B-39369, JANUARY 21, 1944, 23 COMP. GEN. 532

B-39369: Jan 21, 1944

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WHERE AN EMPLOYEE PERFORMED TRAVEL ON A TRAIN HAVING STANDARD PULLMAN SECTIONS WITH UPPER AND LOWER BERTHS BUT THE ONLY ACCOMMODATION AVAILABLE WAS A PULLMAN DUPLEX. 1944: I HAVE YOUR LETTER OF DECEMBER 31. IT WILL BE NOTED FROM THE ENCLOSED VOUCHER THAT MR. IT WAS NECESSARY FOR HIM TO MAKE TRANSPORTATION AND PULLMAN SERVICE RESERVATIONS WELL IN ADVANCE OF THAT DATE. WERE BOTH SCHEDULED TO LEAVE CHICAGO AT 3:30 P.M. BECAUSE THERE WAS NO PULLMAN SERVICE OF ANY KIND AVAILABLE ON THE " TRAIL BLAZER" AND BECAUSE THE JOURNEY INVOLVED OVERNIGHT TRAVEL. WHICH AMOUNT WAS $2.55 IN EXCESS OF THE ESTABLISHED COST OF A STANDARD LOWER BERTH BETWEEN CHICAGO AND PHILADELPHIA. THE MATTER WAS REFERRED TO THE LEGAL DIVISION OF THE BONNEVILLE POWER ADMINISTRATION FOR AN OPINION.

B-39369, JANUARY 21, 1944, 23 COMP. GEN. 532

TRAVELING EXPENSES - FARES - LOWEST FIRST-CLASS LIMITATION - ROOMETTES WHERE A GOVERNMENT EMPLOYEE TRAVELING ON OFFICIAL BUSINESS IN ORDER TO MAINTAIN HIS SCHEDULED ITINERARY, UTILIZED THE FACILITIES OF AN EXTRA FARE TRAIN ON WHICH ROOMETTES CONSTITUTED THE LOWEST FIRST-CLASS ACCOMMODATIONS, THE RATE FOR THE ROOMETTE PROPERLY MAY BE REGARDED AS "THE LOWEST FIRST-CLASS RATE BY TRANSPORTATION FACILITY USED IN SUCH TRAVEL" WITHIN THE MEANING OF SECTION 10 OF THE ACT OF MARCH 3, 1933, LIMITING TRAVEL ALLOWANCES ON AN ACTUAL EXPENSE BASIS TO SUCH LOWEST FIRST-CLASS RATE. WHERE AN EMPLOYEE PERFORMED TRAVEL ON A TRAIN HAVING STANDARD PULLMAN SECTIONS WITH UPPER AND LOWER BERTHS BUT THE ONLY ACCOMMODATION AVAILABLE WAS A PULLMAN DUPLEX, THE STANDARD LOWER BERTH MUST BE REGARDED AS "THE LOWEST FIRST-CLASS RATE BY THE TRANSPORTATION FACILITY USED" WITHIN THE MEANING OF SECTION 10 OF THE ACT OF MARCH 3, 1933, AND, THEREFORE, THE EXCESS COST OF THE SUPERIOR ACCOMMODATION OVER THE COST OF A LOWER BERTH MAY NOT BE ALLOWED.

COMPTROLLER GENERAL WARREN TO ANDREW D. BURT, BONNEVILLE POWER ADMINISTRATION, JANUARY 21, 1944:

I HAVE YOUR LETTER OF DECEMBER 31, 1943, AS FOLLOWS:

THERE HAS BEEN SUBMITTED TO ME FOR APPROVAL AS AN AUTHORIZED CERTIFYING OFFICER THE ENCLOSED VOUCHER FOR PER DIEM AND REIMBURSEMENT OF EXPENSES INCIDENT TO TRAVEL DRAWN IN FAVOR OF C. GIRARD DAVIDSON, GENERAL COUNSEL FOR THE BONNEVILLE POWER ADMINISTRATION.

