B-158577, MAR. 25, 1966

B-158577: Mar 25, 1966

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YOUR PERMANENT DUTY STATION WAS AT BALTIMORE. IT WAS YOUR PRACTICE TO RETURN ON WEEKENDS TO PHILADELPHIA. YOU WERE DETAILED FROM BALTIMORE TO PHILADELPHIA FOR A PERIOD OF NOT TO EXCEED 90 DAYS BEGINNING NOVEMBER 12. NO EVIDENCE HAS BEEN SUBMITTED TO OUR OFFICE INDICATING THAT PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE WAS ADMINISTRATIVELY AUTHORIZED OR APPROVED FOR THE PERIOD OF DETAIL. - WHICH GOVERNS THE ALLOWANCE OF PER DIEM IN LIEU OF SUBSISTENCE TO CIVILIAN OFFICERS AND EMPLOYEES WHO ARE ORDERED TO TRAVEL OR PERFORM TEMPORARY DUTY AWAY FROM THEIR DESIGNATED POSTS OF DUTY. IT IS THE RESPONSIBILITY OF EACH DEPARTMENT AND AGENCY TO AUTHORIZE ONLY SUCH PER DIEM ALLOWANCES AS ARE JUSTIFIED BY THE CIRCUMSTANCES AFFECTING THE TRAVEL.

B-158577, MAR. 25, 1966

TO MR. FRANCIS A. MOOCK:

THIS REFERS TO YOUR LETTER OF FEBRUARY 11, 1966, CONCERNING OUR CLAIMS DIVISION SETTLEMENT OF DECEMBER 17, 1965, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM ALLOWANCE FOR THE PERIOD FROM NOVEMBER 12, 1963, TO JANUARY 12, 1964, AS AN EMPLOYEE OF THE DEPARTMENT OF LABOR, BUREAU OF LABOR STANDARDS.

THE RECORD SHOWS THAT PRIOR TO THE PERIOD OF YOUR CLAIM, YOUR PERMANENT DUTY STATION WAS AT BALTIMORE, MARYLAND, AND IT WAS YOUR PRACTICE TO RETURN ON WEEKENDS TO PHILADELPHIA, PENNSYLVANIA, AS YOUR FAMILY RESIDED THERE. YOU WERE DETAILED FROM BALTIMORE TO PHILADELPHIA FOR A PERIOD OF NOT TO EXCEED 90 DAYS BEGINNING NOVEMBER 12, 1963. NO EVIDENCE HAS BEEN SUBMITTED TO OUR OFFICE INDICATING THAT PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE WAS ADMINISTRATIVELY AUTHORIZED OR APPROVED FOR THE PERIOD OF DETAIL.

SECTION 3 OF THE TRAVEL EXPENSE ACT OF 1949, AS AMENDED, 5 U.S.C. 836--- WHICH GOVERNS THE ALLOWANCE OF PER DIEM IN LIEU OF SUBSISTENCE TO CIVILIAN OFFICERS AND EMPLOYEES WHO ARE ORDERED TO TRAVEL OR PERFORM TEMPORARY DUTY AWAY FROM THEIR DESIGNATED POSTS OF DUTY--- CONTAINS NO MANDATORY PROVISION REQUIRING THAT AN EMPLOYEE BE PAID PER DIEM WHILE IN A TRAVEL STATUS. PURSUANT TO THAT ACT, THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PROVIDE IN SECTION 6 AS FOLLOWS:

"6.2 RATES OF PER DIEM.--- A. THE PER DIEM ALLOWANCES PROVIDED IN THESE REGULATIONS REPRESENT THE MAXIMUM ALLOWABLE. IT IS THE RESPONSIBILITY OF EACH DEPARTMENT AND AGENCY TO AUTHORIZE ONLY SUCH PER DIEM ALLOWANCES AS ARE JUSTIFIED BY THE CIRCUMSTANCES AFFECTING THE TRAVEL. TO THIS END, CARE SHOULD BE EXERCISED TO PREVENT THE FIXING OF PER DIEM RATES IN EXCESS OF THOSE REQUIRED TO MEET THE NECESSARY AUTHORIZED SUBSISTENCE EXPENSES.

THE BUREAU OF LABOR STANDARDS ON NOVEMBER 30, 1965, REFERENCE 3-200, IN REPORTING UPON YOUR CLAIM INFORMED US AS FOLLOWS:

"THE FACTS IN MR. MOOCK'S LETTER OF OCTOBER 27, 1965, ARE CORRECT. HOWEVER, MR. MOOCK DID NOT STATE THAT, PRIOR TO HIS DETAIL, IN A CONVERSATION BETWEEN HIM AND MR. C. DONALD NAGLE, CHIEF, DIVISION OF OPERATIONS, OFFICE OF OCCUPATIONAL SAFETY, HE WAS ASKED WHETHER HE WOULD BE INTERESTED IN A TEMPORARY ASSIGNMENT IN PHILADELPHIA WITH THE PROVISO THAT NO PER DIEM WOULD BE PAID. HE WAS CONSIDERED FOR THE DETAIL BECAUSE HE MAINTAINS A PERMANENT RESIDENCE IN PHILADELPHIA AND HAD PREVIOUSLY ASKED FOR PERMANENT ASSIGNMENT THERE. IN FACT, WHILE WORKING IN BALTIMORE HE LEFT FOR PHILADELPHIA EACH FRIDAY AFTER WORK TO SPEND THE WEEKEND AT HIS HOME. HE AGREED TO OUR TERMS--- THAT IS, NO PER DIEM WOULD BE PAID--- OR THE DETAIL WOULD NOT HAVE BEEN MADE.'

AS POINTED OUT ABOVE, THERE IS NO MANDATORY REQUIREMENT FOR PAYMENT OF PER DIEM. UNDER SUBSECTION 6.2A THE DEVELOPMENT OF THE FACTS AND THE OFFICIAL DETERMINATION OF WHETHER THE CIRCUMSTANCES AFFECTING AN EMPLOYEE'S TRAVEL AND TEMPORARY DUTY JUSTIFY AN AUTHORIZATION OR APPROVAL OF PER DIEM OR OTHER REIMBURSEMENT OF SUBSISTENCE EXPENSES ARE PRIMARILY MATTERS FALLING WITHIN THE RESPONSIBILITY OF THE TRAVEL AUTHORIZING OFFICER. THE FACT THAT YOU WERE ALLOWED MILEAGE (TRANSPORTATION EXPENSES) FOR USE OF YOUR AUTOMOBILE FROM BALTIMORE TO PHILADELPHIA AND RETURN TO BALTIMORE INCIDENT TO YOUR DETAIL IS NO INDICATION THAT THE PROPER ADMINISTRATIVE OFFICER INTENDED TO AUTHORIZE OR APPROVE A PER DIEM ALLOWANCE IN YOUR CASE. APPARENTLY, THE FACT THAT YOU WOULD STAY WITH YOUR FAMILY IN PHILADELPHIA AND NOT INCUR ADDITIONAL LODGING OR SUBSISTENCE EXPENSES WAS THE MOTIVATING FACTOR FOR NOT AUTHORIZING A PER DIEM ALLOWANCE.

WE ENCLOSE HEREWITH COPIES OF OUR DECISIONS INVOLVING SOMEWHAT SIMILAR SITUATIONS (B-152216 DATED AUGUST 20, 1963, B-143631 DATED AUGUST 12, 1960, AND B-127828 DATED MAY 22, 1956).

IN THE LIGHT OF THE FOREGOING THE DISALLOWANCE OF YOUR CLAIM ON DECEMBER 17, 1965, HEREBY IS SUSTAINED.