B-222861, SEP 19, 1986

B-222861, SEP 19, 1986

SUBSISTENCE - ACTUAL EXPENSES - HIGH RATE AREA - ENTITLEMENT DIGEST: 1. AN EMPLOYEE PERFORMED TEMPORARY DUTY TRAVEL TO A HIGH RATE GEOGRAPHICAL AREA (HRGA) AND LODGED AT HIS FAMILY DOMICILE WHILE THERE. HE WAS AUTHORIZED REIMBURSEMENT ON AN ACTUAL SUBSISTENCE BASIS, BUT REQUESTS REIMBURSEMENT ON A PER DIEM BASIS. THE PER DIEM CLAIM IS DENIED. PARAGRAPH 1-8.1B OF THE FEDERAL TRAVEL REGULATIONS GRANTS AGENCY HEADS DISCRETIONARY AUTHORITY TO ALLOW SPECIAL PER DIEM IN LIEU OF ACTUAL SUBSISTENCE IN HRGA'S IN CERTAIN CIRCUMSTANCES. WHERE AGENCY HAS NOT APPROVED A SPECIAL PER DIEM IN THE INDIVIDUAL CASE, REIMBURSEMENT ON AN ACTUAL SUBSISTENCE BASIS IS PROPER. QUE QUIGLEY, B-190329, FEBRUARY 9, 1978. SINCE EMPLOYEE REMAINED ON TEMPORARY DUTY OVER THE WEEKEND, HE IS ALSO ENTITLED TO ACTUAL MEAL EXPENSES, IF INCURRED. SUBSISTENCE - ACTUAL EXPENSES - HIGH RATE AREA - ENTITLEMENT 2. AN EMPLOYEE PERFORMING TEMPORARY DUTY TRAVEL TO DETROIT, MICHIGAN, A HIGH RATE GEOGRAPHICAL AREA (HRGA), LODGED AT HIS FAMILY DOMICILE IN TOLEDO, OHIO, 65 MILES FROM THE HRGA LOCATION. SUCH ACTUAL SUBSISTENCE REIMBURSEMENT ENTITLEMENT HE MAY HAVE INCIDENT TO THAT COMMUTING AND LODGING DEPENDS ON WHETHER THAT DOMICILE WAS HIS RESIDENCE IN CONNECTION WITH HIS PERMANENT DUTY STATION. RECORD SHOWS THAT HIS PERMANENT DUTY STATION WAS CHICAGO, ILLINOIS, AND WHENEVER HE PERFORMED DUTY THERE HE RESIDED WITH A RELATIVE IN MICHIGAN CITY, INDIANA. SINCE MICHIGAN CITY WAS HIS DESIGNATED RESIDENCE IN CONNECTION WITH HIS PERMANENT DUTY STATION, SUCH COST ASSOCIATED WITH LODGING AND COMMUTING TO AND FROM TOLEDO TO DETROIT MAY BE ALLOWED, SO LONG AS THOSE EXPENSES DO NOT EXCEED THE COSTS THE EMPLOYEE WOULD HAVE INCURRED HAD HE REMAINED IN DETROIT.

CARL R. BRAND - TEMPORARY DUTY TRAVEL (HRGA) - EXPENSE REIMBURSEMENT BASIS:

THIS DECISION IS IN RESPONSE TO CORRESPONDENCE FROM MR. CARL R. BRAND. HE IS APPEALING SETTLEMENT Z-2862609, DATED FEBRUARY 20, 1985, WHICH DISALLOWED HIS CLAIM FOR PER DIEM IN LIEU OF ACTUAL SUBSISTENCE EXPENSES INCIDENT TO THE PERFORMANCE OF TEMPORARY DUTY. WE CONCLUDE THAT HE IS NOT ENTITLED TO PER DIEM FOR THE FOLLOWING REASONS. HOWEVER, HE IS ENTITLED TO REIMBURSEMENT FOR ACTUAL SUBSISTENCE EXPENSES.

BACKGROUND

MR. CARL R. BRAND IS EMPLOYED BY THE INTERSTATE COMMERCE COMMISSION AS A FIELD STAFF AUDITOR IN ITS BUREAU OF ACCOUNTS. IN 1983, HIS OFFICIAL DUTY STATION WAS IN LANSING, MICHIGAN, AND HE AND HIS FAMILY RESIDED IN TOLEDO, OHIO. IN APRIL 1983 HE WAS TRANSFERRED FROM LANSING, MICHIGAN, TO HIS CURRENT PERMANENT DUTY STATION IN CHICAGO, ILLINOIS. WHILE ON DUTY IN CHICAGO, MR. BRAND STAYED IN MICHIGAN CITY, INDIANA, WHERE HE COMMUTED TO AND FROM WORK EACH DAY. HOWEVER, HE AND HIS FAMILY CONTINUED TO RESIDE IN TOLEDO.

