B-148883, MAY 21, 1962

B-148883, MAY 21, 1962

TO MR. DAN O. RUSH:

ON MAY 4, 1962, YOU REQUESTED FURTHER CONSIDERATION OF YOUR CLAIM FOR $90 REPRESENTING ADDITIONAL PER DIEM FOR THE PERIOD FROM NOVEMBER 17, 1960, TO DECEMBER 16, 1960, INCIDENT TO YOUR SERVICES WITH THE FEDERAL AVIATION AGENCY. THE CLAIM WAS DISALLOWED BY OUR SETTLEMENT OF MAY 1, 1962, FOR THE REASONS STATED THEREIN.

IT APPEARS THAT YOU TRAVELED FROM MIAMI, FLORIDA, TO LOS ANGELES, CALIFORNIA, ON OR ABOUT OCTOBER 17, 1960, ATTENDED AN AVIATION SAFETY COURSE AT THE UNIVERSITY OF SOUTHERN CALIFORNIA FOR SOME 60 DAYS, AND RETURNED TO MIAMI. THE TRAVEL ORDER PROVIDED FOR PER DIEM IN LIEU OF SUBSISTENCE AT THE RATES OF $12 FOR THE FIRST 30 DAYS AND $9 THEREAFTER. YOU WERE PAID ACCORDINGLY.

YOU CONTEND THAT YOU SHOULD HAVE BEEN ALLOWED THE PER DIEM RATE OF $12 FOR THE ENTIRE PERIOD AND IN SUPPORT THEREOF YOU SAY (1) THAT UNDER SECTION 2512 OF THE AGENCY'S INSTRUCTION ENTITLED ,STANDARD PRACTICE" THE HEADS OF THE WASHINGTON OFFICES MAY AUTHORIZE $12 PER DIEM FOR PERIODS IN EXCESS OF 30 DAYS AND THERE IS NO LIMITATION ESTABLISHED AS TO WHEN THIS MAY BE DONE; (2) THAT YOU WERE ADVISED BY TELEPHONE THAT THE ADDITIONAL $3 PER DIEM WAS AUTHORIZED, AND (3) THAT OTHERS ATTENDING THE COURSE OF INSTRUCTION WERE ALLOWED THE MAXIMUM PER DIEM RATE FOR THE ENTIRE PERIOD. IN YOUR MEMORANDUM OF FEBRUARY 26, 1962, YOU POINTED OUT THAT YOUR TRAVEL ORDER WHICH IS DATED NOVEMBER 15, 1960, WAS ISSUED "AFTER (YOU WERE) ATTENDING THE COURSE AND AFTER (YOU) HAD SEEN TRAVEL ORDERS FOR OTHER PARTICIPANTS IN THE CLASS AUTHORIZING $12 PER DIEM FOR THE LENGTH OF THE COURSE.'

WE HAVE BEEN GIVEN NO REASON WHY THE TRAVEL ORDER WAS NOT ISSUED PRIOR TO YOUR DEPARTURE FROM MIAMI IN OCTOBER. HOWEVER, IT WAS ISSUED ON NOVEMBER 15, WHICH IS PRIOR TO THE PERIOD FOR WHICH YOU ARE CLAIMING AND IT DOES NOT APPEAR THAT ITS TERMS WOULD HAVE BEEN ANY DIFFERENT HAD IT BEEN ISSUED EARLIER OR THAT YOU HAVE SUSTAINED ANY LOSS BY REASON OF THE DELAY. THE CONTRARY, YOUR STATEMENT SHOWS THAT YOUR DISSATISFACTION AROSE SOMETIME AFTER YOUR ARRIVAL AT LOS ANGELES AND ONLY AFTER YOU HAD SEEN THE TRAVEL ORDERS OF EMPLOYEES FROM OTHER OFFICES OF YOUR AGENCY.

