of no basis upon which the United States may be charged witness costs in civil proceedings, the writ of habeas corpus is so related to the protection of constitutional rights afforded indigent defendants by Rule 17(b), that to ignore that rule in a habeas corpus proceeding under the pauper's statute may well raise grave questions of constitutionality. Thus the court, in United States v. Cavell, 171 Fed. Supp. 417, stated:

In the habeas corpus statute of 1867, 14 Stat. 385, 28 U.S.C.A. §2241 et seq., Congress decided that a district court should pass on federal constitutional questions presented by a state prisoner after his claims had been considered by the State Courts. This command would be an empty gesture if an impoverished and friendless prisoner in the penitentiary, unable to interview witnesses, was denied the right to subpoena those persons he expected would prove the alleged violations.

We think it implicit by these provisions [28 U.S.C. 1915 (a), (c) and (e)] that a state prisoner, permitted to proceed in forma pauperis, is entitled to have his witnesses subpoenaed by the United States Marshal; that the witnesses so subpoenaed by order of court shall attend as in other cases, and the same remedies shall be available as are provided by law in other cases. "Other cases" include criminal cases wherein the court is authorized to order subpoenas issued on behalf of an indigent federal prisoner at the expense of the United States. Rule 17(b), Fed. R. Crim. P., 18 U.S.C.A. In case of conviction the court may sentence the defendant to pay costs, or it may not; nonetheless, payment of the defendant's witnesses is assured.

The Cavell case involved a habeas corpus proceeding by a convicted state prisoner and held that, "The United States is an interested party in a state habeas corpus proceeding." Section 2241 (c)(3) of Title 28, United States Code, provides the state prisoner with a Federal court in which he may challenge his incarceration on grounds arising under the Constitution or laws or treaties of the United States. The petition to the United States Court for writ of habeas corpus by a state prisoner is brought by relation in the name of the United States. We agree with the court in the Cavell case that "the United States is as vitally interested in protecting a pauper from violation of his constitutional rights in a state prosecution as any indigent defendant in a Federal prosecution." And quoting from House Report No. 1079, 52d Congress, 2d Session (1892) 2, recommending passage of the bill which became 28 U.S.C. former sections 832-836, "The Government will not determine questions involving the liberty of the citizen without furnishing him his witnesses on his demand." See Ex parte Rosier, 133 F. 2d 316, 328.

Accordingly, authority for charging the United States with witness fees and expenses in habeas corpus proceedings-whether State or Federal-resting in Rule 17(b), such costs are chargeable to the Department of Justice for reasons stated above.

As to part (b) of the question raised, we do not believe that the marshal is required to collect his earnings at the end of a Federal habeas corpus case, unless a judgment is rendered making the peti

tioner liable therefor. This conclusion is based upon the applicability of Rule 17(b) to habeas corpus proceedings. Where that rule is applicable it would appear to be within the discretion of the court as to whether a judgment for fees and costs will be rendered against the indigent. With respect to a state proceeding, however, although the United States has an interest in protecting the rights of an indigent petitioner, it is not technically the respondent and therefore should not in any event bear the cost of the proceeding. In such cases the state should bear the costs if petitioner is successful and, if not successful, petitioner should bear the costs. See United States v. Cavell, above. In state proceedings, therefore, our answer would be that the marshal is required to collect his earnings from the unsuccessful party to the action.

4. Section 1916, Title 28, United States Code

In all courts of the United States, seamen may institute and prosecute suits and appeals in their own names and for their own benefit for wages or salvage or the enforcement of laws enacted for their health or safety without prepaying fees or costs or furnishing security therefor.

Question Unlike section 1915, the privilege under this section is not dependent upon financial ability to prepay the charges.

Would your answer to (b) above likewise apply to this section?

It has been held that the provision allowing seamen to proceed without prepayment of costs does not remove the obligation to pay the costs or remove the costs from general connection with the case, but solely relates to the question of prepayment. Stalker v. Southeastern Oil Delaware, Inc., 103 F. Supp. 436; and see Theodorakis v. Xilas, 200 F. 2d 107, certiorari denied 345 U.S. 936; and Taylor v. Colmar S. S. Co., 35 F. Supp. 335.