ON HIS PERMANENT CHANGE-OF-STATION TRANSFER TO CHICAGO, MR. BRAND REMAINED A FIELD STAFF AUDITOR PERFORMING TEMPORARY DUTY TRAVEL. TRAVEL AUTHORIZATION AC-4-2, DATED AUGUST 30, 1983, HE WAS AUTHORIZED TO TRAVEL FROM HIS THEN OFFICIAL PERMANENT STATION, CHICAGO, TO "ALL POINTS IN REGION 4 AND ANY POINT IN THE CONTINENTAL UNITED STATES AS REGIONAL AND WASHINGTON ASSIGNMENTS REQUIRE." ITEM 10 OF THAT AUTHORIZATION PROVIDED THAT HE WAS ENTITLED TO BE REIMBURSED FOR LODGING AND SUBSISTENCE ON TWO BASES: (1) LODGING PLUS $23 A DAY, NOT TO EXCEED $50, AND (2) ACTUAL SUBSISTENCE, NOT TO EXCEED RATES LISTED IN CHAPTER 1, PART 8, OF THE FEDERAL TRAVEL REGULATIONS FOR HIGH RATE GEOGRAPHICAL AREAS.

ONE OF THE LOCATIONS TO WHICH HE TRAVELED WAS DETROIT, MICHIGAN, A DESIGNATED HIGH RATE GEOGRAPHICAL AREA. DURING THE PERIOD OF HIS CLAIM - MAY AND JUNE 1984-- HE LODGED AT HIS FAMILY RESIDENCE IN TOLEDO, OHIO, AND COMMUTED 65 MILES DAILY TO HIS TEMPORARY DUTY LOCATION IN DETROIT.

MR. BRAND'S INITIAL CLAIM WAS FOR PER DIEM IN LIEU OF ACTUAL SUBSISTENCE. IN RESPONSE TO THAT CLAIM, OUR CLAIMS GROUP CONCLUDED THAT HE WAS ONLY ENTITLED TO ACTUAL SUBSISTENCE EXPENSE REIMBURSEMENT. THE REASON GIVEN WAS THAT WITHIN THE CONTEXT OF THE FEDERAL TRAVEL REGULATIONS, THE GRANTING OF A SPECIAL PER DIEM RATE IN LIEU OF ACTUAL SUBSISTENCE EXPENSES IN A HIGH RATE GEOGRAPHICAL AREA IS DISCRETIONARY ON THE PART OF AN AGENCY. SINCE THE AGENCY HAD NOT CHOSEN TO AUTHORIZE PER DIEM, MR. BRAND WAS ONLY ENTITLED TO ACTUAL SUBSISTENCE EXPENSE REIMBURSEMENT.

MR. BRAND IS NOW APPEALING THAT DETERMINATION. IN ADDITION, HE HAS ASKED THE FOLLOWING QUESTIONS:

1. "AM I ENTITLED TO BE REIMBURSED FOR NECESSARY SUBSISTENCE EXPENSES INCURRED IN TOLEDO WHEN ASSIGNED TDY (TEMPORARY DUTY) IN DETROIT AND COMMUTING DAILY BETWEEN DETROIT AND TOLEDO?"

2. "IF SO, DOES THIS INCLUDE WEEKENDS WHERE THE COST WOULD BE LESS TO STAY IN TOLEDO THAN TO RETURN TO MY O.D.S. (OFFICIAL DUTY STATION) IN CHICAGO?"

THE PROVISIONS OF LAW GOVERNING THE ENTITLEMENT OF FEDERAL EMPLOYEES TO BE REIMBURSED THE COST OF MEALS, LODGING AND OTHER MISCELLANEOUS EXPENSES INCIDENT TO OFFICIAL TRAVEL ARE CONTAINED IN 5 U.S.C. SECTION 5702 (1982), AND THE FEDERAL TRAVEL REGULATIONS, FPMR 101-7 (SEPTEMBER 1981), INCORP. BY REF., 41 C.F.R. SECTION 101-7.003 (1983) (FTR). UNDER THE FTR, AN EMPLOYEE'S BASIC ENTITLEMENT IS REIMBURSEMENT FOR EXPENSES INCURRED DURING PERIODS HE IS PERFORMING OFFICIAL TRAVEL AWAY FROM HIS PERMANENT DUTY STATION AND AWAY FROM HIS RESIDENCE ASSOCIATED WITH THAT PERMANENT DUTY STATION. HOWEVER, AN EMPLOYEE MAY NOT BE PAID PER DIEM OR ACTUAL SUBSISTENCE EXPENSES WHILE AT HIS PERMANENT DUTY STATION OR THE RESIDENCE FROM WHICH HE COMMUTES DAILY TO AND FROM WORK. FTR PARAS. 1-7.6A, AND 1- 8.1A (SEPTEMBER 1981).

