B-170463, OCT. 23, 1970

B-170463, OCT. 23, 1970

PER DIEM ALLOWANCE - HOLIDAY TRAVEL DECISION ON BEHALF OF DONALD K. PEARSON AND WELDON ADAMS MODIFYING THE DISALLOWANCE OF THEIR CLAIM FOR FIVE DAYS ADDITIONAL PER DIEM FOR TRAVEL PERFORMED AS EMPLOYEES OF THE DEPARTMENT OF THE NAVY BETWEEN PORT HUENEME, CALIF., AND MORGAN CITY LOUISIANA. THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS POINT OUT THAT IN PERFORMING OFFICIAL TRAVEL A GOVERNMENT EMPLOYEE IS REQUIRED TO PROCEED AS EXPEDITIOUSLY AS HE WOULD IF TRAVELING ON HIS PERSONAL BUSINESS EVEN THOUGH HE MAY BE REQUIRED TO TRAVEL ON NONWORK DAYS AND THE U.S. IS NOT BOUND BY THE UNAUTHORIZED ACTS OF ITS OFFICERS AND EMPLOYEES. WHERE THERE IS NO EVIDENCE THAT INTERRUPTION OF TRAVEL ON THE DAYS IN QUESTION WAS FOR REASONS OF OFFICIAL BUSINESS THE EMPLOYEES CLAIM FOR ADDITIONAL PER DIEM ALLOWANCE MAY NOT BE ALLOWED DESPITE THEIR SUPERVISOR'S INSTRUCTIONS AUTHORIZING THE INTERRUPTION. HOWEVER, UNDER THE CIRCUMSTANCES OF THE CASE IN VIEW OF THE MISLEADING INSTRUCTIONS OF THE SUPERVISOR THE GOVERNMENT WILL APPLY THE JTR'S APPLICABLE TO A PERMANENT CHANGE OF DUTY STATION TO THIS TEMPORARY TRAVEL AND THE CLAIMS DIVISION IS THEREFORE INSTRUCTED TO ISSUE A SETTLEMENT IN FAVOR OF EACH EMPLOYEE ALLOWING PER DIEM FOR AN ADDITIONAL 3-1/2 DAYS.

TO MR. ROGER P. KAPLAN:

WE REFER TO YOUR LETTER OF JULY 24, 1970, WITH ENCLOSURES, REQUESTING REVIEW OF OUR OFFICE SETTLEMENTS DATED APRIL 8, 1969, WHICH DISALLOWED THE CLAIMS OF DONALD K. PEARSON AND WELDON ADAMS FOR PAYMENT OF ADDITIONAL PER DIEM FOR TRAVEL PERFORMED AS EMPLOYEES OF THE DEPARTMENT OF THE NAVY.

BY TRAVEL ORDER DATED OCTOBER 6, 1967, MESSRS. ADAMS AND PEARSON WERE DIRECTED TO COMMENCE TRAVEL ON OR ABOUT OCTOBER 11, 1967, FROM PORT HUENEME, CALIFORNIA, TO MORGAN CITY, LOUISIANA, VIA NEW ORLEANS, AND RETURN TO PORT HUENEME FOR THE PURPOSE OF PERFORMING TEMPORARY DUTY. TRAVEL BY PRIVATELY OWNED VEHICLE WAS AUTHORIZED AS BEING MORE ADVANTAGEOUS TO THE GOVERNMENT ON THE BASIS THAT THE EMPLOYEES WOULD HAUL CERTAIN GOVERNMENT EQUIPMENT IN THEIR AUTOMOBILE THEREBY SAVING THE COST OF SHIPPING SUCH EQUIPMENT.

PRIOR TO THEIR DEPARTURE FROM PORT HUENEME THE EMPLOYEES WERE ORALLY INSTRUCTED BY THEIR SUPERVISOR NOT TO TRAVEL ON WEEKENDS OR HOLIDAYS ON THE BASIS THAT SUCH TRAVEL WOULD NOT BE IN THE BEST INTEREST OF THE GOVERNMENT. ONE OF THE EMPLOYEES INDICATES THAT THE SUPERVISOR BELIEVED THAT OVERTIME COMPENSATION WOULD BE PAYABLE FOR TRAVEL ON THE WEEKENDS AND HOLIDAYS.

