B-213816, MAY 22, 1984

B-213816: May 22, 1984

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DIGEST: TWO EMPLOYEES WERE ASSIGNED TO PERFORM DUTY 30 MILES FROM THEIR DUTY STATION FOR A 2-WEEK PERIOD. WE HOLD THAT PAYMENT MAY BE ALLOWED WHERE SUBSISTENCE EXPENSES AND MILEAGE WERE PROPERLY AUTHORIZED AND WERE NOT SPECIFICALLY PRECLUDED BY AGENCY REGULATIONS DEFINING THE LOCAL TRAVEL AREA. ELLIOTT - CLAIM FOR ACTUAL SUBSISTENCE EXPENSES AND MILEAGE - LOCAL TRAVEL: ISSUE THE ISSUE IN THIS DECISION IS THE ENTITLEMENT OF TWO EMPLOYEES TO ACTUAL SUBSISTENCE EXPENSES AND MILEAGE DURING A 2-WEEK ASSIGNMENT 30 MILES FROM THEIR DUTY STATION. THE AGENCY DENIED THEIR CLAIMS ON THE BASIS THAT THE ASSIGNMENT INVOLVED "LOCAL TRAVEL" FOR WHICH SUBSISTENCE EXPENSES WERE NOT ALLOWED. WE HOLD THAT THE CLAIMS MAY BE ALLOWED SINCE SUBSISTENCE EXPENSES WERE PROPERLY AUTHORIZED AND WERE NOT SPECIFICALLY PRECLUDED BY AGENCY REGULATIONS WHICH DEFINE THE LOCAL TRAVEL AREA IN GENERAL TERMS.

B-213816, MAY 22, 1984

DIGEST: TWO EMPLOYEES WERE ASSIGNED TO PERFORM DUTY 30 MILES FROM THEIR DUTY STATION FOR A 2-WEEK PERIOD. THE EMPLOYEES CLAIMED ACTUAL SUBSISTENCE EXPENSES AND MILEAGE AS PRESCRIBED IN THEIR TRAVEL ORDERS. THE AGENCY DENIED SUBSISTENCE REIMBURSEMENT SINCE THE AGENCY CONSIDERED THE ASSIGNMENT TO BE LOCAL TRAVEL. WE HOLD THAT PAYMENT MAY BE ALLOWED WHERE SUBSISTENCE EXPENSES AND MILEAGE WERE PROPERLY AUTHORIZED AND WERE NOT SPECIFICALLY PRECLUDED BY AGENCY REGULATIONS DEFINING THE LOCAL TRAVEL AREA.

JACK MOHL AND JERRY W. ELLIOTT - CLAIM FOR ACTUAL SUBSISTENCE EXPENSES AND MILEAGE - LOCAL TRAVEL:

ISSUE

THE ISSUE IN THIS DECISION IS THE ENTITLEMENT OF TWO EMPLOYEES TO ACTUAL SUBSISTENCE EXPENSES AND MILEAGE DURING A 2-WEEK ASSIGNMENT 30 MILES FROM THEIR DUTY STATION. THE EMPLOYEES COMMUTED BETWEEN THEIR RESIDENCES AND THE TEMPORARY ASSIGNMENT POINT EACH DAY, AND THE AGENCY DENIED THEIR CLAIMS ON THE BASIS THAT THE ASSIGNMENT INVOLVED "LOCAL TRAVEL" FOR WHICH SUBSISTENCE EXPENSES WERE NOT ALLOWED. WE HOLD THAT THE CLAIMS MAY BE ALLOWED SINCE SUBSISTENCE EXPENSES WERE PROPERLY AUTHORIZED AND WERE NOT SPECIFICALLY PRECLUDED BY AGENCY REGULATIONS WHICH DEFINE THE LOCAL TRAVEL AREA IN GENERAL TERMS.

BACKGROUND

THIS DECISION IS IN RESPONSE TO A REQUEST FROM GORDON M. TAKESHITA, DIRECTOR, FINANCIAL MANAGEMENT DIVISION, ENVIRONMENTAL PROTECTION AGENCY (EPA), CONCERNING THE CLAIMS OF TWO EPA EMPLOYEES, JACK MOHL AND JERRY W. ELLIOTT, FOR SUBSISTENCE AND MILEAGE REIMBURSEMENT.