IT WILL BE NOTED FROM THE ENCLOSED VOUCHER THAT MR. DAVIDSON BEGAN HIS TRAVEL ON SEPTEMBER 19, 1943. HOWEVER, DUE TO THE PRESENT CROWDED CONDITIONS OF TRANSPORTATION FACILITIES, IT WAS NECESSARY FOR HIM TO MAKE TRANSPORTATION AND PULLMAN SERVICE RESERVATIONS WELL IN ADVANCE OF THAT DATE. ON SEPTEMBER 13, 1943 MR. DAVIDSON, IN MAKING HIS RESERVATIONS, ISSUED THREE TRANSPORTATION REQUESTS, AMONG THEM REQUEST NO. I-613,260 FOR PULLMAN ROOMETTE SERVICE BETWEEN CHICAGO AND PHILADELPHIA. MR. DAVIDSON KNEW AT THAT TIME A SCHEDULED APPOINTMENT IN CHICAGO WOULD NOT PERMIT HIS DEPARTURE FOR PHILADELPHIA BEFORE 3:30 P.M., SEPTEMBER 20, AND THAT THE NECESSITY FOR HIS ATTENDANCE AT HEARINGS OF THE SECURITIES EXCHANGE COMMISSION IN PHILADELPHIA EARLY ON SEPTEMBER 21, WOULD NOT PERMIT THE USE OF ANY AVAILABLE TRANSPORTATION FACILITY LEAVING CHICAGO AFTER 3:30 P.M., SEPTEMBER 20. TWO TRAINS, THE PENNSYLVANIA RAILROAD'S " TRAIL BLAZER," AN ALL COACH TRAIN WITH NO PULLMAN EQUIPMENT, AND THE " BROADWAY LIMITED," AN ALL PULLMAN TRAIN WITH NO CLASS OF SERVICE LOWER THAN THE ROOMETTE, WERE BOTH SCHEDULED TO LEAVE CHICAGO AT 3:30 P.M. ON THE DATE IN QUESTION. BECAUSE THERE WAS NO PULLMAN SERVICE OF ANY KIND AVAILABLE ON THE " TRAIL BLAZER" AND BECAUSE THE JOURNEY INVOLVED OVERNIGHT TRAVEL, MR. DAVIDSON ELECTED TO UTILIZE THE LOWEST CLASS OF SERVICE AVAILABLE ON THE " BROADWAY LIMITED"--- A ROOMETTE AT A COST OF $8.95, WHICH AMOUNT WAS $2.55 IN EXCESS OF THE ESTABLISHED COST OF A STANDARD LOWER BERTH BETWEEN CHICAGO AND PHILADELPHIA.

INASMUCH AS THE ADMINISTRATIVE OFFICE, UPON REVIEW OF MR. DAVIDSON'S TRAVEL EXPENSE VOUCHER, QUESTIONED THE EMPLOYEE'S RIGHT TO ROOMETTE SERVICE ON THE JOURNEY FROM CHICAGO TO PHILADELPHIA, SUCH DOUBT BEING BASED ON AN INTERPRETATION OF YOUR DECISION B-35013, DATED JUNE 22, 1943 AND B-35167 DATED JULY 7, 1943, THE MATTER WAS REFERRED TO THE LEGAL DIVISION OF THE BONNEVILLE POWER ADMINISTRATION FOR AN OPINION. IN AN OPINION PREPARED BY THE ASSISTANT GENERAL COUNSEL OF THE BONNEVILLE POWER ADMINISTRATION, COPY OF WHICH IS ENCLOSED, IT WAS HELD THAT UNDER THE CIRCUMSTANCES OF TRAVEL AS RELATED ABOVE, MR. DAVIDSON WAS ENTITLED TO THE CLASS OF PULLMAN SERVICE USED AND THAT NO DEDUCTION FOR EXCESS PULLMAN COST IN CONNECTION WITH TRANSPORTATION REQUEST NO. I-613,260 WAS REQUIRED TO BE MADE FROM THE TRAVELER'S EXPENSE VOUCHER.