PURSUANT TO THEIR TRAVEL ORDERS THE TWO EMPLOYEES, TRAVELING TOGETHER IN ONE VEHICLE, DEPARTED THEIR OFFICIAL STATION AT 5:30 A.M. ON THURSDAY, OCTOBER 12, 1967, AND, STOPPING FIRST AT NEW ORLEANS FOR 1 1/2 HOURS, ARRIVED AT MORGAN CITY AT 5:30 P.M. ON OCTOBER 18, 1967. IN ACCORDANCE WITH THEIR SUPERVISOR'S INSTRUCTIONS THE EMPLOYEES PERFORMED NO TRAVEL ON SATURDAY, OCTOBER 14, AND SUNDAY, OCTOBER 15. UPON COMPLETION OF THEIR TEMPORARY DUTY ASSIGNMENT THE EMPLOYEES DEPARTED MORGAN CITY AT 5:30 A.M. ON WEDNESDAY, NOVEMBER 22, AND ARRIVED AT THEIR OFFICIAL STATION AT 6:30 P.M. ON NOVEMBER 29. AGAIN, FOLLOWING THE INSTRUCTIONS OF THEIR SUPERVISOR, THEY PERFORMED NO TRAVEL ON THURSDAY, NOVEMBER 23, THANKSGIVING DAY, OR ON THE WEEKEND OF NOVEMBER 25 AND 26. THUS, THEY USED 7 DAYS TO PERFORM THE TRAVEL TO THEIR TEMPORARY DUTY STATION AND 8 DAYS TO PERFORM THE RETURN TRAVEL.

THE ADMINISTRATIVE OFFICE DENIED THE EMPLOYEES PER DIEM FOR THE 5 DAYS ON WHICH THEY PERFORMED NO TRAVEL, AND SUCH ACTION WAS UPHELD BY THE CLAIMS DIVISION OF OUR OFFICE. YOU BELIEVE THAT THE EMPLOYEES ARE ENTITLED TO PER DIEM FOR THE 5 DAYS IN QUESTION SINCE THEY DID NOT INTERRUPT THEIR TRAVEL FOR THEIR OWN CONVENIENCE BUT MERELY FOLLOWED THE ORDERS OF THEIR SUPERVISOR.

IN PERFORMING OFFICIAL TRAVEL A GOVERNMENT EMPLOYEE IS REQUIRED TO PROCEED AS EXPEDITIOUSLY AS HE WOULD IF TRAVELING ON HIS PERSONAL BUSINESS EVEN THOUGH HE MAY BE REQUIRED TO TRAVEL ON NONWORKDAYS. SEE SECTION 1.2 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS; PARAGRAPH C 1051.1 OF THE JOINT TRAVEL REGULATIONS (VOLUME 2); 31 COMP. GEN. 278 (1952); 39 ID. 250 (1959). THAT RULE WAS ESTABLISHED LONG BEFORE THE ENACTMENT OF SECTION 16 OF PUBLIC LAW 89-301, NOW CODIFIED AT 5 U.S.C. 6101(B)(2), AS FOLLOWS:

"TO THE MAXIMUM EXTENT PRACTICABLE, THE HEAD OF AN AGENCY SHALL SCHEDULE THE TIME TO BE SPENT BY AN EMPLOYEE IN A TRAVEL STATUS AWAY FROM HIS OFFICIAL DUTY STATION WITHIN THE REGULARLY SCHEDULED WORKWEEK OF THE EMPLOYEE."

