B-199121, OCTOBER 10, 1980, 60 COMP.GEN. 9

B-199121: Oct 10, 1980

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WHICH WAS TURNED OVER TO THE GOVERNMENT. 1980: THIS ACTION IS IN RESPONSE TO A REQUEST FOR AN ADVANCE DECISION BY H. FOR COMPENSATION WHICH WAS PAID TO HIM INCIDENT TO TRAVEL ON OFFICIAL BUSINESS WHEN HE VACATED HIS SEAT ON AN OVER-BOOKED FLIGHT. HE WAS SCHEDULED TO LEAVE DULLES INTERNATIONAL AIRPORT NEAR WASHINGTON. THE SHUTTLE BUS TO THE AIRPLANE AN EMPLOYEE OF UNITED AIRLINES ANNOUNCED THAT THE FLIGHT WAS OVER-BOOKED AND REQUESTED VOLUNTEERS WHO WOULD BE WILLING TO TAKE ANOTHER FLIGHT WHICH WOULD ARRIVE IN PORTLAND 2 HOURS LATER. GOURNAY VOLUNTEERED BECAUSE HE WAS NOT SCHEDULED TO START WORK UNTIL THE NEXT DAY. RESERVED SPACE ARE DUE THE GOVERNMENT. OUR OFFICE HAS APPLIED THIS PROVISION TO CIRCUMSTANCES WHERE THE TRAVELER IS DENIED BOARDING ON A SCHEDULED FLIGHT EVEN IF THE GOVERNMENT INCURS NO EXTRA EXPENSE DUE TO THE DENIED BOARDING.

B-199121, OCTOBER 10, 1980, 60 COMP.GEN. 9

TRAVEL EXPENSES - AIR TRAVEL - RESERVATION PENALTIES V. VOLUNTARY SPACE RELEASE - COMPENSATION - EMPLOYEE V. GOVERNMENT'S ENTITLEMENT - TRAVEL BEFORE SEPTEMBER 3, 1979 EMPLOYEE, WHILE TRAVELING ON OFFICIAL BUSINESS ON MAY 23, 1976, RECEIVED $174.07 FOR VOLUNTARILY VACATING HIS SEAT ON AN OVER-BOOKED AIR FLIGHT. OUR DECISIONS WHICH ALLOW AN EMPLOYEE TO KEEP VOLUNTARY PAYMENTS DO NOT APPLY PRIOR TO SEPTEMBER 3, 1978, THE EFFECTIVE DATE OF THE CIVIL AERONAUTICS BOARD REGULATIONS ENCOURAGING PAYMENT FOR VOLUNTARILY VACATING A SEAT ON AN OVER-BOOKED FLIGHT. THE PAYMENT, WHICH WAS TURNED OVER TO THE GOVERNMENT, MAY NOT BE RETURNED TO THE EMPLOYEE.

MATTER OF: WILLIAM J. GOURNAY - PAYMENT TO EMPLOYEE FOR VOLUNTARILY VACATING SEAT ON AN OVER-BOOKED AIRPLANE, OCTOBER 10, 1980:

THIS ACTION IS IN RESPONSE TO A REQUEST FOR AN ADVANCE DECISION BY H. LARRY JORDAN, AN AUTHORIZED CERTIFYING OFFICER OF THE DEPARTMENT OF AGRICULTURE, CONCERNING A RECLAIM VOUCHER SUBMITTED BY WILLIAM J. GOURNAY, FOR COMPENSATION WHICH WAS PAID TO HIM INCIDENT TO TRAVEL ON OFFICIAL BUSINESS WHEN HE VACATED HIS SEAT ON AN OVER-BOOKED FLIGHT.

MR. GOURNAY, AN EMPLOYEE OF AGRICULTURE, STATES THAT ON SUNDAY, MAY 23, 1976, HE WAS SCHEDULED TO LEAVE DULLES INTERNATIONAL AIRPORT NEAR WASHINGTON, D.C., ON A UNITED AIRLINES FLIGHT FOR PORTLAND, OREGON. THE SHUTTLE BUS TO THE AIRPLANE AN EMPLOYEE OF UNITED AIRLINES ANNOUNCED THAT THE FLIGHT WAS OVER-BOOKED AND REQUESTED VOLUNTEERS WHO WOULD BE WILLING TO TAKE ANOTHER FLIGHT WHICH WOULD ARRIVE IN PORTLAND 2 HOURS LATER. AFTER NO ONE HAD VOLUNTEERED AT FIRST, MR. GOURNAY VOLUNTEERED BECAUSE HE WAS NOT SCHEDULED TO START WORK UNTIL THE NEXT DAY. UNITED AIRLINES GAVE MR. GOURNAY A CHECK FOR $174.07 WHICH HE TURNED IN TO THE GOVERNMENT WHEN HE SUBMITTED HIS TRAVEL VOUCHER.

AFTER READING OUR DECISIONS IN CHARLES E. ARMER, 59 COMP.GEN. 203 (1980), THE EDMUNDO REDE, JR., B-196145, JANUARY 14, 1980, WHICH ALLOWED AN EMPLOYEE TO RETAIN PAYMENTS RECEIVED FOR VOLUNTARILY RELINQUISHING HIS SEAT ON AN OVER-BOOKED AIRPLANE, MR. GOURNAY SUBMITTED A RECLAIM VOUCHER FOR THE PAYMENT HE RECEIVED FOR VOLUNTARILY LEAVING HIS AIRPLANE SEAT. THE CERTIFYING OFFICER HAS SUBMITTED THE CASE TO OUR OFFICE TO DETERMINE WHETHER OUR ARMER DECISION HAS RETROACTIVE EFFECT.