Section 551 of Title 28, United States Code, provides that "Each United States marshal shall collect, as far as possible, his lawful fees and account for the same as public moneys." Thus, it would appear, there being no basis upon which a seaman may rely for the United States to pay fees or costs, as in Federal habeas corpus proceedings discussed above, that the marshal is required to collect his earnings at the conclusion of the case.

The questions presented are answered accordingly.

[B-140263]

Civilian Personnel-Training-Permanent or Temporary Duty-Per Diem or Transportation Benefits-Overseas Allowances

The entitlement of employees in training programs to transportation of dependents and household effects or to per diem in lieu of subsistence as provided in section 10 of the Government Employees Training Act, 5 U.S.C. 2309, when the

facts are such that either type of benefit could be authorized, depends on whether the employees are issued temporary duty orders or permanent change of station orders; however, only one of the benefits may be authorized and there is no authority for an employee who is authorized to transport his dependents and effects to the training station, because such costs are less than the estimated total per diem for the training period, to receive the difference between the transportation costs and the total per diem.

An agency by regulation may permit an employee selected for training under Government Employees Training Act, 5 U.S.C. 2309, to elect to receive transportation for dependents and household effects under section 10 (2) (B) of act rather than to receive per diem in lieu of subsistence whenever the transportation costs are determined to be less than the estimated per diem for the period of training.

Although a department is not precluded, under section 10 of the Government Employees Training Act, from revoking at any time prior to actual transportation the determination to pay to an employee selected for training transportation costs, which are less than per diem in lieu of subsistence for the period of training, once the transportation is effected the entitlement of the employee and the obligation of the Government have become fixed and may not be changed thereafter, either by the department or by the employee.

Per diem benefits which may be authorized for employees in training away from their official stations under section 10 of the Government Employees Training Act, 5 U.S.C. 2309, are for determination in accordance with the Standardized Government Travel Regulations; therefore, the requirement in section 6.2 of the Regulations, that consideration be given to reduction of the per diem rate when the period of training away from the official station exceeds two months, is for application.

Under section 10 of the Government Employees Training Act, 5 U.S.C. 2309, an employee who is authorized to receive training at an overseas location where a post differential allowance is payable may, in the discretion of the head of the department, be paid all or part of the post differential which is additional compensation payable under section 207 of the Independent Offices Appropriations Act, 1949, 5 U.S.C. 118 (h), and also receive a per diem allowance during the period of detail, provided that such employee would be eligible for the post differential if the detail or assignment were in connection with the official duties of his position, as distinguished from training.

Although the allowances payable to employees in foreign areas may not in the strict sense be considered "salary" or "pay" as those words are used in section 10 of the Government Employees Training Act, 5 U.S.C. 2309, which authorizes the head of each department to pay "all or any part of the salary, pay, or compensation" to employees in training programs, they may be considered as within the broader term "compensation" and, therefore, when employees are receiving training at a foreign post, the head of the department may authorize payment of all or any part of the allowances applicable to employees permanently stationed overseas or he may authorize a per diem as for temporary duty; however, although both benefits may not be paid, foreign area allowances may be paid in addition to transportation of dependents and effects.

To the Secretary of Commerce, August 27, 1959:

On July 17, 1959, your Assistant Secretary for Administration requested our decision upon various questions arising under section 10 of the Government Employees Training Act, approved July 7, 1958, 72 Stat. 332, 5 U.S.C. 2309. That section reads in pertinent part as follows:

The head of each department in accordance with regulations issued by the Commission under authority of section 6(a) (8) is authorized, from funds appropriated or otherwise available to such department, (1) to pay all or any part of the salary, pay, or compensation (excluding overtime, holiday, and night differential pay) of each employee of such department who is selected and assigned for training by, in, or through Government facilities or nonGovernment facilities under authority of this act, for each period of such training of such employee, and (2) to pay, or reimburse such employee for,