WE HAVE HELD, HOWEVER, THAT THE HEAD OF AN AGENCY, IN EXERCISING HIS DISCRETION UNDER THE ABOVE-QUOTED PROVISION, MAY NOT PERMIT A TRAVELER TO DELAY HIS RETURN TO HIS OFFICIAL STATION UNTIL THE MONDAY AFTER A WEEKEND SO AS TO INCREASE HIS ENTITLEMENT TO PER DIEM. 46 COMP. GEN. 425 (1966). SIMILARLY, WE HAVE HELD THAT THE QUOTED PROVISION DOES NOT OPERATE TO PERMIT AN EMPLOYEE TO COMMENCE OFFICIAL TRAVEL EARLIER THAN NECESSARY IN ORDER TO AVOID TRAVELING ON A WEEKEND. B-165854, FEBRUARY 4, 1969 (MORRIS CASE). IN THIS CASE THE ORAL INSTRUCTIONS ISSUED BY THE SUPERVISOR APPEAR TO HAVE BEEN BASED ON AN ERRONEOUS ASSUMPTION THAT OVERTIME COMPENSATION WOULD BE PAYABLE FOR WEEKENDS AND HOLIDAYS. UNDER THE LAW OVERTIME COMPENSATION IS PAYABLE ONLY FOR TRAVEL TIME OUTSIDE OF REGULAR DUTY HOURS WHEN THE TRAVEL (1) INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING (2) IS INCIDENT TO TRAVEL THAT INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING (3) IS CARRIED OUT UNDER ARDUOUS CONDITIONS, OR (4) RESULTS FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY. THERE IS NO SHOWING HERE THAT ANY OF THE ABOVE CONDITIONS WERE APPLICABLE SO AS TO HAVE ENTITLED THE EMPLOYEES TO OVERTIME COMPENSATION IF TRAVEL HAD BEEN PERFORMED AFTER REGULAR WORKING HOURS OR ON WEEKENDS AND HOLIDAYS. SEE 5 U.S.C. 5542 AND 5544. MOREOVER THERE IS NO EVIDENCE THAT THE INTERRUPTION OF TRAVEL ON THE FIVE DAYS IN QUESTION OTHERWISE WAS FOR REASONS OF OFFICIAL BUSINESS.

WE CAN APPRECIATE THAT THE EMPLOYEES FELT OBLIGED TO FOLLOW THE INSTRUCTIONS OF THEIR SUPERVISOR. NEVERTHELESS, THE EMPLOYEES ARE CHARGED WITH KNOWLEDGE OF THE APPLICABLE LAW AND REGULATIONS, AND IT IS WELL ESTABLISHED THAT THE UNITED STATES IS NOT BOUND BY THE UNAUTHORIZED ACTS OF ITS OFFICERS AND EMPLOYEES. FEDERAL CROP INSURANCE CORP. V MERRIL, 332 U.S. 380; IN RE HOOPER'S ESTATE, 359 F. 2D 569.

ALTHOUGH THE EMPLOYEES' CLAIMS FOR 5 DAYS PER DIEM MAY NOT BE ALLOWED ON THE BASIS OF THEIR SUPERVISOR'S INSTRUCTIONS, WE BELIEVE THAT, UNDER THE CIRCUMSTANCES OF THIS CASE, ADDITIONAL PER DIEM MAY BE ALLOWED ON THE BASIS OF REASONABLE DRIVING TIME BETWEEN THE AUTHORIZED POINTS OF TRAVEL. UNDER PARAGRAPH C 10155.1B1 OF THE JOINT TRAVEL REGULATIONS (VOLUME 2), 300 MILES PER DAY IS ESTABLISHED AS A REASONABLE AVERAGE FOR TRAVEL BY AUTOMOBILE IN CONNECTION WITH A PERMANENT CHANGE OF STATION. WHILE THAT REGULATION IS NOT INTENDED TO BE APPLICABLE TO TEMPORARY DUTY TRAVEL, WE BELIEVE THAT THE EMPLOYEES HERE INVOLVED SHOULD BE ALLOWED THE BENEFIT OF SUCH PROVISION IN VIEW OF THE MISLEADING INSTRUCTIONS ISSUED BY THEIR SUPERVISOR. B-163286, MARCH 1, 1968; 39 COMP. GEN. 250 (1959).

APPLYING AN AVERAGE OF 300 MILES PER DAY FOR TRAVEL FROM PORT HUENEME, CALIFORNIA, TO MORGAN CITY, LOUISIANA VIA NEW ORLEANS - A DISTANCE OF APPROXIMATELY 2,027 MILES - RESULTS IN AN ALLOWABLE TRAVEL TIME OF 7 DAYS. APPLYING THE SAME AVERAGE TO THE RETURN TRAVEL FROM MORGAN CITY DIRECTLY TO PORT HUENEME - A DISTANCE OF APPROXIMATELY 1,860 MILES - RESULTS IN TRAVEL TIME OF 6-1/2 DAYS. SINCE THE EMPLOYEES HAVE BEEN PAID ONLY 10 DAYS PER DIEM FOR THE ROUND-TRIP TRAVEL BETWEEN THE AUTHORIZED POINTS, WE ARE INSTRUCTING OUR CLAIMS DIVISION TO ISSUE A SETTLEMENT IN FAVOR OF EACH EMPLOYEE ALLOWING PER DIEM FOR AN ADDITIONAL 3-1/2 DAYS.