IT WAS FURTHER HELD, HOWEVER, IN THE SAME OPINION, THAT A DEDUCTION FOR THE EXCESS COST OF PULLMAN DUPLEX FROM NEW YORK TO WASHINGTON, D. C., PROCURED ON TRANSPORTATION REQUEST NO. I-613,265, UNDER CONDITIONS OF NECESSITY SIMILAR TO THOSE OF THE TRIP FROM CHICAGO TO WASHINGTON, WAS PROPER IN THE LIGHT OF THE CITED DECISIONS DUE TO THE FACT THAT THE TRAIN ON WHICH THE TRAVEL WAS PERFORMED WAS EQUIPPED WITH PULLMAN HAVING STANDARD SECTIONS WITH LOWER AND UPPER BERTHS. ALTHOUGH NEITHER A LOWER NOR AN UPPER BERTH WAS AVAILABLE AT THE TIME TRAVEL WAS PERFORMED, IT WAS NOT CONTENDED BY THE TRAVELER THAT THE UNAVAILABILITY OF SUCH SERVICE WAS DUE TO ANY ACTION ON THE PART OF THE MILITARY AS WAS THE CASE IN THE CIRCUMSTANCES CITED IN DECISION B 35013 DATED JUNE 22, 1943.

ON THE BASIS OF THE OPINION RENDERED BY THE ASSISTANT GENERAL COUNSEL, NO DEDUCTION WAS MADE FROM MR. DAVIDSON'S VOUCHER FOR THE ROOMETTE SERVICE USED BETWEEN CHICAGO AND PHILADELPHIA. HOWEVER, AS WILL BE NOTED, AN ADMINISTRATIVE DEDUCTION IN THE AMOUNT OF $2.80 WAS MADE FROM THE VOUCHER TO COVER OTHER EXCESS CHARGES WHICH INCLUDED THE EXCESS PULLMAN FARE BETWEEN NEW YORK AND WASHINGTON INCURRED ON TRANSPORTATION REQUEST NO. I- 613,265.

THE VOUCHER, SO PREPARED, WAS SUBMITTED TO ME FOR APPROVAL AS AN AUTHORIZED CERTIFYING OFFICER. NOTWITHSTANDING THE OPINION RENDERED BY THE ASSISTANT GENERAL COUNSEL, I AM NOT CONVINCED THAT THE TRAVELER WAS ENTITLED TO THE CLASS OF SERVICE USED BETWEEN CHICAGO AND PHILADELPHIA NOR AM I ABLE TO SUBSCRIBE TO THE LOGIC OF SUCH REASONING AS WOULD ENTITLE THE TRAVELER TO SUPERIOR ACCOMMODATIONS IN ONE INSTANCE AND DEPRIVE HIM OF THOSE ACCOMMODATIONS IN ANOTHER, WHEN, IN EACH INSTANCE, THE TYPE OF PULLMAN SERVICE USED WAS THE CHEAPEST AVAILABLE TO THE TRAVELER AT THE TIME PROCURED. IN NEITHER CASE WAS THE FAILURE TO SECURE A STANDARD LOWER BERTH THE FAULT OF THE TRAVELER AND IT WOULD APPEAR ONLY EQUITABLE TO ALLOW THE EXCESS COST INVOLVED IN EACH INSTANCE. HOWEVER, QUOTING FROM YOUR DECISION B-35167:

"THE SETTLED RULE IN RESPECT OF THE APPLICATION OF THE 1933 STATUTE QUOTED IN YOUR LETTER IS, AS STATED IN THE CITED AND QUOTED DECISIONS, THAT REIMBURSEMENT FOR TRAVEL MUST BE LIMITED TO THE COST OF A LOWER BERTH --- REGARDED AS "THE LOWEST FIRST-CLASS RATE BY THE TRANSPORTATION FACILITY USED" WITHIN THE MEANING OF THOSE WORDS AS USED IN THE ACT OF 1933--- NOTWITHSTANDING THAT UPPER AND LOWER BERTHS WERE NOT AVAILABLE TO THAT PARTICULAR TRAVELER AT THE TIME THE TRAVEL WAS PERFORMED.'

BASING MY CONCLUSIONS ON THAT DECISION, IT DOES NOT APPEAR THAT THE EXCESS COST OF PULLMAN SERVICE AS USED EITHER BETWEEN CHICAGO AND PHILADELPHIA OR NEW YORK AND WASHINGTON IS ALLOWABLE.

