B-153405, JUN. 15, 1964
Highlights
IN WHICH IT WAS DETERMINED THAT YOU HAD BEEN OVERPAID PER DIEM IN THE AMOUNT OF $192.25. OUR DETERMINATION CONCERNING YOUR INDEBTEDNESS WAS PREDICATED UPON THE FACT THAT ALTHOUGH YOUR TRAVEL ORDERS SPECIFIED AN $8 PER DIEM RATE YOU WERE PAID RETROACTIVELY AT A HIGHER RATE IN ACCORDANCE WITH AN ADMINISTRATIVE DETERMINATION THAT SUCH ACTION WAS APPROPRIATE. - IS ONE WITHIN THE DISCRETION OF THE ADMINISTRATIVE AGENCY. UNLESS THERE IS CLEAR EVIDENCE THAT THE RATE STATED ON THE AUTHORIZATION IS DIFFERENT FROM THE RATE THE AUTHORIZING OFFICIAL INTENDED TO SPECIFY ON THE AUTHORIZATION. THE FACT THAT THE AUTHORIZING OFFICIAL UNDERESTIMATES THE EXPENSE OF THE TRAVELER WHEN HE FIXES A PER DIEM RATE IS OF NO CONSEQUENCE IF THE RATE HE PRESCRIBES IS.
B-153405, JUN. 15, 1964
TO MR. JAMES A. STRADLEY:
WE REFER TO YOUR LETTER OF MARCH 30, 1964, REQUESTING REVIEW OF OFFICE SETTLEMENT OF MARCH 19, 1964, IN WHICH IT WAS DETERMINED THAT YOU HAD BEEN OVERPAID PER DIEM IN THE AMOUNT OF $192.25.
OUR DETERMINATION CONCERNING YOUR INDEBTEDNESS WAS PREDICATED UPON THE FACT THAT ALTHOUGH YOUR TRAVEL ORDERS SPECIFIED AN $8 PER DIEM RATE YOU WERE PAID RETROACTIVELY AT A HIGHER RATE IN ACCORDANCE WITH AN ADMINISTRATIVE DETERMINATION THAT SUCH ACTION WAS APPROPRIATE.
THE MATTER OF PRESCRIBING A PER DIEM RATE--- WITHIN THE MAXIMUM LIMITATIONS PRESCRIBED BY LAW--- IS ONE WITHIN THE DISCRETION OF THE ADMINISTRATIVE AGENCY. HOWEVER, WHEN AN AGENCY FIXES A PER DIEM RATE IT MAY NOT THEREAFTER CHANGE SUCH RATE RETROACTIVELY, UNLESS THERE IS CLEAR EVIDENCE THAT THE RATE STATED ON THE AUTHORIZATION IS DIFFERENT FROM THE RATE THE AUTHORIZING OFFICIAL INTENDED TO SPECIFY ON THE AUTHORIZATION. THE FACT THAT THE AUTHORIZING OFFICIAL UNDERESTIMATES THE EXPENSE OF THE TRAVELER WHEN HE FIXES A PER DIEM RATE IS OF NO CONSEQUENCE IF THE RATE HE PRESCRIBES IS, IN FACT, THE RATE HE INTENDS TO PRESCRIBE. IN YOUR CASE THE $8 RATE WAS INTENDED TO BE PRESCRIBED AND, WHILE THAT RATE PROVED TO BE INADEQUATE TO COVER YOUR EXPENSES, THAT RATE WAS THE RATE THE AUTHORIZING OFFICIAL IN THE EXERCISE OF HIS DISCRETION PRESCRIBED FOR THE TRAVEL.
IN EFFECT, YOU NOW CONTEND THAT YOU WERE ENTITLED TO THE RATES OF PER DIEM THAT HAD BEEN PRESCRIBED BY THE REGIONAL OFFICE (REGION 7) FOR THE CITIES WHERE YOU PERFORMED TEMPORARY DUTY, WHICH RATES WERE HIGHER THAN THE RATES SPECIFIED IN YOUR TRAVEL ORDERS. WE DO NOT CONCUR IN THIS VIEW BECAUSE THE REGIONAL OFFICE SPECIFICALLY AUTHORIZED THE USE OF THE $8 RATE PRESCRIBED IN YOUR ORDERS. THUS, IT CANNOT REASONABLY BE ARGUED THAT THE $8 RATE WAS INVALID BECAUSE IT WAS INCONSISTENT WITH THE RATES PRESCRIBED BY THE REGIONAL OFFICE FOR THE CITIES IN QUESTION. THE ACTION OF THE REGIONAL OFFICE IN SPECIFICALLY AUTHORIZING THE USE OF THE $8 RATE IN YOUR AND SIMILAR CASES IS TO BE VIEWED AS AN EXCEPTION TO THE ESTABLISHED PER DIEM RATES OTHERWISE APPLICABLE TO THE CITIES IN QUESTION.
ACCORDINGLY, UPON REVIEW, THE SETTLEMENT OF MARCH 19, 1964 IS SUSTAINED.