B-73977, MARCH 30, 1948, 27 COMP. GEN. 556

B-73977: Mar 30, 1948

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A SUBORDINATE OFFICER TO WHOM SUCH AUTHORITY WAS NOT DELEGATED MAY NOT FIX EFFECTIVELY A PROSPECTIVE REDUCTION IN THE RATE OF PER DIEM SPECIFIED IN AN EMPLOYEE'S TRAVEL ORDERS SO AS TO DEPRIVE HIM OF THE BENEFIT OF THE HIGHER PER DIEM RATE. THE FACT THAT AN EMPLOYEE SUBMITTED A "TRUE AND JUST" TRAVEL VOUCHER CLAIMING PER DIEM IN LIEU OF SUBSISTENCE AT A RATE FIXED BY AN UNAUTHORIZED ADMINISTRATIVE OFFICER WHICH WAS LESS THAN THE RATE AUTHORIZED IN HIS PROPERLY ISSUED TRAVEL ORDERS. SPECIAL INSTRUCTIONS ON THE ORDER WERE TO THE EFFECT THAT HE SHOULD PROCEED WHEN DIRECTED BY COMPETENT AUTHORITY. IT WAS FURTHER STATED THEREON THAT MR. ERICKSON WAS STATIONED IN MINNEAPOLIS. WAS REIMBURSED THEREFOR AT THE AUTHORIZED RATE OF $6.00 PER DIEM.

B-73977, MARCH 30, 1948, 27 COMP. GEN. 556

SUBSISTENCE - PER DIEMS - REDUCTION OF SPECIFIED RATE BY UNAUTHORIZED OFFICIAL; WAIVER IN VIEW OF SECTIONS 5 AND 45 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, PROVIDING THAT ONLY HEADS OF AGENCIES OR DESIGNATED SUBORDINATES MAY AUTHORIZE OR APPROVE OFFICIAL TRAVEL AND PRESCRIBE RATES OF PER DIEM IN LIEU OF SUBSISTENCE, A SUBORDINATE OFFICER TO WHOM SUCH AUTHORITY WAS NOT DELEGATED MAY NOT FIX EFFECTIVELY A PROSPECTIVE REDUCTION IN THE RATE OF PER DIEM SPECIFIED IN AN EMPLOYEE'S TRAVEL ORDERS SO AS TO DEPRIVE HIM OF THE BENEFIT OF THE HIGHER PER DIEM RATE. THE FACT THAT AN EMPLOYEE SUBMITTED A "TRUE AND JUST" TRAVEL VOUCHER CLAIMING PER DIEM IN LIEU OF SUBSISTENCE AT A RATE FIXED BY AN UNAUTHORIZED ADMINISTRATIVE OFFICER WHICH WAS LESS THAN THE RATE AUTHORIZED IN HIS PROPERLY ISSUED TRAVEL ORDERS, AND THAT HE ACCEPTED, WITHOUT PROTEST, PAYMENT AT SUCH REDUCED RATE, DOES NOT OPERATE AS A WAIVER SO AS TO PRECLUDE THE EMPLOYEE FROM CLAIMING THE DIFFERENCE BETWEEN THE REDUCED AND THE AUTHORIZED PER DIEM RATE.

COMPTROLLER GENERAL WARREN TO F. E. CUTTER, FEDERAL SECURITY AGENCY, MARCH 30, 1948:

BY LETTER DATED FEBRUARY 24, 1948, THE BUDGET AND FISCAL OFFICER, U.S. PUBLIC HEALTH SERVICE, FORWARDED HERE FOR CONSIDERATION YOUR LETTER OF FEBRUARY 16, 1948, AS FOLLOWS:

THE ENCLOSED SUPPLEMENTARY VOUCHER FOR PER DIEM OF $119.00 IN FAVOR OF P- F OPERATOR ERNEST ERICKSON, A TEMPORARY EMPLOYEE OF THE UNITED STATES PUBLIC HEALTH SERVICE, TUBERCULOSIS CONTROL DIVISION, HAS BEEN SUBMITTED TO ME FOR CERTIFICATION AS AN AUTHORIZED CERTIFYING OFFICER. THE VOUCHER REPRESENTS MR. ERICKSON'S CLAIM FOR $2.00 PER DIEM IN LIEU OF SUBSISTENCE WHICH HAD NOT BEEN CLAIMED ON PREVIOUS VOUCHERS FOR PER DIEM SUBMITTED BY HIM FOR THE PERIOD OF AUGUST 1 TO NOVEMBER 30, 1947, INCLUSIVE, BUT WHICH HAD BEEN AUTHORIZED BY THE TRAVEL ORDER COVERING THE PERIOD ABOVE STATED.