MESSRS. MOHL AND ELLIOTT ARE AUDITORS ASSIGNED TO THE DALLAS, TEXAS, REGIONAL OFFICE OF EPA. MR. MOHL WAS ASSIGNED TO CONDUCT AN AUDIT AT THE TRINITY RIVER AUTHORITY, ARLINGTON, TEXAS, DURING THE 9-DAY PERIOD FROM DECEMBER 6 TO DECEMBER 17, 1982, AND MR. ELLIOTT JOINED HIM DURING THE SECOND WEEK. BOTH EMPLOYEES WERE AUTHORIZED ACTUAL SUBSISTENCE REIMBURSEMENT NOT TO EXCEED $37.50 PER DAY, PLUS MILEAGE AT 20 CENTS PER MILE. THEY CLAIMED $5-6 PER DAY FOR LUNCH AS WELL AS MILEAGE FROM THEIR RESIDENCES TO THEIR TEMPORARY AUDIT SITE.

THESE VOUCHERS WERE DISAPPROVED BY AN APPROVING OFFICIAL AT EPA ON THE BASIS THAT UNDER AGENCY REGULATIONS, THIS TRAVEL CONSTITUTED LOCAL TRAVEL IN AND AROUND A PERMANENT DUTY STATION WHICH WOULD NOT WARRANT THE PAYMENT OF PER DIEM OR ACTUAL SUBSISTENCE EXPENSES. THE EMPLOYEES WERE URGED TO SUBMIT A CLAIM FOR LOCAL TRAVEL FOR THEIR MILEAGE EXPENSES, FROM WHICH WOULD BE DEDUCTED THE MILEAGE FROM THEIR RESIDENCES TO THE DALLAS OFFICE.

THE EMPLOYEES' SUPERVISOR ARGUES THAT SINCE ARLINGTON, TEXAS, IS LOCATED OUTSIDE THE CORPORATE LIMITS OF DALLAS, TRAVEL ORDERS FOR PER DIEM OR SUBSISTENCE ARE NOT PRECLUDED BY AGENCY REGULATIONS. IN ADDITION, HE CONTENDS THAT THE ISSUANCE OF TRAVEL ORDERS RESULTED IN GREATER PRODUCTIVITY SINCE THE EMPLOYEES WERE ABLE TO WORK A FULL DAY AT THE AUDIT SITE WHICH, COMBINED WITH THEIR COMMUTE TO THEIR RESIDENCES, RESULTED IN AN 11-HOUR DAY AS COMPARED TO A NORMAL 9-1/2 HOUR DAY.

THE SUPERVISOR HAS ALSO SUBMITTED VOUCHERS FROM THREE EMPLOYEES WHO PERFORMED 8 DAYS OF TEMPORARY DUTY IN FORT WORTH, TEXAS. ONE EMPLOYEE DROVE A GOVERNMENT VEHICLE WHILE THE OTHER TWO EMPLOYEES DROVE TO A PICKUP POINT FOR THE COMMUTE. EACH EMPLOYEE CLAIMS $3-4 PER DAY FOR LUNCH, AND TWO EMPLOYEES CLAIM THEIR MILEAGE TO THE PICKUP POINT.

OPINION

OUR DECISIONS HAVE HELD IT IS WITHIN THE DISCRETION OF THE EMPLOYING AGENCY TO AUTHORIZE OR APPROVE PER DIEM OR ACTUAL SUBSISTENCE EXPENSES WHERE THE TRAVEL INVOLVES ONLY SHORT DISTANCES OUTSIDE THE DUTY STATION AREA. HOWARD M. FEUER, 59 COMP.GEN. 605 (1980); AND BAKER AND SANDUSKY, B-185195, MAY 28, 1976. IN ADDITION, AS WE NOTED IN THOSE DECISIONS, PAYMENT OF PER DIEM FOR TRAVEL OF 10 HOURS OR LESS IS PRECLUDED EXCEPT FOR CERTAIN SITUATIONS INVOLVING EARLY DEPARTURE OR LATE RETURN TO THE EMPLOYEE'S RESIDENCE. FEDERAL TRAVEL REGULATIONS, FPMR 101-7 (SEPTEMBER 1981) (FTR), PARA. 1-7.6(D)(1).