MY INABILITY TO CONCUR IN THE LEGAL OPINION RENDERED BY THE ASSISTANT GENERAL COUNSEL OF THE BONNEVILLE POWER ADMINISTRATION MAKES IT NECESSARY FOR ME TO REFER THE MATTER TO YOU FOR A DECISION AS TO WHETHER THE TRAVELER WAS ENTITLED TO THE ROOMETTE SERVICE AS FURNISHED ON GOVERNMENT TRANSPORTATION REQUEST NO. I-613-260. BECAUSE PROBLEMS SUCH AS THIS ARE OF FREQUENT OCCURRENCE, I CONSIDER IT ADVISABLE TO REQUEST YOUR EARLY CONSIDERATION OF THE ENCLOSED VOUCHER AND THE QUESTION ARISING THEREFROM.

SECTION 10 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1516, PROVIDES:

WHENEVER BY OR UNDER AUTHORITY OF LAW ACTUAL EXPENSES FOR TRAVEL MAY BE ALLOWED TO OFFICERS OR EMPLOYEES OF THE UNITED STATES, SUCH ALLOWANCES, IN THE CASE OF TRAVEL ORDERED AFTER THE DATE OF ENACTMENT OF THIS ACT, SHALL NOT EXCEED THE LOWEST FIRST-CLASS RATE BY THE TRANSPORTATION FACILITY USED IN SUCH TRAVEL.

IN DECISION OF JUNE 22, 1943, B-35013, 22 COMP. GEN. 1122, TO WHICH YOU REFER, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

WHERE IT IS SHOWN THAT DUE TO THE RESERVATION OF ALL STANDARD PULLMAN ACCOMMODATIONS FOR MILITARY USE DURING THE PRESENT EMERGENCY, ROOMETTES ARE THE LOWEST RATE FIRST-CLASS ACCOMMODATIONS AVAILABLE TO CIVILIANS ON TRAINS OPERATING SLEEPING CARS BETWEEN PARTICULAR POINTS, SO LONG AS SUCH CONDITION CONTINUES AND INSOFAR AS CONCERNS CIVILIAN EMPLOYEES TRAVELING ON OFFICIAL BUSINESS BETWEEN SUCH POINTS, THE RATE FOR ROOMETTES PROPERLY MAY BE REGARDED AS "THE LOWEST FIRST-CLASS RATE BY THE TRANSPORTATION FACILITY USED IN SUCH TRAVEL" WITHIN THE MEANING OF SECTION 10 OF THE ACT OF MARCH 3, 1933, LIMITING TRAVEL ALLOWANCES ON AN ACTUAL EXPENSE BASIS TO SUCH LOWEST FIRST-CLASS RATE. COMPARE DECISION B-35167, JULY 7, 1943, 23 COMP. GEN. 9.

IN THE OTHER REFERRED-TO DECISION OF JULY 7, 1943, B-35167, 23 COMP. GEN. 9, INVOLVING TRAVEL OVER A ROUTE WITH RESPECT TO WHICH THERE WAS NO SHOWING THAT ALL PULLMAN BERTHS HAD BEEN RESERVED BY THE GOVERNMENT FOR MILITARY PERSONNEL, IT WAS HELD (QUOTING FROM THE SYLLABUS):

THE GENERAL UNSATISFACTORY CONDITIONS OF TRAVEL FOR CIVILIANS DUE TO THE WAR EMERGENCY DO NOT JUSTIFY NONAPPLICATION OF THE PROVISIONS OF SECTION 10 OF THE ACT OF MARCH 3, 1933, LIMITING TRAVEL ALLOWANCES ON AN ACTUAL EXPENSE BASIS TO "THE LOWEST FIRST-CLASS RATE BY THE TRANSPORTATION FACILITY USED," SO THAT EVEN THOUGH A ROOMETTE IS THE ONLY FIRST-CLASS ACCOMMODATION AVAILABLE TO A PARTICULAR EMPLOYEE AT THE TIME HE APPLIES FOR TRANSPORTATION, THE EXCESS COST THEREOF OVER THE COST OF A LOWER BERTH MAY NOT BE ALLOWED, NOTWITHSTANDING THE FACT THAT THE DELAY IN AWAITING THE AVAILABILITY OF STANDARD PULLMAN ACCOMMODATIONS WOULD RESULT IN THE PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE IN EXCESS OF THE ADDITIONAL TRANSPORTATION COST. COMPARE 22 COMP. GEN. 1122.