SECTION 6.2 (A) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS READS AS FOLLOWS:

"6.2. RATES OF PER DIEM.--- A. THE PER DIEM ALLOWANCES PROVIDED IN THESE REGULATIONS REPRESENT THE MAXIMUM ALLOWABLE, NOT THE MINIMUM. IT IS THE RESPONSIBILITY OF EACH DEPARTMENT AND ESTABLISHMENT TO SEE THAT TRAVEL ORDERS AUTHORIZE ONLY SUCH PER DIEM ALLOWANCES AS ARE JUSTIFIED BY THE CIRCUMSTANCES AFFECTING THE TRAVEL. TO THIS END, CARE SHOULD BE EXERCISED TO PREVENT THE FIXING OF A PER DIEM ALLOWANCE IN EXCESS OF THAT REQUIRED TO MEET THE NECESSARY AUTHORIZED EXPENSES.'

SECTION 2512 OF THE AGENCY'S STANDARD PRACTICE TO WHICH YOU REFER READS AS FOLLOWS:

"TRAVEL WITHIN CONTINENTAL UNITED STATES--- A PER DIEM RATE OF NOT TO EXCEED $12 SHALL BE PAID FOR TRAVEL WITHIN THE CONTINENTAL UNITED STATES WITH THE FOLLOWING EXCEPTIONS:

"/A) THE RATE SHALL BE REDUCED TO $9 AFTER THE FIRST 30 DAYS ASSIGNMENT AT ANY ONE TEMPORARY DUTY STATION (EXCEPT FOR TRAVEL INVOLVING ATTENDANCE AT AERONAUTICAL CENTER AS STUDENT OR INSTRUCTOR), PROVIDED: THAT FOR TEMPORARY DUTY AT THE SAME POINT FOR MORE THAN 30 DAYS, THE HEADS OF WASHINGTON OFFICES, REGIONAL ADMINISTRATORS AND HEADS OF OTHER MAJOR FIELD ORGANIZATIONS MAY AUTHORIZE A RATE NOT TO EXCEED $12.'

IT IS WELL ESTABLISHED THAT A TRAVEL ORDER MAY NOT BE RETROACTIVELY AMENDED OR MODIFIED TO INCREASE OR DECREASE THE RIGHTS OF THE TRAVELER OR TO ALTER THE LIABILITY OF THE GOVERNMENT EXCEPT WHEN IT IS AMBIGUOUS, INCOMPLETE OR IRREGULAR ON ITS FACE, OR WHEN A PROVISION ORIGINALLY INTENDED TO BE INCLUDED WAS OMITTED THROUGH ERROR OR INADVERTENCE. SEE 24 COMP. GEN. 439; 28 ID. 732; 35 ID. 148.

THE PER DIEM RATES SPECIFIED IN YOUR ORDER CONFORM WITH THOSE SET FORTH IN THE QUOTED SECTION OF THE AGENCY'S STANDARD PRACTICE. THE ORDER IS COMPLETE AND REGULAR ON ITS FACE AND WE HAVE FOUND NOTHING TO INDICATE THAT AT THE TIME IT WAS ISSUED THE OFFICER INTENDED TO SPECIFY ANY RATES OTHER THAN THOSE SHOWN THEREIN. THEREFORE, ANY ATTEMPTS TO RETROACTIVELY AMEND THE ORDER WOULD HAVE BEEN INEFFECTUAL AND ANY PAYMENT IN EXCESS OF THAT AUTHORIZED BY THE ORDER WOULD HAVE BEEN IMPROPER.

THE PAYMENTS WHICH HAVE BEEN MADE TO OTHERS, PRESUMABLY FROM OTHER REGIONS OR AREAS, WHO ATTENDED THE COURSE OF INSTRUCTION ARE MATTERS FOR CONSIDERATION IN THE AUDIT OF THE ACCOUNTS AND CAN HAVE NO BEARING ON YOUR ENTITLEMENT.

THEREFORE, UPON REVIEW, THE SETTLEMENT OF MAY 1, 1962, WHICH DISALLOWED YOUR CLAIM MUST BE SUSTAINED.

CONCERNING YOUR FINAL QUESTION, OUR DECISIONS ARE BINDING UPON THE EXECUTIVE AGENCIES OF THE GOVERNMENT. AS TO MATTERS COGNIZABLE BY THE UNITED STATES DISTRICT COURTS AND THE UNITED STATES COURT OF CLAIMS SEE 28 U.S.C. 1346, ID. 1491.