TRAVEL AUTHORIZATION NO. 392, DATED JULY 1, 1947, AUTHORIZED AND DIRECTED MR. ERICKSON TO TRAVEL FROM HIS OFFICIAL STATION IN WASHINGTON, D.C., TO SUCH POINTS IN THE CONTINENTAL UNITED STATES AND RETURN AS MIGHT BE NECESSARY DURING THE FISCAL YEAR 1948 IN CONNECTION WITH TUBERCULOSIS CONTROL ACTIVITIES OF THE PUBLIC HEALTH SERVICE. SPECIAL INSTRUCTIONS ON THE ORDER WERE TO THE EFFECT THAT HE SHOULD PROCEED WHEN DIRECTED BY COMPETENT AUTHORITY. IT WAS FURTHER STATED THEREON THAT MR. ERICKSON WOULD BE REIMBURSED FOR ACTUAL AND NECESSARY TRAVEL EXPENSES PLUS AN ALLOWANCE OF $6.00 PER DIEM IN LIEU OF SUBSISTENCE.

PURSUANT TO THIS AUTHORIZATION AND UNDER THE DIRECTIONS OF HIS ADMINISTRATIVE SUPERIORS, MR. ERICKSON WAS STATIONED IN MINNEAPOLIS, MINNESOTA, FROM JULY 1 TO JULY 31, 1947, INCLUSIVE, AND WAS REIMBURSED THEREFOR AT THE AUTHORIZED RATE OF $6.00 PER DIEM. ON JULY 25, 1947 IT WAS ADMINISTRATIVELY DECIDED BY THE TUBERCULOSIS CONTROL DIVISION THAT ITS EMPLOYEES SHOULD BE LIMITED TO $4.00 PER DIEM AFTER THE FIRST 30 DAYS AT EACH NEW DUTY STATION AND MR. ERICKSON WAS NOTIFIED BY OFFICE MEMORANDUM, SIGNED BY THE ASSISTANT CHIEF, TUBERCULOSIS CONTROL DIVISION, THAT THIS REDUCTION WOULD BE EFFECTIVE ON AUGUST 1, 1947. INASMUCH AS MR. ERICKSON HAD ALREADY BEEN ON DUTY AT MINNEAPOLIS FOR MORE THAN 30 DAYS BEFORE AUGUST 1, HIS SUBSISTENCE FOR THE PERIOD OF AUGUST 1 TO AUGUST 22, 1947, DURING WHICH HE REMAINED AT THAT STATION WAS REDUCED TO $4.00 PER DIEM. SUBSEQUENT TRAVEL OF THIS EMPLOYEE THROUGH NOVEMBER 30, 1947, WAS REIMBURSED AT THE RATE OF $6.00 PER DIEM FOR THE FIRST 30 DAYS AT EACH NEW DUTY STATION AND AT THE RAGE OF $4.00 PER DIEM FOR EACH DAY AFTER THE FIRST 30 DAYS.

THE ADMINISTRATIVE DECISION TO REDUCE THE PER DIEM RATE AFTER THE FIRST 30 DAYS OF EACH ASSIGNMENT WAS MADE ON A DIVISION LEVEL AND DID NOT AFFECT THE EMPLOYEES OF ANY OTHER DIVISION OF THE PUBLIC HEALTH SERVICE. ADDITION TO THE OFFICE MEMORANDUM ABOVE-CITED WHICH ACCOMPANIES THE ENCLOSED VOUCHER, A TYPED NOTATION OF THE REDUCTION, SIGNED BY THE ADMINISTRATIVE OFFICER, TUBERCULOSIS CONTROL DIVISION, WAS PLACED ON EACH VOUCHER COVERING PAYMENT OF PER DIEM TO THE TRAVELER. NEITHER THE ASSISTANT CHIEF NOR THE ADMINISTRATIVE OFFICER OF THIS DIVISION ARE AMONG THE OFFICERS OF THE PUBLIC HEALTH SERVICE WHO HAVE BEEN DELEGATED BY THE ADMINISTRATOR OF THE FEDERAL SECURITY AGENCY TO AUTHORIZE OR APPROVE TRAVEL UNDER PARAGRAPH 5, STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, AS AMENDED.

