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Subject: 89-5916 -- OPINION, DEMAREST v. MANSPEAKER




NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 89-5916



RICHARD DEMAREST, PETITIONER v. JAMES
MANSPEAKER et al.


on writ of certiorari to the united states court of appeals for the tenth
circuit

[January 8, 1991]



    Chief Justice Rehnquist delivered the opinion of the Court.

    The question presented is whether 28 U. S. C. MDRV 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.
    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. MDRV 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. MDRV 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 MDRV 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 MDRV 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 MDRV 1821 was "unqualified," other evidence revealed that
Congress did not intend to permit prisoners to receive witness fees.  We
granted certiorari, 495 U. S. --- (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
MDRV 1821.
    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 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. MDRV
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. MDRV 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 time in this
Court, after our grant of cer tiorari.  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. ---, ---, n. 3
(1990).
    On the merits, the Government argues that the language of MDRV 1825,
considered in pari materia with MDRV 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 MDRV 1821 applies to
all witnesses in attendance, the Government urges that MDRV 1825(a)'s
reference to subpoenas imports a highly particularized meaning to the words
"in attendance."  The Government observes that MDRV 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 MDRV 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 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 MDRV 1821(a)(1).  But by this point the concept
urged by the Government 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 MDRV 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
longstanding administrative construction of the statute denying attendance
fees to prisoners, and two Court of Appeals decisions to the same effect,
{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. --- (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 re-enactment does not constitute an adoption of a
previous administrative construction.  Leary v. United States, 395 U. S. 6,
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, 461 (1987); Rubin v. United
States, 449 U. S. 424, 430 (1981); TVA v. Hill, 437 U. S. 153, 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, 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 575.
    The judgment of the Court of Appeals is
Reversed.







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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).