PARAGRAPH 1-7.1A (SEPTEMBER 1981) OF THE FTR PROVIDED AT THE TIME MR. BRAND TRAVELED THAT PER DIEM ALLOWANCES SHALL BE PAID FOR OFFICIAL TRAVEL EXCEPT WHEN IT IS DETERMINED THAT REIMBURSEMENT SHOULD BE ON THE BASIS OF ACTUAL SUBSISTENCE EXPENSES AS PROVIDED IN PART 8 OF CHAPTER 1, FTR. /1/

PARA. 1-8.1 (SEPTEMBER 1981) OF THE FTR PROVIDED IN PART AS FOLLOWS:

"B. TRAVEL TO HIGH RATE GEOGRAPHICAL AREAS (HRGA'S). ACTUAL SUBSISTENCE EXPENSE REIMBURSEMENT SHALL NORMALLY BE AUTHORIZED OR APPROVED WHENEVER TEMPORARY DUTY TRAVEL IS PERFORMED TO OR IN A LOCATION DESIGNATED AS A HIGH RATE GEOGRAPHICAL AREA ***. AGENCIES MAY, HOWEVER, AUTHORIZE OTHER APPROPRIATE AND NECESSARY REIMBURSEMENT AS FOLLOWS:

"(1) A PER DIEM ALLOWANCE UNDER 1-7.3 IF THE FACTORS CITED IN 1-7.3A WOULD REDUCE THE TRAVEL EXPENSES OF AN EMPLOYEE PROVIDED THE AGENCY OFFICIAL DESIGNATED UNDER 1-8.3A(1) DETERMINES THE EXISTENCE OF SUCH FACTORS IN A PARTICULAR TRAVEL ASSIGNMENT AND AUTHORIZES AN APPROPRIATE PER DIEM RATE ***."

AND PARA. 1-8.2 (SEPTEMBER 1981) OF THE FTR PROVIDED IN PART THAT:

"A. MAXIMUM DAILY REIMBURSEMENT. WHEN THE ACTUAL SUBSISTENCE EXPENSES INCURRED DURING ANY ONE DAY ARE LESS THAN THE DAILY RATE AUTHORIZED, THE TRAVELER SHALL BE REIMBURSED ONLY FOR THE LESSER AMOUNT ***."

UNDER THESE PROVISIONS, WHEN EMPLOYEES ARE PERFORMING TEMPORARY DUTY TRAVEL IN A HIGH RATE GEOGRAPHICAL AREA, THEY ARE TO BE REIMBURSED ON AN ACTUAL SUBSISTENCE BASIS, NOT TO EXCEED THE MAXIMUM DAILY RATE ESTABLISHED FOR THE LOCALITY. THE PROVISIONS ALSO GRANT AGENCY HEADS THE DISCRETIONARY AUTHORITY TO AUTHORIZE SPECIAL PER DIEM RATES IN LIEU OF ACTUAL SUBSISTENCE EXPENSE REIMBURSEMENT FOR HIGH RATE GEOGRAPHICAL AREAS, BUT SUCH AUTHORIZATION SHOULD BE MADE PRIOR TO TRAVEL AND ON A CASE-BY- CASE BASIS. IN THE ABSENCE OF SUCH AUTHORIZATION, THE EMPLOYEE IS LIMITED TO REIMBURSEMENT ON AN ACTUAL SUBSISTENCE EXPENSE BASIS. QUE QUIGLEY, B-190329, FEBRUARY 9, 1978,

WHILE THE AGENCY COULD HAVE ESTABLISHED A SPECIAL PER DIEM RATE FOR MR. BRAND INCIDENT TO HIS TEMPORARY DUTY ASSIGNMENT IN DETROIT, IT DID NOT DO SO. THEREFORE, SINCE MR. BRAND'S AUTHORIZED REIMBURSEMENT WAS ESTABLISHED AS BEING ON AN ACTUAL SUBSISTENCE EXPENSE BASIS WHILE PERFORMING TEMPORARY DUTY IN DETROIT, REIMBURSEMENT MAY ONLY BE MADE ON THAT BASIS.

