B-211244, SEP 27, 1983

B-211244, SEP 27, 1983

DIGEST: AN ITINERANT EMPLOYEE WHO DID NOT REGULARLY REPORT TO A PERMANENT DUTY STATION AND WHO MAINTAINS HIS RESIDENCE OUTSIDE COMMUTING DISTANCE FROM HIS DUTY STATION CLAIMS REIMBURSEMENT FOR LUNCH AND OTHER MEALS ON DAYS THAT HE COMMUTED BETWEEN HIS PERMANENT RESIDENCE AND HIS TEMPORARY DUTY WORKSITE IN THE SAME CITY. SINCE THIS LOCATION IS A HIGH-COST GEOGRAPHICAL AREA SUBSISTENCE IS PAID ON AN ACTUAL EXPENSE BASIS. THE AGENCY DISALLOWED THE CLAIMS UNDER PROVISION OF LOCAL REGULATIONS WHICH IT INTERPRETS AS LIMITING THE CLAIMANT TO REIMBURSEMENT OF COSTS WHICH WOULD NOT BE INCURRED BY AN EMPLOYEE LIVING AND WORKING AT A PERMANENT DUTY STATION. THOUGH EMPLOYEE POINTS TO PROVISIONS IN THE AGENCY REGULATION IN SUPPORT OF HIS CLAIM THOSE PROVISIONS ARE NOT SO CLEAR AS TO REQUIRE REVERSAL OF THE AGENCY DETERMINATION TO DISALLOW REIMBURSEMENT.

JOHN C. SIHRER:

THE FEDERAL AVIATION ADMINISTRATION DETERMINATION TO DISALLOW THE CLAIM OF JOHN C. SIHRER FOR REIMBURSEMENT OF THE COST OF LUNCH AND OTHER MEALS WHEN HE PERFORMED TEMPORARY DUTY IN THE VICINITY OF HIS PERMANENT RESIDENCE IS SUSTAINED BASED UPON THE PROVISIONS OF APPLICABLE LOCAL REGULATIONS.

WHEN ASSIGNED TO TEMPORARY DUTY IN THE MILWAUKEE, WISCONSIN AREA, MR. SIHRER LIVED AT HIS PERMANENT RESIDENCE IN THAT CITY. HIS OFFICIAL STATION AS DESIGNATED BY THE FEDERAL AVIATION ADMINISTRATION FOR ADMINISTRATIVE PURPOSES, WAS DES PLANES, ILLINOIS. HE DID NOT HAVE A HOME IN THE VICINITY OF DES PLANES, NOR DID HE ORDINARILY COMMUTE THERE FROM HIS MILWAUKEE RESIDENCE. WE UNDERSTAND THAT HE PERFORMED MOST OF HIS DUTY IN THE FIELD AS AN "ITINERANT" EMPLOYEE AT TEMPORARY DUTY LOCATIONS AWAY FROM DES PLANES.

BETWEEN NOVEMBER 31, 1981, AND DECEMBER 18, 1981, HE WAS ASSIGNED TO TEMPORARY DUTY AT TIMMERMAN FIELD IN THE VICINITY OF MILWAUKEE. DURING THIS TEMPORARY DUTY PERIOD HE COMMUTED BETWEEN THERE AND HIS RESIDENCE EACH DAY BY PRIVATELY OWNED VEHICLE.

THE EMPLOYING OFFICE PAID MR. SIHRER MILEAGE FOR USE OF HIS PRIVATELY OWNED VEHICLE BETWEEN HIS MILWAUKEE RESIDENCE AND HIS WORKSITE AT TIMMERMAN FIELD. THEY DISALLOWED REIMBURSEMENT FOR LUNCHES AND OTHER MEALS WHICH WERE CLAIMED ON AN ACTUAL EXPENSE BASIS (MILWAUKEE IS A HIGH- COST GEOGRAPHICAL AREA) BECAUSE HE LIVED AT HOME IN MILWAUKEE WHILE ASSIGNED TEMPORARY DUTY, AND HE DID NOT INCUR UNUSUAL EXPENSES OVER AND ABOVE THOSE CONSIDERED NORMAL. OUR CLAIMS GROUP ALSO DENIED ANY REIMBURSEMENT FOR MEALS AND FOUND THAT THE EMPLOYING OFFICE HAD CORRECTLY APPLIED THE PERTINENT REGULATIONS WHEN LIMITING TRAVEL EXPENSES TO MILEAGE.

MR. SIHRER BELIEVES HE IS ENTITLED TO MEAL COSTS UNDER A GREAT LAKES REGIONS SUPPLEMENT TO DEPARTMENT OF TRANSPORTATION TRAVEL REGULATIONS. PARAGRAPH 740-S1, 1500.14 GL SUP PAGE 7-12-S2, NOVEMBER 1, 1973, PROVIDES:

"WHEN AN EMPLOYEE WHO DOES NOT COMMUTE DAILY BETWEEN RESIDENCE TO OFFICIAL STATION PERFORMS TEMPORARY DUTY ASSIGNMENTS PER DIEM IS AUTHORIZED BASED ON AVERAGE NIGHTLY LODGING COST. EMPLOYEE WILL PREPARE VOUCHER TO SHOW ZERO COST FOR THE NIGHTS (DATES) AT RESIDENCE, ADD MOTEL/HOTEL COSTS FOR OTHER LOCATIONS AND DATES AND DIVIDE THE TOTAL COST INCLUDING ZERO LODGING COST BY THE NUMBER OF NIGHTS AWAY FROM THE OFFICIAL STATION TO DETERMINE THE AVERAGE NIGHTLY LODGING COST FOR THE PERIOD."