IN AN EARLIER DECISION, 19 COMP. GEN. 682, WHEREIN NO QUESTION OF RESERVATIONS FOR MILITARY PERSONNEL WAS INVOLVED, IT WAS HELD (QUOTING FROM THE SYLLABUS):

WHERE CLAIM FOR REIMBURSEMENT FOR USE OF A ROOMETTE ON AN EXTRA-FARE TRAIN IS SUPPORTED BY PROPER EVIDENCE THAT THE USE OF SUCH TRAIN WAS AUTHORIZED OR APPROVED IN STRICT ACCORDANCE WITH PARAGRAPH 15 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, AS AMENDED, AND IT IS ESTABLISHED THAT THE PULLMAN CARS ON SAID TRAINS WERE NOT EQUIPPED WITH ACCOMMODATIONS FOR WHICH A LOWER CHARGE IS MADE THAN FOR THE ACCOMMODATION ACTUALLY USED, PAYMENT OF THE CHARGE FOR THE ACCOMMODATIONS ACTUALLY USED WILL NOT BE QUESTIONED AS VIOLATING THE PROVISIONS OF SECTION 10 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1516, REQUIRING THAT REIMBURSEMENT FOR TRAVEL EXPENSES OF GOVERNMENT EMPLOYEES "SHALL NOT EXCEED THE LOWEST FIRST -CLASS RATE BY THE TRANSPORTATION FACILITY USED.' ALSO, IN A LATER DECISION, B-28229, DATED AUGUST 22, 1942, TO THE CHAIRMAN, NATIONAL MEDIATION BOARD, IT WAS STATED IN PERTINENT PART THAT:

* * * WITH RESPECT TO TRAINS NOT MADE UP EXCLUSIVELY OF SUPERIOR ACCOMMODATIONS SUCH AS COMPARTMENTS, DRAWING ROOMS, OR ROOMETTES, THIS OFFICE HAS NO DISCRETION TO DISREGARD THE STATUTE BECAUSE OF THE PRESENT TRANSPORTATION CONDITIONS OR BECAUSE RECENT CHANGES IN TRAVELING ACCOMMODATIONS HAVE INCREASED THE NUMBER OF SUPERIOR ACCOMMODATIONS AND REDUCED THE NUMBER OF LOWER AND UPPER BERTHS ON CERTAIN TRAINS. * * * SEE, ALSO, B-33757, DATED APRIL 14, 1943.

APPLYING THE ABOVE DECISIONS TO THE SITUATION INVOLVED IN THE SUBMITTED VOUCHER, IT IS APPARENT THAT WITH RESPECT TO THE TRAVEL ON THE " BROADWAY LIMITED" BETWEEN CHICAGO AND PHILADELPHIA, ROOMETTES CONSTITUTED THE LOWEST FIRST-CLASS ACCOMMODATIONS BY THE FACILITY USED, BUT THAT BETWEEN NEW YORK AND WASHINGTON, D.C., THE TRAVEL WAS PERFORMED ON A TRAIN HAVING STANDARD PULLMAN SECTIONS WITH UPPER AND LOWER BERTHS AND, CONSEQUENTLY, THE STANDARD LOWER BERTH CONSTITUTED THE LOWEST FIRST-CLASS ACCOMMODATIONS BY THE FACILITY USED IN THAT CASE, NOTWITHSTANDING THAT NO BERTHS MAY HAVE BEEN AVAILABLE WHEN SOUGHT BY THE TRAVELER IN QUESTION. THAT IS TO SAY, THE REAL TEST IS NOT THE TEMPORARY AVAILABILITY OR NONAVAILABILITY OF STANDARD LOWER BERTHS FOR THE PARTICULAR TRAVELER, BUT THE EXISTENCE OF SUCH ACCOMMODATIONS GENERALLY FOR THE ORDINARY TRAVELER ON THE PARTICULAR TRAIN USED BY THE OFFICER OR EMPLOYEE IN QUESTION.

THE VOUCHER IS HEREWITH RETURNED, AND IF IT BE OTHERWISE CORRECT, SAME MAY BE CERTIFIED FOR PAYMENT, INCLUDING THE CHARGE FOR ROOMETTE BETWEEN CHICAGO AND PHILADELPHIA, BUT EXCLUDING THE EXCESS COST OF THE PULLMAN DUPLEX OVER THE COST OF THE LOWER PULLMAN BERTH BETWEEN NEW YORK AND WASHINGTON, D.C. ..END :