THE FEDERAL TRAVEL REGULATIONS (FTR) STATE THAT PENALTY PAYMENTS MADE BY AIR CARRIERS, FOR FAILURE TO FURNISH ACCOMMODATIONS FOR CONFIRMED, RESERVED SPACE ARE DUE THE GOVERNMENT, AND NOT THE TRAVELER, WHEN THE PAYMENTS RESULT FROM TRAVEL ON OFFICIAL BUSINESS. FTR (FPMR 101-7) PARA. 1-3.5B (MAY 1973). OUR OFFICE HAS APPLIED THIS PROVISION TO CIRCUMSTANCES WHERE THE TRAVELER IS DENIED BOARDING ON A SCHEDULED FLIGHT EVEN IF THE GOVERNMENT INCURS NO EXTRA EXPENSE DUE TO THE DENIED BOARDING. SEE 41 COMP.GEN. 806(1962); TYRONNE BROWN, B-192841, FEBRUARY 5, 1979.

HOWEVER, IN ARMER AND REDE OUR OFFICE RULED THAT AIRLINE PAYMENTS TO VOLUNTEERS ARE DISTINGUISHABLE FROM DENIED BOARDING COMPENSATION AND THEREFORE MAY BE RETAINED BY THE EMPLOYEE. WE ALSO HELD THAT IF THE EMPLOYEE INCURS ADDITIONAL TRAVEL EXPENSES BY VOLUNTARILY RELINQUISHING HIS SEAT, THESE EXPENSES MUST BE OFFSET AGAINST THE PAYMENT RECEIVED BY THE EMPLOYEE.

THE MAJOR RATIONALE BEHIND THE ARMER AND REDE DECISIONS WAS TO AVOID FRUSTRATION OF THE INTENT OF THE REGULATIONS ADOPTED BY THE CIVIL AERONAUTICS BOARD (CAB) ON MAY 30, 1978, AND EFFECTIVE SEPTEMBER 3, 1978, WHICH REQUIRE THE AIRLINES TO SEEK VOLUNTEERS TO GIVE UP THEIR SEATS BEFORE THE AIRLINES DENY BOARDING TO ANY PASSENGERS ON AN OVER BOOKED FLIGHT. THE POLICY BEHIND THESE REGULATIONS IS TO INSURE THAT THE SMALLEST PRACTICABLE NUMBER OF PEOPLE HOLDING CONFIRMED, RESERVED SPACE ON A FLIGHT WOULD BE DENIED BOARDING INVOLUNTARILY. SEE 14 C.F.R. 250.2A(1979). MAKING OUR DECISIONS IN ARMER AND REDE APPLICABLE PRIOR TO SEPTEMBER 3, 1978, WOULD NOT SERVE THE SAME PURPOSE SINCE PRIOR TO THE ISSUANCE OF THESE REGULATIONS, AIRLINES WERE NOT REQUIRED TO SEEK VOLUNTEERS BEFORE PASSENGERS WERE DENIED BOARDING.

IN ADDITION, OUR DECISIONS IN ARMER AND REDE CREATED AN EXCEPTION TO THE GENERAL RULE THAT PAYMENTS FROM AIRLINES FOR DENIED BOARDING ARE DUE THE GOVERNMENT, NOT THE EMPLOYEE, AND THOSE DECISIONS MODIFY PRIOR DECISIONS WHICH HAVE BEEN RELIED UPON BY EMPLOYEES, CERTIFYING AND DISBURSING OFFICERS, AND AGENCY OFFICIALS INVOLVED IN THE TRAVEL OF FEDERAL EMPLOYEES. TO GIVE RETROACTIVE EFFECT TO OUR ARMER AND REDE DECISIONS PRIOR TO SEPTEMBER 3, 1978, WOULD WE BELIEVE, BE TOO DISRUPTIVE OF SETTLED CLAIMS AND, AS NOTED ABOVE, WOULD NOT SERVE THE PURPOSE OF THE CAB REGULATION. THEREFORE, WE CONCLUDE THAT OUR ARMER AND REDE DECISIONS SHOULD ONLY BE APPLIED TO TRAVEL OCCURRING ON OR AFTER SEPTEMBER 3, 1978, THE EFFECTIVE DATE OF THE CAB REGULATION. SEE ALSO OUR DECISION OF TODAY, WILLIAM R. STOVER, B-199417, INVOLVING TRAVEL PERFORMED AFTER THE ISSUANCE OF THE CAB REGULATION BUT PRIOR TO OUR ARMER AND REDE DECISIONS.

IN THE PRESENT CASE, MR. GOURNAY PERFORMED THE TRAVEL IN 1976, MORE THAN 2 YEARS BEFORE THE EFFECTIVE DATE OF THE CAB REGULATION. IN ADDITION, THERE IS SOME QUESTION IN THE RECORD BEFORE US WHETHER THIS PAYMENT WAS FOR VOLUNTARILY VACATING THE AIRLINE SEAT SINCE THE CHECK FROM UNITED AIRLINES WAS MADE PAYABLE TO THE GOVERNMENT FOR DENIED BOARDING. ACCORDINGLY, SINCE WE HOLD THAT OUR ARMER AND REDE DECISIONS DO NOT APPLY TO TRAVEL PERFORMED BEFORE SEPTEMBER 3, 1978, MR. GOURNAY'S CLAIM MAY NOT BE PAID.