B-160205, OCT. 24, 1966

B-160205: Oct 24, 1966

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WHITE: THIS IS IN REPLY TO YOUR LETTER OF OCTOBER 3. WHEN YOU WERE UNABLE TO OBTAIN A ROOMETTE IN THE CENTER OF THE 10:20 P.M. YOU POINT OUT THAT YOU PREFER TRAVELING ON RAILROADS BUT THAT YOU CANNOT SLEEP IN A ROOMETTE POSITIONED OVER THE WHEELS AND IF YOU HAVE TO TRAVEL IN THIS MANNER YOU ARE EXHAUSTED FOR TWO DAYS. THERE ARE NO PULLMAN ACCOMMODATIONS ON THE 10:20 P.M. WHICH IS SUFFICIENTLY LATE TO PERMIT MOST TRAVELERS TO ENJOY A NIGHT'S REST. MOREOVER THE REGULATIONS GOVERNING TRAVEL PROVIDE THAT THE USE OF COACH ACCOMMODATIONS IS TO BE ENCOURAGED WHERE AVAILABLE AND ADEQUATE. RELATING TO TRAVEL DURING REGULARLY SCHEDULED WORKING HOURS IS CONCERNED. THE LANGUAGE IS MERELY PRECATORY IN NATURE.

B-160205, OCT. 24, 1966

TO MR. WARREN C. WHITE:

THIS IS IN REPLY TO YOUR LETTER OF OCTOBER 3, 1966, APPEALING FROM OUR OFFICE SETTLEMENT Z-2329044, AUGUST 24, 1966, DISALLOWING YOUR CLAIM OF $11 ADDITIONAL PER DIEM INCIDENT TO YOUR TRAVEL AND TEMPORARY DUTY AS AN EMPLOYEE OF THE INTERSTATE COMMERCE COMMISSION.

THE RECORD INDICATES THAT YOU TRAVELED TO CHICAGO, ILLINOIS, FROM WASHINGTON, D.C., TO CONDUCT A HEARING COMMENCING AT 9:30 A.M., MONDAY, JUNE 6, 1966, AND SCHEDULED TO CONCLUDE ON FRIDAY, JUNE 10. YOU HAD MADE A RETURN RESERVATION ON THE BALTIMORE AND OHIO CAPITOL LIMITED DEPARTING CHICAGO AT 4:30 P.M. THAT DATE. THE HEARING CONCLUDED AT 4:30 P.M. ON THURSDAY, JUNE 9, BUT WHEN YOU WERE UNABLE TO OBTAIN A ROOMETTE IN THE CENTER OF THE 10:20 P.M. TRAIN TO WASHINGTON ON THURSDAY NIGHT YOU REMAINED OVER IN CHICAGO AND DEPARTED ON THE 4:30 P.M. TRAIN ON FRIDAY AS PLANNED. THE 10:20 P.M. TRAIN FROM CHICAGO ARRIVED IN WASHINGTON AT 5:55 P.M. ON FRIDAY, AND THE 4:30 P.M. FRIDAY TRAIN FROM CHICAGO ARRIVED IN WASHINGTON AT 9:30 A.M. ON SATURDAY.

YOU POINT OUT THAT YOU PREFER TRAVELING ON RAILROADS BUT THAT YOU CANNOT SLEEP IN A ROOMETTE POSITIONED OVER THE WHEELS AND IF YOU HAVE TO TRAVEL IN THIS MANNER YOU ARE EXHAUSTED FOR TWO DAYS. YOU ALSO INDICATE THAT YOU WOULD NOT TAKE THE 10:20 P.M. TRAIN BECAUSE OF THE DANGER TO YOUR PERSONAL SAFETY AT BOTH TRAVEL POINTS FROM THE LATENESS OF THE HOUR.

IN SUPPORT OF YOUR CLAIM YOU REFER TO SECTION 16 OF THE FEDERAL EMPLOYEES SALARY ACT OF 1965, AMENDING SECTION 204 OF THE 1945 FEDERAL EMPLOYEES PAY ACT. PUB.L. 89-301, APPROVED OCTOBER 29, 1965, 79 STAT. 1123, WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

"* * * TO THE MAXIMUM EXTENT PRACTICABLE, THE HEAD OF ANY DEPARTMENT, INDEPENDENT ESTABLISHMENT, OR AGENCY * * * SHALL SCHEDULE THE TIME TO BE SPENT BY AN OFFICER OR EMPLOYEE IN A TRAVEL STATUS AWAY FROM HIS OFFICIAL DUTY STATION WITHIN THE REGULARLY SCHEDULED WORKWEEK OF SUCH OFFICER OR EMPLOYEE.'