EVIDENTLY THIS PARAGRAPH WAS A PART OF THE "LODGING-PLUS" SYSTEM OF COMPUTING PER DIEM BY AVERAGING THE DAILY LODGING COSTS FOR THE TRIP. WE DO NOT FIND IT TO BE CONTROLLING IN MR. SIHRER'S CASE SINCE HE WAS NOT ENTITLED TO PER DIEM UNDER THE LODGINGS PLUS SYSTEM.

THE AGENCY DISALLOWED THE MEAL COSTS BASED ON A LOCAL REGULATION - AGL- 450 BRANCH CIRCULAR LETTER NO. 1 - WHICH PROVIDES THAT FOR EMPLOYEES IN TEMPORARY DUTY STATUS WHO ARE LIVING AT THEIR RESIDENCE, ACTUAL SUBSISTENCE EXPENSES WILL BE ALLOWED ONLY FOR UNUSUAL EXPENSES OVER AND ABOVE THOSE CONSIDERED NORMAL. SINCE LUNCH COSTS ARE NORMAL AND ARE NOT PAID BY THE GOVERNMENT WHEN EMPLOYEES LIVE AT THEIR RESIDENCE AND COMMUTE TO WORK, THIS LUNCH EXPENSE WAS CONSIDERED NOT ALLOWABLE.

WHILE THE APPLICABLE REGULATION (FTR PARA. 1-7.1A) STATES THAT PER DIEM ALLOWANCES SHALL BE PAID FOR OFFICIAL TRAVEL (EXCEPT WHERE REIMBURSEMENT IS MADE FOR ACTUAL SUBSISTENCE EXPENSES), OUR DECISIONS HAVE LONG HELD THAT PER DIEM IS NOT A STATUTORY RIGHT AND THAT IT IS WITHIN THE DISCRETION OF THE AGENCY TO PAY PER DIEM ONLY TO THE EXTENT IT IS NECESSARY TO COVER THE INCREASED EXPENSES ARISING FROM THE PERFORMANCE OF OFFICIAL DUTY. 55 COMP.GEN. 1323 (1976); 31 COMP.GEN. 264 (1952).

THE SAME DISCRETIONARY STANDARD IS GENERALLY APPLIED TO EMPLOYEES LIVING IN THEIR PERMANENT RESIDENCES WHILE ON TEMPORARY DUTY, WITH THE EMPLOYING AGENCIES GIVEN BROAD LEEWAY TO DECIDE WHETHER OR NOT ANY PER DIEM IS JUSTIFIED AND, IF SO, IN WHAT AMOUNT. COMPARE 31 COMP.GEN. 264 (1952). MORE RECENT DECISIONS UPHOLDING THE EMPLOYING AGENCY'S DISCRETION TO DENY PER DIEM WHEN THE TEMPORARY ASSIGNMENT IS NEAR THE EMPLOYEE'S HOME ARE MATTER OF BUKER AND SANDUSKY, B-185195, MAY 28, 1976; MATTER OF CHARNICK, B-184175, AUGUST 5, 1975. SEE ALSO B-180010.11, MARCH 9, 1977.

WE HAVE DISTINGUISHED BETWEEN THE EMPLOYING OFFICE'S PROPER CURTAILMENT OF PER DIEM UNDER A REGULATION OR POLICY EXISTING BEFORE THE TEMPORARY DUTY ASSIGNMENT AND AN IMPROPER ACTION RETROACTIVELY TAKING AWAY PER DIEM AFTER THE RIGHT TO IT HAD BEEN VESTED BY THE EMPLOYEE'S PERFORMANCE OF THE TEMPORARY DUTY. COMPARE B-180111, MARCH 20, 1974, AND MATTER OF HENDRICKS, B-199525, MAY 6, 1981.

CONSISTENT WITH THE DECISIONS DISCUSSED, PARAGRAPH 1-7.3A OF THE FTR PROVIDES THAT EACH DEPARTMENT SHOULD AUTHORIZE ONLY THOSE PER DIEM ALLOWANCES JUSTIFIED BY THE CIRCUMSTANCES OF THE TRAVEL. WHILE THE SITUATION HERE INVOLVED DOES NOT LEND ITSELF TO PRECISE ANALYSIS, IT IS CLEAR THAT THE LOCAL OFFICIALS WHO APPROVE TRAVEL VOUCHERS DID NOT INTEND THAT THE COST OF LUNCHES OR OTHER MEALS WOULD BE PAID IN THESE CIRCUMSTANCES. FURTHER, THEY PROMULGATED THIS RULE IN A LOCAL REGULATION WHICH REQUIRES A SHOWING OF "REAL EXPENSES." THE AUTHORIZING OFFICIAL INTERPRETS THAT TO MEAN THAT THE EMPLOYEE MUST SHOW HE WAS REQUIRED TO INCUR ADDITIONAL SUBSISTENCE EXPENSES BECAUSE OF THE TEMPORARY DUTY ASSIGNMENT. WE FIND NO BASIS TO DISAGREE WITH THAT INTERPRETATION.

ACCORDINGLY, AND SINCE THE EMPLOYEE HAS MADE NO SHOWING OF NECESSITY FOR INCURRING ANY ADDITIONAL SUBSISTENCE EXPENSES, OUR CLAIMS GROUP'S SETTLEMENT CERTIFICATE, DECEMBER 28, 1982, IS SUSTAINED.