THIS OFFICE IS AWARE OF YOUR UNPUBLISHED DECISION, B-46734, DATED MARCH 17, 1945, TO THE EFFECT THAT THE PER DIEM RATE STATED IN AN ORDER MAY BE REDUCED PROSPECTIVELY BY COMPETENT ADMINISTRATIVE AUTHORITY BUT IT IS UNCERTAIN WHETHER OR NOT THE MEMORANDUM ORDER ISSUED IN THIS CASE, BY OFFICERS WHO COULD NOT HAVE AUTHORIZED OR APPROVED THE ORIGINAL TRAVEL, SHOULD BE CONSIDERED COMPETENT ADMINISTRATIVE AUTHORITY.

IT IS FURTHER NOTED THAT THE EMPLOYEE IN THIS CASE HAD SIGNED THE CERTIFICATES ON THE VOUCHERS PREPARED BY THE ADMINISTRATIVE OFFICE AND ACCEPTED THE PAYMENT OF $4.00 PER DIEM WITHOUT PROTEST. WHILE IT HAS BEEN HELD CONSISTENTLY THAT THE PAYMENT AND ACCEPTANCE OF LESS THAN A RATE FIXED BY LAW DOES NOT CONSTITUTE A WAIVER OF THE EMPLOYEE'S RIGHT OR BAR A CLAIM BY HIM FOR THE DIFFERENCE (23 COMP. GEN. 109, 112), IT IS ALSO NOT CLEAR WHETHER THE STATEMENT IN A TRAVEL AUTHORIZATION OF A FIXED PER DIEM ALLOWANCE THEREBY BECOMES A RATE FIXED BY LAW WHICH MAY NOT BE WAIVED BY THE EMPLOYEE.

YOUR EARLY DECISION AS TO THE PROPRIETY OF CERTIFYING THE ATTACHED SUPPLEMENTARY VOUCHER IS RESPECTFULLY REQUESTED IN ORDER THAT THIS OFFICE MAY BE GUIDED IN THE DISPOSITION OF APPROXIMATELY 25 SIMILAR CLAIMS IT HAS REASON TO BELIEVE WILL BE FILED BY OTHER EMPLOYEES WHOSE PER DIEM WAS REDUCED IN THE MANNER ABOVE STATED.

SECTIONS 5 AND 45 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, APPROVED BY THE PRESIDENT PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 7 OF THE SUBSISTENCE EXPENSE ACT OF 1926, 44 STAT. 688, 689, AS AMENDED, PROVIDE, IN PERTINENT PART, AS FOLLOWS:

5. FORM OF AUTHORITY.--- ALL TRAVEL SHALL BE EITHER AUTHORIZED OR APPROVED IN WRITING BY THE HEAD OF THE DEPARTMENT OR INDEPENDENT ESTABLISHMENT, OR BY AN OFFICIAL TO WHOM SUCH AUTHORITY HAS BEEN PROPERLY DELEGATED. (SEE PAR. 7.)

45. SUBSISTENCE ALLOWANCE.--- UNLESS OTHERWISE EXPRESSLY PROVIDED IN AN EMPLOYEE'S COMMISSION OR APPOINTMENT, OR BY LAW, THE OFFICIAL AUTHORIZED TO ISSUE TRAVEL ORDERS MAY AUTHORIZE IN THE ORDER A PER DIEM ALLOWANCE NOT TO EXCEED $6 IN LIEU OF SUBSISTENCE EXPENSES, WHILE TRAVELING ON OFFICIAL BUSINESS WITHIN THE LIMITS OF THE CONTINENTAL UNITED STATES * * *.