THE CLAIM INVOLVES INCREASED PER DIEM OF $11 RESULTING FROM YOUR REMAINING IN CHICAGO ONE EXTRA DAY AT $14 PER DIEM RATHER THAN $12, THE RATE FOR TRAIN TRAVEL, AND 3/4 OF A DAY AT $12 PER DIEM, $9, BECAUSE OF YOUR DELAYED RETURN.

AS YOU POINT OUT, THERE ARE NO PULLMAN ACCOMMODATIONS ON THE 10:20 P.M. TRAIN AFTER PITTSBURGH, PENNSYLVANIA. HOWEVER, IT SHOULD BE NOTED THAT THE TRAIN MAY BE BOARDED AT 9:30 P.M. IN CHICAGO AND IT DOES NOT ARRIVE IN PITTSBURGH UNTIL 9:48 A.M., WHICH IS SUFFICIENTLY LATE TO PERMIT MOST TRAVELERS TO ENJOY A NIGHT'S REST. MOREOVER THE REGULATIONS GOVERNING TRAVEL PROVIDE THAT THE USE OF COACH ACCOMMODATIONS IS TO BE ENCOURAGED WHERE AVAILABLE AND ADEQUATE. STANDARDIZED GOVERNMENT TRAVEL REGULATIONS 3.6A (2).

INSOFAR AS SECTION 16 OF THE 1965 PAY ACT, SUPRA (5 U.S.C. 5542, FORMERLY 912B), RELATING TO TRAVEL DURING REGULARLY SCHEDULED WORKING HOURS IS CONCERNED, THE LANGUAGE IS MERELY PRECATORY IN NATURE. THE DETERMINATION AS TO THE SCHEDULING OF TRAVEL TIME IS STILL A MATTER OF AGENCY DISCRETION. LEGISLATION DEFINING HOURS OF TRAVEL AS HOURS OF WORK AND COMPENSABLE AS SUCH WAS BEFORE CONGRESS AT THE TIME OF THE AMENDMENT TO SECTION 204 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 BY SECTION 16 OF THE 1965 PAY ACT, BUT CONGRESS DID NOT SEE FIT TO ENACT SUCH LEGISLATION. SEE H.R. 10281, H.R. 10298, H.R. 10299, 89TH CONGRESS.

WE NOTE THAT THE 4:30 P.M. FRIDAY TRAIN ON WHICH YOU TRAVELED TO WASHINGTON INVOLVED MORE TRAVEL TIME OUTSIDE YOUR REGULARLY SCHEDULED WORKWEEK THAN THERE WOULD HAVE BEEN HAD YOU DEPARTED ON THE 10:20 P.M. TRAIN ON THURSDAY. CONSEQUENTLY, 5 U.S.C. 5542 (912B) DOES NOT PROVIDE MUCH SUPPORT FOR YOUR POSITION.

UNDER THE CIRCUMSTANCES THE AGENCY'S DETERMINATION THAT YOUR DELAY IN DEPARTING FROM CHICAGO FOLLOWING COMPLETION OF THE HEARINGS WAS FOR YOUR OWN PERSONAL CONVENIENCE DOES NOT APPEAR UNREASONABLE OR ARBITRARY, AND IS CONSISTENT WITH THE RULE THAT THE TRAVELER SHOULD EXERCISE THE SAME CARE IN INCURRING EXPENSES THAT A PRUDENT PERSON WOULD EXERCISE IF TRAVELING ON PERSONAL BUSINESS. STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, SECTION 1.2. THE PAYMENT OF THE INCREASED PER DIEM RESULTING FROM SUCH DELAY, $11, WAS PROPERLY SUSPENDED. ACCORDINGLY, OUR PRIOR SETTLEMENT DENYING YOUR CLAIM FOR SUCH PER DIEM IS AND MUST BE SUSTAINED.