Petitioner Demarest, an inmate in a state correctional facility,
testified as a witness in a federal criminal trial pursuant to a
writ of habeas corpus
ad testificandum issued by the
District Court. In accordance with 28 U.S.C. § 1825(a), he
requested that respondent clerk of the court certify that he was
entitled to fees as a "witness . . . in attendance" under §
1821. After the request was denied, he filed a petition for a writ
of mandamus requesting the court to order the clerk to certify the
fees, which was dismissed on the ground that § 1821 does not
authorize the payment of witness fees to prisoners. The Court of
Appeals affirmed, holding that, while § 1821's language was
unqualified, other evidence revealed that Congress did not intend
to permit prisoners to receive witness fees.
Held: Section 1821 requires payment of witness fees to
a convicted state prisoner who testifies at a federal trial
pursuant to a writ of habeas corpus
ad testificandum. The
statute's terms make virtually inescapable the conclusion that a
"witness in attendance at any court of the United States" under
§ 1821(a)(1) includes prisoners unless they are otherwise
excepted in the statute. That Congress was thinking about
incarcerated persons when it drafted the statute is shown by the
fact that subsection (d)(1) excluded incarcerated witnesses from
eligibility for subsistence payments and subsection (e) expressly
excepted another class of incarcerated witnesses -- detained aliens
-- from any eligibility for fees. The Government's argument that
the language of § 1825(a) -- which requires that fees be paid
to defense witnesses "appearing pursuant to subpoenas issued upon
approval of the court" -- modifies the "in attendance" at court
language of § 1821(a)(1) to exclude prisoners because they are
"produced" under a writ of habeas corpus
ad testificandum
is rejected. That reading is inconsistent with the Government's
concession that fees are routinely paid to defense witnesses
appearing by verbal agreement among the parties and with
Hurtado v. United States, 410 U.
S. 578, which upheld the right to fees of material
witnesses who, rather than being subpoenaed, were detained under
former Federal Rule of Criminal Procedure 46(b). If these are
exceptions to the Government's concept of "in attendance," then
that concept means no more than "summoned by a means other than a
writ of habeas corpus
ad testificandum." Such a
Page 498 U. S. 185
view is not supported by the statutory language, and would lead
to the anomaly that prisoners summoned to testify for the
Government would receive fees -- since § 1825(a) does not
require them to appear personally by subpoena -- while witnesses
summoned by the defendant would not. In reaching its decision, the
Court of Appeals mistakenly relied on long-standing administrative
construction of the statute and other Courts of Appeals' decisions
denying attendance fees to prisoners, followed by congressional
revision of the statute. Administrative interpretation of a statute
contrary to the statute's plain language is not entitled to
deference, and where the law is plain, subsequent reenactment does
not constitute adoption of a previous administrative construction.
This case does not present a rare and exceptional circumstance
where the application of the statute as written will produce a
result demonstrably at odds with its drafters' intentions. While
there may be good reasons to deny fees to prisoners, who are seldom
gainfully employed and therefore do not suffer the loss of income
for attendance that many other witnesses do, the same can be said
of children and retired persons, who are clearly entitled to fees.
This Court declines to consider the Government's argument that
defects in Demarest's petition constitute an independent basis for
the clerk's decision to withhold certification, since it was not
raised in the courts below. Pp.
498 U. S.
187-191.
884 F.2d 1343 (C.A.10 1989), reversed.
REHNQUIST, C.J., delivered the opinion for a unanimous
Court.
Chief Justice REHNQUIST delivered the opinion of the Court.
The question presented is whether 28 U.S.C. § 1821 requires
payment of witness fees to a convicted state prisoner who testifies
at a federal trial pursuant to a writ of habeas corpus
ad
testificandum. The Court of Appeals for the Tenth Circuit
concluded that it does not. We disagree, and conclude that it
does.
Page 498 U. S. 186
In March, 1988, petitioner Richard Demarest, an inmate in a
Colorado state correctional facility, was summoned to appear as a
defense witness in a federal criminal trial. He was transported by
a United States marshal to the Denver County Jail pursuant to a
writ of habeas corpus
ad testificandum which had been
issued by the United States District Court for the District of
Colorado. Demarest testified on the eighth day of the eleven-day
trial, and remained in the custody of federal marshals throughout
that period. After completing his testimony, Demarest sought fees
as a "witness . . . in attendance," pursuant to 28 U.S.C. §
1821 for the eight days that he was available to testify and the
two days that he spent in transit to and from the Denver County
Jail.