IN THE PRESENT CASE, MESSRS. MOHL AND ELLIOTT WERE AUTHORIZED SUBSISTENCE EXPENSES BY AN APPROPRIATE EPA OFFICIAL, AND THEY CLAIMED SUCH EXPENSES ONLY ON THOSE DAYS THEIR TRAVEL EXCEEDED 10 HOURS. HOWEVER, THEIR CLAIMS WERE DENIED BY EPA'S APPROVING OFFICIAL ON THE BASIS OF EPA REGULATIONS GOVERNING LOCAL TRAVEL IN AND AROUND A PERMANENT DUTY STATION. THESE REGULATIONS STATE THAT THE LOCAL TRAVEL AREA (1) IS A METROPOLITAN OR SUBURBAN AREA SURROUNDING THE EMPLOYEE'S PERMANENT DUTY STATION, (2) IS ORDINARILY SERVED BY LOCAL COMMON CARRIERS OR PUBLIC TRANSPORTATION, OR (3) INCLUDES SEPARATE TOWNS WHICH ARE CLOSE ENOUGH TO BE CONSIDERED WITHIN NORMAL COMMUTING DISTANCE. THE REGULATIONS ISSUED BY EPA DO NOT SPECIFY COMMUTING TIME OR COMMUTING DISTANCES.

IN A SIMILAR SITUATION WE HELD THAT WHERE PROPER TRAVEL ORDERS WERE ISSUED WITHIN ADMINISTRATIVE DISCRETION AND NOT UNDER A MISTAKE OF FACT OR LAW, THE PER DIEM ALLOWANCES AUTHORIZED COULD NOT BE RETROACTIVELY RESCINDED. B-173978, OCTOBER 12, 1971, AFFIRMED DECEMBER 20, 1971. SEE ALSO RODNEY B. SORKIN, B-193137, JULY 23, 1979. IN THE PRESENT CASE WE CANNOT SAY THAT THE TRAVEL ORDERS WERE ISSUED WITHOUT LEGAL AUTHORITY OR UNDER A MISTAKE OF FACT OR LAW. THE ASSIGNMENT IN ARLINGTON, WHICH IS LOCATED ABOUT 30 MILES FROM THE OFFICIAL DUTY STATION IN DALLAS, DOES NOT CLEARLY COME WITHIN THE SCOPE OF THE RATHER BROAD EPA REGULATIONS GOVERNING LOCAL TRAVEL. THEREFORE, SINCE THESE EMPLOYEES WERE AUTHORIZED REIMBURSEMENT FOR SUBSISTENCE EXPENSES AND MILEAGE BY AN APPROPRIATE OFFICIAL, THEIR CLAIMS FOR THEIR TRAVEL TO THE ARLINGTON TEMPORARY DUTY ASSIGNMENT MAY BE ALLOWED. SINCE FORT WORTH IS FURTHER FROM DALLAS THEN ARLINGTON, IT WOULD APPEAR THAT THE CLAIMS OF THE OTHER THREE EMPLOYEES FOR ASSIGNMENTS IN FORT WORTH MAY ALSO BE ALLOWED.

THE EPA ALSO REQUESTS GUIDANCE IN ESTABLISHING STANDARD AGENCY-WIDE LOCAL TRAVEL BOUNDARIES. OUR DECISIONS HAVE HELD THAT AGENCIES MAY ISSUE REGULATIONS RESTRICTING THE PAYMENT OF PER DIEM OR ACTUAL EXPENSES WHERE TEMPORARY DUTY IS PERFORMED WITHIN THE COMMUTING DISTANCE OF AN EMPLOYEE'S RESIDENCE OR PERMANENT DUTY STATION. SUCH RESTRICTIONS MAY BE BASED UPON COMMUTING TIME OR COMMUTING DISTANCE OR UPON A CASE-BY-CASE DETERMINATION WHETHER TEMPORARY DUTY IS BEYOND THE NORMAL COMMUTING RANGE FROM HE EMPLOYEE'S RESIDENCE OR OFFICIAL STATION. B-180010.11, MARCH 9, 1977, AND DECISIONS CITED THEREIN. THUS, IT IS WITHIN THE AGENCY'S DISCRETION TO SELECT LOCAL TRAVEL BOUNDARIES BASED UPON COMMUTING TIME OR DISTANCE OR TO PERMIT CASE-BY CASE DETERMINATIONS BEFORE THE TRAVEL IS PERFORMED DEPENDING UPON THE LOCATION OF THE EMPLOYEE'S RESIDENCE AND OFFICIAL STATION.

ACCORDINGLY, WE HOLD THAT THE CLAIMS OF THESE EPA EMPLOYEES FOR ACTUAL SUBSISTENCE EXPENSES AND MILEAGE MAY BE ALLOWED.