WITH REGARD TO THE QUESTIONS POSED BY MR. BRAND CONCERNING HIS ENTITLEMENTS WHILE LODGING AT HIS TOLEDO, OHIO, RESIDENCE, SUCH ENTITLEMENTS DEPEND ON WHETHER OR NOT HE IS IN A TRAVEL STATUS WHILE STAYING AT HIS FAMILY DOMICILE.

IN THE PRESENT CASE, MR. BRAND RESIDED IN TOLEDO, OHIO. HOWEVER, DURING THE PERIOD MR. BRAND WAS ON TEMPORARY DUTY HE LISTED MICHIGAN CITY, INDIANA, AS HIS OFFICIAL RESIDENCE LOCATION IN CONNECTION WITH HIS CHICAGO DUTY STATION AND APPARENTLY WOULD STAY WITH A RELATIVE THERE WHENEVER HE PERFORMED DUTY IN CHICAGO. THEREFORE, IT IS OUR VIEW THAT FOR THE PURPOSES OF MR. BRAND'S TRAVEL ENTITLEMENTS, MICHIGAN CITY, INDIANA, WAS HIS RESIDENCE LOCATION ASSOCIATED WITH HIS PERMANENT DUTY STATION IN CHICAGO, RATHER THAN THE FAMILY RESIDENCE IN TOLEDO, OHIO. ACCORDINGLY, SINCE HE WAS IN A TRAVEL STATUS WHILE PERFORMING TEMPORARY DUTY IN DETROIT AND STAYING AT HIS FAMILY DOMICILE IN TOLEDO, HE MAY BE REIMBURSED THE ACTUAL COSTS OF HIS MEALS PER HIS REVISED TRAVEL VOUCHERS, IF OTHERWISE CORRECT. THEODORE H. CLARK, JR., B-217629, MAY 13, 1986; DUREL PATTERSON, B-211818, FEBRUARY 14, 1984, AFFIRMED ON RECONSIDERATION, B-211818, NOVEMBER 13, 1984. FURTHER, SINCE MR. BRAND REMAINED ON TEMPORARY DUTY OVER THE WEEKEND, HE WOULD BE ENTITLED TO REIMBURSEMENT FOR HIS ACTUAL MEAL EXPENSES IF, IN FACT, ANY WERE INCURRED.

WITH REGARD TO THE COST OF COMMUTING BETWEEN TOLEDO AND MR. BRAND'S TEMPORARY DUTY LOCATION IN DETROIT, WE HAVE RULED THAT THE EXPENSES CAN BE REIMBURSED UNLESS THE COST ASSOCIATED WITH SUCH ALTERNATIVE LODGING AND COMMUTING IS IN EXCESS OF THE COSTS THE EMPLOYEE WOULD HAVE INCURRED HAD HE REMAINED IN THE VICINITY OF HIS TEMPORARY DUTY LOCATION, AND THERE IS NO INDICATION THAT THE DISTANCE IMPEDED THE EMPLOYEE IN THE PERFORMANCE OF HIS ASSIGNMENT. ROLAND E. GRODER, B-192540, APRIL 6, 1979, AND ROBERT C. BURDEN, 58 COMP.GEN. 706 (1979).

IN THE PRESENT CASE, MR. BRAND'S LODGING IN TOLEDO WAS COST FREE. HIS ONLY REPORTED EXPENSE INCIDENT THERETO WAS THE DAILY COST OF $26.25 FOR COMMUTING 65 MILES BETWEEN DETROIT AND TOLEDO. SINCE THERE IS NO SHOWING THAT THE TOTAL EXPENSES HE INCURRED WERE IN EXCESS OF THOSE HE WOULD HAVE INCURRED HAD HE LODGED IN DETROIT, OR THAT THE DISTANCE TRAVELED IMPEDED THE PERFORMANCE OF HIS ASSIGNMENT, THE EXPENSES OF TRAVELING TO AND FROM LODGING IN TOLEDO ARE PROPERLY CLAIMED.

/1/ THE GENERAL SERVICES ADMINISTRATION HAS ISSUED ITS BULLETIN FPMR A- 40, SUPPLEMENT 20, TO IMPLEMENT THE NEW STATUTORY PROVISIONS AFFECTING TRAVEL, PUB.L. 99-234, 99 STAT. 1756, JANUARY 2, 1986. THE SUPPLEMENT ESTABLISHES MAXIMUM PER DIEM RATES AND A LODGINGS-PLUS PER DIEM SYSTEM AS THE PREDOMINANT METHOD OF REIMBURSEMENT FOR TRAVEL WITHIN THE CONTERMINOUS UNITED STATES, AND LIMITS THE AUTHORITY FOR REIMBURSEMENT OF ACTUAL EXPENSES.