In accordance with 28 U.S.C. § 1825(a), petitioner
requested that the clerk of the District Court, respondent James
Manspeaker, certify that petitioner was entitled to receive witness
fees, and forward that certification to the United States marshal
for payment of the fee. Respondent forwarded petitioner's request
to the United States attorney, who in turn denied petitioner's
request for certification on the ground that § 1821(a) does
not entitle prisoners to receive witness fees. Demarest
subsequently sought a writ of mandamus requesting the District
Court to order Manspeaker to certify his request for fees. The
District Court dismissed the petition, agreeing with respondent
that § 1821 does not authorize the payment of witness fees to
prisoners.
The United States Court of Appeals for the Tenth Circuit
affirmed by a divided vote. 884 F.2d 1343 (1989). The court held
that, while the language of § 1821 was "unqualified," other
evidence revealed that Congress did not intend to permit prisoners
to receive witness fees. We granted certiorari, 495 U.S. 903
(1990), in order to determine whether a convicted state prisoner
brought to testify at a federal trial by virtue of a writ of habeas
corpus
ad testificandum is entitled to witness fees under
§ 1821.
Page 498 U. S. 187
In deciding a question of statutory construction, we begin of
course with the language of the statute. Section 1821 provides as
follows:
"(a)(1) Except as otherwise provided for by law, a witness in
attendance at any court of the United States . . . shall be paid
the fees and allowances provided by this section."
"
* * * *"
"(b) A witness shall be paid an attendance fee of $30 per day
for each day's attendance. A witness shall also be paid the
attendance fee for the time necessarily occupied in going to and
returning from the place of attendance at the beginning and end of
such attendance or at any time during such attendance."
"
* * * *"
"(d)(1) A subsistence allowance shall be paid to a witness
(other than a witness who is incarcerated) when an overnight stay
is required at the place of attendance because such place is so far
removed from the residence of such witness as to prohibit return
thereto from day to day."
"
* * * *"
"(e) An alien who has been paroled into the United States for
prosecution, pursuant to section 212(d)(5) of the Immigration and
Naturalization Act (8 U.S.C. 1182(d)(5)), or an alien who either
has admitted belonging to a class of aliens who are deportable or
has been determined pursuant to section 242(b) of such Act (8
U.S.C. 1252(b)) to be deportable, shall be ineligible to receive
the fees or allowances provided by this section."
Subsection (a)(1) provides that a "witness in attendance at any
court of the United States" shall be paid fees. Subsection (b)
provides that "a witness shall be paid an attendance fee of $30."
Subsection (d)(1) provides for subsistence fees to witnesses, but
excepts those who are incarcerated. Subsection (e) excludes paroled
or deportable aliens from eligibility
Page 498 U. S. 188
for fees. We think this analysis shows that Congress was
thinking about incarcerated individuals when it drafted the
statute, since it excluded them from eligibility for subsistence
fees. We believe subsection (e) removes all doubt on this question,
since Congress expressly excepted another class of incarcerated
witnesses -- detained aliens -- from eligibility for fees. The
conclusion is virtually inescapable, therefore, that the general
language "witness in attendance at any court of the United States"
found in subsection (a)(1) includes prisoners unless they are
otherwise excepted in the statute.
The Government relies on the cognate provisions of 18 U.S.C.
§ 1825 to sustain the decision below. That section
provides:
"(a) In any case in which the United States . . . is a party,
the United States marshal for the district shall pay all fees of
witnesses on the certificate of the United States attorney or
assistant United States attorney, . . . except that any fees of
defense witnesses, other than experts, appearing pursuant to
subpoenas issued upon approval of the court, shall be paid by the
United States marshal for the district -- "
"
* * * *"
"(2) on the certificate of the clerk of the court upon the
affidavit of such witnesses' attendance given by . . . counsel
appointed pursuant to section 3006A of title 18, in a criminal case
in which a defendant is represented by such . . . counsel."
The Government first argues that Demarest did not satisfy the
requirements of 28 U.S.C. § 1825 because he failed to allege
that he appeared pursuant to a subpoena or that he had obtained an
affidavit regarding his attendance from the defendant's counsel.
The Government contends that these defects in petitioner's
certification request constitute an independent basis for the
clerk's decision to withhold certification, and thus we need not
reach the question of whether petitioner would have been entitled
to fees had he made a proper petition. The Government raises these
alleged defects for the first
Page 498 U. S. 189
time in this Court, after our grant of certiorari. The
Government did not raise this question in the courts below, and we
decline to consider it here for the first time.
