B-238486, Jul 24, 1990, 69 Comp.Gen. 638

B-238486, Jul 24, 1990, 69 Comp.Gen. 638

CIVILIAN PERSONNEL - Travel - Temporary duty - Per diem - Additional expenses An employee is not entitled to additional per diem for an extended tour of temporary duty in Ottawa, Canada, where an agency complied with the Federal Travel Regulations and reduced his per diem in writing, in advance. Employee has not shown that agency's action in reducing per diem rate for long-term temporary duty detail was arbitrary, capricious, or contrary to law. Moreover, employee is not entitled to any per diem for the period after his duty station was changed to Ottawa.

Marion D. Bailey-- Request for Additional-- Per Diem:

This decision is in response to a request from Mr. Marion D. Bailey, a former employee of the Bureau of the Census. Mr. Bailey has requested correction of his personnel records and payment of additional per diem for a tour of duty in Ottawa, Canada, from September 1, 1980, to February 21, 1983, and from June 1, 1983, to October 29, 1983. /1/ Since the claim was not received in this Office until March 11, 1988, the period of the claim prior to March 11, 1982, is barred by the 6 year limitation period in 31 U.S.C. Sec. 3702(b) (1988). For the reasons that follow, Mr. Bailey's claim for additional per diem beginning March 11, 1982, is denied.

BACKGROUND

Mr. Bailey was employed by the Bureau of the Census with a permanent duty station at Suitland, Maryland. In 1980 Mr. Bailey was detailed to Ottawa, Canada, for a 1-year period pursuant to an interchange agreement between the Bureau of Census and Statistics Canada. Such details to international organizations are authorized under the provisions of 5 U.S.C. Sec. 3343 (1988). Mr. Bailey received several extensions to his detail and, from March 1982 to January 1983 several travel orders were issued by the Bureau of Census. The travel orders authorized per diem for Mr. Bailey at $75 per day for the first 30 days, and $30 per day thereafter.

Mr. Bailey states that the $30 per diem was not sufficient for him to live on and he asked the Bureau of Census several times to raise the amount. Mr. Bailey has claimed $36,495, which he alleges is the difference between the $23,001 he received from the Bureau of Census and his total expenditures. The Bureau of Census says that Mr. Bailey is not entitled to any additional per diem and that a reduced per diem is called for when an employee is on extended temporary duty in accordance with Federal Travel Regulations, para. 1-7.3 (Supp. 1, Sept. 28, 1981), incorp. by ref., 41 C.F.R. Sec. 101-7.003 (1988) (FTR).

Mr. Bailey was on sick leave, annual leave, and leave without pay during the period January 9, 1983, until May 28, 1983. He returned to duty on June 1, 1983, at the American Embassy in Ottawa, Canada, and remained on duty until October 29, 1983, when he retired. Mr. Bailey states that the Bureau of Census never issued travel orders and he never received any per diem for this period.

The record before us shows that the Bureau of Census originally issued a Standard Form 50 showing Mr. Bailey's duty station as Suitland, Maryland, and later issued a corrected Form 50 showing Ottawa as his permanent duty station when he returned to duty in 1983. The Bureau of Census says that Mr. Bailey was transferred to Ottawa, that Ottawa was his permanent duty station, and that he is not entitled to per diem on or after June 1, 1983. The Bureau of Census also says that Mr. Bailey's records are complete in accordance with Office of Personnel Management (OPM) regulations.

OPINION

Mr. Bailey's claim for additional per diem breaks down into two parts. Each is separately discussed below.

Per Diem for Extended Temporary Duty

Our decisions have long held that it is within the discretion of the agency to pay per diem only to the extent necessary to cover the increased expenses arising from the performance of official duty. Gilbert C. Morgan, 55 Comp.Gen. 1323 (1976); 31 Comp.Gen. 264 (1952). The Federal Travel Regulations mandate that a per diem rate shall be adjusted downward for travel assignments involving duty for extended periods since it is expected that a traveler in that situation will be able to secure lodging and meals at lower costs. FTR, para. 1-7.3d. This Office has held that an agency may reduce the per diem amount under this regulation as long as the approval of a reduction is made in advance and in writing. Durel R. Patterson, B-211818, Feb. 14, 1984, aff'd on reconsideration, B-211818, Nov. 13, 1984; Joseph F. Maron, B-188080, Dec. 15, 1977. The Bureau of Census complied with this regulatory requirement when it issued Mr. Bailey's travel orders authorizing a reduced per diem prior to his temporary duty assignment in 1981 and 1982.

Mr. Bailey acknowledges the fact that he was authorized $30 per day; however, he states that his actual expenses were $49 per day, and that the Bureau of Census never responded to his request to raise his per diem closer to the amount being paid in Ottawa of $67.50/$75.

The Federal Travel Regulations authorize reductions in per diem because of an extended travel assignment. Thus, our only basis for overruling the agency's determination would be to find that the reduction was arbitrary and capricious. The record does not support such a finding, nor has Mr. Bailey furnished any proof that the Bureau of Census acted in an arbitrary manner. The Bureau of Census says that it no longer has documentation specific to Mr. Bailey's case because all correspondence pertaining to this matter has been destroyed in accordance with record retention regulations. However, during the 1980 decennial census the Bureau handled other employees on extended temporary duty in the same manner. It is the Bureau's practice when Census Bureau employees are on long-term assignments to reduce per diem to an amount that is appropriate for maintenance of long-term lodging, generally a residence with cooking facilities. The Bureau states that Mr. Bailey was on temporary duty for several years and, in such situations, it is reasonable to expect employees to make such arrangements.

We agree with the Bureau of Census. A subsistence allowance is intended to cover the extra expenses incident to traveling. Bornhoft v. United States, 137 Ct.Cl. 134 (1956); Jack C. Welch, et al., 63 Comp.Gen. 594 (1984). Mr. Bailey has not shown that the $30 per day he received was inadequate for this period. Accordingly, we find no basis to overrule the agency's per diem determinations.

Embassy Duty - Ottawa

The Bureau of Census says that Mr. Bailey was permanently assigned to the American Embassy in Ottawa from June 1, 1983, until his retirement on October 29, 1983, and a Standard Form 50 was issued to this effect. Since this was Mr. Bailey's permanent duty station no per diem was authorized. Whether an assignment to a particular station is temporary or permanent is a question of fact to be determined from the orders under which the assignment is made, the character of the assignment, its duration and the nature of the duties. Edward W. DePiazza, B-234262, June 2, 1989, 68 Comp.Gen. 465.

In this case there is ample evidence to indicate that Mr. Bailey's transfer to Ottawa was permanent for his own convenience and at his own request. /2/ Following his extended leave period in early 1983, Mr. Bailey sought help from both inside and outside his agency in order to be assigned to either South Carolina or Ottawa pending his expected retirement in 6 months. A position was found for Mr. Bailey in the American Embassy in Ottawa, and the record establishes that he was, in fact, permanently transferred to Ottawa.

Accordingly, Mr. Bailey's claim for additional per diem for the period June 1 to October 29, 1983, is denied.

/1/ The claim was denied by our Claims Group, February 23, 1989, Z 2865828; however, the claimant never received a copy of the settlement certificate.

/2/ Although the claimant argues that his records are incomplete, the record before us contains sufficient evidence for this Office to determine the legal liability of the United States. See 4 C.F.R. Sec. 31.7 (1989).