B-148879, AUG. 28, 1970

B-148879, AUG. 28, 1970

CIVIL PAY -- AIR TRAVEL -- DENIED BOARDING COMPENSATION REAFFIRMING DECISION OF JULY 20, 1970, DENYING EMPLOYEE BOARDING COMPENSATION PAID BY AIRLINE AS LIQUIDATED DAMAGES FOR TRAVEL DELAY DUE TO FACT AIRLINE WAS OVERSOLD.

TO MR. CHESTER SIPKIN:

IN RESPONSE TO YOUR LETTER OF JULY 28, 1970, REQUESTING RECONSIDERATION OF OUR DECISION DENYING YOUR CLAIM FOR DENIED BOARDING COMPENSATION, B- 148879 DATED JULY 20, 1970, WE MUST ADVISE, AFTER CAREFUL CONSIDERATION OF YOUR CONTENTIONS IN THE MATTER, THAT OUR DENIAL OF YOUR CLAIM IS SUSTAINED.

OUR DECISION WAS BASED UPON THE DUAL PREMISE THAT SINCE TRAVELERS ON OFFICIAL BUSINESS MAY BE REIMBURSED FOR EXPENSES INCURRED DUE TO UNAVOIDABLE DELAYS AND SINCE EMPLOYEES OF THE GOVERNMENT MAY NOT BE DIRECTLY REIMBURSED FROM PRIVATE SOURCES FOR TRAVEL EXPENSES INCURRED, DENIED BOARDING COMPENSATION PAID BY AIRLINES AS LIQUIDATED DAMAGES FOR FAILURE TO PROVIDE CONFIRMED RESERVATION SPACE BELONGS TO THE GOVERNMENT AS OPPOSED TO THE TRAVELER.

FUNDAMENTALLY, YOU BASE YOUR CLAIM UPON THE ASSERTION THAT NO ADDITIONAL EXPENSES ATTRIBUTABLE TO YOUR DELAYED ARRIVAL AT YOUR POINT OF DESTINATION WERE OR COULD HAVE BEEN INCURRED FOR WHICH THE GOVERNMENT WOULD HAVE HAD TO REIMBURSE YOU. FURTHER, IT IS YOUR VIEW THAT SINCE THE BASIC CONCEPT OF DENIED BOARDING COMPENSATION IS TO "COMPENSATE PASSENGERS FOR THE INCONVENIENCE ARISING FROM OVERSALES" IT IS OBVIOUS THAT SUCH PAYMENT IS NOT REIMBURSEMENT "FOR EXPENSES INCURRED INCIDENT TO THE PERFORMANCE OF OFFICIAL DUTIES."

AS FOR THE FACT THAT, IN YOUR CASE, NO ADDITIONAL EXPENDITURES WERE INCURRED FOR WHICH THE GOVERNMENT WOULD HAVE REIMBURSED YOU, WE WOULD POINT OUT THAT, ALTHOUGH THIS WAS SO, OTHER TRAVELERS IN THE SAME CIRCUMSTANCES MAY INCUR SUCH EXPENSES AND CASES MAY WELL ARISE IN WHICH THOSE EXPENSES COULD EXCEED THE AMOUNT OF THE DENIED BOARDING COMPENSATION AIRLINES ARE REQUIRED TO TENDER. (SEE 14 CFR 250.5.)

WITH RESPECT TO THE REASON AIRLINES ARE REQUIRED TO PAY DENIED BOARDING COMPENSATION WE AGREE THAT A PRINCIPAL CONSIDERATION UNDERLYING ADOPTION OF THE PRACTICE WAS TO COMPENSATE TRAVELERS FOR DISTRESS, DAMAGE AND INCONVENIENCE SUFFERED BY THEM BECAUSE OF OVERSALES. IT IS OBVIOUS, HOWEVER, THAT IN ADDITION TO PERSONAL INCONVENIENCES OF A NONMONETARY NATURE THERE IS INCLUDED RECOGNITION OF THE POSSIBILITY THAT DENIED BOARDING MIGHT CAUSE ADDITIONAL EXPENSE. AS POINTED OUT IN OUR PREVIOUS LETTER TO YOU SUCH ADDITIONAL EXPENSES WOULD BE BORNE BY THE GOVERNMENT TO THE EXTENT OTHERWISE AUTHORIZED.

OUR REVIEW OF THE DEVELOPMENT AND PROMULGATION OF THE DENIED BOARDING COMPENSATION REGULATION (14 CFR 250) LEADS US TO CONCLUDE THAT ITS BASIC INTENT IS TO COMPENSATE THE PURCHASER OF AIRLINE SERVICE FOR FAILURE TO PROVIDE IT. (SEE THE INTRODUCTORY STATEMENT ACCOMPANYING PUBLICATION OF THE REGULATION 32 FEDERAL REGISTER 11939 FF (1967).) THUS, ALTHOUGH YOU, AS AN INDIVIDUAL, WERE INCONVENIENCED BY THE FAILURE TO OBTAIN THE SPACE RESERVED, IT WAS THE GOVERNMENT, AS PURCHASER OF THE AIRLINE TICKET, WHICH WAS ENTITLED TO THE LIQUIDATED DAMAGES PROVIDED BY THE APPLICABLE REGULATION.

ALTHOUGH WE RECOGNIZE THE DISTINCTION YOU DRAW BETWEEN DENIED BOARDING COMPENSATION AND DONATIONS FROM PRIVATE SOURCES FOR PAYMENT OF TRAVEL EXPENSES OF GOVERNMENT EMPLOYEES DISCUSSED IN 36 COMP. GEN. 268 (1956) AND 46 COMP. GEN. 689 (1967), WE BELIEVE THE ANALOGY IS VALID IN THAT IN BOTH CIRCUMSTANCES FUNDS ARE SUPPLIED INCIDENT TO TRAVEL OF A GOVERNMENT EMPLOYEE ON GOVERNMENT BUSINESS FROM A PRIVATE SOURCE. THUS, WE BELIEVE THE SAME RULE AS TO DISPOSITION OF SUCH FUNDS SHOULD BE APPLIED IN CASES OF DENIED BOARDING COMPENSATION AS IS STATED WITH RESPECT TO DONATED FUNDS IN THE CASES CITED ABOVE.

FINALLY, THE MEMORANDUM OF THE ACTING COMPTROLLER GENERAL OF MAY 26, 1969, B-148879, APPLIES TO ALL EMPLOYEES OF THE GOVERNMENT. WE FIND NOTHING IN THE CIRCUMSTANCES OF YOUR CASE TO APPLY A DIFFERENT RULE THAN THAT REQUIRED TO BE FOLLOWED WITH RESPECT TO ALL OTHER GOVERNMENT TRAVELERS.