Payment of Travel Costs to Witnesses

During a Period of Lapsed Appropriations

Where witnesses have been ordered to appear in court during a lapse in the Department 

of 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 warrant a cash disbursement for that 

purpose under the Antideficiency Act, 31 U.S.C. § 665(b).

Under the interpretation of the Antideficiency Act in the Attorney General's opinion of 

January 16, 1981, emergency expenditures may be made during a lapse in appropriations if they are necessary to secure the safety of human life or the protection of 

property. The totality of circumstances must be examined and evaluated in each case to 

determine whether 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 precluded 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 directed 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 or authorize an obligation under any appropriation or fund in excess of 

the amount available therein; nor shall any such officer or employee involve the 

Government in any contract or other obligation, for the payment of 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 of 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 of 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 of 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. Att’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 specifically 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 between 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 of 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 : The January 16, 1981, Opinion of the Attorney General, Authority for the Continuance o f

Government Functioning During a Temporary Lapse in Appropriations, appears in this volume at p. 1 

supra. Ed.

3 The particular situation described by JM D involved several witnesses who were ordered to appear 

in court on the morning of Monday, November 23, 1981. Appropriations authority lapsed at midnight, 

Fnday, November 20, 1981, and continued through the late afternoon of November 23. The witnesses 

had not been notified prior to their arrival at the courthouse that the court would not be convened on 

Monday 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 operations” 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 evaluated 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 lso n

Assistant Attorney General

Office o f Legal Counsel

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