Lytle v.
Household Mfg., Inc., 494 U. S. 545,
494 U. S.
551-552, n. 3 (1990).
On the merits, the Government argues that the language of §
1825, considered
in pari materia with § 1821,
modifies the language of that section in a manner which justifies
exclusion of prisoners from the witness fee provisions of that
section. While conceding that § 1821 applies to all witnesses
in attendance, the Government urges that § 1825(a)'s reference
to subpoenas imports a highly particularized meaning to the words
"in attendance." The Government observes that § 1825(a)
requires the clerk of the court to certify and pay attendance fees
to defense witnesses "appearing pursuant to subpoenas issued upon
approval of the court." The Government reads this language to be
exclusive. Therefore, it reasons that, since prisoners are
technically "produced" under a writ of habeas corpus
ad
testificandum, rather than summoned by a subpoena, they are
not the types of defense witnesses entitled to fees within §
1821.
Although the Government's reading of these two sections is
literally plausible, it is inconsistent with the Government's own
concessions and with our decision in
Hurtado v. United
States, 410 U. S. 578
(1973). The Government admits that defense witnesses who appear
other than by subpoena -- by nothing more than verbal arrangement
among the parties -- are routinely paid witness fees. And in
Hurtado, we upheld the right of material witnesses who
were detained pursuant to former Federal Rule of Criminal Procedure
46(b) to receive witness fees. These witnesses were not subpoenaed,
but were detained pursuant to the Rule because of their inability
to give security for appearance. 410 U.S. at
410 U. S. 579,
n. 1.
The Government nonetheless maintains that these are exceptions
to the sort of "process" which it conceives to be a necessary
element of being "in attendance" at court under § 1821(a)(1).
But by this point, the concept urged by respondents
Page 498 U. S. 190
comes to mean no more than "summoned by means other than a writ
of habeas corpus
ad testificandum." Not only is there no
support in the statutory language for this view, but the
Government's construction would lead to the anomaly that prisoners
summoned to testify for the Government would receive fees -- since
§ 1825(a) does not require such witnesses to appear personally
by subpoena -- while witnesses summoned by the defendant would not
receive fees.
The Court of Appeals, while agreeing that the statutory analysis
outlined above was "[o]n its face . . . an appealing argument," 884
F.2d at 1345, relied on long-standing administrative construction
of the statute denying attendance fees to prisoners, and two Court
of Appeals decisions to the same effect, [
Footnote 1] followed by congressional revision of the
statute in 1984.
But administrative interpretation of a statute contrary to
language as plain as we find here is not entitled to deference.
See Public Employees Retirement System of Ohio v. Betts,
492 U. S. 158
(1989). There is no indication that Congress was aware of the
administrative construction, or of the appellate decisions, at the
time it revised the statute. Where the law is plain, subsequent
reenactment does not constitute an adoption of a previous
administrative construction.
Leary v. United States,
395 U. S. 6,
395 U. S. 24-25
(1969).
When we find the terms of a statute unambiguous, judicial
inquiry is complete except in rare and exceptional circumstances.
Burlington Northern R. Co. v. Oklahoma Tax Comm'n,
481 U. S. 454,
481 U. S. 461
(1987);
Rubin v. United States, 449 U.
S. 424,
449 U. S. 430
(1981);
TVA v. Hill, 437 U. S. 153,
437 U. S. 187
(1978). We do not believe that this is one of those rare cases
where the application of the statute as written will produce a
result "demonstrably at odds with the intentions of its drafters."
Griffin v. Oceanic Contractors, Inc., 458 U.
S. 564,
Page 498 U. S. 191
458 U. S. 571
(1982). There may be good reasons not to compensate prisoners for
testifying at federal trials; they are seldom gainfully employed in
prison, and therefore do not suffer the loss of income from
attendance which many other witnesses do. But the same is true of
children and retired persons, who are clearly entitled to witness
fees under the statute and customarily receive them. We cannot say
that the payment of witness fees to prisoners is so bizarre that
Congress "could not have intended" it.
Id. at
458 U. S.
575.
The judgment of the Court of Appeals is
Reversed.
[
Footnote 1]
Meadows v. United States Marshal, Northern District of
Georgia, 434 F.2d 1007 (CA5 1970)
cert. denied, 401
U.S. 1014 (1971);
In re Grand Jury Matter (Witness RW),
697 F.2d 103 (CA3 1982).
