B-129252, OCT. 3, 1956
Highlights
YOU WERE RESIDING AT SPRINGFIELD. YOU WERE INFORMED THAT "YOUR OFFICIAL HEADQUARTERS WILL BE TEMPORARILY AT SPRINGFIELD AND BURLINGTON.'. CHANGE WAS MADE IN THIS DESIGNATION OF HEADQUARTERS UNTIL SEPTEMBER 1. WHEN YOUR HEADQUARTERS WERE OFFICIALLY CHANGED TO RUTLAND. DID YOU HAVE A PERMANENT DUTY STATION AT BURLINGTON. REQUIRE THAT UNITED STATES ATTORNEYS RESIDE IN THE DISTRICT FOR WHICH APPOINTED AND STATES THAT THE ATTORNEY GENERAL SHALL DETERMINE THE OFFICIAL STATION OF UNITED STATES ATTORNEYS WITHIN THE DISTRICT TO WHICH THEY ARE APPOINTED. 28 U.S.C. 509. IT WILL BE NOTED THAT THE LETTER OF DECEMBER 1. FROM THE DEPUTY ATTORNEY GENERAL DID NOT STATE THAT SPRINGFIELD AND BURLINGTON WOULD BE YOUR "TEMPORARY" HEADQUARTERS BUT THAT YOUR OFFICIAL HEADQUARTERS WILL BE TEMPORARILY AT SPRINGFIELD AND BURLINGTON.
B-129252, OCT. 3, 1956
TO MR. LOUIS G. WHITCOMB, UNITED STATES ATTORNEY:
YOUR LETTER OF AUGUST 29, 1956, REQUESTS REVIEW OF THE AUDIT EXCEPTIONS, IN YOUR ACCOUNT AS AN AUTHORIZED CERTIFYING OFFICER, TO PAYMENTS OF PER DIEM IN LIEU OF SUBSISTENCE TO YOURSELF DURING THE PERIOD NOVEMBER 23, 1953, TO AUGUST 31, 1955, COVERING TIME SPENT AT BURLINGTON, VERMONT, ON OFFICIAL BUSINESS, AND ALSO, FOR EXCESSIVE PER DIEM FOR FRACTIONAL DAYS WHILE IN A TRAVEL STATUS.
YOU RELATE AT LENGTH THE CORRESPONDENCE BETWEEN YOURSELF AND THE DEPARTMENT OF JUSTICE REGARDING THE LOCATION OF YOUR HEADQUARTERS UPON YOUR APPOINTMENT AS UNITED STATES ATTORNEY. YOU WERE RESIDING AT SPRINGFIELD, VERMONT, AT THAT TIME AND BY LETTER OF DECEMBER 1, 1953, FROM THE DEPUTY ATTORNEY GENERAL, YOU WERE INFORMED THAT "YOUR OFFICIAL HEADQUARTERS WILL BE TEMPORARILY AT SPRINGFIELD AND BURLINGTON.' CHANGE WAS MADE IN THIS DESIGNATION OF HEADQUARTERS UNTIL SEPTEMBER 1, 1955, WHEN YOUR HEADQUARTERS WERE OFFICIALLY CHANGED TO RUTLAND, VERMONT. IT APPEARS TO BE YOUR CONTENTION THAT AT NO TIME PRIOR TO SEPTEMBER 1, 1955, DID YOU HAVE A PERMANENT DUTY STATION AT BURLINGTON.
THE PROVISIONS OF 28 U.S.C. 505, REQUIRE THAT UNITED STATES ATTORNEYS RESIDE IN THE DISTRICT FOR WHICH APPOINTED AND STATES THAT THE ATTORNEY GENERAL SHALL DETERMINE THE OFFICIAL STATION OF UNITED STATES ATTORNEYS WITHIN THE DISTRICT TO WHICH THEY ARE APPOINTED. 28 U.S.C. 509, AUTHORIZES THE PAYMENT OF TRAVEL AND SUBSISTENCE EXPENSES TO UNITED STATES ATTORNEYS "WHILE ABSENT FROM THEIR OFFICIAL STATIONS ON OFFICIAL BUSINESS.' TO THE SAME EFFECT SEE TITLE 8, PAGE 109 OF THE UNITED STATES ATTORNEYS" MANUAL.
IT WILL BE NOTED THAT THE LETTER OF DECEMBER 1, 1953, FROM THE DEPUTY ATTORNEY GENERAL DID NOT STATE THAT SPRINGFIELD AND BURLINGTON WOULD BE YOUR "TEMPORARY" HEADQUARTERS BUT THAT YOUR OFFICIAL HEADQUARTERS WILL BE TEMPORARILY AT SPRINGFIELD AND BURLINGTON. THIS DESIGNATION OF HEADQUARTERS IS FURTHER CONFIRMED BY REPORT OF MARCH 23, 1956, FROM THE CHIEF, ACCOUNTS BRANCH, DEPARTMENT OF JUSTICE, IN THE FOLLOWING LANGUAGE--
"THE RECORDS OF THE DEPARTMENT SHOW THAT MR. WHITCOMB WAS GIVEN A RECESS APPOINTMENT ON NOVEMBER 23, 1953, WITH HEADQUARTERS JOINTLY AT BURLINGTON AND SPRINGFIELD, VERMONT. ON MARCH 15, 1954, HE WAS GIVEN A PRESIDENTIAL APPOINTMENT WITH HEADQUARTERS AT THE SAME POINTS. ON JUNE 18, 1954, APPROVAL WAS GIVEN TO MR. WHITCOMB TO MOVE HIS OFFICES TO RUTLAND, VERMONT, THE EFFECTIVE DATE THEREOF BEING SUBJECT TO SPACE AVAILABILITY. ON SEPTEMBER 1, 1955, HIS HEADQUARTERS WERE CHANGED TO RUTLAND, VERMONT.'
AS PER DIEM IN LIEU OF SUBSISTENCE IS PAYABLE ONLY WHEN ABSENT FROM OFFICIAL HEADQUARTERS IT FOLLOWS THAT, IF YOUR CONTENTION THAT YOU HAD NO OFFICIAL HEADQUARTERS PRIOR TO SEPTEMBER 1, 1955, BE ACCEPTED, ALL PER DIEM PRIOR TO THAT DATE WOULD BE FOR DISALLOWANCE. 23 COMP. GEN. 162.
IT APPEARS BEYOND QUESTION THEREFORE THAT PRIOR TO SEPTEMBER 1, 1955, YOU HAD DUAL OFFICIAL HEADQUARTERS AT SPRINGFIELD AND BURLINGTON AND WERE ENTITLED TO PER DIEM IN LIEU OF SUBSISTENCE ONLY WHEN ABSENT FROM BOTH HEADQUARTERS ON OFFICIAL BUSINESS. PARAGRAPH 46 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PROVIDES: "UNDER NO CIRCUMSTANCES WILL PER DIEM IN LIEU OF SUBSISTENCE BE ALLOWED AN EMPLOYEE AT HIS PERMANENT DUTY STATION.' PARAGRAPH 51, CONTAINS THE FOLLOWING PROVISO: "THAT NO PER DIEM WILL BE ALLOWED WHEN THE ABSENCE IS AT OR AFTER 8 A.M. AND RETURN ON THE SAME DAY IS AT OR PRIOR TO 6 P.M. OR FOR ANY ABSENCE NOT EXCEEDING 3 HOURS.'
THE EXCEPTIONS APPEAR TO HAVE BEEN PROPERLY TAKEN UNDER THE FACTS IN YOUR CASE AND UPON REVIEW THEY MUST BE AND ARE SUSTAINED.