B-201508.OM, APR 13, 1982

B-201508.OM, APR 13, 1982

SUBJECT: RODNEY D. JOHNSON - CLAIM FOR ADDITIONAL PER DIEM - B-201508-O.M. DIGEST: ALTHOUGH AS GENERAL RULE AN AGENCY HAS DISCRETION TO REDUCE PER DIEM RATE FOR ITS EMPLOYEES, SUCH REDUCTION MUST BE CONSISTENT WITH INTERNAL AGENCY REGULATIONS. ACCORDINGLY, CLAIMANT IS ENTITLED TO RECEIVE NONREDUCED RATE OF PER DIEM, SINCE CLAIMANT IS IDENTICALLY SITUATED TO PREVIOUS CLAIMANTS WHOSE REDUCTION OF PER DIEM WAS RULED IN VIOLATION OF AGENCY REGULATION. SEE B-197561, DECEMBER 14, 1981.

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858):

RETURNED IS CLAIM FILE Z-2827066 PERTAINING TO THE SUBJECT CLAIM. AS IS EXPLAINED BELOW, WE NOW FIND THAT MR. JOHNSON IS ENTITLED TO RECEIVE THE ADDITIONAL PER DIEM, AND HIS CLAIM SHOULD BE ALLOWED.

THE ENTIRE UDERLYING FACTS OF MR. JOHNSON'S CLAIM HAVE BEEN SET OUT IN MATTER OF JOHNSON, B-201508, JULY 15, 1981. THEREFORE, ONLY THOSE FACTS RELEVANT TO THIS CONSIDERATION WILL BE SET OUT HERE.

THE CLAIMANT, AN EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE, FOREST SERVICE, PERFORMED TEMPORARY DUTY IN VARIOUS LOCATIONS BETWEEN HIS OFFICIAL DUTY STATION IN NEW ORLEANS, LOUISIANA, AND THE SOUTHERN FOREST EXPERIMENT STATION FROM SEPTEMBER 11, 1977, TO JULY 2, 1978.

MR. JOHNSON'S ORIGINAL TRAVEL ORDERS AUTHORIZED HIM A PER DIEM OF AVERAGE DAILY LODGING PLUS $9 NOT TO EXCEED $35, AND $9 FOR TRAVEL OF LESS THAN 24 HOURS WHEN LODGINGS WERE NOT REQUIRED. ON JANUARY 9, 1978, HIS TRAVEL ORDERS WERE AMENDED TO CHANGE THE PER DIEM ALLOWANCE TO AVERAGE DAILY LODGINGS PLUS $9 NOT TO EXCEED $28.

WHEN MR. JOHNSON CLAIMED PER DIEM AT AN INCREASED RATE FROM SEPTEMBER 11, 1977, TO JULY 2, 1978, HIS CLAIM WAS DENIED ON THE BASIS THAT THE RATE OF PER DIEM IS A MATTER WITHIN THE DISCRETIONARY AUTHORITY OF THE EMPLOYING AGENCY. WHILE THIS GENERAL RULE OF LAW IS CORRECT, IT IS NOT FOR APPLICATION TO MR. JOHNSON'S SITUATION.

APPROXIMATELY 5 MONTHS AFTER THE DECISION IN THE JOHNSON CASE, WE ISSUED ANOTHER DECISION INVOLVING FOREST SERVICE EMPLOYEES IN A SITUATION SIMILAR TO MR. JOHNSON'S. MATTER OF BOWMAN AND MCCORMICK, B-197561, DECEMBER 14, 1981. IN THE LATTER DECISION WE RULED THAT A REDUCED RATE OF PER DIEM GIVEN THOSE CLAIMANTS WAS CONTRARY TO THE INTERNAL REGULATIONS OF THE AGENCY. ALTHOUGH AN AGENCY MAY REDUCE A PER DIEM RATE, THE REDUCTION MUST BE CONSISTENT WITH ITS OWN REGULATIONS.

AS MR. JOHNSON ALLEGES AND OUR SUBSEQUENT INVESTIGATION HAS VERIFIED, HE WAS IN THE IDENTICAL SITUATION AS MESSRS. BOWMAN AND MCCORMICK. ACCORDINGLY, IF A REDUCTION IN THE RATE OF PER DIEM FOR MESSRS. BOWMAN AND MCCORMICK WAS CONTRARY TO AGENCY REGULATION, THEN LIKEWISE SUCH A REDUCTION IN MR. JOHNSON'S RATE OF PER DIEM WAS CONTRARY TO AGENCY REGULATION.

APPARENTLY, THE DIFFERENT RESULTS IN THE TWO CASES AROSE BECAUSE OF THE MANNER IN WHICH THE ISSUES IN EACH CASE WERE PRESENTED. SPECIFICALLY, IN MR. JOHNSON'S CASE THE ISSUE APPEARED TO BE WHETHER THE FOREST SERVICE HAS THE DISCRETIONARY AUTHORITY TO REDUCE PER DIEM RATES FOR TRAVELERS. THUS, BASED ON APPLICABLE LAWS AND CASE PRECEDENTS, WE RULED MR. JOHNSON'S AGENCY LEGALLY COULD REDUCE HIS RATE OF PER DIEM.

IN BOWMAN AND MCCORMICK THE FOREST SERVICE INTERNAL REGULATIONS WERE REVIEWED AS THE AGENCY'S AUTHORITY TO REDUCE THE INDIVIDUAL'S RATE OF PER DIEM. WE RULED THAT ALTHOUGH AN AGENCY HAS DISCRETION TO REDUCE A RATE OF PER DIEM, THE FOREST SERVICE INTERNAL REGULATIONS IMPLEMENTING THE MANNER IN WHICH A RATE OF PER DIEM COULD BE REDUCED DID NOT AUTHORIZE A REDUCTION FOR MESSRS. BOWMAN AND MCCORMICK UNDER THEIR CIRCUMSTANCES.

THE EMPLOYING AGENCY FOR THE THREE INDIVIDUALS HAS SUBSEQUENTLY PROVIDED US WITH AN ADMINISTRATIVE REPORT SPECIFICALLY POINTING OUT THAT MR. JOHNSON WAS IN THE SAME SITUATION AS MESSRS. BOWMAN AND MCCORMICK.

ACCORDINGLY, PAYMENT SHOULD ISSUE TO MR. JOHNSON ON THE SAME BASIS AS PAYMENT ISSUED TO MESSRS. BOWMAN AND MCCORMICK.