B-152115, SEP. 9, 1963

B-152115: Sep 9, 1963

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YOU WERE AUTHORIZED TO TRAVEL FROM YOUR HEADQUARTERS TO OKLAHOMA CITY FOR A HEARING WHICH WAS SCHEDULED AT 9:30 A.M. YOU SAY YOUR ARRIVAL AT OKLAHOMA CITY MORE THAN 24 HOURS BEFORE THE TIME SCHEDULED FOR THE HEARING WAS NECESSARY BECAUSE OF CERTAIN PRELIMINARY ARRANGEMENTS TO BE MADE PRIOR TO THE COMMENCEMENT OF THE HEARING. THE PRIMARY RESPONSIBILITY FOR AUTHORIZING THE PAYMENT OF PER DIEM TO A TRAVELER IS THAT OF THE DEPARTMENT OR ESTABLISHMENT BY WHICH HE IS EMPLOYED. THE ADMINISTRATIVE REPORT SAYS THAT THE ADMINISTRATIVE POLICY OF THE DIRECTOR OF THE BUREAU OF RATES AND PRACTICES WITH RESPECT TO THE ARRIVAL TIME OF EXAMINERS AT HEARINGS IS THAT THEY ARRIVE AT THE POINT OF THE FIRST HEARING ON THE MORNING OF THE DAY OF THAT HEARING WHENEVER THE ARRIVAL TIME PERMITS SUFFICIENT TIME TO COMMENCE THE HEARING AT THE APPOINTED TIME.

B-152115, SEP. 9, 1963

TO MR. HENRY C. LEWTON:

YOUR LETTER OF JULY 17, 1963, REQUESTS REVIEW OF OUR SETTLEMENT OF JULY 15, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL PER DIEM FOR TRAVEL FROM WASHINGTON, D.C. TO OKLAHOMA CITY, OKLAHOMA, AS AN EMPLOYEE OF THE INTERSTATE COMMERCE COMMISSION.

YOU WERE AUTHORIZED TO TRAVEL FROM YOUR HEADQUARTERS TO OKLAHOMA CITY FOR A HEARING WHICH WAS SCHEDULED AT 9:30 A.M., TUESDAY, FEBRUARY 12, 1963. YOU DEPARTED FROM WASHINGTON AT 6:25 P.M., FEBRUARY 9, 1963, AND ARRIVED AT OKLAHOMA CITY AT 8:00 A.M., MONDAY, FEBRUARY 11, 1963. YOUR AGENCY ALLOWED YOU PER DIEM BASED UPON A DEPARTURE AT 6:25 P.M., FEBRUARY 10, WITH ARRIVAL AT 8:00 A.M., FEBRUARY 12. YOU SAY YOUR ARRIVAL AT OKLAHOMA CITY MORE THAN 24 HOURS BEFORE THE TIME SCHEDULED FOR THE HEARING WAS NECESSARY BECAUSE OF CERTAIN PRELIMINARY ARRANGEMENTS TO BE MADE PRIOR TO THE COMMENCEMENT OF THE HEARING. YOU INDICATE, ALSO, THAT IN VIEW OF THE IMPORTANCE OF THE HEARING, AND THE POSSIBLE LATE ARRIVAL FOR THE HEARING BECAUSE OF A LATE TRAIN ARRIVAL OR OTHER DELAY, YOU CANNOT AGREE WITH THE ADMINISTRATIVE DETERMINATION THAT "ARRIVAL AT 8:00 A.M. ON THE DAY OF HEARING PROVIDES SUFFICIENT TIME TO OPEN HEARING SCHEDULED FOR 9:30 A.M.'

THE PRIMARY RESPONSIBILITY FOR AUTHORIZING THE PAYMENT OF PER DIEM TO A TRAVELER IS THAT OF THE DEPARTMENT OR ESTABLISHMENT BY WHICH HE IS EMPLOYED.

THE ADMINISTRATIVE REPORT SAYS THAT THE ADMINISTRATIVE POLICY OF THE DIRECTOR OF THE BUREAU OF RATES AND PRACTICES WITH RESPECT TO THE ARRIVAL TIME OF EXAMINERS AT HEARINGS IS THAT THEY ARRIVE AT THE POINT OF THE FIRST HEARING ON THE MORNING OF THE DAY OF THAT HEARING WHENEVER THE ARRIVAL TIME PERMITS SUFFICIENT TIME TO COMMENCE THE HEARING AT THE APPOINTED TIME. THE REPORT SAYS THAT THE INTERSTATE COMMERCE COMMISSION MANUAL FOR TRAVEL PLACES THE RESPONSIBILITY ON BUREAU DIRECTORS "TO DETERMINE THAT TRAVEL IS SCHEDULED IN THE MOST APPROPRIATE MANNER SO THAT THE COMMISSION'S WORK CAN BE ACCOMPLISHED PROPERLY AND ECONOMICALLY.' WAS ADMINISTRATIVELY REPORTED THAT HAD YOU ARRIVED AT 8:00 A.M., FEBRUARY 12, THE DAY OF THE HEARING SUFFICIENT TIME WOULD HAVE BEEN PROVIDED FOR YOU TO OPEN THE HEARING AT 9:30 A.M. FURTHERMORE, YOUR ARRIVAL ON FEBRUARY 11, MORE THAN 24 HOURS BEFORE THE SCHEDULED TIME FOR THE HEARINGS IS ADMINISTRATIVELY CONSIDERED AS BEING UNREASONABLE AND CONTRARY TO ADMINISTRATIVE POLICY.

WE FEEL THAT WHERE THE GENERAL POLICY OF THE ADMINISTRATIVE OFFICE DOES NOT APPEAR TO BE UNREASONABLE OR UNJUSTIFIED, THE SUBSTITUTION OF OUR JUDGMENT FOR THAT OF THE AGENCY WOULD NOT BE WARRANTED. MOREOVER, OUR OPINION IS THAT THE STATEMENT IN THE TRAVEL ORDER WHICH PROVIDES FOR TRAVEL TO BEGIN "ON OR ABOUT FEBRUARY 9, 1963," DOES NOT AUTHORIZE PER DIEM FOR A PERIOD BEYOND THAT PERMITTED BY THE ADMINISTRATIVE POLICY.

THEREFORE, AND SINCE WE DO NOT VIEW THE ADMINISTRATIVE APPLICATION OF ITS GENERAL POLICY AS ARBITRARY OR CAPRICIOUS UNDER THE FACTS PRESENTED, THE DISALLOWANCE OF YOUR CLAIM MUST BE, AND IS, SUSTAINED.