Marchese v. United States, 301-70.

• Decision Date: 21 January 1972
• Docket Number: No. 301-70.,301-70.
• Parties: Vincent A. MARCHESE v. The UNITED STATES.
• Court: U.S. Claims Court

453 F.2d 1268 (1972)

Vincent A. MARCHESE v. The UNITED STATES.

No. 301-70.

United States Court of Claims.

January 21, 1972.

Vincent A. Marchese, pro se.

Michael B. Rosenberg, Dept. of Justice, Civ.Div., Washington, D.C., with whom was Asst. Atty. Gen., L. Patrick Gray, III, for defendant.

Before COWEN, Chief Judge, LARAMORE, Judge, DURFEE, Senior Judge, DAVIS, COLLINS, SKELTON, and NICHOLS, Judges.

ON PLAINTIFF'S MOTION AND DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

DAVIS, Judge.

Vincent A. Marchese is a former prisoner of the State of California who, pro se, seeks from us witness fees under 28 U.S.C. 1821,¹ together with compensation for services rendered while in the custody of federal authorities in New York on temporary transfer from state control on the West Coast for federal purposes on the East.² Although not a member of the Bar, he has acquitted himself, both in written and oral argument, at least as well as many a trained attorney. But, as will appear, we cannot give him the relief he asks.

Pursuant to a federal writ of habeas corpus ad testificandum, Mr. Marchese was removed from his California prison to Federal Detention Headquarters in New York City. His presence was required there as a witness in a prospective prosecution of another, from October 30, 1968, to December 31, 1968, when he was returned to California's custody following a plea of guilty by the accused which, of course, aborted trial. He was granted no witness fees. On April 21, 1969, he was again brought from the state prison to Federal Detention Headquarters, this time, under a writ of habeas corpus ad prosequendum, for arraignment on his own federal indictment involving theft from an interstate shipment. Plaintiff was detained in the federal facility until November 8, 1969, when he was returned to California because the Government had not yet set a date for trial.³

During both periods of interim custody in Federal Detention Headquarters in New York, Mr. Marchese was assigned work in the prison kitchen, to cook, wash dishes, and perform other such chores. He did this in a highly satisfactory manner, eleven hours a day, seven days a week. The local director of food services recommended that he be monetarily compensated as if a federal prisoner, a remuneration of only $55, but at that time the administrative ruling was that state prisoners, temporarily in federal hands, were not to be so paid. Following suit in this court (begun on August 28, 1970), the Bureau of Prisons reversed its position and sent him a check for $55 for the meritorious pay previously denied. He returned the check, and continues to refuse to accept that pittance.

I. Witness fees: Plaintiff does not argue that he is entitled to a subsistence allowance under 28 U.S.C. § 1821 (note 1, supra), and the statute in terms precludes that kind of award for a witness in custody. Nor does he ask for mileage which, of course, he did not pay. But he does contend that, as any private citizen, he suffered personal expenses while waiting upon federal court in New York, as a potential witness, during the fall of 1968, and therefore he asks for the $20 daily allowance. He cites in particular the need for civilian clothing during his cross-country flights, and for an attorney's retainer. Distinguishing Meadows v. United States Marshal, 434 F.2d 1007 (C.A. 5, 1970), cert. denied, 401 U.S. 1014, 91 S.Ct. 1265, 28 L.Ed.2d 551 (1971), which denied such per diem compensation to federal prisoner-witnesses who lost wages on their regular jobs in prison industries while waiting to testify, the plaintiff points out that there the Federal Government apparently assumed all the outside costs actually incurred. Following the logic of Meadows,⁴ the defendant naturally answers that any prisoner's time and services are not his own, unlike the private citizen, and that the daily rate is solely for those who are free to do other things.

When Congress decided on a $20 per diem, as the legislative history indicates, it did not expect that figure to completely reimburse every witness. Rather, twenty dollars was chosen as a flat sum, a compromise amount which might be a boon to the unemployed and a drop in the bucket for a prosperous doctor who would have to cancel his appointments with patients. It was anticipated that inequities could result in an individual case, but a variable scale of witness fees was thought to be administratively unfeasible. These considerations suggest that Congress was thinking only of the class which would normally be in a position to incur costs or suffer losses—those not in custody. Consistently with this rationale, the accounting officers of the Government have long ruled that neither federal prisoners (6 Comp.Dec. 588 (1900)) nor state inmates temporarily in federal custody (18 Comp.Gen. 609 (1939); 18 Comp.Gen. 765 (1939)) can collect the per diem. In the light of Meadows and the legislative purpose, we have no reason to upset this established administrative practice. Certainly there is no difference, in any respect pertinent to this claim, between federal prisoners and state convicts temporarily in federal custody.

Whether the plaintiff might have had a case for whole or partial recovery of the $20 per diem allowance if he had been forced to buy his own clothing we need not decide. When asked at oral argument as to the amount of expenses actually incurred, Mr. Marchese properly and candidly revealed that the Government did not compel him to wear civilian garb, and also that a friend...