UNITED STATES SUPREME COURT DECISIONS ON-LINE

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 clubjuris

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.