B-228611, Oct 28, 1988, 68 Comp.Gen. 37

B-228611: Oct 28, 1988

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He was denied the extra mileage and per diem associated with that route because his agency determined that the heat wave was not an "act of God.". The claim is remanded to the agency to consider whether the cause necessitating the indirect route was for other reasons acceptable to the agency. Travel Between Old and New Duty Stations: This decision is in response to an appeal by an employee of the United States Department of Justice from the determination of our Claims Group (Settlement Certificate Z-2863094. The Department of Justice and our Claims Group denied the claim on the grounds that the heat wave was not an "act of God" which would have justified the use of the indirect route. We are remanding this case to the Department of Justice for review in accordance with the principles stated below.

B-228611, Oct 28, 1988, 68 Comp.Gen. 37

Civilian Personnel - Relocation - Travel Expenses - Reimbursement - Circuitous routes - Weather conditions A transferred employee traveled to his new duty station by an indirect route to avoid a severe heat wave in accordance with an American Automobile Association recommendation. He was denied the extra mileage and per diem associated with that route because his agency determined that the heat wave was not an "act of God." The claim is remanded to the agency to consider whether the cause necessitating the indirect route was for other reasons acceptable to the agency. See decisions cited.

Hank Meshorer-- Mileage and Per Diem Allowances-- Travel Between Old and New Duty Stations:

This decision is in response to an appeal by an employee of the United States Department of Justice from the determination of our Claims Group (Settlement Certificate Z-2863094, May 28, 1987), disallowing his claim for reimbursement of additional mileage and per diem associated with an indirect route he took to avoid a severe heat wave while traveling from his old to his new duty station. The Department of Justice and our Claims Group denied the claim on the grounds that the heat wave was not an "act of God" which would have justified the use of the indirect route. While we agree that a heat wave does not meet the commonly held definition of an "act of God," an indirect route may be justified under other conditions. Therefore, we are remanding this case to the Department of Justice for review in accordance with the principles stated below.

The employee, Mr. Hank Meshorer, was transferred from Denver, Colorado to Washington, D.C. During his relocation travel, for which he was authorized to use his privately owned vehicle, Mr. Meshorer drove a Winnebago loaded with household goods and towed an automobile also loaded with household goods. He states that he traveled an extra 569 miles through Nebraska, South Dakota, and Minnesota based on an American Automobile Association (AAA) recommendation that he avoid the direct route because of the heat wave. Mr. Meshorer is claiming mileage for 569 miles and per diem for 1- 3/4 days for a total of $347.85.

The payment of travel, transportation and relocation expenses of transferred government employees is authorized under 5 U.S.C. Secs. 5724 and 5724a (1982) as implemented by the Federal Travel Regulations (FTR), incorp. by ref., 41 C.F.R. Sec. 101-7.003 (1987). Paragraph 1 2.5a of the FTR requires that all travel be accomplished by the usually traveled route and paragraph 1-2.5b provides that when a person travels by an indirect route for his own convenience he must bear the extra expense associated with that route. Specifically with regard to relocations, FTR, para. 2-2.3d(2) provides for a maximum per diem allowance when an employee uses a privately owned vehicle as follows:

"(2) Maximum allowance based on total distance. Per diem allowances should be paid on the basis of actual time used to complete the trip, but the allowances may not exceed an amount computed on the basis of a minimum driving distance per day which is prescribed as reasonable by the authorizing official and is not less than an average of 300 miles per calendar day. An exception to the daily minimum driving distance may be made by the agency concerned when travel between the old and new official stations is delayed for reasons clearly beyond the control of the travelers such as acts of God, restrictions by Governmental authorities, or other reasons acceptable to the agency; e.g., a physically handicapped employee. In such cases, per diem may be allowed for the period of the delay or for a shorter period as determined by the agency. The traveler must provide a statement on his/her reimbursement voucher fully explaining the circumstances which necessitated the en route travel delay. The exception to the daily minimum driving distance requires the approval of the agency's authorizing official."

The Department of Justice based its denial of Mr. Meshorer's claim on these provisions, stating that the hot weather did not constitute an "act of God" and that since he would not have had to avoid the heat but for the excess weight he was transporting, the indirect route was for his personal convenience. Our Claims Group concurred with this result and reasoning.

We agree with the Department of Justice that a heat wave does not appear to be within the commonly accepted understanding of an "act of God." our view, however, the characterization of the heat wave is not determinative of this case. The exceptions to the provisions of FTR, para. 2-2.3d(2) are not restricted to "acts of God." In other cases involving per diem for periods of delayed travel, we have not restricted the category of justifiable reasons for such delay to "acts of God." For example, we have stated that delays in travel caused by adverse weather or road conditions are for consideration in determining whether per diem should be paid and in what amount. See David Houseworth, B-195764, Feb. 20, 1980; B-163654, June 22, 1971. We have also considered in those situations whether the employee acted as a prudent person would have acted under the same circumstances. See George A. Yesalavich, B-199467, Mar. 17, 1981.

In addition to the cases where we have allowed per diem for delays caused by weather conditions, we have also permitted payment of per diem for periods of delay caused by the breakdown of an employee's automobile while he was en route to a new duty station. Thomas S. Swan, Jr., 64 Comp.Gen. 173 (1984). In that case, the employee had demonstrated that he had maintained his vehicle in good working order and that the delay was therefore beyond his control.

In summary, the regulations and cases cited and discussed above provide that per diem may be paid for periods of delay in relocation travel where the cause of delay is clearly beyond the control of the employee and is not for his personal convenience and where the circumstances of the situation reveal that the employee acted in a prudent manner. Therefore, the Department of Justice should reconsider Mr. Meshorer's claim to determine if the cause for the indirect route was within his control, if the indirect route was for his personal benefit, and whether he acted in a prudent manner given the circumstances of the situation.