the purview of 28 U.S.C. 1823(a), and is, therefore, entitled only to the travel and per diem allowances provided in that section, which allowances are payable from the appropriations of the employing agency. A postal employee who, during a period when he was ordered to be available for pretrial conferences and to testify in grand jury proceedings concerning facts acquired in his assigned duties, was converted from a substitute to a regular clerk may have the litigation time regarded as time worked; however, while the employee had a substitute status, he is entitled to witness fees and mileage under 28 U.S.C. 1821, but is precluded by section 605(b) of the Postal Field Service Compensation Act of 1955 from receiving overtime, but after assignment as a regular clerk he is restricted to travel allowances in 28 U.S.C. 1823(a), but may receive overtime for the witness time which was in addition to performance of his regular night duties. To the Attorney General, July 2, 1959: On April 15, 1959, reference A7, the Administrative Assistant Attorney General requested that we advise your Department whether Mr. Earle L. Diffenbacher-an employee of the Post Office Department who testified on behalf of the United States in the grand jury and U.S. District Court trial proceedings in the case of Loretta M. Gagne, et al., Criminal No. 154–59—is entitled to witness fees and mileage under 28 U.S.C. 1821, or whether he is restricted to the allowances under 28 U.S.C. 1823. Further, he asked, if neither of those sections applies, whether Mr. Diffenbacher may be paid any fees or allowances under other provisions of law. Section 1821 of Title 28, U.S. Code, provides U.S. Code, provides in pertinent part that a witness attending in any United States court shall receive $4 per day for each day's attendance and travel time, plus 8 cents per mile for going from and returning to his place of residence. Section 1823(a) provides, however, as follows: Any officer or employee of the United States or any agency thereof, summoned as a witness on behalf of the United States, shall be paid his necessary expenses incident to travel by common carrier, or, if travel is made by privately owned automobile, at a rate not to exceed that prescribed in section 4 of the Travel Expense Act of 1949, together with a per diem allowance in lieu of subsistence not to exceed the rates of per diem as described in, or established pursuant to, section 3 thereof under regulations prescribed by the Attorney General. Such expenses for appearing as a witness in any case involving the activity in connection with which such person is employed shall be payable from the appropriation otherwise available for travel expenses of such officer or employee under proper certification by a certifying officer of the department or agency concerned. In any case which does not involve its activity, any department or agency may advance or pay the travel expenses and per diem allowance of its officer or employee, summoned as a witness on behalf of the United States, and 1 later obtain reimbursement from the department or agency properly chargeable with such witness travel expenses. In view of the above-quoted provisions, and of the provisions in section 603(1) of the Postal Field Service Compensation Act of 1955, Public Law 68, 84th Cong., 69 Stat. 125, 126, 39 U.S.C. 1003(1), we requested the Postmaster General for an expression of the views of the Post Office Department. On June 16, the Department's views were stated in pertinent part as follows: Your letter refers to Section 721.658 of the Postal Manual which indicates that overtime will not be allowed for employees on court leave. Section 721.658 is intended to cover only those situations in which an employee is in a leave status. Section 721.93 recognizes there are conditions under which an employee serving as a witness is considered to be in a full duty status. In any such case, he is obviously entitled to include time spent in court duty as time worked, not only for purposes of straight time compensation, but also for overtime compensation or compensatory time purposes to the same extent as time spent in normal duties. The problem presented here, therefore, is whether Mr. Diffenbacher is to be regarded as acting as a postal employee during the time he devoted to testimony before the Grand Jury, conferring with the Assistant United States Attorney and testifying at the trial. It seems self-evident that it is the duty of a postal employee to prevent thefts of mail from the postal installation at which he is working during the time he is on duty, and to assist in apprehending persons committing such thefts when he can do so without undue personal risk. Support for finding Mr. Diffenbacher to be in a duty status while testifying and conferring with the Assistant United States Attorney is also to be found in the memorandum of his superior directing him to report to the inspector on February 6, 1959. Accordingly, it is our opinion that Mr. Diffenbacher's activities in connection with the arrest of Loretta Mae Gagne and Gene Douglas Wright were a part of his official duties. It may be noted that he was commended for this action by letter, a copy of which is attached. Accordingly, it is my conclusion that Mr. Diffenbacher was entitled to have the time involved recorded as time worked, and to have his compensation computed accordingly. On February 6, Mr. Diffenbacher was a substitute employee. As such, he was excluded overtime compensation by Section 605 (b) of Public Law 68, 84th Congress (39 U.S.C. 1005 (b)). Upon conversion to regular on February 7, 1959, he became entitled thereafter to overtime compensation for hours worked in excess of eight in any day since his position was below salary level PFS 8 (Section 603 of Public Law 68; 39 U.S.C. 1003). We concur in the conclusions of the Post Office Department, as expressed above. The record shows that Mr. Diffenbacher's testimony concerned facts and information he acquired in the regular course of his assigned duties and his superiors specifically ordered that he make himself available in the grand jury and the trial proceedings, as duties in addition to his regularly scheduled duties and workweek. In that view of the matter, on and after February 7, 1959, the date that Mr. Diffenbacher was assigned to a position as a regular clerk in the postal transportation service, the provisions of 28 U.S.C. 1821 no longer applied to him. However, as he appeared as a witness in a case involving the activity in connection with which he is employed, our view is that section 1823 is applicable, and requires that any allowances thereunder be paid from funds of the Post Office Department. We are so advising the Postmaster General today. [B-139486] Property— Failure of Former Owners to Remove Sale by Government Buildings and improvements on land acquired by the Government which were not removed by the former owners, in accordance with a right acquired under stipulation and court order for which they paid the salvage value, at the time the Government is ordered to sell the property are a part of the interest the Government has to sell, contingent upon the right of removal, and if the former owners desire to exercise their repurchase right such buildings and improvements must be purchased ; and in determination of the value of the property, it is suggested that the price be based on the fair market value of the property as a unit (land with standing buildings and improvements attached), less the current fair market value of the right of removal. To the Administrator, General Services Administration, July 2, 1959: We refer to your letter of May 19, 1959, concerning the repurchase by Mr. and Mrs. Gernot P. Rasmussen, under Public Law 85–825, approved August 28, 1958, 72 Stat. 984, of the real property formerly owned by them which had been acquired by the Government for the construction of the now abandoned airport project at Burke, Virginia. You request our decision on the propriety of the use by the General Services Administration of a proposed formula, subsequently stated, for determining the repurchase price to be paid by the former owners. Mr. and Mrs. Rasmussen were the owners of real property at Burke, Virginia, consisting of 151.50 acres of land and improvements thereon (house #145 rooms, house #2–4 rooms, chicken house and barn). By a Declaration of Taking filed October 9, 1951, the fee simple title to the property, designated as Tract No. 95–48, became vested in the United States. The amount of just compensation was determined by a jury in the United States District Court for the Eastern District of Virginia and the award, in the amount of $34,659, was approved and confirmed by the Court in an order and judgment entered July 30, 1953. Prior to the entry of that order the United States and Mr. and Mrs. Rasmussen entered into a stipulation in which it was agreed that the amount of $20,600 represented fair and just compensation for the buildings and improvements located on Tract No. 95–48 and that the salvage value of the improvements was $300. It was further agreed that Mr. and Mrs. Rasmussen “shall be permitted to remove from the said property all or any part of the said improvements, but such removal shall not be carried out until after final judgment not subject to further appeal.” |