IT SEEMS CLEAR FROM THE ABOVE-QUOTED PROVISIONS OF THE TRAVEL REGULATIONS --- WHICH REGULATIONS ARE STATUTORY OR QUASI-LEGISLATIVE--- THAT NO PERSON OTHER THAN THE HEAD OF EACH DEPARTMENT OR INDEPENDENT ESTABLISHMENT, OR THOSE OFFICIALS TO WHOM HE HAS DELEGATED SUCH AUTHORITY, MAY AUTHORIZE OR APPROVE TRAVEL OF THE EMPLOYEES OF THE DEPARTMENTS OR INDEPENDENT ESTABLISHMENTS CONCERNED. MOREOVER, IT IS WELL ESTABLISHED THAT THE PROVISIONS OF VALID STATUTORY REGULATIONS HAVE THE FORCE AND EFFECT OF LAW, ARE GENERAL IN THEIR APPLICATION, AND CAN NO MORE BE WAIVED THAN THE PROVISIONS OF THE STATUTES THEMSELVES. SEE 22 COMP. GEN. 895, 899, AND CASES CITED THEREIN. SEE, ALSO, B 70609, JANUARY 20, 1948, 27 COMP. GEN. 382. ACCORDINGLY, WHERE, AS HERE, AN OFFICER TO WHOM NO AUTHORITY TO AUTHORIZE TRAVEL HAS BEEN DELEGATED BY THE HEAD OF THE AGENCY ISSUES ADMINISTRATIVE INSTRUCTIONS TO AN EMPLOYEE WHICH PURPORT TO REDUCE THE PER DIEM RATE PREVIOUSLY AUTHORIZED IN THE EMPLOYEE'S TRAVEL ORDERS BY FIXING A RATE OF PER DIEM LESS THAN THE RATE AUTHORIZED BY SAID ORDERS FOR DUTY IN EXCESS OF THE FIRST THIRTY DAYS AT ANY PARTICULAR TEMPORARY DUTY STATION, SUCH INSTRUCTIONS ARE LEGALLY INEFFECTIVE. THAT IS TO SAY, AN EMPLOYEE'S RIGHT TO THE PER DIEM RATE SET OUT IN/PROPERLY ISSUED TRAVEL ORDERS CONTINUES TO APPLY TO THE DUTY COVERED BY HIS ORDERS UNTIL SUCH RIGHT BE REVOKED OR AMENDED BY THE OFFICIALS OR EMPLOYEES COMING WITHIN THE CLASS SPECIFIED IN PARAGRAPHS 5 AND 45 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. TO HOLD OTHERWISE WOULD COMPLETELY NULLIFY THE EFFECTIVENESS OF THE PROVISION CONTAINED IN SAID PARAGRAPHS OF THE TRAVEL REGULATIONS RELATING TO THE PERSONS ENTITLED TO AUTHORIZE TRAVEL, AND PER DIEM INCIDENT THERETO, TO EMPLOYEES TRAVELING ON OFFICIAL BUSINESS AND WOULD BE TANTAMOUNT TO AMENDING OR SUPPLEMENTING THE REGULATIONS. ALSO, IT MAY BE STATED THAT THAT VIEW APPEARS TO BE TAKEN CONTEMPORANEOUSLY BY THE ADMINISTRATIVE OFFICER, TUBERCULOSIS CONTROL DIVISION, AS EVIDENCED BY HIS NOTATION ON THE SUBMITTED VOUCHER THAT THE " ADMINISTRATIVE DECISION REDUCING PER DIEM FROM $6.00 TO $4.00 AFTER THE FIRST 30 DAYS OF EACH ASSIGNMENT IS HEREBY RESCINDED AND APPROVAL HEREBY MADE FOR DIFFERENCE IN PER DIEM.'

NOR, UNDER THE CIRCUMSTANCES HERE PRESENTED, DOES THE FACT THAT THE EMPLOYEE SUBMITTED A CLAIM TO A DISBURSING OFFICER OF THE UNITED STATES, CERTIFIED THE VOUCHER AS "TRUE AND JUST IN ALL RESPECTS," AND ACCEPTED PAYMENT WITHOUT PROTEST, OPERATE AS A RELINQUISHMENT OR WAIVER SO AS TO PRECLUDE HIM FROM NOW SUBMITTING A CLAIM AGAINST THE UNITED STATES BY REASON OF THE ITEMS OR SERVICES FOR WHICH PAYMENT HAS BEEN ACCEPTED. SEE B-23107, DATED FEBRUARY 27, 1942.

IN THE LIGHT OF THE ABOVE, THE VOUCHER WHICH, TOGETHER WITH SUPPORTING PAPERS, IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.