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all or any part of the necessary expenses of such training, without regard to section 3648 of the Revised Statutes (31 U.S.C. 529) including among such expenses the necessary costs of (A) travel and per diem in lieu of subsistence in accordance with the Travel Expenses Act of 1949, as amended, and the Standardized Government Travel Regulations, *(B) transportation of immediate family, household goods and personal effects, packing, crating, temporary storage, drayage, and unpacking in accordance with the first section of the Administrative Expenses Act of 1946, as amended, and Executive Order Numbered 9805, as amended * * * whenever the estimated costs of such transportation and related services are less than the estimated aggregate per diem payments for the period of training

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The various questions presented are restated and answered as follows:

1. If the employee is paid the estimated costs of transportation of immediate family, personal effects, household goods and related charges, and such costs are less than the estimated total amount of per diem for the period of training, may he also receive an amount for per diem representing the difference between transportation costs and the total per diem covering the period of training?

In effect section 10 authorizes the payment of travel and subsistence expenses to an employee selected for training on a basis comparable with that provided for employees away from their official stations on temporary duty assignments. On the other hand, when the cost of transportation of an employee's immediate family and household goods and personal effects to the place of training is estimated to be less than the aggregate per diem in lieu of subsistence which might be payable to him covering the period of training the head of the department-in lieu of authorizing a per diem in lieu of subsistence could authorize the transportation of the immediate family and household effects of the employee to the same extent as could be authorized in the case of an employee who undergoes an official change of station.

When the facts are such that the head of a department could authorize either type benefit-per diem to the employee for the period of training or transportation of the employee's immediate family and household goods and personal effects-the entitlement of the employee would depend upon which benefit is authorized much in the same manner as the benefits of an employee traveling on official business ordinarily are determined, that is, whether the employee is issued temporary duty orders or orders directing a change of official station. Therefore, we conclude that an employee selected for training may receive only one or the other of such benefits when the length of the period of training is known in advance.

2. May an agency provide by regulation that an employee may choose to be paid either transportation costs under section 10 (2) (B) of the Government Employees Training Act, or per diem in lieu of subsistence under section 10 (2) (A) of that Act?

Under section 10 the "head of each department in accordance with regulations issued by the Commission" is authorized to pay per diem

in lieu of subsistence in accordance with the Standardized Government Travel Regulations or, in lieu thereof, to pay the cost of transportation of the employee's immediate family and household goods and personal effects whenever the estimated cost of such transportation is less than the estimated aggregate per diem covering the period of payment. Under section 39.401 of the training regulations promulgated by the Civil Service Commission (Federal Personnel Manual T-1-22), the head of each department is granted broad authority to determine which expenses constitute necessary training expenses under section 10 of the act. We find nothing in section 10 of the act or in the regulations of the Commission precluding the head of a department from issuing a regulation granting an election to an employee selected for training to be paid the costs of transportation of his immediate family and household goods and personal effects rather than his receiving a per diem in lieu of subsistence whenever the costs of such transportation are determined to be less than the estimated aggregate per diem payments covering the period of training. The question is answered in the affirmative.

3. If the agency determines that it will pay transportation costs which are less than the estimated aggregate amount of per diem in lieu of subsistence, may the agency's initial determination later be revoked and the employee paid per diem for the period of training?

We do not view section 10 as precluding an agency from revoking its initial determination to pay transportation costs at any time prior to the time of the actual transportation of the immediate family and/or the household goods and personal effects of the employee. However, after the transportation is effected in accordance with such initial determination the entitlement of the employee and the obligation of the Government have become fixed and thereafter may not be changed either by the department or by the employee.

4. Section 6.1.d. of the Government Travel Regulations provides that "where the employee's tour of travel requires more than two months' stay at a temporary duty station, consideration should be given to either a change in official station, or a reduction in the per diem allowance."

a. Is the employee regarded as at a "temporary duty station" at the place where he is receiving training?

b. If he is not regarded as being at a "temporary duty station" while receiving training, are the provisions of section 6.1.d. of the Government Travel Regulations applicable to require that the per diem allowance be reduced after two months' stay at such location?

Without deciding whether a period of training under the act constitutes a period of temporary duty it suffices to say that under section 10 of the act the per diem benefits that may be paid an employee authorized to receive training away from his official station are determined in accordance with the Standardized Government Travel Regulations and, therefore, are no greater than those which could be authorized an employee while performing temporary duty away

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